Topic: Litigation

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Social media – Lessons learned from 2015

Our Top Five stories from 2015 also provide some “lessons learned” or considerations for companies who are considering using social media in 2016:

  1. Know what data you are collecting and where it is being transferred. Like more than 4,000 companies, Facebook had been sending member data of European citizens to the United States pursuant to the EU/US Safe Harbor. In October 2015, the European Court of Justice struck down the EU/US Safe Harbor, leaving companies scrambling to find an alternative way to send personal data from the European Union to the United States. Although the successor to the EU/US Safe
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Proving the authenticity of a digital account at trial: a lesson from the second circuit

While certain state legislatures may be getting closer to understanding digital assets and digital accounts in trusts and estates, using digital assets and digital accounts as evidence in the federal court system remains a murkier proposition.

In United States vs. Vayner, 2014 WL 4942227 (Oct. 3, 2014 2d Cir. ), a jury had convicted the defendant on a single count of unlawful transfer of a false identification document. Crucial to the prosecution was a screenshot of the defendant’s social media page, which was used to show a relationship between the defendant and the prosecution’s key witness. The trial … Continue Reading

Pre-suit discovery on social media

A Kings County, New York court has held that a plaintiff may obtain social media information (such as another’s user information and evidence posted through social media) as part of pre-suit discovery under New York law. This decision could have ramifications in a number of jurisdictions that permit pre-suit discovery to preserve evidence and/or obtain identities of witnesses or potential parties. See, e.g., Fed. R. Civ. P 27; N.J. R. Civ. P. 4:11-1; Tex. R. Civ. P. 202. N.Y. C.P.L.R. 3102.

In Lemon Juice v. Twitter, Inc., 44 Misc. 3d 1225(A) (N.Y. Sup. Ct. Aug. 29, 2014) the plaintiff … Continue Reading

Don’t tell bloggers about NAD wins

If a company sues a competitor about an advertisement that the company believes is false or misleading about the company’s product, a court victory is frequently cause for a press release, as well as announcements on social media and to bloggers.  When the complaint is made to the National Advertising Division (NAD) of the Council of Better Business Bureaus; however, those announcements can violate NAD procedures and can result in unfavorable press releases from the NAD.

Many of our readers may not be familiar with the NAD, which is run by the Council of Better Business Bureaus (CBBB), the national … Continue Reading

Agence France Presse v. Morel – THIRD UPDATE

We have posted previously on Agence France Presse v. Morel, the initial opinion of which was issued January 2013, as well as several updates in the case since then.

The case so far

Briefly summarizing the case so far, photographer Daniel Morel posted some photographs on Twitter.  Agence France Presse (“AFP”) copied eight of those photos, and provided them to Getty Images (US), Inc. (“Getty”), which then distributed the works to various infringing third parties. Getty continued to distribute the photographs, despite receiving a “kill notice” from AFP on the photos, and in 2010 Morel brought suit against AFP … Continue Reading

No Secret in Brazil

The popular social networking app “Secret” has reportedly been temporarily enjoined in Brazil. A civil court in Brazil ordered both Google and Apple to remove Secret from their respective app stores, and to pull the apps from the phones of their users.

In its opinion, the Brazilian court raised concerns that Secret’s anonymity feature can become an instrument of cyberbullying. Indeed, the case was brought by a young marketing consultant who complained of intimate photos of himself being shared anonymously, leaving him no legal recourse.

Brazil is not the only jurisdiction dealing with anonymity issues related to social media. In … Continue Reading

Social media ads and physical injury

Can social media ads lead a court to hold a business responsible for a physical assault that occurred after the customer left the business’ premises?  On July 9, 2014, a federal trial court in Pennsylvania ruled in Paynton v Spuds that the restaurant’s marketing and ads on Facebook were a “significant” factor in denying the business’ motion for summary judgment.

The case involved a restaurant located in a college town  The restaurant, Spuds, did not serve alcohol, but was located near several establishments that did.  The restaurant, like many businesses, chose to advertise around local events.  For example, the restaurant … Continue Reading

Google – Hanginout in court

In November 2013, Hanginout, Inc. (“Hanginout”) filed a lawsuit against Google Inc. (“Google”) alleging, among other things, that Google had infringed on Hanginout’s HANGINOUT mark.

Hanginout, a Virginia based social media company, uses its HANGINOUT mark for its interactive video response platform, which enables its users to create, promote, and sell their own brands by engaging directly with potential customers via pre-recorded video messages and/or video profiles. Google alleged that by 2009, it had already developed its internal version of what would become its HANGOUTS product. Google made its HANGOUTS product accessible to the public as part of its Google+ … Continue Reading

Beware of the threatening tweet

Early April saw the arrest of a 14-year-old girl who sent a threatening tweet aimed at American Airlines.  Tweeting under her own account, this girl, identified only as Sarah, posted “hello my name’s Ibrahim and I’m from Afghanistan. I’m part of Al Qaida and on June 1st I’m gonna do something really big bye.”  American Airlines was quick to reply, tweeting back “Sarah, we take these threats very seriously. Your IP address and details will be forwarded to security and the FBI.”  This prompted a hurried retraction by the panicking girl in what turned out to be more of a … Continue Reading

Jurors and social media

A recent article published in the Duke Law and Technology Review sheds new light on the jury’s use (or more precisely, lack of use) of social media when given proper instructions from the Court. (See Amy J. St. Eve, et al., More from the #Jury Box: The Latest on Juries and Social Media, 12 Duke L. & Tech. Rev. 65 (2013)). While it is well documented that social media, such as Facebook and Twitter, can affect the scope of discovery or have an evidentiary impact on a trial, social media use can also impact the fairness of the trial.  … Continue Reading

Online v. Offline Agreements: Braverman v. Yelp

A New York state trial court recently ruled in a long-running dispute between a cosmetic dentist and Yelp, the online consumer review site. Braverman v. Yelp, Inc., No. 158299-2013 (N.Y. Sup. Ct. Feb. 24, 2014).

The dentist originally complained that Yelp had defamed him by permitting negative reviews about him to appear on Yelp’s site.  That claim had previously been denied because the federal Communications Decency Act’s safe harbor protected Yelp as a publisher of third-party content.

In the current matter, the dentist complained to Yelp personnel that Yelp had been filtering out positive reviews about his … Continue Reading

Settlement forfeited over Facebook post

Civil lawsuits are most frequently resolved by an out of court settlement. Employment discrimination and retaliation lawsuits are no exception. When a company makes the business decision to settle a civil lawsuit, the company generally requires the plaintiff(s) to agree to  terms of confidentiality and requires that confidentiality provision be included in the settlement agreement. A confidentiality provision ensures that no one—other than the parties and their attorneys—learn about the specific terms upon which the case is being settled. A Florida court of appeals ruled on February 26, 2014 that spreading details about the existence and terms of settlement on … Continue Reading

Minors’ credit card purchases

If your social media page permits a user to purchase goods or services from you, a December 20, 2013 ruling from the Northern District of California may be of interest.

The case involves minors using their parents’ credit cards without authorization (in 2011) in order to purchase several hundred dollars’ worth of Facebook Credits.I.B. v. Facebook, Inc., No. C 12-1894 CW (N.D. Cal. Dec. 20, 2013).

When the parents discovered the unauthorized purchases, they asked Facebook to refund the purchase price.  Facebook refused, and both the parents and minors instituted a putative class action against Facebook in 2012.… Continue Reading

LinkedIn office locations not enough for personal jurisdiction

Since 1961, plaintiff MetroMedia Company has used the Metromedia name in connection with a number of ventures, and owns several valid federal trademark registrations incorporating the name and mark METROMEDIA.

In 1992, defendant Ronald Cowan formed a company with Susan Conway, which was later converted to Metromedia, Inc. in 2010 and to a partnership named Metromedia Company in 2011.

Cowan purchased Conway’s share in the company in 2011 in return for a promissory note due in 2015 for $50,000. In 2012, Cowan formed Metromedia Broadcasting Corporation. The plaintiff had previously operated a radio broadcasting station through an entity with the … Continue Reading

Agence France Presse v. Morel – 2nd update

We have written previously about a court opinion relating to photos posted on Twitter, in Agence France Presse v. Morel, the opinion of which was issued in January.

The relevant facts from the case are as follows: Agence France Presse (“AFP”) provided photographer Daniel Morel’s copyrighted images to Getty Images (US), Inc. (“Getty”), who then distributed the works to various infringing third parties. AFP later issued a “kill notice” on Morel’s photos, which was received by Getty, although Getty continued to distribute the photographs. Morel brought suit against AFP and Getty (as well as other news agencies), and … Continue Reading

District of Nevada OKs plaintiffs’ Facebook ad for collective action

A Nevada federal district court recently refused to enjoin plaintiffs’ counsel’s solicitation of potential class members via an advertising campaign on Facebook and Twitter.

In Gamble v. Boyd Gaming Corp., No. 2:13-cv-01009-JCM-PAL (D. Nev. Nov. 20, 2013), defendant Boyd Gaming accused plaintiffs’ counsel of using “false and misleading” advertisements in its attempt to identify and recruit additional collective action members.

According to the defendant, plaintiffs’ counsel set up a website and posted advertisements on Facebook claiming to represent “employees of Boyd Gaming who are owed overtime for work performed off-the-clock.”

The defendant claimed that an internal link to the … Continue Reading

Ehling v. Monmouth-Ocean: Private facebook posts are protected

On August 29, 2013, the District of New Jersey ruled that the federal Stored Communications Act (“SCA”) covers “private” Facebook wall posts.  The plaintiff, a registered nurse and paramedic, sued her former employer in federal court asserting a number of claims including violations of the SCA.  The SCA prohibits unauthorized access of stored wire and electronic communications and records that are intended to be private. Specifically, it prohibits anyone (including employers) from accessing electronic communications in electronic storage without authorization.  The SCA provides for monetary damages, injunctions and attorney’s fees for violations of its provisions.

The plaintiff claimed that Monmouth-Ocean … Continue Reading

Facebook not permitted to be sole means of service

We previously covered a court ruling that the Federal Trade Commission was permitted to supplement actual service of a complaint with Facebook service. “Service of Process Via Facebook,” Apr. 4, 2013.

On July 9, a federal trial court in Kansas faced the issue of whether service via Facebook was acceptable as the sole means of service under Rule 4 of the Federal Rules of Civil Procedure. Joe Hand Prods., Inc. v. Carrette, No. 12-2633-CM (D. Kan. July 9, 2013).

The case involved a copyright dispute.  The plaintiff was a television distributor of pay-per-view and closed circuit special events. The … Continue Reading

YouTube Class Action

On May 15, 2013, a federal district court denied the plaintiffs’ motion for class action certification in a case involving YouTube. The Football Ass’n Premier League Ltd et al v. YouTube Inc., No. 1:07-cv-03582 (S.D.N.Y. May 15, 2013).

We had previously covered the case involving Viacom’s lawsuit against YouTube, where the same district court ruled, on summary judgment, that the copyright law’s safe harbor applied and that the plaintiffs had not proven that YouTube knew or was aware of specific infringements. The plaintiffs in that case were generally involved in creating movies and television shows, whereas the named … Continue Reading

Service of process via Facebook

On March 7, 2013, the Southern District of New York ruled that the Federal Trade Commission (“FTC”) could serve foreign defendants via Facebook and e-mail in connection with a case where the FTC charged defendants with a violation of U.S. law relating to deceptive conduct.[1]

According to the FTC, the underlying complaint related to an alleged scheme between and among nine individuals and two companies—all located in India—to use call centers to trick American consumers into paying to fix non-existent problems with their computers.  The FTC served its summons and complaint on the defendants in four ways:

  1. Submission to
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Agence France Presse v. Morel & The Scope of Twitter’s Copyright License

Despite the variety of legal recourse available to copyright owners, exclusive rights to creative content posted in the Twittersphere can sometimes be difficult to enforce and defend.  Complications due to social media websites’ frequently-changing terms of service and viral gossip such as Facebook’s recent “copyright hoax” can leave the copyright owner doubting the strength of his or her legal argument against unauthorized third party use of their copyrighted works.

On January 14, 2013,  however, the United States District Court for the Southern District of New York provided copyright owners with a bit of breathing room, recognizing that the … Continue Reading

Anonymous Negative Reviews

Austin-based cleaning company Austin Gutter King Corporation, Inc. made headline news in Texas this week by filing a lawsuit against the poster of a negative review of its business on Google Places, the search engine’s business listing and review website.

The review originally came from a user named “Norma Lee,” but a court-ordered request from Google for the legal identity of the individual revealed that “Norma” was actually the husband of an employee of Austin Gutterman, a competitor of Austin Gutter King.

The review, in part, stated:

…they find it necessary to post fake customer reviews. While researching the source

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Twitter Follower Case Settled

Social media has led to some new forms of intellectual property, including the “Twitter follower” (a registered user of microblogging site Twitter that is interested in the postings of another user and that other user permits him/her to receive those postings automatically). A case that might have brought some clarity to the question of the value of the Twitter follower has just settled. PhoneDog v. Kravitz., No. C 11-03474 MEJ (N.D. Cal. Nov. 8, 2011, settlement announced Dec. 3, 2012).

The case involved a company employee whose job included preparing written and video content that his employer transmitted to … Continue Reading

Facebook Information: Privacy v. Discovery

Facebook Information:  Privacy v. DiscoveryWhen can a party to a lawsuit get access to another party’s Facebook-posted materials for discovery purposes without violating privacy rights?

On November 14, 2012, New York’s Appellate Division ruled on that question in an auto accident/personal injury matter involving two plaintiffs. See Richards v. Hertz Corp., No. 2011-02807 (N.Y. App. Div. Nov. 14, 2012.

During a July 2009 deposition of one of the plaintiffs, she testified that the injuries she sustained as a result of the accident impaired her ability to play sports, and caused her to suffer pain that was exacerbated in cold weather.

The defendants … Continue Reading