May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates
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Quote of the Day - Nature, when she invented, manufactured, and patented her authors, contrived to make critics of the chips that were left.
Lawyer2Lawyer Internet Radio Peers Into The Peer-to-Patent SystemIt can be said that patents are the key to sustaining innovative products and patent law is certainly an active area of legal practice in the U.S. But the U.S. Patent and Trademark office has been overwhelmed and undermanned. Could the Peer-to-Patent system be the answer? Please give a listen as my co-host Bob Ambrogi as he welcomes Professor Mark Webbink, Executive Director of the Center for Patent Innovations, a research and development arm of New York Law School's Institute for Information Law & Property and Attorney Stephanie Scruggs, an expert in patent litigation from the firm of Hanify & King, to take an in-depth look at the innovative Peer-to-Patent system, that employs a crowdsourcing and open source model using experts in the patent process.
Prying Back The Lid On The CAN-Spam Act: No Private Right To Challenge SpammersWhen a lawyer thinks about test cases, usually the main considerations revolve around the makeup of the plaintiff and the defendant. Lawyers want to put the white hat on the plaintiff and the black hat on the defendant. With the CAN-Spam Act, that consideration is fairly straightforward: pick a spammer for a defendant and someone who's inbox is bursting with more Viagra and laser printer toner ads and important career information that will make you look three inches taller than a newspaper recycling bin brimming with the Sunday paper leftovers. But a word of caution here: the CAN-Spam Act's private enforcement provisions are limited to "Internet access service" providers (like Comcast, Cox, AT&T), not you and me as individuals. Still, not an impossible task. Round up some exemplarly emails and ask the big guys to file suit. It has already happened - MySpace won a $230 million victory against spammers who sent 730,000 emails, but reportedly hasn't collected on the judgment. One spammer was convicted of felony spamming, sentenced to nine years in jail, but was later allowed by the Virigina Supreme Court to challenge the constitutionality of the statute. Nevertheless, the United States continues to be the target of almost 30% of the world's spam. If you have any doubt, look in your inbox. But I'm getting off track. We're still looking for a white-hat plaintiff to file suit against spammers. Enter Jim Gordon, who owned http://www.gordonworks.com/ and got too much spam. To put an end to it, Gordon sought $10 million from two companies, Virtumundo, Inc. and Adknowledge, Inc. as well as their sole shareholder, Scott Lynn, who the court called "in modern parlance, spammers." Gordon filed suit under the federal CAN-Spam Act after collecting thousands of unsolicited bulk emails as evidence that Virtumundo was a spammer of the worst kind. The federal District Court for the Western District of Washington granted summary judgment to Virtumundo earlier this year ruling that Gordon had not suffered "adverse effects" within the meaning of CAN-Spam. Yep, he lost, but then appealed. The Ninth Circuit just rejected an appeal from Gordon, upholding the lower court's decision and fing that Gordon was not an "Internet access service" provider, and therefore did not have standing to sue. Ninth Circuit Judge Richard Tallman wrote:
Finally, the Court noted:
And with that, the Court ruled against Jim Gordon and all private users of the Internet to attack spam through the CAN-Spam Act. Oh look, I just got another email. How about that? I can lose a pound a day on this diet!!! Lawyer2Lawyer Internet Radio Jumps In With Swimsuits, Steroids & Regulations In The Sports WorldRecently the world of sports has been plagued by scandal-from a controversial polyurethane swimsuit used in swimming to steroids putting a cloud over major league baseball. Please join me and my fellow Law.com blogger and co-host, Attorney Bob Ambrogi as we welcome Professor Matt Mitten, the Director of the National Sports Law Institute at Marquette University Law School and Attorney John P. Collins from the firm Collins & Collins as we take a look at the impact of these controversies and regulations in sports today.
Employer May Videotape WorkplaceBut Better Have A Good ReasonHoping to capture an evening intruder who surfed the Internet and viewed pornography on a work computer, a company installed a hidden camera to monitor the computer. The hidden camera was not turned on during the day when the employees were present - just at night in the hopes of catching the culprit. The employees, however, spotted a flashing red light on the camera during the day, discovered the camera and then sued for invasion of privacy. The employer had not disclosed to the daytime workers that it had installed the hidden camera pointed at the employees' computers. The employer did not suspect the employees. Now here's the rub: employees have an expectation of privacy in the workplace. Why? Well, that's the law, although it seems to this writer that such a right is fairly minimal because it's a work environment, after all, not a home. But then again, I'm from Orange County, not the greater part of the State of California where such rights are taken for granted. But I'm getting off track. In our case, Hernandez v. Hillsides, Inc., the California Supreme Court held that a privacy violation based on intrusion would require that the employer "intentionally intrude[d] into a place...to which plaintiff has a reasonable expectation of privacy." The Court also reasoned that "the intrusion must occur in a manner highly offensive to a reasonable person." While the Court acknowledged that employees have a reasonable expectation of privacy in a "solo office [with] relative seclusion," however, in order to state a claim against an employer, the intrusion must be "sufficiently serious and unwarranted...to constitute an egregious breach of the social norms." Now there's a definitive rule for you. It depends on the circumstances. The safest way to install a hidden camera is to do so only after disclosing it to the employees and have them ackowledge that the employer has done so and that they have no reasonable expectation of privacy. Otherwise, employers just may get sued. Playing Fast And Loose With Deeds Will Land You Without LandYou are about to get sued and you own a bunch of property. What do you do? First, here's a caveat: if you transfer the property to someone else in the face of litigation, then you run the risk of entering into what's called a fraudulent transfer, which would likely be set aside by a court except in certain circumstances.* In this case, that issue didn't come up. What happened, however, is George Lee and his family put their resources together and bought a number of parcels of property. There were a lot of transactions between family members, but one in particular ended up in court. Back in 2002, George Lee and his wife Kathy transferred their interest to their niece, Fue Sue Lee, and signed over a quitclaim deed to her, making the transfer as a gift. Fue Sue also signed the deed acknowledging her acceptance of the gift, but then sent it to relatives for them to record. Before those relatives recorded the deed someone added other relatives, Ge Lee and Vong Lee, as grantees on the original quitclaim deed. Later in 2005, George had Fue Sue execute a deed reconveying the property back to him and Kathy. You guessed correctly what comes next. Ge, Vong and Fue Sue filed suit to quiet title in their name. Now there's a surprise. Once you're over that initial shock, what do you think happened? After all, we've got a deed with someone else's (well, two someone elses) name (ok, names) on it. Plus, they were added to a quitclaim deed, which is a deed where the original owners give up all rights to the property. So why would it matter how many names were added? The now former owners really can't complain, can they? They certainly did, and asked the trial court to find that the initial transfer to Fue Sue was valid despite the alteration, but then invalid against all subsequent transfers. Now here's an interesting twist to think about first before we get to the actual result: What if Fue Sue had sold the property to Ge Lee and Vong Lee for money -- after she recorded an unaltered quitclaim deed? Don't you just love law-school type questions? First let's get to what actually happened with the altered deed. Both the trial and appellate court held that the initial transfer from George and Kathy to Fue Sue was valid, but the supposed subsequent transfer to Ge and Vong was invalid because on the initial deed, George and Kathy didn't agree to that subsequent transfer - it wasn't signed by "the parties to be charged (George and Kathy)." Well, it was actually signed by them, but the subsequent transferrees were added without their knowledge. In other words, the subsequent transfer didn't satisfy the statute of frauds, which requires that all real property transfers be in writing and signed by the parties to the deal. Now, to get to that law school question. Yes, if Fue Sue had transfered the property to Ge and Vong in a separate transfer, the case would have probably turned out that George and Kathy were out of luck and Ge and Vong owned the property, maybe even together with Fue Sue if they had handled it right. If they had only consulted a lawyer instead of trying to get fancy with the deeds. Go figure. ____________________ *What circumstances? There are too many to detail here, so the best way to find out is to talk with a lawyer. Guns And Scots - The Ninth Circuit Takes A Second Look At Gun Ban At Alameda County FairThe Scottish Caledonian Games at the Alameda Fairgrounds is a sight to behold. From dinner with Mary Queen of Scots to whisky tasting (yes, it's without the "e") to historical reenactments, its a wonderful event. Why then would the Scottish Caledonian Games cross swords - so to speak - with a gun show at the Alameda Fairgrounds? You can thank the Second (right to bear arms) and the Fourteenth (equal protection) Amendments of the United States Constitution. Huh? That's right. Here's the setup according to the Courthouse News Service, "Russell and Ann Nordyke, owners of TS Trade Shows, asked [Alameda] county to grant them the same exception it made for the Scottish Caledonian Games, whose participants reenact historic battles using period firearms loaded with blanks." The Nordykes put on a gun show where citizens could come and buy and sell guns. Now it makes sense. What's good for one is supposedly good for one is good for the other - that's the basic premise of the equal protection clause in the Fourteenth Amendment. But Alameda County refused to grant the exception to the Nordykes for the gun show because unfortunately there was a shooting at the gun show last year. At the same time, however, the County allowed the Scottish Caledonian Games to proceed, so the Nordykes filed an appeal, which ultimately got upheld by the Ninth Circuit Court of Appeals. The Nordykes argued the holding in the Heller case, which was the first time the U.S. Supreme Court held that the Second Amendment's right to bear arms applied to individuals instead of the actual wording in the amendment, which appeared to grant that right only to state militias. Heller is the law of the land and the Nordykes asked if it's good enough for the Scots, why isn't it good enough for us? The Ninth Circuit's opinion pointed out that Heller contained an exception for "laws forbidding the carrying of firearms in sensitive places," and Alameda County could justifiably ban the gun show from the fairgounds. But the Ninth Circuit just issued an order that it will rehear the Nordyke's case and reconsider its ruling. Look for one of two results: either the County's ban on the Scottish Caledonian Games historical reenactments using guns or the Ninth Circuit's allowing the Nordykes to hold their gun show. How would you vote? Lawyer2Lawyer Learns Lessons From Professor Gates' ArrestThe arrest of Harvard Professor Henry Louis Gates Jr. at his home in Cambridge, Massachusetts ignited a wide range of legal and social debate as well as a media firestorm worldwide. Please join me and my fellow co-host and Law.com blogger, attorney Bob Ambrogi as we welcome famed attorney and elder statesman, Jack Greenberg, the former director-counsel of the NAACP Legal Defense Fund who, together with Thurgood Marshall, argued Brown v. Board of Education before the Supreme Court in 1954. Now the Alphonse Fletcher Professor of Law at Columbia Law School, Mr. Greenberg shares his perspective on racial profiling, civil rights and what we still need to learn about race relations.
CEO, CFO And Manager Held Individually Liable For Employee Unpaid Wages Upon Corporation's BankruptcyIf your company files bankruptcy or dissolves and in the process the company fails to pay its employees their wages, vacation and sick time, the Ninth Circuit says you - as the Chief Executive Officer, the Chief Financial Officer and the labor manager - can be held individually liable to pay those back wages. Plus penalties. Read that sentence again and don't skip over the word "individually." Yep, you got that right. Ouch. In Boucher v. Shaw, the Ninth Circuit upheld individual liability for supervisors under the federal Fair Labor Standards Act despite two striking facts: (1) they were not individually liable under Nevada wage and hour laws; and, (2) the corporate employer (the Castaways Hotel and Casino) was in bankruptcy court in liquidation proceedings. In these conomic times, this case is an important reminder that executives are taking the risk of individual liability under the FLSA by failing to ensure that employees are paid upon dissolution or bankruptcy of a corporate employer. This ruling applies in California since it's out of our Ninth Circuit and the law enforced by the court is a federal, not state, law.
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