So Text Me Maybe? Maybe You Shouldn’t.

Posted by on Jul 10, 2013 in Employment and Labor

Text message failed to give employer sufficient notice of intention to take FMLA leaveLanier v. University of Texas Southwestern Medical Center, 2013 WL 2631316 (5th Cir. June 12, 2013)

sms-textLanier reminds me of a conversation I had with a friend who manages a local restaurant.  He was bemoaning the lack of professional courtesy displayed by his twentysomething employees.  “They don’t call in to say they’ll be late to a shift.  They text me!”

My friend now can say that the courts agree with him.  At least when it comes to invoking rights under the Family Medical Leave Act (FMLA), a federal appellate court recently ruled that a text message doesn’t do the job.  Chrisanne Lanier was scheduled to be on call when her father fell ill.  She sent a text message to her supervisor saying that her father was in the emergency room and that she would be unable to be on call that night.  Her supervisor responded that another employee would cover her shift.

Lanier failed to log in for her make-up call rotation several weeks later.  This led to a confrontation between Lanier and her supervisor and Lanier abandoning her job duties.  After Lanier was asked to resign, she sued her employer under various theories of recovery, including interference with her FMLA rights.

At issue was whether Lanier gave proper notice to her employer of her intention to take FMLA leave.  The Fifth Circuit held that she did not.  Although an employee doesn’t need to say the words “FMLA leave,” she must give notice that sufficiently gives her employer notice that her request to take time off could fall under the FMLA.  The employer may have a duty to inquire further if the employee’s statements warrant it, but “the employer is not required to be clairvoyant.”

In Lanier’s case, a text message saying that her father was in the emergency room was not sufficient notice of her intention to take FMLA leave, the court said.  Lanier argued that her supervisor should have inquired further because she had previously told him about her father’s advanced age, his poor health, and that he was having breathing problems that morning.  Even with these facts, the court ruled that it would be unreasonable to expect Lanier’s supervisor to know that she meant to request FMLA leave.  Lanier had taken FMLA leave before and was familiar with the proper way to request it, and yet she did not take those steps.  Finding that no reasonable jury could conclude that Lanier’s text message was sufficient to notify her supervisor of her intent to request FMLA leave to care for her father, the court granted summary judgment to the employer on the FMLA interference claim.

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Amazon Stiff-Arms Plaintiff in Copyright Infringement Suit—Partially

Posted by on Jul 8, 2013 in Copyright

Amazon not vicariously liable for copyright infringement by hosting e-commerce platform for sale of allegedly infringing photo, but could be liable for contributory infringement –  Masck v. Sports Illustrated, 2013 WL 2626853 (E.D. Mich. June 11, 2013)

By MECU (Own work) [CC-BY-SA-2.5], via Wikimedia Commons

By MECU (Own work) [CC-BY-SA-2.5], via Wikimedia Commons scored a partial victory in defending against a copyright infringement lawsuit.  The plaintiff in the lawsuit was photographer Brian Masck, who claims to have taken the sharpest photo of former University of Michigan football player Heisman Desmond Howard striking the iconic “Heisman pose” in a game where his team defeated archrival Ohio State University.  Masck claimed that unauthorized reproductions of his photo were offered for sale on  Masck requested Amazon to stop selling copies of the photo on its website, but Amazon allegedly did not comply.  Masck sued Amazon and other sellers of the photo for copyright infringement.

Amazon filed a motion to dismiss the lawsuit, arguing that Masck could not bring a vicarious copyright infringement claim.  One requirement for vicarious liability for copyright infringement is the defendant’s right and ability to supervise the infringing conduct.  The court agreed with Amazon’s argument that it had no practical ability to determine which products being sold on its e-commerce platform were infringing.  Masck did not make specific factual allegations demonstrating that Amazon could plausibly verify the copyright status of each and every piece of merchandise it lists from third-party sellers.

Amazon did not fare so well in trying to dismiss Masck’s contributory infringement claim.  Selling infringing merchandise is considered a material contribution to infringement.  Amazon continued selling the alleged infringing photos even after Plaintiff requested their removal from Amazon’s website.  Plaintiff’s request should have alerted Amazon to potential infringement.  Based on that record, the court declined to dismiss the contributory infringement claim against Amazon.

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Online Dating Service Defeats Member’s Lawsuit For Negligence in Posting Member Profiles

Posted by on Jul 5, 2013 in Litigation, Miscellaneous

Court dismisses lawsuit against arising out of attack of one member by anotherBeckman v., 2013 WL 2355512 (D. Nev. May 29, 2013)

A court threw out a subscriber’s lawsuit alleging that the online dating service was responsible for the injuries she sustained from being attacked by a man whom she met through the service.  Mary Kay Beckman met Wade Mitchell Ridley through and dated him briefly before ending the relationship.  After the break-up, Ridley sent Beckman threatening and harassing text messages.  Several months later, Ridley ambushed Beckman at her residence and repeatedly stabbed and kicked her.

Beckman filed a $10 million lawsuit against for (1) negligent misrepresentation; (2) deceptive trade practices; (3) negligent failure to warn; (4) negligence; and (5) negligent infliction of emotional distress.  The federal district court of Nevada granted’s motion to dismiss the entire lawsuit.

The court held that Section 230 of the Communications Decency Act immunized from the negligence and negligent infliction of emotional distress claims.  The court easily found that was an “interactive services provider” and not an “information content provider.”  The court also found that the theory behind the claims was exactly the reason that CDA immunity exists—to protect publishers against liability based on publication of online content generated by third parties.  Beckman alleged that was negligent in posting Ridley’s profile, which led to her to date Ridley and later be attacked by him.  Because the information in the profile originated from Ridley, CDA immunity protected from liability based on publication of the profile.

The court took a bit more effort to apply the CDA to Beckman’s claims for negligent failure to warn and negligent representation.  Although those claims tried to focus on’s alleged failure to warn Beckman instead of Ridley’s profile, the court concluded that the wrongful conduct alleged in the claims was still traceable to the publication of the profile.  There was nothing for to negligently misrepresent or negligently fail to warn about other than what a user might find on another user’s profile.  Since the negligent failure and negligent misrepresentation claims were just another way of holding liable for information originating with a third party, the CDA barred those claims.

The court also found reasons to dismiss the negligence-based claims other than the CDA.   The negligence claim failed because no special relationship exists between a provider of online dating services and its subscribers, and in the absence of a special relationship, owed no duty to its subscriber.  The emotional distress claim could not survive because, according to the court, posting an online dating profile did not rise to the level of “extreme and outrageous” conduct required to recover for emotional distress.  Finally, Beckman did not satisfy a heightened pleading standard that applied to the negligent misrepresentation claim.

The deceptive trade practices claim, which Beckman brought under the Federal Trade Commission Act, was dismissed because there is no private right of action to enforce the Act.  Beckman argued that the claim alleged that was negligence per se for violating the Act, but the court found that she did not plead such a claim.

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Court Finds Firing of Teacher for Her Comments on Social Media “Shocking to One’s Sense of Fairness”

Posted by on Jul 2, 2013 in Employment and Labor, Schools, Social Media

A New York court overturns the termination of a public school teacher for posting offensive comments on social mediaRubino v. City of New York, 106 A.D.3d 439 (May 7, 2013)

The New York Supreme Court, Appellate Division recently ruled that the firing of a fifth-grade public school teacher for making inappropriate comments on social media was too harsh of a penalty.  After a difficult day at class, the teacher posted comments alluding to a tragedy involving an unknown student at a different school.  The court’s opinion is sparse on details, but according to a Huffington Post article, the teacher wrote: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders!  I HATE THEIR GUTS!”  The beach reference alluded to the drowning of a 12-year old girl on a school trip to Long Island beach the day before.  The comments were only visible to the teacher’s private network of friends, who did not include any of her students or their parents.  The teacher deleted the comments three days after posting them.  She denied making the comments when she was initially confronted about them, but later confessed at her disciplinary hearing.

The court agreed that the comments were “clearly inappropriate” but it noted that the purpose of the comments was just to vent.  The teacher did not intend the public to see her comments, and she expressed remorse over making them.  She had no prior disciplinary history in her 15-year career.  Given the record, the appellate court found the termination to be “shocking to one’s sense of fairness.”  The appellate court upheld a lower court order setting aside the termination and sending the case back down for imposition of a lesser penalty.

LegalTXTS Lesson: Not all courts have been as kind toward teachers who vent on social media as the New York Appellate Division.  In fact, in In re O’Brien, a court in neighboring New Jersey upheld the firing of a first-grade teacher under similar circumstances earlier this year.  One difference might be that the teacher in Rubino expressed remorse for making the comments whereas the teacher in O’Brien did not.  Whether that factor alone accounts for the different outcomes is questionable.  One thing the cases do share in common is that the teachers in both thought that no one outside of their network of “friends” would see their comments.  With apologies to Las Vegas, Rubino and O’Brien teach that what happens in an employee’s social network doesn’t always stay in his or her social network.

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Hawaii Rules of Professional Conduct Amended to Cover Online Advertising

Posted by on Jul 1, 2013 in Advertising and Marketing, Social Media

Recent amendments to the Hawaii Rules of Professional Conduct include language allowing lawyers to advertise on social media.  The amendments conform the language of Rules 7.2 and 7.3 to their counterparts in the current version of the ABA Model Rules of Professional Conduct.  Amended Rule 7.2(a) explicitly includes “electronic communication” as a permissible way to advertise legal services.  The comments to the amended Rule are more direct, noting that “electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule.”  Although the amended Rules don’t define “electronic communication,” the term appears broad enough to include social media.

The amendments place limits on soliciting clients on social media, however.  Rule 7.3 currently prohibits a lawyer from contacting potential clients in person or by telephone to solicit business for personal monetary gain unless the potential client has a family, close personal, or prior professional relationship with the lawyer.  Amended Rule 7.3 adds “real-time electronic contact” to the list of forbidden solicitation methods.  What “real-time electronic contact” means has yet to be examined in a reported case, but the term could conceivably apply to text messages, instant messages, Skype, and posts on social networks like Facebook, Twitter, or LinkedIn.

Tech-savvy lawyers will also appreciate the deletion of the requirement in current Rule 7.2(b) that a lawyer keep records of every advertisement for two years.  Lawyers who promote their services by posting online content frequently could find compliance with the requirement impractical.  The amended Rules omit the retention requirement for all forms of legal advertising.

The amended Rules take effect on January 1, 2014.

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