Lawyer in Paula Deen Case Finds Out That Tweeting About a Case Is a #BadIdea

Posted by on Aug 28, 2013 in Litigation, Social Media

FC 250 Grand Marshal, Paula Deen

FC 250 Grand Marshal, Paula Deen (Photo credit: Bristol Motor Speedway & Dragway)

Lisa Jackson’s discrimination and sexual harassment lawsuit against Paula Deen settled last Friday, but not before Deen tried to remove Jackson’s attorney, for publicly disparaging her on social media.  A court order filed hours before the settlement reveals that in March, Deen’s lawyers filed a motion for sanctions against Matthew C. Billips, the lawyer who represented Jackson (read the motion here).  The motion alleges that Billips made offensive remarks about Deen on Twitter.  Some of the more eyebrow-raising tweets included:

“I’ve been doing Paula Deen, in a strongly metaphorical sense”

“I plan on undressing [Deen]” (in reference to an upcoming deposition of Deen)

“Now talk about fun, suing Paula Deen is a hoot!”

In another Twitter conversation about Deen’s diabetes, Billips allegedly referred to Deen’s food with the hashtag #buttercoatedbuttercookies.

Based on Billips’ tweets and his discovery practices, Deen’s lawyers asked the court to disqualify him from continuing to represent Jackson.  As the August 23 court order shows, the judge declined to disqualify Billips, but it was open to imposing some form of sanctions against him.  The judge has indicated that the settlement will not stop the court from sanctioning Billips despite Deen’s lawyers attempt to withdraw their sanctions motion in light of the settlement.  Billips has 20 days as of Friday to show why he should not be sanctioned.

This cautionary tale that teaches litigants (and their attorneys) not to discuss pending cases on social media.  Posts on social networks like Facebook and Twitter can be publicly accessible, are potentially discoverable, and can be the basis for a defamation lawsuit.  There’s little to be gained and much to lose by talking about a lawsuit online.  For that reason, lawyers now commonly instruct their clients in their retainer agreements not to discuss the case with anyone on social media, even family and friends.  Lawyers would do well to follow their own advice.

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Sex, Apps, and Rock-and-Roll

Posted by on Aug 22, 2013 in Litigation, Trademark

Rock legend gets to continue lawsuit against HP for selling penis-measuring app named after himEvans v. Hewlett-Packard Co., 2013 WL 4426359 (N.D. Cal. Aug. 15, 2013)

English: Photo of Chubby Checker when he was i...

(Photo credit: Wikipedia)

Want to test the urban myth that a man’s shoe size is a good measure of his you-know-what?  Well, there’s an app for that.  Or there was.  And the app store that sold it is being sued by the app’s namesake, who isn’t thrilled that his name was associated with a digital ruler for male nethers.

“The Chubby Checker” was an app for estimating the size of a man’s genitals based on his shoe size.  Hewlett-Packard’s subsidiary, Palm, Inc., offered the app for sale on its app store.  The name of the app is a pun based on “Chubby Checker,” the stage name of rock-and-roll legend Ernest Evans.  Evans and the companies who owned registered marks associated with the name “Chubby Checker” sued HP and Palm for trademark infringement and dilution, federal unfair competition, and various state law claims.

The defendants tried unsuccessfully to dismiss the trademark infringement claim.  The complaint sufficiently alleged a claim of contributory infringement against the defendants, the court found.  Plaintiffs alleged that the “Chubby Checker” name and mark was internationally famous.  The defendants also allegedly maintained “primary control” over the use of the mark by setting up a detailed application and approval process for the app.  Thus, the court ruled that it was plausible to infer that the defendants knew or could have reasonably concluded that the plaintiffs would not have consented to license the “Chubby Checker” mark for use with the app.

The defendants fared better in their attempt to dismiss the state law claims.  The defendants invoked Section 230 of the Communications Decency Act, which immunizes internet service providers from tort liability based on content published by third parties.  The plaintiffs did not allege that the defendants created the app.  Instead, third parties created the app.  Since the defendants were internet service providers rather than content providers, Section 230 required dismissal of the state law claims.

LegalTXTS Lesson: This ruling could be a major setback for app store operators.  Essentially, it means an app store could be sued for contributory trademark infringement whenever one of the apps it sells is the subject of trademark litigation.  That might make some sense if the app store set up an approval process that includes review of the intellectual property rights used by apps (e.g., see how the app Pic Bubbler fared in the review process for the Apple App Store), but not if such review is missing from the app approval process (Google Play, for example, employs a minimal review process).  And you can bet the app store operator is a prime target for litigation if it’s a deep pocket.  Like in this case, who would you rather sue—HP, or the creator of The Chubby Checker, which apparently sold a mere 88 copies at 99 cents each?

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Bring It: Preparing for the BYOD Movement at Your Workplace

Posted by on Aug 20, 2013 in Data Security, Employment and Labor

No, it’s not an acronym advising you to come to dinner with your favorite vintage of pinot noir.  BYOD stands for Bring Your Own Device, a movement that’s changing the landscape of information technology at workplaces across the globe.  In the “old days,” companies issued electronic equipment to employees for work use.  Today, employees want to use the latest electronics of their own choice for both work and play.  Surveys consistently show that companies are giving in to such requests, citing the benefits of increased productivity and morale, as well as cost savings from not having to buy the equipment themselves.  However, BYOD programs also create legal risks for companies, including:

  • Violation of labor laws like the Fair Labor Standards Act due to the ability of workers to rack up overtime by doing work on personal devices practically anywhere and at any time, whether or not such overtime is authorized by management
  • Violation of laws prohibiting disclosure of the private information of customers, clients, or patients, such as the Health Insurance Portability and Accountability Act and the Gramm-Leach-Bliley Act
  • Inadvertent disclosure of proprietary company information, which jeopardizes their confidentiality, and as a result, their status as protected trade secrets
  • Complicating the e-discovery process, because electronic data that fall within the scope of a discovery request may reside on devices besides those under the direct control of the company

In light of these risks, the knee-jerk response of management might be to forbid BYOD entirely, but that is not necessarily the best approach.  BYOD is more prevalent than one might think.  A form of BYOD is in play whenever someone stores work data on a personal cloud storage account, uses a personal laptop to draft a memo for work, or forwards work-related word processing files to a private email account for easy access from home.  A company need not officially adopt a BYOD program to have one, which is all the reason why management should be proactive about putting BYOD policies in place.

Learn about the specific risks that a BYOD program creates for your company.  Develop guidelines on acceptable and unacceptable use of personal devices for work-related purposes.  Notify employees of the policies in writing and provide training.  Don’t wait until it’s too late!

Want more tips on BYOD?  Come to the Advanced Employment Issues Symposium in Las Vegas from November 13-15, where I’ll be giving a presentation on “BYOD Challenges: When Employees Bring Their Own Devices to Work.”  Registration information is available at www.aeisonline.com.

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