The Way back machine data may be admissible to support a conviction

Way back machine data admitted in Court - Domingo J. Rivera
The Wayback Machine, located at is a web site that enables you to see what a particular Web site looked like at some time in the past, from 1996 to the present.  At the Wayback Machine site, you can search for and link to the past version of many web sites as they were at various "snapshots" in time.  ...
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Malibu Media v Doe - Copyright Subpoena

This is one of the cases involving the Malibu Media efforts to identify a "John Doe" defendant.  In this case, the Court granted the subpoena to identify the potential defendant - By: Domingo J. Rivera

Malibu Media John Doe subpoena case

JOHN DOE, subscriber assigned IP address, Defendant.
Case No. 1:16-cv-01059-AWI-SKO
October 25, 2016

       Plaintiff Malibu Media, LLC ("Plaintiff") filed a complaint against John Doe ("Defendant") on July 24, 2016, alleging infringement claims pursuant to the United States Copyright Act of 1976. (Doc. 1.) Plaintiff claims Defendant is a persistent online infringer of Plaintiff's copyrighted films. On September 28, 2016, Plaintiff filed a motion for leave to serve a third-party subpoena prior to a Rule 26(f) conference. (Doc. 8.) As Defendant has not yet been identified by name, no opposition was filed. Pursuant to Local Rule 230(g), the Court finds Plaintiff's motion suitable for decision without oral argument, and no hearing on this matter shall
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be set. For the reasons discussed below, Plaintiff's motion is GRANTED subject to the noted restrictions herein.
       Plaintiff is a limited liability company that produces copyrighted adult films. Defendant is alleged to have used the BitTorrent file distribution network to download adult pornographic films subject to copyrights held by Plaintiff. Defendant has been identified in this lawsuit only by an Internet Protocol address ("IP Address") assigned to a customer on a specific date by an Internet Service Provider ("ISP") and through which the copyrighted works were allegedly downloaded.
       BitTorrent technology has been described by several courts, including the district court in Malibu Media, LLC v. Doe, No. 15-cv-4369 (AKH), 2015 WL 4092417, *1-2 (S.D.N.Y. July 6, 2015):
BitTorrent is a peer-to-peer file-sharing protocol that allows users to transfer large files over the internet by breaking the complete file (the "Seed") into small pieces to be downloaded in parts. Other users ("Peers") downloaded a small "torrent" file that contains an index of the pieces and directions for connecting to the Seed. When Peers connect to the Seed, they download pieces of the file at random, and begin sharing each piece once it has completed downloading. After all the pieces are downloaded, the BitTorrent software reassembles the pieces into a complete file for the Peer to view.

BitTorrent is distinguishable from other file sharing protocols by its users' ability to upload and download files simultaneously. This non-sequential download structure reduces the bottleneck of traffic, which allows for faster download speeds. The Peers that are uploading and downloading the same Seed file from each other at a given point in time are collectively called a "Swarm." Members of a Swarm are able to see the IP addresses of other Peers to whom they are connected. In addition, BitTorrent "tracks" the pieces of a file as it is shared, so Peers can identify the IP addresses from which the file was downloaded.
Id. (citing Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233 (E.D.N.Y. 2012), Next Phase Distribution, Inc. v. John Does 1-27, 284 F.R.D. 165 (S.D.N.Y 2012), In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80 (E.D.N.Y. 2012)).
       Plaintiff has filed a motion for leave to serve a third-party subpoena prior to a Federal Rule of Civil Procedure 26(f) discovery conference, requesting permission to initiate discovery to identify the account subscriber associated with the IP Address used to download Plaintiff's
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copyrighted films, notwithstanding the provision of Rule 26(d)(1) that precludes a party from seeking discovery from any source before the parties have conferred as required by Rule 26(f). Plaintiff contends a Rule 45 subpoena to the ISP must be permitted to obtain the identity of the customer assigned the IP Address on the dates1 in question to ascertain the identity of the person responsible for unauthorized downloading of the copyrighted works produced by Plaintiff. Plaintiff maintains there is no other way for it to obtain this information.
A. Legal Standard
       Generally, a party may not conduct discovery before the parties have met and conferred pursuant to Federal Rule of Civil Procedure 26(f) "except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order." Fed. R. Civ. P. 26(d)(1). The Ninth Circuit has held that when a defendant's identity is unknown at the time the complaint is filed, a court may grant the plaintiff leave to take early discovery to determine the defendant's identity "unless it is clear that discovery would not uncover the identit[y], or that the complaint would be dismissed on other grounds." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). District courts in the Ninth Circuit have permitted expedited discovery prior to the Rule 26(f) conference upon a showing of "good cause." See, e.g., In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008) (citing Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273 (N.D. Cal. 2002)). "Good cause exists where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party." In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d at 1179 (citation and quotation marks omitted).
B. Plaintiff Has Established Good Cause to Serve a Third-Party Subpoena
       District courts within the Ninth Circuit have typically found good cause supporting early or expedited discovery in cases where the plaintiff alleged copyright infringement accomplished through distribution of the work over a peer-to-peer network, and where the plaintiff sought early
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discovery to obtain the identities and contact information of the alleged infringers from associated ISPs. See, e.g., Berlin Media Art E.K. v. Does 1 through 146, No. S-11-2039 KJM GGH, 2011 WL 4056167, at *2 (E.D. Cal. Sept. 12, 2011) (unpublished) (granting leave to serve Rule 45 subpoena to identify doe defendant); Malibu Media, LLC v. John Does 1-10, No. 2:12-cv-3623-ODW (PJWx), 2012 WL 5382304 (C.D. Cal. June 27, 2012).
       1. Balancing Interests in the Context of Copyright Infringement
       In applying the good cause standard in cases where the unknown defendant is an anonymous internet user, courts give careful consideration to the diverging interests of both the party seeking the discovery and the unknown Doe defendant:
With the rise of the Internet has come the ability to commit certain tortious acts, such as defamation, copyright infringement, and trademark infringement, entirely on-line. The tortfeasor can act pseudonymously or anonymously and may give fictitious or incomplete identifying information. Parties who have been injured by these acts are likely to find themselves chasing the tortfeasor from Internet Service Provider (ISP) to ISP, with little or no hope of actually discovering the identity of the tortfeasor.

In such cases the traditional reluctance for permitting filings against John Doe defendants or fictitious names and the traditional enforcement of strict compliance with service requirements should be tempered by the need to provide injured parties with a[] forum in which they may seek redress for grievances. However, this need must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously. People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one's mind without the burden of the other party knowing all the facts about one's identity can foster open communication and robust debate. Furthermore, it permits persons to obtain information relevant to a sensitive or intimate condition without fear of embarrassment. People who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their identity.
Columbia Ins. Co. v., 185 F.R.D. 573, 578 (N.D. Cal. 1999). As it pertains to copyright infringement cases involving the internet, many courts have documented growing concerns about "copyright trolls," "roughly defined as plaintiffs who are 'more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third
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parties to sell a product or service.'" Malibu Media, LLC, 2015 WL 4092417, at * 2 (quoting Matthew Sag, Copyright Trolling, An Empirical Study, 100 Iowa L. Rev. 1105, 1108 (2015)).
"The paradigmatic troll plays a numbers game in which it targets hundreds or thousands of defendants, seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim." [Matthew Sag, Copyright Trolling, An Empirical Study, 100 Iowa L. Rev. 1105, 1108 (2015)]. The lawsuits most frequently target anonymous John Does for alleged infringement related to the use of BitTorrent. Indeed, of "the 3,817 copyright law suits filed in 2013, over 43% were against John Does and more than three-quarters of those related to pornography." Id. at 1108-09. But almost none ever reaches a hearing. Rather, the "lawsuits are filed to take advantage of court ordered discovery [under Fed. R. Civ. P. 26(d)] to break the veil of anonymity that separates IP addresses from the account information of actual human beings." Id. at 1109; see also Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y.2012). They then use this information to quickly negotiate settlements on mass scale without any intention of taking the case to trial. [footnote omitted] See, e.g., Media Prods., Inc., DBA Devil's Film v. John Does 1-26, No. 12-cv-3719, at 4 (S.D.N.Y. June 18, 2012) (explaining that the settlements in these BitTorrent cases are "are for notoriously low amounts relative to the possible statutory damages, but high relative to the low value of the work and minimal costs of mass litigation. Cases are almost never prosecuted beyond sending demand letters and threatening phone calls.").
Malibu Media, LLC, 2015 WL 4092417, at * 2.
       The danger of copyright trolls is particularly acute in the context of pornography. In these cases, "there is a risk not only of public embarrassment for the misidentified defendant, but also that the innocent defendant may be coerced into an unjust settlement with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations." Media Prods., Inc., No. 12-cv-3719, at 4; see also Malibu Media, LLC v. Does 1-5, No. 12-cv-2950 (JPO), 2012 WL 2001968, at *1 (S.D.N.Y. June 1, 2012) ("This Court shares the growing concern about unscrupulous tactics used by certain plaintiffs, especially in the adult film industry, to shake down the owners of specific IP addresses from which copyrighted adult films were allegedly downloaded.").
       The abuses of Malibu Media in particular have been discussed by a court in the Southern District of New York:
However, Malibu's corporate strategy relies on aggressively suing for infringement and obtaining accelerated discovery of the IP address holder's identity from the ISP. It then seeks quick, out-of-court settlements which, because they are
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hidden, raise serious questions about misuse of court procedure. Judges regularly complain about Malibu. For example, in May, Judge Timothy Black of the Southern District of Ohio surveyed some of Malibu's questionable conduct in litigations across the country. See Order to Show Cause, ECF Doc. No. 15, Malibu Media, LLC v. Ryan Ramsey, No. 14-cv-718 (S.D. Ohio May 26, 2015). He found that, while "Malibu Media asserts that it is necessary to invoke the Court's subpoena power to 'propound discovery in advance of a Rule 26(f) conference' . . . [,] not a single one of these 60 cases [filed in this district over the previous 12 months] has even progressed to a Rule 26(f) conference." Id. at 5. Indeed, most are dismissed even without the issuance of a summons. Id. Malibu's motive is to use the federal courts only to obtain identifying information in order to coerce fast settlements. Id. at 8 (citing Malibu Media, LLC v. Does 1-54, No. 12-cv-1407, 2012 WL 303[03]02, at *5 (D. Colo. July 25, 2012); Malibu Media, LLC v. Does, 923 F. Supp. 2d 1339, 1345-46 (M.D.Fla.2013)).

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Sarkar v. Doe - The University of Mississippi Case

This case involves a claim by a professor of pathology involving Internet defamation, which he claims cost him his employment at the University of Mississippi.  The University cited some anonymous posts in an online forum as a reason for terminating Dr. Sarkar employment resulting in a lawsuit and a quest to uncover the identity of the anonymous posters.  The case made its way to the Court of Appeals of Michigan.  The Court's opinion follows. - Domingo J. Rivera

The professor lost his job at the U?niversity of Mississippi as result of anonymous online comments in a forum.

318 Mich.App. 156
897 N.W.2d 207
Docket Nos. 326667
Court of Appeals of Michigan.
Submitted Oct. 4, 2016, at Detroit.
Decided Dec. 6, 2016, at 9:00 a.m.
[897 N.W.2d 210]

Before: FORT HOOD, P.J., and GLEICHER and O'BRIEN, JJ.
The issues presented in these appeals boil down to one simple question: Are the identities of anonymous scientists who comment on other scientists' research online protected by the First Amendment?
According to his complaint, plaintiff, "Fazlul H. Sarkar, PhD, is a distinguished professor of pathology at Karmanos Cancer Center, Wayne State University with a track record of cancer research over 35 years."1 Sarkar began his research at Wayne State University in 1989, and "his work has led to the discovery of the role of chemopreventive agents in sensitization of cancer cells (reversal of drug resistance) to conventional therapeutics (chemo-radio-therapy)." Dr. Sarkar alleges that "[h]e is a perfect example of a true translational researcher bringing his laboratory research findings into clinical practice," that he "is involved in several collaborative projects including breast, lung, and pancreatic cancer," that " [h]e has published over 430 original scientific articles in peer-reviewed journals," that he has written or reviewed hundreds of articles and book chapters, that he has edited several books, that he has received numerous publicly funded grants, and that he has trained a variety of pre- and post-doctoral students. In short, it appears undisputed that he is well-accomplished in the cancer-research community.
It is presumably these accomplishments that led to Sarkar pursuing employment with the University of Mississippi in 2013. According to Sarkar, the University of Mississippi presented him with the "anticipated terms of an offer of a position" in September 2013, which set forth several terms of employment, including, most notably, tenure, a $350,000 salary, $15,000 in relocation expenses, "[a] start up package of $750,000," and a variety of other benefits. In March 2014, the University of Mississippi formally offered him this position, Sarkar accepted, and he resigned from Wayne State University approximately two months later. Sarkar relocated to Oxford, Mississippi, shortly thereafter and was set to begin his employment with the University of Mississippi in July 2014. At some point, however, "his start date was adjusted to August 1, 2014 per later agreement and approval...."
On June 19, 2014, however, the University of Mississippi rescinded Sarkar's offer of employment. According to Sarkar, the University of Mississippi was unwilling to "go forward with an employment relationship with [him] and [his] group" because of "allegations lodged in a public space and presented directly to colleagues [there]...." In pertinent part, the University of Mississippi cited public comments made on, which were apparently made known to the University of
[897 N.W.2d 212]
Mississippi by an anonymous individual.2 After losing this employment opportunity with the University of Mississippi, Sarkar attempted to rescind his resignation with Wayne State University the following day, and Wayne State University allowed him to return, albeit in a nontenured position. After Sarkar learned he would be returning to Wayne State University, however, either the same or a different anonymous individual also distributed a flyer containing a screenshot from to Wayne State University personnel.3
Obviously unhappy with the outcome of his employment offer with the University of Mississippi, the comments on, and the distribution of the flyer to Wayne State University personnel, Sarkar pursued a variety of legal remedies, including this lawsuit. On October 9, 2014, Sarkar filed this five-count lawsuit against defendants, "John and/or Jane Doe(s)." Sarkar alleged, in pertinent part, that the comments made on were defamatory, that the comments made on and forwarded to the University of Mississippi intentionally interfered with a business expectancy, that the comments made on and forwarded to Wayne State University intentionally interfered with a business relationship, that the posting of an e-mail from Wayne State University personnel on and in public constituted an invasion of privacy, and that the circulation of the flyer was intended to inflict emotional distress.
In an attempt to learn the identities of the individual or individuals who were responsible for the actions at issue, Sarkar subpoenaed the records of appellant, PubPeer Foundation (PubPeer), the entity that operates, seeking the following: "All identifying information, including but not limited to user names, IP addresses, email addresses, profile information, and any other identifying characteristics of all users who have posted any of the comments that were posted on your web site that are described in the attached complaint that was filed in Wayne county, MI." Although somewhat unclear from his complaint and subpoena, it appears that Sarkar sought all identifying information for approximately 30 comments made on about his research. PubPeer objected, moving to quash the subpoena on First Amendment grounds.
Specifically, PubPeer argued that, in order to unmask the identity of the anonymous commenter or commenters, Sarkar was required to prove that his claims could survive a motion for summary disposition. Asserting that Sarkar had failed to do so, PubPeer argued that the trial court should quash the subpoena.4
[897 N.W.2d 213]
Analyzing each comment at issue, PubPeer also argued that Sarkar failed to adequately plead the allegedly defamatory comments, that the allegedly defamatory comments were not capable of defamatory meaning, that the communications sent to or distributed at the universities were insufficiently connected to PubPeer, and that the balance of interests in this case favored preserving scientists' ability to anonymously comment on other scientists' research.
Sarkar responded, arguing that "[t]his case is not about free speech." Rather, he asserted, "[i]t is about tortious conduct that is destroying a man's life and career." Sarkar described the anonymous commenter or commenters as "an enemy [or enemies] hiding behind the anonymity afforded by the internet" who is or are "sabotaging" his career. Sarkar, relying on the fact that one John Doe had already filed an appearance, argued that no preliminary showing was required and that, at best, the appearing John Doe could seek a protective order on behalf of himself. Sarkar also argued that his complaint was adequate, that he had alleged torts beyond defamation, that the confidential nature of misconduct proceedings had been breached, that the comments at issue were defamatory, and, ultimately, that disclosure of the commenters' identities was necessary to seek the legal remedy to which he was entitled.
A hearing on PubPeer's motion to quash was held on March 5, 2015. After hearing arguments similar to those already discussed, the trial court granted, in part, PubPeer's motion to quash.5 Specifically, the trial court granted the motion in full with the exception of one subparagraph in Sarkar's complaint: Paragraph 40(c). The trial court reserved its ruling on Paragraph 40(c) for a later date after the parties were afforded additional time for supplemental briefing. A second hearing on PubPeer's motion to quash was held two weeks later on March 19, 2015. After reviewing the parties' supplemental briefs and hearing additional argument, the trial court denied PubPeer's motion to quash with respect to Paragraph 40(c).6 These appeals followed. On April 20, 2015, the trial court granted PubPeer's motion to stay proceedings pending the outcome of these appeals.
Generally, we review for an abuse of discretion a trial court's decision on whether to compel discovery. Cabrera v. Ekema, 265 Mich.App. 402, 406, 695 N.W.2d 78 (2005). We review de novo however a trial court's decision to grant summary disposition. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Similarly, constitutional issues, including the application of the First Amendment, are also reviewed de novo. Smith v. Anonymous Joint Enterprise, 487 Mich. 102, 111–112, 793 N.W.2d 533 (2010).
[897 N.W.2d 214]
Sarkar first argues that the trial court's March 9, 2015 order must be reversed because the court erred by allowing PubPeer, a nonparty, to argue standards for summary disposition. Relatedly, Sarkar also argues that the trial court erroneously heightened the pleading standard for defamation as well as erroneously refused to consider a protective order pursuant to MCR 2.302. Ultimately, these arguments are each part of Sarkar's ultimate position before the trial court and before this Court on appeal: Sarkar argues that Thomas M. Cooley Law Sch. v. Doe 1, 300 Mich.App. 245, 833 N.W.2d 331 (2013), not Ghanam v. John Does, 303 Mich.App. 522, 845 N.W.2d 128 (2014), controls the outcome of this case. We will address each case in turn, as well as their application to this matter.

In Cooley, an anonymous speaker created a website titled "THOMAS M. COOLEY LAW SCHOOL SCAM" on Cooley, 300 Mich.App. at 250, 833 N.W.2d 331. The speaker, who identified himself as a graduate of
Thomas M. Cooley Law School (Cooley or the school), described the school as " 'THE BIGGEST JOKE of all law schools,' " characterized the school as having an " 'open door' policy" for admission, criticized the school's attrition rate and administrative policies, cited rankings, described the school as " 'A DIPLOMA MILL,' " and called the school's graduates "unemployed." Id. at 251, 833 N.W.2d 331. The speaker "permitted visitors to post their own comments on the website, and frequently responded to the commentators," but he eventually " began to 'filter' comments, noting that he would delete 'any stupid or irrelevant comments or personal attacks[.]' " Id. (alteration in original).
Cooley eventually filed a lawsuit in the Ingham Circuit Court against multiple anonymous defendants, alleging defamation against the anonymous speaker who created the website as well as the other anonymous commenters. A California Court subsequently granted Cooley's petition for a subpoena to compel California-based Weebly, Inc. (Weebly), the entity that operated, "to produce documents that included [the speaker]'s user account information." Id. at 251–252, 833 N.W.2d 331. The anonymous speaker then moved in the Ingham Circuit Court to quash the subpoena or for a protective order, but, in the meantime, an employee of Weebly disclosed the speaker's identity to the school. Id. at 252, 833 N.W.2d 331. After learning the speaker's identity, the school filed an amended complaint that identified the speaker by his legal name. Id. In addressing the speaker's motion to quash or for a protective order, the trial court first struck the school's amended complaint and ordered that the school not continue discovery or disclose the speaker's identity further. Id. at 252–253, 833 N.W.2d 331. Ultimately, however, the trial court denied the speaker's motion to quash, reasoning that the speaker's statements at issue were slanderous per se and, therefore, not entitled to First Amendment protection under Dendrite Int'l, Inc. v. Doe, No. 3, 342 N.J.Super. 134, 775 A.2d 756 (N.J.Super.Ct.2001), and Doe No. 1 v. Cahill, 884 A.2d 451 (Del.2005). Cooley, 300 Mich.App. at 253, 833 N.W.2d 331.
The speaker appealed, and this Court reversed and remanded the case. Id. at 272, 833 N.W.2d 331. Specifically, this Court held that the trial court abused its discretion by applying Dendrite and Cahill rather than Michigan law and also erred in other conclusions. Id. at 267–269, 833 N.W.2d 331. This Court explained, in pertinent part, as follows:
[897 N.W.2d 215]
We conclude that the trial court abused its discretion, which requires reversal. A trial court by definition abuses its discretion when it inappropriately interprets and applies the law. First, the trial court erroneously concluded that Michigan law does not adequately protect [the speaker's] interests, and then it erroneously adopted and applied foreign law. Second, the trial court's findings and conclusions in support of its position were erroneous. Third, the trial court did not state any reason supporting its decision to deny [the speaker's] alternative request for a protective order.

After adopting the Dendrite and Cahill standards as Michigan law, the trial court appears to have considered only two alternatives: (1) that the subpoena should be quashed and Cooley's case dismissed, or (2) that the subpoena should not be quashed and the case should proceed with [the speaker's] name on the complaint. But Michigan law does not address only these polar opposites. [The speaker] also asked for a protective order under MCR 2.302(C). The trial court's order indicates that it denied [the speaker's] requests for a protective order "for reasons stated on the record." But the trial court did not state any reasons on the record to deny the protective order. The trial court appears not to have considered whether or to what extent to protect [the speaker's] identity after it determined not to quash the subpoena. On remand, the trial court should consider whether good cause exists to support [the speaker's] request for a protective order.
Next, the trial court ruled that defamatory statements per se were not entitled to First Amendment protections. The trial court was incorrect. Not all accusations of criminal activity are automatically defamatory. To put it simply, defamation per se raises the presumption that a person's reputation has been damaged. In that instance, a plaintiff's failure to prove damages for certain charges of misconduct would not require dismissal of the suit. Whether a plaintiff has alleged fault—which may require the plaintiff to show actual malice or negligence, depending on the status of the speaker and the topic of the speech—concerns an element separate from whether the plaintiff has alleged defamation per se. Thus, the trial court erroneously concluded that Cooley would not have to prove fault or other elements because the statements were defamatory per se.

More importantly, this erroneous determination was central to the considerations the trial court may balance when determining whether to issue a protective order. As noted above, a trial court may consider that a party seeking a protective order has alleged that the interests he or she is asking the trial court to protect are constitutionally shielded. But the trial court need not, and should not, confuse the issues by making a premature ruling—as though on a motion for summary disposition—while considering whether to issue a protective order before the defendant has filed a motion for summary disposition. The trial court should only consider whether good cause exists to issue a protective order, and to what extent to grant relief under MCR 2.302(C).

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Internet Defamation Subpoena Quash Case - Verifone

As part of many Internet defamation cases, parties find the need to move to quash a subpoena.  Sometimes a non-party Internet Service Provider (ISP) also needs to move to quash the subpoena based on various grounds.  That was the case here with Verifone.  The opinion follows.

Case No.18-mc-80087-VKD
July 23, 2018
Re: Dkt. Nos. 1, 13

Before the Court is non-party Verifone, Inc.'s ("Verifone") Motion to Quash Gesten's Subpoena for Deposition of Verifone, Inc. (Dkt. No. 1) and Ryan Gesten's Motion to Transfer NonParty Verifone Inc.'s Motion to Quash Subpoena to Southern District of Florida (Dkt. No. 13). Having considered the parties' moving papers, declarations, and exhibits as well as the parties' arguments at the hearing on July 17, 2018, for the reasons set forth below, the Court (1) DENIES Verifone's motion to quash the subpoena without prejudice, (2) DENIES Mr. Gesten's motion to transfer the motion to quash, and (3) STAYS Verifone's compliance with the subpoena pending further ruling from the Court.
A. Non-Party Subpoena to Verifone
Ryan Gesten is the plaintiff in an action pending in the Southern District of Florida against Burger King Corporation ("Burger King") for violation of the Fair and Accurate Credit Transactions Act ("FACTA"). Gesten v. Burger King Corp., Case No. 18-20450-Civ-Altonaga (S.D. Fla.) ("the underlying action"). FACTA prohibits retailers or merchants from printing more
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than the last five digits or the expiration date of a credit or debit card number on any receipt provided to the cardholder at the point of sale or transaction. 15 U.S.C. § 1681c(g)(1).
Non-party Verifone reportedly provides software and hardware devices used in credit/debit card transactions, including the printing of receipts. See Dkt. No. 2, Ex. A at 8-9. Verifone is headquartered in San Jose, California, within the Northern District of California. Dkt. No. 1 at 3. On May 18, 2018, Mr. Gesten served a subpoena on Verifone seeking deposition testimony about the Verifone software and devices used at Burger King restaurants, including the software configuration and update processes, the interface between Verifone and Burger King's devices, and any communications between Verifone and Burger King relating the alleged FACTA violation. Dkt. No. 2, Ex. B at 16-17. The subpoena identifies San Jose, California as the place of compliance. Id. at 13.
On May 25, 2018, Verifone moved to quash the subpoena, arguing that: (1) the subpoena is invalid because the issuing court, the Southern District of Florida, lacks subject matter jurisdiction because Mr. Gesten failed to adequately plead a concrete injury and thus lacks Article III standing, and (2) the subpoena demands compliance within 11 days and thus fails to allow reasonable time to comply.1 Dkt. No. 1 at 5-8. Mr. Gesten opposed the motion to quash on the ground that he had suffered concrete injuries that gave him standing, namely: (1) he was deprived of his substantial FACTA rights, (2) he was exposed to the risk of identity theft, (3) his privacy interests were breached by exposing his account information to the Burger King cashier, (4) he had to take additional action to secure the non-compliant receipt to avoid further disclosure of his credit card information, and (5) his privacy interests were harmed. Dkt. No. 21 at 6-13.
On June 11, 2018, Mr. Gesten filed a motion to transfer Verifone's motion to quash pursuant to Fed. R. Civ. P. 45(f), arguing that exceptional circumstances favor transfer because the Southern District of Florida had already found standing to sue in other FACTA cases with similar facts, and because transfer was necessary to avoid conflicting rulings regarding standing. Dkt. No.
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B. Status of Proceedings in the Underlying Action
In the underlying action, Mr. Gesten alleges that Burger King violated FACTA's privacy protections by providing him a receipt that showed the first six digits and the last four digits of his credit card. Dkt. No. 1 at 4. It is not clear whether the Burger King cashier handed Mr. Gesten the receipt directly, or whether the cashier left it lying on a tray on the counter in plain view for less than a minute while Mr. Gesten was occupied with retrieving condiments. Dkt. No. 22-2 ¶ 32; Dkt. 21 at 9; Dkt. No. 21-2 at 54:3-21; see also Dkt. No. 23 at 5 n.7.
Mr. Gesten first sued Burger King for a FACTA violation in July 2017. Dkt. No. 1 at 3. This first action, Gesten v. Burger King Corp., No. 17-22541-Civ-Scola (S.D. Fla.) was dismissed for lack of standing, because Mr. Gesten alleged that he maintained possession of his receipt the whole time and failed to show that any disclosure of his private information actually occurred. Gesten v. Burger King Corp. (Gesten I), No. 17-22541-Civ-Scola, 2017 WL 4326101, at *5 (S.D. Fla. Sept. 27, 2017). Consequently, that court ruled that Mr. Gesten suffered no concrete injury—a prerequisite to Article III standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549-50 (2016) (Congress's role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. . . . A violation of one of the [Fair Credit Reporting Act]'s procedural requirements may result in no harm."); Gesten I, 2017 WL 4326101, at *3-5. Mr. Gesten then re-filed his complaint in Florida state court. Dkt. No. 1 at 4. For some reason, Burger King chose to remove that case to federal court, creating what is now the underlying action (Case No. 18-20450-Civ-Altonaga). Id.
On February 5, 2018, before Verifone's motion to quash was filed in this Court, Burger King filed a motion in the underlying action seeking a stay of all proceedings pending the Eleventh Circuit's review of another case concerning FACTA plaintiffs' standing to bring suit and involving substantially similar facts, Tarr v. Burger King, No. 17-23776-CIV-Moreno, 2018 WL 318477 (S.D. Fla. Jan. 5, 2018). Gesten v. Burger King Corp., No. 18-20450-Civ-Altonaga, Dkt. No. 1-5 (S.D. Fla. Feb. 5, 2018). Judge Altonaga, the presiding judge in the underlying action,
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agreed that the Tarr decision would resolve Mr. Gesten's standing issue, but found that the Tarr appeal only presented a question of venue for Burger King—for if Mr. Gesten lacked Article III standing, then the appropriate remedy would be remand to state court, not dismissal of the action. Gesten v. Burger King Corp. (Gesten II), No. 18-20450-Civ-Altonaga, 2018 WL 1111061, at *2 (S.D. Fla. Feb. 22, 2018). Burger King did not file a motion to dismiss the underlying action, and the parties thereafter engaged in discovery.
While Mr. Gesten and Verifone's motions before this Court were pending, Mr. Gesten filed a motion for class certification in the underlying action. Gesten v. Burger King Corp., No. 18-20450-Civ-Altonaga, Dkt. No. 56 (S.D. Fla. June 18, 2018). In opposing class certification, Burger King argued that Mr. Gesten lacked Article III standing because his claim was collaterally estopped by the Gesten I dismissal, and because he alleged only a statutory violation and suffered no actual harm. Gesten v. Burger King Corp., No. 18-20450-Civ-Altonaga, Dkt. No. 64, at 5-9 (S.D. Fla. June 18, 2018). Counsel for the parties in this matter advised the Court during the July 17, 2018 hearing that briefing on the class certification motion, and in particular the question of standing, is now complete. Thus, the issue of Mr. Gesten's standing is now squarely before the district court in the Southern District of Florida.
A. Rule 45
Rule 45 of the Federal Rules of Civil Procedure governs non-party subpoenas. Under Rule 45(d)(3), the court where compliance is required must quash or modify the subpoena if the subpoena: (i) fails to allow reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. In addition, Rule 45(f) permits the court where compliance is required to transfer a motion to quash to the issuing court if the person subject to the subpoena consents or if the court of compliance finds exceptional circumstances would warrant transfer. The proponent of transfer bears the burden of showing that exceptional circumstances exist. Fed. R. Civ. P. 45(f) advisory committee's note to 2013 amendment.
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Rule 45(f) does not further describe the circumstances that may qualify as "exceptional." However, the Advisory Committee notes reflect the Committee's view that "[i]n some circumstances . . . transfer may be warranted in order to avoid disrupting the issuing court's management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts. Transfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion." Fed. R. Civ. P. 45 advisory committee's note to 2013 amendments.
B. FACTA Standing
Central to Verifone's and Mr. Gesten's motions is the issue of Mr. Gesten's Article III standing to sue under FACTA. If a litigant lacks standing, a federal court lacks authority to adjudicate the case, including issuing deposition subpoenas or other process. See, e.g., Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007) ("[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction). Without jurisdiction the court cannot proceed at all in any cause . . . .") (internal citations and quotation omitted); U.S. Catholic Conf. v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988) ("[I]f a district court does not have subject-matter jurisdiction over the underlying action, and the process was not issued in aid of determining that jurisdiction, then the process is void . . . ."). Because subject matter jurisdiction is fundamental to a federal court's ability to act, a court generally should consider and resolve the question of its jurisdiction at the outset before proceeding with a case on the merits. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) ("Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case.") (discussing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)); see also U.S. Catholic Conf., 487 U.S. at 79-80 ("It is a recognized and appropriate procedure for a court to limit discovery proceedings at the outset to a determination of jurisdiction matters.").
At the pleading stage, a plaintiff must adequately allege facts demonstrating that he or she
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has standing to bring the claim, including, among other things, that he or she has suffered a concrete injury in fact. Spokeo, 136 S. Ct. at 1548; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A "concrete" injury is one that actually exists, and is not abstract or merely prospective. Spokeo, 136 S. Ct. at 1548. In lawsuits where plaintiffs may recover statutory damages for violations of federal statutes—such as FACTA—the U.S. Supreme Court has held that "a bare procedural violation, divorced from any concrete harm" cannot satisfy the injury-in-fact requirement for standing, but a "risk of real harm" can. Id. at 1549. In such a situation, "the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact," and the plaintiff "need not allege any additional harm beyond the one Congress has identified." Id. (emphasis original).
The Ninth, Second, and Seventh Circuits have held that FACTA claims must be dismissed for lack of standing in circumstances where plaintiffs alleged only a procedural violation of FACTA without risk of real harm. See, e.g., Bassett v. ABM Parking Servs., Inc., 883 F.3d 776 (9th Cir. 2018) (affirming dismissal of complaint alleging only non-compliant receipt and risk of prospective harm of identity theft); Katz v. Donna Karan Co., LLC, 872 F.3d 114 (2d Cir. 2017) (same); Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016) (vacating and remanding with instructions to dismiss for lack of jurisdiction and finding no harm where no one else saw the non-compliant receipt).
As of the date of this order, the Eleventh Circuit has not yet considered and decided the issue. At least two FACTA standing cases are pending before the Eleventh Circuit: Muransky v. Godiva Chocolatier Inc., et al., No. 0:15-cv-60716-WPD (S.D. Fla.), appeal filed and argued sub nom. Price v. Godiva Chocolatier Inc., et al., No. 16-16486 (11th Cir.) and Tarr v. Burger King Corp., No. 18-10279-CC (11th Cir.) (stayed pending the decision in Price). Price has been fully briefed, and oral argument was held before the Eleventh Circuit on January 12, 2018.
A. Nature and Scope of this Court's Authority
Verifone argues that this Court must decide whether the issuing court lacks subject matter jurisdiction before it can decide whether exceptional circumstances permit transfer of the motion
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to quash to the Southern District of Florida. Dkt. No. 20 at 5-6. According to Verifone, this Court does not have authority to transfer the motion under Rule 45(f) because the transferee court, which issued the subpoena, lacks jurisdiction, leaving this Court with no alternative but to quash the subpoena. Id. at 5.
There is, however, an important distinction between this Court's authority in this proceeding and the Southern District of Florida's authority in the underlying action. This Court's subject matter jurisdiction is not in question, and the scope of its authority to act to quash or modify a non-party subpoena is informed both by the requirements of Rule 45 and also its inherent power to manage the disposition of matters before the Court in a manner that is conducive to a fair and orderly resolution. See Dietz v. Bouldin, 136 S. Ct. 1885, 1892-93 (2016) ("[D]istrict courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases."); Landis v. N. Am. Co., 299 U.S. 248, 255 (1936) ("[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.").
Verifone is correct that if Mr. Gesten lacks Article III standing, then the Southern District of Florida lacks subject matter jurisdiction, and the subpoena to Verifone is void. U.S. Catholic Conf., 487 U.S. at 76 (lack of subject-matter jurisdiction over the underlying action renders void any process not issued in aid of determining that jurisdiction). But it does not follow that this Court must decide that issue now—particularly when the issue evidently will be decided in short order by the Southern District of Florida itself. Nothing compels this Court to risk disrupting the Southern District of Florida's management of the underlying case by deciding, on a non-party discovery motion, a question of jurisdiction that has been fully briefed by the parties in the issuing court.
Conversely, the circumstances presented in this case, while they might be considered "exceptional" under Rule 45(f), also do not require the Court to transfer the motion to quash to the Southern District of Florida. Rule 45(f) expressly leaves the decision to transfer to the Court's discretion, even if exceptional circumstances exist. Fed. R. Civ. P 45(f) ("When the court where
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compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court . . . if the court finds exceptional circumstances.") (emphasis added).
USA Technologies, Inc. v. Doe, 713 F. Supp. 2d 901 (N.D. Cal. 2010), on which Verifone relies, is informative but distinguishable. In that case, plaintiff USA Technologies ("USAT") brought an action in the Eastern District of Pennsylvania against a Doe defendant for a violation of the federal Securities Exchange Act of 1934 and defamation under Pennsylvania state law based on anonymous Internet postings the Doe defendant made about USAT on a Yahoo! message board. Id. at 904-05. USAT asked the Pennsylvania district court to issue a subpoena to Yahoo! directing it to disclose the anonymous poster's IP address so he or she could be identified. The Pennsylvania court granted the motion without prejudice to the Doe defendant's right to file a timely motion to quash.
Once the subpoena issued, the Doe defendant filed a motion to quash in the Northern District of California. Because the subpoena implicated important First Amendment protections for anonymous speech, the California district court required USAT to meet certain requirements, including an evidentiary showing of facts necessary to support a prima facie case for its securities and defamation claims. Id. at 906-07 (applying test from Highfields Capital Mgmt. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005), requiring plaintiff seeking to compel identification of an anonymous online speaker to first adduce, without discovery, competent evidence addressing all factual inferences required to support a prima facie case on all elements of the claim). The California district court found that USAT could not make this showing for either claim and quashed the subpoena. In so doing, the court observed that, while the case remained pending before the Pennsylvania court and that court would ultimately have to decide the question of federal jurisdiction, "the apparent deficiency of the [securities] claim, which is the sole basis for federal jurisdiction in this case, is an appropriate basis to grant the Motion to Quash." Id. at 907-08.
In USA Technologies, the Eastern District of Pennsylvania did not have before it the question of federal question jurisdiction at the same time the Northern District of California was considering whether USAT could demonstrate a prima facie case in support of its federal
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securities claim. Indeed, the underlying action in the Eastern District of Pennsylvania could not proceed unless and until USAT first obtained information via subpoena to Yahoo! identifying the Doe defendant. By contrast, in this case the question of subject matter jurisdiction that Verifone ask this Court to decide on a motion to quash is also currently before the Southern District of Florida.
B. Stay of Compliance with Subpoena
In this case, the Court determines that a stay of Verifone's compliance with the subpoena pending best serves the competing interests presented by the parties' motions. Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (summarizing considerations informing an order to stay). A stay necessarily delays Mr. Gesten's ability to obtain deposition discovery from Verifone, but this delay (assuming it is brief, as the Court expects it will be) will not unduly prejudice Mr. Gesten's ability to prosecute his claims. Conversely, if Verifone is required to proceed with the deposition or re-litigate the motion to quash before the Southern District of Florida before that Court decides the question of subject matter jurisdiction, it runs the risk of incurring unnecessary expense. Finally, the decisions that have already issued from the Ninth, Second, and Seventh Circuits in FACTA cases with facts similar to those Mr. Gesten alleged suggest the Eleventh Circuit likely will reach the same conclusion regarding the requirements for standing in such cases. The Southern District of Florida will then decide the question of standing on the particular facts of the case before it. It is in the best position to do so.
Accordingly, the Court exercises its inherent power to manage the disposition of pending matters and stays Verifone's compliance with the deposition subpoena pending a decision on the question of subject matter jurisdiction in the underlying action and further order of this Court. If the Southern District of Florida determines that Mr. Gesten has standing, the deposition of Verifone will proceed according to the subpoena, as Verifone makes no other objections beyond undue burden due to lack of subject matter jurisdiction. If, instead, it determines that Mr. Gesten lacks standing, the subpoena to Verifone will be invalid and the deposition will not proceed.
For the foregoing reasons, the Court (1) DENIES Verifone's motion to quash the subpoena
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without prejudice, (2) DENIES Mr. Gesten's motion to transfer the motion to quash, and (3) STAYS Verifone's compliance with the subpoena pending further order of this Court. The parties shall notify the Court of the Southern District of Florida's decision on the question of subject matter jurisdiction promptly after it issues.
Dated: July 23, 2018
United States Magistrate Judge


1. At the July 17, 2018 hearing, Verifone acknowledged that the date originally set for its deposition has passed. Verifone now focuses its argument on the undue burden of having to respond to discovery in a proceeding that it argues should be dismissed for lack of jurisdiction.

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Cyber Defamation Lawsuit and Journalistic Privilege - Abraham v. Greer

This case illustrates the competing interests involved when journalism is used as a claimed privilege during a cyber defamation lawsuit.  How is actual malice proven during the case?  The opinion follows:

509 S.W.3d 609
Salem ABRAHAM, Appellant
Daniel GREER and Fix the Facts Foundation d/b/a AgendaWise, Appellee
No. 07–12–00494–CV
Court of Appeals of Texas, Amarillo.
November 30, 2016
Rehearing Overruled December 27, 2016
Discretionary Review Denied April 21, 2017

Journalism privilege can be asserted as a defense to an Internet defamation lawsuit, but who exactly is a journalist? - Domingo J Rivera

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Brian Quinn, Chief Justice
Upon reversing and rendering a decision on the first issue we addressed via our prior opinion in this cause, the Texas Supreme Court directed us to consider the remaining issues raised by Salem Abraham. Greer v. Abraham , 489 S.W.3d 440, 448 (Tex. 2016). It should be recalled that he appealed from an order dismissing his libel suit against appellees Daniel Greer and Fix the Facts Foundation d/b/a AgendaWise. That dismissal occurred under the framework of Chapter 27 of the Texas Civil Practice and Remedies Code. The remaining issues before us involve 1) the claim of journalist privilege urged by a deponent during his deposition, 2) the status of Greer and AgendaWise as journalists, and 3) the constitutionality of Chapters 22 and 27 of the Civil Practice and Remedies Code. We overrule each and affirm the order.
The dispute arose from the publication of Greer and AgendaWise of an article in their internet column. It falsely accused Abraham of engaging in certain conduct at a political event. The initial falsehoods were retracted, though the writer uttered another falsehood against Abraham in the retraction. This sequence of events resulted in Abraham suing Greer and AgendaWise for libel. Greer and AgendaWise moved to dismiss the suit under Chapter 27 of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001, et. seq.1 After permitting abbreviated discovery and conducting a hearing on it, the trial court granted the motion.
In our initial opinion, we dealt with whether Abraham was obligated to prove actual malice, given his status as an elected member to the local school board in rural Texas. Our decision that he did not was reversed by the Supreme Court. It then remanded the cause to us for consideration of the remaining issues raised by Abraham in his initial appeal.
[509 S.W.3d 612]
In response to the Supreme Court's decision, we afforded all parties opportunity to file supplemental briefing. Each accepted the chance.
Issue One—Failure to Rule
The first issue we address concerns Abraham's complaint about the trial court failing to "... rule[ ] upon [his] Motion to Overrule Privilege Objections and Order Disclosure Pursuant to Texas Civil Practice and Remedies Code Section 22.024 and ordering Daniel Greer to fully testify." The motion was filed on the day the trial court was statutorily required to rule upon the motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(a) (stating that "[t]he court must rule on a motion under Section 27.003 not later than the 30th day following the date of the hearing on the motion."). The motion was not ruled upon, as reflected in the trial court's findings of fact and conclusions of law. More importantly, Abraham did not object to the omission before the order of dismissal was signed or via a motion for new trial. Such is fatal to his complaint on appeal. TEX. R. APP. P. 33.1(2)(B) (specifying the requirements for preserving a complaint for review, one of which mandates that the record show that the complaining party objected to the trial court's refusal to rule on a motion, objection, or request); Phillips v. Bramlett , 258 S.W.3d 158, 170 (Tex. App.—Amarillo 2007), reversed on other grounds , 288 S.W.3d 876 (Tex. 2009) (holding that "[t]o preserve a complaint for appeal, the complaining party is required to obtain an adverse ruling from the court or object to the trial court's refusal to rule."). Having failed to object at the earliest opportunity available (i.e. the motion for new trial), Abraham did not preserve his complaint, which, in turn, bars us from considering it. FDIC v. Lenk , 361 S.W.3d 602, 604 (Tex. 2012) (directing that "[w]hen a party fails to preserve error in the trial court or waives an argument on appeal, an appellate court may not consider the unpreserved or waived issue."). The issue is overruled.
Issue Two—Journalist
Next, Abraham contends that the trial court erred in ruling that Greer and AgendaWise were journalists. We overrule this issue for several reasons.
First, Abraham raised the matter of Greer and AgendaWise not being journalists in both a response to their motion to dismiss and in his "Motion to Overrule Privilege Objections ..." to which we alluded above. And, as discussed above, the trial court did not rule on the latter, which inaction drew no timely or contemporaneous complaint from Abraham to the trial court. Given these circumstances, the issue of whether Greer and AgendaWise were journalists was not preserved for review. Phillips v. Bramlett, supra .
Second, in perusing the trial court's findings of fact and conclusions of law, we found none holding Greer or AgendaWise to be "journalists."2 Nor did it hold, via its factual findings and conclusions of law, that Greer or AgendaWise were "journalists." Indeed, the possibility of Greer invoking
[509 S.W.3d 613]
the journalist's privilege was broached in a telephonic hearing conducted on October 11, 2012, or twenty-nine days after the trial court held its initial hearing on the motion to dismiss. At that October 11th proceeding, the trial court granted Abraham's request for limited discovery, that is, his request to depose Greer. Greer's counsel then informed the court that Greer would most likely invoke the journalist's privilege. This lead the trial court to observe that: 1) "the journalist part comes in after he asserts his privilege," and 2) "... if he asserts the privilege then [Abraham] can question him on whether or not he qualifies for the privilege ... I think the threshold issue is he's going to have to ask him something to—that would be—allow him to assert the privilege." We construe these observations as revealing that the trial court did not rule upon whether Greer was a "journalist" before the deposition occurred. Nor did it convene a subsequent hearing to address the matter or resolve the dispute in its findings of fact and conclusions of law, order of dismissal, or letter rulings.
Nonetheless, we encountered a conclusion of law wherein the trial court described both Greer and "Fix the Facts Foundation" (i.e. AgendaWise) "as print media." What the trial court intended by that term is something no one addressed in their respective appellate brief. Nor do we find it within the definition of "journalist" provided in § 22.021 of the Civil Practice and Remedies Code. However, if we were to assume arguendo that the term somehow alluded to the phrase "news medium" under § 22.021(3) of that same Code and, therefore, meant Greer and AgendaWise were "journalists," we would remain obligated to overrule the issue.3
Abraham argued in his initial brief that "AgendaWise did not meet any of the earmarks of being a ‘news medium.’ " This was so because it did "not disseminate news or information to the public" but rather "... simply posts the opinions of the Empower Texans PAC, and attacks opponents of its favored political candidates." If, as suggested by Abraham, the lack of bias were the true barometer for whether an entity or individual was a "news medium" or "journalist," then few businesses historically deemed to be part of the news media would qualify as journalists or news media. Indeed, newspapers commonly endorse particular candidates running for elected office. That certainly shows a bias. Yet it cannot be denied that they nonetheless engage in journalistic activities.
Bias and selectivity in reporting is not the test. Rather, an entity or person gains the status of "news medium" by falling within the definition of the phrase. And, the legislature provided us with the applicable definition. In chapter 22 of the Civil Practice and Remedies Code, we are told that a "news medium" is "... a newspaper, magazine or periodical, book publisher, news agency, wire service, radio or television station or network, cable, satellite, or other transmission system or carrier or channel, or a channel or programming service for a station, network, system, or carrier, or an audio or audiovisual production company or Internet company
[509 S.W.3d 614]
or provider, or the parent, subsidiary, division, or affiliate of that entity, that disseminates news or information to the public by any means, including ... print ... [and] other means, known or unknown, that are accessible to the public." TEX. CIV. PRAC. & REM. CODE ANN. § 22.021(3). It is the part of the definition alluding to the dissemination of "news and information to the public" that Abraham apparently believes AgendaWise and Greer failed to meet.4 Yet, what is the published article underlying Abraham's claim of defamation? It purported to describe various political races and the identity of donors to the candidates running in those races. That is the dissemination of "information." See "information" MERRIAM–WEBSTER ,, (last visited November 4, 2016) (defining "information" as "knowledge you can get about someone or something" and "facts or details about a subject"); Information Definition , DICTIONARY.COM , (last visited November 4, 2016) (defining "information" as knowledge communicated or received concerning a particular fact or circumstance," "news," "knowledge gained through study, communication, research, instruction, etc.," and "factual data"). It also solicited and secured "press credentials" from and reported on other political events throughout Texas. That too is the dissemination of "information." Other evidence of record indicates that it gathered and reported on "proceedings" occurring in the State Capitol. That such is the dissemination of "information" cannot be reasonably disputed either. Nor can it be reasonably disputed that placing articles written by the few AgendaWise staff on the internet is anything short of dissemination of the article's content to the public by a "means ... accessible to the public." See Kaufman v. Islamic Society of Arlington , 291 S.W.3d 130, 141 (Tex. App.—Fort Worth 2009, pet. denied) (observing that courts have recognized the internet as a type of nontraditional electronic media).
One may not agree with the article's content. One may also find the article's slant to be objectionable. But, finding the content acceptable to one's senses is not determinative here. Nor does it matter if the writer or entity publishing the missive fits some historic concept of journalism. What controls here is the definition provided by the legislature in § 22.021(3) of the Civil Practice and Remedies Code. More importantly, the trial court had before it sufficient data on which to conclude that AgendaWise and Greer disseminated information to the public via a medium accessible to the public as contemplated by that statute. So, to the extent that the trial court intended the phrase "print media" to mean "news medium," we cannot say its decision constituted an abuse of discretion. See In re Living Ctrs. of Tex., Inc. , 175 S.W.3d 253, 261 (Tex. 2005) (holding that decisions regarding whether a person is entitled to an evidentiary privilege are reviewed under the standard of abused discretion).
Issue Three—Constitutionality of Statutes
Finally, Abraham raises constitutional issues implicating the open courts provision of our Texas Constitution5 and the due process clauses found in both the
[509 S.W.3d 615]
Texas6 and United States7 Constitutions. Specifically, he contends that Chapters 22 and 27 of the Civil Practice and Remedies Code are unconstitutional when read independently and together. However, his discussion only encompasses 1) the impact of those statutes when read together and 2) the application of the open courts provision. Thus, our comments will be limited to scope of his discussion.8 See Thomas v. State , No. 02–14–00441–CR, 2016 WL 4538556, 2016 Tex. App. LEXIS 9811 (Tex. App.—Fort Worth August 31, 2016, no pet.) (mem. op., not designated for publication). And, the substance of Abraham's argument is:
... § 27.003(c) handcuffs a plaintiff from obtaining discovery of necessary elements of proof, proof which almost certainly is in the sole control of the defendant, while § 22.023 makes the disclosure of evidence of the necessary element of proof of malice undiscoverable, even if any discovery is allowed or permitted. When a privilege under § 22.023 is asserted in defense of a defamation claim, §§ 27.001, et seq, creates an impossible condition for a violated plaintiff to obtain access to the courts for a remedy ... These statutes constitute an unconstitutional ‘Catch 22.’
It is beyond dispute that the open courts provision of the Texas Constitution guarantees litigants the right to their day in court. Offenbach v. Stockton, 285 S.W.3d 517, 522 (Tex. App.—Dallas 2009), aff'd, 336 S.W.3d 610 (Tex. 2011). But, it is not absolute. Rather, " ‘it guarantees that a common law remedy will not be unreasonably abridged.’ " Tenet Hosp. Ltd. v. Rivera , 445 S.W.3d 698, 703 (Tex. 2014) ; quoting Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504 (Tex. 1995). That is, while a statute that totally forecloses judicial review may violate the provision, one that merely presents hurdles to judicial review may withstand scrutiny. Offenbach v. Stockton , 285 S.W.3d at 522–23. And, as previously mentioned, "... an open courts challenge is a due process complaint" which also "requires the party to use due diligence." Id. Indeed, a complainant may not obtain relief from the provision if he does not exercise due diligence in pursuing his claim. Stockton v. Offenbach , 336 S.W.3d 610, 618 (Tex. 2011). With this in mind, we turn to the dispute at bar.
Abraham is correct in arguing that upon a defendant moving to dismiss a suit encompassed by §§ 27.001 et. seq. of the Civil Practice and Remedies Code, the continuation of discovery is impeded. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(c) (stating that "[e]xcept as provided by Section 27.006(b), on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss."). Impeded though does not mean prohibited. As discussed by the language of both § 27.003(c) and § 27.006(b), some discovery is permissible. That is, the trial court "may allow specified and limited discovery relevant to the motion" to dismiss, upon a showing of
[509 S.W.3d 616]
"good cause." Id. § 27.006(b). Such discovery may also encompass effort to depose witnesses having relevant information, including "journalists." And, that the latter may invoke the journalist privilege encompassed in § 22.023 of the Civil Practice and Remedies Code does not necessarily mean the plaintiff's ability to pursue his libel claim is thwarted. This is so because a trial court retains the authority to compel such witnesses "to testify regarding or to produce or disclose any information, document, or item or the source of any information, document, or item obtained while acting as a journalist" upon the satisfaction of certain prerequisites. Id. § 22.024 (describing those prerequisites as proof that 1) all reasonable efforts have been exhausted to obtain the information from alternative sources; 2) the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information; 3) reasonable and timely notice was given of the demand for the information, document, or item; 4) in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist; 5) the subpoena or compulsory process is not being used to obtain peripheral, nonessential, or speculative information; and 6) the information, document, or item is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure). So, the contention that "... § 22.023 makes the disclosure of evidence of the necessary element of proof of malice undiscoverable, even if any discovery is allowed or permitted" is inaccurate. Discovery could occur even though the target of discovery invoked a privilege.
Admittedly, though, the time frame in which one may pursue such discovery was somewhat abbreviated. According to statute, the trial court had to rule on the motion to dismiss within thirty days of the date on which it heard the motion. Id. § 27.005(a). If it did not do so, then the motion was deemed denied by operation of law, and the movant was then entitled to appeal. Id. § 27.008(a). Yet, the statute did not denote a time certain by which the hearing had to be held. Rather, its directive that a "hearing ... must be set not later than the 30th day after the date of service of the motion unless the docket conditions of the court require a later hearing," Id. § 27.004, was construed as referring to the act of setting a hearing, not to the act of holding a hearing. In re Lipsky , 411 S.W.3d 530, 540–41 (Tex. App.—Fort Worth 2014, pet. denied). This meant that the trial court had some flexibility in extending the time for a hearing, despite the need for a relatively quick decision. Id. (wherein the trial court granted a motion to continue the hearing and ultimately heard the motion over four months after it was filed).
When read together, sections 22.023, 22.024, 27.003(c), 27.004, 27.005(a) and 27.006(b) of the Texas Civil Practice and Remedies Code reflected a limitation upon the ability to freely prosecute a defamation suit. When read together they evince legislative desire to have jurists quickly address motions to dismiss filed under § 27.003(a) of that same Code. Yet, that desire did not foreclose the prosecution of a defamation suit. Measures were included within both Chapters 22 and 27 of the Texas Civil Practice and Remedies Code to assure that the defamed person had opportunity to garner necessary evidence.
[509 S.W.3d 617]
We further note that Abraham did not complain before us of the time periods involved or of some legal impediment to satisfying the requirements of § 22.024 and, thus, overcoming a journalist's claim of privilege. Nor did he complain before us of the trial court's decision to hold a hearing within a month of the date on which Greer and AgendaWise moved to dismiss the suit. Indeed, missing from the record is any written motion on his part to continue the hearing date for any reason, including one founded upon the need to conduct limited discovery. Moreover, Abraham received opportunity to not only conduct limited discovery but also present that discovery and supplemental briefing to the trial court before it actually ruled on the motion to dismiss. The record is silent on why the discovery was afforded to Abraham only days before the trial court was statutorily obligated to rule on the motion to dismiss. What is known, though, is that twenty-nine days lapsed between the date on which the trial court heard the motion to dismiss and the date on which Abraham was granted leave to depose various individuals. Given that twenty-nine day period, the statutory need for timely action, and the trial court's apparent recognition of that need, it is conceivable that such discovery could have occurred in ample time to address potential claims of journalist privilege. Yet, we are left to guess at what, if anything, happened during that period and why discovery was not vigorously pursued earlier. So, the circumstances at bar do not permit us to conclude that the interplay between Chapters 22 and 27 of the Civil Practice and Remedies Code "unreasonably abridged" Abraham's common law remedy for defamation. The interplay did not contravene the open courts provision of the Texas Constitution under the particular facts before us.
Accordingly, the remaining issues which the Texas Supreme Court directed this court to consider are overruled, and the order of dismissal is affirmed.


1 The statute was amended in part in 2013. See Act of June 14, 2013, 83rd Leg., R.S., ch. 1042, § 1, 2013 Tex. Gen. Laws 1042. The suit before us was filed in 2012. Thus, we apply those provisions of Chapter 27 of the Civil Practice and Remedies Code in effect when suit was filed and before the 2013 amendments. See Act of May 18, 2011, 82nd Leg., R.S., ch. 341, § 1, 2011 Tex. Gen. Laws 961 (stating that "[t]he change in law made by this Act applies only to a legal action filed on or after the effective date of this Act [June 17, 2011].").

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Summary Judgment Is... Summary Judgment

Recently, a question came up regarding one of my previous cases.  I have claimed that I obtained summary judgment in a case involving computer fraud and abuse and computer trespass in the Arkansas Federal Courts.  I also explained that, according to the presiding judge, this was the first case of its kind heard in the U.S. District Court ...
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Wordpress Malware - Command and Control and Advertisements

​This is a post about malware that can be injected into the Wordpress CMS, the article is written by attorney Domingo J. Rivera .  Wordpress is an easy to use and very popular content management system (CMS).  Currently, it powers the majority of all Internet sites.  As such, it is a target of exploitation, and probably not a di...
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Attorney Domingo Rivera Chosen as one of the "Top 100 Trial Lawyers"

Domingo J. Rivera was selected as one of the Top 100 Trial Lawyers by the National Trial Lawyers Association. Membership into The National Trial Lawyers Association is by invitation only and is limited to the Top 100 Trial Lawyers from each state.

Selection for The National Trial Lawyers Association is extended to civil plaintiff and criminal defense attorneys by special invitation. Candidates are considered for membership in The National Trial Lawyers Association based on superior qualifications, leadership, reputation, influence, stature, and profile in the Trial Lawyer community.

It is considered a great professional achievement to be selected for The National Trial Lawyers: Top 100. Mr. Rivera was first attorney in the United States to obtain a major victory after a jury trial against the FBI and the DOJ in an case involving criminal copyright infringement allegations. The client was accused of being the leader of the world's most prolific music piracy group. The case began in the United States District Court for the Eastern District of Virginia and was decided in the USDC for the Southern District of Texas.

Mr. Rivera has obtained Summary Judgment in Federal cases involving computer trespass including the first civil case based on the Computer Fraud and Abuse Act and the Stored Communications Act decided by the Arkansas Federal Court.

Attorney Domingo Rivera has also obtained Summary Judgment in Federal cases involving online defamation, trademark infringement, invasion of privacy. Also obtained Summary Judgment involving online defamation and trademark infringement in the USDC for the Middle District of Florida.
Has won cases involving Internet defamation in several State and Federal Court cases after hotly contested trials.

Mr Rivera regularly teaches CLEs to other attorneys on Internet law matters and has published scholarly articles in widely published legal publications regarding issues related to Internet law and Internet defamation. Mr. Rivera is also one of the few attorneys holding Information Security Certifications, including the prestigious CISSP, GPEN, GCIH, GSLC, CEH. Of those, is also one of the select few with vast experience defending highly sensitive computer networks.

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Internet and Cyber Law Practice Areas

Some of Our Areas of Practice Include:

We can provide you with knowledge and assistance of Internet Law.  You may need the services of an Internet Lawyer because someone has infringed your copyright by copying contents of your website or by unauthorized posting of your Intellectual Property.  Perhaps your trademark is being infringed by the registrant of a domain name or the operator of a website.  Maybe the infringement is hidden in metatags, title tags, or anchor links...You may be the victim of Internet defamation or accused of a cyber crime.   Your business may need to prepare or respond to an Internet law cease and desist notice.

You may be in the process of starting an Internet business, negotiating your website development or hosting agreement, drafting your affiliate agreements, privacy policy, terms of use.  Your business may also be interested in having an attorney with knowledge of Internet Law to review your website for compliance with the law and to help keep you from litigating.   If you or your business has any Internet legal issues, the importance of having an Internet technical expert as your Internet trial lawyer cannot be overstressed. Whatever your Internet law questions are, Domingo J. Rivera and his team are your cyber lawyer, Internet business attorney, and Internet intellectual property law firm.

Domingo J. Rivera has unique Internet lawyer qualifications. For example, based on our research, attorney Domingo J. Rivera is the only Internet lawyer who has a background in Computer Engineering, an MBA, and experience with critical projects with the U.S. Defense as well as a wealth of knowledge in computer forensics.  He has also tried a vast number of civil and criminal cases and has highly polished practical courtroom skills.  Sometimes, it is not about being the largest Internet Law firm, but about being smart and well-qualified.

Domingo Rivera, Internet Lawyer, has appeared as lead counsel in Internet cases throughout the Nation including Virginia, California, Arizona, Arkansas, and Texas... Although admitted to practice law in Virginia, he has appeared in Internet Law cases in a pro hac vice capacity, allowing clients throughout the Nation to obtain quality representation for Internet Law matters.  In addition to Virginia, Mr. Rivera is also admitted in the Arkansas Federal Courts and in the United States District Court for the Southern District of Texas.

Domingo Rivera utilizes his Internet Lawyer skills to assist businesses and individuals with all issues related to Internet Law in the United States and internationally and has represented clients located in England (U.K.), and various European countries.  We are your Internet Law counsel when you have Internet Law Issues, including:

Internet Copyright Infringement - Our Internet copyright Infringement attorneys can assist you if:

  • Your website contents are stolen
  • You received a copyright infringement cease and desist letter
  • You need a copyright infringement cease and desist letter sent
  • Your website is taken down as a result of a DMCA takedown request
  • You are be involved in copyright infringement litigation
  • You are arrested and accused of criminal violations of copyright laws, including conspiracy to commit copyright infringement

Internet Trademark Infringement - As an Internet Law firm, we are experts in trademark infringement matters, and can assist you with matters involving:

  • Bad faith domain name registration in violation of trademark rights
  • Cybersquatting issues
  • Cyber piracy
  • Internet trademark infringement in website meta-tags
  • Internet trademark Infringement in search engine advertisement keywords
  • Internet trademark infringement litigation
  • Use of your trademark to defame your business commercially or to promote a competitor

Internet Defamation - Our Internet defamation attorneys can provide expert assistance when:

  • Defamatory posts in and Internet blog or Internet forum damage your reputation or your business
  • Libel being spread through the use of the Internet affects you
  • Competitors attempt to gain an advantage by defaming you online
  • Defamatory statements on the Internet prevent you from advancing your career
  • Internet defamation litigation
  • False and libelous statements posted in online "ratings" websites
  • and more....

Cyber Crime Defense and civil liability under the Computer Crimes Act - Our Internet crimes defense attorneys can protect your rights when you are accused of:

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Cybersecurity: Stuck Between Advanced Hackers, Government Regulators, and Liability

Cyber attacks occur every second of every day. The frequency and sophistication of the attacks
continues to rise. With the increased sophistication and the proliferation of corporate espionage and nation-state actors, the days of curious teen hackers trying to prove their worth are behind us.  Now the threat is bigger and better financed, the stakes are higher, and government intervention changes the landscape. Cybersecurity is now a top priority for businesses and government.

We start with a brief summary of some of the recent major cyber attacks. This list is purposely kept short as to show only the more “elite” type of attacks that are shaping the new cyber landscape.  Given their level of sophistication, these attacks frequently require in-depth analysis by computer forensics experts.  Here, we are focusing on the legal aspects only.

Timeline of Advanced Cyber Attacks

Advanced Cyber Attacks of 2010: One Word: STUXNET

Stuxnet makes clear that cyber attacks have escalated to new heights. The Stuxnet worm damaged Iranian uranium enrichment centrifuges. Stuxnet temporarily knocked out some of the
centrifuges at Iran's Natanz nuclear facility. This caused a delay to Iran’s uranium enrichment program.  This attack was very effective and stealthy, giving birth to the new cyber warfare.

Advanced Attacks of 2011

China: Its “Comment Group” penetrated the Diablo Canyon nuclear plant operated by Pacific Gas & Electric Co. The breach was reportedly facilitated through a breach of a senior nuclear planner’s computer. There is no indication of intent to damage the target.  Reconnaissance is the name of the game, no need to break it if you can own it.

Canada: The Canadian government reported a major cyber attack against its agencies, including Defence Research and Development Canada, a research agency for Canada's Department of National Defence.  This particular attack forced the Finance Department and Treasury Board, Canada’s main economic agencies, to disconnect from the Internet.

US Department of Defense, July 2011: in a speech unveiling the Department of Defense’s cyber strategy, the US Deputy Secretary of Defense mentioned that a defense contractor was hacked and 24,000 files from the Department of Defense were stolen.

The Nitro Attacks: Through trickery and social engineering, attackers tricked users into downloading Poison Ivy, an off the shelf Trojan. This was a targeted attack directed at at companies involved in the research, development and manufacture of chemicals and advanced materials. After the compromise, the attackers issued instructions to the compromised computers, looking for passwords and data exfiltration.

Duqu Trojan: Industrial Control Systems (ICS) are compromised by the Duqu remote access Trojan (RAT).  Its purpose was to steal data. However, RATs can also be used to control the systems. If you don’t believe that this is a serious threat, think of nuclear power plants and imagine what could happen.

Advanced Attacks of 2012

Saudi Aramco: A destructive Trojan horse (the kind that steals data and then wipes files), Shamoon, is allegedly used in an attack that disabled thousands of computers at Saudi Aramco, the national oil company of Saudi Arabia. The attack wiped the hard drives of 55,000 computers or 75% of Aramco’s corporate computers.

Flame: Another Iran related malware and a very sophisticated one. Flame is believed to have caused data loss incidents at Iran's oil ministry. The alleged use of the malware was to collect intelligence about Iran's computer networks that would facilitate future cyberattacks on computers used in Iran’s nuclear fuel enrichment program.

U.S. Natural Gas Pipelines: The Industrial Control Systems Cyber Emergency Response Team (ICS-CERT), U.S. Department of Homeland Security, issued an alert warning of ongoing cyber attacks against networks of U.S. natural gas pipeline companies. The alert stated that the campaign involved narrowly focused spear-phishing scams targeting employees of the pipeline companies. The alert urged utilities to monitor Internet-facing control systems for activity by hackers attempting to gain remote access through brute force authentication attacks.

U.S. Banks: Distributed Denial of Service (DDOS) attacks were launched against U.S. Banks, including Citigroup, Wells Fargo, Bank of America, and U.S. Bank. The U.S. accused Iran of staging these attacks and Defense Secretary Leon Panetta warns of potential for a "cyber Pearl Harbor" against critical infrastructure. Panetta also called for new protection standards.

Red October Returns: Kaspersky discovered a worldwide Red October attack. Red October had been around since at least 2007. Attackers gathered information through vulnerabilities in Microsoft’s Word and Excel. The malware collected information from government embassies, research firms, military installations, energy providers, nuclear and other critical infrastructures.

Early 2013 Cyber Attacks: 2013 Is The Year The Government Gets Serious

South Korea: South Korean financial institutions as well as the Korean broadcaster YTN had their networks infected in an incident said to resemble past cyber efforts by North Korea.

The list goes on and on. As it should be obvious by now, cyber attacks, particularly those by sophisticated attackers and nation-states can be very dangerous to business and society. While money is a motivator, the exfiltration of valuable data has become a major issue. There is also the potential threat to life and business. With that in mind, the government is in the process of drafting and enacting sweeping cybersecurity laws and regulations.

Congress failed to reach a consensus on cybersecurity legislation. Following that, in early 2013,
President Obama issued a cybersecurity Executive Order 13636 to enhance the security of the critical infrastructure of the United States.

A very raw outline of Executive Order 13636 is as follows:

What? (Purpose): Help owners and operators “identify, assess and manage cyber risks”
Who? : NIST will coordinate development of “Cybersecurity Framework”
End Result: “Voluntary consensus-based standards and industry best practices”
But? (Caveats): Participation is voluntary but the Framework will most likely be used to judge a company’s cybersecurity practices. For example, Sec. 7(b) states that it “shall include guidance for measuring the performance of an entity in implementing” the Framework.

The Executive Order requires federal agencies to share information about cyber threats and to work with the private sector to develop a cybersecurity framework to protect the critical infrastructure. For now, participation is voluntary and the Executive Order requires federal agencies to develop incentives for private sector adoption of the framework. Our guess is that some of the recommendations included in the develop framework would eventually be seen as the exercise of due care by the courts when determining liability for cybersecurity breaches.

Cyber Intel Notices: The Executive Order provides for the issuance of Catastrophic Target Notices. These notices identify “where a cybersecurity incident could reasonably result in catastrophic regional or national effects.” It is unclear how the notices may affect a business in the determination of due diligence. You can fore
see a case where a Court would decide that DHS put the company on notice of a cybersecurity vulnerability an
d that the company had the o
bligation to act in accordance with this notice. A party may have a difficult time challenging the validity of the notice, given that the information may have been derived from classified sources.  Whether the Cyber Intel notices will became a source of notice for due care determination remains to be seen. However, we are getting guidance on how the Courts are leaning regarding cybersecurity due care issues. ''

An example is the case of Patco Construction Co. v. People’s United Bank, 684 F.3d 197 (1st
Cir. 2012). The events occurred in 2009. During a one week period, a bank in Maine authorized fraudulent electronic withdrawals from Patco Construction’s account. The bank’s cybersecurity system had flagged the transactions as high-risk. However, the attackers were able to answer the account security questions and the transactions were allowed. Patco Construction filed suit against the bank alleging that the bank’s cybersecurity practices were not “commercially reasonable” under Article 4A of the UCC.

The bank was successful in obtaining Summary Judgment. In December 2012, the United States Court of Appeals for the First Circuit reversed, holding that by the authentication scheme utilizing the security questions for every transaction exposed the bank’s customers to increased risk. The Court recognized that malware often logs keystrokes. The bank had a duty to monitor the suspicious transactions that had been flagged by its cybersecurity engine or provide notice to Patco Construction. In other words, the Court of Appeals decided that the bank’s cyber security practices were not “commercially reasonable.”

Not unexpectedly, the FTC already filed a case against HTC, a manufacturer of smartphones and other devices.  The case is In the Matter of HTC America Inc., FTC File No. 122 3049. The case stems from multiple flaws and vulnerabilities in mobile devices that HTC created or failed to remediate.

Some of the faults identified include:

1. Permission re-delegation vulnerabilities in its preinstalled applications. According to the FTC, HTC’s custom voice recorder could be exploited to allow third-party access to the device's microphone without the user’s consent. This flaw could allow an attacker to record conversations, track a user’s location, or perpetrate other fraud.

2. Carrier IQ implementation: According to the FTC, In order to assist carriers in their implementation of the Carrier IQ diagnostic software, HTC developed a “CIQ Interface” that would pass the necessary information to the Carrier IQ software. HTC used an insecure communications mechanism which allowed third-party applications on the user's device to communicate with the CIQ Interface.

The FTC and HTC entered into a settlement. Under the terms of the settlement, HTC must patch the vulnerabilities and establish a comprehensive security program. HTC must also undergo independent security assessments every other year for the next 20 years and is prohibited from making false or misleading statements about the security and privacy of consumers' data on its devices.

We will continue to keep you informed of the latest issues arising from cyber security, cyber threats, government regulation of cyberspace as well as what it all means to your business.

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Anonymous Internet Cowards and Public Interest Law Firms

In our efforts to identify the authors of defamatory contents targeting our clients, we utilize many methods.  Sometimes we issue subpoenas, but that is not all we do.  Our Internet law firm stands out for our use of technology to assist our clients, methods that, in my experience, most lawyers don't even understand.   Will the evidence be admissible?  I submit to you that it does not really matter.  Once the target is identified, if litigation results our client will be entitled to issue discovery, which will need to be answered under oath.  If the target lies, we will have enough to impeach this person in front of a jury.  As a technology guy, I find this more effective (and absolutely less boring) than writing sleep-inducing legal briefs.   By the time these briefs are filed, we have often identified the author through technology.

Now, some people who get these subpoenas are faced with a choice, fight the subpoena or try to work it out.  So, they seek advice from "Uncle Google", where they may find some of the aforementioned briefs filed by certain "public interest" law firms contesting the subpoenas.  Due to my results-oriented approach and lack of interest in useless debate, I have refrained from posting what happened in these cases.  Rest assured, we got what we wanted and the subpoenas were moot as unnecessary.  Lesson learned: to the extent permitted by law, we will use technology to stay ahead of dinosaur law firms.  This is important, because whether you are Dr. M.L. posting about a fellow doctor, D.A. from San Francisco, Dr. J.E. posting about a newly graduated surgeon, or a school teacher from Florida posting during working hours at the taxpayer's expense, it is very likely that we will get to you, legal briefs or not.   (Note that the initials were used to protect the identities of those involved, at least for the time being).

Now, what about the First Amendment?  We all know that opinions regarding matters of public interest are protected.  If someone writes about a doctor (or any other business or professional) claiming to be a patient (or customer), do we take that at face value?  Are we so naive? 

Let's take an example.  Look at the post below:

Now, some of these well-intentioned but naive "public interest" attorneys may claim that this is protected opinion.  On the face of the post, they are probably right. 

Now, true story... what if the post was traced to a surgeon who was never a patient?   Even my naive "public interest" friends may agree that we have a problem here.   If the premise that there was a "surgery" is false, is this really an opinion protected by the First Amendment?  Really?

This is only an example.  The attorneys who participated in my recent Internet defamation CLE saw more examples, and I can write a book with the stuff I have seen.  Recently, we had a heated court argument in Virginia regarding the need to reveal the identity of an anonymous poster.  Fortunately, we prevailed.  When the answer came back, the author was a competing doctor.  Do you see a pattern here?  What if I cited 20 more examples (which would be only a fraction of what we have seen)?

From my experience, I have no sympathy for people who hide behind anonymity to trash others.  It is just not an honorable and honest thing to do.  If you are a real patient or a customer with a gripe, you can simply attempt to resolve the issue like people of character do.   If you can't, then express yourself all you want and stand by what you said.  Unfortunately, cowards don't do that.  If you don't lie about material facts, you will probably be safe from a lawsuit.   

The real "chilling effect" of the situation is that if Courts do not require the identity of the poster to be revealed because the statement on its face is only an "opinion", how can you protect yourself from being defamed on the Internet?  The doctor in the post pictured above may have had her career as a surgeon shattered before it began.  Perhaps, courts should require disclosure under seal to protect all involved and to determine the course moving forward.   In the meantime, the fight against Internet defamation using all legal means, whether conventional or not, will continue.  To the "public interest" law firms, we appreciate your briefs, even if naive.
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Domain Names With Geographic Designations - Trademark Law

Domain name disputes and domain name litigation are important areas of Internet law.  Sometimes an individual registers a domain name containing a a geographic designation, such as the name of a city.  Whether the domain name owner enjoys trademark protection depends on certain elements.  What if the domain name registered includes the name of a foreign city and the foreign city prevails in a UDRP proceeding?  Can the domain name owner sue in court in the U.S.?
Under United States trademark law, a geographic designation can obtain trademark protection if that designation acquires secondary meaning. Lanham Trade-Mark Act, § 2(e)(2), as amended, 15 U.S.C.A. § 1052(e)(2).  Registration and use of a name with a geographic designation is not unlawful, even if the public did not associate the name with anything other than city itself, and the city council could not obtain trademark interest in purely descriptive geographical designation. Lanham Trade-Mark Act, §§ 2(e)(2), 32, 45, as amended, 15 U.S.C.A. §§ 1052(e)(2), 1114, 1127.

Domain names are issued pursuant to contractual arrangements under which the registrant agrees to a dispute resolution process, known as the Uniform Domain Name Dispute Resolution Policy ( UDRP), which is designed to resolve a large number of disputes involving domain names, but this process is not intended to interfere with or modify any independent resolution by a court of competent jurisdiction. Lanham Trade-Mark Act, §§ 32, 45, as amended, 15 U.S.C.A. §§ 1114, 1127. The Uniform Domain Name Dispute Resolution Policy ( UDRP) does not unify the law of trademarks among the nations served by the Internet; rather, it forms part of a contractual policy developed by Internet Corporation for Assigned Names and Numbers (ICANN) for use by registrars in administering the issuance and transfer of domain names; indeed, it explicitly anticipates that judicial proceedings will continue under various nations' laws applicable to the parties. Lanham Trade-Mark Act, §§ 32, 45, as amended, 15 U.S.C.A. §§ 1114, 1127.

The Anticybersquatting Consumer Protection Act (ACPA) authorizes a suit by a domain name registrant whose domain name has been suspended, disabled or transferred under that reasonable policy, including the Uniform Domain Name Dispute Resolution Policy ( UDRP), to seek a declaration that the registrant's registration and use of the domain name involves no violation of the Lanham Act as well as an injunction returning the domain name. Lanham Trade-Mark Act, §§ 32, 45, as amended, 15 U.S.C.A. §§ 1114, 1127.  A World Intellectual Property Organization (WIPO) proceeding is relevant to an Internet domain name registration claim, but it is not jurisdictional; indeed, a WIPO panelist's decision is not even entitled to deference on the merits. Lanham Trade-Mark Act, § 32(2)(D)(v), as amended, 15 U.S.C.A. § 1114(2)(D)(v).

Any decision made by a panel under the Uniform Domain Name Dispute Resolution Policy (UDRP) is no more than an agreed-upon administration that is not given any deference under the Anticybersquatting Consumer Protection Act (ACPA); to the contrary, because a UDRP decision is susceptible of being grounded on principles foreign or hostile to American law, the ACPA authorizes reversing a panel decision if such a result is called for by application of the Lanham Act. Lanham Trade-Mark Act, §§ 32, 45, as amended, 15 U.S.C.A. §§ 1114, 1127.

Therefore, an action brought in a United States court by a United States corporation involving a domain name administered by a United States registrar to determine whether registration or use of a domain name violated the Anticybersquatting Consumer Protection Act (ACPA) was required to be adjudicated according to United States trademark law under the Lanham Act, not foreign law; such resolution also was consistent with fundamental doctrine of territoriality upon which trademark law was based, since both United States and Spain had long adhered to Paris Convention for Protection of Industrial Property. Lanham Trade-Mark Act, § 32(2)(D)(v), as amended, 15 U.S.C.A. § 1114(2)(D)(v).

United States courts do not entertain actions seeking to enforce trademark rights that exist only under foreign law.  To establish a right to relief against an “overreaching trademark owner” under the reverse hijacking provision of the Anticybersquatting Consumer Protection Act (ACPA), a plaintiff must establish that: (1) it is a domain name registrant; (2) its domain name was suspended, disabled, or transferred under a policy implemented by a registrar; (3) the owner of the mark that prompted the domain name to be suspended, disabled, or transferred has notice of the action by service or otherwise; and (4) the plaintiff's registration or use of the domain name is not unlawful under the Lanham Act, as amended. Lanham Trade-Mark Act, § 32, as amended, 15 U.S.C.A. § 1114.
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Copyright Law: Pornographers Following RIAA's Shakedown Tactics

At this Internet law firm, we are no strangers to copyright litigation.  From whether website reviews are copyrightable to defending individuals caught in the RIAA's use of the Department of Justice to do RIAA's litigation in the form of criminal copyright infringement prosecutions.   Now the pornographers are here and they are taking a page out of the RIAA's playbook.  It appears that the pornographers' strategy is to file lawsuits against unidentified parties, issue subpoenas and follow up with threatening letters to the identified individuals demanding payment of a few thousand dollars.  These individuals are accused of utilizing bit torrent software to infringe on the copyrights.  Multiply the $2k to $3k requested from each identified "John Doe" times a few hundred defendants in several jurisdictions and the pornographers can feasibly make more money through lawsuits than through selling their product.

To further the strategy, pornographer Patrick Collins filed an action in the U.S. District Court for the Eastern District of Virginia against 58 different unidentified (John Doe) defendants.  The case is
Civil Action No: 3:11CV531.  We were retained by one of the "John Doe" Defendants.  We identified a number of problems with Plaintiff's case, not the least of which is the joinder of totally unrelated parties on the same litigation.  After seeing this situation, we filed a Motion to Quash on behalf of our client.  Some excerpts of the filing follow below:

Over the past several years, copyright owners across the nation, even those such as Plaintiff, who is yet to receive a copyright registration for its hardcore pornography, have attempted to take advantage of federal joinder rules in order to sue numerous John Doe defendants within a single complaint. These complaints are for copyright infringement via the Internet, and the complaints generally allege the use of peer-to-peer programs such as BitTorrent to download and/or upload copyrighted works. Some of these cases attempt to join defendants by the dozens, but many extend to hundreds and even thousands of unnamed defendants. See infra. Some courts have opined that the rationale for the joinder of multiple defendants in these copyright cases is an attempt by plaintiffs to “identify hundreds of Doe defendants through pre- service discovery and facilitate mass settlement.” See, for example, On the Cheap, LLC v. Does 1-5011, Case No. C10-4472, *11 (Zimmerman, M.J.) (N.D. Cal. Sept 6, 2011) (quoting IO Group, Inc. v. Does 1-435, 2011 U.S. Dist. LEXIS 14123, *9 (N.D. Cal. Feb. 3, 2011)).

Doe Defendant notes that this is not Plaintiff's first mass-defendant copyright infringement lawsuit. For example, a similar copyright infringement suit regarding a different pornographic video was filed by Plaintiff in the Northern District of West Virginia against 281 John Doe defendants. In that case, all John Doe defendants except for John Doe 1 were severed on the basis of misjoinder, and subpoenas for the identities of the severed defendants were quashed. See Patrick Collins, Inc. v. Does 1-281, Case No. 3:10-cv-00091, *3-4 (Bailey, J.) (N.D. W.V. Dec 16, 2010). It appears that after failing in West Virginia, Plaintiff now asserts similar claims before this Court.


Under the Federal Rules of Civil Procedure, joinder of defendants is appropriate where two factors are met: 1) “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and 2) “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). If it is clear that misjoinder has occurred, then Fed. R. Civ. P. 21 permits a court, by a party’s motion or
sua sponte, to drop parties or to sever claims. “On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.” Fed. R. Civ. P. 21.




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Attorney Domingo J. Rivera wins Summary Judgment in Computer Trespass Case

In another pioneer decision, attorney Domingo J. Rivera obtained summary judgment in a case involving an ex-husband accessing his wife's email and social network accounts without authorization. 

There has been some discussion in the news about a Michigan man that criminally charged with with accessing his wife's computer accounts.   Some commentators have argued that utilizing the computer hacking statutes to prosecute these acts is overreaching, but so far, the courts have provided little guidance on this issue.

Many Federal and State computer crime statutes provide not only criminal, but also civil remedies for the victims.  Recently, attorney Domingo Rivera handled one of these civil cases.   As is the case for many pioneering cases handled by attorney Domingo Rivera, this was a case that other attorneys expressed doubt about and that opposing counsel openly minimized. 

In this case, the opposing party claimed that the divorce property settlement agreement barred our client's claims and filed a counterclaim against our client for breach of the agreement.  We also obtained summary judgment dismissing this claim against our client.

The Court not only agreed with the legal argument advance by attorney Domingo Rivera, but also granted summary judgment.   Obtaining summary judgment means that we prevailed as a matter of law and that a trial to establish liability was not necessary.   The Court expertly discussed the standard for summary judgment:

In determining whether summary judgment is appropriate, the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat’l. Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). The Court must review the facts in a light most favorable to the party opposing a motion for summary judgment and give that party the benefit of any inferences that logically can be drawn from those facts. Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998) (citing Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983)).
Once the moving party demonstrates that the record does not disclose a genuine dispute on a material fact, the non-moving party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there is a genuine issue for trial. Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998)(citing Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir. 1981)). In order for there to be a genuine issue of material fact, the non-moving party must produce evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Furthermore, “[w]here the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th Cir. 1996)(quoting Crain v. Bd. of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir. 1990)).

The Court then moved on to the respective arguments of the parties, attorney Domingo Rivera represented the Plaintiff.  The Court explained:

III. Plaintiff’s Claims
As a threshold matter, Defendant claims that Plaintiff is barred from bringing her claims by the terms of the Property Settlement Agreement (the “Agreement”) signed by both parties as a part of the parties’ divorce proceeding. Defendant’s counterclaim alleges that Plaintiff is in breach of contract for bringing the present claims. In signing the Agreement, both parties acknowledged that they had been represented by counsel prior to executing the Agreement. “Settlement agreements are contracts subject to the general rules of contract construction.” Hill v. Southside Public Schools, 688 F.Supp. 493, 497 (E.D. Ark. 1988) (quoting N.L.R.B. v. Superior Forwarding, Inc., 762 F.2d 695, 697 (8th Cir. 1985)). The Court is to construe any agreement to give effect to the intent of the parties. Id. The intent of the parties is determined by reviewing the language of the contract itself, as well as by considering “the circumstances surrounding the making of the contract, its subject, and the situation and relation of the parties at the time of its making.” Id. (quoting Louisiana-Nevada Transit Co. V. Woods, 393 F. Supp. 177, 184 (W.D. Ark. 1975)).
The Agreement was meant to settle any and all claims related to the divorce proceeding. It strains logic to infer that the parties’ intended to waive the ability to bring any and all claims, including federal claims that could not have been litigated in a state divorce proceeding, that could ever potentially arise between the parties. Taking into consideration the fact that the parties were forming and signing the agreement in the context of a divorce proceeding; the subject and purpose of the agreement was to settle issues “arising out of this [divorce] litigation”. (Doc. 8, p. 11, ex. A). The fact that the divorce proceeding took place in state court that would not have jurisdiction over many of the claims Plaintiff now raises, can only lead the Court to conclude that Plaintiff did not waive her ability to bring the instant claims. While the alleged conduct may have taken place prior to and during the pendency of the divorce proceedings, the Court does not find Plaintiff’s claims to be intertwined with the Agreement such that she would now be precluded from bringing her claims in federal court.
Defendant also argues that Plaintiff is precluded from bringing her claims because the court presiding over the custody proceeding admitted the materials that he accessed into evidence. A court’s admission of materials into evidence is not relevant to the issues currently before the court. The judge in that proceeding made no determination as to the merits of the present claims. As Defendant points out, Plaintiff may have been able to appeal the decision to admit the evidence, but she also has the independent ability to pursue separate claims in this Court. For these reasons, the Court finds that Plaintiff is entitled to Summary Judgment on Defendant’s Counterclaim, and her motion as to the counterclaim (doc. 22) is GRANTED.
Finally, the Court explored the applicability of the Stored Communications Act and the State Computer Trespass statutes:

ii. Federal Stored Communications Act (SCA)
The relevant section of the SCA provides that whoever “intentionally accesses without authorization a facility through which an electronic communication service is provided; or intentionally exceeds an authorization to access that facility; and thereby obtains . . . access to a wire or electronic communication while it is in electronic storage in such system shall be punished . . .” 18 U.S.C. § 2701(a). The statute allows for private causes of action where “any person” injured by a violati
on of the SCA can show that the person viola
ting the Act acted with a
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Are Website User Reviews Copyrightable?

Are Website User Reviews Copyrightable? by Domingo J. Rivera , Esq.

review sites continue to gain popularity. Users can find a website where they can review just about anything. From whether
they like the breakfast bar at a particular hotel to their Toyota's
breaking capabilities (or lack thereof), from whether their obstetrician is friendly
enough to whether their plastic surgeon made their nose a bit too
pointy. If an Internet user wants the world informed of his or her
every interaction with the outside world, there is a platform out
there to accommodate that.


question is, are these reviews copyrightable material. If they are,
the author grants a license to publish these materials to the website
and can generally revoke this license. What happens if the original
author demands removal of the review? Can the website refuse to do
so without incurring potential liability for copyright infringement ?
The answer depends on whether these reviews are copyrightable in the
first place and involves an Internet law question. In my opinion, they are. You do not need to be John
Grisham to copyright your writings.

to the notes of committee on the Judiciary (1976) for 17 U.S.C. §
102, “[t]he phrase 'original works of authorship,' which is
purposely left undefined, is intended to incorporate without change
the standard of originality established by the courts under the
present copyright statute. This standard does not include
requirements of novelty, ingenuity, or esthetic merit, and there is
no intention to enlarge the standard of copyright protection to
require them.” Additionally, regarding the nature of copyright,
the notes further state that “[c]opyright does not preclude others
from using the ideas or information revealed by the author's work. It
pertains to the literary, musical, graphic, or artistic form in which
the author expressed intellectual concepts” (emphasis added).


is well-established that facts cannot be copyrighted. Rather, the
United States Supreme Court has held that “[t]he copyright is
limited to those aspects of the work—termed 'expression'—that
display the stamp of the author's originality.” Harper Row,
Publishers Inc v. Nation Enterprises
, 471 U.S. 539, 547, 105 S.Ct.
2218, 85 L.Ed.2d 588 (1985). However, “[c]reation of a nonfiction
work, even a compilation of pure fact, entails originality.” Id.

Continue reading
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U.S. v. Cassim: Domingo Rivera obtains first Federal "music piracy" jury trial defense victory

Today, a federal jury acquitted Adil Cassim who was represented by Domingo J. Rivera.  The United States Department of Justice had alleged that Adil Cassim was the leader of Rabid Neurosis ("RNS").  On the DOJ website, the press release alleged that "according to the indictment, the defendants, led by Cassim for a
period of time, allegedly conspired to illegally upload to RNS
thousands of copyright protected music files, which were often
subsequently reproduced and distributed hundreds of thousands of times. According to the indictment, RNS was a "first-provider" or "release
group" for pirated music and other content to the Internet. Once a
group obtains and prepares infringing digital copies of copyrighted
works, the copies can then be distributed in a matter of hours to
secure computer servers throughout the world. According to the
indictment, RNS members were granted access to massive libraries of
pirated music, video games, software and movies by gaining a reputation
for providing previously unavailable pirated materials. The indictment
alleges that
he supply of pre-release music was often provided by music industry
insiders, such as employees of compact disc (CD) manufacturing plants,
radio stations and retailers, who typically receive advance copies of
music prior to its commercial release.Read the USDOJ press release here.

Various alleged members of RNS have been convicted.  The jury's verdict was released a few hours ago, more details will be available soon.

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The CDA, cyber-racketeers, the DMCA, and changes to Section 230 by Domingo Rivera







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It has been quite a while since my previous post.  I have been extremely busy assisting my clients with Internet legal mattersInternet defamation continues to affect the reputation of
businesses and professionals as former customers, patients, and others who know
that they do not have valid legal claims assert their false and frivolous
complaints in blogs, forums and smear sites.  Even competitors are now posing as unsatisfied consumers in order to post false and defamatory statements
with hopes to gain an unwarranted economic advantage.  Everyday we protect
the reputation of businesses and professionals against these unlawful

With the elections over, it is now time to get back to business as normal.  Speaking
of the elections and politicians, many do not know that they can thank Congress for the
continued proliferation of Internet defamation.  The name of the culprit law is Section 230 of the Communications Decency Act.  The purpose of this law was to allow Internet service providers to be able to alter or remove objectionable content without assuming the liability associated with a traditional publisher of content.  Congress sought to allow providers of interactive computer services to perform some editing on user-generated content without becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete. In other words, Congress sought to immunize the removal of user generated content, not the creation of content. 

Sections 230(c)(1) and 230(e)(3) provide that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,"  and that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."  Noble intentions behind this Congressional law, but not-so good intention behind "Internet street law" which could be read as saying "service provider, you can stand by while your services are used to ruin the reputation of good businesses and people, don't worry, we will not hold you liable." 

This has given rise to many consumer complaints websites.  While some of these are well-intentioned and responsible, the majority are not.  The lawlessness has now sparked many websites charging fees for "investigating" consumer complaints.  Some of these websites have their employees call their targets and offer to help with the defamatory postings... for a membership fee, of course.  Some of these websites have been known to have their employees actually create the postings in an "anonymous" manner. 

Continue reading
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Cease and Desist Letters: Balancing the Punishment for Bad Faith Against the Punishment for Bad Letters

There is no doubt that cease and desist letters serve a very important purpose in the litigation process, particularly in legal matters related to the Internet.  Many causes of action have bad faith as either an essential element or a factor that increases damages.  A party’s refusal to correct its acts after receiving a legitimate cease and desist notice can be interpreted as a sign of bad faith.  Although a recipient of a cease and desist notice has every right to decline pre-litigation requests without adverse consequences, he must do so in good faith.  Good faith means a reasonable belief of having the right to engage in the challenged behavior.  However, this “good faith belief” will not be interpreted broadly.  See, for example, Northern Light Tech., Inc. v. Northern Lights Club, 236 F.3d 57, 65 (1st Cir.2001) (approving district court's use of defendant's disregard of legitimate cease and desist letters as evidence of bad faith).

The question then becomes whether the recipient of the cease and desist letter willfully refused to comply with the law.  The answer involves an inquiry into the recipient’s state of mind.  In many cases there is no direct evidence of bad faith, however, the court may infer bad faith from the surrounding circumstances.  Therefore, if you receive a legitimate cease and desist letter from an attorney you should either cease the challenged behavior, or seek the immediate help of a competent attorney for candid advice as to whether your behavior violates the law.  You should select an attorney who is familiar with the area of law that is at issue.

If you receive a cease and desist letter from us, you can be sure that we will advice our client to seek additional remedies if the matter cannot be adequately resolved.  The letter may concern copyright infringement, trademark infringement, defamation, or other Internet legal matters.  Ignoring the letter is usually a bad bet, as the court may see it as a sign of bad faith.  The defense side of a courtroom is not a pleasant place to be. 

However, we understand that some attorneys venture into sending letters that make no legal sense.  I have previously commented about cease and desist letters and how ineffective they can sometimes be.  Some of these letters are so far-fetched, unrealistic, and unprofessional that many do not take them seriously.  Hence, the Third Circuit Court’s decision on Green v. Fornario, 486 F.3d 100 (3rd Cir. 2007). 

In Fornario, the plaintiff sent a cease and desist letter that included a threat from the attorney to refer the “conduct to the appropriate criminal authorities." The small problem: this was a trademark dispute and the Lanham Act is a purely civil statute.  The big problem: lawyers should take threatening criminal prosecution very seriously.  In many States, a lawyer cannot threaten criminal prosecution for the purpose of gaining an advantage in a civil case.

The Fornario court refused to find that the defendant’s refusal to cease the allegedly infringing behavior was in bad faith.  Whether the court would have reached a different decision if the cease desist letter from the attorney been of better quality and without idle threats of criminal prosecution is anybody’s guess.  In Northern Light Tech. the court viewed the defendant's disregard of legitimate cease and desist letters as evidence of bad faith.  To reconcile the decisions probably requires an understanding of the difference between bad faith and bad cease and desist letters.

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Internet Bloggers Beware: Ohio Court Lands Another Blow Against Those Engaging in Internet Defamation

I recently commented on the impact of the U.S. Court of Appeals for the Ninth Circuit Court of Appeals’ decision limiting the protections afforded to service providers under the Communications Decency Act.  In that case, the court refused to provide immunity to website owners who encourage unlawful or defamatory statements.  Less than a month later, the Ohio Court of Appeals also refused to protect the “interests” of bloggers and others who engage in online defamatory statements.  The Ninth Circuit’s message was that if you encourage unlawful conduct, the CDA will not provide you with unwarranted solace.  The Ohio Court of Appeals message is that if you post defamatory statements online, you may be sued in a State where the other party’s reputation is damaged.

In Kauffman Racing Equipment v. Roberts, a Virginia resident, Mr. Roberts, purchased an engine block on the Internet.  Mr. Roberts was dissatisfied with his purchase and decided to express his dissatisfaction by posting a number of statements on various Internet websites.   Kauffman Racing, a company with its main place of business in Ohio, filed a lawsuit in Ohio.   Mr. Roberts moved to dismiss alleging that Ohio did not have personal jurisdiction over him.  The Ohio Court of Appeals disagreed.

In applying Ohio’s long-arm statute as well as Constitutional principles, the Court held that Ohio’s long arm statute applied and that, as a result of the postings, exercising jurisdiction over Roberts established the necessary “minimum contacts” under the jurisdiction. The implications of this ruling are far reaching.

Let’s say, for example, that a blogger posts defamatory comments about an individual.  An implication that the individual has engaged in misconduct, such as perjury (even if the statement is qualified by the word “allegedly”) would qualify.  Let’s further assume that the defamed individual is applying for a position with a college in Virginia.  Under the Kauffman Court’s reasoning, the defamed individual may sue the blogger in Virginia.  This applies even if the blogger lives in the West Coast and has no intentions of ever visiting Virginia.  The blogger is now exposed to liability in the Federal District Court for the Eastern District of Virginia, aka the “rocket docket,” where litigation is intense, bloggers are not particularly appreciated, and jury awards can be devastating.  So go ahead, blog and defame others… at your own risk.

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Internet Defamation Law - Website owners and bloggers beware - The latest interpretation of Section 230 of the Communications Decency Act

As a general rule, we encourage many of our clients who own or operate websites or blogs and who want to be somewhat protected from Internet defamation claims to not encourage others to post comments.  We also explain to our clients the impact of Section 230 of the Communications Decency Act.  The U.S. Court of Appeals for the Ninth Circuit has validated our general recommendation for a cautious approach ...

Website operators and web log (blog) owners beware - If you encourage illegal content or design your website to require users to input illegal content, you may not be afforded immunity under Section 230 of the Communications Decency Act.

On April 3, 2008, the decision of the U.S. Court of Appeals for the Ninth Circuit came down (the full text of the opinion is posted here) ... and inevitably shook the confidence of website operators and bloggers who encourage others to post comments (usually defamatory), on their website or blog.

The opinion is quite lengthy and I am still analyzing the full extent of its impact, but here are some highlights:

The court clarified a misconception that many have of the interpretation of Section 230 of the CDA:

In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete. In other words, Congress sought to immunize the removal of user generated content, not the creation of content: “[S]ection [230] provides ‘Good Samaritan’ protections from civil liability for providers . . . of an interactive computer service for actions to restrict . . . access to objectionable online material.

The Court continued:

We believe that both the immunity for passive conduits and the
exception for co-developers must be given their proper scope and, to
that end, we interpret the term “development” as referring not merely
to augmenting the content generally, but to materially contributing to
its alleged unlawfulness. In other words, a website helps to develop
unlawful content, and thus falls within the exception to section 230,
if it contributes materially to the alleged illegality of the conduct.

The message is clear, if you incite or "implore" others to
participate in unlawful conduct, usually defamatory, the CDA will not
be your savior. 

Perhaps, one of the most important sections of the opinion is the following passage which creates a clear ambiguity. On one hand, plaintiffs are warned against overly litigious stances.  On the other hand, the Court makes clear that if the provider becomes a participant, legal liability may result.  The Court stated:

Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand  duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality
of third parties. Where it is very clear that the website directly participates in developing the alleged illegality—as it is clear here with respect to Roommate’s questions, answers and the resulting profile pages—immunity will be lost. But in cases of enhancement by implication or development by inference—such as with respect to the “Additional Comments” here—section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.

As this decision shows, the development of Internet defamation and CDA jurisprudence remain fluid.  We will continue to keep you posted on the progress and the development of this as well as other Internet Law matters.

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