News & Media
Using State Law to Counter a Business Defamation Claim
by Jay Marshall Wolman Readers of this blog know that Marc is giddy that the Federal Trade Commission has sued Roca Labs. One of the more interesting features of the suit is that the FTC argues that legal action arising from negative reviews, which the FTC terms “gag clause practices”: not only injure the purchasers threatened for complaining or expressing negative opinions; they adversely affect the information available to the public at large and distort the marketplace. Consumers will, because of this practice, be more likely to spend substantial sums on Roca Labs products that they would not otherwise buy. Prospective consumers searching online for information on Roca Labs products prior to purchasing likely did not see much truthful negative commentary on the price, side
Lanham Act doesn't get you around the First Amendment
RLG just got a summary judgment order in Tobinick v. Novella. In that case, we first got an Anti-SLAPP order against a California plaintiff who filed a SLAPP suit in Florida (perhaps hoping that Florida’s courts wouldn’t realize that a CA plaintiff can’t run away from his anti SLAPP law). (Order here) However, the Plaintiff maintained that our client’s articles on a medical practice were actually “commercial speech.” Court slapped that down today. (Order here) Since there is a little more to do in the case, I’m not going to comment further. But, the Order should go in any First Amendment lawyer’s files — because this isn’t the first time I’ve seen a plaintiff try and get creative with the
ROCA LOCA!!!!! THE FTC IS COMING AFTER ROCA LABS!!!!!
The Federal Trade Commission has come after the lovely Roca Labs, Don Juravin, and George C. Whiting. Complaint here. Entire docket here.
Denali Ain't Just a River in Egypt
by Jay Marshall Wolman, CIPP/US I hate to admit it, but I first learned the term “Denali” when reading the Twilight series. My wife and I had taken a vacation to the Pacific Northwest and visited the Olympic peninsula. Edward and Bella references were everywhere, and we had no clue what it was all about. So, I read the books. And I have a problem with leaving a series unfinished (I’m looking at you George R.R. Martin). This past Friday, with formal announcement yesterday, the Secretary of the Interior renamed Mt. McKinley, “Denali”. Apparently, we have something called a U.S. Board on Geographic Names that was asked in 1975 to rename the mountain. It is authorized to establish uniform name
Ashley Madison and Standing
by Jay Marshall Wolman, CIPP/US Recently, this blog has published posts on a new Connecticut law and a 7th Circuit ruling on data breach, both of address the issue of standing in class action data breach suits. Standing, in plain terms, means having a legal right to sue based on an injury to you. The Sierra Club may have standing to sue for environmental damages because its members are specifically harmed; even if many of those members also belonged to Susan Boyle Fans International, Inc., the fan club would not have standing because the organization as a whole is not harmed. Actual harm is key. In many data breach cases, it is hard to show actual harm; identity theft may
Knowing Employee Legal Rights
by Jay Marshall Wolman, CIPP/US Shameless self-promotion: Today, I had the privilege of presenting “Knowing Employee Legal Rights” to a Cornell Alumni Leadership Lunch and Learn along with Prof. David Sherwyn. Video is here: https://vod.video.cornell.edu/media/Leadership+Lunch+and+Learn+Knowing+Employee+Legal+Rights/1_lymufsk9 Downloadable slideshow here: http://alumni.cornell.edu/caco/documents/CornellLunchandLearn-KnowingEmployeeLegalRights.pdf Enjoy!
And Then a Sensible Dinner
by Jay Marshall Wolman, CIPP/US I was driving home from Philadelphia this past Sunday after a wedding, when I learned about the dietary habits of Attorney Rand Spear. (Something like the Rand Corporation, only smarter.) The story is nothing new. And, apparently, Mr. Spear holds a trademark in that phrase. This serves as a reminder that phrases can be trademarked. Other well-known phrases have been trademarked, e.g., Coke is it! (cancelled). Some are completely random: I love what you’ve done with the trash! A phrase that is trademarked, like a logo, may also enjoy copyright protection. And the misuse of a trademarked phrase could wind up subjecting a defendant to both copyright and trademark liability. The defenses might not necessarily be identical
We Gettin' Money, Bank Roll, Supersized: Digesting the 7th Circuit's Data Breach Ruling
by Brent Tuttle, CIPP/US, E* Recently, the 7th Circuit handed down a ruling in a data breach case that has class action plaintiffs’ attorneys poppin’ bottles. The case is Remijas v. Neiman Marcus Grp., LLC, No. 14-3122, 2015 WL 4394814 (7th Cir. July 20, 2015). Background: Between July 16, 2013 and October 13, 2013, malware found its way onto the Neiman Marcus computer systems. This potentially exposed 350,000 credit cards, 9,200 of which were known to have been used fraudulently. (The Court of Appeal noted that all 9,200 fraudulent charges were subsequently reimbursed.) The company discovered this breach January 1, 2014 and publicly disclosed it nine days later. The company offered all customers who shopped at Neiman Marcus between January
A Federal Pure Bill of Discovery
by Jay Marshall Wolman I read an interesting case over the weekend. You may recall the case of Heleen Mees allegedly stalking Citigroup chief economist Willem Buiter. She was charged with five misdemeanor counts after, it seems, an affair with the married Buiter didn’t pan out. The charges were dropped as part of a deal. However, the story doesn’t end there. It seems that, following the criminal process, Ms. Mees intended to sue Mr. Buiter in the Netherlands for defamation. She filed an application in Federal court in New York, pursuant to 28 U.S.C. § 1782, which allows a district court, “upon the application of any interested person,” to require a person (assuming personal jurisdiction) to “give his testimony or statement or to produce
Updates in Railroad Employee Liability Law
by Jay Marshall Wolman In addition to my usual lawyerly activities, I am also a Vice Chair of the Workers’ Compensation and Employers’ Liability Law Committee of the American Bar Association’s Tort Trial and Insurance Practice Section. Probably the longest line on my resume. The Committee’s Spring 2015 Newsletter is out. I contributed an article on updates on the Federal Employers Liability Act (FELA), 45 U.S.C. sec. 51, et seq. In short, before general workers’ compensation laws existed, the U.S. Congress established a liability and compensation framework for railroad employees. That framework continues to govern on-the-job injuries to railroad employees. Cases continue to develop, both in state and federal courts. The article highlights four recent developments: Expert medical opinions on
Problems with Revenge Porn Laws
by Jay Marshall Wolman Revenge porn is bad, and this blog has been active in fighting it. As a moral matter, it is a pretty easy thing to address. As a legal matter, it is not. More and more states have been passing laws against revenge porn. California, for example, in 2013, added Penal Code Section 647(j)(4), The meat is in sub-subsection (A), which states: Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree
Professor Franks and the False Dichotomy
by Jay Marshall Wolman Apparently, along with Eric Turkewitz, I have been blocked on Twitter by Mary Anne Franks. A Rhodes Scholar and woman of letters, Dr. Franks has divined that I am not worthy of comment. According to Dr. Franks, I am a “false rape truther“. Presumably, she means to equate questions about false accusations with rape with those who question whether Al Qaeda was behind the attack of September 11, 2001, generally labelled “9/11 Truthers”. Rather than engage in discussion, as one hopes a law school professor who takes to social media might expect, I have been banninated from her Twitter feed. So much for academic discourse. The primary thrust of this posting, however, is not to lament
Is Use Discrimination Unlawful if Customers are Treated Equally?
By Jay Marshall Wolman There has been significant commentary in the blogosphere about a recent order out of Oregon allegedly imposing a gag order on a bakery that expressed an aversion to same sex weddings. I’ll leave the First Amendment analysis to Ken White at Popehat and Eugene Volokh as linked above. I’m a little more concerned with the order’s analysis of the discrimination claim itself. The Labor Commissioner did not undertake the traditional McDonnell Douglas test for discrimination. Now, this might not be an Oregon requirement, but there was no real analytical framework. This is usually important in determining if the acts were discriminatory. This case involved statements by the owners expressing an aversion to making cakes for same sex
TurkishTowels.com domain name protected from attempted seizure
Randazza Legal Group protects TurkishTowels.com domain name from attempted seizure.
A Cost-Imposing Law that may Indirectly Save Millions
by Jay Marshall Wolman, CIPP/US This past June, the Connecticut General Assembly enacted Public Law No. 15-142, ostensibly to improve data security in the state. It follows on the heals of the Anthem Data Breach earlier this year. The first major provision governs state contractors in receipt of confidential information received from the state. The second major provision, addressed to Anthem and other health insurers, creates specific obligations to secure data under a regulatory scheme. The third major provision addresses all other businesses. Previously, reasonable notice of a data breach (release of certain unencrypted personal information) was required to be given. A specific 90 day notice is now required. More important is the remedy provision–in the event of a data breach,
The Expansion of Regarded-As Discrimination
by Jay Wolman The Americans with Disabilities Act protects three categories of individuals: those presently disabled, those previously disabled, and those perceived to be disabled. The latter is deemed “regarded as”; it does not require the member of the protected class to actually have or have had a physical or mental impairment that substantially limits a major life activity. This is the only statute explicitly providing for “regarded as” protection. However, caselaw seems to be filling the gaps in other laws. In Macy v Holder, the EEOC explicitly found that discrimination against transgendered individuals is unlawful under Title VII, discussing the difference between sex and gender. It also reviewed cases finding that failure to conform to gender stereotype is actionable discrimination.
The Future of Restrictive Covenants in Settlements and Severance
by Jay Wolman The law is ever changing and what is common may, at some point, become unlawful (or already is without folks realizing it). Recent developments in statutory law and enforcement actions in existing law have really made me think about all of those clauses that commonly appear in agreements with former employees, whether as part of a severance agreement or as a settlement of claims. For instance, many of these agreements include a confidentiality clause that prohibits the former or soon-to-be former employee from disclosing how much is being received in severance or settlement. Many of these agreements contain new restrictions on the disclosure of trade secrets (or reaffirmations of prior such covenants), including personnel practices and wage
If you ever wonder if being a lawyer is hard…. (City of Inglewood v. Teixeira)
Do you? Are you a law student, worried that you might not pass the bar? If you’re that worried, read this shit and remember that the idiot who filed this idiotic lawsuit is not only licensed, but has clients. See Inglewood, California Sues YouTube Critic For Copyright Infringement Over Use Of City Council Videos (here) The City of Inglewood is suing the author of this youtube clip for copyright infringement. Come at me, bro. I’m re-publishing it. (wags dick at fucking idiot mayor of Inglewood) [youtube=https://www.youtube.com/watch?t=15&v=-5VQZrW7BVY] Seriously, read this garbage. If you think you can’t make it as a lawyer, just remember that the author of that piece of shit has a bar license and managed to snag the City
Negotiation Theory in Action
[youtube=https://www.youtube.com/watch?v=llquJck7D-0]
Nevada Senate Bill 444 – Groundhog Day
On SB444 – Wynn Resorts’ lobbyist proposed a compromise. The compromise was reasonable. We might not have liked it, but there was no reason not to agree to the compromise. The Senate did not agree to the compromise. Now it is back to the Assembly. But, the Assembly has been a bipartisan body of reason on SB444. How you can help stop SB444. 1. Go to this page. 2. Enter “SB444” without any spaces or use the drop down menu and scroll aa. 3. Click the “Get Bill Information” button. 4. Type in your comments. 5. Enter your name and address, which is kept confidential. 6. Click submit. What if you don’t want to post a comment using your real
