Happy Holidays from Fastcase

We wish you a very happy, healthy and joyous holiday season.


cc licensed flickr photo shared by P_R_

Lawsuit of the Day: Michael Jordan Has Beef with Chicagoland Grocery Chain

We hope that by this point in the week you have pried yourselves away from your computers, Blackberrys, or iPhones, and you are wrapped tightly in your Snuggies or Slankets in front of the fireplace with your nearest and dearest. But for those of you who are still plugged in, we have a juicy little tid-bit of a lawsuit for your entertainment.

NBA legend Michael Jordan filed a pair of $5 million lawsuits against two Chicago-area grocery stores -- Dominick's Finer Foods and Jewel Food Stores -- for using his identity without permission in ads that were published in a commemorative Sports Illustrated issue lauding Jordan's achievements. Each of the ads -- which featured Jordan's name and jersey number (23!) -- also promoted Dominick's and Jewel. The Dominick's ad and resulting lawsuit are particularly meaty -- this particular ad included a $2 coupon for Rancher's Reserve Steak -- a trademarked brand of Dominick's parent company, Safeway.


cc licensed flickr photo shared by arnold | inuyaki

Where's the beef, you ask? Why would a celebrity of Jordan's stature be worrying his pretty little head about the one-time misuse of his image and identity to hawk $2 coupons for grocery-store steaks? It's not as if his image is being used to promote something unsavory or embarrassing. Helpfully, Jordan's complaint against Dominick's (available here) explains:

"Jordan has . . . had enormous success as an endorser of products and services" and "[b]y carefully controlling the nature and frequency of his product endorsement . . . Jordan has enhanced and maintained the value of his endorsements." Indeed, the complaint goes on to reveal that "[t]he majority of Jordan's income, and his income potential, is now derived from his ability to license his name and persona to commerical sponsors. . . As a business, the licensing of Jordan's identity is just as important to him now as his professional basketball playing career once was."

So basically, Jordan's image and identity are just too darn valuable to allow even the most minor of infringements. And as it turns out, His Airness has already lent his identify to an eponymous line of steakhouses and mail-order steaks, creating the possibility that consumers could be confused about which steak products he is endorsing. So maybe Jordan's lawsuit isn't so silly after all. Read more about the lawsuit here, here, and here.

Our friendly advice to Dominick's and Jewel? Go out and get a legitimate celebrity endorsement for your products. We can think of one charismatic athlete whose endorsement might be available for quite a bargain.

Sources: Yahoo Sports, Chicago Tribune, Chicago Sun-Times, and The Business Insider.

Fastcase Holiday Reading List

Whether you are a library card-carrying book-worm or dedicated techie itching to try out the Kindle, iphone, Nook, iRex, or Sony Reader that Santa left under your tree, the holidays are a great time to relax, refresh, and curl up in front of the fireplace with a few good books. To help you get into the holiday reading spirit, we humbly share with you some recommendations from our team. Happy Holidays from Fastcase!

ED: The End of Lawyers? Rethinking the Nature of Legal Services by Richard Susskind. From The AmLaw Daily: "Susskind's The End of Lawyers? is a dry, sometimes boring, often infuriating, small-print book

written by a supercilious academic who thinks 'the law is not there to provide a livelihood for lawyers,' but rather that our incomes are, at best, a by-product that society must incur as the price of the rule of law. But you should still read it. Why? Because Susskind understands the dynamics of change, and how to manage rather than be blindsided by them."

PHIL: The Age of Turbulence: Adventures in a New World by Alan Greenspan. From the Guardian: "One of the many frank admissions Greenspan makes in this eminently readable book - part-autobiography, part-history, part-attempt to make sense of the universe - is that his powers as Fed chairman from 1987 to 2006 were decidedly limited. For all his technical expertise, he made his most important decisions about interest rates on the basis of his own judgment and anecdotal observation."

ANDY: Brave New Ballot: The Battle to Safeguard Democracy in the Age of Electronic Voting by Aviel D. Rubin. From Bloomberg.com: "For three years, Aviel Rubin and his team of computer-security specialists at Johns Hopkins studied the software for the controversial paper-free voting system that will be widely used tomorrow. In his new book, 'Brave New Ballot: The Battle to Safeguard Democracy in the Age of Electronic Voting,' Rubin argues that not only can the system be manipulated, but worse, we would never know."

JEN: Made to Stick: Why Some Ideas Survive and Others Die . . . by Dan Heath & Chip Heath. From Time Magazine: "The Heaths trumpet the notion that certain ideas are 'sticky'--a term plucked from The Tipping Point, Malcolm Gladwell's tome about how ideas and behaviors catch on in society. Gladwell, whom the Heath brothers revere, writes about "the stickiness factor" but never fully fleshes out what makes an idea sticky. That's where Chip and Dan come in."

RICHA: Chronic City by Jonathan Lethem. From the New York Times: "Lethem’s eighth novel unfolds in an alternative-reality Manhattan. The crowded canvas includes a wantonly destructive escaped tiger (or is it a subway excavator?) prowling the streets, a cruel gray fog engulfing Wall Street, a 'war free' edition of The New York Times, a character stranded on the dying International Space Station, strange and valuable vaselike objects called chaldrons, colossal cheeseburgers and some extremely potent marijuana."

KEITH: The Unbearable Lightness of Being by Milan Kundera. From Webster.edu: "A touching and sad novel, at once a compelling love story, philosophical text, and dialogue with Frederich Nietzsche -- The Unbearable Lightness of Being is all of these and more, perhaps most importantly a manifesto of embracing nihilism. Milan Kundera opens the novel with a discourse on Nietzsche's doctrine of the eternal recurrence. He rejects any view of the recurrence as being real or metaphysical. It is metaphorical he assures us."

RUPESH: Rails for .NET Developers by Jeff Cohen and Brian Eng. From Bitwise Magazine: "Learning a new language can be tough enough but learning a new framework can be even tougher. So while some .NET developers may be tempted to try out Ruby On Rails, learning both a new language, Ruby, and a new framework, Rails, may prove to be a daunting prospect. For some people, the sheer unfamiliarity of everything may prove to be an insurmountable barrier. Now Jeff Cohen and Brian Eng’s book comes to the rescue . . ."

TIM: Rigged: The True Story of Any Ivy League Kid Who Changed the World of Oil, From Wall Street to Dubai by Ben Mezrich. From the publisher: "From the author who brought you the massive NY Times bestseller Bringing Down The House, this is the startling, rags-to-riches story of an Italian-American kid from the streets of Brooklyn who claws his way into the wild, frenetic world of the oil exchange."

NINA: Working: People Talk About What They Do All Day and How They Feel About What They Do by Studs Terkel. For more on this American classic, check out this segment of Morning Edition from NPR.

JELENA: Me Talk Pretty One Day by David Sedaris. From The New Yorker: "Audaciously combining memoir, essay, and what has to be fiction... this fourth collection of short pieces offers pleasures normally to be found only in the best novels and the rare standup act that is actually funny...."

AARON: Sailor Song by Ken Kesey. From The New York Times: "The time of 'Sailor Song' is some three decades from now, when America has begun to fragment into religious cults, and the ecological crisis has begun to spin out of control. The setting is the Alaskan fishing village of Kuinak, which is populated by DEAP's (Descendants of Early Aboriginal Peoples) and assorted refugees from the lower 48 states. Into this benighted setting cruises a Hollywood movie company aboard an ultramodern yacht called Silver Fox. The plan is to turn Kuinak into the setting for a film of a children's classic called "Shoola and the Sea Lion," by a presumably DEAP writer named Isabella Anootka."

Law & Tech Roundup

Our RSS readers are exploding with law and technology news this week. Here are some of the highlights:

Microsoft (and its European customers) are having a good day. European regulators finally dropped their antitrust suit against Microsoft in exchange for the software giant's agreement to give European Windows users a choice of 11 rival web browsers rather than limiting them to Internet Explorer. Unfortunately for domestic Windows users, Microsoft apparently has no plans to extend this offer beyond the European Union. Many are heralding this as a huge victory for EU Windows users, but given how easy it is to install competing browsers on a PC these days, it is a little tough to see what all the fuss is about. For an interesting analysis of the issues, check out this article from the Seattle PI.

cc licensed flickr photo shared by jeffwilcox

Intel's day is not going quite so well. The blogosphere is exploding with reports about the FTC's commencement of an antitrust suit against the chip0maker today accusing it of "stifl[ing] competition" by systematically blocking its rivals access to the market. What does that mean? According to the FTC's complaint, Intel "threatened to and did increase prices, terminate product and technology collaborations, shut off supply, and reduce marketing support to OEMs that purchased too many products from Intel's competitors." Read about it here, here, here, and here.

cc licensed flickr photo shared by logan_x

Texters take heed: On Monday the Supreme Court granted certiorari on City of Ontario v. Quon, 08-1332. Quon presents the issue of whether government employers can read text messages that their employees send and receive on workplace texting devices. In this case, a police officer from California frequently sent personal and sexually explicit text messages from a pager provided by the police department. The department's wireless provider turned over the transcripts of the messages to the department - a move that the civil-rights friendly Ninth Circuit called an unreasonable search. The Supreme Court will review the Ninth Circuit's decision and decide whether the officer had a legitimate expectation of privacy in his text messages. Although this case arose in the context of government employment, it is sure to have implications for private companies as well. Oral arguments are likely to take place this spring, so stay tuned. And regardless of which way the high court comes out, it is probably wise to keep your private messages off of an employer-owned device.

cc licensed flickr photo shared by moriza

Sources: NY Times, WSJ, PC World, CNN, Seattle PI, and ScotusWiki.

Important Info for Members of the State Bar of Wisconsin

At Fastcase, we are constantly striving to improve our product in order to serve you better. We recently made some adjustments to the back end of our site that may require members of the State Bar of Wisconsin who use Internet Explorer to adjust their browser settings. In order to ensure uninterrupted access to Fastcase, please follow these simple steps:

(1) Select Internet Options from the Tools menu in your browser.

(2) Then select the Security tab and click on the icon for Trusted Sites.

(3) Click the Sites button and add "https://apps.fastcase.com/" as a trusted site.

(4) Close the dialog boxes, close your browser and then re-open it. Attempt to login to Fastcase again.

As always, feel free to contact Fastcase Customer Support (1-866-773-2782, support@fastcase.com) with any questions.

Why Aren't NFL Instant Replays Reviewed De Novo?

Duke Law professor Joseph Blocher asks a great question: Why Aren't Instant Replays Reviewed De Novo?

He argues that unlike trial courts, umpires and referees operating in real time are not in the best place to make the correct call.  After all, in sports, the reviewing decision-maker is viewing the play multiple times, from many angles, and in slow motion.

Cited in the blog post is a forthcoming Indiana Law Review article by Chad M. Oldfather and Matthew M Fernholz of Marquette University Law School: Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review.

Check out the comments to Blocher's post for extra entertainment. Pretty good.

Source: PrawfsBlawg

USPTO Announces "Green" Initiative

The USPTO announced on Monday that it would begin a pilot program to accellerate the examination of patent applications for "green" technologies. According to the USPTO "The new initiative, coming days before the United Nations Climate Change Conference in Copenhagen, Denmark, will accelerate the development and deployment of green technology, create green jobs, and promote U.S. competitiveness in this vital sector."

If all goes well, the average time it takes to patent a qualifying "green" technology will be reduced by about a year. That may not sound like much, but imagine what one-year head start in the market could mean for consumer technologies like automobiles.

What types of technologies will qualify for expedited treatment? You can find the full list of eligible classfications in the Federal Register. Some notable entries include: human-powered vehicles, hybrid-powered vehicles, wind-powered ships, alternative irrigation techniques, and water conservation systems. Although the list of classifications is suprisingly detailed, with so much at stake, you can be assured that this is a question that will be the soon be the subject of litigation.

Did you know: This move -- providing regulatory incentives to entice the industry to focus research and development -- is not without precedent. Back in 1997, Congress enacted a law that provided marketing incentives -- specifically 6 months of marketing exclusivity -- to drug manufacturers who conduct studies of drugs in children. This law, commonly known as the pediatric exclusivity provision, was part of the Food and Drug Modernization Act. Congress felt that incentives were needed to produce safe and effective pediatric drugs because pharmaceutical firms were reluctant to perform clinical trials on children because the pediatric market is often small relative to the adult market as well as the difficulty of obtaining informed consent for pediatric testing.

by AGeekMom

Is it working? Well, the answer to that question depends on what you think of the 172 drugs that have been granted exclusivity under this program.

Sources: USPTO, FDA

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Business Intelligence and People Finder Now Available on Fastcase!

We are delighted to announce our partnership with ReferenceLegal, the leading provider of business and consumer intelligence to the legal profession. ReferenceLegal's database contains information on more than 14 million U.S. businesses, 210 million U.S. residents, and 855,000 U.S. health care providers.

Fastcase subscribers can now harness the power of ReferenceLegal's vast public records database to run conflict checks, perform corporate due diligence, screen potential clients, opponents, and business partners, locate consulting experts and expert witnesses, and much more.

Access ReferenceLegal Through Fastcase

You can find ReferenceLegal under our Public Records search link. Simply select Public Records from the Search menu and click on the ReferenceLegal logo. (Alternatively, you can choose the Search Public Records link on the Quick Case Law Search page.) From here, you can subscribe to ReferenceLegal online on an annual or a monthly basis and instantly start researching. You can even take ReferenceLegal for a test drive by signing up for a free trial.

Fastcase is Hiring

Fastcase is a ten-year leader in the online search industry, and we are seeking a friendly, highly motivated, detail-oriented person to join our Customer Outreach team. Job duties include training customers on how to use our online legal research system, assisting customers with legal research inquiries, creating online content for newsletters and blogs, and assisting with quality assurance work.

Requirements: Strong organization, writing, and interpersonal skills. The ideal candidate will be an enthusiastic and professional team player with the ability to multi-task and meet project deadlines. Experience in social media, marketing, or legal research is a must. College degree required.

Salary is commensurate with experience. Benefits include complete health care, dental, vision benefit, a relaxed work environment, and paid vacation. Office is in terrific location in Farragut North downtown.

To apply, please send a resume, cover letter, and references to Richa Dasgupta, Director of Customer Outreach, at RDasgupta[at]fastcase[dot]com.

Fastcase’s Hidden Gem: A Second Level of Citation Analysis

One of the most powerful (and nerdy, if we do say so ourselves) features of Fastcase is also one of the most hidden. This hidden gem is Authority Check’s second level of citation analysis which analyzes the number of citations within your search results. This feature-- let’s call it “Within Search Results”-- takes a little extra effort to find – you have to check the box labeled “Show Number of Citations in Search Results” at the bottom of the Advanced Case Law Search page – but the effort is well worth it.

The idea behind Within Search Results is that the more frequently a case has been cited by other cases containing the same search terms, the more likely it is that the case is authoritative on that topic. In order to appreciate the power of Within Search Results, it helps to compare it to the first level of citation analysis on Fastcase.

First Level of Citation Analysis: Entire Database

Every time you perform a search, Fastcase automatically analyzes how many times each case in your search results has been cited by other cases in the Fastcase database. This first-level citation analysis is available under the heading “Entire Database” on the results page. By clicking on the Entire Database heading, you can instantly sort your search results so that the most frequently cited case jumps to the top of your list. It is easy to see why looking at a frequently cited case is helpful. All cases are not created equal and the more important ones tend to be relied on and cited more frequently by those cases that come after them.

But – as you may already be thinking to yourself – just because a case is cited frequently does not necessarily mean that it is being cited on the topic that you are interested in. How do you find cases that are frequently cited on your research topic? Use Within Search Results.

Second Level of Citation Analysis: Within Search Results

By taking advantage of Fastcase’s second-level of citation analysis, you can fill in this missing piece of the picture. By focusing on the cases cited most frequently by cases containing the search terms in your query, Within Search Results drastically reduces the false positives that can result from the first level of citation analysis.

If this still sounds like Greek to you, take the following example:

If you search for the phrase “separate but equal,” a phrase etched into this country’s consciousness by the Supreme Court’s decision in Plessy v. Ferguson, 163 U.S. 537, you will get several hundred results. Buried somewhere in the results list is Brown v. Board of Education, 347 U.S. 483 (1954) – a case that few would disagree is the seminal case on the topic of race-based segregation, the concept embodied by the phrase “separate but equal.”

With one click, you can sort these results by the number of citations in the entire Fastcase database – just click the heading “Entire Database” on the results page. Your search results will be reshuffled so that the Supreme Court’s decision in Allen v. Wright, 468 U.S. 737 (1984) because Allen has been cited over 1900 times.Allen, a case that considers the I.R.S. policy of denying tax-exempt status to racially discriminatory schools, is certainly on point -- but it is not the seminal case on race based segregation

If instead, you sort your results by the number of citations within your search results – do this by clicking on the “These Results" heading on the results page – Brown v. Board of Education rises swiftly to the top spot on the list!

So next time you perform a search on Fastcase, give our “Within Search Results” citation analysis a try and see for yourself.

Fastcase Tips: Constructing a Broad Keyword Search

Get your week started off right with a Fastcase Research Tip. Today, we have tips for creating a broad search query. When you are getting started on a new research project, it is usually a good idea to start with a broad search query and then narrow your query until you get an acceptable number of results. Use these tips to make sure you are not inadvertently excluding decisions that address your topic.

1. Use synonyms. Try including common synonyms for the keywords in your query. For example, if one of your search terms is car, include automobile and vehicle in your search as well.

Instead of: “fourth amendment” & car

Try: “fourth amendment” & car or “fourth amendment” & vehicle or “fourth amendment” & automobile

2. Use the wildcard operator. By truncating a search term down to the root of the word and adding an asterisk at the end, your search with automatically pick-up multiple forms of the word including plurals. For example, a search for contract* will pick-up all of the following terms:

Contractor, contracting, contracts, contracting, contracted, etc.

3. Avoid quotation marks. Rather than putting a phrase in quotation marks, try constructing a query using keywords in the phrase connected with the within operator. This will reduce the chances that you are excluding cases that use slightly different words.

Instead of: breach of contract

Try: breach w/3 contract because this picks up phrases like breached its contract, breach of the contract, etc.

Facebook: The Perfect Alibi

In the past, we have blogged about how social-networking can get lawyers and defendants in to hot water. Well, there are two-sides to every coin, and today The New York Times reports how 19 year-old Rodney Bradford's Facebook status updates kept him out of jail. Bradford's defense lawyer persuaded a prosecutor to drop robbery charges against his client for a robbery in Brooklyn by demonstrating that Bradford had an alibi -- he had updated his status in Manhattan at the time of the incident proving that he couldn't have been in Brooklyn at the time.

Free Wi-Fi for the Holidays Courtesy of Google!

Traveling during the holidays is always a harrowing, but Google is taking the edge off this year by providing free wi-fi at 47 participating airports (and on Virgin America flights). The program (which honestly sounds a little too good to be true) starts next Monday November 16, 2009 and runs through January 15, 2010. Check out whether your local airport is participating: here.

Can You Patent a Method for Speed Dating?

We've been on sort of an intellectual-property law roll here on the Fastcase blog, and today we have another IP news flash for you -- and this one is a doozie. The amicus count (70!) on this one blows McDonald v. Chicago out of the water.

On Monday the Supreme Court heard oral argument in Bilski v. Kappos, No. 08-964. The issue at bar was two-fold:

1) Did the Federal Circuit err by using the machine-or-transformation test in determining patentable subject matter?

2) Does the machine-or-transformation test prevent patent protection for many business methods and thus contradict congressional intent that patents protect "methods of doing or conducting business."

At the center of Bilski is a business-method patent application -- a patent for a method for trading commodities -- that was denied by the PTO. Business-method patents have been viewed with skepticism by many practioners and it is starting to look like the high court shares this view. According to media coverage of the oral argument, here, here, and here, the Justices were in rare form, each suggesting ludicrous patents that might also be enforceable if the Bilski patent could pass muster:

Justice Sotomayor reportedly suggested “method of speed dating" while Justice Breyer drew laughs by “great, wonderful, really original method of teaching antitrust law”. Which ever way this one goes, you have to love a case that turns Supreme Court Justices into comedians.

by katmere

Sources: Oyez; The New York Times; Am Law Daily

Innovation and Unbundling in Legal Research

In a recent post on Westlaw's (and Thomson Reuters's) Legal Current Blog, one of the elder statesmen of legal information theory, Professor Bob Berring discusses free legal information, and why he believes that it does not pose a threat to traditional legal publishers.

The topic raised quite a kerfuffle (see posts in the comments, as well as here, here, here, and here) among legal research services, both paid and free, perhaps especially over Prof. Berring's description of free law's pioneers as "volunteers" whose services his law students "play with" in his advanced legal research and writing glass. The criticism led to Prof. Berring's reply on slaw, in which he reiterated that he did not think that free services would replace the editorial services of the traditional publishers.

This is a very thought-provoking topic. Since my earlier offer on Legal Current to host a beer summit in Washington, many more people have asked to participate, so this may be a better topic for an unconference instead. Again, happy to host in DC, or perhaps in Denver during AALL 2010?

Fastcase is in a somewhat unique position on both sides of this discussion. We are a commercial publisher with more than 380,000 subscribers -- but we are also the publishers of one of the largest free law libraries online, the Public Library of Law (PLoL), and we collaborated with Public.Resource.org (and Justia) on liberating U.S. Supreme Court and Court of Appeals decisions online in bulk. With that perspective, we offer two observations:

1) The question of whether free services will replace commercial ones is a bit of a strawman. To me, the bigger issue is whether the bundling strategy of traditional publishers -- to wit, bundling services like headnotes, key numbers, or citators with primary law -- can long survive.

Because Westlaw and LexisNexis have traditionally bundled these "editorial" services with primary law, consumers who only needed access to primary law had to pay premium prices for access. When we democratize primary law, new competitors (like us) will innovate and build smarter services, perhaps even bettering the older editorial services -- just like Google's search algorithm replaced Yahoo's "editorial" taxonomy of the Web. (As a self-serving example, many people prefer Fastcase's citation analysis and data visualization tools to the older taxonomic tools.)

Free law makes this innovation possible. Some users need the traditional "editorial" services. But many do not -- they buy the editorial enhancements because they have to -- editorial services they don't need are bundled with the primary law. As Bob notes, there will always be a market for the editorial services -- but it's likely much smaller than the existing market, and inflated by bundling.

So a better question might be: If the law is democratized by the government, universities, and public-spirited companies; and if innovators build smarter tools to search primary law, won't that cut deeply into (or end?) the bundling business model of traditional publishers?

Or more concisely: Isn't free law the end of duopoly profits in legal research?

2) I love Bob's Tinkerbell analogy in his slaw post: Legal services have authority not because of some exogenous metric, but because people put their faith in them, like the belief of children and their clapping hands saved Tinkerbell in Peter Pan.

It's exactly right. The clapping sound in this market is money, and as long as everyone keeps clapping (or paying) for bundled research, Tinkerbell is going to be just fine. But what happens if people stop clapping?

Superb topics for an unconference! Denver 2010?

Do You Have a Privacy Interest In Your Gmail? Nope.

Loyal readers, we apologize for the paucity of blog posts recently. We promise to return with more juicy posts soon.

For now, check out this post from the Wall Street Journal Law Blog describing a scary (but thoughtful) opinion by a federal judge in Oregon that holds that law enforcement authorities can search your Gmail without notifying you.

iPhone Patent Battle Brewing (Links to Patents Included)

  by  flickr user kyz 

With a product as popular as Apple's iPhone (Apple recently reported that it sold 7.4 million iPhones sold in the last quarter) it was only a matter of time before the intellectual property lawsuits started pouring in. Who wouldn't want a piece of Apple's pie?

Nokia certainly does. The New York Times reported today that Nokia filed a patent infringement suit against Apple claiming that Apple infringed 10 of its patents in developing the iPhone. Nokia filed the suit in the United States District Court for the District of Delaware after licensing negotiations between the two companies broke down. Here is a copy of the complaint via BusinessWeek. (The media's interest in this suit is clearly not lost on Nokia's lawyers. The complaint reads like a press release.)

Fear not, iPhone users. Like the Blackberry lawsuit from a few years ago, this lawsuit will more than likely end in a settlement between Apple and Nokia. The only real question is how much of the iPhone pie Apple is willing to fork over.

For additional coverage on Nokia's lawsuit, check out:

Businessweek
PC World
CNN Money
CNET News
The Wall Street Journal

And for those of you who are really curious, here are all 10 of the patents at issue (from the USPTO website):

U.S. Patent 5,802,465
U.S. Patent 5,862,178
U.S. Patent 5,946,651
U.S. Patent 6,359,904
U.S. Patent 6,694,135
U.S. Patent 6,775,548
U.S. Patent 6,882,727
U.S. Patent 7,009,940
U.S. Patent 7,092,672
U.S. Patent 7,403,621

Legal Quote of the Day

This is a court of law, young man, not a court of justice.

~ Olver Wendell Holmes

Notable Articles ...

Reduced legal aid rates will cause 'mass exodus' of law firms

~ The Times Online

Casemaker vs Fastcase: Closed vs "Open" Source

~ Oregon Legal Research Blog

Emerging Internet Trends: An Analysis of Mary Meeker's Web 2.0 Summit Presentation

~ Read Write Web

Moscow court terminates $22.5 bln lawsuit against Bank of New York.

~ RIA Novosti

Legal Quote of the Day: Publius Syrus

The guilty dread the law, the innocent fear fortune.

~ Publius Syrus

Source (Google Books): The moral sayings of Publius Syrus, a Roman slave: from the Latin

Social Networking R.I.P.? Plus: How 140 Characters Can Get You Into a Lot of Trouble

This past week, we have devoted a number of posts to the intersection of law and social networking sites like Facebook, MySpace, and Twitter. Were we too late? Are these familiar social networking sites already passé? According to this article from today's Washington Post, sophisticated internet users are already looking for the next big thing.

For those who have learned that there can be a costly downside of the culture of stream-of-consciousness communication that social networks foster -- this may not be bad news. Indeed, while social networking sites maybe on the decline, litigation involving the sites is just getting started.

What do you get when you combine creative lawyers with social-networking sites that allow users to instantly share their inner-most thoughts with online masses? Answer: Online defamation suits. At least two such suits have been filed and they are making headlines.

• Music star Courtney Love learned how 140 characters can get you in trouble the hard way when she was sued by fashion designer Dawn Simorangkir over comments that Love made via Twitter and MySpace. Get the full story at ABC News.

• When a Chicago woman who tweeted a complaint about her apartment management company, the company responded with a $50K lawsuit alleging that she damaged the company's business reputation. Get the full story at Chicago Now.

It will certainly be interesting to see how courts receive these suits, but in the mean time -- you better watch what you Tweet.

Conviction a la My Space

Last month, we blogged about the ethical pitfalls of using social networks to gather evidence. Once such evidence has been gathered (ethically), is it admissible? According to the Indiana Supreme Court, it is.

Recently, The Wall Street Journal Law Blog featured the Indiana Supreme Court's decision in Clark v. State, No. 43Co1-0705-FA-127 (Ind. Oct. 15, 2009) in which the court held that an accused killer's posting on his MySpace page was admissible because it was probative of his criminal, rather than reckless, state of mind.

At trial, the prosecution read the defendant's MySpace post to him over defense counsel's objection. Here is the relevant quote from the post in question:

Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. . .

Clark, slip op. at 4. The Indiana Supreme Court rejected the defense's argument that the post constituted inadmissible evidence of past wrong deeds under Indiana Rule of Evidence 404(b). Rule 404(b) states that evidence of other "crimes, wrongs or acts" is inadmissible when offered to prove "the character of a person in order to show action in conformity therewith." Ind. R. Evid. 404(b). The court reasoned that Rule 404(b) was inapplicable because the evidence did not relate to prior acts, but to his words. The court also concluded that the defendant had opened the door to character evidence by making his character a central issue at trial.

Are "Superb" Civil Rights Lawyers Entitled to Larger Fees?

The 11th Circuit Court Appeals certainly thinks so. In Perdue v. Kenny A., the 11th Circuit upheld the district court's $4.5 million upward adjustment of attorney's fees based on the "superb" lawyering by the plaintiffs' attorneys.

Perdue was a 42 U.S.C. § 1983 lawsuit in which the plaintiffs claimed that deficiencies in the Georgia's foster care system violated various federal (and state) laws. After a long and bitterly fought battle, the parties ultimately agreed to a proposed consent decree that was designed to eliminate the greatest problems in the foster care system by implementing significant reforms.

The parties also agreed that the plaintiffs' attorneys should recover reasonable attorney's fees. You see, 42 U.S.C. § 1988, a federal fee-shifting statute, entitles prevailing civil rights attorneys to "reasonable attorney's fees." Supreme Court precedent holds that courts must calculate a base-line "reasonable" -- what is called a "lodestar" figure, but multiplying the hours billed by the prevailing attorney by a reasonable hourly rate.

Accordingly, the district court first in Perdue calculated a lodestar value of $6 million. But then the court increased the fees to $10.5 million reasoning that "the superb quality of [the plaintiffs' attorneys' representation far exceeded what could reasonably be expected for the standard hourly rates used to calculate the lodestar." Kenny A. ex rel. Winn v. Perdue, 454 F.Supp.2d 1260, 1289 (N.D. Ga., 2006)

Unhappy about having to pay such a large sum, Georgia appealed, but the 11th Circuit affirmed the district court. Georgia and appealed again, and Perdue v. Kenny A., 08-970, eventually made it before the Supreme Court.

The Supreme Court heard oral argument in Perdue on Thursday, as the Wall Street Journal Law Blog reported. Click here for a witty and insightful report window into the Q&A at the oral argument by Slate columnist Dahlia Lithwick. You can also read the full transcript of the argument on the Supreme Court's website.

Which way is the Court leaning? It's almost impossible to read the oral argument tea leaves, but if I were a civil rights lawyer, even a "superb" one, I wouldn't hold my breath.

Fastcase Docket Review: A Weekly Round-up of Notable Lawsuits

TGIF! Get your weekend started with our first ever Fastcase Docket Review - a round-up of notable (and sometimes humorous) lawsuits filed around the country.

Earlier this week, NBC San Diego reported that a number of environmental groups including the Sierra Club filed a lawsuit to protect the endangered Peninsular bighorn sheep. The suit, filed in the U.S. District Court for the Southern District of California, seeks the re-designation of approximately 1,320 square miles of Southern California as protected habitat for the sheep.

Speaking of NBC, The Wall Street Journal's Law Blog has the scoop on the Font Bureau Inc.'s $2 million "font infringement" lawsuit against the network. Font Bureau alleges that NBC engaged in "unlicensed distribution and distribution of [it's] type font face software."

NBC isn't the only company with intellectual property woes this week. According to the Washington Post, Phoenix Media/Communications sued Facebook for patent infringement in Boston, MA Wednesday. Phoenix claims that Facebook's method of creating and sharing a personal pages infringes one or more of its patents.

Did you know that there are magazines that cater specifically to inmates? Yesterday, Virginia-based Prison Legal News filed a federal lawsuit in Charlottesville, VA alleging that Gene M. Johnson, director of the state Department of Corrections, and other prison officials and employees are responsible for denying inmates access to the publication. Get the whole story at the Seattle PI.

Finally, the AP reports that a woman who was taken off of an airplane when she refused to cover herself while breast-feeding her 1-year old daughter sued the airlines on Wednesday in federal court in Burlington, VT.

Legal Ethics Pitfalls of Social Networks

By now it has become standard practice for many law enforcement authorities to mine social networking sites like Facebook and My Space for pictures of folks engaged in unlawful activity (e.g. college students engaged in under-age drinking or minors unlawfully possessing firearms) in order to bring charges.

Many resourceful litigators know that these social networking sites, and others like LinkedIn, Twitter, etc. can be "evidentiary gold mines" in civil cases as well. Indeed, if a witness in a case has a profile on a social networking site, an attorney may be able to dig up some pretty juicy (and free) information that could be used to impeach the witness or gain settlement leverage-- all without leaving the comfort of her computer terminal.

But before going out there and "friending" witnesses willy-nilly, attorneys should carefully review their state's rules of professional conduct with an eye to whether any of the rules could be implicated by this type of investigation. Here are a few Model Rules of Professional Conduct that could come into play. Has your state adopted a version of these rules?

• Model Rule 4.2 restricts a lawyer's ability to communicate with a represented person about a given matter without the knowledge and consent of the person's counsel. "Friending" a party or witness represented by counsel could clearly run afoul of this provision.

• Model Rule 4.3 addresses a lawyer's communication with unrepresented persons. Again, reaching out an unrepresented witness on a social-networking site could land an attorney in hot water if she is unclear about her identity or her role in the relevant matter.

• Trying to side-step ex parte contact rules by using a third party intermediary is a bad idea for many reasons. It could also violate Model Rule 8.4 as The Philadelphia Bar Association Professional Guidance Committee recently opined in an advisory opinion.

For more information: If you are are going to be in the Bay Area later this month, you may want to check out U.C. Berkley School of Law's Social Networks: Friends or Foes? Conference which will explore many of these issues.

Sources: The American Bar Association, the Philadelphia Bar Association, Time Magazine, ABC News; Rocky Mountain News; The Rome News Tribune.

Legal Quote of the Day: Publius Syrus

Guilty men beg, the innocent are indignant.

~ Publius Syrus

FTC Cracks Down on Payola in the Blogosphere

Under the FTC's latest revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising, bloggers who fail to disclose payments they have received from the subjects of their reviews may face penalties of up to $11,000 per violation. The new regulations, published at 16 C.F.R. 255, go into effect on December 1, 2009.

As you might imagine, the new regulation has given bloggers something to, well, blog about. Here is a sampling of reactions from the blogosphere.

• "What Would Google Do?" author and blogger Jeff Jarvis, warns that the new regulation is based on faulty assumptions and is overbroad in its scope.

• David Johnson at Digital Media Lawyer Blog analyzes the risks the new regulations create for word of mouth advertising.

• Jim Harper at Cato @ Liberty denounces the new regulation as an assault on freedom of speech.

• Henry McCracken at Technologizer lauds the FTC's good intentions but thinks that by including bloggers who receive products for review from manufacturers, the regulation casts too wide a net.

• Brennon Slattery at Today @ PC World suggests that the FTC's hands-on approach to the internet is a good thing but acknowledges that it may raise some privacy concerns.

• Thomas Jefferson School of Law Professor Deven Desai gives his take on the regulation at Madisonian.net.

Sources: FTC Press Release, The Washington Post.

Watch C-SPAN's Supreme Court Documentary Online

C-SPAN is running a program special focusing on the Supreme Court this week. They've developed an interesting and engaging 90 minute documentary of the Supreme Court with interviews both of active and retired justices.  Watch it at the link below:

C-SPAN: The Supreme Court: Home to America's Highest Court

Source: C-SPAN

Supreme Decision: Gaming the Supreme Court?

Who is the newest female Supreme Court justice? If you guessed Justice Sonia Sotomayor, then you guessed wrong. We are talking about Justice Irene Waters, a member of the fictional high court in “Supreme Decision”, a brand new online game developed by Our Courts. Our Courts is a civic education project spearheaded by Justice Sandra Day O’Connor that aims to teach students civics and inspire them to be active participants in our democracy.

Can games like “Supreme Decision” improve civic education in America? According to Justice O'Connor, only one-third of Americans can name the three branches of government, so it certainly seems worth a shot.

This Sunday, The Washington Post published an entertaining review of "Supreme Decision" by Above the Law bloggers Kashmir Hill and David Lat.

To try the game out yourself, click here.

Sources: The Washington Post, Above the Law, Our Courts, The Roanoake Times.

White House Clamps Down on Texting While Driving By Federal Employees

On Wednesday evening, President Obama signed an executive order banning texting while driving by federal workers. Specifically, the order prohibits federal employees from texting while driving government vehicles as well while driving their own vehicles if they are using cell phones paid for by the government. You can find the full text of the new legislation on the White House’s website.

The New York Times reports that federal legislation banning texting by bus drivers and truckers who travel across state lines is also in the works. This move by the federal government continues the trend of anti-texting laws recently enacted by at least eighteen state and local governments.

For more information about the anti-texting legislation in effect around the country, check out the Insurance Institute for Highway Safety’s website.

Source: The New York Times.