Thursday, October 29, 2009

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.

Thursday, October 22, 2009

iPhone Patent Battle Brewing (Links to Patents Included)



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


Casemaker vs Fastcase: Closed vs "Open" Source


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


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




Legal Quote of the Day: Publius Syrus

The guilty dread the law, the innocent fear fortune.
~ Publius Syrus


Sunday, October 18, 2009

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.

Friday, October 16, 2009

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.

Thursday, October 15, 2009

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.

Friday, October 9, 2009

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.






Thursday, October 8, 2009

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.

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.





Legal Quote of the Day: Publius Syrus

Guilty men beg, the innocent are indignant.

Publius Syrus

Tuesday, October 6, 2009

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.
  • 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.

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

Monday, October 5, 2009

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.

Friday, October 2, 2009

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.

Thursday, October 1, 2009

Second Amendment Redux: McDonald v. Chicago Roundup

Less than 48 hours after the Supreme Court granted certiorari in McDonald v. Chicago (08-1521), the blogosphere is already reverberating with reactions. The question presented in McDonald is “Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”

In other words, the Supreme Court will tackle the knotty question of whether to extend the landmark holding of District of Columbia v. Heller, 128 S. Ct. 2783 (2008)--that the Second Amendment entitles citizens to keep hand-guns in their homes for self-protection--to trump state and municipal regulations. As it stands, the Second Amendment protections established in Heller explicitly apply only to federal regulations.

Justice Sotomayor may be the newest member of the Supreme Court, but McDonald will not be her first time at the Second Amendment rodeo. Before she was elevated to the Supreme Court, Judge Sotomayor, was on the Second Circuit panel that decided Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009). Although the plaintiff’s weapon of choice in Maloney was a chuka stick rather than a handgun, the issue was essentially the same: whether the state’s ban on these weapons ran afoul of the Second Amendment’s grant of the right to bear and keep arms. The Second Circuit, like the Seventh Circuit in McDonald, declined to extend the Second Amendment’s protections to state regulations, leaving that task for the Supreme Court. See 554 F.3d at 59.

What will Justice Sotomayor do with the issue now that she (along with her Supreme Court colleagues) has the power to decide it? We will be watching.

For additional McDonald v. Chicago coverage, check out:

Oregon State Bar Makes the Switch to Fastcase!

Welcome to members of the Oregon State Bar -- in partnership with Fastcase, you now get access to the smartest tools for online legal research!

This exclusive member benefit includes Fastcase’s patented online legal research system, the smartest set of tools for online research. On traditional research services, this access costs thousands of dollars per year. In this partnership, it is offered by Fastcase and the OSB for free through the OSB website, http://www.osbar.org/, with no monthly, hourly or time-based fees.

“We are excited to bring the Fastcase library to all OSB members,” said Gerry Gaydos, President of the Oregon State Bar. “We thoroughly considered the benefits offered based on the needs of our members and determined that Fastcase is by far the smartest and most user-friendly online legal research provider. We know OSB members, both large firms and solo practitioners alike, will be pleased to take advantage of this free member benefit.”

The Fastcase benefit includes judicial opinions and statutes from all 50 states, as well as federal district courts, federal bankruptcy courts, nationwide federal court of appeals cases, and the U.S. Supreme Court. The Fastcase benefit also includes extensive Oregon libraries, such as court rules, Attorney General Opinions, administrative regulations, statutes, session laws, workers’ compensation opinions -- all integrated in the Fastcase website -- and much more.

But more important than the scope of the libraries are Fastcase’s powerful legal research tools, which make finding the law easier than ever. The benefit includes data visualization tools that plot search results on an interactive map, integrated citation analysis tools, a dozen ways to sort the most relevant search results to the top of the list, dual-column printing, batch printing, customized search histories, and customized libraries of favorites. Together, these tools represent the fastest, easiest, and smartest way ever to find the law.

Today more than 380,000 lawyers trust Fastcase for their legal research, through our retail service at http://www.fastcase.com/, through our partnerships with 17 state bar associations, or through dozens of other membership organizations who partner with us. We're excited to be growing all the time, and making Fastcase better and smarter every day!

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