Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

  • Does Unfriending Equal Bullying?

    Sep 28, 2015
    I saw this headline this morning:  Facebook 'Unfriending' Can Constitute Workplace Bullying, Australian Tribunal Finds. It’s from this article.  I couldn’t help but wonder if the headline could possibly be accurate.   It seemed a bit extreme to me.  

    I adopted a personal Facebook policy about one year ago.  It is relatively simple.  If you make too many uninformed comments on a regular enough basis, I unfriend you.  I got tired of engaging in pointless discussions over social, political and sports related issues so I stopped taking the bait.  And I found that unfriending annoying people greatly reduced my stress level.  I have invoked the policy 4 times since I implemented it.   

    But I never considered myself a bully anytime I hit the “unfriend” button.  That may be in part because I don’t make any pronouncement at the time of the unfriending.  It’s all pretty low key.  I’m not out to hurt anyone’s feelings, it’s really more about reducing stress and not gathering any more evidence that the offending parties are ignorant blowhards.   

    But to lessen my concern over the headline, I did consult with my partner Julie Pugh.  And, as always, Julie explains it well.  In her very own words:  

    The click of a button is one factor that can be cited as supporting evidence of bullying behavior, but the simple act of “unfriending” will not constitute bullying. There is also case law that states a simple inability to get along will not give rise to legal liability (as in, being a jerk does not qualify as a protected class).  

    So, does my policy make me a bully (although I’ve never invoked it against a co-worker)? Probably not.  If it were part of a bigger pattern, perhaps.  But it goes to show once again the increasingly prominent role social media occupies in almost any legal analysis.  And a lawyer dealing with inappropriate work place behavior (on either side of the case) would be wise to investigate the client’s social media usage for potential red flags.    
    Go comment!
  • The Song Remains the Same

    Sep 24, 2015
    What is it about coal companies that causes them to have the sensitivity of an adolescent school girl?  Last Spring I wrote a column about Robert Murray  and several of his energy companies filing a libel lawsuit that was so ridiculous it led to an Ohio Appellate Court calling on the Ohio Legislature to pass anti-SLAPP legislation to stop others from trying the same tactic.  That led to one of Murray’s lawyers writing a column saying I didn’t know “Jack” (clever) about the case.   

    Now the Peabody Energy Corp. is trying to make the Murray folks look reasonable by comparison.  Peabody recently filed a motion to strike from a federal lawsuit lyrics from the John Prine song “Paradise.”   Lawyers for the plaintiffs included these lyrics in the introduction to their complaint:  

    “And daddy won’t you take me back to Muhlenberg County

    “Down by the Green River where Paradise lay?

    “Well, I’m sorry my son, but you’re too late in asking “Mister Peabody’s coal train has hauled it away.”

    Now, I could understand if this guy was upset:    

    But I don’t quite get why Peabody Energy felt the need to file a motion in federal court over some words in a complaint.  Neither did Magistrate Kelly Rankin, who denied the motion.  In her view, while the song lyrics add little if any relevant information to the complaint, they weren’t so disconnected, inflammatory or prejudicial as to merit removal.  And for good measure, she noted: “Furthermore, as the lyrics have existed since 1971, it is difficult to see how the inclusion of the lyrics in plaintiff’s complaint prejudices defendant Peabody to a greater extent.”  In short, she invoked the spirit of the Eagles song “Get Over It.”   

    The irony of course, is that if the Peabody lawyers were concerned with the connection between the lyrics and their client’s company, they have now ensured that many, many more people will see it than if they merely left well enough alone.   The dozens of people who read my blog for example would never have heard about this but for their motion.  They may want to study up on another singer – specifically Barbara Streisand. And the effect that bears her name.
    Go comment!
  • Useful Legislation. Seriously.

    Sep 21, 2015
    Who says the United States Senate is hopelessly gridlocked and unable to pass meaningful legislation if their collective lives depended on it?  These folks for one.   But an exception to the rule may be on the horizon.  Republican John Thune, a Republican  from South Dakota, is co-sponsoring a bill with Brian Schatz, a Democrat from Hawaii that is intended to protect online reviewers, and ultimately, online reviews.  

    The bill is called the Consumer Review Freedom Act.   Under the bill, any contract provision that restricts or penalizes consumers for writing reviews is declared void.  And to put a few more teeth in the bill any such clause would be considered an unfair and deceptive trade practice, subject to enforcement by the Federal Trade Commission.      

    The bill is intended to put an end to practices like these.   According to Senator Thune, “Online customer reviews have become an integral part of not just e-commerce but consumer choice everywhere,” Thune said. “This free market system, which empowers customers, cannot thrive if reviewers face intimidation against airing truthful criticisms. The Consumer Review Freedom Act protects the rights of reviewers, review readers, and those business owners who embrace the reality that they are accountable to customers.”   

    Hear, hear.  The statute is necessary because in this instance, the First Amendment doesn’t apply.  The First Amendment prohibits the government from regulating speech, but it doesn’t stop private parties from entering contracts that limit what a party can say.  Let’s hope this can actually get passed.  Gridlock or no gridlock.
    Go comment!
  • Victory for YELP - What Part of "Volunteer" Don't You Get?

    Sep 18, 2015
    A federal court in the Northern District of California recently dismissed a potential class action brought by “employees” of Yelp asking the court to find under the Federal Fair Labor Standards Act that Yelp’s reviewers are employees entitled to compensation.  The Court wisely dismissed the case before it went any further. But the court’s decision demonstrates how plaintiffs can occasionally resort to, let’s say, “clever” pleading to try to keep a case alive.   

    Yelp is an online review site. As the court describes it. Yelp “provides a search function that allows users to locate reviews of businesses in a given geographical area, categorized by the type of business and services offered.”  

    The plaintiffs in the case filed a complaint in which they alleged they’d been “employed” to write reviews and later “fired.”  All of this, they contend was done without Yelp paying them any wages.  Yelp filed a motion to dismiss the complaint, based largely on the contention that the reviewers were in no way employees.   

    As a general rule, courts considering a motion to dismiss are required to accept as true the plaintiff’s allegations in a complaint.  But that rule does not require the court to accept whatever “labels and conclusions” the plaintiff chooses to use.  So, the plaintiffs use of the term “employee” to describe their relationship with Yelp was a label, not a fact.  And it was the facts that tripped the plaintiffs up.  

    In fact, the plaintiffs weren’t ever “hired” – they signed up for a Yelp account and began submitting reviews.  And their “firing” consisted of having their accounts closed for violating Yelp’s terms of service.   In the court’s view, “plaintiffs . . . contribute reviews under circumstances that either cannot be reasonably characterized as performing a service to Yelp at all, or that at most would constitute acts of volunteerism.”   

    In short, just because you call yourself an employee doesn’t make it so.  And the court wisely ended this foolishness early in the process.   
    Go comment!
  • I Ain't Mything You At All

    Sep 15, 2015
    I’ve had a number of folks tell me my blog is not nearly as boring as they expect from a lawyer.  So, uh thanks.  Now imagine a blog written by a government lawyer.   Pretty bleak, huh? Guess again.  Lesley Fair is an attorney with the Federal Trade Commission,  and she writes a genuinely entertaining blog on the issues she sees from her perch in Washington, D.C.   

    Her most recent post is a really illuminating discussion on the FTC’s endorsement guidelines and some myths surrounding them.  It’s worth the read.  Very simply, the FTC requires that bloggers disclose any connection with the brand.  Which means, among other things,  that bloggers who write about products to disclose that they received one for free.  It also means if you’re employed to market a product, and you write a blog singing its praises, you’d better let your readers know about it.   

    So what are the “myths”?    How about the myth that so long as the blogger sincerely believes what he says there’s no need to disclose the connection?  That’s a myth.  It’s necessary to be honest in an endorsement, but it’s not sufficient.   If you’re an endorser the FTC requires you to be honest and transparent.  Batting .500 is not good enough.  

    Another myth? The notion that the FTC requires some sort of mandatory language detailing the connection.  Actually, there are no magic words.  Substance prevails over form.  Which pretty much covers the next myth too.  The disclosure can’t be buried in a link or otherwise in the fine print.  So don’t waste your time looking for the magic FTC words, but also don’t waste time scheming how to hide whatever words you actually choose.  Let you readers know.  Believe me disappointed readers are much less of a hassle than an angry FTC.  Readers don’t have subpoena power!
    Go comment!
  • Peoria - The City That Overreacts

    Sep 11, 2015
    A recent news report about a settlement between the city of Peoria, Illinois and the America Civil Liberties Union cause me to look up the origin of the name “Peoria.” It comes from a Native America Tribe. I wanted to check to see if the word originally meant “overreaction.”

    Because the lawsuit was all about a mayor losing his cool over a joke. Seriously. In March 2014 a guy named Jonathan Daniel created a Twitter account called “@peoriamayor.” Daniel used the account to portray Peoria Mayor Jim Ardis as a boozing womanizer. I know. I have a hard time imagining a politician being a boozing womanizer too. But be that as it may, Mayor Ardis didn’t see the humor in the parody account. Not at all. And he had the resources to do more than stew about it.

    Ardis ordered the Peoria police to do something to put an end to the account.  The dutiful cops charged Daniel with violating a state law prohibiting the “false personation of public officials.” Using that charge, they raided Daniel’s home, seized a number of electronic devices and took him into custody. The Illinois State’s Attorney, apparently serving as the adult in the room, declined to prosecute. The State’s Attorney no doubt concluded the statute was designed to prevent people from impersonating police officers and other officials for some nefarious purpose – it wasn’t written to criminalize political satire. And even it was, the First Amendment would apply.

    But that didn’t end things. Daniel, represented by the ACLU, sued Ardis and the city for violating his First and Fourth Amendment rights. The defendants filed a motion to dismiss the suit, which the judge, apparently one more sensible person, denied. Thereafter, Peoria and Ardis agreed to pay $125,000 to settle the civil suit. The Peoria City Council also issued a policy directive recognizing that parody and satire are protected by the First Amendment. Better late than never I suppose.

    I am consistently amazed at how people, including government officials, become so easily unhinged over snarky social media postings. And in all too many cases, they make it worse by taking some sort of legal action, which typically fails. I don’t know if Mayor Ardis is a drinker or a womanizer, but I do think he needs to work on his impulse control.
    Go comment!
  • I Still Want to Be Like Mike

    Sep 09, 2015

    Michael Jordan recently enjoyed a payday nearing almost $9 million. But he didn’t earn it on a basketball court, a baseball diamond or even a golf course. This payoff came in a federal district court.

    Jordan successfully sued Dominick’s, a Chicago area grocery chain when it placed this ad:

    in a Sports Illustrated special commemorative issue celebrating Jordan’s induction in the Basketball Hall of Fame. The thing is, Dominick’s never bothered to get Jordan’s permission to use his name.

    Jordan sued the grocer for violating his right of publicity – arguing that another person can’t profit by using Jordan’s name or likeness in an ad. The law is based on a the notion that Jordan has the right to control his name and likeness – meaning he and he alone gets to decide how it gets used, and if it gets used, how much he gets in return. Of course, there was nothing in the ad that suggested Jordan was endorsing Dominick’s and an argument can be made that a corporation has as much right to congratulate a celebrity as anyone else. But including those well wishes in an ad that offers $2 off on steaks is asking for trouble. And in this case, a lot of trouble.

    But Jordan is involved in another lawsuit with Jewel-Osco arising from this ad in the same Sports Illustrated:  

    This ad is a little different in my view, because it is more like a simple congratulatory note, and less like a true “buy my product” kind of print ad. I previously wrote on this very topic, wondering whether, in light of the Citizens United and Hobby Lobby decisions – in which the U.S. Supreme Court ruled corporations had First Amendment speech and religious rights --  a corporation had a First Amendment right to run a congratulatory message, free from liability. The answer for now, is apparently no.

    The United Court of Appeals for the Seventh Circuit ruled that the Jewel-Osco ad was not protected by the First Amendment. That case is headed back to the trial court, for a hearing on the merits. Given the finding in the Dominick’s case, I suspect the folks at Jewel-Osco may have that deer in the headlights look that defenders often got when Jordan was driving to the hoop. And as far as a bigger point, advertisers may want to be careful about congratulating athletes. At least without their permission.
    Go comment!
  • Back Page Blues

    Sep 04, 2015
    And before anyone gets to confused, please note I am not writing today about my favorite Byrds song – “My Back Pages.”  

    No, this blog concerns a case from Washington State involving   The opinion I think illustrates the old cliché that “hard facts make bad law.”  And the facts here are indeed hard.  

    The first line of the court’s opinion lays it out pretty clearly:   

    The plaintiffs before us have been the repeated victims of horrific acts committed in the shadows of the law. They brought this suit in part to bring light to some of those shadows: to show how children are bought and sold for sexual services online on in advertisements that, they allege, the defendants help develop.  

    So we’re talking about creepy stuff here.  That’s not in debate.  What is at issue, though, is whether Backpage, as a Web site operator, can be liable for advertisements submitted by third parties.  On its face, it seems like the answer is no.  The federal Communications Decency Act says that a Web site operator cannot be deemed the publisher of content created by a third party.  So, given that third parties clearly wrote the creepy ads, it seems like the CDA would protect Backpage here, whether we like it or not.  

    But not according to the Washington State court.  It denied Backpage’s motion to dismiss, finding plaintiffs presented a question of fact by pleading that Backpage’s rules for posting ads in the “escort” section were nothing more than instructions for pimps to post ads and evade the law.  In plaintiffs’ view, by giving these “instructions” Backpage became a content creator.   

    I am admittedly scratching my head over this one.  Here are the rules in question:  

    Backpage does not allow advertisements on its website to contain naked images, images featuring transparent clothing, sexually explicit language, suggestions of an exchange of sex acts for money, or advertisements for illegal services.  

    In addition,  

    Backpage does not allow "any solicitation directly or in 'coded' fashion for any illegal service exchanging sexual favors for money or other valuable consideration," "any material on the Site that exploits minors in any way," or "any material ... that in any way constitutes or assists in human trafficking."  

    I have a tough time seeing how those rules constitute some sort of “how to” manual.  Is the contention that the rule against “coded” messages really a suggestion that the pimp submit a coded message?  Or is the argument that Backpage is essentially saying, “when you send in an ad soliciting sex for money, make sure you don’t expressly or implicitly ask to exchange sex for money and don’t make it sexually explicit, then we’ll be cool.”  It seems a little flimsy to me.   

    Would the plaintiffs make the same argument if Backpage posted this:  “Backpage will not accept ads that in the judgment of Backpage implicitly or expressly constitute solicitation of sex for money”?  Is that language materially different from what Backpage currently says?  And if the pimp works up an ad that manages to work around the rules, how does that make Backpage the content creator exactly?   

    I’m all for legitimate efforts to crack down on human trafficking.  But I’m not crazy about ignoring federal law to do it.  This court’s good intentions could create a loophole that swallows the CDA.  And that makes no sense.  
    Go comment!
  • No Time Like The Present

    Sep 02, 2015
    This post on techcrunch offends one of my basic writing tenants – avoid easy stereotypes.  And this opening passage indulges in one that is really stale:  

    What’s a tech startup’s most valuable asset? It’s not the seed money. It’s not the workspace. And it’s definitely not the espresso machine or Ping Pong table.  

    Ah yes, every start up is staffed with skinny jean wearing hipsters who work off their caffeine jitters by whacking around a ping pong ball.  The authors almost lost me with this.  But fortunately, I kept reading.  And I’m glad I did.  

    The point of the article is worth keeping in mind.  And it is simply this.  Every start up (heck, every business) should lock up the rights to intellectual property at its inception.  Because you just never know.  As the band Dawes would say, “things happen”: 

    And if you don’t take that advice, – and you let it go, much like some people do with their will -- the techcrunch post suggests some milestones where you might want to revisit the issue.  Like before you fire someone, or when you make a new hire.   

    As the authors rightly point out, failing to address the issue may expose you to Winklevoss like claims on your idea.  And who wants to deal with those guys?

    Go comment!
  • The CDA - A Better Shield Than Sword

    Aug 27, 2015
    Section 230 of the federal Communications Decency Act is a tremendously effective shield.  Web site operators have used it for years now to fend off suits seeking to treat the operator like the publisher of third party content.  Xcentric Ventures – the company that operates the Ripoff Report have thrived under this law.  Disgruntled consumers can post on the site at will listing their grievances against any business.  And while Ripoff Report allows the subject business to post a rebuttal, it removes content only after an arbitration process that requires a $2000 filing fee.  Some people consider that approach a form of extortion.  

    The CDA is a major part of the Ripoff Report business model.  So much so, that the Ripoff Report site contains this proclamation:

    Thinking of suing Rip-off Report? 

    If you are considering filing a lawsuit against Rip-off Report, click here for important information about applicable federal law. Do you really want to sue Rip-off Report? really need to read this link.

    But for all its utility as a defensive mechanism, the CDA is not as useful as a sword as Ripoff Report recently discovered courtesy of a Ninth Circuit Court of Appeals decision.  Xcentric had prevailed in a case filed by a lawyer named Lisa Borodkin on behalf of her clients Raymond Mobrez and Iliana Llaneras. Borodkin’s clients claimed Xcentric extorted money from them in the course of its business. The trial court dismissed those claims at the inception of the case.  It found that Borodkin’s clients had no claim as a matter of law.  The CDA played a large role in the court’s decision.

    Not satisfied with merely winning the case, Xcentric went in for the kill, alleging that Borodkin was liable to it for “malicious prosecution” – essentially bringing a case that had no legal or factual basis.  Xcentric argued that the CDA was so clear that Borodkin couldn’t have had any good faith basis in prosecuting the suit.   The appellate court affirmed a trial court’s finding that Xcentric failed to establish a malicious prosecution claim.  It noted that included in Borodkin’s complaint were allegations that Ripoff Reports own words may have led to the claim against it.  The CDA offers no protection for content supplied by the Web site operator itself.  And to the extent the complaint alleged Xcentric misrepresented the nature of its site. 

    So Xcentric had to be content with merely winning the original lawsuit.  The CDA proved to be the Dennis Rodman of federal law – great on defense, not such an offensive threat. 
    Go comment!
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