Recent Articles in Civil Rights & Privacy Law from LexMonitor

charonqc

Thu, 02 Sep 2010 14:21:24 GMT

The recent, and rather absurd, High Court case about The Stig’s identity – known to countless people and available on the net for some time - has brought into sharp relief the issue of suppression of information, commercial interests and the controllability of the media. The High Court’s writ has only ever run in England & Wales. Scotland has a separate legal system. The world has many legal systems. In pre-internet days it did not matter that much – newspapers could be (and still, to some extent are) cowed into withdrawing publication of ‘inconvenient’ information by a letter from a specialist firm of libel lawyers.

The chilling effect of a libel letter is known to many. Libel tourism, libel reform and the whole issue of a right to privacy is very much in the frame for debate and law reform. It is widely believed that there at least three superinjunctions out there protecting the commercial interests / private lives of leading footballers granted in recent weeks / months. I don’t know. In fact, none of us are supposed to know. That is the point of a superinjunction.

As an aside – I don’t buy into the ludicrous claim by Harper & Collins that their victory in The Stig case is a victory for freedom of speech. My view is that it isn’t. That case is all about commercial interests and the claim by the publishers demeans the noble ideal of ‘freedom of speech’ when it really matters.

Guido Fawkes published information on his blog about William Hague and his SpAD (see the follow ups on his blog). This has led to a great deal of vitriol and Hague issuing an emotional statement about his private life – which, being fair, is his business and his alone. Sundry kneejerkers got in on the act and published tablets of stone on their blogs, some even , absurdly, criticising Guido for what they had themselves, in earlier times, done! – their motives for doing so, possibly honourable, possibly self aggrandising. It matters not. I am getting to the point..

Today, in The Times, Frances Gibb wrote a fascinating piece entitled “Law struggles to keep up with bloggers”. I can’t give you a link – because The Times is now behind a paywall.

Frances Gibb argues…”Is the internet and its blogosphere killing our laws? When print or even broadcasting media ruled supreme, a lawyer’s writ had a powerful reach. The courts, too, could grant injunctions – binding on not just one newspaper but every media organisation. But now the law is struggling to keep pace as stories, or just rumour, surface on the internet, with a global reach in seconds.”

Gibb notes the Hague / Myers case raised by Guido – and now countless others.

Mark Stephens, a well known media lawyer with Finers Stephens Innocent makes the point: “The internet is not a law free zone…but once material is out there, it is very difficult to put it back”.

I suspect that Mr Justice Morgan in The Stig case had this phenomenon in his mind – I will read the judgment. I have not done so as yet.

Frances Gibb then quoted Dan Tench, another very well known media lawyer – from London firm Olswang. Dan Tench is reported as saying

“The lack of accountability dilutes the impact of what is said. People can’t rely on it. The traditional media is accountable to the law – and that is its strength. What is has to sell is its authority – and that is the difference.”

Dan Tench is a very shrewd and experienced lawyer – but I am going to disagree, without being critical of him, with this proposition in three ways:

1. I am not at all sure that the supposed lack of accountability of bloggers et al dilutes the value of what they say. Bloggers (who may not be worth suing because they have no money) often have wider reach (and knowledge) than some quality specialist newspapers and even broadsheets in the case of the leading political bloggers. This is particularly the case for political bloggers. They also have an audience, net savvy, who repeat the information and, thereby, dissemination is remarkably wide for big issues. I am not at all sure that people regard the writings of journalists from politically biased newspapers any more authoritative than independent (but politically aligned) bloggers. This may well come as a shock to traditional journalists and TV autocuties – but life in the internet age has changed influence and the dynamics of commentary on the events of our times. The days of reading the news in a dinner jacket are long gone – thankfully. Do ‘people’ really rely on the information in newspapers and TV broadcasts these days? I’m not so sure they do to the extent that Dan Tench, impliedly, supposes. I regard the leading political bloggers as being better informed and capable of sharper analysis than many of the journalists writing in the newspapers. I have also found this to be the case in the field of finance, economics and science. That, of course, is a personal view and not ‘evidence’!

2. The traditional media is accountable to law. Unfortunately / fortunately, for bloggers and users of twitter – so are we. So that is not the forceful point it seems to be – but I will admit that a newspaper or TV station is an easier target than a host of bloggers, libertarians, conspiracy theorists, nutters and anarchists – some of whom are very poor and neither contactable through anonymity or worth suing.

3. What it (Traditional media) has to sell is its authority – and that is the difference. I don’t really think I need to comment on that. You will draw your own conclusions on the reality of that statement.

Frances Gibb did note in her excellent commentary “Mr Stephens said that rather than trying to make futile attempts to control the media, the law should defer to the “innate good sense of the crowd” – in other words, people will make up their own minds about allegations on the internet. “You can’t stop debate, he said”

And… if you really want to make a complete hash of things, involve lawyers, and try to suppress the unsupressable - just be warned about The Streisand effect. Trafigura and others have found out about that to their cost.

The genie is out of the bottle – but the law is not being killed. It will simply have to adapt to accept a reality. I don’t, personally, think that that is such a bad thing.

As always – for I am merely a commenter not a pronouncer – your comments will be most welcome.

***

Note: Mark Stephens and I plan to do a podcast very soon – it would seem that we have many things to discuss. Coming soon….

charonqc

Thu, 02 Sep 2010 12:26:56 GMT

charonqc

Wed, 01 Sep 2010 22:39:48 GMT

Stig court case: BBC loses battle over Ben Collins book BBC: The Stig has never removed his helmet on the show The BBC has lost a legal fight to stop publication of a book which reveals the identity of Top Gear’s driver The Stig. The High Court in London refused to grant the BBC an [...]

Stig court case: BBC loses battle over Ben Collins book

BBC: The Stig has never removed his helmet on the show

The BBC has lost a legal fight to stop publication of a book which reveals the identity of Top Gear’s driver The Stig.

The High Court in London refused to grant the BBC an injunction blocking the publication by HarperCollins of an autobiography of former Formula Three driver Ben Collins.

The book, called The Man In The White Suit, claims Mr Collins is the mystery driver on the BBC Two show.

1. Who cares?

2. This is contract law not freedom of speech – so knee jerkers of the world may have to get a grip and wait for some really important issues to come up before firing off sundry and random rants on twitter etc etc about ‘our right to know’ Wikileaks, Wikifreaks, , rape allegations, conspiracy theories etc etc etc.

3. I haven’t read the contract or the judgment – and I really cannot be arsed to do so. Ipso facto (to use one of our secret legal phrases) I am not going to give an opinion, view or even random punditry on this complete waste of licence payers money. I am fairly certain that very few people know who *Mr X* is and I have a feeling his book will hit the remainder bin at *Pinedland*… or other ‘retail outlet near you’ … at a hefty discount of 50% fairly soon. Time will tell, of course. I would imagine the press coverage and BBC coverage (ironically) will have helped sales. I don’t recall *Mr X* winning any major Formula 1 titles…. but, no doubt, readers who watch motorsport on TV or at the track will advise me if *Mr X* was actually quite famous.

Legal note: at least Mr Justice Morgan had the humour to hold the trial in *secret* - despite the fact that a huge number of people now claim to have known who the The Stig was but kept *schtum* ..and some may even have had him in the back of their cabs wearing the full kit, as a guest at their hen party, to dinner at chi chi Notting Hill dinner parties blah blah blah…. !

charonqc

Wed, 01 Sep 2010 20:26:40 GMT

Today I got very bored with the hate, venom, bile and complete and utter nonsense which I read on twitter about Blair, Hague etc etc etc……. Tony Blair published his book today. I will enjoy reading his book. Blair is not all about Iraq. Cue a raft of unpleasantness – and then Iain Dale [...]

Today I got very bored with the hate, venom, bile and complete and utter nonsense which I read on twitter about Blair, Hague etc etc etc…….

Tony Blair published his book today. I will enjoy reading his book. Blair is not all about Iraq. Cue a raft of unpleasantness – and then Iain Dale reports on The Hague / Myers issue. I enjoy the Libertarians I follow. I enjoy reading the views of MPs. I am not responsible for their views. They are not responsible for mine. I’ll happily read political blogs. I don’t actually care what the political blogger thinks, even if I enjoy their ideas and writing. I make my own mind up – and I have always assumed others do as well? And I could not give a damn about daft buttons which reveal the blogger to be in the Top 10 of Political Bloggers – why do they care, let alone question the provenance of the award? Bizarre.

I will continue to enjoy the amusing/ the analytical / the plain daft and bizarre on twitter… but, today, I found the twitter and blog hatred about Blair and other matters unpleasant. I shall stick to parody and leave the venom to others… and if you don’t like what I say on this particular issue …. unfollow….don’t read my blog – but, please don’t waste time making clever remarks on Twitter – because I won’t be reading them tonight… I shall return to twitter when the *Perfectly Ludicrous Storm* has abated.

New York's Electronic Equipment Recycling and Reuse Act

Wed, 01 Sep 2010 18:38:28 GMT

Little covered other than by environmental and waste industry trade journals, New York's legislature earlier this year passed the NYS Electronic Equipment Recycling and Reuse Act (the “Act”), which was signed into law by Governor Paterson. The Act amended various provisions of the NY Tax Law as well as adding Article 27, Title 26, Electronic Equipment Recycling and Reuse, to New York's Environmental Conservation Law. It contains some potential surprises for manufacturers, retailers and consumers of "covered electronic equipment."The manufacturer's internet website must, in addition to any other required information, provide a listing of locations within New York where consumers may return electronic waste as part of the manufacturer's electronic waste acceptance program. Further, those for manufacturer's providing computers, hard drives and other "covered electronic equipment" containing internal memory where personal or other confidential data can be stored, the manufacturer must provide consumers with instructions for destroying such data before they surrender the product for reuse or recycling.

The bulk of the Act, effective as of April 1, 2011, serves to impose various new mandates on “manufacturers” [ECL §27-2601(11)] and ”retailers” [ECL §27-2601(16)] geared toward increasingly stringent goals for recycling of “covered electronic equipment” (“CEE”) [ECL §27-2601(5)] , as well creation of associated systems for the collection and recycling/reuse of electronic waste at no cost from consumers under NYS Department of Environmental Conversation ("DEC") oversight. To this end ECL §27-2605 requires manufactures to register with the DEC, at a one-time cost of $5,000, and supply detailed information on the sales and total weight of CEE sold by the manufacturer in New York.

Manufacturer Requirements:

The Act defines “manufacturers” broadly to include any person or entity that: "(a) assembles or substantially assembles covered electronic equipment for sale in the state; (b) manufactures covered electronic equipment under its own brand name or under any other brand name for sale in the state; (c) sells, under its own brand name, covered electronic equipment sold in the state; (d) owns a brand name that it licenses to another person for use on covered electronic equipment sold in the state; (e) imports covered electronic equipment for sale in the state; or (f) manufactures covered electronic equipment for sale in the state without affixing a brand name.” ECL §27-2601(11).

Excluded from the sweep of "manufacturer" are those persons and entities who sell “less than one thousand units of covered electronic equipment annually” in New York or “whose primary business is the sale of covered electronic equipment which is comprised primarily of rebuilt, refurbished or used components.”

The Act also imposes joint and several responsibility and liability on those that jointly manufacture a product qualifying as a CEE, noting “any such person may assume responsibility for obligations of a manufacturer of that brand under this title. If none of those persons assumes responsibility for the obligations of a manufacturer under this title, any and all such persons jointly and severally may be considered to be the responsible manufacturer of that brand for purposes of this title.” ECL §27-2601(11).

In addition, ECL §27-2605(5)(b) requires a manufacturer, as part of its required electronic waste acceptance program (“EWAP”), to provide “information on how consumers can destroy all data on any electronic waste, either through physical destruction of the hard drive or through data wiping” while ECL §27-2605(5)(c) mandates as part of the EWAP a public education program to inform consumers about the manufacturer's electronic waste acceptance program, including at a minimum:

"an internet website and a toll-free telephone number and written information included in the product manual for, or at the time of sale of, covered electronic equipment that provides sufficient information to allow a consumer of covered electronic equipment to learn how to return the covered equipment for recycling or reuse, and in the case of manufacturers of computers, hard drives and other covered electronic equipment that have internal memory on which personal or other confidential data can be stored, such website shall provide instructions for how consumers can destroy such data before surrendering the products for recycling or reuse.”

The manufacturer's internet website must also, in addition to any other required information required above, provide a listing of locations within New York where consumers may return electronic waste as part of the manufacturer's EWAP. Further, those manufacturers providing computers, hard drives and other CEE containing internal memory where personal or other confidential data can be stored, are required to give consumers instructions for how to destroy any data contained before they surrender the product for reuse or recycling.

Lastly, manufacturers must also maintain records on site to demonstrate compliance with the Act, and make them available upon request by the DEC for a period of three years. See www.dec.ny.gov/chemical/66845.html

For purposes of the Act, “personal or other confidential data” is not expressly defined in the otherwise very detailed definitions section. For example, the definition of “covered electronic equipment” under ECL §27-2601(5), includes a wide variety of equipment, notably all of the following:

computers [as further defined at ECL §27-2601(2)];
computer peripherals [as further defined at ECL §27-2601(3)];
small electronic equipment [as further defined at ECL §27-2601(19)];
small-scale servers [as further defined at ECL §27-2601(20)];
cathode ray tubes [as further defined at ECL §27-2601(1)]; and
televisions [as further defined at ECL §27-2601(21)].

The definition of "covered electronic equipment" expressly excludes a:

“motor vehicle or any part thereof; camera or video camera; portable or stationary radio; household appliances such as clothes washers, clothes dryers, refrigerators, freezers, microwave ovens, ovens, ranges or dishwashers; equipment that is functionally or physically part of a larger piece of equipment intended for use in an industrial, research and development or commercial setting; security or anti-terrorism equipment; monitoring and control instrument or system; thermostat; hand-held transceiver; telephone of any type; portable digital assistant or similar device; calculator; global positioning system (GPS) receiver or similar navigation device; a server other than a small-scale server; a cash register or retail self checkout system; a stand-alone storage product intended for use in industrial, research and development or commercial settings; commercial medical equipment that contains within it a cathode ray tube, a flat panel display or similar video display device, and is not separate from the larger piece of equipment; or other medical devices as that term is defined under the Federal Food, Drug and Cosmetic Act.”

Interestingly, as can be seen above, “telephone[s] of any type” and “portable digital assistant[s] or similar device[s]” are expressly exempted from the definition of CEE. As a result, the mandates of the Act do not apply to any PDAs, cellphones or smartphones, all of today generally can and do contain gigabytes of personal and potentially confidential data. Such devies are, however, otherwise within the scope of the New York State Wireless Recycling Act, effective January 1, 2007, whereby all wireless telephone service providers offering cell phones for sale in New York are required to accept at no charge to consumers cell phones for reuse or recycling.

Retailer Requirements:

A different section of the Act, ECL §26-2607, specifies new requirements imposed on "retailers," as defined under ECL §26-2601(16)]. As of April 1, 2011, retailers of CEE must “at the location of sale” provide buyers of CEE information “about opportunities for the return of electronic waste that has been provided to the retailer by a manufacturer.” ECL §26-2607(1).

All New York “retailers” are flat-out banned by this new section 26-2607 from the sale or offer for sale in New York of any CEE unless the “the manufacturer and the manufacturer's brands are registered with the NY Department of Environmental Conservation” as specified in ECL §27-2605. This is a significant and burdensome requirement on retailers, who have no ability to require manufacturers to conform with the new mandates of the new Title 26 of Article 27, other than as may be specified in the parties' supply contracts or purchase order terms and conditions.

In partial recognition of the onerous results that may befall retailers due to this section, the sub-section (2) provides a safe harbor of sorts where any CEE purchased by a retailer from a manufacturer who “fails to register by [] [Jan. 1, 2011], or prior to the date the manufacturer withdrew its registration or the registration was revoked by the department” may continue to be sold until 180 days after April 1, 2011 or 180 days from date the manufacturer's registration was withdrawn or revoked. Continued sales of CEE, that may not otherwise be offered for sale in New York pursuant to this section, to retailers or others outside of New York is arguably not within this ban as written. In addition, such a ban applied to non-New York parties in interstate commerce could potentially implicate dormant commerce clause issues that are beyond the scope of this posting.

Penalties:

According to the DEC, the Act “except to the extent otherwise required by law” immunizes manufacturers or the operators of any from “any responsibility or liability for any data in any form stored on electronic waste surrendered for recycling or reuse, unless such person misuses or knowingly and intentionally, or with gross negligence, discloses the data.” http://www.dec.ny.gov/chemical/66845.html

Manufacturers: However, under the Act, manufacturers that fail to comply with the data security notification requirements may receive a civil penalty of up to $1,000 for a first violation; up to $2,500 for a second violation; and up to $5,000 for the third and any following violations within a 12-month period. §71-2729(1)(c)(ii). Manufacturers are subject to a fine of $1,000 per day for any failures to submit required reports, registrations, fees or surcharges. §71-2729(1)(c)(i).

Retailers: that violate the Act may be fined up to $250 for a first offense; $500 for a second offense; and up to $1,000 for a third and any additional offense within a 12-month period. §71-2729(1)(d).

Owners/operators of a electronic waste collection site, electronic waste consolidation facility or electronic waste recycling facility are liable to $250 fines for each offense of the Act with no maximum aggregate fine. §71-2729(1)(b).

Finally, consumers who violate the provisions of the Act are subject to a civil penalty up to $100 maximum for each violation. §71-2729(1)(a).

Enforcement Action by Federal Trade Commission Highlights Importance of Social Media Guidelines for Employees

Wed, 01 Sep 2010 17:15:43 GMT

Employees who post reviews of their employer’s products and services on social media sites, without disclosing their corporate affiliation, can land their employer in an FTC enforcement action. The FTC’s second enforcement action for violation of the agency’s endorsement guidelines, announced on August 26, makes this point.

According to the FTC, Reverb Communications, an on-line public relations firm, sought to boost sales of its clients’ gaming applications by having its employees post positive reviews on iTunes. Over the course of nine months, Reverb employees, posing as disinterested users, gave clients’ games a rating of 4 or 5 and posted comments, such as “Amazing new game,” “ONE of the BEST,” and “Really Cool Game.” According to the FTC, these reviews were misleading because they did not, as suggested, come from independent, ordinary consumers, but from Reverb employees who had a financial incentive to provide a positive endorsement.

In the agreement resolving the FTC’s complaint, Reverb agreed, among other things, (a) not to permit its employees to endorse any product without conspicuously disclosing the employee’s connection to Reverb and/or the manufacturer or advertiser of the product; (b) to take reasonable steps to remove the endorsements that were posted without full disclosure; (c) to maintain for five years all documents related to the company’s compliance with the agreement; and (d) to obtain for five years all current and future employees’ acknowledgement of receipt of the company’s agreement with the FTC.

With social media sites offering endless opportunities to recommend and review products and services, and employers increasingly pushing into Web 2.0 to promote their own products and services, well intentioned but misleading endorsements can easily mushroom throughout the Web. Employers can reduce this risk by explaining in a social media policy how the FTC defines an endorsement and by requiring any employee who provides an endorsement to disclose conspicuously his or her corporate affiliation. In addition, employers, as part of their social media training, should explain that even a numerical score or a brief comment about the employer’s products or services on a site not sponsored by the company could constitute an “endorsement” under the FTC’s guidance. The training also can provide the employee with different ways to disclose their affiliation with the employer, such as by stating, “I work in Employer’s product development department, and I think our product is the best in its class,” or by including the employer’s name and the employee’s job title when posting a comment.

This entry was written by Philip L. Gordon.

Photo credit: parasoley

charonqc

Wed, 01 Sep 2010 13:21:52 GMT

charonqc

Wed, 01 Sep 2010 12:57:41 GMT

Asset Search News Roundup: August 31, 2010

Tue, 31 Aug 2010 12:39:20 GMT

Securities fraudster Trevor Cook, assets that might have been misappropriated from former East Germany, and over $2 million is interdicted at a U.S.-Mexican border crossing:

Ex-Minneapolis money manager and securities fraudster Trevor Cook was sentenced a week ago to serve twenty-five years in prison for violating 18 U.S.C. §1341 (mail fraud) and 26 U.S.C. §7201 (tax fraud). As Mr. Cook's sentencing memorandum reveals, he had earlier argued that the Court should impose just a twenty-year sentence.
Swiss banking records that might memorialize the misappropriation of assets by parties and people's organizations from former East Germany, were turned over to the German Embassy in Bern on July 14th. A July 15th media release issued by the Swiss Federal Department of Foreign Affairs reported that: "Germany had previously asked Switzerland for the documents in order to obtain further information about illegal financial movements before and after the fall of the Berlin Wall."

Federal agents at the Calexico downtown port of entry for the U.S.-Mexican border, interdicted more than $2 million dollars which possibly belongs to narco-traffickers. The $2 million pictured below, was uncovered on August 8th during a vehicle inspection that included the use of a currency-firearm detector dog. A press release asserts that the $2 million had been hidden in luggage, a duffle bag and a plastic tub that were placed inside a vehicle.

Photo: U.S. Customs and Border Protection

"Circumstantial" Proof of Solicitation Found Insufficient by District of New Jersey

Mon, 30 Aug 2010 22:10:13 GMT

ING Life Ins. and Annuity Co. v. Gitterman, Slip Copy, 2010 WL 3283526 (DNJ August 18, 2010)

Plaintiffs ING Life Insurance and Annuity Company (“ILIAC”) and ING Financial Advisors (“IFA”) (collectively, “Plaintiffs” or “ING”), sought to enjoin defendants, all of whom were former employees of ING, from soliciting clients to withdraw certain accounts from ING, pending the resolution of a FINRA Dispute Resolution Proceeding. The Court initially granted a preliminary TRO enjoining defendants from: (1) “soliciting, inducing or attempting to induce any customers of Plaintiffs (or their affiliated companies) to sell or transfer assets from any ING Life Insurance and Annuity Company (“ILIAC”) account, product or security” and (2) “taking any action designed to effectuate the sale or transfer of assets from any ILIAC account, product or security, including, but not limited to submitting or assisting others in submitting account withdrawal forms to ILIAC.” The District Court further ordered Plaintiffs to post a surety bond to pay the costs and damages sustained by any party found to have been wrongly enjoined or restrained.

After a full hearing, the District Court found as follows.

Prior to April 2010, each Defendant was employed by ING either as an investment advisor, a career agent, a registered representative, or was employed in more than one of these capacities. That During the period of defendants' affiliation with ING, defendants serviced ILIAC's account in New Jersey's Alternative Benefit Program (“ABP”), a defined contribution retirement program available to eligible employees of New Jersey's public institutions on higher education. Until Defendants' affiliation with ING terminated in May 2010, defendants were responsible for servicing the accounts of more than 2,000 ILIAC customers with assets invested in the ABP. In February 2010, with ING's knowledge, several of the defendants set up their own Registered Investment Advisory firm (“GAWM”) and affiliated with an independent broker-dealer as registered representatives. As a result, many of the clients now in issue established investment advisory and/or brokerage accounts with Defendants off of the ING platform.

In May 2010, the affiliation between the defendants and ING was terminated, with an arrangement that would allow ING to maintain relationships with the defendants' clients with respect to these clients' investment in ING's New Jersey ABP. With respect to every other aspect of the clients' portfolios, ING agreed to, and assisted in, facilitating their transfer from ING to the new group's new broker dealer and to GAWM.

Although defendants did not initially sign a restrictive covenant when they first became affiliated with ING, they did sign contracts with ILIAC and/or IFA that contained a non-solicitation clause. The contracts contained a provision providing that defendants “shall not for a period of [one or] two years thereafter, directly or indirectly by or through any partner, associate, agent, employer, employee or firm action on the Agent's behalf: (i) advise, induce or attempt to induce any contract-holder of the Company [ILIAC] to cancel, replace or allow to lapse any annuity contract or security issued by the Company or its affiliates ...” All of the defendants signed covenants substantially similar to this provision.

Upon these facts, the District Court denied the motion, finding that Plaintiffs could not sufficiently demonstrate that there is a likelihood of success on the merits of their claims, specifically holding that “[m]erely being in contact with former clients does not constitute solicitation,”citing Mona Elec. Group, Inc. v. Truland Service Corp., 56 Fed.Appx. 108, 110 (4th Cir.2003); Prudential Securities, Inc. v. Plunkett, 8 F.Supp.2d 514, 520 (E.D.Va.1998); Bayly, Martin & Fay, Inc. v. Pickard, 780 P.2d 1168, 1175 (Okl.1989); and Aetna Bldg. Maintenance Co. v. West, 39 Cal.2d 198, 246 P.2d 11 (1952). The Court further found that there was no question that defendants needed to be in contact with Plaintiffs' clients, as they provide financial advice to these clients on many non-ABP investments unrelated to ING's business interests.

Most notably, the Court rejected Plaintiff’s assertion that defendants were, in fact, soliciting clients related to ING’s business interests, finding that “[the] … only evidence of solicitation Plaintiffs have provided is a single affidavit from an ING employee indicating that, through her communications with clients, it appears that Defendants' have recommended that Plaintiffs' clients switch to a different, competing ABP product. Plaintiffs' declaration summarily refers to client communications, without indicating the number of such communications or providing documentation of such communications.” The District Court also rejected as only “circumstantial” that several client accounts withdrew from ING in a short time frame from defendants’ departure. The Court expressly found that such departures do no “necessarily indicate[] that [the clients] were solicited or encouraged to leave.” To punctuate the finding, the Court provided the hypothetical example that “…these clients may have determined, upon learning of the termination of the [defendant-ING] relationship, that they no longer wanted to remain with ING. A non-soliciting statement from the defendants or ING, then, could have triggered clients to defect, and they are entitled to do so.”

charonqc

Mon, 30 Aug 2010 17:32:19 GMT

Dear Reader, I write this week with news, that owing to the exigencies of the international betting market, I had to post my weekly *Postcard* on Monday, as opposed to Sunday. This has resulted in a lot of greedy, venal, f**ks making a great deal of money. No money changed hands with me, of course, [...]

Dear Reader,

I write this week with news, that owing to the exigencies of the international betting market, I had to post my weekly *Postcard* on Monday, as opposed to Sunday. This has resulted in a lot of greedy, venal, f**ks making a great deal of money. No money changed hands with me, of course, and recent pictures in the News of The World showing me counting a large amount of money are published out of context. I quite often spend a happy hour or so of an evening counting my money and on the evening that particular picture was taken, I was, in fact, watching an episode of The Dragon’s Den and I wanted to get in the mood for the programme. Context and evidence based analysis and reporting is all.

Talking of greedy, venal, people – John Bolch brings news, on a tweet, of the well deserved bank holiday for bankers.

So… to Twitter…

Law blogger Jack of Kent - a serial twitter user as well – writes with passion (and knowledge) about the law and backs up his views with practical pro bono support for others where is able to do so. After being hauled over the coals by the Transgender community for daring to post about practical issues – he has explained why he is a liberal and what this means to him. What is liberalism?

I don’t always agree with Jack of Kent’s analyses but respect the way he puts analysis and comment together. This does not, of course, mean that I am right. It just means that I don’t always agree.

There are dangers in all blogging, and the use of twitter, that the blogger or twitterer will get what I choose to call Popeitis – an infallibility complex. This is rather more dangerous than sitting on top of mountains for a while and then descending with tweets of stone to educate the assembled multitude.

The Social Media Maven pronounces (2010)
Oil on Canvas
Charon

The third category of danger, and one that Jack of Kent may well be ‘guilty’ of, is what I call Zeusitis - sitting on top of a mountain and hurling a few thunderbolts about to wind up Libertarians and other members of the knee jerking and ranting classes. I may well have done a bit of this myself on occasion. I say ‘danger’ because tweeters seeing Zeusitis tweets are particularly likely to come scurrying out of their lairs – especially late of an evening when over refreshed – and tweet like a beserker or, indeed, if others join in, tweet en masse like a group of Beserkers on a quick raid down the Northumberland coastline. This, I think, is fair game – they, the Libertarians and ranters, are more than able to cope. I do enjoy debating with Jack of Kent and, being that it is a debate and not a hearing before a court of justice, I am more than prepared to use every means at my debating disposal to ‘win’ the point – including obfuscation, dissimulation, treachery, blackops and even a bit of law thrown in to spice it up a bit. Few, I hope, regard this as attacking Jack of Kent – who needs no help from anyone in defending himself! Fight the good fight, Jack. Never surrender!

And talking of knee jerking – here is an amusing parody of Iain Dale’s Diary – Iain Fale’s Diary

Twitter may also be used to put the boot in….

Tom Harris MP wrote a well reasoned piece on the Save The NHS campaign being pushed by Prezza – making the not unreasonable point that Labour also planned to cut NHS Direct in favour of another NHS proposition – 111.

Tom replied to Prezza with this: @johnprescott I’m sorry you want to make personal comments about me, John. I’ll stick to the politics (fortunately for you).

I rather like the idea of an experienced MP – here a Labour MP - taking a point of principle, being honest and open and not knee jerking or responding along *Tribal* lines.

Well… the silly season ends with the end of the bank holiday and I am quite pleased that autumn approaches and I can get back to some semblance of commenting on law and do a spot of work.

Best, as always

Charon

charonqc

Sun, 29 Aug 2010 19:30:41 GMT

Conservatives ready to repay Asil Nadir’s donations Guardian / Observer: Tory party officials say they will return £440,000 donated by Asil Nadir, if former Polly Peck boss is found guilty of fraud

Conservatives ready to repay Asil Nadir’s donations

Guardian / Observer: Tory party officials say they will return £440,000 donated by Asil Nadir, if former Polly Peck boss is found guilty of fraud

charonqc

Sun, 29 Aug 2010 19:09:03 GMT

Chatting to a local who knows a fair bit about cricket this morning while having a coffee at the caff and he wasn’t surprised about the revelations in the News of The World this morning…saddened for fans, yes… but not surprised. Tragic. Hopefully this mess will be cleaned up along with Cricket – truly great [...]

Chatting to a local who knows a fair bit about cricket this morning while having a coffee at the caff and he wasn’t surprised about the revelations in the News of The World this morning…saddened for fans, yes… but not surprised. Tragic. Hopefully this mess will be cleaned up along with Cricket – truly great game.

Match-fixer pockets £150k as he rigs England Test at Lord’s

News of The World

Nationwide Mut. Fire Ins. Co. v. Lawrence Pollinger, 35 Fla. L. Wkly D1866d (Fla. 4th DCA Aug. 18, 2010)

Sun, 29 Aug 2010 02:04:27 GMT

In this auto accident case, the defendant insurer hired two law firms: one to defend a claim for personal injury protection (PIP) and another to defend a claim for uninsured motorist benefits (UM). The law firm defending the UM claim served a proposal for settlement appearing to cover all claims. The defendant prevailed on all issues. The trial court declined to award fees. It found the offer ambiguous because there were two law firms involved and it was unclear whether the proposal covered the PIP claim in addition to the UM claim. The Fourth District affirmed, agreeing with the trial court that the situation created a latent ambiguity.

Nationwide Mutual Fire Ins. Co. v. Lawrence Pollinger, 35 Fla. L. Wkly D1866d (Fla. 4th DCA Aug. 18, 2010)

charonqc

Sat, 28 Aug 2010 20:03:35 GMT

charonqc

Sat, 28 Aug 2010 19:01:23 GMT

Nick Clegg acknowledges Liberal Democrat ‘anxieties’ Guardian: Deputy PM says next month’s Lib Dem party conference could be difficult, but insists ‘debate is not a bad thing’ I did enjoy this quote from The Guardian….. Clegg has faced criticism from fellow MPs as well as rank-and-file party members. The veteran Lib Dem MP Mike Hancock [...]

Nick Clegg acknowledges Liberal Democrat ‘anxieties’

Guardian: Deputy PM says next month’s Lib Dem party conference could be difficult, but insists ‘debate is not a bad thing’

I did enjoy this quote from The Guardian…..

Clegg has faced criticism from fellow MPs as well as rank-and-file party members. The veteran Lib Dem MP Mike Hancock said on Tuesday that Clegg would face a “sticky” party conference, after the Institute for Fiscal Studies concluded that the coalition government’s June budget was regressive.

“We didn’t sign up for a coalition that was going to hurt the poorest people in society, and I certainly didn’t get elected to do that ever,” Hancock said.

Clegg said next month’s conference could be difficult, but “debate and people expressing their views is not a bad thing”.

I agree.. people expressing their views and YouGov/Sun polls indicating Lib-Dem support running at 12% for some weeks now is, probably/possibly/ineluctably, a fair indication of *sentiment*.

I shall be tuning in to the Lib-Dem conference this year. Perhaps we shall see a new political party being born? Who knows. Not even Nostracharondamus predicted that we would have a Lib-Dem DPM running the country while Cameron is on leave. All empires die eventually… but the unusual factor about the Lib-Dem *empire* is that they managed to lose it without actually having an empire in the first place. But there we are…..

Multi-State Employers Must Revise Job Applications to Address New Massachusetts Background Check Law

Fri, 27 Aug 2010 17:56:35 GMT

Recently enacted legislation in Massachusetts will significantly affect employers’ use of criminal history information for employment purposes. While most provisions of the new law (pdf) do not go into effect until February 2011, one provision, effective on November 4, 2010, requires the immediate attention of multi-state employers.

This provision generally prohibits employers from inquiring in an “initial written application form” about an applicant’s criminal history. Two narrow exceptions permit questions about criminal history if a federal or state regulation (1) disqualifies the applicant from employment in the open position based on a criminal conviction; or (2) bars the employer from hiring for one or more positions an individual with a criminal conviction. The second exception, as written in the statute, is ambiguous. It is unclear whether an employer who is barred from hiring a convicted criminal for certain positions may inquire into an applicants’ criminal history on the initial employment application used for a variety of positions, including those that can be filled by a convicted criminal. This issue is particularly important for multi-state employers who use a standard job application form for all jurisdictions.

Before the new law’s November effective date, all multi-state employers should carefully reviewany job application form that is completed by Massachusetts applicants. If the employer has no position for which federal or state law prohibits the hiring of a convicted criminal, the employer should add an instruction to Massachusetts applicants, immediately below any question seeking information about criminal history, directing Massachusetts applicants not to respond. If the employer has one or more positions for which federal or state law prohibits the hiring of a convicted criminal, the employer should consider an instruction which directs Massachusetts applicants not to answer the question unless they are applying for one or more of a list of specified positions. The list would include those positions for which state or federal law prohibits the hiring of a convicted criminal.

Notably, the new law imposes no restriction on an employer’s ability to inquire into an applicant’s criminal history at any point in the hiring process after the initial written employment application has been submitted. Multi-state employers should note, however, that Massachusetts law prohibits employers from asking applicants about certain criminal records at any stage of the hiring process. To comply with these restrictions, employers must refrain from asking about any of the categories of criminal history listed below, or if asking a broad question that might otherwise call for disclosure, instruct the applicant not to disclose any of the below-listed categories:

• arrests not resulting in a conviction;
• sealed records;
• crimes committed while a juvenile unless charged as an adult;
• convictions for misdemeanors where the date of conviction precedes the question by more than five years; and
• first convictions for misdemeanors involving drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace.

In light of these restrictions, employers should exercise caution when making any oral inquiry related to criminal history. A better approach would be to move the written question about criminal history from the initial application to a later stage of the hiring process. For example, employers who require applicants to complete a background check authorization after screening the initial written application could add to the background check paperwork provided to Massachusetts applicants a written inquiry into the applicant’s criminal history. That inquiry would include a listing of the categories of criminal history that the applicant should not disclose. This approach allows employers to require a written answer to an inquiry into criminal history before making the final employment decision while complying with the new Massachusetts restriction.

To learn more about this legislation and its implications for employers, please see Littler ASAP, “Massachusetts Becomes the Second State to ‘Ban the Box’ on All Employment Applications” by Carie Torrence.

This entry was written by Philip L. Gordon and Carie Torrence.

Photo credit: petebax

charonqc

Fri, 27 Aug 2010 17:55:54 GMT

A week or so ago I wrote, reasonably seriously about a half baked plan to have Magistrates Courts set up in shopping malls – an idea that The Magistrates Association appears to have retreated from. Law Review: Magistrates call for courts in shopping centres – a parody? Unfortunately, another even less baked idea has been put [...]

A week or so ago I wrote, reasonably seriously about a half baked plan to have Magistrates Courts set up in shopping malls – an idea that The Magistrates Association appears to have retreated from.

Law Review: Magistrates call for courts in shopping centres – a parody?

Unfortunately, another even less baked idea has been put forward by a magistrate… as reported in The Guardian today. I am grateful to @BritsolRed for the tip off to The Guardian report.

The Guardian reports: “Any takers for the justice bus? This unlikely sounding proposition, a mobile court travelling far-flung parts of the country dispensing justice, was floated recently, along with the idea of “pop-up” courts in supermarkets.

Both were suggested as ways of preserving local justice in the face of the huge court closure plan. Ministers want to save £15.3m by redrawing the justice map and closing 157 magistrates and county courts.

…. “As for the justice bus, a Norwich JP, Diana Reid, has in mind a decommissioned double-decker to take justice to remote communities. In a recent article for the Magistrates Association magazine, she describes the Tardis-like properties of the vehicle: “Upstairs are the supporting admin staff, and a separated area for the lawyers. On the lower level the space is divided into a very small waiting area; the ‘court room area’ and a very small ‘retiring area’.” Quite; there’s not much room for dignity, let alone anything else.”

It might be a good idea for Ken Clarke, Lord Chancellor and Secretary of State for Justice to have a look at some of the people who are magistrates as part of his review of criminal justice – if these ideas are popping into the minds of those who are dispensing justice on the cheap?

Do I Have to Maintain My Parkway??

mmcandrew@hennessyroach.com (Mark McAndrew) — Fri, 27 Aug 2010 14:13:55 GMT

The 1st Circuit Illinois Appellate court has affirmed a decision by James D. Egan (Cook County).

The defendants, Christopher and Rachel Powers, moved from California and purchased a home in Evanston, Illinois. In front of the Powers’ new home, between the public sidewalk and the street lies a grassy parkway. A stone walkway, which is owned by the City of Evanston, intersects the parkway. The plaintiff, a co-owner of a moving company hired by Powers, sustained an injury to her foot while on the walkway. The plaintiff sued and alleged that her injuries were the result of the Powers’ failure to maintain the walkway in a safe condition. Defendant's filed a motion for summary judgment arguing that they owed no duty as the parkway was owned by the City of Evanston. The trial court granted the Powers’ motion. The plaintiff appealed. Gilmore v. Powers, 2010 WL 32219804 (Ill. App. Ct. 2010).

The appellate court affirmed. On appeal, the plaintiff acknowledged that the city-owned the walkway but argued the Powers’ appropriated the walkway for their own use by mowing and exclusively walking over it. The court found that, although a private landowner generally owns no duty to ensure the safe condition of abutting public land, a landowner may be liable for injury by affirmatively appropriating public land such as by blocking the land or parking on, especially if it is the sole means of ingress and egress. The court found that the plaintiff did not offer evidence of such appropriation and pointed out that the Powers recommended the moving company unload from the alley. Illinois District Court decisions have found no appropriation when landowners walk over, shovel, mow, or otherwise maintain public land.

The plaintiff also argued that two Evanston municipal ordinances required homeowners to maintain all public and private land in a hazardous free condition. The court held that municipal ordinances do not give rise to private tort liability. Citing Section 288 of the Second Restatement of Torts, the court noted “ordinances which require householders to keep sidewalks in repair or to remove snow and ice from them are considered to be intended only for the benefit of the municipality [not to promote public safety] and not for any individual who may suffer a fall.”

Washington v. Labor Ready, Case No. 1D10-2989 (Fla. 1st DCA Aug. 18, 2010)

Fri, 27 Aug 2010 01:33:00 GMT

"It is a settled rule of law that mailing, as opposed to filing, a notice within the thirty-day filing period is insufficient to preserve appellate rights." Citing Millinger v. Broward County Mental Health Div., 672 So.2d 24, 26 (Fla. 1996). The Court...

"It is a settled rule of law that mailing, as opposed to filing, a notice within the thirty-day filing period is insufficient to preserve appellate rights." Citing Millinger v. Broward County Mental Health Div., 672 So.2d 24, 26 (Fla. 1996). The Court didn't bother to discuss the facts, but did let us know that it issued an order to show cause prior to dismissing the lawsuit. The relevant rule is 9.110, Florida Rules of Appellate Procedure.

Washington v. Labor Ready, Case No. 1D10-2989 (Fla. 1st DCA Aug. 18, 2010)