May It Please The Court
Quote of the Day - Threats don't work with the person who's got nothing to lose.
Communications Decency Act Comes To The Rescue Of Employers
As an employer, are you liable for your employee's threatening emails to others? The short answer is no, but it took the Sixth Appellate District some 34 pages to say it. And with good reason - there's an interesting story there.
Michelangelo Delfino and Mary Day got into a dispute with their former employer, Varian Medical Systems, and allegedly posted some 28,000 comments on the Internet about Varian, which the company believed amounted to defamation and harassment. One of Varian's supporters, Cameron Moore, also got into the mud-slinging with Delfino and Day. Varian had earlier obtained a judgment of some $775,000 against Delfino and Day, but that verdict was overturned by the California Supreme Court under a SLAPP theory.
Delfino and Day apparently got involved with Moore along the same lines as their campaign against Varian, and Moore's comments in return physically threatened Delfino and Day with bodily harm and death. The FBI got involved, trying to put an end to an ugly saga between the three players.
Delfino and Day, however, wanted blood, and sued Moore and his employer, Agilent Technologies. They did pretty well, and netted an almost $600,000 verdict against Moore, but not Agilent.
Why not the company, too? We know at least one probable reason why Delfino and Day sued Agilent: the company's pockets are deeper than Moore's, and they'd be more likely to be able to collect such a judgment.
But Agilent wasn't held liable. The Court determined that Aglient was in the business of providing internet services to its employees, and under the Communications Decency Act of 1996, it was immune from suit when its employees had acted badly. It likely didn't hurt, either, that Aglient had a policy ("Standards of Business Conduct") against such behavior:
"[C]ertain messages and materials simply must not be sent or accessed on Agilent equipment or through Agilent systems; these include . . . threatening, sexually explicit or harassing materials. You must not use Agilent resources to create, transmit, store or display messages, images or materials in any of these categories. Misuse of Agilent assets is misconduct and may result in termination of your employment."
Plus, the court noted a number of other factors in Agilent's favor: (a) the FBI assured Agilent that Moore was not a threat, that they didn't plan an arrest, and that Agilent need not be concerned about him; (b) Agilent's early internal investigation did not disclose that Moore had used its computer system to send any threatening e-mails or postings; (c) when Agilent reprimanded Moore, he did not admit to using its computer system to make any threatening Internet postings and denied using Agilent's system to send any e-mail threats; (d) no Agilent employee knew about Moore's cyberthreats; (e) Agilent's second internal investigation conducted after Moore's arrest did not disclose that Moore had made any cyberthreats; and (f) Agilent did not learn the substance of Moore's threatening e-mails and postings until it received the arrest affidavit.
In other words, Agilent acted reasonably. It was not only the circumstances and the internal company policy that excused Agilent from liability, but also the Communications Decency Act.
2/16/07 Update: Mary Day forwarded to MIPTC her Reply to Answer to Petition for Review, and you can read it here. Other briefs may be available here. If anyone has a source for additional briefs, let me know and I will post them.
So, if you're an employer, get that Internet use policy drafted, conduct prompt and thorough investigations when allegations of wrongdoing are leveled, reprimand and discipline employees where appropriate and try to put an end to the bad behavior. Those steps, along with the law, give a solid shield against liability, according to the Courts.
It might help if people would behave themselves, too, but that's a whole other issue for a different day.
Cranky Doormats Offer A Double Dose Of Humor
Who'd-a thunk it? I can tell you that I didn't. I never thought I'd see warnings on a doormat. But this is no ordinary doormat, let me tell you. In great big block letters, it screams out: "COME BACK WITH A WARRANT."
That probably should have been my first clue. The fun doesn't end with the top side of the mat. The back of it contains a product warning, obviously written by someone with a great sense of humor. The warning is entertaining, to say the least. Here it is:
"Important things you should know about your new doormat. Warning: Do not use mat as a projectile. Sudden acceleration to dangerous speeds may cause injury. When using mat, follow directions: Put your right foot in, put your right foot out, put your right foot in and shake it all about. This mat is not designed to sustain gross weight exceeding 12,000 lbs. If may begins to smoke, immediately seek shelter and cover head. Caution: If coffee spills on mat, assume that it is very hot. This mat is not intended to be used as a placemat. Small food particles trapped in fibers may attract rodents and other vermin. Do not glue mat to porous surfaces, such as pregnant women, pets and heavy machinery. When not in use, mat should be kept out of reach of children diagnosed with CFED (Compulsive Fiber Eating Disorder). Do not taunt mat. Failure to comply relieves the makers of this doormat, Simply Precious Home Décor, and its parent company, High Cotton, Inc. of any and all liability."
Where did I put this mat? Right inside the door to my office. With warnings like that on both the front and the back, as a lawyer it speaks my language.
Coast to Coast Internet Radio Goes On A JAG In IraqThe world of a JAG officer is a challenging one. Join me and my fellow Law.com blogger and co-host Bob Ambrogi as we turn to Major John A. Engels and discuss his role as a JAG officer stationed in Iraq, his experience over there and a look to the future. In 1998, Major John A. Engels was commissioned as a Judge Advocate in the Minnesota Army National Guard, and is currently serving in Iraq with the First Brigade Combat Team, 34th Infantry Division, now in Iraq. Don't miss out on this show!
New Regulations For California's Mandatory Sexual Harassment Training May Catch You Off Guard
California employers beware: if you have more than 50 employees and any one of them is here in California as of February 1, 2007, then you must undertake sexual harrassment training for employees located in this state, according to new regulations that are likely to go into effect on that date.
Most California employers already know this drill because the statute, Government Code section 12950.1 first went into effect in 2004, but employers who didn't have a big presence here probably thought they didn't have to worry.
Here's the short skinny about what's required:
There are additional requirements, and more detailed information can be found here on ELT's training website.
Coast to Coast Listed In The American Bar Association's Top 10 In Tech
The Legal Talk Network's "Coast to Coast" was listed in the Top Ten in Tech, as published by the American Bar Association. Congratulations to my co-host Robert Ambrogi of Massachusetts on this distinction. According to the article, Bob and MIPTC "have become nationally known legal experts through their Web logs and Coast to Coast." Congratulations to the producers of our show at the Legal Talk Network, Lu Ann Reeb, Scott Hess, Kate Kenny, Bob Philos and Mike Hochman. You can read the article.
Distinguishing Paper Money Remains A Challenge For The Blind
Here's an exercise for you: open your wallet and take out your paper money, then close your eyes and count it. Not the number of bills, but the amount of money you have based on the denominations of the bills. You likely can feel the difference between a penny, nickel, dime, quarter and even a silver dollar piece such as a Susan B. Anthony or Pocahontas coin. But you can't count your paper money, no matter how hard you try.
The American Council of the Blind wants to rectify this problem, and they sued the government to get the U.S. Mint to come up with a way to distinguish bills from one another based on denomination. The U.S. District Court of Appeals for the District of Columbia agreed, and issued an order to the Treasury Department to come up with a solution. The government disagreed, and filed an appeal. The government said any remedy would be too costly and interfere with its ability to prevent counterfeiting and that blind people should use credit cards instead.
On the other hand, the American Council of the Blind offered several suggestions, including embossing, punching holes in the paper or using different-sized bills for different denominations. They've got a Petition, if you're interested.
Wholly Guacamole, Batman! How Many Avocados In That Dip?
MIPTC moved from Iowa to Southern California for several reasons, not the least of which is Southwestern food and the many music venues, including the Hollywood Bowl, jazz, rock and other concerts available around the greater Los Angeles area. But it's the food that first turned my head.
To say that I like guacamole is an understatement. It wasn't always that way, however. To put my love of Southwestern food into context, you should first understand that in New England where I was born, my Mother often cooked Yankee Pot Roast, which my brother Todd just as often called Rankee Rot Roast. My Mother was not a great cook, as you can imagine. Before I moved to California, I had never tasted guacamole the way it's made here, and it had not once graced the Williams household kitchen table.
A dear friend of mine, Father Rafael Luevano, makes it fresh this way: avocados, chopped tomatoes and onions, cilantro and lime juice and a dash of salt. That's it, plain and simple. Along with chips, a beer and friends, it doesn't get much better.
Now we learn that Kraft, Dean's, Marie's and Herr's have been sued in a class action because allegedly less than two percent of the ingredients in their guacamole dip products are avocado. In contrast, the FDA requires that at least 90 percent of peanut butter is made from peanuts, but apparently the California Avocado Commission hasn't been as successful with its lobbying efforts.
In any event, the FDA requires that labels accurately describe the ingredients of food products, listed in order of amount, with the largest amount first, and the least amount listed last. The moral of the story here? Flip that container over and read the list of ingredients. Otherwise, just try Father Luevano's guacamole recipe.
Is Gun Ownership Necessary? Can We Just Erase The Second Amendment?
No matter which side you fall on, a difficult legal issue has arisen in our nation's capitol over their problem with handguns. Here's the U.S. Constitution's Second Amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
You may think you know - the right to bear arms, you say. But go back and read it again. Is it just the right of a well-regulated militia, made up of the people, to keep and bear arms? Or is it the right of people to keep and bear arms, whether or not they're in a militia? Beyond those two questions, two judges of the DC Court of Appeals, Judge Thomas B. Griffith and Senior Judge Laurence Silberman added another one: is gun ownership necessary any longer? Have we outgrown the need to have guns in our homes?
We're about to find out, if the District of Columbia has anything to say about it. The District's City Council has banned handguns, and that ban is being challenged in Court in the case of Shelly Parker v. District of Columbia, case No. 04-7041. From what MIPTC can see on the NRA's website, the gun lobby hasn't taken a position on the case yet, but the organization's opinion isn't really in doubt. We wouldn't be surprised to have the NRA come out in support of Ms. Parker and her right to possess a gun. Anti-gun advocates, on the other hand, support the ban.
We have a well-regulated militia. They're called the Air Force, Army, Navy, Coast Guard and even the Marines, Seals and a bunch of other special forces and even some secret agencies like the CIA and the NSA. We have police forces across the country - the FBI, state and local agencies. Heck, the Texas Rangers can handle the whole Southwest, or so they say.
The Court wants to know if we still need guns in our homes? It's a legitimate question. Let me pose an equally legitimate question: can we just erase parts of the Constitution because our country has changed? Amending the Constitution is not the job of the Courts, it's a job for Congress and the several states - the people. Whether we've outgrown the need for guns is not the question to ask in this case. The Constitution is full of things that supposedly don't apply any more - take slavery for example - but we don't just erase parts of the Constitution in court decisions because they don't apply anymore.
The judicial debate over the Second Amendment should involve an interpretation of the language in the Amendment itself, not whether the Constitution is out of date. That's a matter for a different forum. Courts are supposed to interpret, not legislate. Let's hope the Court sticks to the issues within its purview.