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The Antitrust Division Finds the Nails

– By Stephen Díaz Gavin

Just yesterday (Monday, November 20th), as Stephen Diaz-Gavin’s article “For Want of a Nail: The AT&T – Time Warner Merger” was posted on Legal Bytes, the Antitrust Division of the U.S. Department of Justice (“DOJ”) filed a lawsuit opposing the merger in the U.S. District Court for the District of Columbia, asking that the proposed merger and related transactions be permanently enjoined.  The lawsuit is a significant departure from U.S. antitrust policy in recent years, which has generally permitted vertical mergers and, as we pointed out in our original post, highlights the problems in not having availed themselves of the FCC’s  public interest review to address the concerns about the merger, publicly.  AT&T  immediately responded that it will defend the merger, but win or lose, one thing is a sure thing – approval of AT&T’s $85.4 billion entry into the content production business — is no longer a sure thing. You can read the full text of the DOJ Complaint and again, if you have any questions feel free to contact Stephen Díaz Gavin directly. Of course, you can always contact me, Joe Rosenbaum, a Partner at Rimon in New York or any of the lawyers at Rimon with whom you regularly work.

 

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Retaining Jurisdiction Requires More than Just Words

By Douglas Schneller, Partner, Rimon Law

Bankruptcy plans and contracts approved by bankruptcy courts routinely include “retention of jurisdiction” provisions, but a case decided last month, Gupta v. Quincy Med. Ctr. (“Gupta”), reminds us that the jurisdiction of a bankruptcy court is not unlimited merely by reciting the words. In the Gupta decision, the First Circuit held that unless the dispute involves or affects the debtor’s estate or requires interpretation of a bankruptcy court order or bankruptcy law underlying the dispute, the appropriate venue to consider the dispute may be state court, even against the expectations or wishes of the parties.

In this case, the parties entered into an agreement for the sale of assets by the seller and in the contract, the buyer agreed to pay severance to any employees of the seller that were fired after closing. Literally the day after signing the agreement, the seller (the ‘debtor’) filed voluntary Chapter 11 petitions and a sale motion under the Bankruptcy Code seeking approval of the asset purchase agreement. The Bankruptcy Court approved the agreement and sale, which then closed. The Bankruptcy Court’s order, as well as the order confirming the proposed Chapter 11 plan of reorganization, each contained a provision that the Bankruptcy Court would retain jurisdiction over disputes.

You can guess what happened next. After the closing of the asset sale, the buyer terminated the seller’s executives, effective as of the closing date and refused to pay severance. Inevitably, the lawsuits followed. Although the Bankruptcy Court decided it had jurisdiction to hear the claims based on the ‘retention of jurisdiction’ clauses, on June 2, 2017, the First Circuit Court of Appeals decision concluded that the Bankruptcy Court lacked subject matter jurisdiction. The First Circuit vacated the judgments against the buyer and remanded the case with instructions to dismiss the claims against the buyer. In short, the court concluded that the contract language in the asset purchase agreement was not sufficient by itself for the Bankruptcy Court to retain jurisdiction to hear disputes, because a bankruptcy court cannot retain jurisdiction it never had. Indeed, the court noted that the claims could well have arisen entirely outside of bankruptcy and could be decided solely under Massachusetts contract law.

There is a lot more detail and analysis and if you want to read the entire Client Alert: First Circuit: Bankruptcy Court “Retention of Jurisdiction” Provision Requires More Than Mere Words and contact Douglas Schneller directly.

Of course, you should always feel free to contact me, Joe Rosenbaum, or any of the professionals at Rimon Law with whom you routinely work.

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California Employment Agreements – Choice of Law? Venue: Think Again!

by Thomas M. White

California’s Labor Code was amended effective January 1, 2017, to require that employment disputes regarding California resident employees be subject to the substantive law of California and that the arbitration or litigation of such matters be held in California.  These requirements will have a significant effect on how out-of-state employers negotiate and draft employment, separation and confidentiality agreements. Moreover, some of the statutory language is subject to interpretation and may result in violations of law by unsuspecting employers.

By way of background, in drafting employment agreements, employers typically identify one state whose substantive laws apply and require all disputes be litigated or arbitrated in a venue where the business operations are centered.  First, employers with employees spread across several states want the certainty and uniformity in their business arrangements. Second, the substantive law of a particular state may be more amenable to employer concerns. Third, employers may wish to inhibit litigation or arbitration by requiring employees to travel to another state to assert or defend contractual rights. These factors, already under assault in California, are expressly given no weight in the new statute.

The new statute, effective January 1, 2017, with respect to employees who primarily reside and work in California, will apply to all new employment agreements and also covers agreements that are extended or modified after that date.  Under the new law, injunctive relief is available and reasonable attorneys’ fees may be awarded.  However, the new law does not apply to contracts where the employee was represented by an attorney during the negotiation of the agreement.

Several of the above statutory features require additional consideration:

  • On its face, the new law does not apply to independent contractors. However, if such a contractor were to be deemed an ‘employee’ in the context of disputes involving other matters (e.g., tax, employee benefits, etc.), they may well also be held covered under the new law as well;
  • The law does not specify what is meant by an employee that lives and performs services “primarily” within California. You might want to keep records of employees in case a dispute arises. The answer may well mean the difference between the application of this new law and not;
  • It is not clear whether a contract is “extended” or “modified” if there is an automatic rollover or extension provision? What if there is a finite term and then the contract continues month to month, subject to termination at-will? Is that an ‘extension’ for purposes of the new statute?  Similarly, if the employee is entitled to a set of fringe benefits available to similarly situated employees and a new benefit is added January 1st –  is that a “modification”?

Although there is an exception for agreements negotiated by counsel, most employees don’t typically have the funds necessary to engage counsel. Consider this: it may be worthwhile for an employer to reimburse an employee for attorney’s fees in certain situations where the benefit of employment limitations outweighs the additional cost. Note, where this exception is intended to be relied upon, it is wise for the agreement to specify it has been negotiated by counsel, including the name of the attorney and the firm. Given the many choice of law considerations that arise in litigation, it should not be assumed non-California choice of law and venue provisions will be upheld simply because the employee retained counsel during negotiations.

What should you do now?  Any business that has current employment agreements with employees (and independent contractors) living and working in California, should carefully review those agreements in light of the need to comply with the new law. Where concerns may arise – in the language or the interpretation, counsel should be engaged to assure that relevant consideration is given to applicable factors.

For more information, contact Thomas M. White, a Partner specializing in the full scope of human resources management and employment law, including employee benefits, executive compensation and healthcare.  Of course, you can always contact me, Joe Rosenbaum, the Editor, or the attorney you normally work with at Rimon.

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Krakatoa: East of Java; Google West of Fair Use

Some of you may remember the 1969 disaster film, "Krakatoa: East of Java" (which, coincidentally ties nicely to a recent Useless But Compelling Fact topic). Well today, Legal Bytes is happy to alert you to the results of jury deliberations – yet another copyright law disaster – just unfolding out West (West Coast of the United States, that is). Just hours ago (and providing more evidence that confusion reigns and continues to increase under existing copyright law), the jury has rendered its decision in the copyright phase of yet another intellectual property trial relevant to the online and mobile world. As you may recall, just last month we reported another copyright flip-flop winding its way through the courts in our post entitled, Appeals Court Vacates Summary Judgment in Viacom v. YouTube.

Today, a jury in California, deliberating in a case brought by Oracle against Google and alleging that Google infringed Oracle’s Java copyrights, concluded that Google did use the Java interfaces, but couldn’t reach any conclusion if that was protected use under the copyright "fair use" exception ("fair use" is a defense to copyright infringement). The jury did find separately that Google infringed some of the Java code and used it in developing the mobile phone platform, Android. However, before Oracle celebrates prematurely, Judge William Alsup noted that because only a minimal amount of code was actually used, Oracle’s request for $1 billion in damages or some share of Google’s profits was essentially ridiculous, and that only statutory damages, ostensibly a relatively nominal amount, would likely be applicable.

Indeed, these cases bolster a growing argument that as digital technology and innovation move forward, current copyright law is either inadequate or irrelevant, or both. Legal Bytes will continue to monitor developments in this evolving and convoluted intellectual property dilemma. I encourage you to take a look at an opinion piece I wrote separately entitled, A Contrarian’s View of Copyright: Much Ado About Nothing. But that’s just my opinion; the jury’s verdict is fact!

If you would like further information or need help making sense of the legal issues arising in our digital online and mobile world, feel free to contact me, Joe Rosenbaum, or the Rimon attorney with whom you regularly work.

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Friends on Facebook – Hold Them Close, Get Held in Contempt of Court!

Since 2009, Legal Bytes has been blogging off and on about the implications of social media to the legal profession and the legal process. Whether it’s judges being "Friends" with lawyers (see, Florida Judges Can’t Have Friends), or jurors networking about evidence or cases as they deliberate (see, When Pressing Suits, Judges Tell Jurors Neither Social Nor Media is OK), or reporters "tweeting" from the courtroom (see, Freedom of the Press = Freedom to Tweet), social media is a force to be reckoned with—and the legal process also needs to reckon with it.

The latest blip on the radar comes from the UK, where Joanna Fraill, a juror, has been tried and convicted of being in contempt of court in what is being widely reported as the first Internet-related contempt of court prosecution in the UK (and perhaps anywhere). So in addition to judges, prosecutors and plaintiffs’ lawyers being wary about managing their online relationships, and jurors being admonished for searching online for information regarding the facts, parties, or issues in a case, add communication between jurors and parties in the legal proceedings to the list. Ms. Jamie Sewart, a defendant in a trial in Manchester involving billions of BPS’ worth of drugs, was contacted by Ms. Fraill, one of the jurors in the trial, through Facebook while the jury was deliberating.

Ms. Sewart admitted knowing Ms. Fraill was one of the jurors when she "accepted" the request to be friends, and the case collapsed when their communication through the social networking medium was uncovered. Ms. Sewart’s partner was convicted and is currently in prison, but Ms. Sewart was acquitted as a result of this trial. In one exchange between them – the text has now been made public – Ms. Fraill sent a message to Ms. Sewart regarding the jury deliberations stating: "cant get anyone to go either no one budging pleeeeeese don’t say anything cause jamie they could all miss trial and I will get 4cked to0."

Now before everyone rants about the evils of social media, bear in mind that the same result would be obtained if the juror had written a letter, called by phone or sent a coded message by carrier pigeon. The fact that a new means of communication – the Internet – was involved doesn’t change the admonition, the rules, or the consequences of the conduct. Indeed, with Facebook’s user population at approximately 700 million, the relatively lax attitude toward anyone monitoring their millions of followers on Twitter (or who they follow – I generally just automatically reciprocate), isn’t it likely one of you is already "Friends" with a criminal, or you will be, or you are following someone who may be appearing in court any day now?

Communication between participants in legal cases has long been the subject of ethical rules, professional guidelines and rigorous policing. Issues relating to privilege and work product, attorney-client communication, and relationships between lawyers, judges, plaintiffs and defendants, are not new. But jurors wanting to be "friends" with a defendant in the midst of a trial – well that’s one I haven’t heard before.

Rimon has teams of lawyers knowledgeable in digital evidence and discovery, employment and social media, privilege and litigation, in the age of the Internet and mobile communication. So as I’ve said before, keep your browser tuned (or bookmarked) to www.LegalBytes.com for breaking news, and if you do need help, contact me, Joe Rosenbaum, or any of the lawyers at Rimon with whom you work.

OMG B KEWL and call (or SMS) if you need help.
 

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When Pressing Suits, Judges Tell Jurors Neither Social Nor Media is OK

A few months ago, Legal Bytes reported some important developments and judicial rulings concerning social media and freedom of the press in the United States (see, Freedom of the Press = Freedom to Tweet). But lest you be lulled into a false sense of security, freedom of the press only applies to the ‘press’ and not to jurors.

You have all seen the motion picture and television courtroom scenes played out numerous times. Evidence is admitted or not admissible. The jury is admonished to disregard certain remarks or testimony as inadmissible or irrelevant. Jurors are told they must reach a verdict on only the evidence that is allowable during the trial – nothing else. Now decades ago, a jury was told not to watch accounts of a case on television, or to listen to such on the radio, or to read newspaper articles about the case. Juries could be sequestered – squirreled away out of sight and, theoretically, out of harmful evidence’s way – until the verdict was rendered and justice done.

But today, with a mobile phone, PDA or any one of literally hundreds of devices – some no larger than a credit card – one can ‘tweet’ (www.Twitter.com), one can post to your or someone else’s wall (www.Facebook.com), one can upload photos (www.flickr.com) or videos (www.YouTube.com) or post to one’s own blog (www.LegalBytes.com). All from the convenience of the palm of your hand, purse or jacket pocket. One can also surf, search, ask and obtain answers across the web, almost instantaneously, with the press of a few buttons or the wave of one’s fingers across a touch screen. The interactive two-way communication and searches for independent information is at odds with our jury system that limits the juror’s knowledge base for decision-making purposes to what’s in her or his head when they walk in along with the evidence that is presented and deemed admissible by the court. Everything else is off limits – at least for administering justice. Although not the subject of this two-part blog posting, Legal Bytes has also covered the growing issue of whether a mindless application of disqualification criteria makes sense simply because you have a ‘friend’ or someone is ‘following’ you among the other thousands or millions of individuals on some social media platform (See, Florida Judges Can’t Have Friends).

But now back to our story. Just this past December, the Judicial Conference Committee on Court Administration and Case Management issued its “Proposed Model Jury Instructions – The Use of Electronic Technology to Conduct Research on or Communicate about a Case”. I know this will surprise you, but the basic do’s and don’ts they proposed are:

  • Thou shalt not undertake any independent research, use any outside reference works, dictionaries, surf the web, or use any digital or other means to try and get information about the case or anything related to the case.
  • Thou shalt not communicate with anyone about the case – anyone – not even other jurors. No mobile phones, email, Blackberry, iPhone, SMS text messaging, tweets, blogging, chat rooms or social media platforms. None, nada, zilch, zero, null, never. Period.
  • Thou shalt decide the case solely on the admissible evidence presented in the courtroom.

Sound familiar? While many of us recognize there are sophisticated rules and regulations established to ensure evidence is presented in a fair manner, consistent with the system of justice – protecting the rights of the accused and the accuser, the plaintiff and the defendant – jurors often are curious – curious about questions that aren’t asked or answered during the course of a trial. In motion pictures or television, we get to go behind the scenes. We can often see what the jury cannot. But real juries may not appreciate, under the constraints of a particular case, why some information is simply not available to them, some questions not permissible, some witnesses never called and some answers never provided. It’s far too tempting to try and find out and with today’s digital technology – well, it’s not that hard to do so – sometimes even believing one can escape detection when doing so.

So stay tuned. In the next installment of this post, Legal Bytes will take you on a brief tour of some court decisions over the last few years, starting from simple emails and online surfing by jurors, to jurors who post blogs in the middle of jury deliberations, to tweets before, during and after multimillion dollar civil trials. Yes, we even have jurors communicating to each other on Facebook during a trial. You just can’t make this up.

While the next installment is pending, if you need to know more – how social media can help or hurt your company in litigation – remember that Rimon has teams of litigators who not only know digital (e-)discovery, forensic evidence, security and other technology applicable to legal proceedings, but also know social media – increasingly relevant, for good or bad, in dispute proceedings. Need us to press your suit and avoid being taken to the cleaners? Contact me, Joseph I. Rosenbaum or any Rimon attorney with whom you regularly work and stay tuned for Part II – Jurors Behave, or We’ll Throw the Facebook at You!

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Isn’t Technology Supposed to Help Us? Help Us Work Smarter?

If you have been reading Legal Bytes regularly, you know that Lois Thomson here at Rimon has been one of the primary people supporting my efforts to transform "legal-ese" into understandable English – no trivial task for those of you who are interacting or have ever interacted with lawyers. So it is with great joy that I was not only able to have her write a post for Legal Bytes, but that I also finally got to edit her article. Hopefully she will smile and agree it’s been helpful. So, Lois, thank you, and here is your relevant and very timely note for all the world to see:

"I looked at an email I received from my friend, Robert, and wondered why the subject line was a reply regarding an issue of Legal Bytes that I had proofread for Joe Rosenbaum. ‘Are you aware that you have been sending these to me?’ Robert’s message read. ‘It seems like that might have been a mistake.’

"Ouch! A mistake indeed! You see, when Joe sends his documents to me to review, I proof them and make my suggested changes. I then simply hit the forward button to return them to him. Now as many of you email-program (e.g., Outlook) users already know, to make life easier (that’s ostensibly what technology is supposed to do), once I start to type in "ro," Rosenbaum, Joseph I.’s name should automatically populate the ‘To’ field. Oops. Not this time. Instead, my friend Robert’s name came up, and without looking – as I’m guessing so many of us routinely do – I hit enter and sent it off, pleased I had been so timely and responsive. Unfortunately, I was responding to my friend Robert, who may happily read Legal Bytes, but not, I suspect, the artist’s proof!

"Fortunately, Joe and Robert were gracious about the whole thing and in this case, both felt no harm was done. But what if the message had been from your lawyer or doctor or a rabbi or priest, or was some other communication that was not ultimately meant for public consumption. It was a simple but powerful reminder to me (and one that Joe felt was important enough to ask me to pass it on to you), that while automated tools can make routine tasks like ‘field completion’ simpler, they can also lead to problems if we rely on them without thinking. Hmmmm, now why can’t I remember phone numbers anymore – is it because they are all programmed into every device I own, so that I no longer have to think?"

A helpful reminder that while automated tools are great, they are just that – tools. If we aren’t careful, the tools can work against us and not for us, and can create embarrassment at best, liability at worst. Thank you Lois (and Robert).

Need to know more? Contact me, Joseph I. Rosenbaum, or any Rimon attorney with whom you regularly work. Need proofreading skills? If you don’t work for Rimon, don’t call Lois. She’s busy helping us every day. Thanks again, Lois.

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Freedom of the Press = Freedom to Tweet

Twitter keeps hitting the newswires—in this instance, in a matter involving freedom of the press. You might have heard from time to time, especially in high-profile or emotionally charged cases, about judges who have used their power to control proceedings by restricting the use of certain communications equipment and mechanisms from within their courtrooms (e.g., use of mobile phones, video recording equipment, etc.).

From Pennsylvania comes an order from a Dauphin County judge refusing to bar reporters from sending Tweets during the course of a public and high-profile trial. In response to a motion by the defendants counsel, Judge Lewis, in a brief order, noted that “. . . to impose the proposed restriction would be premature and that the restriction itself is overly broad.”

In this particular case, the defendants were concerned that reporters, using Twitter inside the courtroom, would broadcast witnesses testimony, which could then be read or seen by other witnesses who were yet to testify. While refusing to ban Twitter to reporters, the judge did order the witnesses to avoid reading or listening to reports concerning the trial.

As icing on the cake, our own Rimon lawyers, Tom McGough, Mark Tamburri and Tom Pohl, won the order on behalf of the Associated Press and Pittsburgh Post-Gazette. Yes, Virginia, there is a place for social media in jurisprudence.

If you remember, Twitter was also the subject of some controversy in Pittsburgh during the G20 Summit last year. In that case, involving freedom of speech, police in Pittsburgh arrested a man who was using Twitter to send messages about the movements of police officers as protests were unfolding. Although the police sought to charge the man with aiding an illegal protest, the man was broadcasting what was easily visible in plain sight.

While commercial cases often involve money or intellectual property rights, or rights of publicity or privacy, cases are emerging that involve fundamental Constitutional rights. The law will need to move quickly into the digital and social media age in order to keep up. Some courts and judges are doing just that!

Need to know more? Contact me, Joseph I. Rosenbaum, or any Rimon attorney with whom you regularly work.

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Court Rules Twitter Libel is Stale, and Neither Ripe Nor Moldy

Back in July, Legal Bytes posted a report (Landlord Can’t Let Tweet sMOLDer) about a Twitter "tweet" posted by Amanda Bonnen, that contained the following statement: "Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s OK."

Back then we told you that Horizon Group Management, the landlord of the apartment building involved, filed suit in a Cook County Illinois Court for libel, alleging that it was a "malicious and defamatory" tweet about the state of her apartment. 

Well this past Wednesday (Jan. 20, 2010), Cook County Circuit Court Judge Diane J. Larsen dismissed the suit, and Ms. Bonnen’s attorney indicated the judge described the posting as too vague to constitute libel under the legal tests applicable to such a claim.

To support a claim of libel, Horizon would have had to show that Ms. Bonnen wasn’t merely offering her opinion, that the statement must be reasonably understood by everyone to refer to the specific entity—in this case, this particular Horizon realty company—and that there was actual harm that can be proved, flowing from the statement. The fact that the statement was made on Twitter, and consequently widely available across the Internet, doesn’t change the standard one must meet to prove libel, and the judge dismissed the case. 

As you can guess, these aren’t the only cases involving defamation in the context of social media. For example, the action against Courtney Love, wife of the late Kurt Cobain, is alive and well. You might recall that case arose when a fashion designer claimed Ms. Love tweeted that the designer was a drug addict, a prostitute and called her a "lying hosebag thief." As we reported in Legal Bytes this past August (Court Orders Google to Turn Over Blogger Identity Information), cases of defamation become even more complex when the identity of the actual "tweeter" is hidden behind a pseudonym.

These cases all hinge upon the friction created by social interaction. Defamation is not a new concept, and whether broadcast over radio waves or propagated across the web, it should come as no surprise that when human beings populate the borderless universe of cyberspace, these interactions can give rise to legal actions. The laws that apply to publicity, privacy, libel, deceptive advertising, unfair competition and intellectual property may need to be applied or viewed differently, but they don’t disappear simply because the content is digital. Need to know more? Contact me, Joseph I. Rosenbaum, or any Rimon attorney with whom you regularly work.

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Florida Judges Can’t Have Friends

Just last month, the Judicial Ethics Advisory Committee in Florida issued an Opinion that Florida judges may not have social media "friends" if they are lawyers who may appear before them in court. While the average person may question what being a "friend" on any media platform really means in terms of the level or relationship outside the virtual world of web-based interaction – how many of you are "friends" with people you have never met and don’t even know? – the Judicial Ethics Advisory Committee indicated that their main issue is not fact, but perception.

The Committee expressed concern that the "friend" identifier could create the impression or the appearance in a publicly available forum, that the lawyer might be in a position to influence the judge.

Influence the judge? Hmmm. So, let’s see. If I’m a government official or a corporate procurement officer, or perhaps I’m just campaigning for public office, I really can’t befriend anyone on any social media platform or network – unless I’m prepared to face potential charges of bribery, accepting bribes, improperly influencing a public official, or being improperly influenced in procurement and purchasing decisions. Can you think of other situations in which acknowledging another individual as a "friend" on a social media platform or social networking site might be considered a violation of some code of conduct? Have you read your employer’s code of conduct lately?

Not to worry, that’s just the tip of the iceberg. Have you checked those "fan" pages recently? Are you a journalist? Celebrity endorser? Blogger? Check the revised FTC Endorsement Guides carefully. Perhaps you need to disclose your material connection when you became a fan! Oh, and you corporate employees and investment advisors (and journalists) better think twice before becoming a friend or a fan. After all, do you have to disclose to your clients or the Securities and Exchange Commission that you are a fan of "INSERT YOUR FAVORITE BRAND HERE"?

Now I don’t want to worry anyone needlessly, so here’s a tip for all of you Legal Bytes readers, whether you are a judge (are judges allowed to read Legal Bytes?), a lawyer or simply a normal person: If you wish to recuse yourself from a case, change the venue or forum for a trial, or simply avoid being picked for jury duty, I have a recommendation. Befriend the defendant, become a fan of the company, send a Facebook friend request to as many police officers (or, depending on your preference, inmates) as you can, and become a Twitter "follower" of as many products, services, public officials and political parties as you can.

Much to my regret, I have now been permanently removed from the White House guest list because I have become a fan of the Presidential Portuguese water dog "Bo" – the "First Dog." While it had never occurred to me that being thoroughly engaged by this adorable puppy would get me into trouble, the fact that the dog is "Portuguese" appears to have created the perception that there could be a conflict between my loyalties to our government and Portugal – although I confess to being partial to the food and the Algarve as an occasional vacation spot.

That said, I don’t feel alone any more since, even though the pup is officially registered with the American Kennel Club as "Amigo’s New Hope," I believe that the President and First Lady Obama, as well as their daughters Malia and Sasha, for whom Bo was an election day promise, are also under investigation for possible ethics violations in connection with their love for Bo. Strange, brave new world.

So keep your web browser tuned (or bookmarked) to www.LegalBytes.com for breaking news. The social media fun is just beginning, and if you haven’t checked your company policy lately (or revised it), or if you need help making sense of social media and the legal implications, you’ve come to the right place. Feel free to contact me—Joe Rosenbaum—or any of the lawyers at Rimon you work with. We are happy to help.