Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

sociallyaware-abajournalweb100-1

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

rubin_aaron_blog_150x150.png

rubin_aaron_common_640x280.jpg

rubin_aaron_heroretina_2700x1160.jpg

rubin_aaron_mobileretina_750x1040.jpg

rubin_aaron_social_600x600.jpg

Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

gallick_lawrence_blog_150x150.png

gallick_lawrence_common_640x280.jpg

gallick_lawrence_heroretina_2700x1160.jpg

gallick_lawrence_mobileretina_750x1040.jpg

gallick_lawrence_social_600x600.jpg

Of Counsel

Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

ramirez_anthony_blog_150x150.png

ramirez_anthony_common_640x280.jpg

ramirez_anthony_heroretina_2700x1160.jpg

ramirez_anthony_mobileretina_750x1040.jpg

ramirez_anthony_social_600x600.jpg

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

Welcome to Socially Aware

240920-socially-aware-header.jpg

Welcome to Socially Aware

240920-socially-aware-header

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

News and Announcements

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides a data-driven look at the Federal Circuit.

Federal Circuitry

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Mofo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

Government Contracts Insights

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

MoFo’s Socially Aware blog provides timely updates and analysis of the many complex and cutting-edge legal and business issues arising out of social media.

Socially Aware

  Linkedin

MoFo LinkedIN

Socially Aware Blog - RSS

Stay Connected

Never miss a post from Socially Aware. Enter your email below to stay up-to-date.

Subscribe

The Law and Business of Social Media

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Web Scraping

Advertising

Antitrust

Arbitration

Artificial Intelligence

Asia

Autonomous Vehicles

Bankruptcy

Big Data

Blockchain

Class Actions

Cloud Computing

Compliance

Contracts

COPPA

Copyright

Crowdsourcing

Cyberbullying

Cybersecurity

Data Security

Defamation

Digital Content

Disappearing Content

Discovery

DMCA

E-Commerce

E-Discovery

E-Personation

Electronic Contracts

Employment Law

Endorsement Guides

Ephemeral Messaging

Ethics

European Union

Event

Fair Use

FDA Regulations

Financial Institutions

First Amendment

Fraud

Free Speech

GDPR

Hacking

Influencer Marketing

Infographic

Internet of Things

Investment Management Law

JOBS Act

Labor Law

Litigation

Live streaming

Marketing

Mobile

Online Contracts

Online Endorsements

Online Promotions

Online Reviews

Patent

Privacy

Product Liability

Protected Speech

Right of Publicity

Right To Be Forgotten

Section 230 Safe Harbor

Securities Law

Social Media Policy

Statistics

Status Updates

Stored Communications Act

Supreme Court

Terms of Use

Trademark

UK High Court

User-Generated Content

Wearable Computers

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

More

Lawrence W. Gallick

2024 Recap: Ten Lords A-Leaping!

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

LinkedIN

We have <a href="../2012/12/03/which-side-are-you-on-employers-and-employees-battle-over-ownership-of-social-media-accounts/">written before</a> about cases involving disputes between employers and employees over work-related social media accounts, but a new case out of Arizona federal court raises issues that appear to be unlike those we have addressed previously.In Castle Megastore Group, Inc. v. Wilson, plaintiff Castle Megastore Group (CMG), a retailer of novelty and adult-themed merchandise, brought suit against three former employees for various causes of action related to the employees’ alleged misuse of CMG’s confidential information. Among its allegations, CMG claimed that one of the defendants, Michael Flynn, uploaded a video of a confidential CMG managers’ meeting to Flynn’s private Vimeo account and shared access to this video with the other two defendants (who had both been fired from CMG prior to the sharing of the video). CMG also alleged that Flynn, after having been fired, changed the username and password of the Facebook page he created for CMG while employed as CMG’s Social Media Specialist.CMG appears to have brought its social media-related claims solely under the <a href="http://www.law.cornell.edu/uscode/text/18/part-I/chapter-121">Stored Communications Act</a> (SCA), a federal statute that provides for a cause of action against anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided; or intentionally exceeds an authorization to access that facility, and thereby obtains . . . access to a wire or electronic communication while it is in electronic storage in such system.”The SCA protects individuals’ privacy in their electronic communications by making it criminally punishable for hackers and other unauthorized individuals to obtain, alter or destroy such communications. The statute, however, also provides relief to aggrieved parties in civil causes of action. The SCA has, for instance, been invoked by employees whose employers have improperly accessed, and read messages from, the employees’ private email accounts.CMG alleged that Flynn violated the SCA when he posted the managers’ meeting on his Vimeo account and when he shared access to the site with the other two defendants. CMG also alleged that the other two defendants violated the SCA when they accessed the posted video.In its ruling on the defendants’ motions to dismiss, however, the court found that, while Vimeo might be an “electronic communication service” within the meaning of the SCA, CMG failed to allege that Flynn lacked authority to authorize others to view his Vimeo account, a required element for SCA liability. Accordingly, CMG failed to state a claim that the two former employees with whom Flynn shared access to the video violated the SCA. Further, while CMG alleged that Flynn was not authorized to have or to share the video, it did not allege that Flynn obtained the video through unauthorized access of an electronic communication service—also necessary to state a claim under the SCA. The court therefore dismissed CMG’s SCA claims related to the uploading and accessing of the managers’ meeting video.Regarding Flynn’s alleged changing of the Facebook account password, the court held that CMG failed to allege facts about the company’s use of the Facebook page from which the court could conclude that the page was an electronic communication service under the SCA. The court therefore dismissed the claim, finding that “[t]he threadbare statement that Flynn changed the Facebook password . . . does not state a claim under the SCA.”With the dismissal of the plaintiff’s SCA claims (the only federal law claims brought in the action), the court declined to exercise supplemental jurisdiction over the remaining state law claims, and granted the defendants’ motions to dismiss the action. In dismissing the case, however, the court granted CMG leave to file an amended complaint. Will CMG be able to re-state its SCA claims so as to address the court’s concerns?  Stay tuned.

More Trouble With Work-Related Social Media Accounts

We have written before about cases involving disputes between employers and employees over work-related social media accounts, but a new case out of Arizona fed

More Trouble With Work-Related Social Media Accounts

The Supreme Court of the United States issued its much-anticipated decision in Kirtsaeng v. John Wiley & Sons, Inc., holding that the “first sale” doctrine protects a buyer or other lawful owner of a copy of a copyrighted work that was lawfully made abroad, following a lawful first sale. The 6-3 decision resolves a contested issue of copyright law on which the Supreme Court had been equally divided 4-4 two Terms ago. Kirtsaeng may be relied upon to protect businesses such as retailers and technology companies that regularly sell copies of foreign goods that contain copyrighted materials.BACKGROUNDJohn Wiley & Sons, Inc. is an academic textbook publisher that sells textbooks both in the United States and abroad. Each copy of its textbooks sold outside the United States contains a disclaimer that the copy may be sold only in a particular geographic region and may not be exported to the United States without permission. The contents of the American version and the foreign versions of the textbooks are essentially equivalent.Supap Kirtsaeng is a citizen of Thailand who moved to the United States to attend undergraduate school. Kirtsaeng’s family and friends in Thailand purchased copies of foreign versions of Wiley textbooks in Thailand, where the textbooks were sold at lower prices than the American versions were sold in the United States, and sent them to Kirtsaeng. Kirtsaeng then resold the copies in the United States, making a profit for himself.Wiley sued Kirtsaeng for copyright infringement, claiming that the importation into and resale of the textbooks in the United States constituted copyright infringement. Kirtsaeng claimed that his activities were protected under the “first sale” doctrine, 17 U.S.C. § 109(a).Section 109(a) provides that “the owner of a particular copy or phonorecord lawfully made under this title … is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”A divided panel of the Second Circuit held that Kirtsaeng’s importation and resale infringed Wiley’s copyrights, holding that the “first sale” doctrine did not apply to copies of American copyrighted works manufactured abroad. The federal courts of appeals were divided over the question whether the “first sale” doctrine protects owners of copies of works that were made lawfully outside the United States. The Supreme Court previously had granted review in Costco Wholesale Corp. v. Omega, S.A., No. 08‑1423, to decide this question. In Costco, however, the Court was unable to resolve the issue because it was divided equally by a 4-4 vote. (Justice Kagan was recused in Costco because she had filed a brief in the case on behalf of the United States when she was Solicitor General, arguing that the Court should not grant review.)THE SUPREME COURT’S DECISIONIn a 6-3 decision, the Supreme Court held in Kirtsaeng that the “first sale” doctrine applies to copies of copyrighted works that were lawfully manufactured outside the United States. The Court explained that the “language of § 109(a) read literally” does not support a geographical limitation to the “first sale” doctrine. The phrase “lawfully made under this title,” the Court reasoned, does not mean lawfully made in the United States, but rather “in accordance with” or “in compliance with” the Copyright Act, wherever the copy was made.Moreover, the Court believed “that Congress, when writing the present version of § 109(a), did not have geography in mind.” Section 109(a)’s predecessor statute referred to works that were “lawfully obtained.” The Court explained that Congress changed that wording to “lawfully made under this title” not to impose a geographic limitation but for other reasons, including to make clear that a lessee of a copy will not receive protection and to exclude copies that were pirated.The Court also was concerned with implications for owners of copies of works, stating that “reliance upon the ‘first sale’ doctrine is deeply embedded in the practices of those, such as book sellers, libraries, museums, and retailers, who have long relied upon its protection.”Justice Breyer delivered the Court’s opinion. Justice Kagan filed a separate concurring opinion, joined by Justice Alito, although both Justices fully joined the Court’s opinion.Justice Ginsburg dissented, joined by Justice Kennedy in full and by Justice Scalia with respect to all but the discussion of legislative history. In their view, “Congress intended to grant copyright owners permission to segment international markets by barring the importation of foreign-made copies into the United States.”KIRTSAENG’S SIGNIFICANCE FOR BUSINESSESKirtsaeng provides a measure of assurance to businesses that distribute products containing components lawfully made abroad. The Court noted that many businesses rely extensively on the “first sale” doctrine to import and sell products that contain copyrighted components: “Technology companies tell us that ‘automobiles, microwaves, calculators, mobile phones, tablets, and personal computers’ contain copyrightable software programs or packaging.” A geographical limitation to the “first sale” doctrine “would prevent the resale of, say, a car, without the permission of the holder of each copyright on each piece of copyrighted automobile software.” Moreover, “over $2.3 trillion worth of foreign goods were imported in 2011,” many of which “bear, carry, or contain copyrighted” materials.The Court’s holding also benefits businesses such as museums, as well as libraries. In reaching its decision, the Court considered the issue that a geographical interpretation of the phrase “lawfully made under this title” might require art museums that display foreign-produced works (e.g., paintings by Pablo Picasso) pursuant to Section 109(c)—which contains the same “lawfully made under this title” language as Section 109(a)—“to obtain permission from the copyright owners before they could display the work … even if the copyright owner has already sold or donated the work to a foreign museum.” Likewise, the Court observed that “library collections contain at least 200 million books published abroad,” and a geographic limitation to the “first sale” doctrine “will likely require the libraries to obtain permission … before circulating or otherwise distributing these books.” Kirtsaeng, as a result, protects these entities with respect to works lawfully made abroad, following a lawful first sale.On the other hand, companies that price products differently across geographic markets may wish to revisit their pricing strategies in view of Kirtsaeng, and may seek to tailor products, where possible, to the needs of a particular region. The Kirtsaeng decision may also impact a company’s decision to distribute content electronically, rather than in print.Finally, while the analysis in Kirtsaeng rests primarily on statutory interpretation of Section 109 of the Copyright Act, it is worth noting that the result in Kirtsaeng is markedly different from the Federal Circuit’s controversial precedent in the Jazz Photo cases on patent exhaustion and will likely reignite the debate in that area.

Supreme Court Holds That “First Sale” Doctrine Applies to Copies of a Copyrighted Work Lawfully Made Abroad

The Supreme Court of the United States issued its much-anticipated decision in Kirtsaeng v. John Wiley & Sons, Inc., holding that the “first sale” doctrine prot

Supreme Court Holds That “First Sale” Doctrine Applies to Copies of a Copyrighted Work Lawfully Made Abroad

According to a federal judge in Oklahoma in Pre-Paid Legal Services, Inc. v. Cahill, simply sharing information about a new job over social media does not mean that you are inviting former co-workers to come join you in violation of a non-solicitation agreement.On February 12, 2013, U.S. District Court Judge James Payne of the Eastern District of Oklahoma adopted Magistrate Judge Steven Shreder’s report and recommendation on plaintiff Pre-Paid Legal Services, Inc.’s motion for preliminary injunction. Judge Shreder, among other things, rejected issuing an injunction against former employee Todd Cahill’s online activities. In doing so, the court held that general posts on a personal Facebook page about a new employer and invitations to former coworkers to join him on Twitter did not violate Cahill’s non-solicitation agreement.Cahill was originally hired as a sales associate for Pre-Paid Legal Services, now known as LegalShield. Like Amway, LegalShield generates sales through its <a href="http://en.wikipedia.org/wiki/Multi-level_marketing">multi-level marketing program</a>. Sales associates are rewarded not only for selling the product, but also for building their own team of junior sales associates. A percentage of every sale made by a recruit accrues to the associate who recruited them.LegalShield tracks the contact information and performance statistics of each associate’s “downline,” the network of recruits, using a password-protected site. Cahill supplemented these resources with private Facebook pages of his own creation, to better communicate with the top sellers in his downline.Cahill thrived at LegalShield, rising from sales associate to regional manager and eventually becoming a regional vice president. Upon promotion to regional manager, Cahill signed an agreement that included a non-solicitation provision.In 2012, Cahill decided to leave LegalShield to work with a skin-care company called Nerium, also a multi-level sales firm. Notwithstanding his non-solicitation agreement, he met with other top-performing sales associates at LegalShield and urged them to join him when he left for Nerium. On August 10, 2012, Cahill called a meeting of high-ranking associates, told them of his imminent departure, and invited the curious to email him about his new plans.The following day, Cahill emailed his resignation letter, and LegalShield cut off access to his downline through its site. With the exception of a final posting to the private Facebook pages that he had set up, Cahill’s relevant social media activity extended only to general updates on Facebook about his new job, and invitations to former coworkers to join Twitter.In response to LegalShield’s request for a preliminary injunction, the court barred Cahill from direct contact with current LegalShield employees, as his in-person soliciting was undisputed. LegalShield, however, also requested that the court find that Cahill’s social media activity constituted impermissible solicitation.The court examined Cahill’s activities in light of the defendants’ behavior in two other non-solicitation cases involving social media. In <a href="http://www.in.gov/judiciary/opinions/pdf/06301103par.pdf">Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp.</a>, the court found that a job posting on a LinkedIn page did not constitute “solicitation” because the initial contact came through “a publicly available portal of LinkedIn.” The fact that the defendant, Hypersonic, had publicly posted a job listing that an Enhanced Network employee found did not rise to the level of solicitation.Similarly, in <a href="http://www.scribd.com/doc/113917571/Invidia-LLC-v-DiFonzo">Invidia, LLC v. DiFonzo</a>, the court held that “friending” a former employer’s customers on Facebook did not constitute impermissible solicitation. There the court stated, “one can be Facebook friends with others without soliciting those friends to change [business].”In the instant case, the court compared the facts of Invidia and Enhanced Network to Cahill’s behavior and found his actions were even more general. Cahill discussed his new employer in personal Facebook updates, which were directed to his friends at large, and invited former coworkers to sign up for Twitter. The court found that neither act was sufficiently direct to constitute solicitation, and LegalShield offered no evidence that Cahill’s posting would cause irreparable harm or had caused a LegalShield employee to change jobs.The court did not say that the use of social media—as opposed to traditional means of communication—can never be a means of solicitation. The court left open the possibility that social media behavior that had the effect of targeting or soliciting employees, even absent direct messaging, could be prohibited. It remains possible that impermissible solicitation may be only a tweet away.

L.W. v. Snap Inc.,  675 F. Supp. 3d 1087 

Wamai v. Industrial Bank of Korea , 2021 WL 3038402 

In re Maxus Energy Corp.

In re Energy Future Holdings Corp.

James Paul McCartney v. Sony/ATV Publishing LLC

NFL Enterprises LLC v. EchoStar Satellite LLC

VOOM HD Holdings LLC v. EchoStar Satellite LLC

Change Healthcare Operations, LLC v WebMD Health Corp. 2017 WL 6610411  

Register.com, Inc. v. Verio, Inc.

Komag, Inc. v. Asahi Glass Co. Ltd.

Asante Techs. Inc. v. PMC–Sierra, Inc.

Biovail Corp. v. S.A.C. Capital Mgmt. 2009 WL 2844404 

Multi–Faceted Investigation of University Grants

Confidential International Arbitrations

lawrence_j_blog_150x150.png

lawrence_j_common_640x280.jpg

lawrence_j_heroretina_2700x1160.jpg

lawrence_j_mobileretina_750x1040.jpg

lawrence_j_social_600x600.jpg

Alex advises on all aspects of complex commercial litigation in federal and state trial and appellate courts and in arbitration. He has represented U.S. and international clients in actions involving 

J. Lawrence

J. Alexander Lawrence

Can Touting Your New Job on Social Media Sites Violate a Non-Solicitation Agreement?

According to a federal judge in Oklahoma in Pre-Paid Legal Services, Inc. v. Cahill, simply sharing information about a new job over social media does not mean 

Can Touting Your New Job on Social Media Sites Violate a Non-Solicitation Agreement?

Massachusetts appears to have followed California’s lead in opening a litigation floodgate over ZIP code collection at the point of sale. In 2011, the California Supreme Court held in Pineda v. Williams-Sonoma Stores, Inc., 246 P.3d 612 (Cal. 2011), that a retailer illegally collects personal identification information (PII) when it requests and records ZIP codes from customers paying by credit card. More than 240 class action lawsuits followed.The Massachusetts Supreme Judicial Court’s recent opinion in Tyler v. Michaels Stores, Inc. (No. SJC-11145) could bring a similar wave of litigation. The Tyler opinion strongly suggests retailers operating in Massachusetts should end the practice of collecting ZIP codes during credit card transactions, and foreshadows future litigation based on this practice. Like the Pineda court, the Massachusetts Supreme Court concluded that a ZIP code constitutes PII under Massachusetts’s credit card PII statute, G.L. c. 93, § 105(a) (“the Credit Card law”). More important for retailers, however, is the Court’s ruling that a plaintiff may bring an action for violation of privacy rights absent identity fraud. This ruling could make Massachusetts the next venue for an explosion of “ZIP code” litigation, and, as we note below, provide reason for retailers to review PII collection policies nationwide.Massachusetts’s Credit Card law, which closely tracks California’s Song-Beverly Act, prohibits businesses “that accept[] a credit card for a business transaction” to “write, cause to be written or require that a credit card holder write [PII], not required by the credit card issuer, on the credit card transaction form.” PII is defined as including, but is not limited to, a credit card holder’s address or telephone number. Similar to California’s statute, the Credit Card law does not apply where a business asks for PII for “shipping, delivery or installation of purchased merchandise or services or for a warranty when such information is provided voluntarily.” A violation of the Credit Card law constitutes an unfair and deceptive trade practice, as defined in G.L. c. 93A, § 2.The March 11, 2013 opinion came in response to three questions certified by the United States District Court for the District of Massachusetts, where the Tyler case was pending. Plaintiff Melissa Tyler brought the putative class action claiming, among other things, that Michaels collected her ZIP code and then used her name and ZIP code to figure out her address for marketing purposes. While the district court granted Michaels’s motion to dismiss, the court agreed to certify three questions to the Massachusetts Supreme Court:<ol><li>Does a ZIP code constitute PII under the Credit Card law?</li><li>Can a plaintiff bring an action for such a privacy right violation absent identity fraud under the Credit Card law?</li><li>Do the words “credit card transaction form” refer equally to an electronic or paper transaction form under the Credit Card law?</li></ol>Looking at the text of the statute and its legislative history, the Massachusetts Supreme Court determined that the principal purpose of the Credit Card law “is to guard consumer privacy in credit card transactions,” and answered all three certified questions in the affirmative (Slip Opn. At 4,6). Like the California Supreme Court in Pineda, the Massachusetts Supreme Court reasoned that a ZIP code is PII because a ZIP code, when combined with the consumer’s name, provides retailers with enough information to identify the consumer’s address or telephone number, “the very information [the law] expressly [prohibits]”(Id. at 4).The Massachusetts Supreme Court’s answer that a plaintiff may bring an action for violation of the Credit Card law absent identity fraud is important for retailers, as it opens the door to litigation based on a wide range of injuries (or lack of actual injuries). To bring a claim, the Court instructed plaintiffs to allege a “separate and identifiable ‘injury’ resulting from the allegedly unfair or deceptive conduct,” and provided two examples of such injuries: (1) “actual receipt by a consumer of unwanted marketing materials as a result of the merchant’s unlawful collection of the consumer’s [PII]” and (2) “the merchant’s sale of a customer’s [PII] or the data obtained from that information to a third party”(Id. at 5-6). These examples flowed directly from the Court’s conclusion that the primary purpose of the statute is to protect consumer privacy, not to protect against identity fraud.While these types of injuries may now suffice to justify actions in Massachusetts state court, it remains to be seen whether they will satisfy Article III, which governs standing in federal court. Regardless, the Tyler decision creates a definite litigation risk for retailers in Massachusetts for alleged violations of the Credit Card law, which provides for damages and reasonable attorneys’ fees to successful plaintiffs. Even if the aftermath of Tyler puts retailers in the same position as Pineda put retailers in California, there are strategies under Massachusetts law that retailers can deploy to minimize exposure.While two state decisions hardly make for a trend, the writing certainly appears to be on the wall that courts may view ZIP codes as PII, particularly given the rise of privacy litigation in recent years. Because many states have statutes on the books like California’s Song-Beverly Act and Massachusetts’s Credit Card law, the time may be right for retailers and other businesses to review ZIP code (or PII) collection policies more widely.

patel_purvi_blog_150x150.png

patel_purvi_common_640x280.jpg

patel_purvi_heroretina_2700x1160.jpg

Purvi Patel

It’s Déjà Vu All Over Again: Massachusetts Allows Actions for Violation of Privacy Rights Based on Collection of ZIP Codes