Articles Posted in Litigation

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.”

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.

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.

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 town of Irwindale. The city allegedly received several complaints about the facility and as a result arranged to meet with a representative from the company to address the problem. Although the representative reportedly agreed to take measures to correct the problem, there was no change in the emanation of offensive odors from the factory.

According to the complaint, the city issued a courtesy notice, and after several failed attempts to discuss the issue with Huy Fong Foods, it sent an official notice of violation. Ultimately it filed this lawsuit  asking for the factory to be shut down until a solution is proposed and implemented.

Representatives from Huy Fong Foods have reportedly warned that the price of the popular hot sauce could increase as a result, but that seems trivial in light of the citizens of Irwindale  apparently having to breathe noxious fumes akin to pepper spray.

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.

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 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 over 600 years, juries in the English and American legal systems have been 12 people (men, traditionally—which highlights another interesting aspect of this case with an all-female jury panel).

In 1898, the U.S. Supreme Court ruled in Thompson v. Utah that the Constitution requires a jury to be comprised of exactly twelve persons. However, in 1970, the Court revisited that holding. After assessing the legislative history of the Sixth Amendment and the purpose of the jury, the Court in Williams v. Florida held that Florida’s law permitting a six-person jury in a criminal trial does not violate the Sixth Amendment’s guarantee of the right to a trial by jury. The Williams Court reasoned as follows:

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 and are no longer subject to copyright restrictions.

This saga began when Carl Malamud of Public.Resource.Org began buying copies of privately issued, copyrighted building codes and putting them up online. These codes were incorporated by law into federal and state statutes, so Carl believed that they should be publicly available – a  proposition we agreed with.

When Attributor, an agent for SMACNA, discovered the codes on Public.Resource.Org, they sent a DMCA takedown notice. Public.Resource.Org now seeks a declaratory judgment from the federal courts that it is not infringing. It asserts that since these standards were incorporated by reference into federal law, the manual is now “the law of the United States and compliance with the 1985 manual is mandatory,” and thus is part of federal law – which is not subject to copyright.

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:

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).