Yesterday, Dr. Sara H. Cody, Health Officer of the County of Santa Clara, issued a new Order, that placed further restrictions on individuals and businesses in Santa Clara County, and superseded the original Shelter in Place Order from March 16, 2020. Since the original order, Santa Clara County and the San Francisco Bay Area continued to experience increases in confirmed cases of and deaths attributable to COVID-19, necessitating further measures to slow the transmission of Novel Coronavirus 2019 in the community. This action was taken in coordination with Alameda County, San Mateo County, San Francisco City and County, Contra Costa County, Marin County, and the City of Berkeley. New Requirement: Essential Businesses Must Implement a Social Distancing Protocol Customers May Not Bring Reusable Bags in Stores In November 2016, California voters had approved Proposition 67, which banned single-use plastic bags in favor of recycled paper bags or reusable bags. Well, those reusable bags are now prohibited as well in a bid to reduce potential sources for contamination. This is one of the many changes you will see the next time you are at the grocery store. Under the new order, Essential Businesses, such as grocery stores, must "prepare, post, and implement a Social Distancing Protocol" at their locations "frequented by the public or employees." This protocol requires businesses to provide signage about their Social Distancing Protocol and implement measures to protect employee health, prevent crowds from gathering, keep people at least six feet apart, prevent unnecessary contact, and increase sanitization.
The coronavirus epidemic has disrupted courts across America. To slow the spread of the virus, courts have had to adapt their processes to new social distancing measures by transitioning to e-filing and teleconferencing, deferring non-emergency civil matters, or suspending jury trials. While many courts have reduced their services to protect the health of the public, attorneys, judges and other court personnel, the courts remain committed to stay open so that they can provide essential court services, such as hearing civil protection and restraining orders and certain criminal matters. To learn more about how the coronavirus has affected the courts, read Coronavirus and the Courts: Technology, Public Health, and Access to Justice by Sarah Andropoulos on our Legal Marketing & Technology Blog
Unlike the California counties that provided a more extensive list of permitted activities, Governor Newsom initially focused solely on maintaining the "continuity of operations of federal critical infrastructure sectors." A few hours later, the State of California updated their California Coronavirus (COVID-19) Response website to add more exceptions to their "stay home" order. Individuals may now leave their home to maintain continuity of operations of critical government services schools childcare, and construction, including housing construction. So, we now have a legal order whose terms have been modified by a website.
The Santa Clara County shelter-in-place order explicitly permits outdoor exercise and activities. For purposes of this Order, individuals may leave their residence only to perform any of the following "Essential Activities." [...] To engage in outdoor activity, provided the individuals comply with Social Distancing Requirements as defined in this Section, such as, by way of example and without limitation, walking, hiking, or running. The Executive Order issued by Governor Gavin Newsom tonight does not. While the Coronavirus (COVID-19) in California website states that we are permitted "to get food, care for a relative or friend, get necessary health care, or go to an essential job," it is silent on exercise. It is also silent on whether lawyers are permitted to work in their office while following social distancing recommendations. Here is a hyperlinked version of the Governor's Order.
On February 26, 2020, the Centers for Disease Control and Prevention (CDC) confirmed the first case of community spread of COVID-19 in the United States. Since this patient had not traveled to Wuhan City, China or come in close contact with a known patient with COVID-19, this infection raised the possibility that COVID-19 was spreading undetected in the United States. Two weeks later, any hope of that the UC Davis Medical Center patient was an isolated case vanished with the steady rise in COVID-19 confirmations that forced our county to implement increasingly restrictive measures. On March 9, 2020, Santa Clara County required the cancellation of mass gatherings of more than 1,000 persons. The San Jose Sharks played one more away game before the National Hockey League (NHL) postponed the remainder of the season.
In Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the Board of Immigration Appeals ruled that a victim of domestic violence was eligible for asylum based on her membership in a particular social group comprised of “married women in Guatemala who are unable to leave their relationship.” Yesterday, Attorney General Jeff Sessions overruled…
On February 26, 2018, Texas1 filed a complaint for declaratory and injunctive relief against the United States, the U.S. Department of Health and Human Services, and the U.S. Internal Revenue Service alleging that the Patient Protection and Affordable Care Act (a/k/a the Affordable Care Act or Obamacare) was unconstitutional. Six years earlier, in National Federation of Independent Business v. Sebelius, the U.S. Supreme Court upheld the individual mandate in the Affordable Care Act, which "require[d] most Americans to maintain 'minimum essential' health insurance coverage," as a valid exercise of Congressional power under the Taxing Clause. The plaintiffs now argue that since Congress passed and President Trump signed into law the Tax Cuts and Jobs Act of 2017, which eliminated the tax penalty of the Affordable Care Act, the individual mandate is no longer a valid exercise of Congressional power under the Taxing Clause since removal of the tax penalty disconnects the individual mandate from the collection of taxes. Plaintiffs further argued that without the individual mandate, the rest of the Affordable Care Act must fall since the individual mandate underpins the guaranteed-issue and community-rating requirements of the Affordable Care Act. The guaranteed-issue requirement prohibits health plans from denying coverage to applicants with pre-existing conditions. The community-rating requirement prohibits health insurers from charging higher premiums to persons with pre-existing conditions.
Today, President Trump declassified a memorandum dated January 18, 2018, from the House Permanent Select Committee on Intelligence ("Nunes Memo"). This memo alleged abuses by the Department of Justice and the Federal Bureau of Investigation while seeking a Foreign Intelligence Surveillance Act (FISA) warrant to conduct electronic surveillance of Carter Page.
An Act To provide for the relocation of the United States Embassy in Israel to Jerusalem, and for other purposes.
Last week, President Donald Trump issued an Executive Order entitled Protecting the Nation From Foreign Terrorist Entry Into the United States, Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017).1 This order included several controversial provisions that may alter American immigration policy. First, paragraph 3(c) of the Executive Order suspended…
On January 31, 2017, President Donald Trump announced that he would nominate Judge Neil M. Gorsuch, of the U.S. Court of Appeals for the Tenth Circuit, for the U.S. Supreme Court. If confirmed, Judge Gorsuch would take up the seat vacated by the late Justice Antonin Scalia, who died last year. Here’s what you might want…
On June 13, 2016, the U.S. Attorneys’ Office filed a complaint in the Western District of Washington against the City of Seattle and its department Seattle City Light. In United States of America v. City of Seattle, the complaint revealed that the FBI had been installing covert video surveillance…
Last April, Nike USA, Inc. filed a complaint against Boris Berian, alleging that the defendant had breached an endorsement contract. Nike alleged that parties had entered into a Track & Field Contract on June 17, 2015, that ended on December 31, 2015. During this term, Berian was exclusively obligated to endorse Nike athletic footwear and apparel. During the 60-day period before the expiration of the contract, Nike had an exclusive period to negotiate the renewal of the contract. After the exclusive negotiating period ended, Berian could negotiate with third parties. However, for 180 days after the contract expired, Berian had to submit to Nike any third-party offer he received and wanted to accept, and Nike then had 10 business days to "decide whether to enter into an agreement with Defendant on terms no less favorable than the 'material, measurable and matchable terms' contained in that third-party offer."
Our legal system offers its own remembrance of Muhammad Ali. In decisions from 1967 to 1971, federal court opinions documented Ali's fight to seek conscientious objector status when drafted to serve in the Vietnam War. Although he was convicted, sentenced to imprisonment for five years and fined $10,000 for declining to submit to induction, his conviction was ultimately overturned by the United State Supreme Court. The cases below show the circuitous route he took as his challenges traversed through all levels of the judicial system. Ali v. Connally, 266 F. Supp. 345 (S.D. Tex. 1967). Court dismissed plaintiff's petition for injunctive relief ruling that the Selective Service Act does not provide for judicial review of orders of the Selective Service Board. Clay v. United States, 397 F.2d 901 (5th Cir. 1968). The Court held that decisions of the local boards in denying a ministerial exemption and conscientious objector status are final. Ali v. Division of State Athletic Commission, 308 F. Supp. 11 (S.D.N.Y. 1969). Plaintiff Muhammad Ali alleged that the New York State Athletic Commission had violated his rights under the Due Process Clause by refusing to issue him a license to fight in a prize ring because of his conviction and sentence for refusing to serve in the armed forces. The District Court granted defendant's motion to dismiss finding a rational basis for the Commission's refusal to grant the application based on plaintiff's conviction and sentence. United States v. Clay, 386 F. Supp. 926 (S.D. Tex. 1969). The United States Supreme Court had granted certiorari and remanded the case back to the District Court to determine whether the defendant's conviction was tainted by the information obtained as a result of the electronic surveillance. Because defendant was not able to establish that logs of his telephone conversations contained prejudicial material, the court denied his motions to dismiss or set aside the verdict, sentence, and indictment, and for a new trial.
Last year, Google hosted Google I/O at Moscone West Convention Center in San Francisco, a destination city with abundant hotel and dining options. So, it came as a bit of a shock to us when Google announced that Google I/O was moving to Shoreline Amphitheatre, which is literally just down the street from us in Mountain View, California. Google I/O is a developer conference that explores the latest in technology and mobile. Our own software engineer, Nick Moline, has attended previous I/Os where he's learned about Structured Data markup and knowledge graph search which powers Google Now. Nick notes that I/O is also where Google first launched various APIs that people use every day. "Most of the Google Maps API was first announced at the original Google Developer Day back in 2007, and SPDY, the precursor to what is now known as HTTP\2 a new faster way of working with the internet, was pushed heavily in 2010." This year, Nick is looking forward to the sessions focused on high performance websites, in particular for mobile. These sessions should be of interest to lawyers and law firms seeking to improve their marketing reach.
When I first heard that Alaska Airlines would be taking over Virgin America, I was puzzled because Virgin has built a very distinct brand that spans other product categories. I also assumed that any acquisition would have the support of Sir Richard Branson, the Founder of Virgin Group. However, in his post On Virgin America, Branson provides the backstory on the creation of Virgin America and offers an interesting comment about the Alaska Airlines takeover: I would be lying if I didn’t admit sadness that our wonderful airline is merging with another. Because I'm not American, the US Department of Transportation stipulated I take some of my shares in Virgin America as non-voting shares, reducing my influence over any takeover. So there was sadly nothing I could do to stop it. Virgin America has its principal executive offices in Burlingame, California. In Silicon Valley, many companies are started by foreign-born founders. Some companies even have multiple classes of stock to maintain voting control in the hands of its founders. So, what was different about Virgin America that the US Department of Transportation required Richard Branson to take some of his shares as non-voting shares?
The California State Auditor recently released a report titled The University of California: Its Admissions and Financial Decisions Have Disadvantaged California Resident Students. Figure 9, which charts the mandatory fees paid by undergraduate students, caught my attention. I've removed the numbers and the Y-axis scale for illustrative purposes. At first glance, it appears that residents are paying higher mandatory fees than nonresidents. From 2011 onwards, the chart gives the impression that residents are paying twice as much as nonresidents. However, this chart is incredibly misleading.
Same-sex marriages are legal in the United States, but you would not know that if you only consulted the state codes. Last June, the United States Supreme Court handed down its decision in Obergefell v. Hodges, 576 U.S. ___ (2015). In Obergefell, the Court considered two questions: (1) did the Fourteenth Amendment require states to license a marriage between two people of the same sex; and (2) did the Fourteenth Amendment require states to recognize a same-sex marriage that was lawfully licensed and performed in a different state. On both questions, the Court answered in the affirmative. So, what happens when a court holds that a state law is unconstitutional? I wanted to see if state legislatures updated their state codes in the face of adverse United States Supreme Court precedent so I looked up the marriage laws from the states that were the subject of this litigation: Michigan, Kentucky, Ohio and Tennessee.
Wells Fargo Bank, N.A. applied for an interesting fraud detection patent in March 2014. This patent covers the process of verifying the identity of a client who calls in for customer service. If you have ever called a credit card company or your bank, you should already be familiar with their security prompts. First,…
All states require children to be immunized or to be in the process of receiving immunizations against certain contagious diseases before a child care facility or a school may admit them. For each state, the immunization schedule may be found in the state code or its administrative regulations, usually in the sections governing education (for schools) or public health (for child care facilities). Besides specific vaccine requirements, these schedules may also refer to the schedules provided by the United States Department of Health and Human Services, American Academy of Family Physicians, or American Academy of Pediatrics. Where states significantly differ is in their recognition of exemptions from vaccination. All states grant a medical exemption to children who cannot be immunized for health reasons. For example, the administration of a vaccine may be contraindicated in children who are allergic to a component of the vaccine or have a suppressed immune system. These exemptions are specific to the vaccine and health condition, and remain so long as the contraindication lasts. Additionally, 48 states and the District of Columbia permit parents to claim a non-scientific exemption, such as if their religious tenets or practices conflict with immunization or if their personal, philosophical or moral beliefs are opposed to immunization. The lone holdouts are Mississippi and West Virginia. However, in the event of an outbreak, child care facilities and schools may exclude children who have not been vaccinated against the disease until the end of the outbreak. Verdict offers some insightful analysis into the issue of religious exemptions: How to Craft a Religious Exemption Regime Guaranteed to Be Dangerous for Children: The Case of Idaho. By Professor Marci A. Hamilton. The Deep Roots of the Left/Right Anti-Vaxxer Coalition. By Professor Michael C. Dorf. The Vaccine for Pollyanna Attitudes Toward Public Health and Religious Beliefs: Religious Exemptions for Vaccinations and Medical Neglect Need to Be Repealed Now and the Federal Government (and the Insurance Industry) Need to Incentivize the States to Do So. By Professor Marci A. Hamilton. Below, you will find links to state codes, statutes and regulations governing the immunization of children who attend day care, child care, elementary schools, private schools and colleges.
Alfred v. Walt Disney Co., Delaware Court of Chancery (1/14/15) Civil Procedure This complaint concerned the T-65 X-wing fighter plane, a fictional vehicle created in connection with the movie Star Wars Episode IV: A New Hope. Walt Disney Company owned the trademark for the fictional vehicle. Plaintiff developed a marketing plan pursuant to which Disney would license to a non-party the right to use the X-wing name and appearance, the non-party would develop the vehicle in the appearance of an X-wing (the “Flying Car”), and Plaintiff would raise the funds for development of the Flying Car. Plaintiff planned on promoting the Flying Car via tie-ins to Disney’s new Star Wars movie to be released in 2017. Plaintiff made an unsolicited proposal involving Star Wars marketing to Disney, but Disney responded that it was not interested in his proposal. Plaintiff filed this complaint against Disney and its CEO and Board Chairman, claiming that Defendants were “stalling the next evolution of human transportation on this planet.” The individual Defendants, both residents of California, moved to dismiss for lack of jurisdiction, and all Defendants moved to dismiss for failure to state a claim. The Court of Chancery granted the motions, holding that Plaintiff failed to perfect jurisdiction over the individual Defendants and failed to state a claim against any of the Defendants. Read More: X-wing fighter lawsuit against ‘Star Wars’ rights-owner Disney is shot down by Delaware judge Whitfield v. United States, United States Supreme Court (1/13/15) Criminal Law Whitfield, fleeing a botched bank robbery, entered 79-year-old Parnell’s home and guided her from a hallway to a room a few feet away, where she suffered a fatal heart attack. He was convicted of, among other things, violating 18 U. S. C.2113(e), which establishes enhanced penalties for anyone who “forces any person to accompany him without the consent of such person” in the course of committing or fleeing from a bank robbery. The Fourth Circuit held that the movement Whitfield required Parnell to make satisfied the forced-accompaniment requirement. The unanimous Supreme Court affirmed. A bank robber “forces [a] person to accompany him,” for purposes of section 2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance. The word “accompany” does not connote movement over a substantial distance. The severity of the penalties for a forced-accompaniment conviction, a mandatory minimum of 10 years and a maximum of life imprisonment, does not militate against this interpretation; the danger of a forced accompaniment does not vary depending on the distance traversed. Read More: North Carolina bank robber loses case at U.S. Supreme Court
In re Adoption of K.P.M.A., Oklahoma Supreme Court (10/14/14) Constitutional Law, Family Law The issue this case presented for the Supreme Court’s review centered on the termination Respondent-appellant Billy McCall’s (Father) parental rights to K.P.M.A. (Child). Child was born out-of-wedlock to T.Z. (Mother) in 2012. Prospective adoptive parents, petitioners-appellees Marshall and Toni…
Zavodnik v. Harper, Indiana Supreme Court (9/30/14) Civil Procedure Plaintiff was an abusive litigant. In this case, Plaintiff filed a complaint against Defendant, which the trial court dismissed for failure to prosecute or comply with applicable rules under Ind. Trial Rule 41(E). The court of appeals dismissed Plaintiff’s appeal with prejudice for Plaintiff’s failure to file a timely brief and appendix. The Supreme Court denied Plaintiff’s petition to transfer jurisdiction and refrained from imposing sanctions or restrictions. This per curiam opinion also gave guidance to the state’s courts on options when confronted with abusive and vexatious litigation practices. Read more: Inspired by man who filed more than 120 lawsuits, Indiana Supreme Court sets pro se limits Duke v. State of North Carolina, US 4th Cir. (10/1/14) Election Law After the Supreme Court lifted certain Voting Rights Act, 42 U.S.C. 1973c, restrictions that prevented jurisdictions like North Carolina from passing laws that would deny minorities equal access, North Carolina began pursuing sweeping voting reform with House Bill 589. Plaintiffs and the federal government filed suit against North Carolina, alleging that House Bill 589 violates equal protection provisions of the United States Constitution and the Voting Rights Act and seeking a preliminary injunction. The court concluded that the district court abused its discretion in denying plaintiffs' preliminary injunction and not preventing certain provisions of House Bill 589 from taking effect. Accordingly, the court reversed the district court's denial of the preliminary injunction as to House Bill 589's elimination of same-day registration and prohibition on counting out-of-precinct ballots. The court affirmed the district court's denial of plaintiffs' request for a preliminary injunction with respect to the following House Bill 589 provisions: the reduction of early-voting days; the expansion of allowable voter challenges; the elimination of the discretion of county boards of elections to keep the pools open an additional hour on Election Day in "extraordinary circumstances"; the elimination of pre-registration of sixteen- and seventeen-year-olds who will not be eighteen years old by the next general election; and the soft roll-out of voter identification requirements to go into effect in 2016. Read more: Divided appellate court strikes part of North Carolina's controversial voting law
Levitt v. Yelp! Inc., US 9th Cir. (9/2/14) Business Law, Internet Law Plaintiffs, small business owners, filed a class action suit alleging that Yelp, an online forum, extorted or attempted to extort advertising payments from them by manipulating user reviews and penning negative reviews of their businesses. Plaintiffs filed suit against Yelp…
Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia, US 3rd Cir. (8/18/14) Communications Law, Constitutional Law The Fraternal Order of Police (FOP), an incorporated collective bargaining organization that represents the approximately 6,600 active police officers employed by the Philadelphia, operates a political action committee, COPPAC, for purposes…
Bostic v. Schaefer, US 4th Cir. (7/28/14) Civil Rights, Constitutional Law, Family Law, Government & Administrative Law Plaintiffs filed suit challenging Virginia Code sections 20-45.2 and 20-45.3; the Marshall/Newman Amendment, Va. Const. art. I, 15-A; and any other Virginia law that bars same sex-marriage or prohibits the State's recognition of otherwise-lawful same-sex marriages from other jurisdictions (collectively, the Virginia Marriage Laws). Plaintiffs argued that these laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The district court granted plaintiffs' motion for summary judgment and enjoined Virginia from enforcing the laws. As a preliminary matter, the court concluded that each of the plaintiffs had standing as to at least one defendant, and the court declined to view Baker v. Nelson as binding precedent. The court concluded that strict scrutiny analysis applied in this case where the Virginia Marriage Laws impede the right to marry by preventing same-sex couples from marrying and nullifying the legal import of their out-of-state marriages. Proponents contend that five interests support the laws: federalism-based interests, history and tradition, protecting the institution of marriage, encouraging responsible procreation, and promoting the optimal childrearing environment. The court concluded, however, that these interests are not compelling interests that justify the Virginia Marriage Laws. Therefore, all of the proponents' justifications for the laws fail and the laws cannot survive strict scrutiny. Accordingly, the court concluded that the Virginia Marriage Laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples' lawful out-of-state marriages. The court affirmed the judgment of the district court. Read More: Appeals Panel Rejects Virginia Gay-Marriage Ban
Two federal appeals courts this week issued conflicting opinions on Obamacare. King v. Burwell, US 4th Cir. (7/22/14) Health Law, Tax Law Plaintiffs filed suit challenging the validity of an IRS final rule implementing the premium tax credit provision of the Patient Protection and Affordable Care Act (ACA), 26 U.S.C. 36B. The final rule interprets the Act as authorizing the IRS to grant tax credits to individuals who purchase health insurance on both state-run insurance "Exchanges" and federally-facilitated "Exchanges" created and operated by HHS. The court found that the applicable statutory language is ambiguous and subject to multiple interpretations. Applying deference to the IRS's determination, the court upheld the rule as a permissible exercise of the agency's discretion. Accordingly, the court affirmed the judgment of the district court. Halbig v. Burwell, US DC Cir. (7/22/14) Health Law, Tax Law Appellants challenged the IRS's interpretation of 26 U.S.C. 36B, enacted as part of the Patient Protection and Affordable Care Act, under the Administrative Procedure Act (APA), 5 U.S.C. 706(2)(A). The district court held that the ACA's text, structure, purpose, and legislative history make "clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges." The district court held that even if the ACA were ambiguous, the IRS's regulation would represent a permissible construction entitled to Chevron deference. The court concluded, however, that the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges "established by the State." Accordingly, the court reversed the judgment of the district court and vacated the IRS's regulation. Read More: Second federal appeals court rules on health-care law, setting up a same-day circuit conflict
This week, a federal judge in the U.S. District Court for the Central District of California issued a ruling that California’s death penalty is unconstitutional. Read Courtney Minick’s analysis of the opinion on Justia’s Verdict: Federal Judge Strikes Down California Death Penalty: What This Could Mean for California. Texas Div., Sons of Confederate Veterans, Inc. v. Vandergriff, et al., US 5th Cir. (7/14/14) Civil Rights, Constitutional Law Plaintiff filed suit alleging that the Board violated its First Amendment right to free speech when it denied plaintiff's application for a specialty license plate featuring the Confederate battle flag. The district court concluded that the Board had made a reasonable, content-based regulation of private speech. The court concluded that speech on specialty license plates is private speech and that the Board impermissibly discriminated against plaintiff's viewpoint when it denied the specialty license plate. Accordingly, the court reversed the judgment of the district court and remanded. Read More: Court rules Texas can't ban sale of Confederate flag license plates Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., US Federal Circuit (7/11/14) Patents Digital image processing involves electronically capturing an image of a scene with a “source device,” such as a digital camera, altering the image in a desired fashion, and transferring the altered image to an “output device,” such as a color printer. According to the 414 patent, all imaging devices impose some level of distortion on color and spatial properties because different devices allow for slightly different ranges of colors and spatial information to be displayed or reproduced. Prior art attempted to correct distortions using device-dependent solutions that calibrate and modify the color and spatial properties of the devices and device independent solutions that translate an image’s pixel data from a device dependent format into an independent color space, which can then be translated to output devices at a reduced level of distortion. The patent expands the device independent paradigm to disclose an improved device profile that includes both chromatic characteristic information and spatial characteristic information. Digitech filed infringement suits against 32 defendants. The district court found that all of the asserted claims were subject matter ineligible and invalid under 35 U.S.C. 101: the device profile claims are directed to a collection of numerical data that lacks a physical component or physical manifestation and the asserted method claims for generating a device profile encompass the abstract idea of organizing data through mathematical correlations. The Federal Circuit affirmed. Read More: Latest CAFC Ruling Suggests A Whole Lot Of Software Patents Are Likely Invalid
Last month, the Court of Justice of the European Union issued a preliminary ruling on the right of natural persons to privacy with respect to the processing of personal data. In the case, Mr. Costeja González, a Spanish national, had lodged a complaint with the Agencia Española de Protección de Datos (AEPD), the Spanish Data Protection Agency, concerning a then 12-year-old announcement in La Vanguardia Ediciones SL, a Spanish newspaper, that mentioned a real-estate auction connected with attachment proceedings for the recovery of Mr. González's social security debts. Mr. González wanted his personal data in the announcement removed from the La Vanguardia website. In addition, he wanted Google Inc. or Google Spain to remove the La Vanguardia web pages from its search results. The AEPD rejected the complaint against La Vanguardia because the Ministry of Labour and Social Affairs had ordered the announcement to promote the auction and secure as many bidders as possible. However, the AEPD upheld the complaint against Google Spain and Google Inc. The Google companies then brought separate actions before the Audiencia Nacional (National High Court), which stayed the proceedings and referred several questions regarding Directive 95/46 to the Court of Justice of the European Union. In upholding the right of data subjects to have certain search results associated with their names removed from search engines, the Court of Justice stated that search engines may initially be able to process accurate personal data regarding a person. However, over time, this right may conflict with the Directive if such results are "inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed." Accordingly, the right of privacy should be balanced against the economic interest of the search engine operator as well as the "interest of the general public in finding that information."
Today, the U.S. Supreme Court handed down its decision in the much-anticipated case Burwell v. Hobby Lobby Stores, Inc. (formerly Sebelius v. Hobby Lobby Stores, Inc., consolidated with Conestoga Wood Specialties Corp. v. Burwell and Autocam Corp. v. Burwell). In a 5-4 opinion by Justice Samuel Alito, the Court held that the Religious Freedom Restoration Act (RFRA) permits a closely held for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by the federal Patient Protection and Affordable Care Act of 2010 (ACA), based on the religious objections of the corporation’s owners. Here is some commentary tracking the progress of these cases before the Court's ruling: Vikram David Amar and Alan Brownstein, Consistency in the Treatment of Religious Liberty Claims: Hobby Lobby and Town of Greece Viewed Side by Side (February 28, 2014) Vikram David Amar and Alan Brownstein, The Narrow (and Proper) Way for the Court to Rule in Hobby Lobby’s Favor (April 11, 2014) Michael Dorf, Supreme Court Oral Argument Shows How Religious Freedom Claims Have Become Ideologically Charged (March 26, 2014) Marci Hamilton, Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible (July 11, 2013) Marci Hamilton, The Insatiable Demand for Extreme Religious Liberty Under the RFRAs, Part I: Why Hobby Lobby Falls Outside RFRA’s Protections (March 6, 2014) Marci Hamilton, The Lessons of the New Mississippi RFRA that Shed Light on the Hobby Lobby and Conestoga Wood Cases Pending at the Supreme Court (May 15, 2014) Marci Hamilton, What RFRA Has Wrought: Hobby Lobby, Onionhead, and the Perils of Religious Triumphalism (June 16, 2014) Below are the relevant dockets and opinions in the lower courts: Hobby Lobby U.S. District Court for the Western District of Oklahoma Docket: Hobby Lobby Stores Inc. v. Sebelius Opinion: Hobby Lobby Stores Inc. v. Sebelius (November 19, 2012) U.S. Court of Appeals for the Tenth Circuit Docket: Hobby Lobby Stores Inc. v. Sebelius Opinion: Hobby Lobby Stores Inc. v. Sebelius (June 27, 2013) Conestoga Wood U.S. District Court for the Eastern District of Pennsylvania Docket: Conestoga Wood Specialties Corp. v. Sebelius Opinion: Conestoga Wood Specialties Corp. v. Sebelius (January 11, 2013) U.S. Court of Appeals for the Third Circuit Docket: Conestoga Wood Specialties Corp. v. Sec'y U.S. Dep't of Health & Human Servs. Opinion: Conestoga Wood Specialties Corp. v. Sec'y U.S. Dep't of Health & Human Servs. (July 26, 2013) Here are some resources for the consolidated cases before the U.S. Supreme Court: Oral Argument and Transcript (via SupremeCourt.gov) Merit and Amicus Briefs Filed (via American Bar Association) Opinion: Burwell v. Hobby Lobby Stores, Inc.
New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dep’t of Health & Mental Hygiene, New York COA, (6/26/14) In 2012, in an effort to combat obesity among residents of New York City, the New York City Board of Health amended the City Health Code so as to restrict the size of cups and containers used by food service establishments for the provision of sugary drinks. The proposed rule, referred to as the “Portion Cap Rule,” was to go into effect in 2013. Six not-for-profit and labor organizations challenged the Portion Cap Rule. Supreme Court, New York City declared the rule invalid and permanently enjoined its implementation. The Appellate Division affirmed. The Court of Appeals affirmed, holding that, in adopting the Portion Cap Rule, the Board of Health exceeded its regulatory authority and engaged in law-making, thereby infringing upon legislative jurisdiction. Read More: Top state court says NYC can’t ban businesses from selling supersize sugary drinks to customers McCullen v. Coakley, US Supreme Court (6/26/14) Massachusetts amended its Reproductive Health Care Facilities Act to make it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” Mass. Gen. Laws, 266, 120E½. Exemptions cover “employees or agents of such facility acting within the scope of their employment.” Another provision proscribes knowing obstruction of access to an abortion clinic. Abortion opponents who engage in “sidewalk counseling” sought an injunction, claiming that the amendment displaced them from their previous positions and hampered their counseling efforts; attempts to communicate with patients are also thwarted by clinic escorts, who accompany patients to clinic entrances. The district court denied the challenges. The First Circuit affirmed. The Supreme Court reversed, first noting the involvement of a traditional public forum. The Court employed “time, place, and manner” analysis, stating that the Act is neither content nor viewpoint based and need not be analyzed under strict scrutiny. Although it establishes buffer zones only at abortion clinics, violations depend not “on what they say,” but on where they say it. The Act is justified without reference to the content of speech; its purposes include protecting public safety, patient access to health care, and unobstructed use of public sidewalks and streets. There was a record of crowding, obstruction, and even violence outside Massachusetts abortion clinics but not at other facilities. The exemption for employees and agents acting within the scope of their employment was not an attempt to favor one viewpoint. Even if some escorts have expressed views on abortion inside the zones, there was no evidence that such speech was authorized by any clinic. The Act, however, burdens substantially more speech than necessary to further the government’s legitimate interests. It deprives objectors of their primary methods of communicating with patients: close, personal conversations and distribution of literature. While the Act allows “protest” outside buffer zones, these objectors are not protestors; they seek to engage in personal, caring, consensual conversations with women about alternatives. Another section of the Act already prohibits deliberate obstruction of clinic entrances. Massachusetts could also enact legislation similar to the Freedom of Access to Clinic Entrances Act, 18 U.S.C. 248(a), which imposes sanctions for obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services. Obstruction of driveways can be addressed by traffic ordinances. Crowding was a problem only at the Boston clinic, and only on Saturday mornings; the police are capable of ordering people to temporarily disperse and of singling out lawbreakers. Read More: Court strikes down abortion clinic buffer zones
Scialabba v. de Osorio, US Supreme Court (6/9/14) Immigration Law Qualifying U.S. citizens and lawful permanent residents (LPRs) may petition for family members to obtain immigrant visas. A sponsored individual (principal beneficiary) is placed into a “family preference” category based on relationship to the petitioner, 8 U.S.C. 1153(a)(1)–(4). The principal beneficiary’s spouse and minor children qualify as derivative beneficiaries, entitled to the same status and order of consideration as the principal. Beneficiaries become eligible to apply for visas in order of priority date, the date a petition was filed. Because the process often takes years, a child may age out and lose status before she obtains a visa. The Child Status Protection Act (CSPA) provides that if the age of an alien is determined to be 21 years or older, notwithstanding allowances for bureaucratic delay, the petition “shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” In this case, principal beneficiaries who became LPRs, filed petitions for their aged-out children (who did not have a qualifying relationship with the original sponsor), asserting that the newly filed petitions should receive the same priority date as their original petitions. U. S. Citizenship and Immigration Services (USCIS) disagreed. The district court granted the government summary judgment, deferring to the Board of Immigration Appeals’ (BIA’s) determination under section 1153(h)(3). The Ninth Circuit reversed, holding that the provision entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention. The Supreme Court reversed, reasoning that each immigrant must have a qualified and willing sponsor. If an original sponsor does not have a legally recognized relationship with the aged-out children, another sponsor must be identified for the alien to qualify for a new family preference category. Immigration officials do not know whether a valid sponsor exists unless the aged-out beneficiary files and USCIS approves a new petition. Section 1153(h)(3) does not require a new petition for derivative beneficiaries who had a qualifying relationship with an LPR both before and after they aged out. In contrast, the nieces, nephews, and grandchildren of the initial sponsors cannot qualify for “automatic conversion.” The BIA’s interpretation benefits from administrative simplicity and fits with immigration law’s basic first-come, first-served rule. Read More: Supreme Court setback for underage visa applicants Read additional Supreme Court opinions handed down this week at Justia’s Supreme Court Center
Makowski v. Granholm, Michigan Supreme Court (6/3/14) Constitutional Law, Criminal Law Plaintiff-appellant Matthew Makowski filed an action in the Court of Claims against the Governor and the Secretary of State, seeking a declaratory judgment and injunctive relief to reverse then-Governor Jennifer Granholm's decision to revoke her commutation of plaintiff's nonparolable life sentence that had been imposed for his first-degree murder and armed robbery convictions. The Governor had signed the commutation, it was signed by the Secretary of State and affixed with the Great Seal. Four days later, the Governor decided to revoke the order, and all copies of the commutation certificate were destroyed. Plaintiff alleged that the commutation was final when it was signed, sealed, and delivered to the Department of Corrections, and argued the Governor lacked the authority to revoke a completed commutation. The court granted defendants' motion for summary judgment, concluding that it lacked jurisdiction to review the governor's exercise of discretion over commutation decisions. Plaintiff appealed. The Court of Appeals affirmed, holding that the Governor's exercise of the commutation power presented a nonjusticiable political question. After its review, the Supreme Court concluded the Constitution did not give the Governor the power to revoke a validly granted commutation: "[b]ecause the Governor signed plaintiff's commutation and delivered it to the Secretary of State, where it was signed and affixed with the Great Seal, plaintiff was granted an irrevocable commutation of his sentence." Read More: Michigan Supreme Court: Granholm wrongly revoked prisoner's commutation Limelight Networks, Inc. v. Akamai Techs, Inc., US Supreme Court (6/2/14) Intellectual Property, Patents Akamai is the exclusive licensee of a patent that claims a method of delivering electronic data using a content delivery network (CDN). Limelight also operates a CDN and carries out several of the steps claimed in the patent, but its customers, rather than Limelight itself, perform a step of the patent known as “tagging.” Under Federal Circuit case law, liability for direct infringement under 35 U.S.C. 271(a) requires performance of all steps of a method patent to be attributable to a single party. The district court concluded that Limelight could not have directly infringed the patent at issue because performance of the tagging step could not be attributed to it. The en banc Federal Circuit reversed, holding that a defendant who performed some steps of a method patent and encouraged others to perform the rest could be liable for inducement of infringement even if no one was liable for direct infringement. The Supreme Court reversed. A defendant is not liable for inducing infringement under section 271(b) when no one has directly infringed. The Federal Circuit’s contrary view would deprive section 271(b) of ascertainable standards and require the courts to develop parallel bodies of infringement law. Citing section 271(f), the Court stated that Congress knows how to impose inducement liability predicated on noninfringing conduct when it wishes to do so. Though a would-be infringer could evade liability by dividing performance of a method patent’s steps with another whose conduct cannot be attributed to the defendant, a desire to avoid this consequence does not justify fundamentally altering the rules of inducement liability clearly required by the Patent Act’s text and structure. Read More: No liability for induced infringement when company and customer split patented steps, SCOTUS says Wilkins v. United States, US 1st Cir. (6/3/14) Criminal Law
May is Asian/Pacific American Heritage Month. In his proclamation, President Obama cited the accomplishments of Asian Americans, Native Hawaiians and Pacific Islanders and acknowledged the difficulties that members of this community have faced both historically and in the present. Let's take a short trip through our nation's case law to look at some of these difficulties. Your lessons in school might not have given you a complete picture on American history. 1. Korematsu v. United States Photo Credit: National Park Service. Fred Korematsu, an American citizen of Japanese descent, challenged his conviction for remaining in San Leandro, California, in violation of Exclusion Order No. 34, which required all persons of Japanese ancestry to evacuate from a designated geographical area. The Supreme Court stated that "legal restrictions which curtail the civil rights of a single racial group" must be subject to the most rigid scrutiny. "Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can." To justify the exclusion order, the Court cited the "definite and close relationship" between the exclusion order and "the prevention of espionage and sabotage." The Court acknowledged the overinclusive nature of the exclusion order, noting that most of the people impacted by the exclusion order were "no doubt . . . loyal to this country." However, the Court was not prepared to question the military's judgment that "it was impossible to bring about an immediate segregation of the disloyal from the loyal" and upheld the exclusion order. In dissent, Justice Frank Murphy acknowledged the deference that must be accorded to the military in its prosecution of the war. Nevertheless, the order by the military to remove all persons of Japanese ancestry from the Pacific Coast was not reasonably related to its claimed goal of preventing sabotage and espionage because the reasons offered in support of the exclusion order were based not on expert military judgment, but on "misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices." Even if "some disloyal persons of Japanese descent on the Pacific Coast [] did all in their power to aid their ancestral land," "to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights." See Korematsu v. United States, 323 U.S. 214 (1944)
Robinson v. Legro, Colorado Supreme Court (5/27/14) Injury Law A bicyclist was attacked by two ranch dogs herding sheep while participating in a mountain bike race. The cyclist and dogs were on federally owned land on which the attack took place, subject to a sheep grazing permit and a recreational use permit. The cyclist sustained serious injuries during the attack. The cyclist and her husband sued the dog's owners, alleging negligence, negligence per se and loss of consortium. They also brought a strict liability claim under Colorado's dog bite statute. The shepherds moved for summary judgment, arguing that: (1) the Colorado Premises Liability Act preempted the cyclist's common law claims; and (2) they were immune from strict liability under the working-dog exemption to the dog bite statute. The district court granted the shepherds' motion. The court of appeals reversed, interpreting the working dog exemption as applicable only when the dog is on the owner's own property. The Supreme Court disagreed and reversed the appellate court: the exemption applied when a dog bite occurs on the dog owner's property or when the dog is working under the control of the dog owner.
Nearly 70 years ago, this wind-swept beach on the coast of Normandy witnessed the turning of the war.
Petrella v. Metro-Goldwyn-Mayer, Inc., US Supreme Court (5/19/14) Civil Procedure, Copyright, Entertainment & Sports Law The Copyright Act protects works published before 1978 for 28 years, renewable for up to 67 years, 17 U.S.C. 304(a). An author’s heirs inherit renewal rights. If an author who has assigned rights dies before the renewal period the assignee may continue to use the work only if the author’s successor transfers renewal rights to the assignee. The Act provides for injunctive relief and damages. Civil actions must be commenced within three years after the claim accrued-ordinarily when an infringing act occurred. Under the separate-accrual rule, each successive violation starts a new limitations period, but is actionable only within three years of its occurrence. The movie, Raging Bull, is based on the life of boxer Jake LaMotta, who, with Petrella, told his story in a screenplay copyrighted in 1963. In 1976 they assigned their rights and renewal rights to MGM. In 1980 MGM released, and registered a copyright in, Raging Bull. Petrella died during the initial copyright term, so renewal rights reverted to his daughter, who renewed the 1963 copyright in 1991. Seven years later, she advised MGM that it was violating her copyright. Nine years later she filed suit, seeking damages and injunctive relief for violations occurring after January 5, 2006. The district court dismissed, citing laches. The Ninth Circuit affirmed. The Supreme Court reversed. Laches cannot bar a claim for damages brought within the three-year window. By permitting retrospective relief only three years back, the limitations period takes account of delay. Noting the “essentially gap-filling, not legislation-overriding,” nature of laches, the Court stated that it has never applied laches to entirely bar claims for discrete wrongs occurring within a federally prescribed limitations period. It is not incumbent on copyright owners to challenge every actionable infringement; there is nothing untoward about waiting to see whether a violation undercuts the value of the copyrighted work, has no effect, or even complements the work. The limitations period, with the separate-accrual rule, allows an owner to defer suit until she can estimate whether litigation is worth the effort. Because a plaintiff bears the burden of proof, evidence unavailability is as likely to affect plaintiffs as defendants. The Court noted that in some circumstances, the equitable defense of estoppel might limit remedies. Allowing this suit to proceed will put at risk only a fraction of what MGM has earned from Raging Bull and will work no unjust hardship on innocent third parties. Should Petrella prevail on the merits, the court may fashion a remedy taking account of the delay and MGM’s alleged reliance on that delay. Read More: ‘Raging Bull’ copyright suit isn’t barred by doctrine of laches, SCOTUS rules
Bain, et al. v. MJJ Productions, Inc., et al., US DC Cir. (05/13/14) Civil Procedure Raymone Bain and her firm filed suit against Michael Jackson and his production company, MJJ Productions, Inc., claiming to be owed substantial sums for various services rendered. Defendants moved to dismiss, relying principally on a December 2007 release agreement where Bain broadly relinquished any claims against Jackson and his business entities. The district court granted summary judgment in favor of MJJ, holding that the release agreement precluded Bain's claims. Bain moved for relief from judgment under Rule 60(b)(2) five months later. The "newly discovered evidence" cited by Bain was an April 2008 letter from Jackson to Bain, in which Jackson stated that he had no awareness of, and had never signed, the release agreement on which the district court had grounded its grant of summary judgment. The district court held that a movant's awareness of evidence automatically precludes relief under Rule 60(b)(2), regardless of the evidence's availability. The court found that to be an unduly constricted understanding of "newly discovered evidence" for purposes of Rule 60(b)(2). The court concluded, however, that the district court committed no abuse of discretion by looking beyond Bain's efforts in searching her own files and considering whether she mentioned the letter to the court or sought its assistance in locating the evidence. Because Bain failed to exercise reasonable diligence in seeking out the letter, the court affirmed the judgment of the district court. Read More: Michael Jackson's Former Publicist Can't Revive $44 Million Lawsuit Bickley v. Dish Network, US 6th Cir. (5/13/14) Banking, Communications Law, Consumer Law American Satellite, a third party retailer of Dish Network satellite television services, received a call from a potential customer. A woman, who identified herself as “Dickley,” provided what she claimed to be her social security number. In actuality, the number belonged to a man named Bickley. Dickley was an identity thief. The agent entered Dickley’s name and social security number into an interface that connects to credit reporting agencies. Unable to verify the information, American Satellite informed Dickley that her attempt to open an account was declined. Bickley later received a credit report indicating that Dish had made an inquiry on his name. Dish informed him that someone had attempted to open an account in his name, providing a recording of the conversation between the agent and the identity thief. A year later, despite knowing that the inquiry had prevented the theft of his identity, Bickley filed suit under the Fair Credit Reporting Act, 15 U.S.C. 1681b, alleging request and use of his credit report without a “permissible purpose” and sought emotional distress damages. The district court entered summary judgment for Dish, including a counterclaim for abuse of process. The Sixth Circuit affirmed, referring to the conspicuous underdevelopment of key factual detail in Bickley’s complaint and in briefs as “bordering on deceitful” and to the adage that no good deed goes unpunished.
By now, you’ve all read that Justice Antonin Scalia made a series of mistakes in the dissenting opinion of EPA v. EME Homer City Generation, L.P. The Supreme Court issued a corrected version of the opinion on its website. For more on the story, read the coverage in the WSJ Law Blog, the Volokh Conspiracy, or SCOTUSBlog. They’ll give you the background - this post will discuss publishing implications, and why it’s problematic that the Court doesn’t notify the public when they make revisions to opinions.
Town of Greece v. Galloway, United States Supreme Court (5/5/14) Constitutional Law, Government & Administrative Law Since 1999, Greece, New York has opened monthly town board meetings with a roll call, recitation of the Pledge of Allegiance, and a prayer by a local clergy member. While the prayer program is open…
Lambda Legal is the oldest and largest legal organization in the United States committed to achieving full civil equality for the lesbian, gay, bisexual, and transgender community, as well as those living with HIV. It is a nonprofit organization that aims to achieve positive change within these diverse communities through means such as impact litigation, education, and public policy advocacy. On April 25, 2014, Lambda Legal held its annual San Francisco Soirée at City View at the Metreon in the heart of San Francisco. Justia had the honor of being a gold event sponsor this year and sent a contingent of employee representatives from our headquarters in Mountain View to be present at the event. As a company that works with educational, public interest and other socially focused organizations to make legal materials and consumer resources free and easily accessible online, Justia's sponsorship of the Lambda Legal San Francisco Soirée was a natural extension of a mission our company has been exemplifying since its inception. Many of our employees are lawyers or have an educational or professional background in law, as well as contribute to the various online public interest projects, legal aid, civil rights, and educational projects in which Justia is involved. Attending the Lambda Legal event as a sponsor offered us not only the opportunity to financially support an organization with a mission complementary to Justia's but also to keep abreast of Lambda's most recent advocacy work on behalf of LGBT individuals nationwide.
Envtl. Prot. Agency v. EME Homer City Generation, L. P., United States Supreme Court (4/29/14) Environmental Law, Government & Administrative Law The Clean Air Act (CAA) requires national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health, 42 U.S.C. 7408. Once EPA establishes NAAQS, it designates “nonattainment” areas; each state must submit a State Implementation Plan, (SIP), within three years of any new or revised NAAQS. From the date EPA determines that a SIP is inadequate, EPA has two years to promulgate a Federal Implementation Plan (FIP). SIPs must comply with a Good Neighbor Provision, and “contain adequate provisions ... prohibiting .. . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will ... contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to” NAAQS. In response to flaws in its 2005 Clean Air Interstate Rule, identified by the D. C. Circuit, EPA promulgated the Cross-State Air Pollution Rule (Transport Rule), curbing nitrogen oxide and sulfur dioxide emissions in 27 upwind states to achieve downwind attainment of three NAAQS and providing that an upwind state contributed significantly to downwind nonattainment if its exported pollution produced at least one percent of a NAAQS in a downwind state and could be eliminated cost-effectively. EPA created an annual emissions “budget” for each upwind state and contemporaneously promulgated FIPs allocating each state’s budget among its pollution sources. The D.C. Circuit vacated the rule as exceeding EPA’s authority. The Supreme Court reversed. The CAA does not require that states be given another opportunity to file a SIP after EPA has quantified interstate pollution obligations. Disapproval of a SIP, without more, triggers EPA’s obligation to issue a FIP within precise deadlines. That EPA had previously accorded upwind states a chance to allocate emission budgets among their sources does not show that it acted arbitrarily by refraining to do so in this instance. The Good Neighbor Provision does not dictate a method of apportionment, so EPA had authority to select from among reasonable options; nothing precludes the final calculation from relying on costs. By imposing uniform cost thresholds on regulated states, the rule is efficient and is stricter on states that have done less pollution control in the past and does not amount to “over-control.” Read More: Justices Back Rule Limiting Coal Pollution Highmark, Inc. v. Allcare, United States Supreme Court (4/29/14) Patents The Patent Act provides: “The court in exceptional cases may award reasonable attorney fees to the prevailing party,” 35 U.S.C. 285. The Federal Circuit has interpreted section 285 as authorizing fee awards only “when there has been some material inappropriate conduct,” or when it is both “brought in subjective bad faith” and “objectively baseless.” A health insurance company obtained a declaratory judgment that a patent was invalid and not infringed. The district court found the case “exceptional” and awarded attorney fees of $4,694,727.40, $209,626.56 in expenses, and $375,400.05 in expert fees. The court found a pattern of “vexatious” and “deceitful” conduct by the defendant in attempting to force other companies to purchase licenses, even after its own experts determined that its claims lacked merit. The Federal Circuit reviewed the determination de novo and reversed in part. A unanimous Supreme Court vacated. All aspects of a district court’s exceptional-case determination should be reviewed for abuse of discretion. That determination is based on statutory text that emphasizes that the district court is better positioned to make the “multifarious and novel” determination, which is not susceptible to “useful generalization” of the sort that de novo review provides, and is “likely to profit from the experience that an abuse-of discretion rule will permit to develop.” The word “exceptional” should be given its ordinary meaning: “one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated,” considering the totality of the circumstances. Octane Fitness, LLC v. ICON Health & Fitness, Inc., United States Supreme Court (4/29/14) Patents The Patent Act authorizes district courts to award attorney’s fees to prevailing parties in “exceptional cases,” 35 U.S.C. 285. In Brooks Furniture, the Federal Circuit defined an “exceptional case” as one which either involves “material inappropriate conduct” or is both “objectively baseless” and “brought in subjective bad faith” as shown by clear and convincing evidence. ICON sued Octane for patent infringement. The district court granted summary judgment to Octane, but denied attorney’s fees under section 285. The Federal Circuit affirmed. The Supreme Court reversed, finding the Brooks Furniture framework “unduly rigid’ in light of the statutory grant of discretion to district courts. Section 285 imposes only one constraint on the award of attorney’s fees, limiting it to “exceptional” cases. Because the Patent Act does not define “exceptional,” the term should be given it ordinary meaning: “uncommon,” “rare,” or “not ordinary.” An “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both governing law and the facts) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances. The Brooks Furniture standard was so demanding that it appeared to render section 285 superfluous of the courts’ inherent power to award fees in cases involving misconduct or bad faith. Section 285 imposes no specific evidentiary burden. Read More About These Two Decisions: Watch Out Trolls: Supreme Court Expands Fee Shifting in Patent Cases
Courthouse News Service won a ruling in the Ninth Circuit recently for access to court filings. CNS went to federal court last year to challenge the Ventura County Superior Court policy of delaying the release of court opinions. A U.S. district court judge dismissed the case, finding that it was not a First Amendment issue, but a claim that involved sensitive state information, and that the federal court should abstain. The Ninth Circuit overturned that ruling and remanded the case to the federal district court for a decision on the merits.
Legal news coverage was dominated this week by the Supreme Court Shuette decision, which upheld Michigan's affirmative action ban for college admissions. Read a summary below of the Court's decision along with a few other interesting opinions picked out by our writers this week. Schuette v. Coal. Defend Affirmative Action, Integration & Immigration Rights, Unites States Supreme Court (4/22/14) Civil Rights, Constitutional Law, Education Law After the Supreme Court decided that the University of Michigan’s undergraduate admissions plan’s use of race-based preferences violated the Equal Protection Clause, but that its law school admission plan’s limited use did not, Michigan voters adopted a new section of the state constitution (Proposal 2), prohibiting use of race-based preferences in the admissions process for state universities. The district court upheld Proposal 2, but the Sixth Circuit reversed, concluding that it violated Supreme Court precedent. The Supreme Court reversed. Justice Kennedy, with Chief Justice Roberts and Justice Alito, reasoned that the principle that consideration of race in admissions is permissible when certain conditions are met was not challenged; the issue was whether, and how, state voters may choose to prohibit consideration of such racial preferences. The decision by Michigan voters reflects an ongoing national dialogue; there was no infliction of a specific injury of the type at issue in cases cited by the Sixth Circuit. Individual liberty has constitutional protection, but the Constitution also embraces the right of citizens to act through a lawful electoral process, as Michigan voters did. Justices Scalia and Thomas stated that the question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. Stating that it did not, the Justices stated that the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact “has been squarely and soundly rejected.” Justice Breyer agreed that the amendment is consistent with the Equal Protection Clause, but reasoned that the amendment only applies to, and forbids, race-conscious admissions programs that consider race solely in order to obtain the educational benefits of a diverse student body; the Constitution permits, but does not require, the use of that kind of race-conscious program. The ballot box, not the courts, is the instrument for resolving debates about such programs. This case does not involve a diminution of the minority’s ability to participate in the political process. Read More: The Supreme Court Again Fractures Over Race
State v. DeMarco, Connecticut Supreme Court (4/22/14) Civil Rights, Constitutional Law, Criminal Law Upon following up on complaints from Defendant’s neighbor relating to Defendant’s keeping of animals in his residence, a police officer concluded that a “welfare check” was necessary and made a warrantless entry into Defendant’s home. Defendant subsequently entered a…
McCutcheon v. Fed. Election Comm’n, United States Supreme Court (4/2/14) Civil Rights, Communications Law, Constitutional Law, Election Law The Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of 2002, impose base limits, restricting how much money a donor may contribute to a particular candidate or committee, and aggregate limits, restricting how much money a donor may contribute in total to all candidates or committees, 2 U.S.C. 441a. In the 2011–2012 election cycle, McCutcheon contributed to 16 federal candidates, complying with all base limits. He alleges that the aggregate limits prevented him from contributing to additional candidates and political committees and that he wishes to make similar contributions in the future. McCutcheon and the Republican National Committee challenged the aggregate limits under the First Amendment. The district court dismissed. The Supreme Court reversed, with five justices concluding that those limits are invalid. Regardless whether strict scrutiny or the “closely drawn” test applies, the analysis depends on the fit between stated governmental objectives and the means selected to achieve the objectives. The aggregate limits fail even under the “closely drawn” test. Contributing to a candidate is an exercise of the right to participate in the electoral process through political expression and political association. A restriction on how many candidates and committees an individual may support is not a “modest restraint.” To require a person to contribute at lower levels because he wants to support more candidates or causes penalizes that individual for “robustly exercis[ing]” his First Amendment rights. The proper focus is on an individual’s right to engage in political speech, not a collective conception of the public good. The aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance. The justices noted the line between quid pro quo corruption and general influence and that the Court must “err on the side of protecting political speech.” Given regulations already in effect, fear that an individual might make massive unearmarked contributions to entities likely to support particular candidate is speculative. Experience suggests that most contributions are retained and spent by their recipients; the government provided no reason to believe that candidates or committees would dramatically shift their priorities if aggregate limits were lifted. Multiple alternatives could serve the interest in preventing circumvention without “unnecessary abridgment” of First Amendment rights, such as targeted restrictions on transfers among candidates and committees, tighter earmarking rules, and disclosure. Read More: Supreme Court Strikes Down Limits on Campaign Contributions
United States v. Bergman, US 10th Cir. (3/28/14) Constitutional Law, Criminal Law Defendant-appellant Gwen Bergman was arrested when the hit-man she thought she hired to kill her husband was in fact an undercover police officer. After trial, it emerged that defendant’s lawyer was not a lawyer-in-fact, but a con man. Defendant applied…
Bray v. Planned Parenthood Columbia-Willamette, Inc., US 6th Cir. (3/21/14) Civil Procedure, Communications Law, Constitutional Law Bray is an antiabortion activist and wrote a book, A Time to Kill. In 1985, Bray was convicted for a felony relating to physical damage to abortion centers. He spent four years in prison. Planned Parenthood…
Marvin M. Brandt Revocable Trust v. United States, United States Supreme Court (3/10/14) Real Estate & Property Law, Transportation Law, Zoning, Planning & Land Use The General Railroad Right-of-Way Act of 1875 provides railroad companies “right[s] of way through the public lands of the United States,” 43 U.S.C. 934. One such right…
Delaware Courts of Chancery appealed to the U.S. Supreme Court recently, seeking to validate a law that would allow them to hold confidential arbitration proceedings for parties with $1M litigation at stake. Professor Judith Resnik wrote about this in the NYT Op-Ed pages, "Renting Judges for Secret Rulings."
This morning, Governor Jerry Brown and Israeli Prime Minister Benjamin Netanyahu stopped at the Computer History Museum in Mountain View, CA to sign a business agreement. As expected, some people came to exercise their First Amendment right to free speech and peaceable assembly. But, the crowds were no where close to when President Obama visited in 2011.
Jordan v. Jewel Food, US 7th Cir. (2/19/14) Communications Law, Constitutional Law, Entertainment & Sports Law When basketball legend Michael Jordan was inducted into the Naismith Memorial Basketball Hall of Fame in 2009, Sports Illustrated produced a special commemorative issue devoted exclusively to Jordan’s remarkable career. Jewel Foods was offered free advertising space in the issue for agreeing to stock the magazine in its 175 stores. Jewel submitted a full-page ad congratulating Jordan, which ran on the inside back cover of the commemorative issue. To Jordan the ad constituted a misappropriation of his identity for the supermarket chain’s commercial benefit. He sought $5 million in damages, alleging violations of the federal Lanham Act, the Illinois Right of Publicity Act, the Illinois deceptive-practices statute, and the common law of unfair competition. The district court accepted Jewel’s First Amendment defense, that its ad was “noncommercial” speech with full First Amendment protection. The Seventh Circuit reversed and remanded. Jewel’s ad prominently featured the “Jewel-Osco” logo and marketing slogan, which were creatively and conspicuously linked to Jordan in the text of the ad’s congratulatory message. The ad was a form of image advertising aimed at promoting the Jewel-Osco brand; it was commercial speech and subject to the laws cited by Jordan. Read More: Michael Jordan wins appeal in lawsuit against Jewel Food Stores Ay v. Holder, US 2nd Cir. (2/20/14) Immigration Law Petitioner, a Kurdish ethnic and citizen of Turkey, sought review of the BIA's order affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ concluded that on at least four or five occasions, petitioner gave food and, on at least one occasion, clothing, to individuals whom petitioner knew, or had reason to know, to be members of Kurdish terrorist groups. The BIA adopted the IJ's findings and legal conclusions. The court found no error in the agency's factual conclusion that petitioner provided material support to a terrorist organization. However, the court remanded in order to allow the BIA to address a precedential issue: whether the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B)(iv)(VI), should be construed to include a duress exception to the admissibility bar that the Act otherwise established for those who have provided material support to a terrorist organization. Accordingly, the court granted in part, denied in part, and remanded for further proceedings.
HT to Professor Peter Martin who posts in his blog, Citing Legally, the news that, as of January 1, 2014, “sixty years after the Oklahoma Supreme Court designated the West Publishing Company as the ‘official publisher’ of its decisions, it [has] revoked that designation.” Going forward, the electronic versions of Oklahoma appellate court…
T.S. v. Doe, US 6th Cir. (2/5/14) Civil Rights, Constitutional Law, Criminal Law, Juvenile Law Responding to a report of underage drinking in a home, officers found a group celebrating eighth grade graduation. Police asked the teens to step outside individually for breathalyzer testing. Seven tested positive for alcohol. Police arrested them and notified their parents. In the morning, a juvenile worker arrived at the police station, and, after speaking with a judge, indicated that the children were to be detained for a court appearance the next day. At the regional juvenile detention center, the minors underwent routine fingerprinting, mug shots, and metal-detection screening. During a hygiene inspection and health screening, they were required to disrobe completely for visual inspection to detect “injuries, physical abnormalities, scars and body markings, ectoparasites, and general physical condition.” A same-sex youth worker observed the juveniles for several minutes from a distance of one to two feet, recording findings for review by an R.N. The minors were required to shower with delousing shampoo. They were released the following day. The charges were dropped. In a suit under 42 U.S.C. 1983, the district court granted partial summary judgment in favor of the juveniles, based on a “clearly established right for both adults and juveniles to be free from strip searches absent individualized suspicion” that negated a qualified immunity defense. The Sixth Circuit reversed, stating that no clearly established principle of constitutional law forbids a juvenile detention center from implementing a generally applicable, suspicionless strip-search policy upon intake into the facility. Read More: Sixth Circuit: Strip Search of Detained Juveniles Lawful
Ohhhhh PACER. I’m a little bit behind on complaining about it, so here’s the executive summary to catch everyone up: One month after they celebrated 25 years of PACER, the whole thing went down, twice in one week. In case you missed it, the Administrative Office of Courts issued a statement in December celebrating the twenty five year anniversary of PACER. The electronic filing service was started in 1988. It ushered in the era of electronic filing for federal court documents. To me, the irony of this “celebration” is that PACER, and the local CM/ECF systems, have barely changed since then. As usual, the Third Branch PR team leads with how PACER has made access “universal.” “Twenty-five years ago, the vast majority of cases were practically obscure. Today, every Third Branch court is using CM/ECF and PACER,” said Michel Ishakian, chief of staff for the AO’s Department of Program Services, who oversaw PACER from 2008 to 2013. “That means that all dockets, opinions, and case file documents can be accessed world-wide in real time, unless they are sealed or otherwise restricted for legal purposes. This level of transparency and access to a legal system is unprecedented and unparalleled.” This is technically correct - but Mr. Ishakian neglects two caveats to this statement: 1. Users have to pay to access these documents. You pay to search for them, and you pay to download them. 2. The “opinions” available on PACER are slip opinions, not officially published case law. That means they can’t be cited in court.
Burrage v. United States, US Supreme Court (1/27/14) Criminal Law Long-time drug user Banka died after a binge that included use of heroin purchased from Burrage. Burrage pleaded not guilty to charges that he had unlawfully distributed heroin and that “death … resulted from the use of th[at] substance,” which carries a…
Kosilek v. Spencer, US 1st Cir. (1/17/14) Civil Rights, Constitutional Law, Criminal Law Sixty-four-year-old Plaintiff was born anatomically male but suffered from severe gender identity disorder. In 1992, Plaintiff was convicted of murder and sentenced to life imprisonment. In 2000, Plaintiff filed a complaint against the Massachusetts Department of Correction (DOC), alleging…
Verizon v. FCC, et al, US DC Cir. (1/14/14) Communications Law, Internet Law Verizon challenged the FCC’s Open Internet Order, which imposed disclosure, anti-blocking, and anti-discrimination requirements on broadband providers. The court concluded that the Commission has established that section 706 of the Telecommunications Act of 1996, 47 U.S.C. 1302(a), (b), vests…
A heads up to all interested open access folks that the debut issue of The Journal of Open Access to Law (JOAL) is up and ready for consumption at http://joal.law.cornell.edu/. JOAL, a multidisciplinary journal related to research on open and online legal material, was conceived during a series of Law Via the Internet…
Josh Tauberer recently announced the release of “Open Government Data: Best Practices Language for Making Data ‘License Free.’ That document sets forth recommendations for federal agencies issuing data, and sample Creative Commons Zero (public domain) licensing statements.
MaineToday Media, Inc. v. State, Maine Supreme Court (11/14/13) Civil Rights, Constitutional Law, Criminal Law This case involved three Enhanced 9-1-1 (E-9-1-1) calls regarding an altercation that resulted in three people being shot. MaineToday Media, Inc. sent a series of requests to inspect and copy the three transcripts to the police department,…
The Administrative Office of the Courts announced yesterday that FDSys will now include opinions from 64 federal courts. The program to integrate federal court opinions into FDSys began in 2011. In 2011, they added opinions from 12 courts. In 2012, they increased that number to 28 courts. In February…
Fall has finally arrived in sunny California. For weeks, we have witnessed the shortening rays of the sun's glorious light. Now, as the leaves explode in color to red, orange and yellow hues, we know that the holiday season is but a few weeks away. For some, the holiday season can be stressful. How much turkey should I prepare for Thanksgiving dinner? Can I recycle a resolution from a previous New Year's day? But one question that should be easier to answer this year is how much money to allocate to health flexible spending arrangements (FSAs).
Stanton v. Sims, United States Supreme Court (11/4/13) Civil Rights, Constitutional Law, Criminal Law Officer Stanton and his partner responded to a call about a disturbance involving a person with a baseball bat. Stanton was familiar with the LaMesa neighborhood, known for gang violence. The officers, wearing uniforms and driving a marked police vehicle, approached the location and noticed men walking in the street. Seeing the police car, two men turned into an apartment complex. Patrick crossed the street about 25 yards in front of Stanton’s car and ran toward a residence. Stanton did not see a baseball bat, but considered Patrick’s behavior suspicious and decided to investigate. Stanton exited his car, called out “police,” and ordered Patrick to stop. Patrick did not stop, but “looked directly at Stanton,” and went through the gate of the six-foot wooden fence enclosing Sims’ front yard. Stanton believed that Patrick had committed a jailable misdemeanor by disobeying his order, “fear[ed] for [his] safety” and made the “split-second decision” to kick open the gate. Sims was behind the gate when it flew open, striking and injuring Sims. Sims sued under 42 U.S.C 1983. The district court granted summary judgment to Stanton. The Ninth Circuit reversed, holding that Stanton’s warrantless entry was unconstitutional because Sims had the same expectation of privacy in her curtilage as in her home itself, there was no immediate danger, and Patrick had committed only a minor offense; under clearly established law Stanton’s pursuit of Patrick did not justify warrantless entry and Stanton was not entitled to qualified immunity. The Supreme Court reversed, noting that courts nationwide are divided on whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect. The Ninth Circuit read “too broadly” Supreme Court precedent that did not involve hot pursuit. The Court did not determine whether Stanton’s entry was constitutional; Stanton may have been mistaken in believing his actions were justified, but was not “plainly incompetent.” Read more: High court rules for police in chase of suspect onto private property
The famously versatile hot sauce Sriracha may be in legal hot water. Its manufacturer, Huy Fong Foods, Inc., is facing a public nuisance lawsuit brought by the town in which its manufacturing facility resides. According to the complaint, odors and irritants from the facility are causing physical harm and discomfort to the residents of the…
Courthouse News reported this week on the “land grab” in California’s local court systems. When the courts announced last year that they were killing the CCMS (California Case Management System), vendors pounced on the opportunity to provide contracted solutions in its place. CCMS was a project started by the California courts over ten years ago. It was intended to link all of the county and state courthouses together into a centralized docketing system. As Courthouse news reports, however, The massive CCMS project was deep-sixed last year by the Judicial Council under pressure from the Legislature, after the Administrative Office of the Courts had spent $520 million in taxpayer money over ten years on a project that was nowhere near completion and carried a projected price tag of $1.9 billion.
The Missouri Supreme Court, sitting en banc, issued a decision yesterday that, on its face, seems like a defeat for proponents of same-sex marriage in that state. In Glossip v. Missouri Department of Transportation and Highway Patrol Employees’ Retirement System, the state’s highest court upheld a state statute that requires a person be married to a highway patrol employee in order to receive benefits after the employee’s death. Although the Missouri constitution prohibits recognition of same-sex marriages, the plaintiff did not challenge that provision (so the court did not rule on that). The facts of the case are fairly straightforward. Dennis Engelhard and Kelly Glossip, both men, were in a domestic partnership and “held [themselves] out to [their] families and [their] community as a couple in a committed, marital relationship.” Engelhard was a state highway patrolman and was killed in the line of duty. Glossip applied for survivor benefits, and his application was denied because the relevant state law allows benefits only for a surviving “spouse.” After his application was rejected, Glossip filed this lawsuit challenging the state statute restricting survivor benefits based on marital status, as well as the statute defining marriage as between one man and one woman. Importantly, Glossip did not challenge the state’s constitutional provision prohibiting recognition of same-sex marriages.
The Fourth Circuit Court of Appeals recently unsealed the documents in the FBI action against Lavabit, Inc – Edward Snowden’s email provider. In July of 2013, the FBI sought a search warrant in the Eastern District of Virginia. Rather than turn over the encryption key that would allow the government to read the emails…
As I’ve been perusing the news, blogs, and social networks discussing various aspects of the government crisis in which we are currently mired, I have noticed that many people use “shutdown” and “shut down” interchangeably (or use one variation exclusively—to their detriment). I thought I would elucidate readers. “Shutdown” is generally a noun.…
IMO Advisory Letter No. 3-11 and Opinion No. 12-08 of the Supreme Court Advisory Committee on Extrajudicial Activities, New Jersey Supreme Court (9/19/13) In this appeal, the Supreme Court held that a judge's acting and comedy career is incompatible with the Code of Judicial Conduct and therefore he may not serve as a municipal court judge while continuing with that career. Read More: Municipal judge resigns after top state court says he can’t moonlight as stand-up comic United States v. Melvin, US 1st Cir. (9/17/13) Civil Rights, Constitutional Law, Criminal Law Defendant was indicted on a single count of possessing cocaine with intent to distribute. That same day, law enforcement officers interviewed Defendant at a proffer session, which was held pursuant to a written proffer agreement. The government promised Defendant it would not use against him any "statements made or other information" disclosed at the proffer session. After the proffer session failed, Defendant proceeded to trial. Despite its earlier assurances, the government presented at trial voice identification testimony from a police officer based on what the officer had heard at the proffer session. The testimony linked Defendant to an incriminating recorded telephone conversation. The jury found Defendant guilty. The First Circuit Court of Appeals vacated Defendant's conviction, holding (1) admission of the testimony violated the proffer agreement and Defendant's due process rights; and (2) the error was not harmless beyond a reasonable doubt. Remanded. In re: Miller, US 3rd Cir. (9/16/13) Bankruptcy, Legal Ethics The Millers retained Ettinger in 2008 to represent them in a landlord/tenant dispute. Over 23 months, Ettinger billed $43,000. The dispute settled for $9,500. The Millers paid Ettinger $20,000, but even before the landlord-tenant matter settled, Ettinger sought relief in Pennsylvania state court to accelerate the speed at which he was paid. He petitioned to withdraw as a counsel, first based on alleged failure to pay and then due to professed “lack of cooperation.” Both petitions were rejected, though the Millers were ordered to make “good faith” payments. Despite their continued payments, Ettinger sued the Millers, who filed for Chapter 7 bankruptcy protection the following month. Ettinger filed an adversary proceeding in the Bankruptcy Court to prevent discharge of the Millers’ remaining debt to him, alleging fraud. The Bankruptcy Court rejected the complaint and imposed a $20,000 sanction against Ettinger jointly with his attorney. The district court vacated on the ground that the sanctions violated the “safe harbor” requirements of Fed. R. Bankr. P. 9011, which requires 21 days between serving and filing a sanctions motion, during which period the challenged conduct may be remedied, but refused to remand for further consideration. The Third Circuit remanded with instructions to permit the Bankruptcy Court to consider alternative avenues to impose sanctions.
Seaton v. TripAdvisor, US 6th Cir. (8/28/13) Communications Law, Constitutional Law, Injury Law, Internet Law Grand Resort, which has operated in the Great Smoky Mountains since 1982, claims that TripAdvisor’s publication of a survey that concluded that Grand Resort was the dirtiest hotel in America caused irreparable damage to its business and…
In a recent filing, EveryMD LLC—perhaps best known for its (in)famous lawsuit against Rick Santorum, Mitt Romney, Newt Gingrich, and approximately four million Facebook business account holders—is suing Facebook for allegedly infringing on its patent on its system for online communication that underlies its model for allowing patients to email doctors directly. According to the…
Shore v. Maple Lane Farms, LLC, Tennessee Supreme Court (8/19/13) Agriculture Law, Injury Law, Zoning, Planning & Land Use Certain amplified music concerts were conducted on farm land in a rural county. The county board of zoning appeals later ordered the business owners who hosted the concerts to limit the concerts to one per year, but the business owners defied the order. Plaintiff, a neighborhood property owner, filed suit seeking to enforce the zoning authority's decision and to abate the concerts as a common-law nuisance. The trial court granted Defendants' motion to dismiss, concluding (1) the concerts were exempted from local land use regulations because they qualified as "agriculture"; and (2) the Tennessee Right to Farm Act (Act) precluded nuisance liability. The Supreme Court reversed, holding (1) the concerts were not "agriculture" for the purpose of the zoning laws; and (2) the Act did not apply to the music concerts, and Plaintiff presented a prima facie case of common-law nuisance. Remanded Read More: State high court: Music festivals on farms not shielded from nuisance complaints Balintulo v. Daimler AG, US 2nd Cir. (8/21/13) Class Action, Injury Law, International Law Plaintiffs filed putative class-action suits over ten years ago under the Alien Tort Statute (ATS), 28 U.S.C. 1350, on behalf of those harmed by the South African legal regime known as "apartheid." Plaintiffs asserted that defendants aided and abetted violations of customary international law committed by the South African government by selling cars and computers to the South African government. Defendants petitioned for mandamus relief. The court concluded that, in light of the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., issuance of the writ was unnecessary in this case because defendants have an adequate means of relief through a motion for judgment on the pleadings; plaintiffs' arguments that Kiobel did not apply where defendants were American citizens, or where the case involved American interests, were without merit; and, because the Kiobel decision plainly foreclosed plaintiffs' claims as a matter of law, the court need not consider whether defendants have asserted a valid basis for "collateral order" jurisdiction under 28 U.S.C. 1291. Accordingly, the court denied the petition for mandamus relief and vacated the stay placed by the court on proceedings in the district court. Read More: High Court Decision Cited in Rejection of Apartheid Liability
Seltzer v. Green Day, Inc., et al., US 9th Cir. (8/7/13) Copyright, Intellectual Property, Trademark Plaintiff filed suit against Green Day and others, alleging violations of the Copyright Act, 17 U.S.C. 101 et seq., and the Lanham Act, 15 U.S.C. 1051 et seq., because Green Day used plaintiff's illustration, "Scream Icon," in the video backdrop of its stage show. On appeal, plaintiff challenged the district court's grant of summary judgment in favor of Green Day on all claims and the grant of attorney's fees to Green Day under the Copyright Act. The court concluded that Green Day's use of the illustration was fair use under the Copyright Act where the purpose and character of the use was transformative and not overly commercial; the nature of the work included its status as a widely disseminated work of street art; Green Day's use of the work was not excessive in light of its transformative purpose; and Green Day's use did not affect the value of the piece or of plaintiff's artwork in general. In regards to plaintiff's claims under the Lanham Act, the court concluded that plaintiff failed to establish any trademark rights. The court concluded, however, that the district court clearly erred in finding that plaintiff's claims were objectively unreasonable. Accordingly, the court affirmed the district court's grant of summary judgment but vacated the award of attorneys fees. Read More: Green Day not liable for using artist's work at concerts Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., US 6th Cir. (8/5/13) Civil Rights, Landlord-Tenant, Zoning, Planning & Land Use Connor Group owns and manages about 15,000 rental units throughout the U.S., including about 1,900 in the Dayton area. Its rental agent posted an ad on Craigslist: 599/1br – Great Bachelor Pad! (Centerville) … Our one bedroom apartments are a great bachelor pad for any single man looking to hook up. This apartment includes a large bedroom, walk in closet, patio, gourmet kitchen, washer dryer hook up and so much more.... A fair-housing organization sued, charging violation of the Fair Housing Act’s section 3604(c) and Ohio’s Revised Code section 4112.02(H)(7), claiming that the bachelor pad ad was facially discriminatory to families and women. The court provided a jury instruction that “The question is not whether the particular advertisement discourages some potential renters from applying … but whether such discouragement is the product of any discriminatory statement or indication in the advertisement. If an ordinary reader who is a member of a protected class would be discouraged from answering the advertisement because of some discriminatory statement or indication contained therein, then the fair housing laws have been violated.” The trial court ruled in favor of the landlord. The Sixth Circuit reversed and remanded for a new trial based on the erroneous instruction. Read More: Ohio fair housing group gets new trial in discrimination suit over ‘bachelor pad’ apartment ad
Brown v. Electronic Arts, Inc., US 9th Cir. (7/31/13) Civil Rights, Constitutional Law, Consumer Law, Entertainment & Sports Law, Intellectual Property, Trademark Retired Hall of Fame football player, James "Jim" Brown, filed suit against EA, alleging that EA violated section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), through the use of Brown's likeness in EA's "Madden NFL" series of football video games. The court rejected the "likelihood of confusion" test and the "alternative means" test, concluding that the only relevant legal framework for balancing the public's right to be free from consumer confusion about Brown's affiliation with "Madden NFL" and EA's First Amendment rights in the context of Brown's section 43(a) claim was the Rogers v. Grimaldi test. Applying the Rogers test, the court concluded that the use of Brown's likeness was artistically relevant to the "Madden NFL" games and that there were no alleged facts to support the claim that EA explicitly mislead consumers as to Brown's involvement with the games. In this case, the public interest in free expression outweighed the public interest in avoiding consumer confusion. Accordingly, the court affirmed the district court's grant of EA's motion to dismiss. NCAA Licensing Litigation, US 9th Cir. (7/31/13) Civil Rights, Class Action, Constitutional Law, Consumer Law, Entertainment & Sports Law, Intellectual Property, Trademark Former starting quarterback for Arizona State University, Samuel Keller, filed a putative class action suit against EA, alleging that EA violated his right of publicity under California Civil Code 3344 and California common law by using Keller's likeness as part of the "NCAA Football" video game series. EA moved to strike the complaint as a strategic lawsuit against public participation (SLAPP) under California's anti-SLAPP statute, Cal. Civ. Proc. Code 425.16. The court concluded that EA could not prevail as a matter of law based on the transformative use defense where EA's use did not qualify for First Amendment protection because it literally recreated Keller in the very setting in which he had achieved renown. The court also concluded that, although there was some overlap between the transformative use test and the Rogers v. Grimaldi test, the Rogers test should not be imported wholesale to the right-of-publicity claims. Finally, the court concluded that state law defenses for reporting of information did not protect EA's use. Accordingly, the court affirmed the district court's denial of the motion to strike the complaint. Read More: Ninth Circuit Sides With Athletes in EA Video Games Case
The City of Detroit filed for Bankruptcy protection last week. It is the largest municipality in the US to seek such relief. Justia is collecting the documents filed in the case and posting them here. For more information on the news story, check out the Detroit Free Press Coverage.…
The US Government responded yesterday to the FISC’s order to conduct a declassification review in the Yahoo case. Their response asks for 45 and 60 days to complete the full review. They cite the need for interagency coordination, the volume and type of materials, and multiple FOIA requests in support of this request. In…
There’s great news out of Washington today on the open government and transparency front. House Speaker John Boehner and Majority Leader Eric Cantor have announced via press release that the United States Code (the “Code”) will now be available for download in XML format. Users will be able to download individual sections of…
The Foreign Intelligence Surveillance Court has created a public docket for declassified opinions. The documents have been released through the efforts of providers like Yahoo, Microsoft, and Google, as well as advocacy groups like the ACLU and the EFF, who filed requests to publish the opinions and filings in the FISC. Since…
Hobbs v. John, U.S. 7th Cir. (7/17/13) Copyright, Entertainment & Sports Law In 1982 Hobbs was working as a photographer on a Russian cruise ship where he had a brief affair with a Russian waitress. Based on the experience, he wrote a song, “Natasha” about an ill-fated romance between a man from…
Asiana Airlines announced today that it plans to sue a San Francisco television station for broadcasting incorrect and racially insensitive names of the pilots involved in the airplane crash earlier this month. On Friday, KTVU-TV reported that the names of the pilots of the crash had been released, but the names read (and displayed) were bogus names that were akin to the names one might make up for a prank call. According to the KTVU-TV report, the pilots were: Captain Sum Ting Wong Wi Tu Lo Ho Lee Fuk Bang Ding Ow Surely upon reading these names aloud (let alone reading them critically), the anchor might have known something was amiss. But does Asiana have the grounds to pursue a lawsuit?
The Electronic Privacy Information Center (EPIC) filed for a writ of mandamus and prohibition in the Supreme Court of the United States yesterday, asking them to vacate the Foreign Intelligence Surveillance Court’s Order requiring production of phone records for domestic customers of Verizon. In the petition, the questions presented…
California’s Public Records Act survived a near miss last week. The EFF reports that the California legislature passed a bill last week that included a trailer to cut CPRA funding. The trailer bill would have made compliance with the CPRA optional for local governments. Thanks to pressure from activists, the bill was…
This week’s legal news was dominated by four highly anticipated opinions that came down from the United States Supreme Court on affirmative action, voting rights and marriage equality. That said, our writers also found a few other opinions of note to include in their weekly picks. United States Supreme Court Marriage Equality…
Today, the U.S. Supreme Court handed down two highly anticipated decisions affecting the rights of gay men and lesbians to marry. Here are some resources to help you understand the two cases, Hollingsworth v. Perry (Prop 8) and United States v. Windsor (DOMA). Hollingsworth v. Perry The U.S. Supreme Court (5-4, authored by…
Back in February, I wrote about the crowdsourced effort to change the Computer Fraud and Abuse Act called Fork the Law. Now, Rep. Zoe Lofgren (D-CA) and Sen. Ron Wyden (D-OR) have introduced legislation in the House and the Senate to make changes to the CFAA. In an…
The Supreme Court issued three opinions today. Read more about the decisions below. Shelby County v. Eric H. Holder, Jr. Docket: 12-96 Date: June 25, 2012 Read commentary and review lower court decisions related to Shelby County decision here. Justia Opinion Summary: The Voting Rights Act of 1965, 42 U.S.C. 1973(a), was enacted to address racial discrimination in voting. Section 2 bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen ... to vote on account of race or color,” applies nationwide, and is permanent. Other sections apply to some parts of the country. Section 4 defines “covered jurisdictions” as states or political subdivisions that maintained tests or devices as prerequisites to voting and had low voter registration or turnout in the 1960s and early 1970s. Section 5 provides that no change in voting procedures can take effect in covered jurisdictions until approved by federal authorities (preclearance). The coverage formula and preclearance requirement were to expire after five years, but the Act was reauthorized. In 2006, the Act was reauthorized for an additional 25 years, but coverage still turned on whether a jurisdiction had a voting test and low registration or turnout almost 50 years ago. Shelby County, in the covered jurisdiction of Alabama, sought a declaratory judgment that sections 4(b) and 5 are facially unconstitutional. The district court upheld the Act. The D. C. Circuit affirmed. A 5-4 Supreme Court reversed, finding Section 4 unconstitutional. Its formula may not be used to require preclearance. States have broad autonomy in structuring their governments and pursuing legislative objectives; the Tenth Amendment reserves to states “the power to regulate elections.” There is a “fundamental principle of equal sovereignty” among the states. The Voting Rights Act departs from those principles by requiring states to request federal permission to implement laws that they would otherwise have the right to enact and execute. The Act applies to only nine states (and additional counties). In 1966, the departures were justified by racial discrimination that had “infected the electoral process in parts of our country for nearly a century” so that the coverage formula was rational in practice and theory. Nearly 50 years later, “things have changed dramatically.” Voter turnout and registration rates in covered jurisdictions approach parity; blatantly discriminatory evasions of federal decrees are rare. Minority candidates hold office at unprecedented levels. Congress, if it is to continue to divide the states, must identify jurisdictions to be singled out on a basis that makes sense under current conditions. Data compiled by Congress before reauthorizing the Act did not show anything like the pervasive, rampant discrimination found in covered jurisdictions in 1965. Congress reenacted the formula based on 40-year-old facts with no logical relation to the present day.
The Supreme Court issued an opinion on the Voting Rights Act today – Shelby County v. Holder. To help you better understand the decision, below are some links to commentary on the matter and other helpful resources, including briefs and a transcript of the the Supreme Court oral argument.
The Supreme Court issued six opinions today. Read more about the decisions below. Fisher v. Univ. of Texas at Austin Docket: 11-345 Date: June 24, 2013 Read commentary & review related lower court decisions here. Justia Summary: Since the Court’s 2003 decision, Grutter v. Bollinger, the University of Texas at Austin has considered race as a factor in undergraduate admissions. A Caucasian, rejected for admission, sued, alleging that consideration of race in admissions violated the Equal Protection Clause. The district court granted summary judgment to the University. The Fifth Circuit affirmed. The Supreme Court vacated and remanded, reasoning that the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Supreme Court precedent. A university must clearly demonstrate that its purpose or interest is constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose, and “that the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate.” A court may give some deference to a university’s judgment that diversity is essential to its educational mission, if diversity is not defined as mere racial balancing and there is a reasoned, principled explanation for the academic decision. The University must prove that the means it chose to attain diversity are narrowly tailored to its goal and that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” A reviewing court must ultimately be satisfied that no workable race-neutral alternative would produce the educational benefits of diversity. The Fifth Circuit simply presumed that the school acted in good faith and gave the plaintiff the burden of rebutting that presumption. Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice. On remand, the Fifth Circuit must assess whether the University has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.
The Supreme Court issued an opinion on affirmative action today – Fisher v. University of Texas. To help you better understand the decision, below are some links to commentary on the matter and other helpful resources, including briefs and a transcript of the the Supreme Court oral argument. Commentary…
The media has been closely following the criminal trial of George Zimmerman, the racially charged trial in which Zimmerman is accused of murdering teenager Trayvon Martin. Just this week, a jury of six was chosen. For most people, when we think of juries, we think of them as being comprised of twelve people. Indeed, for…
American Express Co. v. Italian Colors Restaurant, United States Supreme Court (6/20/13) Antitrust & Trade Regulation, Arbitration & Mediation, Class Action An agreement between American Express and merchants who accept American Express cards, requires that all of their disputes be resolved by arbitration and provides that there “shall be no right or authority for any Claims to be arbitrated on a class action basis.” The merchants filed a class action, claiming that American Express violated section 1 of the Sherman Act and seeking treble damages under section 4 of the Clayton Act. The district court dismissed. The Second Circuit reversed, holding that the class action waiver was unenforceable and that arbitration could not proceed because of prohibitive costs. The Circuit upheld its reversal on remand in light of a Supreme Court holding that a party may not be compelled to submit to class arbitration absent an agreement to do so. The Supreme Court reversed. The FAA reflects an overarching principle that arbitration is a matter of contract and does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery. Courts must rigorously enforce arbitration agreements even for claims alleging violation of a federal statute, unless the FAA mandate has been overridden by a contrary congressional command. No contrary congressional command requires rejection of this waiver. Federal antitrust laws do not guarantee an affordable procedural path to the vindication of every claim or indicate an intention to preclude waiver of class-action procedures. The fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy. Read more: Arbitration Backed as Court Rules for American Express
Five opinions came down today from the United States Supreme Court. Read the summaries below and read the full text of the opinions at Justia’s U.S. Supreme Court Center. Alleyne v. United States, United States Supreme Court (6/17/13) Civil Rights, Constitutional Law, Criminal Law Alleyne was convicted using or carrying a firearm in relation to a crime of violence, 18 U.S.C. 924(c)(1)(A), which carries a five-year mandatory minimum sentence. The sentences increases to a seven-year minimum if the firearm is brandished, 924(c)(1)(A)(ii), and to a 10-year minimum if it is discharged, 924(c)(1)(A)(iii). The jury form indicated that Alleyne had “[u]sed or carried a firearm during and in relation to a crime of violence,” but not that the firearm was “[b]randished.” Alleyne objected to a sentencing report recommendation of a seven-year term, arguing that the jury did not find brandishing beyond a reasonable doubt and that raising his mandatory minimum sentence based on a judge’s finding of brandishing would violate his Sixth Amendment right to a jury trial. The district court overruled the objection. The Fourth Circuit affirmed. The Supreme Court vacated and remanded, overruling Harris v. United States, 536 U.S. 545 and applying Apprendi v. New Jersey, 530 U.S. 466. Mandatory minimum sentences increase the penalty for a crime and any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. Defining facts that increase a mandatory minimum as part of the substantive offense enables a defendant to predict the applicable penalty from the face of the indictment and preserves the jury’s role as intermediary between the state and criminal defendants. Because the fact of brandishing aggravates the prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, regardless of what sentence the defendant might have received had a different range been applicable. The Court noted that its ruling does not mean that any fact that influences judicial discretion must be found by a jury. Read more: Supreme Court says jury should have final say on facts that trigger mandatory minimums
Assoc. for Molecular Pathology v. Myriad Genetics, Inc., United States Supreme Court (6/13/13) Drugs & Biotech, Patents Myriad obtained patents after discovering the precise location and sequence of the BRCA1 and BRCA2 genes, mutations of which can dramatically increase the risk of breast and ovarian cancer. The discovery enabled Myriad to develop medical tests for detecting mutations for assessing cancer risk. Myriad’s patents would give it the exclusive rights to isolate an individual’s BRCA1 and BRCA2 genes and to synthetically create BRCA composite DNA. The district court entered summary judgment, finding the patents invalid under 35 U.S.C. 101 because they covered products of nature. On remand following the Supreme Court’s decision, Mayo Collaborative Servs. v. Prometheus Labs, Inc., the Federal Circuit found both isolated DNA and composite DNA patent-eligible. The Supreme Court affirmed in part and reversed in part, noting that the case did not involve “method claims” for new applications of knowledge about the genes or the patentability of DNA in which the order of the naturally occurring nucleotides has been altered. A naturally-occurring DNA segment is not patent-eligible merely because it has been isolated, but composite DNA is patent-eligible because it is not naturally-occurring. Myriad did not create or alter the genetic information encoded in the genes or the genetic structure of the DNA. Even brilliant discovery does not alone satisfy the section 101 inquiry. Myriad’s claims are not saved by the fact that isolating DNA from the human genome severs chemical bonds that bind gene molecules together. The claims are not expressed in terms of chemical composition, nor do they rely on the chemical changes resulting from the isolation of a particular DNA section. Composite DNA, however, is not a “product of nature;” a lab technician unquestionably creates something new when introns are removed from a DNA sequence to make composite DNA. Read More: Natural DNA Cannot Be Patented, Supreme Court Rules Gary Friedrich Enters., LLC v. Marvel Characters, Inc., US 2nd Cir. (6/11/13) Contracts, Copyright, Intellectual Property, Trademark Plaintiff sued Marvel, contending that he conceived the comic book character "Ghost Rider," the related characters, and the origin story. Plaintiff also claimed that he owned the renewal term copyrights in those works. On appeal, plaintiff challenged the district court's grant of summary judgment in favor of Marvel, holding that plaintiff had assigned any rights he had in the renewal term copyrights to Marvel when he executed a form work-for-hire agreement (the Agreement), six years after the initial publication of the issue in question. The court, by applying the "strong presumption against the conveyance of renewal rights," concluded that the district court erred in holding as a matter of law that plaintiff had assigned his renewal rights to Marvel by signing the Agreement; plaintiff's claim was not untimely as a matter of law because there were genuine disputes regarding whether plaintiff should have known about Marvel's repudiation of his claim of ownership; and there were genuine disputes of material fact that precluded granting summary judgment on the issue of authorship. Accordingly, the court vacated and remanded for trial. Read More: Marvel Must Defend ‘Ghost Rider’ Copyright, Court Says
A lawsuit filed in the U.S. District Court for the District of Wyoming alleged that the plane of Amelia Earhart had been located. Plaintiff Timothy Mellon stated in his Complaint that during its NIKU VI expedition around Nikumaroro from May 18, 2010, through June 14, 2010, Defendant The International Group for Historic Aircraft Recovery (TIGHAR) had obtained "footage of the wreckage of the Lockheed Electra flown by Amelia Earhart when she disappeared in 1937."
Maryland v King, United States Supreme Court (6/3/13) Civil Rights, Constitutional Law, Criminal Law After his arrest on first- and second-degree assault charges, King was processed through a Wicomico County, Maryland, facility, where personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act (Act), which authorizes officers to collect DNA samples from persons charged with violent crimes. A sample may not be added to a database before an individual is arraigned, and it must be destroyed if he is not convicted. Only identity information may be added to the database. King’s swab was matched to an unsolved 2003 rape. He unsuccessfully moved to suppress the DNA match. The Maryland Court of Appeals set aside his conviction, finding portions of the Act authorizing DNA collection from felony arrestees unconstitutional. The Supreme Court reversed. Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment when officers make an arrest supported by probable cause to hold and bring the suspect to the station to be detained in custody, for a serious offense. DNA testing involves minimal intrusion that may significantly improve both the criminal justice system and police investigative practices; it is quick and painless and requires no intrusion beneath the skin. When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving interests in properly identifying who has been arrested, ensuring that the custody of an arrestee does not create inordinate risks for staff, for the existing detainee population, and for a new detainee, and in ensuring that persons accused of crimes are available for trials. Identifying an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned. The Court noted that the test does not reveal an arrestee’s genetic traits and is unlikely to reveal any private medical information. Read More: Justices Allow DNA Collection After an Arrest
Back in January, key provisions of FISA – the Foreign Intelligence Surveillance Act – were renewed by Congress. I wrote about the troubling situation of access to FISA Opinions, which is basically non-existent. Up until January, only one opinion had been released by the FISA Court, and only two opinions released by the…
California is proposing to charge citizens to access and read court files and other public documents. The Administrative Office of the Courts has proposed that the state charge $10 for every name, file, or information that comes back from a search. Techdirt has the story. Charging for search results – where have…
President Obama issued an executive order last month calling on the federal government to open access to public documents by making them “open and machine readable.” He called on government information to be “managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible,…
Comcast Cable Communications, LLC v. FCC, et al, U.S. D.C. Cir. (5/28/13) Communications Law Tennis Channel, a sports programming network and intervenor in this suit, filed a complaint against Comcast Cable, a multichannel video programming distributor (MVPD), alleging that Comcast violated section 616 of the Communications Act of 1934, 47 U.S.C. 536(a)(3),…
Two opinions came down today from the United States Supreme Court. Read the summaries below and read the full text of the opinions at Justia’s U.S. Supreme Court Center. McQuiggin v. Perkins, United States Supreme Court (5/28/13) Civil Rights, Constitutional Law, Criminal Law Henderson was stabbed to death after leaving a party…
Metrish v. Lancaster, United States Supreme Court (5/20/13) Civil Rights, Constitutional Law, Criminal Law In 1993, Lancaster, a former police officer with a long history of severe mental-health problems, killed his girlfriend. At his jury trial in Michigan state court, Lancaster asserted a defense of diminished capacity. Under then-prevailing Michigan Court of…
Bowman v. Monsanto, United States Supreme Court (5/13/13) Agriculture Law, Patents Monsanto invented and patented Roundup Ready soybean seeds, which contain a genetic alteration that allows them to survive exposure to the herbicide glyphosate. It sells the seeds subject to a licensing agreement that permits farmers to plant the purchased seed in…
This year has seen some definitive advances in how certain states address the issue of insurance discrimination against transgender people. California, Colorado, Oregon, and Vermont, as well as the District of Columbia, have issued bulletins that clarify their state laws to prohibit discrimination against transgender people for health services deemed medically necessary. Some states, such as California, also outline an appeals process for individuals whose claims are denied. Here is the bulletin California recently issued: [California law] prohibits health plans from discriminating against individuals because of the individua's gender, including gender identity or gender expression ... If a health plan denies an individual's request for services on the basis that the services are not medically necessary or that the services do not meet the health plan's utilization management criteria, the health plan's decision is subject to review through the Department's Independent Medical Review (IMR) process ... The Department directs health plans to revise all current health plan documents to remove benefit and coverage exclusions and limitations related to gender transition services. At present, the majority of private insurance plans include coverage exclusions specifically aimed at denying transgender people the ability to access treatment or procedures associated with transitioning, often referred to as sexual reassignment. In addition, insurance plans often exclude coverage of health care services for transgender individuals that would otherwise have been covered, had the person in question not been transgender. These services can include behavioral health, medical, and surgical procedures. Often, the exclusion is justified on the basis that the treatment is not medically necessary, but rather a cosmetic procedure, and the transgender person's claim is consequently denied when it may otherwise have been covered for treatment not related to gender identity. Coverage may also be denied in instances where a person's gender marker on an insurance card doesn't seem to match up with the treatment being sought. For example, an insurance plan may choose not to cover a yearly gynecological exam for someone who has legally changed their gender to male. The same goes for gender-specific preventative or treatment in instances of breast, ovarian, cervical, or prostate cancer.
Sign Up to Receive FREE Supreme Court Summaries by Email Bowman v. Monsanto Co. Agriculture Law, Patents Monsanto invented and patented Roundup Ready soybean seeds, which contain a genetic alteration that allows them to survive exposure to the herbicide glyphosate. It sells the seeds subject to a licensing agreement that…
Bailey v. Callaghan, US 6th Cir. (5/9/13) Communications Law, Constitutional Law, Education Law, Labor & Employment Law Michigan’s 2012 Public Act 53 provides: “A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization,” so that unions must collect their own membership dues from public-school employees, rather than have the schools collect those dues via payroll deductions. The Act does not bar public employers other than schools from collecting membership dues for unions who represent their employees. Unions and union members challenged the Act under the First Amendment and the Equal Protection Clause. The district court entered a preliminary injunction barring enforcement. The Sixth Circuit reversed, quoting the Supreme Court: “The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” The court further reasoned that there is a legitimate interest in support of the Act’s classification; the legislature could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers. Read More: Federal appeals court: Michigan can ban schools from collecting union dues Goldstein v. City of Long Beach, US 9th Cir. (5/8/13) Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law Plaintiff spent 24 years in prison after being convicted for murder based largely upon the perjured testimony of an unreliable jailhouse informant. Plaintiff filed this action under 42 U.S.C. 1983, claiming that the District Attorney's Office failed to create any system for the Deputy District Attorneys handling criminal cases to access information pertaining to the benefits provided to jailhouse informants and other impeachment information, and failed to train Deputy District Attorneys to disseminate this information. At issue on appeal was whether a district attorney acted as a local or a state official when establishing policy and training related to the use of jailhouse informants. The court concluded that the policies challenged by plaintiff were distinct from the acts the district attorney undertook on behalf of the state. Even taking into account the control and supervisory powers of the Attorney General, the District Attorney represented the county when establishing policy and training related to the use of jailhouse informants. Therefore, a cause of action could lie against the county under 42 U.S.C. 1983. Accordingly, the court reversed the district court's grant of summary judgment on the pleadings. Read More: 9th Circuit allows wrongly convicted man to sue L.A. County Gartner v. Iowa Dep't of Pub. Health, Iowa Supreme Court (5/3/13) Civil Rights, Constitutional Law, Family Law Melissa and Heather Gartner were a married lesbian couple. Heather conceived a child using an anonymous sperm donor. The child was born during the spouses' marriage. The Gartners requested a birth certificate recognizing both Heather and Melissa as the child's parents. The Department of Public Health refused to place the name of the nonbirthing spouse in a lesbian marriage on the birth certificate without the spouse first adopting the child. The district court ordered the Department to issue the Gartners a birth certificate listing both spouses as parents but did not require the Department to extend the same practice to other married lesbian couples. The Supreme Court affirmed as modified, holding (1) Iowa Code 144.13(2), Iowa's presumption of parentage statute, violates the equal protection clause of the Iowa Constitution because it allows for only "the name of the husband" to appear on the birth certificate; and (2) accordingly, the Department must presumptively list on a child's birth certificate the nonbirthing spouse in a lesbian marriage when the child was born to one of the spouses during their marriage. Read More: Iowa Supreme Court ruling expands birth-certificate rights for lesbian couples
United States v. Tebeau, US 8th Cir. (4/30/12) Criminal Law Defendant owned more than 300 acres of land where he has held weekend music festivals at which drug use was widespread. Defendant invited various bands to perform at the festivals and he also performed with his own Grateful Dead tribute band. After law enforcement conducted an undercover investigation into the illegal drug sales at the festivals, defendant was indicted on one count of managing a drug involved premises in violation of 21 U.S.C. 856(a)(2). Defendant entered a conditional guilty plea and appealed the district court's denial of his motion to dismiss the indictment. The court concluded that section 856(a)(2) did not require proof that defendant had the illegal purpose to use, manufacture, sell, or distribute controlled substances; it was sufficient that defendant intended to make his property available to others who had that purpose; section 856(a)(2) did not violate the Fifth Amendment due process clause or defendant's First Amendment rights; and the indictment satisfied the requirements of Federal Rule of Criminal Procedure 7(c) by adequately stating the offense with which defendant was being charged. Accordingly, the court affirmed the judgment. McBurney v. Young, US Supreme Court (4/29/13) Constitutional Law, Government & Administrative Law Virginia’s Freedom of Information Act grants Virginia citizens access to all public records, but grants no such right to non-Virginians. Citizens of other states, including the owner of a business that obtains real estate tax records on behalf of clients, filed requests under the Act. After each was denied, they filed a 42 U. S. C. 1983 suit, alleging violations of the Privileges and Immunities Clause and the dormant Commerce Clause. The district court granted Virginia summary judgment. The Fourth Circuit and the Supreme Court affirmed. The Constitution does not guarantee the existence of FOIA laws. The Privileges and Immunities Clause protects only privileges and immunities that are “fundamental.” The Clause protects the right of citizens to “ply their trade, practice their occupation, or pursue a common calling,” only with respect to laws enacted for the protectionist purpose of burdening out-of-state citizens. Virginia’s FOIA exists to allow Virginia citizens to obtain an accounting from their public officials; noncitizens have no comparable need. The distinction between citizens and noncitizens recognizes that citizens pay fixed costs underlying record-keeping. The law does not prevent noncitizens from obtaining documents necessary to the transfer of property or deprive noncitizens of “reasonable and adequate” access to Commonwealth courts. It gives noncitizens access to non-privileged litigation documents, to judicial records, and to records pertaining directly to them. Virginia’s FOIA does not violate the dormant Commerce Clause. It neither prohibits access to an interstate market nor imposes burdensome regulation on that market; if there is a “market” for Virginia’s public documents, it is a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer. Read More: Supreme Court says states may bar information requests from nonresidents
A heads up that our friends at FastCase are about to launch the “Bad Law Bot” – or as they refer to it, their newest team member! No, this isn’t some evil case law robot sent to do us all harm from the future, but rather a cool enhancement to FastCase’s authority check feature. The…
Abdouch v. Lopez, Nebraska Supreme Court (4/19/13) Civil Rights, Constitutional Law, Injury Law Plaintiff was a resident of Nebraska. In 1963, Plaintiff received a copy of the book "Revolutionary Road," which was inscribed to her by the late author Richard Yates. Plaintiff's inscribed copy of the book was later stolen. Ken Lopez and his company, Ken Lopez Bookseller (KLB), bought the book in 2009 from a seller in Georgia and sold it to a customer not in Nebraska. Plaintiff later learned that Lopez had used the inscription in the book for advertising purposes on his website. Plaintiff brought suit against Lopez and KLB for violating her right to privacy. The district court dismissed the case for lack of personal jurisdiction. The Supreme Court affirmed, holding that Plaintiff's complaint failed to plead facts to demonstrate that Lopez and KLB had sufficient minimum contacts with the state of Nebraska, as (1) the contacts created by the website were unrelated to Plaintiff's cause of action, and (2) under the Calder v. Jones foreseeable effects test, the pleadings failed to establish that Lopez and KLB expressly aimed their tortious conduct at the state of Nebraska. Read More: 'Revolutionary Road' ruling seen as victory for Internet businesses
Missouri v McNeely, United States Supreme Court (4/17/13) Civil Rights, Constitutional Law, Criminal Law McNeely, stopped for speeding and crossing the centerline, declined to take a breath test to measure his blood alcohol concentration (BAC). He was arrested and taken to a hospital. The officer never attempted to secure a search warrant. McNeely refused to consent, but the officer directed a lab technician to take a sample. McNeely’s BAC tested above the legal limit, and he was charged with driving while intoxicated. The trial court suppressed the test result, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The Missouri Supreme Court and U.S. Supreme Court affirmed. The Court looked to the “totality of circumstances,” declining to announce a per se rule. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. Circumstances may make obtaining a warrant impractical such that dissipation will support an exigency, but that is a reason to decide each case on its facts. Blood testing is different in critical respects from other destruction-of-evidence cases; BAC evidence naturally dissipates in a gradual and relatively predictable manner. Because an officer must typically obtain a trained medical professional’s assistance before having a blood test conducted, some delay between the time of the arrest and time of the test is inevitable regardless of whether a warrant is obtained. Read More: Supreme Court Backs Warrants For Blood Tests In DUI Cases   Rios-Pineiro v. United States, US 1st Cir. (4/15/13) Contracts, Government & Administration Law, Injury Law, Labor & Employment Law The United States Postal Services (USPS) terminated Plaintiff's employment contract after discovering, through a sting operation, that Plaintiff had stolen mail containing money. The Postal Service Board of Contract Appeals (PSBCA) convened an evidentiary hearing and determined that Plaintiff's breach of his employment contract justified the decision to terminate his contract. Plaintiff did not appeal this decision. Meanwhile, Plaintiff initiated a Federal Tort Claims Act (FTCA) suit against the United States for the actions of USPS employees on the date of the sting, alleging six torts. The district court dismissed three of the claims and granted summary judgment to the government on the remaining claims. The First Circuit Court of Appeals affirmed the district court as to all claims, holding (1) the district court correctly concluded that the PSCBA's findings precluded re-litigation of the factual issues in Plaintiff's FTCA suit; and (2) summary judgment was properly granted as to Plaintiff's FTCA claims for negligent supervision, malicious prosecution, and invasion of privacy by postal inspectors.   United States v. Scruggs, US 5th Cir. (4/12/13) Constitutional Law, Criminal Law, Legal Ethics, Professional Malpractice & Ethics Defendant, an attorney and the brother-in-law of Trent Lott, appealed from the denial of his 28 U.S.C. 2255 motion challenging one of his two convictions for bribing a judge. Defendant's conviction stemmed from his bribe of a circuit court judge in a lawsuit involving a fee-sharing dispute with co-counsel (the "Wilson Case"). Defendant offered to recommend the judge to Lott, who at the time was a U.S. Senator, for a district court judgeship in exchange for the judge's help in winning the Wilson Case. The court concluded that Skilling v. United States, which addressed the constitutionality of the honest-services statute, 18 U.S.C. 1346, had no effect on the district court's subject matter jurisdiction over defendant's guilty plea. Defendant had shown neither his actual innocence of post-Skilling honest-services fraud nor that there was cause and prejudice for failing to raise a constitutional-vagueness challenge to section 1346. Therefore, defendant procedurally defaulted on his claim and the district court correctly denied his section 2255 motion. Finally, the court rejected defendant's First Amendment overbreadth challenge to section 1346. Accordingly, the court affirmed the judgment. Read More: Ex-lawyer Dickie Scruggs asks to return to prison after losing key appeal
McCarthy v. Fuller, US 7th Cir (4/10/13) Constitutional Law, Contracts, Non-Profit Organizations In 1956, Sister Ephrem of the Most Precious Blood, experienced apparitions of the Virgin Mary, during which, Sister Ephrem claimed, she was told: “I am Our Lady of America.” The Archbishop supported a program of devotions to Our Lady of America. In 1965 Pope Paul VI approved creation of a cloister, which lasted until at least 1977, when surviving members left and formed a new congregation, dedicated to devotions to Our Lady of America. Sister Ephrem directed it until her death in 2000. Sister Therese succeeded Sister Ephrem, who willed to Sister Theres all her property, mostly purchased with donated money. Sister Therese worked with McCarthy, a lawyer, and Langsenkamp until 2007, when Langsenkamp and McCarthy established the Langsenkamp Family Apostolate in the chapel in which the Virgin Mary allegedly appeared to Sister Ephrem. They sued Sister Therese, claiming theft of physical and intellectual property, fraud, and defamation. She counterclaimed alleging theft of a statue and of the website and defamation by calling her a “fake nun.” The district court denied McCarthy’s motion that the court take notice of the Holy See’s rulings on Sister Therese’s status in the Church. The Seventh Circuit reversed, with “a reminder” that courts may not decide (or to allow juries to decide) religious questions. Determination of the ownership of the property is likely possible without resolving religious questions. United States v. Grigsby, US 6th Cir. (4/11/13) Civil Rights, Constitutional Law, Criminal Law Grigsby, a middle-age man who lived in homeless shelters, was charged with three unarmed bank robberies, 18 U.S.C. 2113(a). Psychologists conducted examinations and filed reports that diagnosed paranoid schizophrenia and stated that Grigsby was not competent to stand trial. Neither party objected. The court committed Grigsby to custody (18 U.S.C. 4241(d)(1)) to determine whether he could be restored to competency to stand trial. Forensic evaluators concluded that Grigsby did not understand the seriousness of his legal difficulty; lacked ability to assist his lawyer during trial; and was not capable of waiving his constitutional rights rationally or of testifying on his own behalf. Grigsby refused to take oral medication. Because he was not gravely disabled and did not present a danger to himself, others, or the facility, he did not meet the criteria for involuntary medication. The evaluators requested an order authorizing them to inject Grigsby involuntarily with a first-generation antipsychotic drug, (haloperidol (Haldol) or fluphenazine), or a second-generation antipsychotic drug, risperidone, to restore competency. These medications can cause serious side effects. The district court granted an order under Sell v. U.S. (2003). The Sixth Circuit reversed, finding that special circumstances unique to the case indicate that Grigsby’s liberty interest in avoiding involuntary medication outweighs the government’s interest in prosecution. Krieger v. Educ. Credit Mgmt. Corp., US 7th Cir. (4/10/13) Bankruptcy, Education Law Krieger, age 53, cannot pay her debts. She lives with her mother in a rural community; they have only monthly income from governmental programs. She is too poor to move and her car, more than 10 years old, needs repairs. She lacks Internet access. In her bankruptcy proceeding, Educational Credit moved to exempt her student loans from discharge; 11 U.S.C.523(a)(8) excludes educational loans “unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor.” The district court reversed the bankruptcy court, noting that Krieger, although unable to pay even $1 per year, had not enrolled in a program that offered a 25-year payment schedule. The Seventh Circuit reversed, in favor of Krieger. “Undue hardship” requires showing that the debtor cannot maintain a minimal standard of living if forced to repay; that additional circumstances exist indicating that this situation is likely to persist for a significant portion of the repayment period; and that the debtor has made good faith efforts to repay. The court noted that Krieger incurred the debt to obtain paralegal training at a community college, has made about 200 applications in 10 years, and used a substantial part of her divorce settlement to pay off as much of the educational loan as possible.
Florida v. Jardines, United States Supreme Court (3/26/13) Civil Rights, Constitutional Law, Criminal Law Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. The officers then obtained a warrant for a search, which revealed marijuana plants. Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s suppression of the evidence. The U.S. Supreme Court affirmed. The investigation of Jardines' home was a search within the meaning of the Fourth Amendment. When the Government obtains information by physically intruding on persons, houses, papers, or effects, a search within the original meaning of the Fourth Amendment has "undoubtedly occurred." The right of a man to retreat into his own home and there be free from unreasonable governmental intrusion is the "very core” of the Fourth Amendment. The area immediately surrounding and associated with the home, the curtilage, is part of the home itself for Fourth Amendment purposes. The front porch is the classic exemplar of an area to which the activity of home life extends. The officers' entry was not explicitly or implicitly invited. Officers need not "shield their eyes" when passing a home on public thoroughfares but "no man can set his foot upon his neighbour's close without his leave." A police officer without a warrant may approach a home in hopes of speaking to occupants, because that is “no more than any private citizen might do” but the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Read More: Drug-Sniffing Dog Case Fails Supreme Court's Smell Test Johnson v. Priceline.com, Inc., US 2nd Cir. (3/27/13) Consumer Law, Contracts Plaintiffs initiated this putative class action against Priceline, seeking compensatory, punitive, and equitable relief for alleged breaches of fiduciary duty and contract, as well as a violation of Connecticut's Unfair Trade Practices Act (CUTPA), Conn. Gen. Stat. 42-110b. Plaintiffs' claims arose from Priceline's alleged failure to disclose to users of its "Name Your Own Price" booking service that a successful bid for a hotel room would generally exceed the amount Priceline itself compensated the hotel vendor, with Priceline retaining the difference as profit. Because plaintiffs failed as a matter of law to allege an agency relationship between Priceline and consumers who use its "Name Your Own Price" service to reserve hotel accommodations, they could not plausibly claim that Priceline breached an agent's fiduciary duty in failing to apprise consumers that it might have procured the accommodations at costs lower than their bids, retaining the difference as profits. Accordingly, the court affirmed the district court's dismissal of plaintiffs' claims. Read More: Priceline doesn’t have to tell customers it pockets profits, appeals court rules
In re Bulger, US 1st Cir. (3/14/13) Constitutional Law, Criminal Law, Legal Ethics James “Whitey” Bulger was the leader of a criminal organization in Boston from 1972 to 1999. An indictment returned by a federal grand jury charged Bulger with a number of federal offenses, including violations of the Racketeer Influenced and…
St. Patrick's Day is a day when we celebrate the Irish in all (or at least 35 million) of us. We honor our Irish ancestors, relatives and friends by dressing in green, visiting an Irish pub, or participating in a festive parade. Food manufacturers also observe St. Patrick's Day through the creative use of food coloring, which is regulated by the U.S. Food and Drug Administration. Pigments used to color food and derived from vegetables, minerals or animals are exempt from certification. A natural source of green food coloring would be grape skin extract.
California Assemblyman Brian Nestande (R-42nd Dist.) has put forth a bill to apply a Creative Commons License to the California Code of Regulations (CCR). According to Mr. Nestande’s site, “AB 292 will provide that the full text of the California Code of Regulations shall have an open access creative commons attribution license, allowing any individual, at no cost, to use, distribute and create derivative works based on the material for either commercial or noncommercial purposes.” Right now, the Office of Administrative Law (OAL) owns and publishes the CCR. The OAL was created by Cal. Gov’t Code §11340. Cal. Gov. Code §11343 et seq governs the filing and publication of the Cal. Code Regs. The Office of Administrative law collects the regulations from issuing agencies, and after notice, sends them to the Secretary of State for certification. The OAL is then charged with providing for the “or the official compilation, printing, and publication of adoption, amendment, or repeal of regulations, which shall be known as the California Code of Regulations.” (Cal. Gov’t Code §11344(a)). Section 11344.4(a) also allows them to sell the CCR: “The California Code of Regulations, the California Code of Regulations Supplement, and the California Regulatory Notice Register shall be sold at prices which will reimburse the state for all costs incurred for printing, publication, and distribution.” The OAL currently contracts with Thompson West/Barclay’s to publish the official version of the CCR. According to Mr. Nestande’s office, the OAL licenses the CCR to West for $400,000 per year, plus 7% of all royalties. [The office did not have a copy of the latest contract, but you can see the contract for 2009-2012 here]. We don’t how much it would cost to produce the CCR in house, but it’s not a stretch to imagine that the OAL is turning a profit on this deal - which seems to be outside the scope of its charter in 11344.4. Mr. Nestande’s office points out that this creates a conflict of interest for the OAL - “As more businesses are covered by new regulations, more businesses need to purchase access to those regulations from Thomson, and OAL derives a larger profit. This makes it difficult to be truly objective when approving new regulations, if it directly benefits from expanding the state’s regulatory burden.” I think the bigger conflict of interest is that Cal Gov’t Code §11344(a) requires the OAL to post the CCR’s online for free, but their incentive for profit is interfering with the public’s ability to view and use those regulations. The CCR is hosted online by Westlaw. They are papered over with disclaimers (“The Official California Code of Regulations is available in looseleaf printed format from Thomson - West / Barclays (1-800-888-3600)) and copyright statements (© 2013 Office of Administrative Law for the State of California;” “Use of all or part of the data displayed on this site for commercial or other unauthorized purposes is prohibited.”). The regs on the site are not indexed by Google, and users cannot download or copy them without violating the copyright. What’s more, they’re not official. The Bluebook requires you to cite to the official version, which is the Westlaw Compilation. There’s another absurdity in the status quo: Westlaw actually sells copies of its Compilated Regs to other state offices. You know, state regulatory offices that devised the regs to begin with. According to the Assemblyman’s office, “Nearly all state agencies and departments purchase the compilation from West, in addition to hundreds of trade associations, and individual business owners that purchase single section subscriptions.”
Last week, Public.Resource.Org, through their counsel at the Electronic Frontier Foundation, filed an action for declaratory judgement against the Sheet Metal and Air Conditioning Contractors’ National Association, Inc. [SMACNA]. In its complaint, Public.Resource.org asserts that since SMACNA’s copyrighted standards were explicitly incorporated into federal and state law, they have become part of the public domain…
We start off our picks this week with a dog sniff case from the Supreme Court. A side note that several opinions came down from the High Court this week - to check them all out go to Justia's Supreme Court Center , or sign up for our USSC Summary Newsletter. Florida v. Harris, US Supreme Court (2/19/13) Civil Rights, Constitutional Law, Criminal Law Officer Wheetley pulled Harris over for a routine traffic stop. Wheetley sought consent to search Harris’s truck, based on Harris’s nervousness and seeing an open beer can. When Harris refused, Wheetley executed a sniff test with his trained narcotics dog, Aldo, who alerted at the driver’s-side door, leading Wheetley to conclude that he had probable cause to search. The search turned up nothing Aldo was trained to detect, but did reveal ingredients for manufacturing methamphetamine. Harris was charged with illegal possession of those ingredients. In a subsequent stop while Harris was out on bail, Aldo again alerted on Harris’s truck but nothing of interest was found. The trial court denied a motion to suppress. The Florida Supreme Court reversed, holding that if an officer failed to keep records of field performance, including how many times a dog falsely alerted, he could never have probable cause to think the dog a reliable indicator of drugs. The Supreme Court reversed. Training and testing records supported Aldo’s reliability in detecting drugs and Harris failed to undermine that evidence, so Wheetley had probable cause to search. Whether an officer has probable cause depends on the totality of the circumstances, not rigid rules, bright-line tests, and mechanistic inquiries. Requiring the state to introduce comprehensive documentation of a dog’s prior hits and misses in the field is the antithesis of a totality-of-the-circumstances approach. Field records may sometimes be relevant, but the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements. Read More: Supreme Court Sides with Drug Sniffing Dog And for Fun - Check out Jake the German Shepherd. The newest member of Justia's Dog Pack! :)
Caldwell v. Cablevision Sys. Corp., New York Court of Appeals (2/7/13) After falling on the street and injuring her leg, Plaintiff commenced this negligence action against Communications Specialists, Inc. (CSI) for creating a hazardous condition in the road by failing to properly pave over a trench CSI cut to install high-speed fiber-optic cable…
Two legislative crowdsourcing efforts came across my desk today: OpenPACER and Fork the Law. I love the idea of collective effort to make laws. The government has tried this to some extent with Regulations.gov. There, you can sort, view, and comment on proposed…
The Judicial Council announced last week that they plan to expand a pilot program to push federal court opinions to FDSys. In theory, that means that all federal court opinions could be published and freely available in the FDSys database soon. FDSys is the digital repository for federal publications. It is operated by the Government Printing Office. Last year, the Judicial Council announced that it would begin integrating some opinions from PACER into FDSys. It began with opinions from 28 courts (three circuit courts of appeal). In December, I checked up on that and saw that FDSys had slip opinions in it and that they were actually being indexed by Google. I noted that they were a little behind, and they were slip opinions, not the officially published opinion, but hey - better than nothing. In the latest announcement, the Judicial Council tells us that “the functionality to transfer opinions to FDsys is included in the latest release of CM/ECF which is now available to all courts. Twenty-nine courts participated in the original pilot, and now, all courts may opt to participate in the program.” If I am reading this correctly, federal courts may now opt in to have their opinions transferred to FDSys. It’s not automatic or mandatory.
CALI has developed a prototype for uploading, storing, and sharing official court opinions called CourtCloud. Elmer Masters, the Director of Internet Development there, calls it a “Dropbox for courts.” The purpose of CourtCloud is to help courts self-publish their opinions. I’ll break it down for non-technical people (such as myself): The court clerk or judge…
Americans for Safe Access, et al v. DEA, US DC Cir. (1/22/13) Constitutional Law, Drugs & Biotech, Government & Administrative Law, Health Law The DEA, under the authority of the Controlled Substances Act of 1970, 21 U.S.C. 812(b)(1)(B), classified marijuana as a Schedule I drug, the most restricted drug classification under the Act. Petitioners challenged the DEA's denial of its petition to initiate proceedings to reschedule marijuana as a Schedule III, IV, or V drug. The principal issue on appeal was whether the DEA's decision was arbitrary and capricious. First, the court denied the Government's jurisdictional challenge because the court found that at least one of the named petitioners had standing to challenge the agency's action. On the merits, the court held that the DEA's denial of the rescheduling petition survived review under the deferential arbitrary and capricious standard where the petition asked the DEA to reclassify marijuana, which, under the terms of the Act, required a "currently accepted medical use." A "currently accepted medical use" required, inter alia, "adequate and well-controlled studies proving efficacy." The court deferred to the agency's interpretation of these regulations and found that substantial evidence supported the agency's determination that such studies did not exist. Accordingly, the court denied the petition for review. Read More: D.C. Circuit snuffs challenge over marijuana classification Colby v. Union Sec. Ins. Co., US 1st Cir. (1/17/13) ERISA, Government & Administrative Law, Insurance Law, Labor & Employment Law Plaintiff was a partner in a medical practice where she served as a staff anesthesiologist. When Plaintiff's dependence on opioids came to light, her employer had in force a group employee benefit plan, underwritten and administered by Union Security Insurance Company & Management Company for Merrimack Anesthesia Associates Long Term Disability Plan (USIC), which included long-term disability (LTD) benefits. When Plaintiff applied for those benefits, USIC refused to pay benefits past the point when Plaintiff was discharged from a treatment center, finding that Plaintiff's risk for relapse was not the same as a current disability. Plaintiff brought suit in the federal district court. The district court ultimately awarded Plaintiff LTD benefits for the maximum time available under the plan, concluding that categorically excluding the risk of drug abuse relapse was an unreasonable interpretation of the plan. The First Circuit Court of Appeals affirmed, holding that, in an addiction context, a risk of relapse can be so significant as to constitute a current disability.
Lozman v. City of Riviera Beach, US Supreme Court (1/15/13) Admiralty & Maritime Law, Transportation Law Lozman’s floating home was a plywood structure with empty bilge space underneath to keep it afloat. He had it towed several times before deciding on a marina owned by the city of Riviera Beach. After various disputes and unsuccessful efforts to evict him from the marina, the city brought an admiralty lawsuit in rem against the home, seeking a lien for dockage fees and damages for trespass. The district court found the floating home to be a “vessel” under the Rules of Construction Act, which defines a “vessel” as including “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water,” 1 U. S. C. 3; concluded that admiralty jurisdiction was proper; and awarded fees and damages. The Eleventh Circuit affirmed, noting that the home was “capable” of movement over water despite subjective intent to remain moored indefinitely. The Supreme Court reversed, holding that the case was not moot, although the home has been destroyed. Lozman’s floating home is not a “vessel.” The definition of “transportation” must be applied in a practical way; a structure does not fall within its scope unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water. But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no steering mechanism, had an unraked hull and rectangular bottom 10 inches below water, and had no capacity to generate or store electricity. It lacked self-propulsion, unlike an ordinary houseboat. The Court considered only objective evidence to craft a “workable and consistent” definition that “should offer guidance in a significant number of borderline cases.” Read More: Floating home is not vessel, Supreme Court says Stickley v. Byrd, et. al., US 8th Cir. (1/14/13) Civil Rights, Constitutional Law, Criminal Law Plaintiff brought this action under 42 U.S.C. 1983, alleging that his constitutional rights were violated while he was detained at Faulkner County Detention Center (FCDC). The court held that, in the circumstances presented in this case, defendants' refusal to grant plaintiff's request for additional toilet paper did not violate any clearly established right. Accordingly, defendants were entitled to qualified immunity. Therefore, the order denying qualified immunity was reversed and the case was remanded to the district court for the entry of an appropriate order. Read More: Court rejects Ark. inmate's toilet-paper appeal
Happy new year! We're starting off 2013 with opinion picks that cover four "c"s of legal practice areas: copyright, construction law, contracts, and criminal law. Harney v. Sony Pictures Television, Inc., US 1st Cir. (1/7/13) Copyright Plaintiff, a freelance photographer, took a photograph of a man, who called himself Clark Rockefeller, and the man's daughter. Later, it was discovered that the man had abducted his daughter and that his real name was Christian Gerhartsreiter. The photo was used by the FBI in a "Wanted" poster and was distributed in the media. Appellee Sony Pictures Television, Inc. subsequently produced a movie based on Gerhartsreiter's identity deception. In the movie, Sony pictured the photo using an image similar and pose and composition to Plaintiff's original. The photo, however, was different in a number of respects. Plaintiff filed this infringement action, alleging a copyright violation. The district court granted summary judgment for Appellees, concluding that no reasonable jury could find substantial similarity between Sony's recreated photo and Plaintiff's original. The First Circuit Court of Appeals affirmed, holding that no jury could properly conclude that Sony's adaption of the photo infringed Plaintiff's copyright in his work. Read More: Appeals Court Rejects Photographer's Claim That Sony TV Movie Stole Image West Bend Mut.l Ins. Co v. Arbor Homes, LLC, US 7th Cir. (1/8/13) Construction Law, Insurance Law Arbor builds homes in Indiana and contracted with Willmez Plumbing, which was to obtain insurance naming Arbor as an additional insured. Willmez subcontracted to Alarcon. After the work was ostensibly completed, the buyers noticed a foul odor and felt ill. Alarcon had not connected the plumbing to the main sewer line. Raw sewage had discharged into the crawl space. Willmez corrected the connection. Arbor contracted for cleanup that required excavation and decontamination and cost about $65,000. The owners demanded replacement of the house. Arbor told Willmez to notify its insurer West Bend. Hearing nothing, Arbor assumed the insurer had no objections and agreed to build a new home, pay closing costs and moving expenses, and to compensate for any increase in mortgage rate. Arbor sued Willmez, alleging negligence, breach of contract, slander of title, and constructive fraud, and sent West Bend a copy. The district court granted West Bend summary judgment, finding that it was relieved of duties to defend or indemnify by “fungi and bacteria exclusion” and “voluntary payments” provisions. The Seventh Circuit affirmed. Although Arbor’s quick and decisive action was laudable, failure to obtain West Bend’s consent to the settlement relieved it of any obligation. Read More: 7th Circuit Holds Insured’s Voluntary Payments Barred Coverage
Access to opinions and codes is of particular interest to the bloggers at Justia. We complain mightily about private citation formats, paywalls to codes and caselaw online, privatization of court services and filings, and the government’s overall failure to provide us with official, free access to the public record. Last week’s news about the reauthorization of the FISA Amendments Act, however, highlights an altogether different problem of access to the law: secret, sealed court opinions from the nation’s Foreign Intelligence Surveillance Act Court. This body of law is not available for free or for purchase. It is sealed and hidden from the American people. There is plenty of news coverage about the Act, and plenty of opinions online about the threat it poses to the freedom and privacy of Americans and non-Americans here and abroad. I’d like to highlight the problem of access to the output of the FISA Courts, and why we are still in the dark about their decisions - decisions that are legally binding precedent but that we know nothing about.
Ernest Hemingway makes his way into our Daily Summary picks this week. . . 907 Whitehead Street, Inc. v. Secretary of the U.S. Dept. of Agriculture, et al., US 11th Cir. (12/07/12) Agriculture Law, Government & Administrative Law The Ernest Hemingway Home and Museum appealed the district court's post-trial order denying it declaratory and injunctive relief. The Museum challenged the jurisdiction of the USDA to regulate the Museum as an animal exhibitor under the Animal Welfare Act (AWA), 7 U.S.C. 2131 et seq. The court concluded that the Museum's exhibition of the Hemingway cats (descendants of Hemingway's polydactyl cat, Dexter), which roamed freely on the Museum's grounds, substantially affected interstate commerce where the Museum invited and received thousands of admission paying visitors from beyond Florida, many of whom were drawn by the Museum's reputation for and purposeful marketing of the Hemingway cats and where the exhibition of the Hemingway cats was integral to the Museum's commercial purpose. Therefore, Congress had the power to regulate the Museum and the exhibition of the Hemingway cats via the AWA. Read More: Hemingway Cat Descendants Are Regulated by Federal Law, Appeals Court Says Moore v. Madigan, US 7th Cir. (12/11/12) Constitutional Law Plaintiffs challenged an Illinois law that forbid carrying a gun ready to use (loaded, immediately accessible, uncased), with exceptions for police, security personnel, hunters, members of target shooting clubs, a person on his own property, in his home, in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun,720 ILCS 5/24-2. Carrying an unloaded gun in public, uncased and immediately accessible, is prohibited, other than excepted persons, unless carried openly outside a vehicle in an unincorporated area and ammunition is not immediately accessible. The district court dismissed, holding that the Second Amendment does not create a right of self-defense outside the home. The Seventh Circuit reversed, but stayed its mandate for 180 days to allow the legislature to draft new restrictions. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. Evidence, although inconclusive, is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois failed to provide more than merely a rational basis for believing that its sweeping ban was justified by increased public safety. Read More: Federal court overturns Illinois's concealed carry gun ban Rayess v. Educ. Comm'n for Foreign Med. Graduates, Ohio Supreme Court (12/6/12) Contracts Appellee, a graduate of a foreign medical school, was required to be certified by the Educational Commission for Foreign Medical Graduates (commission) before applying for medical residency in Ohio. Appellee thus applied to take a United States Medical Licensing Examination (USMLE) examination administered by the commission. Appellee took and failed Part I of the examination. Fifteen years later, Appellee sued the commission for breach of an express written contract, alleging that the commission had failed to administer part I of the USMLE in accordance with the terms and conditions contained in an informational pamphlet provided by the commission, and the breach caused him to fail the examination and suffer damages. The trial court granted the commission's motion for judgment on the pleadings, concluding that the documents attached to the complaint did not constitute an express written contract and that, even if a contract existed, the statute of limitations for oral contracts barred recovery. The court of appeals reversed. The Supreme Court reversed, holding that the informational pamphlet was not a written contract, and thus, Appellee could prove no facts in support of his claim entitling him to relief, and the commission was entitled to judgment as a matter of law. Read More: Can a General Informational Brochure, an Application to Take a Test, and Payment of a Fee Constitute a Written Contract?
The Ninth Circuit Court of Appeals recently announced that it will move to “in-house publishing” of its opinions. According to the press release, “Court staff now manage the process of converting opinions from the original word processing documents into Adobe PDF files, which are then uploaded onto the website, where they can be viewed and/or downloaded by the public.” This task was previously managed by West Publishing, and bringing it in house is expected to save the court $350,000 in the first year. Hooray? Sort of. I’m glad the Ninth Circuit will be saving itself over a quarter of a million dollars, but that’s basically the only public benefit here. In fact, the headline on the press release is a bit misleading, because the court is not officially publishing their own opinions - West is still doing that. The documents they post are only slip opinions. They are official and can be cited only for a short time before they are published by the official publisher (The Federal Reporter, owned by Thompson West). In order to effect real savings and provide true open access for the public, the Ninth Circuit needs to take this further and actually publish their own opinions. Right now, when the Ninth Circuit judges issue an opinion and release it on the Web, it is immediately available to read and cite as a slip. After that, however, they send the opinions to Westlaw, who copy-edits each opinion and adds a citation in order to resell it in this final “official” version (in the Federal Reporter). I talked with David Madden in the Public Information Office at the Court, and he confirmed that this process will not change; West’s Federal Reporter will continue to publish the official opinions.
On December 11, a federal jury in Delaware found that Apple’s iPhone violates three patents held by MobileMedia Ideas LLC (“MMI”), a Maryland company. The company first filed the patent infringement lawsuit on March 31, 2010, in the U.S. District Court for the District of Delaware, where it was assigned to Judge Sue Robinson. In its complaint, MMI alleged that Apple’s manufacture and sale of the iPhone product violated 14 patents owned by MMI. After extensive discovery and pretrial procedures, the case went to a jury trial. The jury returned a verdict for MMI, finding that Apple directly infringed on three of the patents at issue: U.S. Patent No. 6,070,068: “Communication terminal device and method for controlling a connecting state of a call into a desired connection state upon a predetermined operation by a user” (originally assigned to Sony) U.S. Patent No. 6,253,075: “Method and apparatus for incoming call rejection” (originally assigned to Nokia) U.S. Patent No. 6,427,078: “Device for personal communications, data collection and data processing, and a circuit card” (originally assigned to Nokia) MMI has filed lawsuits against other technology companies as well, including Research In Motion (RIM) and HTC Corporation, but they have not yet been resolved.
In light of the Supreme Court’s decision last week to hear two cases regarding same sex marriage, we’ve collected some recent articles on the topic written by our Verdict writers. Check back with Verdict to see more on the issue throughout the 2012 – 2013 court term.…
Our daily opinion summary writers have pulled a few opinions of note for you to check out this week. If you’re interested in signing up for our free summaries or subscribing to various summary feeds, you can do so here. Cellco Partnership v. FCC, US DC Cir. (12/04/12) Communications Law, Constitutional…
Yesterday, December 6, a Canadian company filed two lawsuits against Apple, alleging that the Cupertino, California, company infringed on several of its patents. One lawsuit, filed in the U.S. District Court for the Southern District of Florida, names both Wi-LAN (the Canadian corporation) and Wi-LAN USA (its subsidiary) as the plaintiffs. The other lawsuit was filed on behalf of only the Canadian corporation in the U.S. District Court for the Eastern District of Texas. Both lawsuits target Apple products compliant with the Third Generation Partnership Project – Long Term Evolution (“3GPP LTE”) standard, specifically the iPhone 4S, iPhone 5, and iPad (3rd Generation). The Texas lawsuit alleges infringement of U.S. Patent No. 6,381,211, entitled “Processing data transmitted and received over a wireless link connecting a central terminal and a subscriber terminal of a wireless telecommunications system” and issued in 2002. Wi-LAN seeks damages and an injunction against Apple for manufacturing and selling 3GPP-complaint products that allegedly infringe on its patented system. The lawsuit filed in Florida alleges infringement on U.S. Patent No. 8,315,640, entitled “Methods and systems for transmission of multiple modulated signals over wireless networks.” It also alleges that Apple’s products infringe on U.S. Patent No. 8,311,040, entitled “Packing source data packets into transporting packets with fragmentation.” Both patents were filed in 2010 and issued only last month, November 2012. Complaint in Wi-LAN USA, Inc. v. Apple Inc. (S.D. Fla.)
Earlier this week, on December 3, Apple was sued in the U.S. District Court for the Northern District of California for an alleged patent infringement. The plaintiff in the lawsuit is a California corporation vaguely named Technology Licensing Company Inc. According to the complaint, the Technology Licensing Company owns U.S. Patent…
On November 30, Google was hit with yet one more class action lawsuit over Gmail’s method of scanning emails to deliver personalized advertising to its users. The named plaintiff in this case, Kristen Brinkman, filed the lawsuit in the U.S. District Court for the Eastern District of Pennsylvania. Like in the other cases,…
This week in Justia’s Featured Dockets: Ericsson Inc. et al v. Samsung Electronics Co., LTD., et al., (US District Court, E.D. Texas) Ericsson Inc. et al v. Samsung Electronics Co., LTD., et al., (US District Court, E.D. Texas) In both these lawsuits, Ericsson is suing Samsung in a…
It appears that court opinions in FDSys are being indexed by the search engines now. If you’ll recall, the GPO announced last year that it was importing opinions from some federal courts into its centralized database (FDSys). In theory, this means that users would be able to search across a large collection of…
On November 30, Washington Research Foundation filed a patent infringement lawsuit against ten defendants, including Apple, Microsoft, Samsung, and HP. Filed in the U.S. District Court for the Western District of Washington, the lawsuit alleges that the technology companies infringe on patents that the plaintiff has the exclusive licensed to use and enforce. According to the complaint, the plaintiff, Washington Research Foundation, is a nonprofit organization in Washington State that is charged with the review of technology disclosures by the University of Washington and other Washington research institutions. The Foundation is also responsible for seeking and enforcing patents, copyrights, and other applicable legal protections for technology developments by the institutions. The complaint alleges that University of Washington researcher Edwin A. Suominen developed 14 inventions used in radio frequency technology and Bluetooth® communication systems. Patents for these inventions were issued to Suominen, but the University of Washington owns all right, title, and interest in the patents pursuant to an assignment agreement between the University and Suominen. In turn, the Washington Research Foundation (named plaintiff in this case) owns an exclusive license to these patents.
On Thursday, November 29, Google was named as the defendant in a patent infringement lawsuit filed in U.S. District Court for the District of Delaware. The plaintiff is a Delaware company called CreateAds LLC, which, according to its website, is a tool that allows people to create print ads for any…
Last Thursday, November 29, a foreign corporation called Arendi filed a patent infringement lawsuit against Apple in the U.S. District Court for the Northern District of Delaware. Arendi, organized under the laws of Luxembourg, alleges in its complaint that nearly all of Apple’s products infringe on three patents owned by the plaintiff:…
Below are a couple of interesting opinions our Daily Summary writers have picked out for you this week. Newton v. LePage, US 1st Cir. (11/28/12) Civil Rights, Constitutional Law At issue in this case was whether the governor of Maine violated the First Amendment by removing a large state-owned mural,…
Massachusetts company Lexington Luminance LLC (“Lexington”) filed a lawsuit against Google, Inc. yesterday, November 29, in the U.S. District Court for the District of Massachusetts. It its complaint, Lexington alleges that Google’s Nexus 7 and other similar products infringe on a patent the company owns. According to the complaint, the patent at issue,…
Yesterday, November 29, Brent Matthew Scott filed a class action lawsuit against Google, Inc. in the U.S. District Court for the Northern District of Florida. The lawsuit alleges that through its Gmail product, Google violated state laws against wiretapping. Specifically, the complaint alleges that Google intercepts the plaintiff’s emails (and those of the…
California Watch, part of the Center for Investigative Reporting, has a post this week about the relative costs and revenue of PACER. We’ve talked about the problems with PACER fees and the impediments to access before, and it is certainly a familiar topic to those of us in the…
Apple acquired partial European trademark rights to the word "lightning" from motorcycle maker Harley-Davidson's intellectual property unit, H-D Michigan, LLC, according to public filings with the European Union's trademark and design unit (see below), and a blog post by Patently Apple. Apple uses the term Lightning to describe its proprietary connection interface for iPhone, iPad, iPod, and iTouch devices that were introduced starting in September 2012. The trademark update, however, currently applies only in the EU, although it seems likely that Apple and H-D also negotiated for the transfer of certain U.S. trademark rights to the word mark. The H-D unit filed a trademark registration on January 1, 1995, with the U.S. Patent and Trademark Office for "motorcycles and structural parts therefore," and was awarded trademark registration by the USPTO for the word mark nearly 2.5 years later on June 3, 1997.
Happy Thanksgiving from the Justia team — we are thankful for all our readers and free law friends! The legal establishment of Thanksgiving began with a resolution from the U.S. Congress. The resolution put forth a request that President George Washington recommend a day of thanksgiving, which he did, via proclamation, by declaring Thursday, November…
Samsung's lawyers want a copy of Apple's patent licensing agreement with HTC, according to emails filed in federal court on Friday (highlighted below). After a federal jury returned a $1.05 billion verdict for Apple in August — just one of the two companies' hotly contested global patent disputes — U.S. District Court Judge Lucy Koh scheduled a December 6 hearing date on Apple's request for an injunction prohibiting the sale of reportedly infringing Samsung products. Samsung, however, is trying to lessen the severity of any injunctive relief sought by Apple, since the Cupertino company and competing mobile device marker HTC just settled their own patent litigation. But why should Samsung — or any other company — be allowed access to a competitor's confidential settlement agreement?
Check out the latest crop of featured cases from Justia's Dockets. Hank Azaria v. Craig Bierko et al., (US District Court, C.D. California) Actor Hank Azaria, well-known for his voice actor roles in "The Simpsons" television show, filed a copyright lawsuit seeking declaratory relief against actor Craig Bierko in a dispute over the voice and other rights of 'Jim Brockmire,' a baseball announcer character. Hank Azaria Sues Over a Character Voice, E.W.com (11/16/12) The People of the State of California v. eBay, Inc., (US District Court, N.D. California) United States of America v. eBay, Inc., (US District Court, N.D. California) The U.S. Department of Justice filed this antitrust lawsuit against eBay because of its an agreement between the online marketplace company and Intuit, a software company that develops financial and tax preparation software. The non-competition agreement between the two companies prohibits either from hiring employees from the other company. The two companies otherwise compete directly for highly specialized computer engineers and research scientists. California Attorney General Kamala Harris filed a lawsuit against both companies under California law, citing the state's stricter restrictions against anticompetitive behavior. eBay, Intuit Signed Noncompetitive Agreement, Government Alleges, The Huffington Post (11/16/12) Chicago Board Options Exchange, Incorporated v. International Securities Exchange, LLC (US District Court, N.D. Illinois) The Chicago Board Options Exchange filed a $525 million dollar patent infringement lawsuit against a competing options exchange, International Securities Exchange, alleging that three of its Quote Risk Monitor patents are being infringed. CBOE Sues International Securities Exchange Over Patents, Bloomberg BusinessWeek (11/13/12)
On Friday, a California company called Innovative Automation LLC filed a lawsuit against Apple Inc. Filed in the U.S. District Court for the Eastern District of Texas, the complaint alleges that Apple’s iCloud product infringes on a patent owned by Innovative Automation. The first patent at issue, U.S. Patent No. 7,174,362, is entitled “Method and System for Supplying Products from Pre-Stored Digital Data in Response to Demands Transmitted via Computer Network” and was issued in 2007. Innovative Automation claims that Apple’s iCloud product and service infringes on this patent in the way that it duplicates digital data. The complaint also alleges that iCloud infringes on a second patent owned by the plaintiff—U.S. Patent No. 7,392,283, entitled “Method and System for Supplying Products from Pre-Stored Digital Data in Response to Demands Transmitted Via Computer Network” and issued in 2008. According to the complaint, Apple’s iCloud product and service infringes on this patent for the same reason as its other patent. According to a business search through the California Secretary of State, the company Innovative Automation was created in 2011 and is based in San Jose, the heart of Silicon Valley. Its registered agent is Sungil Lee, who is CEO of an education software company called Innovative Knowledge, Inc. Lee is also named as the inventor of both patents at issue in this case. As the blog Patently Apple points out, “this plaintiff has filed a similar lawsuit against Amazon within the last 24 hours claiming that their Kindle and distribution service “Cloud Player” violates the very same patents used against Apple.”
Yesterday, Google was named in a class action lawsuit by a plaintiff identified only as “A.K., as next friend of minor child J.K.” Filed in the U.S. District Court for the Southern District of Illinois, the lawsuit alleges that Google has violated (and continues to violate) the Electronic Communications Privacy Act of 1986…
Defense attorneys for Facebook and founder Mark Zuckerberg won’t oppose attorney Dean Boland's motion to withdraw from representing plaintiff Paul Ceglia, as long as he can’t have his cake and eat it too, according to a new federal court filing (read it below). First, they insist that a withdrawal "not be construed as authorizing any further delay" in the case, including a pending decision on a defense motion to dismiss Ceglia’s "fraudulent lawsuit" seeking a fifty-percent ownership stake in Facebook. Second, Facebook’s attorneys want Boland’s in camera communication to the judge in support of his withdrawal made public, arguing that there is nothing confidential about Boland’s "personal reasons" for withdrawing because, they say, at the same time he filed a "'self-serving' memorandum that he admits was for 'the media.'"
I'm sure most of our readers are familiar with Justia's Civil Dockets, a section on our site which allows users to search through civil dockets filed in the US Federal District and Appellate Courts since 2004. What I'm not sure about is whether folks realize that on a weekly basis our team of editors here at Justia picks out cases from the dockets filings we feel are worthy of being a featured case. Featured cases in this regard include matters grabbing headlines that week in both the national and legal press, patent suits from the tech world, and other noteworthy cases. When we feature a case, our editors essentially set in motion a process in which the initial complaint or filing is downloaded and we grab the rest of the docket sheet so that our users can (for free) see what has been filed up to that point in the proceedings. Depending on how important we feel a a lawsuit is, we'll download all the actual filings in a docket and/or set up tracking so that when new filings are added, our users will be able to see or download those as well. Featured cases in Dockets are denoted by a yellow star next to the case name. We thought it might be a great idea to start up a weekly blog post which lists various cases we've recently featured. To the extent we can, we'll give a brief synopsis of the suit and also link over to any news articles and analysis which more fully discuss the matter. Enjoy!
Annette Shaff / Shutterstock.com Yesterday, on November 13, 2012, Nevada company 1st Technology LLC filed a lawsuit against Facebook in the U.S. District Court for the Northern District of Illinois, alleging that the social networking company infringed on several patents. According to the complaint, the managing member…
After President Barack Obama was reelected last week, several petitions to secede appeared on the White House website. The petition feature of the site promises that “if a petition meets the signature threshold [of 25,000 signatures within 30 days], it will be reviewed by the Administration and we will issue a response.” The Houston Chronicle reports that by 3:40 PM EST, the petition to allow Texas to secede had already accumulated over 25,000 signatures. At the time of this writing, it has over 77,000 signatures. Petitions on behalf of other states have received less attention and fewer signatures, but several have met or are approaching the 25,000 threshold, as well. Louisiana (29,000), Florida (23,000), Georgia (22,000), Alabama (21,300), Tennessee (20,700), and North Carolina (20,200) have all accrued a substantial number of supporters. On more than one occasion, Texans (both officials and non-officials) have suggested that their state “has the right” to secede. Texas Governor Rick Perry has disavowed the online movement to secede, despite having previously acknowledged that secession might be an option. In 2009, the state legislature passed a resolution asserting state sovereignty—a resolution Governor Perry supported—although it has no binding effect on the federal government.
Yesterday, on November 12, 2012, Texas company NovelPoint Tracking LLC filed a lawsuit against Apple Inc. for patent infringement. Brought in the U.S. District Court for the Eastern District of Texas, the suit alleges that certain Apple products, and specifically the iPhone 4S, infringe on a patent owned by the plaintiff. That patent,
Dawson Farms v. Risk Management Agency, US 8th Cir. (11/7/12) Agriculture Law, Government & Administrative Law Dawson Farms challenged the RMA's denial of its crop-insurance claim alleging loss due to "tuber rot" in stored potatoes. A final agency review affirmed the RMA's denial of Dawson Farms' claim, finding that the insurance adjuster's sampling of the stored potatoes followed adequate sample procedures. Dawson Farms appealed the final agency decision to the district court, which affirmed. The court believed that, in light of the nature of the hearing officer's finding under review, the deputy director's statements made it reasonably discernable that the deputy director applied the correct legal standard and considered the record for the proper purpose of reviewing the hearing officer's decision for substantial evidence. The hearing officer based his conclusion largely on the testimony of an expert in potato pathology. The court also believed that, to the extent the deputy director's determination was a rejection of the hearing officer's finding that the adjuster had a duty to re-sample, the issue under review was a question of law. Consequently, the court found no abuse of discretion or arbitrary and capricious action by the deputy director. Further, the agency determination was supported by substantial evidence. Vance v. Rumsfeld, US 7th Cir. (11/7/12) Constitutional Law, Government & Administrative Law, Injury Law, International Trade, Military Law American citizen-civilians, employees of a private Iraqi security services company, alleged that they were detained and tortured by U.S. military personnel while in Iraq in 2006, then released without being charged with a crime. Plaintiffs sought damages and to recover seized personal property. The district court denied motions to dismiss. In 2011, the Seventh Circuit affirmed in part, holding that plaintiffs sufficiently alleged Secretary Rumsfeld's personal responsibility and that he is not entitled to qualified immunity. On rehearing en banc, the Seventh Circuit reversed, stating that a common-law claim for damages should not be created. The Supreme Court has never created or even favorably mentioned a nonstatutory right of action for damages on account of conduct that occurred outside of the U.S. The Military Claims Act and the Foreign Claims Act indicate that Congress has decided that compensation should come from the Treasury rather than from federal employees and that plaintiffs do not need a common-law damages remedy in order to achieve some recompense. Even such a remedy existed, Rumsfeld could not be held liable. He did not arrest plaintiffs, hold them incommunicado, refuse to speak with the FBI, subject them to loud noises, or threaten them while they wore hoods. Read More: Alleged torture victims can't sue Rumsfeld, The Boston Globe (11/8/12)
Apple must pay more than $368 million in damages to VirnetX Inc. according to a jury verdict returned in federal court yesterday (see it below). The same day the verdict was reached, VirnetX and Science Applications International Corporation (SAIC) filed a new patent lawsuit against Apple. In 2010, VirnetX said that its patent portfolio was "derived from a Central Intelligence Agency security project" The four (4) patents in this litigation reportedly stem from technology for secure communications developed for the CIA by SAIC. Each of the following four U.S. patents are related to patent Application No. 09/504,783, an ancestor application for every patent-in-suit :
Facebook has launched a special tool for Election Day that tracks (in real time) who is reporting their votes on the social network. Interestingly, throughout the day thus far, women have reported voting at nearly twice the rate of men (see screenshot below taken just after 1:00 PM PDT). This difference could mean…
A federal court dismissed Apple's fair, reasonable, and non-discriminatory (FRAND) patent licensing claims against Motorola Mobility, Inc. this morning. The case was dismissed 'with prejudice,' legalese that means Apple's claims that the court threw out cannot be raised a second time in a different lawsuit. A once sentence transcript of minutes from this morning's 2 hour and 37 minute court hearing is succinct and to the point (read it below):
This past weekend, I attended the Black Tie Dinner in Dallas, Texas. The annual dinner is the nation’s single largest fundraiser for the lesbian, gay, bisexual, and transgender community. As a former summer intern for Lambda Legal—the nation’s oldest and largest national legal organization working to safeguard and advance the civil…
After three years, language-learning software company Rosetta Stone settled its trademark lawsuit against Google over the company's Adwords advertising program. (read the settlement below). The litigation rollercoastered during that time. The U.S. District Court for the Eastern District of Virginia granted Google's motion to dismiss Rosetta Stone's lawsuit on August 2, 2010, and the Rosetta Stone appealed the dismissal. In April 2012, however, the U.S. Court of Appeals for the Fourth Circuit reinstated three (3) Rosetta Stone claims for direct infringement, contributory infringement, and trademark dilution. Unfortunately, here is why the undisclosed terms of their settlement agreement won't give any more insight into preventing online advertising trademark litigation in the future.
Paul Ceglia, the embattled Facebook, Inc. litigant claiming a 50% ownership stake in the social media company, is likely to lose yet another lawyer to represent him in his two-year-old lawsuit. Early this year, Facebook's and Mark Zuckerberg's lead attorney Orin Snyder described Ceglia's "revolving door of lawyers [as]...additional evidence that this abusive lawsuit is a hoax and a fraud.” Now, less than a week after federal fraud charges were filed against Ceglia, Ohio lawyer Dean Boland became the latest lawyer ask for permission to stop representing Ceglia. Boland stated that there is no connection between his motion to withdraw, and Ceglia's latest felony charges.
Serv. Emps. Int’l Union Local 1 v. Husted, US 6th Cir. (10/31/12) Election Law The Sixth Circuit granted Ohio a stay of the district court’s October 26 order granting a preliminary injunction that requires the state to count provisional ballots cast in the wrong polling place due to poll-worker error (wrong-place/wrong-precinct ballots)…
A snippy apology is apparently not what the judges involved in Apple's U.K. patent litigation over Samsung tablets ordered, according to testy statements made at a U.K. Court of Appeal hearing today. Judge Robin Jacob court told Apple and Samsung lawyers this morning that the iPad maker had 24 hours to revise its currently published statement about the verdict in favor of Samsung on Apple's UK website, replace it with a new one apologizing for inaccuracies, put the link on its home page, and use at least an 11-point font. The website notice that Apple published last Friday highlighted a lower court judge's statement that the Samsung tablets involved in the lawsuit "are not as cool" as Apple's iPad. Apple also piled on a host of earlier judicial platitudes emphasizing that the iPad has "extreme simplicity . . . is striking . . . . It is a cool design."
Last week, on October 26, Kickflip, Inc. (doing business as, and hereinafter referred to as, Gambit) filed a lawsuit against Facebook, Inc. in the U.S. District Court for the District of Delaware, alleging violations of federal antitrust laws. According to its complaint, Gambit was “a leading virtual-currency and payment-processing provider” to developers that published games for social networks, including Facebook. Gambit explains that “[s]ocial games are usually free to play,” relying on a competitive market of virtual currency and payment-processing service providers to transfer virtual currency into actual revenue for the developer. However, according to Gambit, Facebook began offering its own virtual-currency services in 2009, but with a 30% fee. When Facebook’s services failed to gain significant market (a failure Gambit attributes to its high fee), it allegedly began engaging in anticompetitive behavior, such as requiring game developers on its platform to use the Facebook virtual-currency services. The complaint alleges that Facebook subsequently required exclusive use of its own virtual-currency services.
On Monday, Apple filed an Ex parte application for discovery against Motorola Mobility ('Motorola') to defend against the Google subsidiary's patent claims in Germany. Motorola's claims allege that Apple's iPhone and iPad wireless devices infringe two of the company's European patents. One central Apple legal defense to Motorola's European patent claims is that the telecommunications hardware maker would not offer it fair, reasonable, and non-discriminatory ('FRAND') licensing terms over the wireless patents in dispute, "in violation of German and European antitrust laws."
Last Friday, Intercarrier Communications LLC (“ICC”), a Texas limited liability company, filed lawsuits against at least thirteen different technology companies, including Apple Inc. Other defendants include the makers of such popular apps as TextNow and PingChat! (by Enflick), Viber, WhatsApp, and Glympse. The lawsuits were filed in the U.S. District Court for the…
On Monday, in the shadow of then-Hurricane (now-Superstorm) Sandy, the U.S. Supreme Court heard oral arguments in Kirtsaeng v. John Wiley & Sons, Inc., a case involving the applicability of U.S. copyright law to copies of works created and legally acquired abroad and subsequently imported into the United States. In the case, Supap Kirtsaeng, a college student from Thailand studying in the United States, launched a small online business selling textbooks. His family in Thailand bought foreign edition textbooks printed by Wiley Asia and mailed them to Kirtsaeng. Kirtsaeng then sold the textbooks online on sites such as eBay.com and reimbursed his family for the costs of purchase and shipping, retaining the remaining profits from the sale. John Wiley & Sons subsequently sued Kirtsaeng in the U.S. District Court for the Southern District of New York, alleging copyright infringement, trademark infringement, and unfair competition under New York state law. As to the copyright claim, the district court judge determined that the language in 17 U.S.C. § 109(a), known as the “first sale doctrine,” does not include copyrighted goods manufactured abroad.
As Hurricane Sandy moves toward New Jersey and Delaware, we thought it might be useful to pull some resources for those folks living in the projected path of the storm, as we did last year for Hurricane Irene. We hope that everyone in the area has found safe shelter and has all the necessities to weather the storm. Federal Resources Hurricane Resource Center- from Ready.gov - Resources and steps to take to protect yourself, your family and property. FEMA on Facebook FEMA on Twitter FEMA on YouTube The National Flood Insurance Program
Image credit: lev radin / Shutterstock.com
United States v. White, US 7th Cir. (10/26/12) Civil Rights, Constitutional Law, Criminal Law White created a website to advance white supremacy and included a statement that “everyone associated with the Matt Hale trial has deserved assassination for a long time.” The site also included information related to the foreperson of the jury that convicted Hale, a white supremacist, of criminally soliciting harm to a federal judge. Although a jury convicted him of soliciting the commission of a violent federal crime against a juror, 18 U.S.C. 373, the district court held that the government failed to present sufficient evidence for a reasonable juror to conclude that White was guilty of criminal solicitation, and that White’s speech was protected by the First Amendment. The Seventh Circuit reinstated the conviction and remanded for sentencing. A rational jury could have found beyond a reasonable doubt that, based on the contents of the website, its readership, and other contextual factors, White intentionally solicited a violent crime against Juror A by posting Juror A’s personal information on his website. Criminal solicitation is not protected by the First Amendment. American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation, US 6th Cir. (10/25/12) Communications Law, Constitutional Law American Freedom Defense Initiative is a nonprofit corporation that wanted to place an advertisement on the side of city buses in Michigan. The advertisement read: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com”. Suburban Mobility Authority for Regional Transportation (SMART), refused to display the advertisement. AFDI sued, claiming a First Amendment violation. The district court granted a preliminary injunction, holding that plaintiffs likely could show that SMART’s decision was arbitrary. The Sixth Circuit reversed. SMART’s policy prohibits: political or political campaign advertising; advertising promoting the sale of alcohol or tobacco; advertising that is false, misleading, or deceptive; advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons; and advertising that is obscene or pornographic; or in advocacy of imminent lawlessness or unlawful violent action. The restrictions, which concern a nonpublic forum are reasonable, viewpoint-neutral limits that do not deny AFDI’s First Amendment rights. The injunction would cause substantial harm to others, compelling SMART to post on its buses messages that have strong potential to alienate people and decrease ridership; the public interest would not be served by this preliminary injunction.
Yesterday, WhitServe LLC filed a lawsuit against Apple alleging infringement of a patent WhitServe owns. Filed in the U.S. District Court for the District of Connecticut, the lawsuit The patent, U.S. Patent No. 7,921,139, is described as a “System for sequentially opening and displaying files in a directory.” Invented by Wesley W. Whitmyer, Jr.—sole member of WhitServe LLC according to a business search for the Connecticut company—the patent was filed December 1, 2006. The allegedly infringing Apple products include Mac OS X Leopard, Mac OS X Lion, and Mac OS X Mountain Lion. According to the complaint, Apple introduced the “Quick Look” feature into its operating system with the release of Mac OS X Leopard on October 26, 2007—nearly one year after the patent at issue was filed. The complaint describes the Quick Look feature as allowing a user to “instantly preview almost any file, and even play media files, without opening an application.” After detailing 37 ways in which Quick Look infringes on the plaintiff’s patent, the complaint asks for injunctive relief as well as damages for harm suffered. Unlike many patent lawsuits against the technology giants like Apple, this suit stands out as being by the actual inventor of the patent at issue, rather than merely a patent holding company. Whether the merits of the suit will pan out for the plaintiff remains to be seen.
According to a new infringement lawsuit filed Tuesday in federal court (read it below), the Google Wallet app violates a Canadian resident's U.S. patent. Plaintiff Peter Sprogis holds U.S. Patent No. 7,298,271 for a "Method and apparatus for providing awards using transponders." The '271 patent abstract describes a customer loyalty program using 'electronic data storage elements' (EDSE) like RFID tages can be used to encourage customer loyalty by offering coupons or loyalty points for visiting a business.
Facebook, online advertising agency adSage, and a web-based wholesaler of Chinese goods are named as defendants in a new class-action trademark lawsuit accusing them of enabling the placement of, or placing ads for, counterfeit NFL apparel on the social network. (read it below) Inkies Sports, Inc. d/b/a Krystal's NFL Shoppe, a New Mexico-based retail store that only sells "officially licensed NFL merchandise" filed suit. Krystal's charges that a litany of ads on its Facebook page offer competing, counterfeit merchandise at prices that can be 80% - 90% below the MSRP of an authentic, officially licensed NFL jersey. But should Facebook and advertising agencies be held accountable for alleged wrongdoings of third party advertisers accused of hawking cheaper counterfeit goods? Prior case law suggests not.
Apple was hit with a patent infringement lawsuit (read it below) over Siri, the Cupertino, California company's computer voice search-and-speak technology inside newer iPhones, iPads and iPod Touch devices. The twist in this case, however, is that patent holder Rensselaer Polytechnic Institute isn't the one suing. Instead, the plaintiff is Dynamic Advances, LLC, a Tyler, Texas-based company created last year by patent monetizer Erich Spangenberg. The LLC's members and officers include the Spangenberg Family Foundation and Techdev Holdings. Spangenberg is known for his sue first, ask questions later approach to patent litigation.
A consumer Apple iPhone class-action antitrust lawsuit (read it below) accuses the Cupertino, California, company of conspiring to monopolize early iPhone purchasers' voice and data plans by locking them into exclusivity contracts with AT&T Mobility, in violation of federal antitrust law. The proposed class of plaintiffs includes consumers who bought iPhones between October 19, 2008, and February 3, 2011. This corresponds to the period of time when Apple sold three versions of the company's iPhone: the original, 3G, and 3Gs models.
Burns v. Astrue, Utah Supreme Court (10/12/12) Family Law, Public Benefits, Trusts & Estates Here the Supreme Court answered a question of Utah law certified to it by the U.S. district court. The question was, "Is a signed agreement to donate preserved sperm to the donor's wife in the event of his death sufficient to constitute 'consent in a record' to being the 'parent' of a child conceived by artificial means after the donor's death under Utah intestacy law?" In this case, after she gave birth, the wife of the donor applied for social security benefits based on the donor's earnings. The Social Security Administration denied the benefits, finding that the wife had not shown the child was the donor's "child" as defined by the Social Security Act. The wife subsequently filed a petition for adjudication of paternity, and the district court adjudicated the donor to be the father of the child. On appeal, the U.S. district court certified the state law question to the Supreme Court. The Court held that an agreement leaving preserved frozen semen to the deceased donor's wife does not, without more, confer on the donor the status of a parent for purposes of social security benefits. Annechino v. Worthy, Washington Supreme Court (10/18/12) Banking, Consumer Law, Insurance Law The issue before the Supreme Court in this case was whether particular officers and employees of a bank owed a quasi-fiduciary duty to particular bank depositors. Michael and Theresa Annechino deposited a large amount of money at a bank specifically to ensure that their savings would be protected by the Federal Deposit Insurance Corporation (FDIC). The Annechinos relied on bank employees’ recommendations of how to structure their accounts to meet FDIC coverage rules. Unfortunately, the bank went into receivership, and the FDIC found that nearly $500,000 of the Annechinos’ deposits were not insured. The Annechinos alleged that individual officers and employees of the bank owed them a duty, the breach of which resulted in their loss. The trial court granted summary judgment in favor of the individual defendants, and the Court of Appeals affirmed. Upon review, the Supreme Court affirmed the Court of Appeals. The officers and employees of the bank did not owe the Annechinos a quasi-fiduciary duty. Holding the officers and employees personally liable under these facts would have contravened established law regarding liability for acts committed on behalf of a corporation or principal. Read More Background Briefs and Video of Oral Argument
Yesterday Facebook and Mark Zuckerberg scored a huge win against Paul Ceglia, the plaintiff claiming 50% ownership of the social media company, but whose allegations the defendants have consistently maintained are based upon a fraudulent work for hire document. In a 24-page decision and order (D&O) issued Wednesday (read it below), U.S. Magistrate Judge Leslie Foschio granted Zuckerberg and Facebook what appears to be a huge advantage in this closely watched case, approving their entire motion for "a protective order relieving them of any obligation to provide responses to all of [Ceglia]'s documents requests, and many of Plaintiff’s interrogatories." Judge Foschio deemed all of the items the defendants wanted to bar "irrelevant" to Ceglia’s defense of the defendants' summary motion to dismiss the case. In granting the Zuckerberg and Facebook's motion for a protective order, the court noted that Ceglia's interrogatories and document fell outside the scope of the court’s April 30, 2012 D&O limiting the scope of discovery. Judge Foschio concluded that the six (6) year statute of limitations for breach of contract claims remained "the primary issue raised by Defendants' Summary Judgment Motion." Zuckerberg and Facebook have steadfastly maintained that "Ceglia’s Work for Hire document is [a] forgery." The purported document's authenticity — or lack of it — is key to any court ruling on whether or not Ceglia's claim to own 50% of the social media company is valid and enforceable. Handwriting and digital forensic experts remain an essential part of the case, assessing whether or not the alleged work for hire document is genuine.
A heads up to all our Free Law Friends that next week is the 6th annual Open Access Week (October 22 – 28). Appropriately, it will be celebrated “everywhere”. Check out the Open Access site to see a full list of 2012 events. In our own backyard there will be workshops, seminars, and…
Evolutionary Intelligence, LLC sued Apple, social media companies Facebook, Twitter, Foursquare, Yelp, Groupon, and Living Social, telecom Sprint Nextel, and mobile advertising network Millennial Media in federal court yesterday, claiming infringement of 2 patents. Curiously, the names of the patents are virtually identical, although the abstract and specifics are different. They are: U.S. patent number 7,010,536, a "System and method for creating and manipulating information containers with dynamic registers," and U.S. patent number 7,702,682, a "System and Method for Creating and Manipulating Information Containers with Dynamic Registers." Except for the defendants’ names and minor changes to the brief summaries of each defendant’s alleged infringement, the lawsuits essentially appear to cut and paste different defendants from one suit to another. According to Delaware’s Dept. of State, Evolutionary Intelligence, LLC was formed just over four (4) months ago on June 15, 2012. Each complaint states that the plaintiff has a "principal place of business in San Francisco, California."
Why would a defendant litigate over four and a half years, finish conducting discovery, tell a court that it’s ready for trial, and then – only then – ask a plaintiff to admit that he posted photographs on Facebook and other social media sites? That is the question answered in a recent New York decision by Suffolk County Supreme Court Justice Hector D. LaSalle. The case, Guzman v. Farrell Building Co., et al, highlights the consequences for a defendant who wants access to a plaintiff's Facebook account after filing a note of issue and certificate of readiness to confirm that it is ready for trial.
The European Union (EU) is expected to announce legal action against Google for allegedly violating EU law by failing to give users a choice to opt out its new privacy policy, according to The Guardian. The French data commissioner, known as the 'CNIL' or Article 29 Working Party that has authority concerning protection of individual personal data, is anticipated to require that Google undo its recent privacy policy changes. The effect could be far-reaching, not only in Europe, but worldwide as governments scrutinize Internet privacy policies and their impact on users.
For several months, Facebook has reportedly been developing and testing a “Want” button, to supplement its ubiquitous “Like” button. Just last week, Facebook announced that several companies will be testing the new “Want” button and showed what the button would look like. On October 12, shortly after the release of its new highly anticipated “Want” button, Facebook was sued by a company called CVG-SAB LLC for alleged trademark infringement and other claims over its “Want” marks, including U.S. Trademark No. 4,200,861 and No. 3,923,229, among others. The company, better known by the name under which it does business—Want—operates a social and interactive site that connects people with products they have, like, or desire. The complaint alleges that “Facebook introduced a WANT Button for services that are effectively the same as, or at least closely related to, Plaintiff’s WANT Button services.” It further argues that Facebook’s use of the button will and has already caused confusion and violates the federal Lanham Act, Michigan’s Consumer Protection Act, and state common law.
Apple, Inc. was hit with a patent infringement lawsuit Thursday (read it below) alleging that the company's iPad 3 tablets and Macbook Pro computers violate four light emitting diode (LED) patents. The case was filed in in federal court in Delaware by claimed patent holder LED Tech Development LLC, a Delaware limited liability company based in Tyler, Texas, the city that is a patent litigator's combat zone. Each of the four infringement claims, the complaint charges, involve Apple "products utilizing pulse-width modulation signals to drive light-emitting diodes." Apple's newest iPad a/k/a the 'iPad 3,' and Macbook Pro are named specifically.
Happy Friday! We're back from Cornell's Law via the Internet conference just in time for our weekly writers' picks. Dept of Texas, Veterans of Foreign Wars v. Texas Lottery Commission, US 5th Cir. (10/10/12) Constitutional Law, Gaming Law Plaintiffs, a group of nonprofit organizations licensed to conduct bingo games, filed suit challenging restrictions on the Texas Bingo Enabling Act (Bingo Act), Tex. Occ. Code 2001.001 et seq. Plaintiffs challenged provisions in the Bingo Act that prohibited charities from using the money generated by conducting bingo games for lobbying activities or to support or oppose ballot measures. The district court granted summary judgment in favor of plaintiffs and issued a permanent injunction preventing enforcement of the challenged statutory provisions. The court reversed and held that the Bingo Act's restrictions on the use of bingo proceeds for political advocacy were permissible conditions on a government subsidy and did not operate to penalize speech. Read More: Court Rejects ‘Citizens United’ Arguments in Texas Bingo Case, Wall Street Journal Law Blog NE Coal. for the Homeless v. Husted, US 6th Cir. (10/11/12) Constitutional Law, Election Law Ohio requires that provisional ballots be cast in the correct precinct, with a completed voter affirmation, making no exception for wrong-precinct and deficient-affirmation ballots caused by poll-worker error, O.R.C. 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii). A 2010 consent decree required the counting of certain wrong-precinct and deficient-affirmation provisional ballots where poll-worker error caused the nonconformity and the voters used the last four digits of their social security number for identification to cast their ballots. The ballot of a provisional voter using any other form of identification (e.g., current photo identification, current utility bill, paycheck) would not be counted.The district court denied a motion to vacate the decree and entered a preliminary injunction requiring the counting of all wrong-precinct and deficient-affirmation provisional ballots to remedy systemic exclusion of nonconforming ballots caused by poll-worker error. The Sixth Circuit affirmed the wrong-precinct remedy and reversed the deficient affirmation remedy and remanded for the district court to address the equal protection issue created by the consent decree’s provision for counting deficient-affirmation ballots by voters providing social security numbers, and a motion to modify the consent decree in light of the equal protection concerns raised by the consent decree’s differential treatment of provisional ballots. Read More: Court rejects Ohio voting law on tossing ballots filed in wrong precincts, CBS News
Apple was sued for copyright infringement on Wednesday by Swiss fashion and beauty photographer Sabine Liewald. Her lawsuit (below) charges the technology company with unauthorized use of her copyrighted "Eye Closeup" photo in an advertising campaign for Macbook Pro computers, related materials, and a keynote speech, without first obtaining legal rights to license it from her New York City agent. According to the complaint, Apple actually "requested a high-resolution file" of this specific photograph "for 'comping' (or layout) purposes only." After reviewing it, Liewald maintains, the Cupertino-based company told her agent "that it did not intend to use the photograph" in its Macbook Pro ad campaign, but went ahead and did so anyway.
The 2012 Law Via the Internet Conference at Cornell Law School has concluded, and the Justia attendees have headed back to sunny California. By every measure, I think the conference was a success. It stimulated thought and provoked discussion; it disseminated new ideas and revisited old ones; and it brought together a group of people with similar objectives and diverse experiences. Here are some of my own thoughts and reactions: Innovators in the legal field must collaborate and share their knowledge, discoveries, and experiences to achieve their goals because the law is, by its very nature, resistant to change or disruption. We often use technology for silly purposes before—and sometimes well before—using it for nobler and more meaningful goals. Generally we have to develop a product according to what its users want, even if that isn’t what we think they should want. Ithaca is beautiful, cold, and very remote. Although I, of course, am biased toward thinking that Justia’s own Tim Stanley had the most outstanding presentation, I was impressed with all of the people who presented at the sessions I attended. Richard Susskind and Clay Shirky—the two Justia-sponsored keynote speakers—invigorated the conference with their enthusiasm and vision, and I thought their presentations provided a theme and an energy that resurfaced continually throughout the various sessions of the conference. Thanks to LVI 2012, I learned a great deal about the great work of my colleagues and peers, met some really inspiring people, and affirmed my own belief that the law should be freely available to all.
Here is a summary of legal developments in five federal and state court cases last week that involved technology companies, or alleged activities by their users. Samsung Cries Foul, Claiming Jury Foreman in Apple iPhone $1B+ Lawsuit Was Biased In a motion filed last Tuesday, Samsung's lawyers asked U.S. District Court Judge Lucy Koh to set aside the jury's $1.05 billion iPhone lawsuit verdict in favor of Apple. They alleged that jury foreman and retired computer engineer Velvin Hogan failed to disclose that his former Silicon Valley employer Seagate Technology Inc. sued him in 1993, despite being asked by the judge whether he had been involved in any lawsuits.
Dong v. Holder, US 1st Cir. (10/3/12) Government & Administrative Law, Immigration Law This case required the First Circuit Court of Appeals to decide, for the first time, whether section 1101(a)(42)(B), a statute enacted to pave the way for asylum for victims of China's coercive population control policies, extends automatically to a spouse of a person forced to undergo an abortion. Petitioner, a Chinese national, petitioned for asylum, seeking to remain in the United States because of, among other things, his wife's forced abortion. Petitioner argued he was entitled to per se refugee status under 8 U.S.C. 1101(a)(42)(B) "as a person who has been forced to abort a pregnancy." The immigration judge rejected this argument, and the board of immigration appeals affirmed. The First Circuit Court denied Petitioner's petition for judicial review after joining several of its sister circuits in holding that, given the language of the relevant statute and the Attorney General's reasonable interpretation of it, the agency did not err in refusing to grant Petitioner's per se refugee status on the basis that the Chinese government had compelled his wife to undergo a forced abortion. Read More: First Circuit: No Automatic Asylum for Chinese Men in Abortion Cases, Wall Street Journal U.S. v. Tasis , US 6th Cir. (10/4/12) Government Contracts, Health Law, Public Benefits, White Collar Crime Tasis and his brother ran a sham medical clinic, recruited homeless Medicare recipients who had tested positive for HIV, hepatitis or asthma, paid the “patients” small sums in exchange for their insurance identification, then billed Medicare for infusion therapies that were never provided. During four months in 2006, the Center billed Medicare $2,855,785 and received $827,000 in return. The scheme lasted 15 months, during which Tasis and his collaborators submitted $9,122,159.35 in Medicare claims. An auditor notified the FBI. After an investigation, prosecutors indicted Tasis on fraud and conspiracy claims. Over Tasis’s objection, co-conspirator Martinez testified that she and Tasis had orchestrated a a similar scam in Florida. The court instructed the jury to consider Martinez’s testimony about the Florida conspiracy only as it related to Tasis’s “intent, plan and knowledge.” The jury found Tasis guilty, and the trial judge sentenced him to 78 months in prison and required him to pay $6,079,445.93 in restitution. The Sixth Circuit affirmed, rejecting various challenges to evidentiary rulings.
In a few days, several of us here at Justia will be traveling to “gorges” Ithaca, New York, to attend the 2012 Law Via the Internet Conference at Cornell Law School. The conference marks the 20th Anniversary of the Legal Information Institute (LII) at Cornell Law School, the Internet’s first legal…
A former Chairman of the the Advisory Board of a professional mutual fund pleaded guilty today in federal court to a series of charges in a $13 million conspiracy to defraud in investors by falsely claiming that Praetorian Global Fund Ltd. privately owned pre-IPO Facebook and Groupon stock before each of the social media start-ups went public. In reality, the British Virgin Islands-based fund did not. According to documents in the case, Mattera spent nearly $4 million of approximately $13 million illegally acquired in the conspiracy so that he and his family could have the accoutrements of a luxurious life: buying jewelry, expensive cars, and interior decorating projects.
The U.S. Supreme Court started its term today, hearing oral arguments for Kiobel v. Royal Dutch Petroleum. The case involves the interpretation of a federal statute enacted by the first Congress as part of the Judiciary Act of 1879—the Alien Tort Statute. The Alien Tort Statute (ATS) provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The statute was all but unused until 1980, when the U.S. Court of Appeals for the Second Circuit ruled in Filartiga v. Pena-Irala that the ATS conferred jurisdiction over a lawsuit brought by a foreign national against another foreign national over actions that took place overseas. Since that ruling, the ATS has come up a handful of times, but only once previously before the Supreme Court. In Kiobel, the case the Supreme Court heard today, twelve Nigerian nationals sued three European oil companies for helping the Nigerian government to kill and torture civilians. The case was originally filed in the U.S. District Court for the Southern District of New York, and the district court dismissed all claims against the corporate defendants, finding that the ATS imposes liability only against individuals, not corporations. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of the claims. The Supreme Court originally granted review in October 2011, but only as to the question whether the ATS applies to corporate conduct abroad. Shortly after hearing arguments on that issue in February 2012, the Court ordered supplemental briefing on the question whether an ATS claim could proceed when the conduct giving rise to the claim occurred wholly outside of the United States. Today’s oral argument focused on this second question.
Ameranth, Inc. filed a lawsuit against Apple, Inc. earlier this week in the U.S. District Court for the Southern District of California alleging that Apple’s new Passbook product infringes on Ameranth’s patented technology. According to the complaint, Ameranth develops products to generate and synchronize menus and hospitality information across fixed, wireless, and web…
Kohanowski v. Burkhardt, North Dakota Supreme Court (9/25/12) Contracts The future brother-in-law of Jessica Burkhardt tried to sue her on quasi-contract principles for a loan he gave his brother. The money was supposed to be used to help Burkhardt and Kohanowski buy a house together; the brother-in-law says Burkhardt was in the room on the other end of the phone when his brother accepted the terms of the loan. The engagement broke off, and while the brother reaffirmed the debt, the brother-in-law wanted to ensure his ex-potential-sister-in-law paid her share. The lower courts ruled in favor of the in-law, but the Supreme Court reversed, holding the "contract" was subject to the statute of frauds, which was not met here. Akers v. Prime Succession of Tenn., Inc., Tennessee Supreme Court (9/21/12) Consumer Law, Injury Law Defendant, a crematory operator, hid hundreds of uncremated bodies on his property rather than perform cremations he was paid to do. When Plaintiffs, who had received what they thought to be their deceased son's cremains from Defendant's crematory, learned about the problems at the crematory, they discovered the body of their son was mishandled and not properly cremated. Plaintiffs sued Defendant for the alleged mishandling of their deceased son's body. Following a jury verdict for Plaintiffs, the trial court entered judgment against Defendant based on the intentional infliction of emotional distress claim but granted his motion for a judgment notwithstanding the verdict on Plaintiffs' Tennessee Consumer Protection Act (TCPA) and bailment claims. The court of appeals affirmed. The Supreme Court affirmed, holding that the trial court did not err in (1) holding Defendant liable for intentional infliction of emotional distress in the amount of the jury verdict; (2) instructing the jury that they were permitted to draw a negative inference resulting from Defendant's invocation of his Fifth Amendment privilege during questioning; and (3) dismissing the TCPA and bailment claims. Read More Tennessee Supreme Court Affirms Judgment Against Tri-State Crematory Operator
Last week, my colleague Ilana Bergstrom and I attended a session called “Law School for Digital Journalists” at a conference hosted by the Online News Association. Although both of us went to law school, the session seemed like an opportunity to learn about the unique issues that online journalists face. Indeed,…
Last Tuesday, The Trademark Trial and Appeal Board (TTAB) upheld a decision to deny Apple’s trademark application to register its music feature mark that’s used on iPhones and other Apple products. The reason? The mark was confusingly similar to another mark that’s now owned by MySpace. Both marks consist of two musical eighth notes on an orange background. MySpace’s mark was originally issued to iLike, a music service that let users download and share music with each other. However, MySpace bought iLike in 2009, and closed it down a few years later.
Wellons v. Warden, Georgia Diagnostic and Classification Prison, US 11th Cir. (9/19/12) Constitutional Law, Criminal Law Petitioner, a death row inmate, appealed the district court’s denial of his petition for writ of habeas corpus brought pursuant to 28 U.S.C. 2254. Petitioner contended that he was denied a fair trial by an…
Today, we headed out in the morning to spot the Space Shuttle Endeavour as it flew over NASA's Ames Research Center. After quite a bit of waiting, we spotted the Space Shuttle Endeavour heading towards us. The Dumbarton Bridge is below.
In a Solomonic ruling, Manhattan Supreme Court Justice Manuel Mendez recently denied a defendants' sweeping Notice to Admit social media account postings by a personal injury plaintiff in Carr v. Bovis Lend Lease (read the decision below). In New York, unless a party objects to another's pre-trial Notice to Admit, they run the risk of admitting something they don't disagree with, potentially helping another litigant through inaction. In Carr, the defendants' Notice to Admit sought to have plaintiff admit to making Facebook, Twitter, and other social media postings online, even though plaintiff only acknowledged having a Facebook account. Here, Justice Mendez gave each party a little victory, and perhaps a setback too.
Facebook and Apple have been hit with another patent infringement lawsuit brought by small, relatively obscure research/technology companies. Yesterday, PersonalWeb Technologies and Level 3 Communications filed a suit against both technology companies in the U.S. District Court for the Eastern District of Texas. The two plaintiff companies allegedly each own an undivided 50…
Check out our summary writer’s picks of interesting opinions that have come their way during the past week. Coleman v. City of Mesa, Supreme Court of Arizona, Arizona Supreme Court (9/7/12) Civil Rights, Constitutional Law This case involved the intersection of municipal zoning regulations and the right of tattoo artists to…
Yesterday, the Regents of the University of California and Eolas Technologies, Inc. filed a lawsuit against Facebook in the U.S. District Court for the Eastern District of Texas. The suit alleges that Facebook has infringed on four different patents owned by the Regents and to which Eolas has an exclusive license. Eolas was founded by Dr. Michael D. Doyle, who, according to the company website, previously served as Director for the Center of Knowledge Management at the University of California – San Francisco. During his tenure there, Dr. Doyle reportedly led a team of researchers to develop technology that led to the 5,838,906 patent (“’906 Patent”) entitled “Distributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document.” According to the Eolas Technologies website, the patent “enabled Web browsers for the first time to act as platforms for fully-interactive embedded applications.” The ’906 Patent has been the subject of prior litigation. In 2007, Eolas and the Regents of the University of California were awarded a $565 judgment against Microsoft. The award was stayed on appeal, and the parties subsequently settled for a confidential amount.
Photographer Christopher Boffoli has filed a lawsuit against Twitter in the U.S. District Court for the Western District of Washington, claiming infringement of copyrighted photographs. The complaint alleges that "Twitter users copied numerous photographs from the Disparity Series without license or permission from Boffoli . . . . [and] were hosted either on Twitter or on third-party servers." Boffoli claims that Twitter could have removed the copyrighted photos from its own servers or "disable[d] each Tweet advertising or linking to" the photographs on its own or third-party servers. Twitter's Copyright Policy states that "We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us." However, according to Boffoli's complaint, despite repeated requests that Twitter take down the copyrighted materials, "Twitter has not removed or disabled access to the [copyrighted photos]."
Pinterest filed a complaint at the end of August in the Northern District of California against Qian Jin of Nanjing, China, for cyberpiracy, trademark infringement and false designation of origin, trademark dilution, and unfair competition. Specifically, Pinterest claims that Qian purchased dozens of “infringing” domain names that are nearly identical and confusingly similar to pinterest.com, and uses them purely for online advertisements. Pinterest also alleges that Qian applied to register PINTEREST and PINTERESTS as trademarks in the United States in bad faith, stating that he had full knowledge of Pinterest’s brand and services.
On August 31, View 360 Solutions LLC, a subsidiary of Acacia Research Corp., filed a lawsuit against Google, Inc., alleging that Google’s Street View feature infringed on the following patents: 6,157,385: “Method of and apparatus for performing perspective transformation of visible stimuli” 6,323,862: “Apparatus for generating and interactively viewing spherical image data and memory thereof” 6,243,099: “Method for interactive viewing full-surround image data and apparatus therefor” 6,731,284: “Method of and apparatus for performing perspective transformation of visible stimuli” 8,077,176: “Method for interactively viewing full-surround image data and apparatus therefor” 7,542,035: “Method for interactively viewing full-surround image data and apparatus therefor” 6,252,603: “Processes for generating spherical image data sets and products made thereby” 6,271,853: “Method for generating and interactively viewing spherical image data” The lawsuit was filed in the U.S. District Court for the Northern District of New York and seeks damages, injunctions against Google’s continued use of the alleged patents.
Happy Friday! As ever, our Daily Summary Writers have been on the look out for interesting opinions to feature in our weekly column - below are two of note from this past week. Christian Louboutin v. Yves Saint Laurent America Inc., US 2nd Cir. (9/05/12) Intellectual Property, Trademark Christian Louboutin, a fashion designer best known for his use of red lacquer on the outsole of the shoes he designs, appealed the district court's order denying a motion for preliminary injunction against alleged trademark infringement by Yves Saint Laurent (YSL). The court concluded that the district court's conclusion that a single color could never serve as a trademark in the fashion industry was inconsistent with the Supreme Court's decision in Qualitex Co. v. Jacobson Products Co., and that the district court therefore erred by resting its denial of Louboutin's preliminary injunction motion on that ground.
Yesterday, Touchscreen Gestures, LLC filed a patent infringement lawsuit against Google Inc. in the Eastern District of Texas. In its complaint, Touchscreen Gestures, LLC alleged that Google products, including the Nexus One, Galaxy Nexus smartphones and Nexus 7 tablet, infringed the following patents: Drag Gesture. U.S. Patent No. 7,184,031 entitled "Method and Controller for Identifying a Drag Gesture." Single Tap Gesture. U.S. Patent No. 7,180,506 entitled "Method for Identifying a Movement of Single Tap on a touch Device." Double Tap Gesture. U.S. Patent No. 7,190,356 entitled "Method and controller for identifying double tap gestures." Scroll Window Screen. U.S. Patent No. 7,319,457 entitled "Method of scrolling window screen by means of controlling electronic device."
On August 29, Multimedia Patent Trust (“MPT”) filed a patent infringement lawsuit against Apple in the U.S. District Court for the Southern District of California. The patent at issue is U.S. Patent No. 5,500,678, entitled “Optimized Scanning of Transform Coefficients in Video Coding.” In essence, the patent describes a method of digital video compression. The complaint first alleges that several of Apple’s products, including the iPhone 4S, iPad 2, and the “new iPad” encode video in a way that infringes on MPT’s ‘678 patent. Second, MPT alleges that a handful of Apple software uses the patented methodology “by virtue of the manner in which they encode video.” The third allegation of infringement focuses on the Apple computers as a whole, naming the virtually all current and recent lines of the company’s computers, including the Mac Mini, Mac Pro, MacBook, MacBook Pro, and MacBook Air.
Our Daily Summary Writers have been hard at work, summarizing opinions from all Federal Circuit Courts and all fifty state supreme courts for Justia's daily and weekly newsletters. Below are some opinions of interest that they came across this past week. In re Bacigalupo, California Supreme Court (8/27/12) Civil Rights, Constitutional Law, Criminal Law Petitioner was found guilty of the murders of two brothers. The trial court sentenced Petitioner to death. The Supreme Court affirmed. Petitioner subsequently filed a habeas corpus petition for relief from the judgment of death. The Supreme Court ordered an evidentiary hearing on Petitioner's claim that the prosecution had failed to disclose evidence that would have supported a case in mitigation at the penalty phase that Petitioner committed the two murders because of a Colombian drug cartel's death threats against him and his family. The referee found merit to Petitioner's claim. The Supreme Court upheld the determination by the referee and granted Petitioner's habeas corpus petition, holding (1) substantial evidence supported the referee's determination, and (2) it was reasonably probable that Petitioner's penalty phase jury would have returned a verdict of life imprisonment without parole had it heard the evidence withheld by the prosecution. Read more: California Supremes Overturn Death Sentence Based on Withheld Evidence; Prosecutor Is Now a Judge
Mary Cesar, the owner of Mary’s Cakes & Pastries in Northport, Alabama, received a cease-and-desist letter last week from Collegiate Licensing Company (CLC) ordering her to stop selling products decorated with the University of Alabama’s trademarks and logos. Specifically, the letter stated she must stop using, “trademarks, names, logos, colors, slogans, mascots, and other indicia associated with the university” with the sale of her baked goods. However, Cesar states that the university itself, as well as its athletic and legal departments, has placed orders for these very same products. She stated that she thought that the university wouldn’t place such orders if she had been doing something illegally.
Blue Spike, LLC filed a patent infringement lawsuit yesterday in the U.S. District Court for the Eastern District of Texas naming 22 defendants, including Facebook. Blue Spike is a technology company owned by self-described inventor and steganographer Scott Moscowitz.
Yesterday, a Northern California jury announced their verdict in one of the most highly anticipated decisions of the high technology era: Samsung must pay Apple $1.05 billion in damages for patent infringement. In that case, Apple Inc. v. Samsung Electronics Co., Ltd., both companies alleged numerous patent infringements by the other company. The jury's verdict clearly indicates that it believed Samsung, not Apple, was the in the wrong here. So what happens next?
Last week, the U.S. Court of Appeals for the Seventh Circuit ruled in Teesdale v. City of Chicago that a city’s legal argument in a civil proceeding does not constitute its official policy. One of the threshold questions before a person or entity may sue another in federal court is one of judicial standing. When the person or entity is suing for prospective relief—that is, a court order preventing a harm that has not yet occurred, the threshold is particularly high. Under the Supreme Court case City of Los Angeles v. Lyons, a plaintiff seeking prospective relief must show that he or she is in immediate danger of sustaining some direct injury as the result of the challenged conduct, and the injury or threat of injury must be “real and immediate,” not “conjectural” or “hypothetical.” In Teesdale, the court found that Teesdale did not meet the standing requirement and thus could not go forward with his case against the City of Chicago.
On Wednesday, New York City unveiled a new surveillance system powered by Microsoft that would provide near-real-time analysis of camera footage across the city. In its press release, the City boasts that the system features “the latest crime prevention and counterterrorism technology.” The security-minded among us may cheer this development as providing heightened protections against terrorism and other planned acts of violence, but for those of us who are more interested in privacy, this announcement reeks of “Big Brother.”
ABA authors and Cybersleuth seminar speakers Carole Levitt and Mark Rosch have revised and updated their book, The Cybersleuth’s Guide to the Internet, now in its twelfth edition. The Cybersleuth’s Guide provides both basic and advanced information for anyone wanting to do cost-effective investigative or legal research on the Internet. The new edition features many updates, additions, and revisions to keep up with the ever-changing Internet. In fact, this edition has over 100 pages more than the prior edition.
H-W Technology LC is suing Apple and 31 other companies for alleged patent infringement. It is not the first time this nearly unknown company has sued technology companies. The complaint alleges that the 32 companies violated Patent Number 7,525,955, which is described as “Internet protocol (IP) phone with search…
Last week at AALL in Boston, I had the chance to stop by and chat with Ed Walters and his FastCase team about their latest product offering – Fastcase eBook Advance Sheets. Grouped by jurisdiction and then by month, users can download published and unpublished opinions of both federal and state courts…
On July 27th, 2012, the Sixth Circuit Court of Appeals affirmed the United States District Court for the Eastern District of Tennessee's ruling that a canine’s jump and subsequent sniff inside the defendant's car was not a search in violation of the Fourth Amendment because the jump was instinctive and not the product of police encouragement. The Sixth Circuit's affirmation relied heavily on the idea that the canine's jump into the car was “instinctive” and not the product of police encouragement.
On July 19th, Rick Quereshi filed a Notice of Opposition against Twitter’s application for the mark TWEET. Although Twitter applied for trademark protection of TWEET back on April 16, 2009, and the application was published for opposition later that year, Quereshi opposes the registration for the following reasons: 1) Twitter filed its application under an intent to use basis, yet no Allegation of Use has been filed to date; 2) Twitter has not used the TWEET mark in commerce with the identified classes of services from the application; and 3) Quereshi has been openly and notoriously using the TWEET mark in commerce via a mobile computing device since July 23, 2009. Thus, under the doctrine of common law, Quereshi claims ownership of the mark TWEET due to its prior senior use.
In one week, the opening ceremony at the London 2012 Olympics will mark the start of the summer games. Congress has embraced the Olympic spirit in the only way it knows how: legislation. Sponsored by Senator Robert Menendez (D-NJ), the Team USA Made in America Act of 2012 requires the United States Olympic Committee "to purchase or otherwise obtain only uniforms" that meet the standards of the Federal Trade Commission for labeling as `Made in USA'. The Team USA MIA Act further defines uniform to include accessories, such as ties, belts, shoes, and hats. To understand the labeling standard, we turn to the Federal Trade Commission's Enforcement Policy Statement on U.S. Origin Claims, which provides industry guidance on the use of "Made in USA" claims in advertising and labeling.
This week’s cases are more like news of the weird than any special legal precedent. Take Burke v. Air Serv. Int’l, Inc., which held that plaintiff was not entitled to rely on Westerns in the place of expert testimony. Yeah. In that case, the Plaintiff, a former British soldier, was severely wounded in an ambush…
Last week, Sprint filed several requests for the issuance of subpoenas in the U.S. District Court for the Northern District of California. The purpose of the subpoenas, according to the declarations accompanying them, is to reveal the identity of one who identifies him/herself as a 'mole' or insider in the company who may be violating Sprint's copyright. The mystery mole has a Gmail account, as well as accounts on Facebook and Twitter, and Sprint has requested that the court subpoena all three companies. The mystery mole purports to leak inside information "from deep within the enterprise," though the logo on each of its pages contains nearly illegible text that says "Not affiliated w/ SprintNextel." The cases are Sprint Spectrum L.P. et al v. Facebook Inc., Sprint Spectrum L.P. et al v. Google Inc., and Sprint Spectrum L.P. et al v. Twitter, Inc.
Yesterday, Santa Monica company EMG Technology, LLC filed a lawsuit against Google Inc. in the U.S. District Court for the Eastern District of Texas, alleging a patent violation. According to the complaint, Google's Chrome Mobile browser infringes on United States Patent No. 7,441,196, entitled "Apparatus and Method of Manipulating a Region on a Wireless Device Screen for Viewing, Zooming and Scrolling Internet Content."
The U.S. Court of Appeals for the Federal Circuit has issued a temporary immediate stay on the preliminary injunction a federal judge issued on Tuesday against Samsung for the Galaxy Nexus. In a separate order, the court denied a motion for an immediate stay on the preliminary injunction for the Galaxy Tab 10.1.
Today U.S. Magistrate Judge Leslie Foschio warned that the court is "more than suspicio[us] that" plaintiff Paul Ceglia" filed no less than five (5) motions against Facebook and CEO Mark Zuckerberg, in his lawsuit claiming a fifty-percent (50%) ownership of the company, "solely to unreasonably and vexatiously multiply the proceedings." Judge Foschio ordered Ceglia to explain within ten days why he should not be sanctioned yet again in the "contentious" litigation. This could be the second time that Ceglia would be sanctioned in the case. The case involves Ceglia's purported claims to having a 2003 contract with Zuckerberg giving him ownership of one-half of Facebook. The Silicon Valley-based social media giant and CEO Mark Zuckerberg contend that the alleged contract Ceglia claims to have is a forgery, and that the case should be dismissed. Read the new 43-page order here:
Download PDF …
Tomorrow brings one of the most highly anticipated decisions by the U.S. Supreme Court in recent years: the ruling on the constitutionality of the health-care law that is arguably the crowning achievement of President Obama's first term in office. Incidentally, tomorrow also marks the one-year anniversary of the launch of Verdict, Justia's legal analysis and commentary site.
Last week, Representative Benjamin Quayle (R-AZ) introduced the Prohibiting Back-door Amnesty Act. The Act seeks to nullify President Obama’s recent immigration policy change by rescinding various memoranda and directives that call for the exercise of prosecutorial discretion in not pursuing undocumented children. A separate bill introduced by Representative Michael C. Burgess…
Several privacy lawsuits against Google, Inc. have been consolidated in the U.S. District Court for the District of Delaware following a ruling by the Judicial Panel on Multidistrict Litigation (JPML). In In Re: Google Inc. Cookie Placement Consumer Privacy Litigation, the JPML found that "eight actions involve common questions of fact, and that centralization in the District of Delaware will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation." In a footnote, the JPML also acknowledged the presence of twelve other related actions that may also be consolidated for adjudication. In total, there are at the time of writing 16 cases consolidated in this action.
Lane V. Erickson/Shutterstock.comIn Eastman Kodak Company v. Apple Inc. et al, filed in the Federal District Court for the Southern District of New York, Apple has asked the court to withdraw the adversarial proceeding that Kodak initiated in bankruptcy court. Apple argues in its brief that Kodak’s bankruptcy proceeding would affect…
InNova Patent Licensing, LLC has filed a lawsuit against Facebook in the Eastern District of Texas for patent infringement. According to the U.S. Patent and Trademark Office, the patent (6,018,761) is a “system for adding to electronic mail messages information obtained from sources external to the electronic mail transport process.”…
Last week, President Obama announced a change in his administration's immigration policy regarding undocumented children. With an appeal to fairness and financial considerations, President Obama directed the Department of Homeland Security to focus its efforts to deport those who pose a threat to public safety or national security instead of talented young people. Candidates for Prosecutorial Discretion From Secretary Napolitano's memorandum, an individual eligible for prosecutorial discretion will have met the following qualifications:
“Juneteenth is recognized by Americans everywhere as…” The answer.…
Some noteworthy cases this week, as reported by our Daily Summary Writers. The 10th Circuit reversed a sentencing ruling for a defendant found to be practicing law without a license. In US v. Kieffer, the Court found that “By all appearances, Defendant Howard Kieffer had a successful nationwide criminal law practice.” What he…
36 U.S. Code § 110 designates June 14 as Flag Day to commemorate the anniversary of the adoption of the Stars and Stripes as the official flag of the United States by the Continental Congress on June 14, 1777. Here are some proclamations by the President and governors in observance of Flag Day.…
Google and AOL were sued for patent infringement Thursday by New Jersey-based Suffolk Technologies, LLC over their Internet search summary descriptions, or 'snippets.' Suffolk's lawsuit also alleges that AOL and Google are infringing a second patent for an "Internet server and method of controlling an internet server". The second claim alleges that AOL's Advertising.com ad platform and Google's AdSense service each infringe this patent. The lawsuit was filed in U.S. District for the Eastern District of Virginia where AOL is based. Here are more details on the patent lawsuit, and the complaint (below).
We've got three picks from our writers this week - enjoy! Don't Even Think of Parking Here Feloney v. Baye Nebraska Supreme Court (6/1/12) For several years, Michael Feloney used his neighbor Robert Baye's driveway to turn his vehicle to enter his garage. Eventually Baye decided to build a retaining wall on his driveway, which prevented Feloney from using Baye's driveway. Feloney sued Baye, requesting the district court to impose a prescriptive easement on Baye's driveway for ingress and egress. The district court granted summary judgment for Baye, concluding (1) Feloney's use of the driveway was permissive under the "unenclosed land" rule, which provides an exception to the rule presuming adverseness when the use is over unenclosed land; and (2) thus Feloney could not prove the elements required for a prescriptive easement. The Supreme Court affirmed but for different reasons, holding (1) the presumption of permissiveness arises when the land is unenclosed wilderness and does not apply in urban settings such as in this case; (2) when the owner of a property has opened or maintained a right of way for his own use and the claimant's use appears to be in common with that use, the presumption arises that the use is permissive; and (3) Feloney's use of Baye's driveway was presumptively permissive under this rationale.
Judges know fair use and parody when they see it. Especially when it comes to South Park's "distinct animation style and scatological humor" as seen through the eyes of a 4th grade character. That was the conclusion of the U.S. Court of Appeals for the Seventh Circuit Circuit today (read it below) when it affirmed a trial court judge's July 2011 decision to dismiss a copyright infringement lawsuit over the viral "What, What (in the Butt)" internet video by the singer Samwell. Here is why the decision is an important victory for parody, satire, and fair use on the Internet.
A continuing legal education company headed by Joseph Marino (inset, left), the legendary force behind a 65-year-old family-owned New York and New Jersey bar exam course, sued a former employee for alleged theft of "invaluable data" from his more recent CLE company's business. The Marino Institute of Continuing Legal Education, Inc. ('Marino' CLE') accuses ex-employee Omar Issa (inset, right) of lifting Marino CLE trade secrets, breaching a fiduciary duty to his employer "by taking technology and...leaking confidential information and proprietary information" to his competing business while still working for Marino CLE
Days after Cisco sued TiVo in Silicon Valley federal court for a declaratory judgment over four patents, the maker of "God's Machine" fired back with its own lawsuit in the Eastern District of Texas, accusing Cisco of infringing the very same TiVo patents in dispute. One of the patents being fought over is Tivo's “Multimedia Time Warping System.” If you feel like doing the time warp again with your DVR, this patent lets you record one TV program while you're watching another. Here is a list and description of the four TiVo patents being litigated with Cisco:
The big case last week was Commonwealth v. U.S. Dep't of Health & Human Servs. out of the 1st Circuit, which found Sec. 3 of the Defense of Marriage Act, 1 U.S.C. 7 (“DOMA”) unconstitutional. Section 3 denies federal economic and other benefits to same-sex couples lawfully married in Massachusetts and to surviving spouses from those couples, by defining "marriage" as “only a legal union between one man and one woman.” "Spouse" refers “only to a person of the opposite sex who is a husband or a wife.” The court applied “a closer than usual review” based on discrepant impact among married couples and on the importance of state interests in regulating marriage and tested the rationales for DOMA, considering Supreme Court precedent limiting which rationales can be counted and the force of certain rationales. More coverage at the WSJ Law Blog.
We had some cases with interesting facts come up this week. The United States Supreme Court issued a ruling on providing survivor benefits to children conceived by in vitro fertilization, with frozen sperm, after the father died. In Astrue v. Capato, Respondent mother of the twins applied for Social Security survivors benefits for the twins, relying on 42 U.S.C. 416(e) of the Social Security Act, which defined child to mean, inter alia, "the child or legally adopted child of an [insured] individual." The Social Security Administration denied the application, reading the act to entitle biological children to benefits only if they were qualified to inherit as a decedent under state intestacy law. The USSC upheld this interpretation, ruling that it was more in tune with the purpose of the statute, to provide for children who were supported by the deceased wage earner.
Facebook faces a lawsuit by new shareholders in the social networking company, filed less than a week after its IPO. The shareholders allege that Facebook misled them by filing untrue statements in legal filings with the S.E.C., failed to prevent such statements from being misleading, and did not properly prepare the documents for prospective shareholders. While another shareholder sued NASDAQ yesterday over the exchange's acknowledged trading glitches, but this lawsuit specifically targets Facebook, board members, and investment banks.
That didn't take long. A class action lawsuit was filed yesterday against NASDAQ by an individual investor accusing the stock exchange of botching his Facebook stock (FB) orders on the day of the IPO. Plaintiff Phillip Goldberg alleges that he "placed purchase and cancellation orders for Facebook’s stock that NASDAQ failed to promptly and accurately execute" last Friday, May 18, 2012, causing he and scores of other investors to suffer losses on their trades (view the lawsuit below).
Facebook's IPO on Friday brought with it problems for NASDAQ. The exchange's CEO Robert Greifeld acknowledged that NASDAQ had a host of trading glitches on the day of the IPO, including a foul-up with the trading system's ability to handle order cancellations. Now, NASDAQ's admission of its Facebook faux pas prompted an S.E.C. inquiry, and securities class action lawyers are prospecting for clients.
Judges often juggle hefty caseloads, particularly in intellectual property litigation. Knowing this, lawyers serve their clients well by making concise, memorable, and effective arguments. Take Cal Tech's attorneys, for example. On Friday, they told the U.S. International Trade Commission ('ITC') that "RIM's mobile phones and tablets are not essential to the public's health and welfare and are hardly comparable to nuclear devices or burn beds."
Today, the U.S. Supreme Court handed down three decisions: Astrue v. Capato, Taniguchi v. Kan Pacific Saipan, Ltd., and Holder v. Martinez Gutierrez. In both Capato and Martinez Gutierrez, the Court relied on the doctrine known as Chevron deference in reaching its decision.
We have some interesting employment law cases this week. At the intersection of employment, civil rights, and religious freedom comes Hamilton v. Southland Christian School, Inc. from the 11th Circuit. In that case, a small Christian school had fired a teacher after she had sought maternity leave, purportedly because she had conceived the child before her recent marriage. On appeal, the 11th Circuit reversed the District Court's grant of summary judgment in favor of the school on Hamilton's Title VII pregnancy discrimination claim, finding that Hamilton had presented sufficient evidence that the decision to fire her was more about her pregnancy and request for maternity leave, instead of her admission concerning premarital sex. As such, the Court ruled that resolving this genuine issue of material fact should be reserved for the jury.
Sure, California may be facing a $15.7 billion deficit, but the Facebook IPO has Sacramento singing, "Goodbye grey sky, hello blue." State senator Michael J. Rubio already has plans on how to spend the expected bump to the state's coffers.
A new class-action lawsuit accuses Apple of raining on iCloud users' service, charging that the company's promise that "migrating from MobileMe to iCould would be 'effortless' was one of many "misrepresentations" to consumers. The lawsuit alleges that Apple duped MobileMe customers into believing that they would get a newer, improved service, but that "their forced migration to the iCloud platform" has resulted in them "not be[ing] able to access the features they were promised by Apple."
STMicroelectronics, a Swiss maker of Micro-Electric-Mechanical Systems ('MEMS') for accelerometers and gyroscopes in consumer products like iPads and iPhones filed a patent infringement lawsuit today against competitor InvenSense, Inc. ST's lawsuit alleges that Sunnyvale, California-based InvenSense is infringing nine (9) of the company's patents being used in consumer electronic devices like gyroscopes and a "free-fall detection and free-fall protection system for portable electronics," in addition to other MEMS patents.
Last Monday, Governor Edmund G. Brown, Jr. released a revised budget for the State of California. Initially, Governor Brown had estimated a $9.2 billion budget shortfall for 2012-13, but this sum increased to $15.7 billion "as a result of a reduced revenue outlook, higher costs to fund schools, and decisions by the federal government and courts to block budget cuts." To bridge the gap, the Governor is proposing to "increase[] the personal income tax on the state's wealthiest taxpayers for seven years and increase[] the sales tax by one-quarter percent for four years." Currently, the California personal income tax rate is capped at 9.30%. Under The Schools and Local Public Safety Protection Act of 2012, the tax rate will increase as follows.
A new patent infringement lawsuit accuses Apple, Electronic Arts, Target, Whole Foods, and other companies of violating a U.S. patent "for selectively rotating windows on a computer display." The lawsuit by Rotatable Technologies, LLC, a non-practicing entity (NPE), alleges that Apple iPhones and iPads violate U.S. Patent No. 6,326,978 for letting users rotate their device displays using the patent's method.
A 1961 Illinois eavesdropping law "likely violates the First Amendment's free speech-speech and free-press guarantees," a federal appeals court ruled. The 69-page decision by the U.S. Court of Appeals for the Seventh Circuit blocks enforcement of an Illinois criminal law that made it a felony to make audio recordings of Chicago police without receiving their consent. What prompted the lawsuit?
Well, it hasn’t been a good week for the reputation of the legal profession. By now, you’ve heard that the 9th Circuit ruled on Padilla v. Yoo, finding that plaintiffs do not have a cause of action against the former Deputy Assistant Attorney General John C. Yoo for injuries suffered as a result of Mr. Yoo’s “torture memos.” The Court found that Yoo was entitled to qualified immunity under Ashcroft v. al-Kidd, because regardless of the legality of plaintiff's detention and the wisdom of Yoo's judgments, at the time he acted the law was not "sufficiently clear that every reasonable official would have understood that what he [wa]s doing violated[d]" plaintiff's rights.
Zynga, the online game maker of multimillion-dollar blockbuster games like FarmVille, Mafia Wars, and Words with Friends, sued French gaming company Kobojo today for trademark infringement over the company's Pyramidville game (see it below). At issue are Zynga's trademark claims to all games ending with ville, the French word for town or village. Sacré bleu! Zynga appears to be facing an uphill battle, however. Last month the USPTO sent the company a suspension letter halting the game maker's attempt to trademark the word Ville. on hold.
Facebook filed its Amended S-1 Registration Statement (read it below) with the SEC today, a little more than two weeks before the social media company's IPO. The company, whose NASDAQ ticker symbol will be 'FB' estimates "the initial public offering price will be between $28.00 and $35.00 per share." That would put Facebook's corporate valuation at approximately $100 billion. Of course, the company didn't forget to list a few risks.
Today Oracle asked U.S. District Court Judge William Alsup to sidestep whatever verdict the jury ultimately reaches in the company's Java code copyright trial against Google. Oracle alleged that Google violated copyright law by refusing to license Sun's Java software code, and allegedly incorporating copyright-protected source code into its Android OS for mobile devices. Oracle completed its acquisition of Sun in January 2010. Oracle's legal maneuver, known as judgment as a matter of law, argues that "no reasonable jury could find that Google did not infringe Oracle's Java-related copyrights." (Read the legal filing below)
A class-action lawsuit against Apple (read it below) accuses the tech giant of double billing customers for downloads made from the company's iTunes Store. The lawsuit filed by New York resident Robert Herskowitz alleges that Apple charged him twice for purchasing a single pop song, "Whataya Want from Me?" (Note: if you're going to get double billed for an iTunes download, it should at least be for a decent song or movie.) Here is what Herskowitz says he did to try and make things right, and Apple's response.
"Trust me, my pungent friend. You'll get what's coming to you!" Disney's new copyright infringement lawsuit against an alleged eBay purveyor of counterfeit movies appears to be dispensing advice from Aladdin's Jafar. According to the lawsuit (read it below), Atlanta resident Michael Jones has allegedly been selling 'obviously counterfeit' Disney movies on eBay using the moniker "authenticdelivery." Not surprisingly, Disney charges that the sales have involved anything but authentic movies from the Hollywood studio.
Enough already! That's the message from Judge Richard Posner, the federal judge presiding over one of many patent feuds between Apple and Motorola Mobility. Dagnabbit, Apple, Judge Posner is fed up with your legal team's motion practice! "I've had my fill of frivolous filings by Apple," he wrote in a newly released court order (read it below).
The jury in Oracle's Java code copyright lawsuit against Google began deliberating this afternoon in federal court in San Francisco, California. U.S. District Court Judge William Alsup gave the jury their final charge today: 19 pages of instructions and guidelines to use in their deliberations (read it below). Google lawyers claim that the Android OS is "substantially" different than Sun's Java code, that it used free public domain resources when developing its mobile software, and even received Sun's approval to do so.
Jerald Bovino, the holder of a U.S. Patent (No. 6,977,809) for a portable computer case made of 'resilient material' designed with 'ribs,' is suing Apple and Target, claiming that Apple's manufacture and sale of iPad and iPad 2 cases (inset, right), and Target's sale of the iPad Smart Cover, infringe his 2005 patent.
Our Daily Opinion Summary writers have picked some interesting cases to highlight this week, with one in particular cutting close to home. First up, we leave the lower forty-eight and head up to Alaska with AES Corp. v. Steadfast Ins. Co.. The case involved the village and city of Kivalina, a community located on an Alaskan barrier island, which filed a lawsuit in the U.S. District Court against AES and other defendants for allegedly damaging the village by causing global warming through the emission of greenhouse gases. AES requested that Steadfast provide a defense and insurance coverage pursuant to the terms of their commercial general liability policy. Steadfast provided AES a defense under a reservation of rights and filed a declaratory judgment action, claiming that it did not owe AES a defense or indemnity regarding the Complaint brought by Kivalina. The circuit court granted Steadfast's motion for summary judgment, holding that the Complaint filed by Kivalina did not allege property damage caused by an "occurrence" as that term was defined in AES's contracts of insurance with Steadfast.
During a recent trip to Washington, D.C., I discovered that the reflecting pool between the Lincoln Memorial and the National World War II Memorial had lost a bit of its luster. From inside the Lincoln Memorial, my gaze at the National Mall was interrupted by fencing, heavy equipment, and an empty pool. However, an aerial view of Washington, D.C. from Google Maps provided no hint of the ongoing construction. So, based on some online research, I wanted to determine when the aerial photo used by Google was taken, as well as whether Google, Microsoft/Bing or Yahoo offered the most up-to-date maps.
If you think that texting is so '90s, guess again. A new criminal case against former BP employee Kurt Mix is an important reminder that, while social networks like Facebook and Twitter may be all the rage, deleting work-related text messages from your mobile phone might get you in trouble with the law. Especially if prosecutors can prove that you obstructed justice by hiding something from a criminal investigation. In Mix's case, the investigation involved BP's deadly Deepwater Horizon oil spill in the Gulf of Mexico.
The U.S. International Trade Commission ('ITC') issued a preliminary ruling today concluding that Apple iPhone and iPad wireless devices violate Motorola Mobility's U.S. Patent No. 6,246,697. Patent holder Motorola Mobility — whose acquisition by Android OS maker Google is still pending — holds this more than 10-year-old wireless method and system patent to reduce background signal noise in wireless transmissions. The IP litigation between Apple and Motorola, however, is far from over.
Aerosoft GMBH, the German software company that makes the 'Airbus X' game, add-on program to Microsoft's Flight Simulator, sued a host of unknown 'Does' in federal court, claiming the defendants engaged in copyright infringement via peer-to-peer ('P2P') file-sharing of plaintiff's game. The Airbus X might have been a game that convicted al Qaeda conspirator Zacarias Moussaoui would have liked to play, given his self-avowed goal of piloting Boeing or Airbus 'Big Birds.'
Here are some of the more interesting opinions issued this week, collected by our Daily Summary writers. In State v. Eli, the Hawaii Supreme Court found that a police practice of asking an arrestee to tell his or her “side of the story” prior to offering Miranda warnings violates the defendant’s constitutional right against self-incrimination and right to due process. In this case, the “pre-interview” statements were thrown out, and the case remanded for a new trial. The 9th Circuit issued an opinion on intellectual property and the Superman comic. In Pacific Pictures Corp. et al v. USCD-CALA, the Court refused to protect documents included in a subpoena under attorney client privilege. In this case, an attorney absconded with his client’s intellectual property, and the US Attorney was called to investigate. The US Attorney’s office issued a subpoena for copies of the stolen property, and promised that if the complainant complied with the request, they would not provide the documents to non-governmental third parties. The Court found that since Congress has declined to extend attorney client privilege to such materials, the Court was not in the position to do it here.
Lunch at Justia is a time reserved for scholarly legal debate. Our focus recently turned to the legality of parking a vehicle along an unmarked curb outside a local Chipotle. On a day when we thought the God of Parking was gracing us with his magnificence, any semblance of karma was purely illusory. First, we pulled adjacent to the curb. From California Vehicle Code § 21458, we know the meaning of the following curb colors: (1) Red indicates no stopping, standing, or parking, whether the vehicle is attended or unattended, except that a bus may stop in a red zone marked or signposted as a bus loading zone. (2) Yellow indicates stopping only for the purpose of loading or unloading passengers or freight for the time as may be specified by local ordinance. (3) White indicates stopping for either of the following purposes: (A) Loading or unloading of passengers for the time as may be specified by local ordinance. (B) Depositing mail in an adjacent mailbox. (4) Green indicates time limit parking specified by local ordinance. (5) Blue indicates parking limited exclusively to the vehicles of disabled persons and disabled veterans. So, since the curb was not red, we were in the clear, right?
The Second Circuit overturned the conviction of programmer Sergey Aleynikov, who was found guilty of violating the National Stolen Property Act (19 USC 2314) and the Economic Espionage Act (18 USC 1832). US. v. Aleynikov (Apr 11, 2012, 2nd Cir.) The defendant was a software programmer at Goldman Sachs who worked on their High Frequency Trading (HFT) system. This proprietary internal software system ran algorithms to determine when to make trades based on rapidly changing market conditions. Aleynikov left Goldman to take a job offer at a small Chicago software company, which wanted to develop HFT software. However, before leaving Goldman, Aleynikov uploaded significant portions of the HFT code from Goldman servers to a server in Germany. Then, he downloaded that code at home, put it on a flash drive, and took it to Chicago to give to his new employer. He was arrested by the FBI upon his return to New Jersey.
Our daily summary writers chose some interesting cases to share this week. The 4th Circuit issued an opinion remanding the Rosetta Stone v. Google trademark case back to the district court for further proceedings. Rosetta Stone complained that Google AdWords infringed on their trademarks and caused likely and actual confusion for consumers. As Eric Goldman notes -- “how 2005.” Professor Goldman has an excellent and detailed post on this case and its ramifications for trademark actions against Google. Go there for details.
Our summary writers have highlighted some interesting cases this week -- all from state supreme courts. The Illinois Supreme Court ruled on an assault weapons ban, remanding it back to the trial court to determine whether the law comports with the Second Amendment. In Wilson v. Cook County, the court found that given the early stage of the litigation, it cannot be said conclusively whether "assault weapons" as defined by the ordinance fall within the scope of rights protected by the Second Amendment. The question requires an empirical inquiry, beyond the scope of both the record and judicial notice. The county has not had an opportunity to establish a nexus between the ordinance and the protected governmental interest.
A federal appeals court in New York reversed a lower court ruling in Viacom's copyright infringement lawsuit against YouTube and Google over user uploads of thousands of popular TV shows like South Park and 'The Daily Show with Jon Stewart." "A reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website." The new decision (read it below) reverses the June 23, 2010 ruling by the U.S. District Court for the Southern District of New York granting summary judgment to YouTube and Google.
Facebook's and Mark Zuckerberg's lawyers told a federal court yesterday that convicted felon Paul Ceglia's latest discovery requests should be put on hold, and that Ceglia's lawsuit claiming a fifty-percent (50%) ownership stake in Facebook should be dismissed. Lawyers at Gibson Dunn were emphatic that the court should not "perversely reward [Ceglia] for his ongoing efforts to derail the discovery process" by keeping his lawsuit alive. Perhaps more importantly, they argue, Ceglia's failure to dispute that emails he sent in 2004 to a then assistant attorney general at the Illinois Attorney General's office "conclusively proves that the [disputed] Work for Hire Document is a fake."
Facebook filed its answer and counterclaims against Yahoo! today in the Silicon Valley patent battle between the social networking giant and the fading portal. Yahoo filed its patent lawsuit three weeks ago, and Facebook fired back a salvo of patent infringement counterclaims right back at the portal. Facebook claims that Yahoo is violating the following patents:
Here is a rundown of March's highest scoring lawyers on Justia Legal Answers, along with a look at which Justia Dockets legal filings, Tech Law blog posts, and Facebook posts readers viewed the most. Justia Legal Answers’ Top 10 Legal Answerers for March 2012 Min G. Kim, 880 points, 18 answers David Philip Shapiro, 705 points, 14 answers Gojko Kasich, 600 points, 12 answers Vincent Ronald Ross, 560 points, 12 answers Andrew Bresalier, 500 points, 10 answers Daniel Marc Berman, 430 points, 18 answers Janet Rubel 400 points, 8 answers James Kenneth Sweeney, 300 points, 6 answers Benjamin P. Urbelis 250 points, 5 answers Michael Howard Joseph, 210 points, 5 answers
Martha Davis, a founding member of the '80s rock band The Motels, filed a class action lawsuit today against the EMI record label. Davis and her group are known for their 1980's chart topping hits, "Only the Lonely" and "Suddenly Last Summer." The legendary songstress accuses the label that she and The Motels originally signed with of shorting her out of music royalties due under the parties' original contract (read the lawsuit below).
We have some interesting cases from our daily summary writers this week. At the intersection of reality TV and the law comes Edmonds v. Oktibbeha County (5th Cir.). In this case, the Court upheld the denial of a 42 USC 1983 claim of a coerced confession from a minor, after the minor went on the Dr. Phil show and told a national television audience that deputies did not coerce him into confession. The Maryland Court of Appeals issued an interesting decision in a child custody case that involved a conflict of laws with Japanese family courts. In Toland v. Futagi, the Court upheld the Japanese decision to award custody of the minor to her maternal grandmother, a Japanese national. The child grew up in Japan and spent her whole life there. When her mother died, the grandmother took custody. The Maryland Court found that this decision did not infringe on the due process rights of the American father, and that the lower court properly declined to exercise jurisdiction over the child, who had no connection to the state.
East Bay soul funk legend Tower of Power filed a class-action lawsuit against Warner Music on Tuesday, charging that the record label Warner Music, Inc. stiffed them out of music royalties by mischaracterizing digital downloads as sales, instead of licenses that pay artists a much higher premium. Tower of Power co-founders Emilio Castillo and Stephen "Doc" Kupka's breach of contract case charges that their 1972 agreement (the 'Agreement') with Warner Music entitles the band to 50% of gross receipts for Warner's redistribution by digital downloads download via third parties. Warner, the band contends, intentionally mischaracterizes these digital downloads as sales to pay them at a ten-percent (10%) royalty rate under the 'sold' equation of the parties' original 1972 Agreement.
The South African holder of a U.S. patent for a Data Vending System (No. 6,799,084) sued Apple yesterday, alleging that the company's iTunes Store infringes his patent for a system that stores a digital media database, processes payments, and calculates royalties that are due to copyright holders for downloads of their music and videos. The USPTO issued the patent to Benjamin Grobler in 2004.
In an outrageous misunderstanding of students' off-campus free speech rights, an Indiana school district expelled a high school senior just three months shy of his graduation for tweeting an F-bomb from home at 2:30 AM. Austin Carroll says that he sent the offending F-bomb tweet from home, from his own computer. He concedes that he agrees with the district that his tweet was inappropriate, but says he "just did it to be funny." The Garrett-Keyser-Butler Community School District (the 'District') was not amused, claiming that he tweeted from school. The school says that it reportedly learned about Austin's tweet when he was online in school. Even if the tweet was made off campus, it still doesn't appear to have violated the school district's "Responsible Use Policy" (the 'Policy') that is largely focused on integrating technology into classroom instruction, and making students pay for repairing damaged school notebooks and iPads (read it below).
Carl Malamud of public.resource.org has a guest post on Boing Boing: Liberating America’s Secret, for-pay Laws. In it, he discusses the problem of laws that incorporate copyrighted technical standards by reference. Because the standards bodies that issue them are in the private sector, anyone who wants to view the standards (to comply with the law) must pay for a copy. Those copies can be very expensive; public.resource.org spent over $7,000 for copies of the corpus.
Watch out, Facebook users. Mark Zuckerberg's social network giant recently modified the company's Statement of Rights and Responsibilities (i.e., Terms of Service ['TOS']) to now allege that Facebook claims trademark rights to the word 'Book.' (Read it below) Oh, and in case you forgot, Facebook also claims intellectual property rights to the words 'Face,' Poke, and 'Wall' Take a look for yourself:
An 83-year-old iPhone user sued Apple this week, claiming that she injured herself during prime winter holiday shopping season last December by walking "directly into the clear glass doors" at the company's Manhasset, Long Island Apple retail store in New York. Ouch! Who was at fault here? Plaintiff Evelyn Paswell maintains that her "injuries were due solely to the negligence of" Apple.
Our Daily Caselaw Summary writers have served up some interesting cases this week: In Colorado, the Supreme Court issued Air Wisconsin Airlines v. Hoeper, which found an airline was not immune from a defamation claim by an employee under the Aviation Transportation Safety Act. In that case, the employee was authorized to carry a firearem on the planes he flew, but was reported by a trainer to be “disgruntled” and that he posed a threat with a gun. The Colorado Supreme Court upheld the defamation victory, adding that the airline was not immune from suit or defamation under the ATSA and that the record supported the jury's finding of clear and convincing evidence of actual malice.
Yahoo! Mail user Albert Rudgayzer sued the Silicon Valley web portal yesterday, charging that Yahoo's revelation of users first and last names when they send email violates the portal's own Terms of Service ('TOS'), constituting a breach of contract. He seeks relief under federal and California state law. Rudgayzer, a New York lawyer, alleges that he began using Yahoo email around October 2011. He filed the lawsuit in a pro se capacity in the U.S. District Court for the Northern District of California (read the lawsuit below).
The DC Circuit released an opinion about vaccine safety this week. In Coal. for Mercury-Free Drugs v. Sebelius, the Court found that plaintiffs did not have standing to sue the FDA for failing to prohibit the use of vaccines containing the mercury-based preservative thimerosal on young children and pregnant women. The court concluded that plaintiffs were not required to receive thimerosal-preserved vaccines, they could readily obtain thimerosal-free vaccines, they did not have standing to challenge the FDA's decision to allow other people to receive the vaccines, and plaintiffs could advocate that the Legislative and Executive Branches ban the vaccines. As a result, plaintiffs were suffering no cognizable injury as a result of the FDA's decision to allow the vaccine, their lawsuit was not a proper subject for the Judiciary.
Samsung was hit with a patent infringement lawsuit yesterday over an emoticon patent (see below). Plaintiff Varia Holdings LLC charges that Samsung mobile phones violate its 2007 U.S. Patent (No. 7,167,731) for an "Emoticon Input Method and Apparatus." Varia Holdings took a jab at the electronics giant, charging that "Samsung is a prolific patent filer that actively protects its intellectual property," but allegedly infringes the rights of others. Of course, there are a few twists to this case.
From our friends over at Google Scholar comes word last week of changes to the “Cited by” function within their legal opinions database. For those of you not familiar with this feature, “Cited by” appears as a link under items returned in a result set. For example, the first opinion returned after…
It's like a scene from the Wizard of Oz: Righthaven is almost dead as a corporate entity. Yesterday U.S. District Judge Philip Pro ordered "the transfer of all of Righthaven’s intellectual property and intangible property" — including 278 registered works filed with the U.S. Copyright Office — to court-appointed receiver Lara Pearson tasked with breaking up Righthaven's assets (read it below). The order stemmed from an earlier judgment against Righthaven's for $34,000+ in attorneys fees owed to Wayne Hoehn, a Vietnam vet who successfully got Righthaven's copyright lawsuit against him dismissed. Until last year, the Righthaven litigation machine shook down consumers for unfounded copyright violations to intellectual property. But Righthaven defendants had an epiphany moment.
A new federal class action lawsuit (see below) charges that a host of well-known social media, app, and mobile device companies stole "literally billions of contacts" from users' personal address books by illegally 'harvesting' personal data on the sly, without their knowledge or consent. The 152-page complaint seeks monetary damages under both federal and Texas state law that could be enormous, injunctive relief, equitable relief "to mandate fixes to these mobile devices and apps" to stop alleged privacy violations, as well as attorneys fees and expenses.
Election season is upon us, and an interesting opinion came out last week. In Democratic Nat’l Comm. v. Republican Nat’l Comm., the Third Circuit upheld a consent decree between the parties that restricted voter fraud enforcement actions. According to the facts in the case, the Republican National Committee (RNC) was sued for voter intimidation in 1981: The RNC allegedly created a voter challenge list by mailing sample ballots to individuals in precincts with a high percentage of racial or ethnic minority registered voters and, then, including individuals whose postcards were returned as undeliverable on a list of voters to challenge at the polls. The RNC also allegedly enlisted the help of off-duty sheriffs and police officers to intimidate voters by standing at polling places in minority precincts during voting with ‘National Ballot Security Task Force’ armbands. Some of the officers allegedly wore firearms in a visible manner.
Our Justia caselaw summary writers have suggested some interesting cases from last week’s load. The U.S. Court of Appeals for the Ninth Circuit issued a ruling in the case concerning Jared Lee Loughner, who is accused of shooting U.S. Representative Gabrielle Giffords, among others. In United States v. Loughner, the appellate court upheld the trial court's decision permitting the defendant to be involuntarily medicated. The appellate court concluded that defendant was provided with the substance and procedure demanded by the Due Process Clause before the government involuntarily medicated him: the defendant clearly suffered from a severe mental illness, he represented a danger to himself or others, the prescribed medication was appropriate and in his medical interest, and the district court did not arbitrarily deny the motion to enjoin defendant's emergency treatment.
Facebook can be a nifty tool for spouses and divorce lawyers investigating suspicions of infidelity. Facebook itself can also tip you off to unfaithfulness by, for example, suggesting friends who are also married to your own spouse. One Washington State husband, Alan Leighton O'Neill née Alan Leighton Fulk, is learning that the hard way. He faces bigamy charges (read them below) after Wife No. 1 learned about Wife No. 2 via Facebook's friend suggestion tool.
According to court documents (see below), the FBI and federal prosecutors got help from hacker Hector Xavier Monsegur a/k/a 'Sabu' a/k/a 'Xavier DeLeon' a/k/a 'Leon' to build cases against other alleged members of Anonymous, LulzSec, Internet Feds, and AntiSec hacker groups. U.S. authorities charged five accused hackers with federal criminal computer hacking violations, while Monsegur pled guilty to a variety of 'substantive hacking' violations that included targets like Sony Pictures, Fox Broadcasting, and PBS.
Here is a rundown of February's highest scoring lawyers on Justia Legal Answers, along with a look at which Justia Dockets legal filings, Tech Law blog posts, and Facebook posts readers viewed the most. Justia Legal Answers’ Top 10 Legal Answerers for February 2012 Nick Passe, 1,600 points, 32 answers Jerry Lutkenhaus, 1,011 points, 32 answers Andrew Bresalier, 801 points, 25 answers Jeffrey Moore 351 points, 7 answers Peter Navis, 300 points, 6 answers Daniel Marc Berman, 250 points, 10 answers William S. Adams 215 points, 5 answers David Philip Shapiro, 150 points, 3 answers Timothy Belt, 150 points, 3 answers Ryan P. Sullivan, 150 points, 3 answers
The selections from our Daily Opinion Summary writers are pretty varied this week covering a World of Warcraft game gone bad, a tug of war between two District Courts over Park Service limits of snowmobilers, a suit alleging negligence in the prescription of medications which led to murder, and the rights of part-owners of a dairy located in the Islamic Republic of Iran. First up, we have Laurel's pick, which she aptly labeled, "every mother's nightmare." U.S. v. Lucas US 7th Cir (Filed 2/29/12) While playing World of Warcraft online, defendant requested sexual pictures of CG, a minor. CG blocked him, but reinstated him in exchange for online “currency.” Defendant again sent sexual messages; CG again blocked him. Defendant, on release following arrest for possession of large-capacity firearms, paid to obtain CG’s address, told others he planned to kill CG, dug holes in his yard, and removed the release latch from his trunk. He amassed weapons, drove 20 hours to CG’s home, and impersonated an officer to lure CG out of the house and kidnap him. CG’s mother refused to allow defendant into the house. He pointed a handgun at her face, but she slammed the door and called police. He was arrested and pled guilty to brandishing a firearm during a crime of violence, 18 U.S.C. 924(c). The district court sentenced him to 210 months’ imprisonment. The Seventh Circuit affirmed. A district court may consider a wide range of conduct at sentencing, including acquitted conduct and dismissed offenses, and the sentencing ranges for those offenses. The court rejected arguments that the court treated defendant’s psychological conditions as an aggravating factor or impermissibly considered rehabilitation.
The federal judge presiding over the lawsuit by plaintiff Paul Ceglia, the convicted felon claiming to own half of Mark Zuckerberg's Facebook, just ordered Google to divulge Ceglia's Gmail account data and logs by March 5, 2012 Ceglia’s email accounts are at the heart of this lawsuit. Some were known, many were only recently discovered by lawyers for Zuckerberg and Facebook after an electronic forensics investigator learned about four previously previously unknown webmail accounts held by Ceglia. The electronic discovery could shed light on whether or not the contract he claims gives him a fifty-percent ownership stake in Facebook is real, or the fabrication that Facebook and Zuckerberg's lawyers say it is.
Three GOP presidential candidates got slapped with a patent infringement suit yesterday (read it below) by a California partnership that holds a patent with social media implications for the candidates' Facebook pages. EveryMD, a California partnership, contends that one of its patents that enables individual Facebook members like Defendants Santorum, Romney, and Gingrich "to create individual home pages ('Facebook Pages')." Instead of suing Facebook, however, EveryMD opted to sue the GOP presidential candidates. What makes this lawsuit particularly fascinating is that it comes on the heels of plaintiff's unsuccessful attempts to get Facebook to buy its patent. (view the patent below).
In October, we blogged about a lawsuit against the editors of tz info, the time zone database for Unix. The editors were sued by a company called Astrolabe, Inc., who claimed a copyright interest in data used to populate the database. The lawsuit was voluntarily dismissed by the plaintiff this week. It turns out the EFF got involved. According to their statement, "In January, EFF advised Astrolabe that Olson and Eggert would move for sanctions if Astrolabe did not withdraw its complaint. Today's dismissal followed."
The 10th Circuit decided an interesting FOIA case this week. In World Pub. Co. v. United States Dept. of Justice, the Court held that Tulsa World magazine was not entitled to six mugshots under the Freedom of Information Act. For more on this case, see posts on Politico and ABA Journal. The Maryland Supreme Court denied a negligence claim against the state for serving a peanut butter sandwich to an allergic child through the free lunch program. In Pace v. State, the court found that the National School Lunch Act simply establishes a subsidized lunch program to benefit children at participating schools and did not impose a specific statutory duty of care towards children with food allergies.
https://youtu.be/6AdDLhPwpp4 Yesterday, the UC Davis protestors who were pepper sprayed by campus police in response to a non-violent protest filed suit in U.S. District Court, Eastern District of California. The plaintiffs, who were students or recent graduates of the university, had occupied the campus quad to protest university privatization, tuition increases, and earlier police beatings of protestors at Occupy Cal.
Continental Appliances, Inc., a California manufacturer of a gas wall heater sold at Lowe's, sued the unknown poster of a YouTube video on Friday for claiming that its product creates "an imminent danger of fire and serious injury" because of "uncertain fuel settings." (see below) The lawsuit appears likely to fail, however. Here's why.
I’m from Chicago, where everyone knows someone who knows someone in the mob. That’s why I loved this case, U.S. v Ambrose, sent to me by Laurel. It’s chock full of good mafia stories and lingo involving a crooked Deputy U.S. Marshal and a made guy in the “Chicago outfit” who turned state’s evidence. In other criminal law cases, a defendant in the 10th Circuit was convicted of selling drugs at his apartment and for selling them within 1000 feet of a playground. Defendant challenged the definition of playground, which the court did not find convincing, holding that even if there was “one apparatus…intended for recreation of children,” then the place was a playground under the statutes. US v. West. In other words, "that's nice."
The U.S. Magistrate Judge overseeing Paul Ceglia's ownership claim case against Mark Zuckerberg and Facebook ordered Ceglia to pay nearly $76,000 in attorneys' fees to Facebook's and Zuckerberg's lawyers for having to repeatedly go to court to compel Cegila to comply with the judge's earlier orders. That is in addition to the $5,000 in sanctions that a judge order Ceglia to pay last month. U.S. Magistrate Judge Leslie G. Foschio's only reduced the $84,196 that Facebook sought in attorneys' fees by 10% in order "to 'trim' any 'fat.'" Magistrate Judge Foschio's 39-page decision and order (you can read it below) painstakingly details the legal morass that this litigation has become.
The Associated Press (AP) filed a copyright lawsuit in federal court this morning against the Meltwater Group over the company's Meltwater News product, charging that the competing site collects, stores, translates, and redistributes AP content to paid subscribers, but without paying the 165-year-old company a penny. Other online news aggregators like Google, Yahoo, and AOL pay licensing fees to use AP content, as do local and national newspapers and media sites. According to the lawsuit, Meltwater generated more than $100 million in revenue in 2010, in part because it doesn't pay a thing for content:
Silicon Valley-based solar panel giant SunPower sued five former employees and competitor SolarCity today, contending that shortly before they left SunPower, the employees connected USB drives to the company's computer network, "and used them to steal tens-of-thousands of computer files" with confidential and non-confidential proprietary information. In addition to civil damages and injunctive relief, SunPower also wants to hold the ex-employees criminally liable for violating a California law prohibiting unauthorized computer data access and fraud. The case raises important questions about what, if any, data loss prevention (DLP) systems were in place to prevent employee theft and the loss of such highly confidential and proprietary data. How could the alleged data transfer of information on hundreds of millions of dollars in sales at a Silicon Valley company occur so brazenly?
Any antitrust concerns about Google's acquisition of Motorola Mobility were satisfied in Europe and the United States today. Regulatory hurdles were cleared when the European Union and the U.S. Department of Justice's Antitrust Division each approved Google's purchase of the telecom unit. The deal bolsters Google's patent portfolio, and is anticipated to add substantial value to the company's Android mobile operating system.
Whitey Bulger, the indicted and apprehended alleged ringleader of Boston's notorious 'Winter Hill Gang' organized crime family, needs "a reasonable amount of time to review a tsunami's worth of discovery," according to Bulger's defense lawyers J.W. Carney, Jr. and and Henry B. Brennan. The statement was made in a filing with the Massachusetts federal court this morning (read the legal filing below). Just how much material?
Doug Whitman, the head portfolio manager at Whitman Capital, LLC, was indicted by a New York federal grand jury on insider trading and criminal securities fraud charges (read the indictment below). The indictment alleges that in 2006 and 2007, Whitman's firm made $900,000 in illegal profits by trading Google and Polycom stocks using material, non-public information that Whitman himself acquired to make the trades. Whitman is also charged with buying and selling Marvell Technology Group stock and options over roughly two years using insider information.
Montblanc, the German maker of fabled fountain pens and other luxury goods sued Google for help in unmasking the identities of alleged counterfeiters running Google AdWords campaigns on Google's UK search engine to hawk knockoff pens. Montblanc's lawsuit against Google asks the court for equitable relief, i.e.,, not money but a court order granting the penmaker discovery to unmask and confirm the identity of the person or entity placing misleading ads on Google.
This was kind of a slow week for our Daily Summary writers, but we did have a blockbuster from the 9th Circuit Court of Appeals: Perry v. Brown. This case involved Proposition 8, which amended the California state constitution to eliminate the right of same-sex couples to marry. The 9th Cir. chose to address the constitutionality of Prop. 8 and declined to address the broader question of whether same-sex couples had the right to marry. As a preliminary matter, the 9th Cir. held that proponents of the ballot measure had standing. The 9th Cir. held that Prop. 8 was unconstitutional because it violated the Equal Protection Clause by targeting a minority group and withdrawing a right that the group possessed without a legitimate reason for doing so. The court also affirmed the denial of a motion to vacate former Chief Judge Walker on the basis of his purported interest in being allowed to marry his same-sex partner. The mainstream media extensively covered this case -- for more information, check out the New York Times article.
PayPal was hit with a class-action lawsuit today alleging that the company violated a federal communications law by sending consumers unsolicited text messages. The lawsuit charges PayPal with violating the Telephone Consumer Protection Act, a federal law designed to protect consumers from unwarranted, unsolicited phone communication from automatic telephone dialing systems (read the lawsuit below).
The Federal Trade Commission announced Monday that it warned six (6) mobile app "marketers" that their background screening products may violate the Fair Credit Reporting Act if the makers of the products had reason to believe the reports generated by these products were being used for employment screening, housing, credit, or related purposes. Yesterday's press release (see PDF below) however, did not list the names of the either the companies marketing the apps, nor the names of any mobile applications over which the FTC expressed concern. Repeated inquiries by Justia to the FTC, however, apparently prompted the agency to name them today.
Proposition 8 ('Prop 8'), the California voter amendment that sought to ban same-sex marriages in the state is unconstitutional, the U.S. Court of Appeals for the Ninth Circuit ruled in a 128-page opinion issued this morning. You can read the complete decision below:
Here are some of last week's highlights from our Daily Opinion Summaries writers. US v. Strandhof, US Ct. App. 10th Cir., 1/27/12 The 10th Circuit Court of Appeals upheld the Stolen Valor Act (18 U.S.C. 704(b)) which makes it illegal to falsely claim to have received a military award or honor. The district court found that appellant’s false claims to a Purple Heart, Silver Star, and rank of Marine Corps captain were protected by the First Amendment, but the 10th Circuit relied on SCOTUS precedent to overturn that ruling.
The Federal Communications Commission ('FCC') ruled today that anti-abortion activist Randall Terry (inset, right) failed to show "that he is a legally qualified" presidential candidate entitled to "reasonable" broadcast TV access in Illinois. Even if he was, the FCC concluded, Chicago NBC affilate WMAQ did not act unreasonably when it refused to sell him air time to run ads on Super Bowl Sunday (Read the decision below).
In pre-Super Bowl style, prosecutors charged a Michigan man with criminal copyright violations for allegedly operating nine (9) websites chock full of pirated sports broadcast videos (read the complaint below). Separately, federal agents also seized a purported $4.8 million in knock-off Super Bowl merchandise imported into the U.S. The U.S. Attorney's message? Don't risk any high-tech copyright shenanigans with unauthorized streams of this Sunday's Super Bowl XLVI.
Today, Facebook, Inc. filed a Form S-1 Registration Statement [PDF] with the U.S. Securities and Exchange Commission in preparation for its initial public offering. Here are some observations from reading this interesting filing. Billion with a B. Companies that manufacture and sell tangible products are easy to understand. For a company like Facebook, you may be scratching your head wondering if they are making any money at all. In 2011, Facebook reported $1 billion in net income from $3.7 billion in revenue.
Here is a rundown of January's highest scoring lawyers on Justia Legal Answers, along with a look at which Justia Dockets legal filings and Facebook posts readers viewed the most. Justia Legal Answers’ Top 10 Legal Answerers for January 2012 Jeffrey Moore, 3050 points, 61 answers Brian D. Lerner, 1,395 points, 33 answers Andrew Bresalier, 1,100 points, 36 answers David Philip Shapiro 980 points, 20 answers Don Richardson, 360 points, 8 answers Paula Jeanette McGill, 350 points, 7 answers Scott Charles MacCabe 350 points, 7 answers Terrence Rubino, 325 points, 7 answers Jason F. Barnes, 300 points, 6 answers Kathryn L. Hudson, 200 points, 4 answers
GOP candidate Newt Gingrich and his campaign were sued for copyright infringement in federal court yesterday for reportedly playing the band Survivor's "Eye of the Tiger" song at Gingrich campaign events, but without obtaining rights to do so (Read the lawsuit below). Plaintiff Rude Music, Inc. is a music publishing company created by Survivor band member Frank M. Sullivan, III, and holder of rights to the song. The defendants have some explaining to do, especially since Gingrich argued at a recent South Carolina GOP debate that copyright holders should sue to protect their intellectual property rights:
A lawsuit filed by current and former employees of the U.S. Food and Drug Administration charges that the agency accessed and spied on their personal e-mail accounts after scientists and doctors alerted Congress and the media that certain radiation-emitting computer detection devices may not be safe or effective. The lawsuit filed by scientists and doctors charges that nine FDA employees (the "FDA Nine") had their private, personal, password protected email accounts on Google and Yahoo secretly recorded by the the U.S. Department of Health and Human Services, the government agency to which the FDA reports. Why? Because the FDA scientists and doctors engaged in whistleblower-protected conduct by voicing concerns about radiation-induced cancer risks allegedly involving medical devices that the agency regulated.
Facebook is readying its initial public offering (IPO) by preparing an S-1 registration statement for filing with the S.E.C. next week, and is said to be anticipating a $75 - $100 billion valuation for the social networking giant. According to a report by The Wall Street Journal, unnamed sources maintain that Morgan Stanely is likely to be chosen as the lead underwriter for the public offering, beating out Goldman Sachs and others. Will Facebook's IPO be the largest tech IPO ever?
Our Daily Opinion Summaries writers chose these cases to highlight this week. From the U.S. Court of Appeals for the 5th Circuit, we have In Re FEMA Trailers Formaldehyde Products Liability Litigation (1/23/12). This case is about the “toxic trailers” issued by FEMA in the wake of Hurricanes Katrina and Rita. Plaintiffs sued under the Federal Tort Claims Act for injuries related to their exposure to formaldehyde in the trailers, but the Court held that the voluntary, cost-free provision of the trailers to disaster victims was immunized conduct under the FTCA, and affirmed the district court's motion to dismiss for lack of subject-matter jurisdiction. From the U.S. Court of Appeal for the 10th Circuit comes SECSYS, LLC v. Vigil (1/23/12). This corruption case involves government officials in New Mexico. In it, the plaintiff sued for discrimination because they were denied a bid-rigged contract, since they would not pay the full “allegedly extortionate demand.” The Court in this case affirmed the district court’s dismissal of plaintiff’s case.
Facebook and Washington State Attorney General Rob McKenna filed lawsuits today (see below) accusing affiliate marketer Adscend Media, LLC along with company co-founders Jeremy Bash and Fehzan Ali of engaging in 'likejacking' a/k/a 'clickjacking' to deceive and trick users into giving out their personal information. "Likejacking" describes the sleazy practice of tricking Facebook users into clicking a Facebook "Like" button that triggers a malicious activity, like posting a status update in order to spam them and their friends.
Some football players consider concussions to be part of the game, much like sprains, strains, and other common football injuries. When the San Francisco 49ers benefitted from a collision that sent New Orleans Saints running back Pierre Thomas out with a concussion, its players characterized the hit as an effective way to send a message. However, when an opposing team reportedly targeted a 49er wide receiver with a history of concussions, the perspective of the local media changed. While some players are willing to hide their concussions, such decisions bear long-term consequences, as seen in the numerous complaints recently filed by retired NFL players.
Don't the patent wars involving Apple, Samsung, and Motorola Mobility feel like they're being waged almost daily? Motorola Mobility filed the latest salvo with a new patent infringement lawsuit against Apple in a Florida federal court (see below). The new case accuses Apple of, among other things, violating its patent for a "Receiver Having Concealed External Antenna." Motorola Mobility claims that it's got a lock on all mobile phones with hidden antennas. Really? Have they sued every mobile device manufacturer over this claim? When was the last time that you actually saw a mobile phone with a visible antenna attached?
The Supreme Court ruled today that the government cannot use warrantless GPS tracking devices because doing so violates a suspect's Fourth Amendment rights against unwarranted search and seizure. Writing for the Court, Justice Scalia held: that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a “search” in violation of the Fourth Amendment.
You would think that Silicon Valley giants would compensate their employees well, support their professional growth, and know that a time will come when they leave for greener pastures. C-level execs at Apple, Google, Adobe, Pixar, Intel, Intuit, and Lucasfilm apparently thought, acted, and communicated differently, however, according to newly revealed legal documents in an employee class-action lawsuit (see below).
Here’s a round-up of interesting cases from this week, as reported by our Daily Opinion Summary writers. From the US Court of Appeals for the 10th Circuit, Ochoa v. Workman, which looked at the Atkins standard of mental retardation in a capital case. In that case, the petitioner argued that the trial court erred in applying the Atkins test to his mental condition at the time of trial instead of at the time of the crime. The Court denied his petition. From the Supreme Court of Rhode Island, we have Higgins v. R.I. Hosp. This case offered an interesting application of the firefighter's rule, which bars public-safety officials from "maintaining a negligence action against a tortfeasor whose alleged malfeasance is responsible for bringing the officer to the scene of [an]...emergency where the officer is injured." The plaintiff here brought a patient to the hospital while working as an EMT/firefighter. After he delivered his patient, he assisted a nurse with a disorderly patient, who seriously injured the plaintiff. The district court and Supreme Court found the firefighter's rule barred the plaintiff's recovery even though the plaintiff's injury did not arise from the same circumstances that originally brought him to the scene.
Amazon.com faces a class action lawsuit (below) over cyber theft of personal account data from more than 24 million customers that did business with the company's Zappos.com unit. A Kentucky law firm filed the lawsuit against Zappos.com just one day after the footwear e-tailer's servers storing customer account information were hacked. According to Zappos.com CEO Tony Hsieh, customers' names, e-mail addresses, the last 4 digits of their credit card numbers, birthdays, billing and shipping addresses, phone numbers, and cryptographically scrambled passwords were stolen.
A few years ago, I was visiting Washington, D.C. and stopping by the usual tourist attractions, when I came across this plaque dedicated to Dr. Martin Luther King, Jr.
The U.S. International Trade Commission issued an eagerly awaited determination today in the ongoing Apple iOS v. Android OS patent war, giving a win for Motorola Mobility, whose $12.5 billion acquisition by Google is pending. ITC Administrative Law Judge Theodore R. Essex's initial determination was that Motorola's Droids smartphones do not violate 3 patents at issue: '828 '607, and '430 patents. The decision is not final, however, because it still needs to get the official sign-off from all six ITC members.
A Freedom of Information Act ('FOIA') lawsuit (below) by the Electronic Privacy Information Center ('EPIC') reveals that the U.S. Department of Homeland Security paid contractors to monitor Facebook, Twitter other social networks, blogs, and comments on news media websites. The documents (below) disclose that the federal government paid at least $1.16 million to private contractor General Dynamics to monitor social networks, blogs, and news media sites for "public reaction to major governmental proposals with homeland security implications." That's government bureaucratic-speak for public dissent. The legal implications of U.S. social networking surveillance programs tracking dissent of its own citizens, even with open source tools, are deeply disturbing.
As you may know, Justia provides free daily opinion summaries for all state supreme courts and the federal courts of appeal. We've asked our talented attorney writers to send us the most interesting, funny, or important cases they come across each week, and we’ll run them as a column here on the blog. Awad v. Ziriax, et. al., US Ct. App. 10th Cir. This case made the news this week, when the 10th Circuit upheld an injunction against a controversial ballot initiative in Oklahoma that would amend the state constitution to prevent courts from considering or using Sharia law. Plaintiff argued that this law would violate his rights under the Free Exercise and Establishment clause of the Constitution. The 10th Circuit found that his claims were justiciable, and upheld a preliminary injunction against the law.
Super PACs a/k/a "Independent-expenditure Only Committees" . . . they seem to be all over the news these days, don't they? These organizations, which came to fame through the 2010 Supreme Court Citizen's United decision, garnered lots of attention right out of the gate. In 2010 alone, almost 80 super PACs emerged to spend more than $60 million to elect or defeat federal candidates. (Super PACs in Federal Elections: Overview and Issues for Congress, CRS 12/2/11). Super PACs stand to be an even bigger force this year as we head into the Presidential primaries and the general election so I thought I'd share the small collection of resources I've come across lately which might help us all better understand what kind of ride we might be in for in the coming months.
With a Kodak bankruptcy reportedly in the works, the legendary photography business filed patent infringement lawsuits against Apple and HTC today (see below). Kodak, the designer and builder of the first operating digital camera, alleges that Apple, Inc. is infringing four of its digital imaging patents, and that HTC is violating five of them.
A FedEx Office employee who worked at the company for more than two decades sued his employer, claiming that FedEx fired him specifically because he was performing jury duty. (Read the lawsuit below) Federal law prohibits employers from firing, threatening, intimidating, or coercing any permanent employee who performs jury service. What makes this lawsuit particularly disturbing is that FedEx not only derives substantial profits from serving the legal community's document and technology needs, but that the company itself has benefitted directly from America's jury system.
On the Internet, you don't have to be a rocket scientist to be rich and famous. Popularity can help! Take Snooki for example. The MTV star extended the reach of her intellectual property by licensing rights to her name, images, and more in a "Snookify Me" app for the iPhone and Android. It lets users Snookify themselves and their pets. SEC filings reveal that Snooki could make some serious dough from the deal. Oh, and there's that stock thing too (see below).
The J.M. Smucker Company is mad as hell at Lodsys, and the jam and jelly maker isn't going to take the firm's demands for patent licensing fees anymore. Lodsys is a patent owner that routinely alleges that companies are violating patents in its IP portfolio that cover web commerce, information gathering, and product customization. Companies that don't agree to Lodsys's demands often find themselves in patent lawsuits. Companies like Apple and app developer start-ups. But not Smucker's. It sued first (Read the lawsuit below)
Another New York trial court judge recently denied a defense discovery request for access to plaintiffs' Facebook profiles. New York State Supreme Court Justice Philip G. Minardo, sitting on Staten Island, ruled in Temperino v. Turner Construction Co., et al. that "[t]he mere claim that plaintiffs were members of FACEBOOK, in and of itself, is not a sufficient basis" for the court to issue a subpoena for the opposing parties' Facebook records. (Read the complete decision below)
Apple's Senior Vice President of Industrial Design, Jonathan Ive, began 2012 as a Knight, a high honor bestowed upon him, and 984 other people, (see list below) by Queen Elizabeth II. More specifically, a Knight Commander of the Most Excellent Order of the British Empire, or KBE. A trusted confidant of the late Apple co-founder Steve Jobs, Ive is listed on hundreds of Apple patents.
During the holidays, I spent a few days in the great state of Arizona visiting the Grand Canyon. I was awed by the majestic grandeur of the Grand Canyon from when the rays of sunlight first washed over the canyon walls: to when the last embers of sunlight vanished into the night sky: But, nothing intrigued me more than the prominent warning decal citing the US Code.
It’s that special time of year, Justia friends, when we look back and share with you the most popular Onward blog posts of 2011. Here they are:…
Can gaming company Zynga successfully obtain trademark rights to all things ending in ville, the French word for a town or village? Answering that question is a task facing two federal courts. Before it launched its billion dollar IPO, the San Francisco-based tech company threatened to sue computer game makers for having product names containing the 'ville' suffix. Rather than accede to Zynga's demands, game makers in West Virginia and Texas preemptively sued Zynga for court declarations that their game names — Blingville and Dungeonville — do not infringe any of the company's trademark rights.
A new antitrust lawsuit filed on behalf of iPhone users could get rid of Apple's exclusivity agreements ('EA') with AT&T and Verizon. The class-action lawsuit (below) accuses Apple of violating the Digital Millennium Copyright Act ('DMCA') because the EAs do not giving consumers the "absolute legal right to modify their phones to use the network of their carrier of choice." If the plaintiffs successfully get a court to let consumers opt-out of carrier EAs, the ripple effect could be be huge. A decision for plaintiffs could potentially affect all carriers and all mobile handsets sold with locked phones with sold with exclusivity agreements in the U.S., regardless of what mobile operating system they use.