A hearty congratulations to the U.S. Chamber of Commerce on this New Year's Day. They won my prestigious Golden Turkey Award for the most ridiculous and hypocritical lawsuit of the year, after many hours of super-secret deliberations. The vote was unanimous, after I cast the sole vote just moments ago.

The competition was stiff, with the Chamber railing against everyone else bringing lawsuits but forgetting that they brought one of their own.

While I mentioned it's suit in my Halloween-themed Blawg Review, the suit really does deserve to shine separately.

In October a group called the The Yes Men staged a fake news conference to pretend they were the Chamber and they had seen the light (angels and hosannas flow through background), and that they were reversing course on their opposition to climate legislation.

Not happy about being parodied, mocked and ridiculed, they sued the The Yes Men in a suit that is no doubt destined for the trash heap of hypocrisy, apparently forgetting about that First Amendment thingie.

Some posts on the subject here:

• Chamber Sues the Yes Men (Mother Jones)

• Chamber Suing Yes Men For "Commercial Identity Theft" (TPM-Muckraker)

• EFF to represent Yes Men in Chamber of Commerce lawsuit (Boing Boing)

Congrats to the Chamber on their fine work, and welcome to the growing stable of tort "reform" hypocrites. We can always count on them to shoot themselves in the foot with over-the-top conduct.

My Golden Turkey, of course, is not to be confused with the book by that name about the worst movies in Hollywood, or any other Golden Turkey awards, of which I imagine a few others might exist. With a last name like mine, I claim squatters rights. Or something like that.

Labels: Chamber of Commerce, First Amendment, tort reform

As quickly as it started with a bang, the lawsuit by Miami law professor Donald Jones against mega law blog Above the Law and its Editor in Chief David Lat), has been dropped.

The suit had been widely lampooned around the legal blogosphere, both for its lack of legal merit as well as the resulting public relations debacle.

In today's post, Lat showed more than a bit of class with this offer:

We have offered Professor Jones a guest post on Above the Law in which to provide his side of the story, about either the lawsuit or the underlying facts. We have offered to keep the comments on that post closed or open, depending on his preference.

The case, in essence, ended pretty much the way I suggested yesterday. Jones bailed out of a poorly thought suit, and at the same time corrected the digital record that had last seen him being arrested on a prostitution solicitation charge. Those who Google him 5 years from now will no longer see an arrest of this type on Google's first page.

Instead they will see this lawsuit. And if accepts the ATL offer, they will likely see his explanation.

As I noted in the comments yesterday, it was wise for Prof. Jones to drop quickly, since once ATL answered the suit, they would need ATL's permission to drop it. And ATL might have decided not to allow it without some other type of concession from Jones. (A tactic I used ten years ago defending one of the first internet defamation cases.)

First Amendment guru Marc Randazza was defending Above the Law, and "hoping to open up this can of whup ass I have lying around." And if anyone has any thoughts about suing me for anything related to this blog, you should know I've got Randazza on my short list also.

Labels: First Amendment

Above the Law has been sued by University of Miami law professor Donald Jones. Others are opining on the details of how the suit arose, but I'm here to tell you how I think it will (or should) end.

First, the back story: Prof. Jones was arrested on a misdemeanor charge of soliciting a prostitute. Above the Law picked up the story and, in its legal tabloid fashion, ran with it making him their "Lawyer of the Day" and publishing the police report. They did an update on the not guilty plea, and then followed up again with a post entitled "The Nutty Professor: A Commemorative Graphic." He has alleged the graphic is racist.

He sued ATL for $22M for portraying him in a false light, invading his privacy and violating the university's copyright on his faculty photo. (His claims are set forth in this Complaint.)

Others are opining on the merits of the suit and the First Amendment issues. The links to those posts are below. But I'm going to zoom right past all that and try to hit the crux of the case, why it was brought, and how I think it should be resolved without further litigation.

Prof. Jones, you see, has had the charges dismissed. Yet when you Google "University of Miami law professor Donald Jones," up pops those ATL posts on the first page, since ATL has some pretty impressive Google juice. And nowhere are there any posts from ATL about the charges being dismissed, because that post hadn't been written. So it's pretty safe to say that Prof. Jones is steamed. Big time.

Jones has had his Google reputation pretty seriously impaired. If repairing that reputation was his true motive, then by bringing suit, he has taken one step toward fixing it. Blogs all over are covering the story and now everyone knows the criminal case was tossed. That solves one problem.

But it creates another problem, that of a law professor starting a lawsuit that might have some pretty dubious merit (see below). And that isn't so hot if you're working the law professor circuit.

Working under the assumption that what Jones truly wants is his name back, and not $22 million, then the resolution of this dispute would seem to be pretty straightforward.

First, ATL publishes an "oops" (assuming they knew about the dismissal). Not for posting the initial stuff, all of which is likely protected under the First Amendment. Rather, I'm going to guess that someplace in the pit of his stomach, ATL founder and editor David Lat probably feels that if he is going to skewer a law prof that was arrested in this manner, that he probably ought to update his readers with news that the charges were dismissed. That doesn't go to any legal duty, but to human nature. It's just the right thing to do. So it may be that a mea culpa is in order for not updating the story in a more timely fashion.

(Of course, if they didn't know, that wouldn't apply.)

Prof. Jones, it should be noted, also wants the old posts taken down. I don't see ATL and Lat caving in to that demand. But, if they elect to write a new post updating the status of the criminal charges, then those old posts should probably have an updated link at the bottom referencing the new post. Bloggers run these types of updates all the time.

So I'm going out on a limb here to suggest that if ATL runs an update on the charges being dismissed with a mea culpa (if that part applies) on not telling its readers earlier, that would probably suffice. Since that is the type of update should probably be done anyway now, and there is no downside to ATL and Jones has his reputation updated.

On the flip side, if ATL makes a motion to dismiss (and I presume this is already being worked on) and Jones loses, he doesn't look so hot as a law prof. So Jones has a pretty good motive to accept those terms.

And if the two of them want to talk this over in a local tavern, I'll buy the beer.

Others opining on the subject:

• Law Professor Sues Above the Law Blog, Alleging 'Viciously Racist Series of Rants' (National Law Journal)

• Law Professor Sues "Above the Law" (Michael Krauss @ Point of Law)

• Law Professor Sues "Above the Law" blog; Time to go back to complaint-drafting school (Copyrights & Campaigns)

• Blog Sued: Above the law.com not above the law (Law and More)

• Law Prof Sues Above the Law, Claims 'Racist Series of Rants' About His Arrest (ABA Journal)

• Lawsuit of the Day: Jones v. Minkin (Above the Law)

• Prof. Donald Jones' Lawsuit Against Above The Law (Eugene Volokh @ Volokh Conspiracy)

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Update (11/4/09) Prof Jones has wisely dropped the lawsuit

Labels: First Amendment

Monster Energy Drink's lawyers seem intent on living up to their product's monster name. Since I consider frivolous legal conduct to be within my wheelhouse, and this evening being Halloween eve, I thought I would look at the monstery conduct of Hansen Natural, the billion dollar company that makes this brew.

Could this company really have issues in this scary season, or am I just trying to piggy-back a play on names today? You be the judge:

In one act of brilliance, the legal wizards thought it would be a fine idea to send a take down notice to a beverage reviewing website. The site is actually called BevReview.com, making it pretty clear at the outset what their focus is. They reviewed the product. And they trashed it:

The color of the drink was dark yellowish... I guess you could call it amber, but who really knows. Think apple juice with a somewhat red tint. As for the taste, well... it was odd. Think citrus + medicine. Yum! There wasn't a lot of carbonation (which reminded me somewhat of how Vault is being positioned as a hybrid soda/energy drink). The aftertaste was somewhat bitter, rather acidic. Not really pleasant, to tell you the truth. I actually couldn't quite place what the heck the flavor actually was. It starts out smooth, and then the aftertaste kicks in and ruins it. (Of course, this might also have to do with the fact that sucralose is listed as an ingredient.)

Overall, the taste was weird and I don't think I'd want to drink this again.

No problem, right? Except that their chief legal eagle, Darlene R. Seymour tried to scare the crap out of this little web site by threatening them with a lawyer letter. Perhaps she missed the class on that First Amendment thingie. The web site posted the letter, apparently telling Hansen to take the proverbial long walk on the long short pier.

And in another attempt at making its name synonymous with evil, the billion dollar company sent a cease and desist letter to the tiny Vermont Rock Art Brewery for trademark infringement for making Vermonster Beer. Hansen thought there might be some confusion in the marketplace, despite the fact that they don't even make beer.

But that didn't work out so well either, as the brewer fought back with a viral marketing campaign including a YouTube video hit. The owner went with the Web Defense under the assumption that the legal defense, while clearly winnable, would bankrupt his tiny brewery. So instead of waiting for the economic end game to hit him, he went after the giant.

In one of the great David v. Goliath battles of the web, which ended with a fast win for the brewery, the brewer turned the tables on the mega-monster when Hansen distributors started to boycott Monster Energy. Instead of punishing the brewer with legal fees, Hansen was now being punished with its products being pulled from shelves.

And others chirped in that, by the way, their stuff tastes like camel piss. Welcome to the web, Hansen.

So instead of pounding the brewer into salt, it was Hansen that got pounded. Just check some of these links out:

• Corporate monster picks on 'Vermonster':

  Where are those lawsuit reform groups when you really need them? You know, such outfits as Citizens Against Lawsuit Abuse that are always squawking about "frivolous" lawsuits and demanding new laws to prevent people from suing big corporations.

• Some Kind of Monster: Vermonster vs. Monster:

  All of this got me thinking. I seem to remember a lot of monsters throughout history. These monsters have no problem with Rock Art's Vermonster or Monster energy drink co-opting their name and hopefully when they call for a jury of their peers, some of them will sit on that jury.

• A Corporate Monster vs. "the Vermonster":

  Chance are that you've seen ads, letters-to-the-editor, op-ed pieces and other materials put out by outfits with such civic-sounding names on Citizens Against Lawsuit Abuse. By whatever name, the message is always the same, usually delivered in a sort of urgent, basso profundo voice saying something like this: "Bloodsucking lawyers are constantly filing frivolous lawsuits against beleaguered corporations.

• MONSTER Mash: Analyzing MONSTER ENERGY v. THE VERMONSTER:

  I would predict an outcome in favor of Rock Art. The fact is, Hansen is far from the first to use or register a MONSTER-formative mark for beverages.

• Why Monster's Trademark Claims Against Vermonster Stink

  Hansen's argument, however, is weak for several reasons. First, why would anyone believe that a product named "VERmonster" -- a mark alluding to the state of Vermont -- is affiliated with Monster energy drinks? Second, the term "monster" isn't exactly distinct to Hansen's energy drink. In fact, we correlate the term "monster" with so many things (e.g., job-searching websites, creatures in Loch Ness, etc.). Third, while some energy drinks have moved into the alcoholic beverage market, none of them have yet entered the beer market. For these reasons, it's doubtful that Hansen has a viable argument that Rock Art's "Vermonster" causes a "likelihood of confusion."

And in a note to the shining legal talents that represent Hansen, you should note that my mockery of your product in the image shown here also falls within the ambit of First Amendment protection. (Both ass sweat and camel piss are, as far as I know, natural products, which you seem to tout in your drinks, so I figured you'd appreciate that. You might also like the trailer for Booty Sweat Energy Drink, but that would require an actual sense of humor.))

Perhaps you think my comments made lead to some confusion in the marketplace as to your actual ingredients. But that's unlikely, since I don't presume that readers of this blog are total morons.

I know that I shouldn't have to explain that to you, and that is should be readily apparent to all lawyers (and in fact, everyone that made it out of high school), but you guys do seem to need a bit of help in that department.

Labels: First Amendment, Frivolous Claims

Two New York blogging attorneys found themselves in a decision today out of our highest court, in Stern v. Bluestone. Andrew Bluestone writes the New York Attorney Malpractice Blog, and was sued when he sent his newsletter via fax to local attorneys. He was defended by Scott Greenfield, of Simple Justice fame, who argued the matter in the Court of Appeals.

And since SCOTUS nominee Sonia Sotomayor may play a roll in the First Amendment issues I'm about to discuss, this could be particularly interesting.

Bluestone was sued by Peter Stern, another local practitioner, for violating a federal law (the Telephone Consumer Protection Act) that prohibits using a fax for unsolicited advertisements. But was his newsletter regarding attorney malpractice an advertisement for his services? Both the Supreme Court (our trial level court) and the Appellate Division, First Department (intermediate appellate court) said it was advertising. You can read some of that prior blogospheric commentary here:

• Judge Rules Attorney's Faxes Are Prohibited Advertising (NY Law Journal, 9/6/06)
• Bloggers Head to NY High Court As Both Defendant and Counsel in First Amendment Lawyer Advertising Battle (2/1/08 on this blog)
• $21,000 Award Upheld Against Attorney Who Faxed Unsolicited Ads (NYLJ, 2/4/08)
• What a $21,000 Award Against a Lawyer for Unsolicited Faxes Might Mean for Bloggers (Carolyn Elefant @ Legal Blog Watch, 2/4/08)
  
• Is the How Appealing Blog "Commercial Speech" and Thus Less Constitutionally Protected? How About This Blog? (Eugene Volokh @ Volokh, 2/6/08)
  
  

Most troubling about the First Department decision was this:

While Bluestone contends that his faxes were purely informational and do not explicitly offer services, his position defies common-sense. The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone's services, which are for the specialized field of legal malpractice claims. . . .

Contrary to the dissent's viewpoint, Bluestone's motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed "commentaries" are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services.

Why is that troubling? Because blogs may also come under regulation from New York's advertising and anti-solicitation rules, albeit it in a different context. As Greenfield noted back on his own blog in February 2008:

The significance of this case has nothing to do with the manner in which it was transmitted, but something far more insidious and troubling for lawyers. It was held to be advertising, for only commercial solicitations fall within the TCPA. With the changes in flux for New York lawyer advertising, this decision could have a disastrous impact on lawyers and their exercise of First Amendment rights.

Every blog that has a name on it, in other words, could be deemed advertising. There are a bazillion shades of gray between an article that appears in a legal journal and what you read here. How, exactly, does a court make that determination of what the primary purpose of the publication is?

But today the Court of Appeals reversed, holding that the newsletter is not an advertisement. The Court noted that the FCC had this opinion on the subject of what is, or is not, an advertisement:

so long as the newsletter's primary purpose is informational, rather than to promote commercial products"

The Court then went on to decide that:

In these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products. To the extent that Bluestone may have devised the reports as a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, "[a]n incidental advertisement" of his services, which "does not convert the entire communication into an advertisement"

But this leaves an issue hanging: Who decides what the "primary purpose" of a blog or newsletter is?

It's worth noting that that exact phrase is part of New York's anti-solicitation rules. I started writing about it in February 2007 when the new rules went into effect (See:Who, Exactly, Must Comply With New York's Attorney Advertising Rules? and more on the subject as a whole here: New York's Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified.)

With so many potential shades of gray, it seems that if and when the issue is ultimately litigated, we will be faced with Justice Potter Stewart's famous words regarding the definition of pornography, for it seems equally applicable in the context of deciding what is attorney advertising and what is not when it comes to blogs:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

So when will it be ultimately litigated? Hold on to your hats....the issue of New York's new anti-solicitation rules is now before the Second Circuit. And Justice Sonia Sotomayor was on the panel that heard the case.

Elsewhere on today's ruling:

• Newsletter Doesn't Become an "Advertisement" Just Because It Implicitly Promotes the Author's Professional Expertise (Eugene Volokh)
• N.Y. High Court Finds Attorney's Unsolicited Faxes Did Not Violate Communications Act (NYLJ via Law.com, 6/12/09)
• Attorney Newsletters and Liability for Unwanted Faxes (Full Court Pass)
• We're Not Just Self Promoters (Greenfield @ Simple Justice, 6/13/09)
  

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Full disclosure: I know both Bluestone and Greenfield, and both have appeared in my blogroll for the last couple of years.

Labels: First Amendment

A former cop named Jim Donahue stupidly decided he would send a take down demand to criminal defense lawyer Scott Greenfield of Simple Justice fame. If there is a contest out there for dumb mistakes, Donahue will take the gold. And Greenfield will take the platinum for his response.

It seems Donahue wasn't too happy that other cops treated him as a mere civilian, instead of giving him preferential treatment. Those other cops should have known he was a cop, he whined at Officer.com, since:

I am wearing my only sweatshirt, which has a breast emblem from my previous department in Michigan. I just got my "high & tight" haircut tuned up yesterday. It would not be a great leap of faith to think that I may be a retired cop, a current cop, or minimally, related to law enforcement based upon my appearance and demeanor.

So Greenfield wrote the story up last December, using his picture that you also see here to show the unmistakable awesomeness of the "high and tight." And Donahue then made the grave mistake of "insisting" that Greenfield surrender his First Amendment rights to him and take down the picture: Greenfield's response? He deservedly chewed up Donahue and spit him out. You'll have to go to his site and read Drop the Photo or I'll Shoot for the rest, but here's a taste:

You put your appearance in issue, and I used your photograph to make the point. Don't like having it on a scummy criminal defense lawyer blawg like this? Bummer. Be a man and take it, you wussie with your "high and tight" hairdo. You were tough enough to call out other cops for not treating you with the respect due a fellow officer, but not tough enough to bear having your image shown to the public you pretend to serve and protect? Exactly.

No one will ever accuse Greenfield of equivocating in his response, telling said former cop to "bite me." And that was the most polite part of his stomping of Donahue, who no doubt is used to people following his orders. Donahue also has probably never had anyone call him a "big-mouthed blowhard" that is also "an ignorant, hypocritical poster boy for people who are undeserving of a shield and gun."

The post is an instant classic.

Winner: Greenfield by knockout in the first round.
Lesson: Don't mess with Greenfield. Even if you do sport a "high and tight" hairdo.

Update: Donahue may not be a former cop after all.

Labels: First Amendment

New York's 2007 lawyer advertising rules will be before the Second Circuit today (NYLJ: 2nd Circuit to Hear Arguments on Lawyer Ad Restrictions). In 2007, many of the restrictions had been struck down by a federal judge in Alexander & Catalano v. Cahill, though one particular restriction -- the 30-day anti-solicitation rule -- was upheld. (Decision and briefs here)

This posting discusses how the anti-solicitation rule can be circumvented and why it causes First Amendment problems in certain circumstances due to the breadth of its definition of solicitation. Indeed, under the rules, this very posting could qualify as an ethical violation as I use the US Airways Flight 1549 splash landing in the Hudson River as a case example on how the solicitations can occur. In fact, the ethics rule is so full of holes that it would sink in a true disaster.

Any Internet savvy lawyer can easily beat the rules by making agreements with legal marketers from outside New York. I refer to the work-arounds as Ethics Laundering. If New York wants its anti-solicitation rules to have any real effect, it will have to more fully appreciate how the Internet has altered the field of attorney marketing, how the ethics rule can be laundered, how they may violate the First Amendment, and deal with it appropriately.

By way of background, the 30-day rule came into being in the wake of the 2003 Staten Island Ferry disaster that killed 11 people. While rescue efforts were still underway, lawyers raced to the Staten Island Advance to place ads in the paper before the afternoon deadline for the next day's paper. It was not the personal injury bar's most shining moment.

The new anti-solicitation rules, which cover more than mass disasters but that seems to be where the real problem lies for online solicitation, went into effect on February 1, 2007 after a period of comment. Here's the text:

DR 7-111 (22 NYCRR 1200.41-a) Communication After Incidents Involving Personal Injury or Wrongful Death

(a) In the event of an incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm, seeking to represent the injured individual or legal representative thereof in potential litigation or in a proceeding arising out of the incident before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

The easiest place to start analysis of how the rule works is with direct solicitation, and then work through several examples of the more troublesome indirect solicitation that serve to launder the ethics involved. While direct solicitation has, in the past, generally dealt with direct mail, this positing will deal solely with Internet related marketing.

Bear in mind that, because no lives were lost on the US Airways crash, and because a flock of birds seems to be the leading cause, we were not swamped with ads. Thus, this piece is written in advance of the full implementation of the rule, while the matter is pending in the Second Circuit, with the hope that the rule can be modified to take these devices into account.

First, direct solicitation can take place with simple Google AdWords. Those are the ubiquitous ads you see on top of the natural search results or in the right hand side bar when you Google "personal injury lawyer" or most any other service or product known to the human race. People and companies, working through Google, submit words or phrases that will trigger the ad. Those keywords don't have to be part of the ad. For instance, a generic personal injury ad may run, but there may be hundreds of keywords that trigger it regarding medical malpractice, drug interactions, car or labor law accidents, etc. Where you land in the advertising results, be it in the first position on the first page or buried on page three, depends on how much you bid for the particular keywords you used.

So in the wake of the Hudson River crash, I searched around and found one firm that seemed to blatantly violate the ethics rule, according to my reading, by actually using these words in addition to the firm's website link:

USAirways Crash Victim?
Helping Victims of Flight 1549
[Law firm link redacted]

But not all such solicitation is so obvious. How about the firm that uses the keywords "Hudson River" and "1549" to get placement of their aviation law firm in the Google results, but doesn't mention the particular accident in the ad that the public sees? In this manner, law firm marketers get their ads placed under the noses of searching victims in violation of the rule, but without making it obvious. Catching these people requires someone actively looking for the violations by ignoring obvious keywords (aviation, airline, attorney, etc.), and then subpoenaing Google to get the list of keywords from the lawyer's account.

Another trick is to simply modify the website of a firm and lard it with keywords for Google to index. Is that a solicitation in violation of DR-711? According to Ethical Consideration (EC) 2-18 of the rules:

A "solicitation" means any advertisement:
a) which is initiated by a lawyer or law firm (as opposed to a communication made in response to an inquiry initiated by a potential client);
b) with a primary purpose of persuading recipients to retain the lawyer or law firm (as opposed to providing educational information about the law) (see EC 2-6(c));
c) which has as a significant motive for the lawyer to make money (as opposed to a public interest lawyer offering pro bono services); and
d) which is directed to or targeted at a specific recipient or group of recipients, or their family members or legal representatives. (emphasis added)

Does the act of adding the text of the accident to an existing website mean that it is an ad "directed to or targeted" at the victim group? It would seem so, since the definition of "directed to or targeted" means that it is referring to the target group. The definitional text for the phrase is under Ethical Consideration (EC) 2-19(c):

"...an advertisement in a public medium such as newspapers, television, billboards, web sites or the like is a solicitation if it makes reference to a specific person or group of people whose legal needs arise out of a specific incident to which the advertisement explicitly refers."

If all one needs to do is "make reference" to an accident, then it seems to create a troubling constitutional issue. What is to stop a firm from putting an "in the news" item on their web site that deals with Flight 1549 (or a big construction accident or other event) that just so happens to tickle the magic Googlebots with the "correct" keywords for the victims to find them? The result, it seems, would be a clear First Amendment battle.

The same issue may exist for a blogger who writes about local accidents in the hope that someone will Google the accident and find the firm (see: Attorney Solicitation 2.0 -- Is it Ethical?). While this can be a very crude and obvious device, it nevertheless also runs into the same First Amendment issue. Even a subtle mention of the accident -- I did make reference to US Airways flight 1549 in this article didn't I? -- might trigger the rule in the eyes of some. There are a million shades of gray between the obvious and the subtle in determining which blogger is trying to add to the discussion of an issue and which one is hustling business.

The solution here may be well beyond anything that the courts can do by way ethical rules due to constitutional constraints. It thus becomes up to writers to speak up when they see these things happen in the hope that public humiliation will stop the conduct, as the implied threat of destruction to one's Google reputation can be a powerful incentive in the digital age. While the briefs and lower court opinion in today's case didn't go into the level of detail I have here, one can clearly see how the rule may not be workable.

Now moving on to the more secretive and, I think, insidious types of advertising: The attorney search services. These are web sites that are not affiliated with any one law firm, with charming names like WhoCanISue and SueEasy, that run ads trying to attract potential clients. Leads are then distributed by the company to attorneys, whose names do not appear anywhere on the website. There are dozens of these companies out there, and I regularly get calls and emails from them. One called PleaseGetMeAnAttorney, for example, sent me an unsolicited email that offered to provide leads at "$3,995.00 per territory, per month."

These attorney search services are particularly diabolical from the ethics standpoint. They are unlikely to have their home in New York and may not even be run by attorneys. They therefore will fall well outside any jurisdiction that New York courts may have to discipline for ethics violations. They can advertise free from any constraints and may skate right off the edges of the ethical pond. But what of the attorneys that have signed up with them? They, no doubt, turn a blind eye to the devices used by the companies and will cry ignorance if confronted.

And very similar to the attorney search services are the "national" law firms that are little more than referral mills. They seek to sign up clients the same way the attorney search services do, but instead of getting paid a flat fee for leads they will receive a piece of the legal fee if the matter successful, as part of a joint venture with local counsel.

How, exactly, is New York going to stop these outside lawyers and search services from soliciting in New York and laundering the ethical rules that local counsel must abide by? Well these outsiders are theoretically subject to New York's anti-solicitation rule under EC-221:

Extra-Territorial Application of Solicitation Rules

EC 2-21 All of the special solicitation rules, including the special 30 day (or 15 day) rule, apply to solicitations directed to recipients in New York, whether made by a lawyer admitted in New York or a lawyer admitted in any another jurisdiction.

But if the Second Circuit upholds the constitutionality of the 30-day rule, how will enforcement actually take place for the attorney that is not admitted in New York? And has a New York lawyer committed a violation by accepting the case from the outsider that violated the rules? And how is the New York lawyer supposed to know that the out-of-state referring lawyer or search company violated the ethics rules?

I suggest that the Office of Court Administration use the Retainer Statements to catch the ethical launderers. Those statements, that must be filed in every personal injury case taken on contingency, require the retained lawyer to specify who the referring sources are, be they attorneys or not. In the event of a tragedy that triggers the rule, OCA must anticipate the problem and do an immediate web search to see who is violating the rules, then cross-check that list against the incoming Retainer Statements. The rules must be clear now that, if the referring lawyer or service violated the anti-solicitation rule, then the matter will be forwarded to the disciplinary committee.

There should be little doubt that search services, as well as non-New York Lawyers that solicit here for the purpose of entering into joint ventures with local counsel, are agents of the law firms and that local counsel must therefore be accountable for the acts of these agents. For only by forcing accountability on local counsel will they, in turn, demand ethical conduct from the search company or New York outsiders. If local counsel understands that they may lose their fee after having done substantial work, they will more than think twice about whom they do business with.

This is not, by any means, a plea to get rid of the 30-day anti-solicitation rule altogether. Solicitation is ugly and a blight on the profession. Rather, it is a plea to clean the rule up, either before or after the Second Circuit decides, and make it clear that attempts to circumvent the rule by laundering the ethical issues will not be tolerated. And that is something that should be done now, and not after a real disaster.
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Photo credit: Jordan Husney (via Flickr)
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Update 1/23/09, After the Second Circuit Argument: 2nd Circuit Skeptical Over Restoration of Rules Curbing Content of Ads (NYLJ via Law.com)

Labels: Attorney Ethics, First Amendment

With Monday being Bill of Rights Day, it gives me a chance to write about a shopping plaza. Yeah, I know, that isn't really the first thing to jump to your mind when discussing our rights. But as you can see from my photo, this particular shopping strip is called Bill of Rights Plaza, and it's a couple miles from my home.

As it happens, Westchester County, just north of NYC for you out-of-towners, played a pretty big part in the creation of freedom of the press. It started with an election in 1733 on the village green in front of St. Paul's Church in Eastchester. It seems that some folks wanted to vote, and others tried to stop them. Yes, I know that some things haven't changed.

John Peter Zenger wrote about those voting irregularities, and in doing so was critical of the colonial governor. But since criticizing the British crown or its colonial puppets was not something to be tolerated, he was promptly arrested and put on trial for seditious libel. The truth of his writings was irrelevant under the law of seditious libel. To help insure a guilty verdict, the governor picked the judges.

Zenger's defense -- and the reason I write about it 275 years later -- was novel; instead of contesting whether he he was guilty of the crime, he contested the law itself. Since what he wrote was true, he argued, he couldn't be guilty of libel. The jury was asked to disregard the law, a concept we now call jury nullification. And the jury found Zenger not guilty.

From this one trial was born a concept that every member of the press (and every blogger, whether you think you are press or not) cherishes, for it now forms part of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Whether our nation's founders thought it would be a good idea to name a shopping plaza after the Bill of Rights is another story. But if it makes a child or two ask their parents about that sign, then it seems to be worth it.

Updated:
Marc Randazza at the Legal Satyricon has put up a sensational Blawg Review #190, dedicated to the Bill of Rights. He's got commentary from around the legal blogosphere on all ten.

See also:

• The Right to Defend (Greenfield @ Simple Justice, 4/23/08)

• The Rare Ruby-Throated Jury Nullification (Reed @ Deliberations, 2/26/07)

Labels: First Amendment

Medical blogger Westby "Dr. Wes" Fisher has been subpoenaed. Not over something he wrote, but over something a commenter wrote.

According to Wes:

I can tell you I was subpoenaed for a discovery deposition about one of my posts on this blog. I was not named as a party in the suit occurring in Cook County Circuit Court here in Illinois, mind you. Rather, the plantiff thought for sure that I knew one of the anonymous commenters on my blog. I did not. They insisted that I take down the post on my blog. I have not. They asked that I remove the comments identifying individuals on my blog. I have not and will not. They wanted me to take down an image I posted on my blog. It still stands.

More at his site, linked above.

Update - See also:
Physicians and Blogging (Kevin M.D.)

Labels: First Amendment

The US Supreme Court denied certiorari today in the fantasy baseball case of Major League Baseball Advanced Media v. CBC Distribution. That dispute had formed the basis of my April Fools Day hoax, claiming that cert had been granted but that a dispute arose when three members of the Court recused themselves due to participation in a fantasy league, and two others did not.

The suit revolved around the use of real statistics generated by players at the major league level for use in fantasy leagues, when major league baseball claimed that those that wanted to use the stats needed to pay a licensing fee, while plaintiff CBC, which runs a service for fantasy players, claimed no such fee was needed under the First Amendment. Since the Eighth Circuit Court of Appeals had sided with CBC, Major League Baseball has now definitively lost the case.

The hoax, and the underlying legal and baseball issues of recusal that inspired it, was the subject of a second post: Deconstructing a Fantasy (And Who Was Duped?) The brief order did not mention anyone recusing themselves for participating in a fantasy baseball league.

The dispute over when court members should recuse themselves, however, remains unresolved.

See also: Sam Alito Talkin' Baseball (and Antitrust): (Tony Mauro @ Blog of Legal Times)

Labels: April 1, First Amendment, Judiciary

If you haven't heard about Kathleen Seidel, you will now. She's a New Hampshire blogger and writer about issues of autism at her site Neurodiversity. And while she has no direct connection to the Virginia lawsuit Sykes v. Bayer, plaintiff's counsel Clifford Shoemaker has nevertheless hit her with a subpoena.

I don't generally like to write "me too" posts for things broadly covered by others. But when some piece of abusive conduct takes place within the legal system -- one that not only affects the individuals involved but can set ugly precedents for those of us that write freely under the protections of the First Amendment -- then my reticence to type must be supplanted by an emphatic joining of the chorus of condemnation.

Just to be clear here, this post isn't about whether the underlying lawsuit is a good one or not. The suit apparently deals with whether mercury additives to vaccines caused the plaintiff's autism. I haven't read it. This is about going after the citizen-journalist for having the audacity to speak freely on a subject.

She has produced her own motion to quash the subpoena. And here are the nuts and bolts of Shoemaker's outrageous demands, made merely because she is writing on the subject:

The subpoena commands production of "all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com" -- including but not limited to material mentioning the plaintiffs -- and the names of all persons "helping, paying or facilitating in any fashion" my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis® and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any "religious groups (Muslim or otherwise), or individuals with religious affiliations," and any other "concerned individuals."

She has argued First Amendment protection and journalistic protection among other factors. I urge you to read the link above for her self-drafted motion to quash.

But there is one thing she didn't do, and I suggest it here. She didn't explicitly ask for sanctions. But that should not stop a judge from imposing them, even if the growing chorus of blogospheric condemnation makes Shoemaker rethink his strategy (and his Google reputation) and withdraw the outrageous subpoena. A litigant need not ask for sanctions under Rule 11 for the court to act.

Under Chambers v. NASCO, decided by the Supreme Court in 1991, the court held that because federal courts have the inherent power to manage their own proceedings and to control the conduct of those who appear before them, they also have the inherent power to punish conduct which abuses the judicial process. This may occur when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. And that seems to fit the bill here when a litigant goes after a non-litigant with a subpoena that he knows cannot stand scrutiny.

Go get 'em.

Update, 4/22/08: Subponea on Blogger Seidel Quashed; Attorney Shoemaker May Be Sanctioned

Other commentary (hat tip Overlawyered):

• Vaccine lawyer subpoenas Kathleen Seidel (Overlawyered), with this:

  Should the subpoena somehow be upheld and its onerous demands enforced, it could signal chilly legal times ahead for bloggers...

• Attempted suppression of Seidel (PZ Myers):

  using the power of the subpoena to harrass and intimidate bloggers who aren't at all involved in the case

• More legal thuggery, this time against Neurodiversity.com (Orac/Respectful Insolence):

  We can only hope that the judge sees through this blatantly obvious legal fishing expedition and its naked intent to intimidate a blogger

• Autism cranks going after bloggers (PalMD):

  the only thing they didn't ask her to do was submit to a speculum exam

• Autism cranks attempt to intimidate blogger by subpoena (Pure Pedantry):
  

  This is a clear attempt to bully and intimidate a blogger for her differing opinions.

• Kathleen Seidel Slapped ...(I Speak of Dreams); [updated with a growing list of blogs weighing in on the subject]

• Kathleen Seidel's Blog: Influence Means You Get Subpoened (Law and More):

  If the motion isn't granted, then we bloggers have to think twice before we take on specific lawyers.

• Neurodiversity Blogger Unfairly Subpoenaed (The Voyage):

  I also think, like every previous attempt to persecute a blogger without just cause, this will go badly against Sykes and Shoemaker. Haven't they heard of the Streisand effect?

• Vaccine-Litigant Thuggery: Subpoenaed For Blogging (Popehat), with this money quote:

  Mr. Shoemaker, shame on you. You bullying is contemptible, and if there is any justice in this situation, you will get your critic-intimidating, oversensitive ass handed to you in the motion to quash.

• Kathleen Seidel Has Received a Sub-Poena... (Holford Watch):
  

  The subpoena is eye-wateringly intrusive and is clearly intended to intimidate

• Evidence of Slime (Grey Matter/White Matter)

  I know it's not fair to make snide remarks about lawyers as if they were all bad. But this is bad. This is the kind of repulsive, nauseating, slimy behavior that gives lawyers a bad name.

• Blogger ensnared in hotly contested autism-vaccine lawsuit (Ars Technica):
  

  One of those lawsuits has now embroiled an autism blogger, Kathleen Seidel, and her attempts to stay out of it may wind up testing constitutional issues and the role of citizen-journalists.

• Subpoena sleaze (Marc Randazza at Legal Satryicon) 4/10/08:
  

  Hopefully the judge will be one of the rare few with the chram to actually make Rule 11 mean something.

• Cyber-Slapp (James Taranto, WSJ) - 4/10/08:
  

  Assuming that Seidel's representations are accurate, this is a classic Slapp, an acronym for "strategic lawsuit against public participation." Such legal actions may become more common as citizens increasingly participate in public debates by way of blogs and other Web media.

• Blogger Kathleen Seidel Fights Subpoena Seeking Information About Vaccine Litigation (Citizen Media Law Project - Berkman Center for Internet and Society) - 4/11/08:
  

  We've been following the subpoena issued to Kathleen Seidel in the Citizen Media Law Project's Legal Threats Database, but thought it was time to throw our support behind Seidel and post about this egregious attempt to chill online speech. (Sykes v. Seidel)
  

• Blogger Subpoenaed (Floor9.com), 4/11/08:

  What becomes blisteringly apparent from the start is that it's simply meant to overwhelm the blogger with ridiculous requests for irrelevant information, presumably in the hopes that the blogger will simply throw up her arms in dispair and print a retraction.

Labels: Attorney Ethics, First Amendment

Two prominent New York bloggers are headed to New York's Court of Appeals as a result of an appellate decision yesterday. One is the defendant. The other is his counsel. And the decision from New York's high court may impact attorney advertising and its relationship to the First Amendment for years to come.

Andrew Lavoot Bluestone, who writes the New York Attorney Malpractice Blog, had faxed out copies of his Attorney Malpractice Report to lawyers between 2003 and 2005. The reports were one-page essays on legal malpractice containing information regarding issues and trends in that area. They were subtitled "Free Monthly report on Attorney Malpractice From the Law Office of Andrew Lavoott Bluestone."

One lawyer didn't take kindly to the unsolicited faxes and brought suit under the Telephone Consumer Protection Act of 1991, claiming this was an impermissable use of his telephone lines for unsolicited advertising. With penalties of $500 per fax, and 14 faxes sent, that put Bluestone on the hook for $7,000. Plus treble damages for a total of $21,000.

In the trial court, summary judgment was granted against Bluestone and yesterday, in a 3-2 decision, the Appellate Division, First Department affirmed in Stern v. Bluestone. (His defense counsel is a friend, Scott Greenfield of Simple Justice fame.) According to the court, the thing that made these advertisements was that at the bottom of each fax was a box containing Bluestone's contact information, office address, telephone number, fax number and web site address.

The court noted that, because Bluestone had once before sent out unsolicited faxes and been successfully sued under this statute, that, "as a matter of law, Bluestone willfully and knowingly violated the TCPA." After losing the prior battle, however, Bluestone altered the fax formats. Whereas they previously stated "Presented by the Law offices of Andrew Lavoott Bluestone, concentrating in Attorney Malpractice Litigation ... Inquiries are welcome," the new ones had deleted those phrases so that they would not be considered advertising.

Moreover, Bluestone claimed that he does not defend attorneys sued for malpractice, but represents those harmed, and that therefore Report is not a solicitation for his services. While he is obviously not opposed to referrals from other attorneys or the enhancement to his reputation in an area of law (who is?), he said that it was never intended to be an advertisement.

He also argued that the Report is a fully protected non-commercial exercise of free speech under the First Amendment.

Now here is the big First Amendment issue: The TCPA prohibition is for an "unsolicited advertisement." TCPA (47 USC § 227 [a] [4]) defines "unsolicited advertisement" as "any material advertising the commercial availability or quality of any property, goods, or services. . ."

But the court ruled that advertising was prohibited both "directly or indirectly." It is that "indirectly" issue that seems to be at stake here. This is an invention that does not exist in the statute, and would no doubt run afoul of the First Amendment as being vague and overbroad, catching protected speech within its web.

According to the court:

[W]hile the faxes do not directly offer Bluestone's services as a legal malpractice attorney, they indirectly advertise the commercial availability and quality of such services. Not only do the faxes invite contact for further information but they also list two web sites that boast Bluestone's specialization in attorney malpractice suits. Thus, it is clear that the faxes indirectly proposed a commercial transaction and had the effect of influencing recipients to procure Bluestone's services. (emphasis added)

With a thousand shades of gray between marketing and advertising and between commercial and non-commercial speech, how can a court grant summary judgment against Bluestone? He sent out information that is clearly protected, but which also has his name and contact information on it. According to the dissent, "the content of each fax is almost totally devoted to a commentary on issues involving attorney malpractice and not one contains a single word that can be fairly read as promoting the author's law practice or inviting the recipient to employ his legal services." In fact, the dissent also noted that even the plaintiff concedes "that there is no direct solicitation in the message that either constitutes an offer of defendant's legal services or a comment on them..."

All of this brings up the issue of what constitutes legal advertising and what constitutes marketing, and has direct implications for the legal blogosphere as some use their blogs as advertising vehicles. While some sites, as I have previously noted here, appear to be clear marketing or solicitation to me, the differences between an article written for a magazine that might be seen as marketing and blatant self-promotion that would be seen as advertising, is one of degree. At the very least, a message that is a hybrid of commercial and non-commercial speech is a question for a jury to answer, as shades of gray on the facts do not lend themselves to judges making decisions as a matter of law. At the most, it calls for summary judgment in favor of Bluestone because commercial speech is that which "does no more than propose a commercial transaction" (Bolger v Youngs Drug Products Corp., 463 US 60, 66 [1983], according to the dissent. And Bluestone's appear to do plenty more.

It seems to me that if the court finds, as a matter of law, that the Report is advertising because Bluestone's contact information is on it, then every blog that has contact information on it also qualifies as advertising. This would subject all law bloggers to the advertising rules of their state, and possibly others as well.

Since there were two dissenting justices, an appeal lies as of right to New York's high court. And Greenfield tells me that they are most surely going there with the case. I expect to hear from him on the issue over at Simple Justice.

The New York Law Journal is expected to publish the decision on Monday.

Full Disclosure: Bluestone, Greenfield and I all worked in the same building for a time (different offices) and I know both of them for years. I had, in fact, once helped Bluestone prepare for his own oral argument ten yeas ago in the Court of Appeals for Labarbera v. New York Eye and Ear Infirmary. Both attorneys' blogs appear in my blogroll to the right.

See also:

• Court To NY Lawyers: If You Do It, It's Advertising ("this decision could have a disastrous impact on lawyers and their exercise of First Amendment rights." Simple Justice)
• What a $21,000 Award Against a Lawyer for Unsolicited Faxes Might Mean for Bloggers ("the case may lay the groundwork for regulation of your firm's e-newsletter or blogs by the bar." Elefant/Legal Blog Watch)
• NY Blawger Found Liable for Advertising ("If you ask me, it is the First Department's decision which defies common sense." New York Legal Update)
• Is the How Appealing Blog "Commercial speech" and thus less constitutionally protected? How about this blog? "it seems to me that the Stern decision is pretty troubling, and potentially dangerous to all lawyers who write about law, as well as to other professionals who do similar things" (Eugene Volokh)

--------------

Update, 6/11/09: Decision reversed. NY Ct. of Appeals: Attorney Newsletter Not an Advertisement (And What of Blogs?)

Labels: First Amendment

Best Buy clearly doesn't like being the butt of a joke. We know this because a group called Improv Everywhere sent about 80 people into one of their New York stores wearing blue polo shirts to stand around. They did not claim to be employees. They just stood around dressed like them. For yucks. Now the lawyer letters are flying.

According to an extensive write up of the escapade, "The reaction from the employees was pretty typical as far as our missions go. The lower level employees laughed and got a kick out of it while the managers and security guards freaked out."

Then, when the stunt was over, they sold shirts. With a parody of the Best Buy logo, seen here above right. So Best Buy sent their first cease and desist letter.

Then someone else blogged about it, at a site called Laughing Squid. And then they got a cease and desist letter for reporting the story, claiming trademark and copyright infringement, which letter they have conveniently put up at their site. And just for the record, the one they got was much fancier than the one that Avis sent to me for using their logo.

Someone ought to direct those folks to that little thing called the First Amendment.

(And to save the Best Buy legal department some time, let me say that I don't sell the shirts, I'm just reporting the story for the other attorneys in the blawgosphere that are interested.)

(hat tip: The Consumerist)

Addendum 12/12/07 -- Best Buy has apologized for the cease and desist letter to Laughing Squid.

Labels: First Amendment

Right wing radio talk-show host and tort "reformer" Michael Savage has brought a lawsuit. The infraction? He was quoted by an Islamic group on its website in which he called the Quran a "book of hate" and said Muslims "need deportation."

Savage (a pseudonym for Michael Alan Weiner), perhaps unaware of the First Amendment, said the Council on American-Islamic Relations (CAIR) had violated copyright law by using the excepts in a campaign to persuade advertisers to stop sponsoring his show, according to this San Francisco Chronicle story. From the article:

Savage calls the Quran a "hateful little book," says Muslims "breed bombers" and asserts that the religion of Islam seeks to "convert or kill" nonbelievers.

Savage, who claims to have lost $1 million in revenue as a result of the boycott, said in an Associated Press story that "he was talking about Iran president Mahmoud Ahmadinejad and his dangerous and violent brand of Islamic extremism, not about the religion in general."

The vitriolic segment was apparently a medley of statements from different broadcasts, and not a single 4-miute spewing. Savage, who apparently has a history of attacking those he disagrees with, is upset now that the roles are reversed.

The lawsuit, according to many portions of the Complaint at the Daily Kos, claims:

"The CAIR misappropriation [of the talk show excerpts] was done for political purposes unrelated to civil rights ... [but instead] to raise funds for CAIR so that it could self perpetuate and continue to the (sic) disseminate of propaganda on behalf of foreign interests that are opposed to the continued existence of the United States of America as a free nation."

At the Savage website, there is an announcement of the suit trying to silence the Islamic site, accompanied by a "Legal Defense Fund" to "Support Freedom of Speech." George Orwell, it appears, is alive and well.

And on the tort "reform" front, Savage has had this to say:

"Pass tort reform now. Lawyers are important to a society of laws. But lawyers are like red wine. Everything in moderation. Today we have far too many lawyers, and we're suffering from cirrhosis of the economy."

Note to Savage: My use of your book cover as an illustration constitutes fair use. I recognize, of course, that getting people to write about you and buy yoru stuff may have been the real point of the lawsuit.

(hat tip to Rhymes with Duck)

Labels: First Amendment, tort reform

My dispute with Avis, in which they asked that I take down their logo from this post back in September, has now gone international. It has been featured in the online journal The Register, published by Pinsent Masons, which is one of the largest British law firms and part of the Global 100.

Thus far, I have not heard back Avis them regarding my response, and the logo remains in place. I presume that, notwithstanding their attorney's assertion that it was I that was ignorant of the law, they have stopped their efforts knowing that my use of the logo was proper.

Labels: First Amendment

The first reported decision on the subject of bloggers as journalists has been rendered. This is important due to statutory protections that may exist for journalists.

In BidZirk v. Smith, a pro se blogging defendant beat back a lawsuit from an eBay listing company that alleged, among other issues, trademark infringement due to use of the mark by Smith of BidZirk on his blog. Smith responded by saying he could use the mark as a journalist. The decision and analysis are at the Citizen Media Law Project and is also written up by Eric Goldman and Marc Randazza. Since I've now been threatened by Avis over use of its logo on my blog, this has become of interest to me.

[The issue of the blogger-journalist also presented itself in another context recently when Howard Bashman refused to remove a Second Circuit Court of Appeals decision that had been published by the court, then placed on the blog How Appealing, and that the court sought to recall.]

US District Judge Henry Herlong, Jr., sitting in the District Court for South Carolina, wrote the following with respect to bloggers as journalists:

Even if Smith has infringed BidZirk's mark, the court finds that this infringement is excused by a statutory defense. Under §1125(c)(4)(C), no "forms of news reporting and news commentary" are actionable under §1125. These terms are not defined in the Lanham Act. Further, there is no published case deciding whether a blogger is a journalist.

However, in determining whether Smith was engaged in news reporting or news
commentating, the court has applied the functional analysis suggested by commentators and the Plaintiffs in their memorandum in support of a preliminary injunction, which examines the content of the material, not the format, to determine whether it is journalism. See David L. Hudson, Jr., Blogging; (Pls.' Mem. Supp. Preliminary Injunction Ex. 34 (Hudson on Blogging).). In addition, the court has considered the intent of Smith in writing the article. The court agrees that not all bloggers are journalists. However, some bloggers are without question journalists. See CNN BLOGS: YOUR SAY .

Upon review of the content of the article, the court finds that Smith's use of the BidZirk mark in the article was in the context of news reporting or news commentary. The article posted by Smith concerning the Plaintiffs is written for the purpose of conveying information to the public. In the four installments of the article, Smith describes his experience with BidZirk in great detail. (Pls.' Mem. Opp'n Summ. J. Ex. 2 (Article).) In addition, Smith addresses the positive and negative aspects, in his opinion, of dealing with a an eBay listing company, such as BidZirk. (Id.) Further, Smith provides a checklist for using an eBay listing company and tips for selling items on eBay. (Id.) Smith felt that what he learned from his experience with BidZirk would be helpful to others in dealing with an eBay listing company. The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article's function or intent was not news reporting or news commentary.

There is no evidence that the sole purpose of the article was to denigrate BidZirk.
follows:

This is my story as experienced by me personally. I have dealt with a company called BIDZIRK, in my home town. I have also visited several competitors. In doing extensive Google research, I have found that my problems are almost universal . . . but that only larger clients really complain. At the end, I will offer a checklist for you to use when choosing a listing company that includes questions you may not have thought of before.

(Pls.' Mem. Opp'n Summ. J. Ex. 2 (Article).) Smith engaged in background research and provided consumers with a checklist for use in selecting a listing company. Smith's article evidences his intent to report what he believed was a newsworthy story for consumers. Based on the foregoing, no genuine issues of material fact exist and BidZirk's Lanham Act claim fails as a matter of law.

This post may be a substantial deviation from New York personal injury law, but it seems to be a worthwhile one.

Labels: First Amendment

To: Fred Grumman, Associate General Counsel, Avis Budget Group, Inc.

Dear Mr. Grumman:

I had used an Avis trademark on September 17th to discuss a decision holding the Graves Amendment unconstitutional. That amendment, which I believe Avis fought for, granted immunity to car rental and leasing companies from state laws that would hold them vicariously liable when the renters/lessors were negligent and injured someone.

On October 23rd you wrote to me on behalf of Avis in the comments section of that post, to complain about my use of the Avis trademark, which is shown here in the upper, right corner.

So here is my response. I do it publicly, since that is how you chose to contact me.

In writing this blog and engaging in citizen-journalism, I often use the trademarks of companies when discussing their news. That seems to be a pretty clear First Amendment right.

In your letter to me you sought to trump my First Amendment right when you wrote:

We have the greatest respect for your right to express your opinions on your blog, but that does not include the right to use Avis' trademark as you have done in this particular piece.

Understandably, trademark law is not within your area of expertise. Therefore, we trust that this was done out of ignorance and not based on an intent to misuse our mark to the benefit of your personal injury practice.

We ask that you remove it immediately and refrain from any similar use in the future.

Having thought about the issue, and discussed it privately with some, and seen public comment from others (see the comments section here, as well as at Trademark Law, 43(B)log, and Bill McGeveran), I am at a loss to figure out exactly how your trademark claim trumps my free speech rights. Since, as you believe, trademark law is not within my area of expertise, and that I am simply ignorant, perhaps now is the time for you to set forth exactly how and why I should surrender my constitutional rights to your company.

So send me a proper cease and desist letter. Set forth for me with specificity your claims of legal superiority. You now have the opportunity to demonstrate your expertise and analysis in this arena since I, as you indicate, am simply too ignorant to know it myself.

Until you do that, however, I will assume your threat is an empty attempt to bully and intimidate. And so, the mark remains on my original post.

Yours,

Eric Turkewitz
(Just a simple personal injury attorney, not a trademark law guru)

P.S. I note that your trademark is now popping up on other legal blogs, so you might want to consider sending cease and desist letters to other attorneys as well.

Labels: First Amendment