Quote of the Day - You get fifteen democrats in a room, and you get twenty opinions.
Senator Wrongly Contends Bloggers Aren't Journalists
Senator John Cornyn has taken the position in response to the pending Free Flow of Information Act that bloggers are not journalists. He claims, "The relative anonymity afforded to bloggers, coupled with a lack of accountability, as they are not your typical brick-and-mortar reporters who answer to an editor or publisher, also has the risk of creating a certain irresponsibility when it comes to accurately reporting information," in his statement to the Senate Judiciary Committee, repeating comments made earlier.
While MIPTC rarely takes an affirmative position on an issue, Senator Cornyn is for the most part wrong. He may be the co-sponsor of this bill with Senator Patrick Leahy, which entitles him to state what he thinks his bill means, but his proposal misses the mark. Certainly there is some merit in limiting the application of this law to anonymous bloggers, just as there would be to limiting the application to an anonymous journalist. That limitation, however, is the extent of the validity of his comment.
The notion that bloggers don't deserve protection under a shield law because bloggers don't report to editors - and thus risk inaccurate information - shows that the Senator hasn't read the news lately. Even the Grey Lady makes mistakes on important, national issues, even with the benefit of high-profile, long-in-the-tooth editors. In fact, the evidence is quite the opposite. Bloggers collectively edit each other, a more powerful tool than a single editor.
Searches on Technorati report that this issue hasn't significantly made its way into the blogosphere. Perhaps it's time we give some thought to this issue. Compare our relative lack of involvement on this point to the issue surrounding the Indian Institute of Planning and Management's firing of blogger Sabinis because of a critical post on the IIPM. Then, according to MSNBC (scroll down to second post, but first read the post on Cornyn's take on pork funding), "Sabnis told fellow blogger Amit Varma, 'You know, we bloggers are always writing about principles, about freedom of speech, about standing up for what we believe in, for the truth. It's very easy to write all that. But I'm being tested on those principles in real life. If I don't stand by those principles now, I will lose all respect for myself.' " Some 900 posts later, the IIPM has lived to regret taking on the blogging community.
William Safire has it right, as noted in the second C|Net link above, "I don't think journalism should profess to be a profession. I think the lonely pamphleteer has the same rights as The New York Times."
California Recreational Use Statute Protects Homeowners
Can a dollar make you liable? In a"slip and fall" case involving a horse and its rider, the answer is both yes and no. Let me explain why. In the Rancho Santa Fe area of Northern San Deigo County, there are some forty miles of public horse trails, and portions of those trails cross easements given to private homeowners to build and maintain driveways across those trails to access their homes.
Homeowners Janice and Jeffrey Weitzman resurfaced their driveway, ultimately making it more slippery for horse riders, and after one horse slipped and fell, the RSF Association, as part of its responsibility to maintain the trails, put warning signs up on either side of the homeowners' driveway. The Weitzmans, apparently not horse riders, claimed they did not know why the Association put up the signs, although it's not a matter of rocket science.
Add into this mix rider Marilyn Miller, who paid dues to her riding club, which in turn paid some of those dues to the Association to help maintain the forty miles of trails. The Weitzmans were not paid. In addition to the maintenance fees, Ms Miller's riding club paid $1.00 / year to rent space where the riding club's stables were located. So, it's not really a dollar at issue, but the maintenance fees as well.
As you've likely figured out by now, Ms. Miller's horse slipped and fell on the Weitzmans' driveway, injuring her. In turn, she sued both the Association and the Weitzmans. Section 846 of the California Civil Code provides recreational immunity to homeowners from individuals who access their property for recreational purposes. Unless the individual pays for the access, the immunity attaches as long as the homeowners did not willfully or maliciously fail to warn the individual about a hazard.
So here, Ms. Miller was not successful in her case against the Weitzmans, but did recover from the Association, despite the warning signs. As far as the Weitzmans are concerned, the jury's decision makes sense. Between the Association and Ms. Miller, however, the jury assessed forty percent of the liability to Ms. Miller's own negligence, and sixty percent to the Association.
How-to Guide For Handling Derivative And Class-action Corporate Suits
If you're involved in either a shareholder class action suit or a derivative suit, there's a good primer available on how to handle them if you're on the corporate side, and how not to, if you're on the plaintiff's side. In the just-decided case of Grosset v. Weenas, a plaintiff made the mistake of selling his stock and trying to maintain a derivative action, which the Court disallowed based on the continuous-ownership doctrine.
It's the old "if you want to play, you have to pay" rule. At least in Delaware, where this company was incorporated, that's the rule. If you want to maintain a derivative action against the corporation, then you better own stock in the corporation during the entire time that you're suing the corporation. In California, where the suit was brought, that rule will now be accorded the same respect. This case, along with the related cases, gives both sides a pretty good idea of how tactics in these actions work out.
Our case, Grosset, was actually a piggy-back case, riding the coattails of the separate, but original, class-action lawsuit filed in New York that challenged the corporation's directors because the stock dropped from $126/share to $10/share, and alleged the directors sold their shares for a preferential profit. The piggy-back aspect of the case occurred when one of the shareholders, independent of the class-action suit against the corporation, brought a separate derivative suit against the directors of the corporation.
The whole mess initially attracted a lot of attention. Even so, the class-action case was dismissed, but is now on appeal in the Ninth Circuit. After that dismissal, the corporation merged with another corporation, and purchased the shares of the derivative shareholder. The derivative shareholder was dismissed from the suit, but the court allowed a substitute shareholder to maintain the derivative action. The merger would prove to be the undoing of the derivative action.
That's when the corporation got smart. It formed a special litigation committee (see page 18) and hired a retired judge and a retired admiral to investigate the claims With the assistance of a separate attorney and after reviewing thousands of pages of documents and interviewing hundreds of witnesses, the SLC issued a sixty-four page report finding that there had been no misdeeds relating to the directors' sale of stock, the sharp price fall of the value of the stock or representations in the corporation's securities filings.
The independence of the two members of the SLC, along with their independent counsel, gave the Grosset Court the "business judgment rule" confidence to dismiss the derivative action, although the Court hung its "opinion hat" on the hook labeled "standing." Once the derivative shareholder's stock was repurchased in the merger, he lost his continuous ownership of stock, and along with it, his standing to sue the corporation.
In legal terms, that's "point, set, match."
Trademark Infringement Claim Rides Off Into The Sunset
A horse is a horse, of course, of course, unless the horse is the famous ... polo pony? To analogize an old television show (link has sound) if you will forgive me, that's essentially the decision of this New York jury, as reported by the Associated Press.
You have likely seen Ralph Lauren's polo pony on preppy shirts, especially if you live on the right coast. (Out here on the left coast, we are not so much a slave to fashion, where the logos are not nearly as popular.) The U.S. Polo Association wanted to use the logo of a polo pony for their Jordache shirts, but when they did, Polo Ralph Lauren sued for trademark infringement. On the USPA site, if you click on this link, you get a disclaimer that the USPA is not affiliated with Ralph Lauren, but that warning apparently didn't satisfy the large merchandiser.
Just yesterday, the jury found that three of four of the USPA/Jordache shirts did not infringe Ralph Lauren's design. The Polo Association declared a victory, and Ralph Lauren will now decide whether to appeal the decision after its defeat and get back on that horse and ride.
New Sentencing Guidelines To Be Applied To Convicted P2P File Swapper
File swapping just became more dangerous. Upon conviction, offenders can now be sentenced based on the volume of files illegally swapped, and that volume can be based on an "estimate." Within the guidelines, it's possible for judges to impose fines of up to $250,000 and prison terms of up to three years.
The first application of these new sentencing guidelines may come in the case of 19-year old Curtis Salisbury, who plead guilty to copying two movies and then distributing them on the internet. The sentencing guidelines under the Family Entertainment and Copyright Act allow for punishment to be based on the estimated number of uploads of the movie files, as well.
Coast To Coast Internet Radio Program On Bankruptcy Abuse and Consumer ProtectionThe new Coast to Coast internet radio program, with my co-host Robert Ambrogi, discusses the new Bankruptcy Abuse and Consumer Protection Act of 2005. We take up the discussion of this new bankruptcy law that has both the bankruptcy courts and bankruptcy attorneys' offices swamped. Our special guests are Attorney Henry Sommer, a leading authority on consumer bankruptcy and Editor-in-Chief of Collier on Bankruptcy from Philadelphia and Attorney R. Gibson Pagter, Jr. a bankruptcy lawyer from the firm Pagter and Miller, APLC, of Santa Ana, California. Join us as we sort through the first major revision in U-S bankruptcy law in a quarter century. Click on the podcast icon below, or download it from MIPTC's podcast RSS feed.
Rating Violent Video Games May Become Do It Yourself
Just as soon as a law gets passed, it gets challenged - and it hasn't even taken effect yet. May It Please The Court warned you last week this challenge would be filed. The video game industry attacked the new law, scheduled to become effective on January 1, 2006, prohibiting the sale of violent video games to minors.
Two industry groups, the Video Software Dealers Association and the Entertainment Software Association joined forces to overturn the statute because they believe it amounts to censorship. According to the ESA's site, President Dan Lowenstein said, "It is not up to any industry or the government to set standards for what kids can see or do; that is the role of parents. Additionally, everyone involved with this misguided law has known from the start that it is an unconstitutional infringement on the First Amendment freedoms of those who create and sell video games."
Not all agree that it's a First Amendment issue.
The Parents Television Council instead applauded the new law and said, "Medical research, specifically a recent study published in the Journal of Adolescence, shows that these games cause aggressive and hostile behavior in children. Such a simple, commonsense solution such as this law protects our children without interfering with the rights of adults."
No matter what your perspective, you can go to the Entertainment Software Rating Board site and get ratings on the games and make your own decision while this battle is played out in the courts.
Blawg Review #28
Trial By Fire
Here's May It Please The Court's Blawg Review #28. Since this post is written by a defense trial lawyer, this Blawg Review takes the form of a trial, from just before opening statement through appeal and a possible settlement. If you've watched Perry Mason or any number of other lawyer shows, then you know most of what your about to read; if you're a lawyer, you've seen this sequence before. Rest assured, though, no one's actually on trial here. The idea behind the theme was to lend a familiar structure, and see what round pegs could be pounded into square holes, since the blawgosphere doesn't follow the same convention.
At most, the lawyers who write these blawgs are on trial, to be judged by you, gentle reader. In MIPTC's opinion, it will be the first time a trial results in all winners and no losers.
Before we get started, there are a few Motions in Limine that the MIPTC Old English Judge (drawn by the author of Conservative Crust and modeled after Justice Bullingham on Rumpole of the Bailey) has ordered be observed, which will give you a bit more information about this site if you're willing to play along. Think about whether you want to follow the Judge’s orders. After all, do you really want to pick a fight with the judge? MITPC recently underwent a design change, and it added a few new features, including some that involve flash animation and sound, with kudos to the design team featured at the very bottom of this blawg page. If you're a first-time visitor and had your speakers turned up, you may have seen and heard the quill in the masthead scratch out "May It Please The Court," the name of this blawg. If you didn't, then hover your cursor over the inkwell until it turns into a hand, and with your speakers on, then click the inkwell once.
For comparison's sake, if you want to see MIPTC's old design before this new look, then visit the Way Back Machine. Thanks to Leonard Rivkin, Esq., MITPC now holds the .com address that he used. That's why his photo and book, May It Please The Court, are over there on the left navigation bar. MIPTC also offers translations of its pages, and it's ADA-compliant, offering you the option of a full-text page.
You may likewise notice (if you're paying close attention) the masthead's wax seal sparkle. It occasionally happens, but there's nothing that triggers it. There are a couple of other gems, one of which we will introduce now to get your attention. Actually, you want to get the Old English Judge's attention, so run your cursor up to the Old English Judge in the masthead (I'm assuming here your speakers are still on), and click just once. Be patient, more will come later. Yes, the "ahem" is mine. The permalink to this post is the folded-over piece of paper icon to the right of the printer icon, both located immediately below this post. The printer icon will give you a clean copy of this post, sans ads. As with every trial, the Judge warns everyone to watch the ethical issues. Ben Cowgill highlights an upcoming October 19 ABA Connection teleconference that he's hosting on the ethics of law firm marketing.
In order to conduct the trial, we've got to pick a jury, so we'll have to voir dire the jury to see if we can empanel a jury of your peers. Looks like we've got one member already - you, gentle reader, so please have a seat in Juror Chair number one, and we'll start the questioning of the other juror candidates. First, we have Blawg Review Contributing Editors - four of them - to welcome. There's Kevin Heller, Michael Cernovich, Evan Schaeffer, and one anonymous juror, the Editor 'n' Chef (no, I don't think that last link is "Ed." - as sometimes signed - it's just an interesting blog that has the same moniker). Although MIPTC discovered the Editor's name in the juror questionnaire, due to privacy reasons, I have to demur from revealing it. That gives us five, and we're going to sit a six-pack jury here since we're in federal court, so we need one more juror. Since I'm writing this Blawg Review #28, I guess that means me, Craig Williams, will have to sit as juror number six. Another generally unknown MIPTC feature can be seen with a click of your mouse on my photo in the left navigation bar.
OK, we're got our jury selected, so we can call the docket. Here's another MIPTC Motion in Limine. Please once again run your cursor up to the Old English Judge and click just once (again, speakers on, please). Great! The bailiff has called the docket of Blawg Review #28, and we're ready for the trial to start. Remember, no tampering with the jury now that we’ve got it seated. Editor Sean Sirrine at Objective Justice thinks that you should be upset when you read the links in his post.
This trial starts off with news of an accident that will likely spawn numerous personal injury trials, and some sought by a blogger. Enrico Shaefer at Traverse Legal takes a look at the Ethan Allen ferry disaster, and writes a post arguing that it’s no freak accident. Attorney Shaefer posts a question about his unusual usage of blogs and invites your comment: “Is this ambulance chasing with blogs or a valuable public service? You decide.”
The comment box is open. Not only does MIPTC give you the opportunity to submit written comments, but you can leave either an audio comment by calling 206-338-3088, or you can submit a video comment by attaching your video clip to an email and sending it to the address at the end of this post. We post all three types of comments. Side note here: because of comment spam, you can't submit written comments with a URL, but if you'll send me an email, I'll post it for you.
If you don't like boat accidents, here's another plaintiff's case for you: the second major Vioxx trial, now pending in New Jersey. It was featured on last week's internet radio program on the Legal Talk Network, Coast to Coast, hosted by in part by Bob Ambrogi. You can either play (link starts audio) the thirty-minute show or download it (link starts download after free registration). The previous week's show on diversity among bloggers featured, among others, Lisa Stone and Monica Bay. Tune in for next week's show (available late Tuesday) on the new bankruptcy code.
With at least two cases to put in front of the jury, the trial gets underway, and on to other blawgosphere topics.
As we recover from Hurricane Katrina, we've all seen the damage to the Superdome in
Thankfully, Matt Homann never does, however. Over at the [non]billable hour, Matt and Dennis Kennedy are planning and plotting for BlawgThink, a unique seminar you might want to attend if you’re looking for some stimulation. Speaking of conferences, if you missed the one on Knowledge Management in Chicago, then Joy London's got such a wonderful roundup that you won't want to miss a thing.
Law Technology News Editor Monica Bay, who doubles as a New York Yankees cheerleader and the writer of the graphically-enhanced and her always spot-on blawg, The Common Scold, makes a motion to nominate several previous blawg reviews as "beyond kewl" (to steal a phrase from elsewhere in her post). Equally important is Mon's welcome of the Blawg Review to the stable of Law.com bloggers, of which MIPTC is one, too (just for the sake of full disclosure). You know, that big, honkin' ad up there? Sympathies have been extended by Mike Fox for the Yankees' loss now that the Angels have dispatched the boys of summer back to their dugout.
Monica will get no argument from this juror. The posts she highlights deserve a look from you, gentle reader. Now, assuming our trial included a class certification issue, we’d want to know what Kimberly Kralowec over at the UCL Practitioner says. In her well-crafted summary of a recent California law on the subject,
Mergers are here to stay, proclaims Bruce MacEwen, the leading voice on law firm economics. If you have any question about how law firms should be run, Adam Smith, Esq. is required daily reading. My CFO reads it every day, and frequently informs me how the law firm should really be run. WLF’s success is in part due to Bruce’s guidance. Thanks, with a hat tip and deep bow to Bruce, even though I'm not sure he approves of merchandising. Don’t miss Rees Morrison, either. His blog, Law Department Management, is a must-read, too. And one more, Prism Legal, if you need some consulting advice.
While you’re out there running a law firm, the Greatest American Lawyer, superhero “changing the way law is practiced” advises against using your own name in the title of your firm, especially given lawyer’s egos. Be careful, though, before you go out on a limb. Read the comments to that post first. Hmmm. Maybe I should rethink “WLF | The Williams Law Firm, PC.” All three types of comments here at MIPTC are open, too.
You can take some solace, though. As Justice William W. Bedsworth points out in A Criminal Waste Of Space (hosted by MIPTC), no matter how bad you think it gets in your practice, you never had to represent Mr. Favel as a defendant.
Blawgmother and appellate lawyer extraordinaire Denise Howell groks the conflict between the Grokster decision and the DCMA safe-harbor provisions. She claims it’s a bit dense and esoteric, but she skillfully explains a conflict that needs resolution. So, if you’re a defendant or would-be defendant in a suit that asserts copyright infringement under third-party liability theories or just otherwise interested in infringement, mosey your mouse over to Bag and Baggage for the full details.
Well, maybe quits, if you’re a Big Law Associate. If you’re tired of trials, big law or just looking for an alternative, including going solo, give a look not only at the first link in the beginning of the sentence, but also the comments. There are some worthwhile nuggets buried there. Otherwise you could follow Stan’s life as a new associate over at the Legal Underground. Both could seek some guidance from the blackprof.com, who asks why are lawyers so unhappy? They’ve got a whole book to answer the question, not just a post. The Wired GC thinks it may be enough just to unplug for a bit.
Evan Brown’s Internet Cases gives us the Judge’s jury instructions from
Now you've heard the whole trial, and it's time to sit down with your fellow jurors and evaluate the testimony that was offered, in all its glory. In that last link, the Unreasonable Man, a 2L at the University of Minnesota Law School, complains about the Dark Side of Law School as evidenced in telephone conversation on a cell phone that he overheard. As deliberations continue, do you drive down the road stringing together search queries to enter into the dialog box of your favorite search engine? Over at Corante’s Between Lawyers, Denise wonders. Well, wonder no longer if you’re looking for a podcast search engine, according to Bob Ambrogi, who writes Legal Sites, and points to Yahoo!’s new podcast search engine.
What goes on behind the scenes at trials? Here’s an inside look at the Scrushy trial from Houston’s Clear Thinkers, a great blog worth a close look. You can also listen to Evan’s perspective on “The Insider.”
The folks over at Law Business Insider point to a recent $521 million verdict in favor of a company known as Eolas. Steve Murphy, who writes Lawyers and Business Executives in the News, highlights the USPTO victory of Attorney Martin Lueck at RKMC. Here’s what Mr. Lueck had to say. There are all kinds of patents out there, says Bill Heinze at I/P Updates.
Well, it may not be a verdict, but Beau at Got Shells? thinks Sharepoint software has it in the bag over many other software programs that allow clients to access your firm’s website. Frankly, WLF uses Worldox Web for its clients' access to files, but I know several others that agree with Got Shells?, who's obviously a Microsoft devotee.
Thankfully, God doesn’t sit on this jury, so the decision is not up to her. It’s up to you, gentle reader, and some 100 Senators. Legal Blog Watch doyenne and Pulitzer Prize-eligible journalist Lisa Stone asks the inevitable question on Miers’ nomination: Thumbs up or thumbs down?
Ron Coleman at Likelihood of Confusion reports about the Delaware Supreme Court's reversal of a trial court decision that ordered an ISP to give up an anonymous blogger’s identify to a defamation plaintiff who sued that anonymous blogger. The standards are pretty tough.
Asking the question whether it’s better for your client to stay in jail, the ambivalent imbroglio raises another tough issue. Maybe better than in the morgue, according to Insurance Scrawl. Certainly this guy, who floated ashore in his own matching luggage, raises some questions of his own. Several of them are posed by Joe McFaul who writes Sharks In The Water, one of MIPTC's companion blawgs.
Before we take this trial up on appeal, Jeremy Blachman wants to send Supreme Court nominee Harriet Miers some Con-law study guides. His blog, Jeremy’s Weblog, regularly posts funny tidbits like this one, each with its own side-splitting humor. Well, at least a good belly laugh. Remember, though, if you make a decision on appeal, you might get scolded by SCOTUS, and maybe justice-in-waiting Miers once and if she gets there. Ex Post, a law student blawg, presents thoughtful posts on the subject worth a mouse click or two. Or three. Over at UCLA, Professor Bainbridge looks at the nomination from a purely scholarly perspective and determines that White House General Counsel Miers will end up looking a lot like Justice Lewis Powell. That’s the scholarly version. You’ll want to visit ProfessorBainbridge.com for the full perspective, including his blog of a conference call with the chair of the RNC.
It’s never too late to think about settlement, especially if you’re Mark Wahlstrom over at The Settlement Channel. This blog posts highlights a problem with settlements, though. What happens when one party claims the other breached the settlement agreement? The In House Blog points to fist fights as a possible settlement mechanism.
Well, that’s it for this trial. The Court is in recess, with another click of your mouse on the Old English Judge, he'll finish up with "Ahem, Ahem" because you're not quite finished yet, even though the time flies by, as noted by one of MIPTC's contributors (and my son), Michel Ayer. One more paragraph.
MIPTC wraps up Blawg Review #28 with a thanks to you, gentle reader, and all the blawggers who contributed posts for this review. If you don't use one of these news aggregators, you can listen to MIPTC’s post on your iPod courtesy of either iTunes or MIPTC’s Podcast RSS feed, or by clicking on the Podcast Icon below. You can also watch it on your video iPod by clicking on MIPTC’s Vidcast RSS feed or your everyday computer by clicking on the Vidcast icon below (18+ minute video, 234 megs). If you're looking for the Real Media version, click here. Next week will be Blawg Review #29, hosted by the Editor 'n' Chef at Blawg Review itself. Stay tuned. Same Bat-time, but a different Bat-channel than MIPTC. Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.