Recent Articles in Law Firm Management & Legal Marketing from LexMonitor

Utah Bill Becomes Law: 72-Hour Wait For Abortion

Thu, 22 Mar 2012 15:28:32 GMT

Utah’s governor signed a bill into law requiring a 72-hour waiting period for women seeking an abortion, according to Yahoo News, although that a similar mandate was rejected recently in a South Dakota federal court. The Republican governor Gary Herbert’s decision is expected to meet approval of the majority conservative state legislature and reeks of political [...]

The Republican governor Gary Herbert’s decision is expected to meet approval of the majority conservative state legislature and reeks of political motives as he rejected a law seeking to restrain sexual education in schools just 4 days ago.

“Governor Herbert is an adamant supporter of rights for the unborn,” said Ally Isom, a Herbert spokeswoman. “He felt the bill appropriately allows a woman who’s facing that decision to fully weigh her options and the implications of that decision.”

The state currently requires a 24-hour waiting period before an abortion, which was also upheld in one of the Supreme Court’s landmark abortion cases, Planned Parenthood v. Casey, in the early 1990′s because the court found that it did not impose an undue burden upon women.

The law is is just the latest in the hot button field of abortion. Further, in neighboring Idaho, lawmakers are currently flirting with the idea of requiring women to undergo an ultrasound before ending a pregnancy.

A South Dakota law that passed last year also imposed a 72-hour waiting period for women seeking to have an abortion. However, the state’s Planned Parenthood organization sued in federal court because it felt the law violated both a woman’s right to equal protection of the laws and due process under the 14th Amendment.

Chief Judge Karen Schreier of the U.S. District Court for South Dakota agreed with Planned Parenthood as she issued a preliminary injunction against the mandate last June.

Schreier observed that the mandate imposed an undue burden on women because some low-income abortion patients travel long distances and cannot afford to make 2 separate trips when seeking an abortion.

“We believe that a court will find the 72-hour waiting period (in Utah) is not an undue burden,” the governor’s spokeswoman, said.

There is one slight distinction between the South Dakota and Utah laws. While South Dakota’s mandate required those seeking an abortion to wait 72-hours after an initial consultation with an abortion provider, Utah’s law only requires a 72-hour wait after the an initial meeting with any health provider.

A small distinction, but one that the governor believes will circumvent the undue burden standard.

The law is expected to take effect on May 7. Additionally, 24 States currently require some form of waiting period.

It begs the question how long of a wait is too long to constitute an undue burden on women seeking an abortion. I guess we will see if this law is eventually challenged in court. And, whether the slight difference in the Utah statute makes any difference to a potentially presiding judge.

What do you think?

Mom Sues Son’s Fraternity After Crown Royal Kills Him

Thu, 22 Mar 2012 15:28:01 GMT

Samuel Harris Mason’s BAC was .48% When Found Dead After Hazing Ritual A mother is suing Tau Kappa Epsilon, the fraternity that her son was attempting to become a pledge to when he died of excessive alcohol consumption. By the time his body was found, his blood alcohol content was .48%, and the complaint alleges that [...]

Samuel Harris Mason’s BAC was .48% When Found Dead After Hazing Ritual

A mother is suing Tau Kappa Epsilon, the fraternity that her son was attempting to become a pledge to when he died of excessive alcohol consumption. By the time his body was found, his blood alcohol content was .48%, and the complaint alleges that at the time he was most in need of emergency medical care, it was probably even higher.

In her complaint, Ms. Mason claims that at a ritual hazing event, members of the fraternity encouraged her son Samuel to imbibe fatal quantities of alcohol which eventually rendered him so intoxicated that he suffered from alcohol poisoning. She further alleges that rather than obtaining emergency medical care, which her son desperately needed, members carried his body to another location, and left him where he eventually succumbed to the condition and died.

Essentially, the complaint charges the fraternity, its chapter, and the 7 named parties, with engaging in the hazing activity and also failing to secure emergency medical treatment.

The complaint sets forth the scenario that Omicron-Omega had a tradition of giving pledges alcohol to drink in three- and five-gallon red gas cans, marked “DRINK MAGGOT DRINK. ” It states further that there was a tradition of Big Brothers gifting to their little brothers a bottle of the “family drink,” which in Samuel’s case was Crown Royal. In accordance with this ritual, the little brothers are instructed by the big brothers to finish the entire bottle of the family drink. Thus, according to the facts stated in the complaint, it is unclear exactly how much alcohol Samuel ingested, but it seems that he was encouraged to not only finish an entire bottle of Crown Royal but to also drink additional alcohol from a 3 or 5 gallon red gas can.

The complaint sets forth additional historical facts regarding the alarming rate in which fraternity and sorority students are killed from similar related alcohol binge drinking events.

The mother is seeking punitive and compensatory damages for wrongful death, under the theories of negligence, negligence per se, and willful/wanton misconduct, ”arising from the execution , perpetuation, and failure to supervise dangerous fraternity traditions that constitute hazing.”

California HS Drug Counselor Taped Students Having Sex

Thu, 22 Mar 2012 15:27:43 GMT

A California HS drug counselor pleaded not guilty Wednesday to secretly videotaping 2 students having sex and possessing child pornography, according to CNN. 34-year-old Gilbert Olivares turned himself in to police late Monday. His bail has been set at $1 million. The Monterey County district attorney charged Olivares with 19 felonies to each of which [...]

A California HS drug counselor pleaded not guilty Wednesday to secretly videotaping 2 students having sex and possessing child pornography, according to CNN.

34-year-old Gilbert Olivares turned himself in to police late Monday. His bail has been set at $1 million.

The Monterey County district attorney charged Olivares with 19 felonies to each of which he plead not guilty.

The laundry list of charges in the criminal complaint includes: lewd act upon a child, contact with a minor for sexual offense, possessing child pornography and using a minor to do or assist prohibited acts.

Andrew G. Liu, Olivares’ attorney, declined to comment on the charges against his client

“We are at a very early stage,” Liu said to CNN. “I have just received 71 pages of police reports and I have not had time to review them yet.”

Olivares was first arrested last week at Salinas High School, initially on 11 charges, according to authorities.

He posted $50,000 bail at that time and was released, according to police Sgt. Christopher Lane.

The criminal complaint additionally accuses Olivares of inappropriately touching the buttocks of a 14-year-old, identified as John Doe, as minors names are not publicly disclosed in criminal cases. The 2 also allegedly also corresponded via Facebook.

During an investigation of Olivares’ home detectives found 14 videos made by Olivares in his office at the high school, police said in a statement.

“The videos are of teenage students engaged in sexual activity with each other within Olivares’ office, during school hours,” the statement says. “It appears the videos were taken without the knowledge of the victim students and Olivares is not in the room at the time. We continue to work closely with Salinas High School to help identify any possible victims in these cases.”

Police said the forensic search of Olivares’ computer revealed several pictures and videos of child pornography, but police believe that those were most likely downloaded from the Internet.

Police obtained a new arrest warrant Monday increasing bail to $1 million.

“The bail is unusually high and that might be subject to challenge in the future,” Olivares’ defense attorney Andrew Liu said.

Olivares’ preliminary hearing was originally set for April 5.

“He is innocent until proven guilty and we’re looking forward to a fair hearing in court,” said Liu. “He has the strong support of a loving family.”

Olivares was employed by an organization that counsels youth on drug and alcohol abuse, and even though he worked as a counselor at Salinas High School for 5 years, he was not officially employed by the school district.

The overwhelming weight of the evidence seems to disfavor Olivares and it is unlikely that a jury would be sympathetic to a guidance counselor who used his position to take advantage of youngsters, especially in a sexual manner.

Accordingly, if I were his defense attorney I would look for any way possible to plea bargain in this case. Yet, it is unlikely that the D.A. will offer a deal that would appeal to the defendant as he or she will most likely be looking to make an example of Olivares for his tasteless acts.

Finally, it is uncertain whether the school district could be hit with negligent supervision lawsuits from these victims as a result of Olivares’ actions. The fact that he was not officially employed by the school will help the school district, but will not on its own let it off of the hook.

What do you think?

Goodell: Saints Payton Suspended Without Pay For 1 Year For Bounties

Thu, 22 Mar 2012 15:27:32 GMT

The never shy to penalize NFL Commissioner Roger Goodell has cracked down once again. However, this time it was not against a player, but instead against those within the management ranks. Goodell suspended New Orleans Saints head coach Sean Payton for 1 year for his role in the team’s bounty system that rewarded defensive players [...]

The never shy to penalize NFL Commissioner Roger Goodell has cracked down once again. However, this time it was not against a player, but instead against those within the management ranks.

Goodell suspended New Orleans Saints head coach Sean Payton for 1 year for his role in the team’s bounty system that rewarded defensive players for laying injurious hits on opposing players, according to Yahoo News.

Additionally, the mastermind behind the bounty system, defensive coordinator Gregg Williams, now employed by the St. Louis Rams, was suspended indefinitely by the league.

Saints G.M. Mickey Loomis was suspended for eight games and assistant head coach Joe Vitt was suspended for 6.

All of those punished have been suspended without pay, which means Payton must relinquish the entirety of his $7.5 million salary during his suspension that begins on April 1.

The penalties imposed are unprecedented, as they mark the harshest sanctions imposed upon a head coach in NFL history

Payton was reportedly “stunned” by the news. “No, I’m not OK,” he reflected in an interview with Fox Sports’ Jay Glazier.

Further, the Saints must also pay a $500,00 fine and lose their rights to their 2nd-round picks in both 2012 and 2013.

“Beyond the clear and continuing violations of league rules, and lying to investigators, the bounty program is squarely contrary to the league’s most important initiatives — enhancing player health and safety and protecting the integrity of the game,” said Goodell in an issued statement. “Let me be clear. There is no place in the NFL for deliberately seeking to injure another player, let alone offering a reward for doing so. Any form of bounty is incompatible with our commitment to create a culture of sportsmanship, fairness, and safety.”

Although, Payton was not active in dispersing bounty payments to members of the Saints defense Goodell felt that in the end his lack of action served as a tacit endorsement of the bounties.

Goodell’s position is understandable when considering that NFL has ramped up its policy to provide a safer environment for its players of late. If Goodell would have looked the other way here or had he only imposed minor sanctions he would have established a double standard regarding player safety.

Although Payton was not an active member in handing out bounty payments, his punishment demonstrates Goodell’s belief that the captain must go down with the ship. He is the face of the Saints and accordingly he must answer the bell in both good times and bad.

Goodell also emphasized that the Saints lied to him during the NFL probe. It is unclear whether that added to the punishments, but it almost assuredly did.

It is also unclear whether those penalized will try to appeal the punishments issued by the NFL, through the appeals process provided in the CBA. Considering the lack of success in pro sports appeals it would be wise for Payton and the others to accept the suspensions.

Although unlikely, maybe they can channel their inner-Ryan Braun and receive a reduced punishment.

What do you think?

The Benefits of A Special Needs Trust

Thu, 22 Mar 2012 15:27:04 GMT

The Benefit of a Special Needs Trust (aka Supplementary Needs Trust) Once you have a special needs child, you become aware of a vast array of applicable laws and regulations almost by osmosis. From medical appointments, to specialists, to therapies, to educational plan meetings, parents of special needs children are constantly attending to distinct circumstances. [...]

The Benefit of a Special Needs Trust (aka Supplementary Needs Trust)

Once you have a special needs child, you become aware of a vast array of applicable laws and regulations almost by osmosis. From medical appointments, to specialists, to therapies, to educational plan meetings, parents of special needs children are constantly attending to distinct circumstances. What many special needs parents may not know, however, is the absolute necessity of setting up a water tight Estate Plan.

Estate planning is key because in order to qualify for the Social Security Administration’s Supplemental Security Income Benefits, (“SSI”), a disabled adult can’t hold more than $2,000 in assets (excluding a car and a home). This means that if you die intestate, or without a will, your child will likely inherit more than the $2,000 limit, thus rendering them ineligible for these benefits. In 1993, Congress explicitly created an exception for the use of Supplemental Needs Trusts for disabled adult individuals, and treats these trusts as non-countable assets.

Eligibility for SSI makes a disabled person eligible for food stamps and Medicaid, which pays medical expenses, nursing home care and mental health services. Medicaid eligibility may also make a disabled person eligible for many local community services. As a general matter, SSI benefits must be spent on food, clothing, and shelter expenses.

Additionally, by setting up a trust you not only ensuring that your child will be taken provided for beyond these programs, but you can also rest assured that your child will have a structured manner of receiving such support.

Why a Special Needs Trust Makes Sense

The benefits of having a trust for your special needs child are many. In particular, if you leave a close friend or relative as a beneficiary to your trust, the money might:

Be subject to legal judgments or divorce settlements against the relative, or be lost in bankruptcy
As the beneficiary, the relative can’t be legally forced to use the money to benefit the disabled person
Be taxed at a higher rate than the disabled child or a trust
If the relative or friend dies prior the disabled child, the money could potentially go to his or her heirs

In other words, leaving the money to anyone other than your child, means that it could be subject to claims against that other person, or otherwise subject to that person’s financial situation or judgment.

By meeting with an experienced Estate Planning Attorney, you can construct a trust with explicit instructions to take care of your special needs child. You have too much vested to leave your special needs child’s financial future up to chance.

Landmark Product’s Liability Case: Liebeck v. McDonald’s Restaurants

Thu, 22 Mar 2012 15:26:50 GMT

Liebeck v. McDonald’s: The Case Where Public Perception Reveals its Limitations Almost everyone has heard of this infamous case decided in 1994, and many have strong opinions depending on what version of the facts they have heard. Liebeck v. McDonald’s Restaurants (Bernalillo County, N.M. Dist. Ct. 1994), is commonly referred to or otherwise known as the hot [...]

Liebeck v. McDonald’s: The Case Where Public Perception Reveals its Limitations

Almost everyone has heard of this infamous case decided in 1994, and many have strong opinions depending on what version of the facts they have heard.

Liebeck v. McDonald’s Restaurants (Bernalillo County, N.M. Dist. Ct. 1994), is commonly referred to or otherwise known as the hot coffee case. In the case, 79 year old Stella Liebeck suffered third degree burns to her pelvic region when she accidentally spilled the hot coffee that she had purchased from a McDonald’s drive thru.

On the day of the incident, Liebeck’s grandson was driving, and parked the car so that she could put cream and sugar in her coffee. When she pulled back the lid, the entire cup spilled into her lap, becoming absorbed into her cotton sweatpants, which then held the scalding liquid against her body.

The burns were quite intense, in sum covering 16 percent of her body, 6 percent of which were third degree, and causing her to lose 20 pounds, bringing her total weight down to 83 lbs. She was in the hospital for 8 days of treatment, including skin grafts, and her additional treatments lasted for some 2 years.

The jury awarded $160,000 for medical expenses and compensatory damages, and $2.7 million in punitive damages. However, the trial judge reduced the award amount, and the parties reached a confidential settlement prior to the pending appeal.

Here’s the kicker, Liebeck offered to settle the case for $20,000 before trial, which included her already incurred medical expenses, and those she anticipated to incur for future treatment. McDonald’s settlement offer was for $800.

How Hot Was the Coffee, You Ask?

The nature of the claim was interestingly based upon a product’s liability claim, which alleged that the coffee was defective, because it was too hot, and thus more likely to cause an injury than coffee served in other establishments. During the trial, plaintiff’s counsel discovered that McDonald’s required its franchisees to serve its coffee at 180–190 °F , which would cause a third-degree burn in two to seven seconds. Her attorney claimed that coffee should be served no hotter than 140 °F, and offered proof that other establishments served it cooler.

McDonald’s justification for serving such hot coffee in its drive-through windows was for the benefit of commuters who wanted the coffee to remain hot throughout a long drive. However, event the company’s own research showed that at least some customers intend to consume the coffee immediately while driving.

Apparently, the basis for the seemingly high punitive damages award, was based on plaintiff’s counsel’s suggestion to penalize McDonald’s for one or two days’ worth of coffee revenues, which were about $1.35 million per day. (It was also revealed at trial that McDonald’s had received some 700 other claims of burn injuries due to the coffee being too hot, and had already settled claims totaling more than $500,000 for burning incidents)

I chose to write about this case, because I believe it is a situation in which knowing the facts of the case demonstrates that popular opinion is not always an accurate depiction of a lawsuit. You have a 79 year old woman who suffered severe burns on 16% of her body, and McDonald’s wasn’t even willing to cover the amount of her medical costs, eventhough they didn’t even amount to 2% of the total they make on coffee sales alone in one day!

Additionally, I don’t know about you, but after their major coffee relaunch, meant to do battle with Starbucks, I have on occasion picked up a cup of coffee from McDonald’s drive thru, and let me tell you, it is probably still too hot. In fact, on one occasion, as the girl was handing me the cup, the lid popped off, and hot coffee spilled all over my hand and outside of my car. Ever since that incident, I have felt even more sympathetic to the plaintiff in this case.

Here is a great article about the case, if you want to learn more.

Click to learn more about Products Liability.

Depositions: Getting Documents with F.R.E. 612.

jdhull@hullmcguire.com (Holden Oliver) — Thu, 22 Mar 2012 15:15:41 GMT

"Ms. Bloor, before coming in here today, what did you read or skim to get ready?" Often the best documents--and certainly often the most interesting ones--are documents that are not produced before or during a deposition, like handwritten records that even opposing counsel doesn't know about. F.R.E. 612 provides that if a witness uses a writing "to refresh memory", either while or before testifying, the adverse party is "entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness" on the document.

Even great lawyers overlook that F.R.E. 612 applies to depositions as well as to trials. Federal decisions have applied the rule to depositions taken based upon Fed.R.Civ.P. 30(c). So ask the deponent if he or she looked at documents before the deposition other than those being produced at or in advance of the deposition. If the answer is "yes", request that they be produced. You can have them produced during or after the deposition.

Must be a tawdry document she asked for. Can't wait to see it.

It's not always about being different

Thu, 22 Mar 2012 15:05:47 GMT

With the markets in recovery mode and the recent financial crisis becoming a distant memory, it seems like a good time to reflect on what we’ve learned, if anything.

As I dug a bit deeper on the topic of “lessons from the financial crisis,” which only returned about 40 million results, the idea of rebuilding trust came up more than a few times. I then stumbled upon a presentation that I think offers some interesting perspectives on the topic.

Titled simply “Trust,” the author, Justin Basini, argues that trust building begins with managing risk and clearly communicating them as opposed to marketing products and services benefits.

It sounds simple enough, but it’s actually a fairly radical idea given the investment industry’s historical focus on product benefits, as opposed to managing risks, expectations and discovery of clients’ needs and objectives.

To clarify, Justin is not saying that the industry shouldn’t discuss benefits. He’s simply saying that there needs to be a more balanced approach to communicating benefits, as well as risks and expectations in a clear and simple way.

Unfortunately, this tendency to focus on benefits, as opposed to risks, was amplified during the recent economic crisis.

Most crises’ start with a mistake, and either move into the social conscience as a conspiracy or incompetence. For the entire investment industry, public perception moved directly from crisis to incompetence due to the complexity of the issue and the belief that business leaders simply didn’t manage risk appropriately or didn’t realize what they were getting into.

Top-down communications don’t work right now

The question then becomes, how do you deal with it? Many firms continue to apply a “top-down” approach to communications. Meaning, the CEO or spokesperson comes out with the corporate approved message. The age of top-down communications, however, is dead (at least for the time being). Messages now flow through numerous and sometimes unexpected channels. As a result, marketing and corporate communications need to adapt.

You must empower and arm your entire company with the right messages for partners and consumers. This is critical because society doesn’t trust the face of corporate America – the CEO. They’re more likely, however, to trust their peers.

What this also means is that for the time being, the trust challenge is not solved by differentiation but rather by whom and how your message is delivered.

Making a difference and finding what you truly believe

Companies and the entire industry also need to prove to distribution partners and investors that they’re worthy of trust. One of the ways you can do this is by recognizing and communicating what your role is in the global economy and what your responsibility is to your community and to people’s lives.

In other words, how do you make a difference as opposed to how are you better or different?

It sounds risky, especially given the negative market environment we’ve just experienced, and finding that right message can be difficult, but in reading another interesting post by Steve Gardner, President of Gardner Nelson + Partners it’s clear that the companies that are willing to communicate what they really believe, no matter what the market environment, will be rewarded in the long run.

P.S. As this post was publishing I received an email about John Hancock’s new “Trust” campaign. The ads are aimed at stressing the importance of trusted advisors with one boasting, “People don’t trust the market. People don’t trust the economy. People don’t trust the government. But you, they trust.”

Seems we were thinking along the same lines.

Nine Steps to Integrating the Cloud into Your Business

info@fed-soc.org (info@fed-soc.org) — Thu, 22 Mar 2012 15:00:08 GMT

Last December, I was interviewed by Finance and Commerce magazine for an article titled “Tech Toolkit: IT planning for the year ahead.” Part of the article included cloud computing and what companies can do to include the cloud in their businesses. Early the same month, I posted on the technology trends for 2012, and the... Continue Reading

Last December, I was interviewed by Finance and Commerce magazine for an article titled “Tech Toolkit: IT planning for the year ahead.” Part of the article included cloud computing and what companies can do to include the cloud in their businesses. Early the same month, I posted on the technology trends for 2012, and the continued adoption of cloud computing was one of them. The Cloud Standards Customer Council has released its first “Practical Guide to Cloud Computing.” This guide includes nine steps that companies should consider to help integrate the cloud into their businesses. For the most part, the nine steps involve planning, but planning for the cloud is important. Not every application and data set is appropriate for the cloud. Using this planning tool will help inform a company about what cloud services are appropriate for its business.

100 years. 3000 trees. The only important thing about D.C. this morning.

jdhull@hullmcguire.com (Holden Oliver) — Thu, 22 Mar 2012 14:53:18 GMT

Real Heroes: The People of Japan....

Real Heroes: The People of Japan.

No Breach of Contract Claim from Mid-Stream Change of WSJ Online Pricing – Lebowitz v. Dow Jones

venkat@focallaw.com (Venkat) — Thu, 22 Mar 2012 14:08:06 GMT

[Post by Venkat Balasubramani] Lebowitz v. Dow Jones & Co., 06 Civ. 2198 (MGC) (S.D.N.Y.; Mar. 12, 2012) Dow Jones...

[Post by Venkat Balasubramani]

Lebowitz v. Dow Jones & Co., 06 Civ. 2198 (MGC) (S.D.N.Y.; Mar. 12, 2012)

Dow Jones operates WSJ Online. Historically, it offered WSJ Online subscribers access to WSJ Online and Barron’s Online. At some point, Dow Jones decided to spin-off Barron’s. It gave existing subscribers the choice between accessing Barron’s instead of WSJ Online or accessing WSJ Online and paying a separate fee (pro-rated and up to a maximum of $20) to access Barron’s.

Plaintiffs brought a putative class action, arguing that a mid-stream change in the subscription price was a breach of the subscriber agreement. Alternatively, plaintiffs argued that if the agreement was interpreted to allow Dow Jones to unilaterally change the price this would render the contract illusory. The contract provision allowed Dow Jones to:

change the fees and charges then in effect, or add new fees or charges, by giving [subscribers] notice in advance.

The court disagrees, noting that contractual provisions which allow unilateral changes are not illusory as long as the right to make these changes are constrained in some manner. Looking to case law in New York, the court says that requiring an obligor to exercise its discretion in a reasonable manner or a manner evincing good faith sufficiently constrains the obligor’s discretion. The court says this is the case here:

there is no evidence that Dow Jones used the discontinuance provision to deprive plaintiffs of an unreasonably large part of WSJ Online’s content, and there is no reason to interpret this provision as permitting such extreme behavior. Dow Jones acted reasonably, and therefore this provison of the subscriber agreement is not illusory.

Plaintiffs also argued that Dow Jones failed to give advance notice of the price change and this constituted a breach. Dow Jones had provided notice via a “pop-up” box, which indicated that it was conveying an “IMPORTANT NOTICE TO READERS.” This box appeared on each homepage. When users clicked on this box, a notice appeared which informed subscribers of the spin-off and the fact that the pricing would be changing.

There have been a slew of disputes involving contracts which one party says they can modify at any time. Harris v. Blockbuster presented this problem and Eric’s advice was on point: “STOP PUTTING CLAUSES INTO YOUR CONTRACTS THAT SAY YOU CAN AMEND THE CONTRACT AT ANY TIME IN YOUR SOLE DISCRETION BY POSTING THE REVISED TERMS TO THE WEBSITE” It doesn’t look like companies have heeded this advice and thus continue to struggle with arguments from consumers that this type of a provision renders contract illusory. Dow Jones dodged a bullet here, and although I’ll leave the contract law 101 deep dive to others, the result here did not comport with basic common sense and equity. It’s as if you sign up to on a month-long plan to purchase a particular type of combo meal deal at McDonald’s and halfway through they come along and change up the combination. Rather than forcing customers to pick between WSJ Online or Barron’s going forward, Dow Jones could have just refunded a portion of the subscription fees. The court’s decision deprives plaintiffs of this choice. It wasn't clear from the opinion, but it seemed like the decision was made just to separate the two subscriptions--the order did not discuss some compelling reason (other than subscriptions) why Dow Jones made the decision.

Another interesting part of the dispute was how Dow Jones dealt with notice. Dow Jones has to provide subscribers notice in order for the revised terms to be effective. This is another problem area for companies. (See Eric’s post on the Douglas v. Talk America case, where the Ninth Circuit struck down a contract amendment due to failed notice: “Ninth Circuit Strikes Down Contract Amendment Without Notice--Douglas v. Talk America.” Some suggestions as to notice are discussed in that post.) The court here spends two sentences on the adequacy of notice via a pop-up box. The pop-up box method of notice would work in many cases, but it was surprising to see the court ignore the details of the notification here. I suspect other courts would not always be so approving of notice via this method, absent consideration of other facts, such as the size of the box and the overall user experience.

Previous posts:

Vendor Fails to Form Either an Online or Paper Contract With Customers--Kwan v. Clearwire
Zynga Wins Arbitration Ruling on "Special Offer" Class Claims Based on Concepcion -- Swift v. Zynga
Judge Can't Decide if Facebook's User Agreement is a Browsewrap, But He Enforces It Anyways--Fteja v. Facebook
Stop Saying "We Can Amend This Agreement Whenever We Want"!--Harris v. Blockbuster
Facebook's "Browsewrap" Enforced Against Kids--EKD v. Facebook

Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board

venkat@focallaw.com (Venkat) — Thu, 22 Mar 2012 14:02:10 GMT

[Post by Venkat Balasubramani] Bell v. Itawamba County School Board, 11CV00056-NBB-DAS (N.D. Miss.; Mar. 15, 2012) [.pdf] Bell posted a...

[Post by Venkat Balasubramani]

Bell v. Itawamba County School Board, 11CV00056-NBB-DAS (N.D. Miss.; Mar. 15, 2012) [.pdf]

Bell posted a rap video while he was a senior at Itawamba Agricultural School. The video, which was shared which over 1300 of his Facebook friends, criticized two coaches at the school and included the following phrases:

looking down girls’ shirts / drool running down your mouth / messing with the wrong one / gonna get a pistol down your mouth
middle fingers up if you can’t stand that nigga / middle fingers up if you want to cap that nigga

After the video came to the attention of the school, Bell was pulled out of class and met with the principal. Bell acknowledged making the video, but he said that the allegations of improper contact with female students were true. After a disciplinary hearing (where Bell was represented by counsel), Bell was suspended for seven days and transferred to an “alternative school” for the remaining five weeks of the term. The school district concluded that Bell “threatened, harassed, and intimidated school employees with the publication of his song.” Bell sued, alleging violations of his First Amendment and Due Process rights.

Off-campus conduct versus in-school conduct:

As in many school discipline cases based on social networking posts, the first question was whether the school had the authority to discipline Bell for conduct that ostensibly occurred off-campus. The court acknowledges mixed precedent on this issue, but says that the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District supports discipline for off-campus conduct. I’m not familiar with the precedent in this area, but Tinker involved on-campus speech, and I think it’s a stretch to see Tinker as clearly standing for the proposition that off-campus speech can be regulated under the same First Amendment standards as those articulated in Tinker. (The Supreme Court cases following Tinker have all dealt with on-campus or school sanctioned events.) That said, my instinct is that this may ultimately be a tough battle for students to win, at least where the speech at issue relates to the school, teachers, or administrators. (See Eric's post on Layshock and Blue Mountain for differing results on this issue from a pair of Third Circuit cases: Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles.)

Whether the suspension was appropriate under Tinker:

The court says that high school students do not enjoy the same First Amendment rights as adults or people outside the school setting. According to the court, a school may discipline a student for speech where disruption is “reasonably foreseeable.” The court frames the issue as whether (1) Bell’s song “caused or tended to cause a material and/or substantial disruption” and (2) whether “it was reasonably foreseeable to school officials that the song would cause a material and/or substantial disruption.” Evidence in the record showed that one of the coaches heard of the song through his wife and he had also discussed the song with several students. After listening to the song, he complained to the principal and also testified that the song (and exposure of the song) had affected his teaching style. The other coach also testified as to supposed adverse effects to his teaching. This evidence, along with the fact that the song was published to Bell’s 1300 friends and uploaded to YouTube, where it would be exposed to an “unlimited internet audience,” leads the court to conclude that the school’s forecast of substantial disruption was reasonable. The court also affirms the school district’s conclusion that posting the song constituted “harassment and intimidation of teachers and possible threats against teachers.” Finally, the court says that the individual actors are entitled to qualified immunity.

The threat issue seemed like a red herring. Given the incidents of school violence, schools should undoubtedly take any and all threats seriously, but you have to wonder whether the courts (and the school) looked at the video and took it out of context. It’s a rap video…by a high school senior…posted to Facebook. Were the coaches seriously threatened by it? Did the student intend it to be a threat? Unlikely. The First Amendment allows schools to punish students based on speech that does not reach the level of a “true threat,” but it was strange to see the court sign off on the school’s conclusion that Bell threatened (or harassed or intimidated) the coaches based on the video. (Then again, even outside the school context, courts have grown increasingly willing to call YouTube and Facebook videos threats which can support criminal prosecutions. See Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a "True Threat" -- US v. Jeffries; Federal Prosecution Over "Threats" on Craigslist – US v. Stock.)

The court’s conclusion on the disruption issue was also debatable. Tinker has spawned a morass of lower court decisions which struggle with whether Tinker required a “substantial threat of disruption” or a “reasonable forecast” of disruption and what sort of an evidentiary burden the school district bears in this context. Lower court cases go both ways on this, but here there didn’t seem like there was much—apart from the teachers' own testimony that the video had an ‘adverse effect’ on their teaching style—to support the conclusion that there was a credible threat of disruption.

Finally, the qualified immunity decision was a tough hurdle for Allen. I didn’t check the complaint to see whether he brought claims for injunctive relief (clearing his record) and nominal damages, but I wondered whether this strategy could have avoided the harsh effects of qualified immunity.

School administrators should be able to punish students for causing disruption, and criticizing teachers, administrators and other students should warrant discipline in some instances, but I wonder if the court's ruling gives short shrift to the First Amendment rights of students. If all that is required is some self-serving allegation of an "adverse effect" on teaching style, this means that a teacher can shut down student speech any time the student says something critical about the teacher. The court's stamp of approval of the school's conclusion that the video harassed and intimidated the teacher also made me think that the court didn't have a very expansive view of the scope of student speech rights. The final thing that made me pause is that the student said the allegations of inappropriate contact between the coaches and students were truthful, and the court did not comment on this at all. Posting a rap song on Facebook and YouTube isn't exactly the most appropriate way to bring something like this to the attention of school administrators, but if the allegations were true, this should change the First Amendment calculus somewhat.

In the old days, this would have been nothing more than hallway gossip, which many would view as harmless. Maybe Bell would have found a way to convey his message through the school newspaper or in an assembly. The same message can now be broadcast (as the court notes) to an "unlimited internet audience." Indeed, Bell had 1300 friends, and his posting the video is a "publication" in the best and worst senses. It's protected by the First Amendment, but it reaches the bulk of the school community in ways that might be impossible through hallway gossip or even through the school newspaper or a school assembly. We're not used to students having a better ability to reach other students than the administration has. Students also don't need to go through any channels to get their message out there. Maybe this shift in power causes administrators to overreact somewhat?

Eric posted about a pair of Third Circuit cases a couple of years ago. Not much has changed since then, and I think we can expect to see a ton of litigation around this issue, with little predictability. The Supreme Court recently denied cert on a pair of school discipline cases, so we'll have to wait awhile to get clarity from the Court, to the extent the Court can be expected to articulate a bright line rule of any sort.

Added: here's a link to what looks like the video in question: "T-Bizzle - PSK da Truth" (h/t Brad Wassom, who also covers the case).

Other coverage:

Ed Week: Judge Denies Speech Protection to Student's Rap Song
Student Press Law Center: Judge upholds punishment of Miss. student who posted rap song on Facebook

Marketing & IT: A Profitable Marriage

mbay@alm.com (Monica Bay ) — Thu, 22 Mar 2012 13:49:24 GMT

Cooperation and collaboration were key themes of a Friday [March 16] panel at the Legal Marketing Association's annual conference, held this year in Dallas. The panelists on "Marketing & IT? You Can't Have One Without the Other" explored how to create a partnership between the two law firm units that too often treat each other as adversaries. The lively panel included two pairs of CIO/marketers who literally work across the street from each other in Cleveland: CIO Sam Shipley and director of marketing Alexis Dankovich (far right), of Ulmer & Berne; and CIO Karen Anzuini (middle) and senior marketing communications manager Julie Gurney (far left), of Benesch. I served as moderator of the panel, which drew about 100 attendees on the final day of the annual marketing conference. Benesch has seven offices and 180 attorneys; Ulmer the same number of attorneys and four offices. The proximity of the Cleveland offices was obviously a significant help for panel presentation; the four speakers obviously did their homework (and rehearsals) far better than most panelists at most conferences -- and the result was a smoothly integrated and highly interactive presentation. They engaged the audience with a clever introduction comparing how marketing and IT...

Cooperation and collaboration were key themes of a Friday [March 16] panel at the Legal Marketing Association's annual conference, held this year in Dallas. The panelists on "Marketing & IT? You Can't Have One Without the Other" explored how to create a partnership between the two law firm units that too often treat each other as adversaries.

The lively panel included two pairs of CIO/marketers who literally work across the street from each other in Cleveland: CIO Sam Shipley and director of marketing Alexis Dankovich (far right), of Ulmer & Berne; and CIO Karen Anzuini (middle) and senior marketing communications manager Julie Gurney (far left), of Benesch. I served as moderator of the panel, which drew about 100 attendees on the final day of the annual marketing conference.

Benesch has seven offices and 180 attorneys; Ulmer the same number of attorneys and four offices.

The proximity of the Cleveland offices was obviously a significant help for panel presentation; the four speakers obviously did their homework (and rehearsals) far better than most panelists at most conferences -- and the result was a smoothly integrated and highly interactive presentation.

They engaged the audience with a clever introduction comparing how marketing and IT "hear" proposed projects -- such as when marketing says it wants to do "blast" emails and client alerts, IT immediately assumes the entire firm's email will be blacklisted by every recipient; or when marketing wants to upgrade the firm's branding, IT panics over all the changes that will have to be made to templates, letterheads, etc.

The key to success, said the panelists, is to define and focus on the goals of the firm's "internal clients." Focus on the opportunities, and don't fight over who is going to get credit for the project. By collaborating, marketing and IT can identify and prioritize projects, to help them "grow into business" and enhance the firm's client engagements.

This approach, the panel suggested, also helps both the marketers and IT staff to be perceived as valuable contributors helping the firm reach its goals.

Among the takeaway:

* IT and marketing should review their budgets together before submitting to upper management, especial big budget items.

* Establish quarterly meetings between IT and marketing.

* Agree to project plans and timing.

* IT should turn to marketing as early adopters of new technology; they can help evangelize the initiative within the firm.

* Involve IT early in project planning, when defining objectives and scope.

Among projects that will benefit from IT/marketing collaboration:

* Developing applications for mobile devices

* Practice Group business development tools

* Business intelligence

* Legal project management.

* Using QR codes (that users directly to websites) to distribute information at conferences, etc.

Case Studies

The Benesch team discussed how it developed "Apportunity," a recruiting app, after being inspired when Anzuini was handed an iPad to choose her wine at a restaurant.The app uses push notifications to alert job seekers when new Benesch jobs are posted.

Shipley discussed how Ulmer created an add-on to its Cole Valley Software ContactEase client relationship management system, to help the firm increase the speed of its "realization" (accounts receiveable). When an attorney is on the phone with a client, his or her computer screen will instantly show the AR balance and past due amount, allowing the lawyer to remind the client to send a check. Read more about this project in our expanded story on the Law Technology News website, here.

Images: Monica Bay

Must-see Maxims

jaf@lifeatthebar.com (Julie A. Fleming) — Thu, 22 Mar 2012 13:20:22 GMT

I occasionally find an article or resource that’s so helpful I wish I’d written it. When I do, I pass it along to you. Twenty Marketing Maxims is probably the best summary of business development best practices that I’ve ever seen. As I wrote when I tweeted the resource: Print it. Laminate it. Read it daily. [...]

I occasionally find an article or resource that’s so helpful I wish I’d written it. When I do, I pass it along to you.

Twenty Marketing Maxims is probably the best summary of business development best practices that I’ve ever seen. As I wrote when I tweeted the resource: Print it. Laminate it. Read it daily. Use it. Get business.

Start now.

Blawg of the Day – From the SOX Up

tom@inter-alia.net (Tom Mighell) — Thu, 22 Mar 2012 13:00:43 GMT

From right in my backyard here in Dallas comes the cleverly-named From the SOX Up blog, brought to you by the securities law folks at Gardere Wynne Sewell. The blog aims to provide the latest developments in securities law and corporate governance, and they’re talking about “say-on-pay” requirements, criminal penalties for SEC violations, and [...]

$17,000 restaurant dumpster ramp

editor@overlawyered.com (Walter Olson) — Thu, 22 Mar 2012 12:16:26 GMT

Because it’s important to keep future wheelchair-using employees in contention for the task of hauling the trash out back, and also because money spent on compliance doesn’t really count as money the way, say, an agency’s budget does. [Patterico] Tags: California, disabled rights Related posts Protest a group home, get investigated for housing bias (6) July 8 roundup (5) Disabled [...]

Tags: California, disabled rights

“Judge Approves Lawsuit Against City, Cornell Over Suicide”

editor@overlawyered.com (Walter Olson) — Thu, 22 Mar 2012 12:12:06 GMT

“A federal judge Tuesday okayed a lawsuit claiming the City of Ithaca and Cornell University are liable for the 2010 death of a student.” The father of Bradley Marc Ginsburg “alleges the defendants did not do enough to prevent suicides from the [Thurston Avenue] bridge.” [Ithaca Independent] Tags: colleges and universities, suicide Related posts April 2 roundup [...]

Tags: colleges and universities, suicide

Contacts: Are You Focused or Is It Random Lunches?

cparvin@cordellparvin.com (Cordell Parvin) — Thu, 22 Mar 2012 11:00:54 GMT

One of the things I teach is to be focused about your contacts. I am sure your firm has contact software. I always used excel because if was easier for me. Joyce created a Focus Contact Template that she will send you. The idea is to list all your business contacts and rate them three ways.... Continue Reading

Make a list of all of your contacts
Give them a score 1-10 on how often you are in contact with them (every business day-likely someone with whom you work-gets a 10, less than once a month gets a 1.)
Give them a score 1-10 on the nature of your contact (in person gets a 10, email instant message a 1, phone a 5 and combinations fall between)
Give them a score 1-10 on how important they are (client contact or business referral source a 10, you don’t have a chance of ever getting any business a 1 and everyone else in between).
With Excel press the button and your highest rated ones will come to the top.
Consider spending 80% of your networking time with the top 20% of your contacts. Try to upgrade how you are in contact. In a day where email and contact on Facebook is so common, calling your contact and meeting in person is more powerful.
Keep adding to what you know about them: Spouses name, children’s names and ages, their personal interests.
Make staying in contact with them a priority. Networking with contacts should never be random. (One lawyer I coached sits down with his wife at the end of the year and makes his list of 52 contacts. He meets in person with one of the 52 every week.)

How do you convert contacts to clients? Focus on building the relationship rather than building a book of business. Get to know as much as you again about them and their business. Find ways to do unexpected things they will value without any expectation of anything in return. Second, and more important, focus on being the “go to” lawyer they need. If you do, your clients will find you and they will recommend you to others in their industry. You will never “need” to find them and “solicit” their business.

How did I do that? I identified their company’s problems, opportunities, internal and external changes that had legal implications and came up with solutions before my competitors and most often before the client itself. I did it by keeping track of legislation, regulations, cases and industry business news.

Selling Your Practice in the Internet Age, Part 2

Thu, 22 Mar 2012 11:00:00 GMT

Ed continues his discussion of the issues involved in selling a law practice.

Legal Business Development: Are You Converting Your Prospects?

paula@paulablacklegalmarketing.com (Paula Black) — Thu, 22 Mar 2012 11:00:00 GMT

Okay... you are doing all the business development initiatives and your phone is ringing. You are even getting the opportunity to have an initial consultation. But you are not converting your prospects into clients. WHY?

Most of my clients say they think it's about money. I think chances are 80% of the time it is something else. Here is my list of five questions you need to consider each time you get the opportunity to meet with a prospect.

1. Do they connect with YOU?

2. Do they see the VALUE you provide?

3. Do you know if they have a sense of urgency to solve this legal matter?

4. Do they understand what is at stake if they don't solve this matter?

5. Do they know how qualified you are to solve this matter?

Becoming proficient at converting prospects into clients is key to building a book of business. Show your confidence without bragging. Take charge without being overbearing. Let's face it... they have a legal issue they are grappling with, otherwise they wouldn't be sitting in front of you... make sure they understand that YOU are the best qualified to handle their matter. Ask powerful questions that will give them comfort that they will be in great hands. Dazzle them with your understanding and insight.