Friday, August 30, 2002

Report says most Supreme Court decisions hostile to business
Charleston Daily Mail

"WHITE SULPHUR SPRINGS -- Seventy percent of the decisions important to business made by the state Supreme Court during its last two sessions have a negative impact on business, the West Virginia Chamber of Commerce's Legal Review Team reported today."
Lawsuit seeks to stop grants
Charleston Gazette Online

"Jackson County lawyer Larry Harless said Thursday he will file suit in the state Supreme Court today to block the Economic Development Grant Committee from issuing any of $200 million in lottery bond grants."

Although I am not opposed to seeing the state support economic development in theory, I am opposed to the methods being used. They are un-democratic.

Here in Berkeley County, one area legislator (a state senator from a neighboring county) was trying to capture several million dollars from this committee to bring a NASCAR track to the Eastern Panhandle. Residents in the area being looked at expressed strong opposition to such a project, but because there are no zoning laws in Berkeley County, there really was no formal way to ensure that such a project could not be built. Because the legislator was not even from this county, they couldn't even threaten to vote him out. If a few local landowners with several hundred acres were willing to sell enough land for the track, and they had the support of a few state legislators, they might have been able to build it, even though the majority of the local folks strongly opposed it. This just is not the way economic development should work.

Wednesday, August 28, 2002

Judge Challenges DUI Ruling
Charleston Daily Mail

In an order issued last week, Putnam Circuit Judge O.C. Spaulding refused to follow a State Supreme Court decision prohibiting police from taking blood from DUI suspects who have refused breathalyzer tests.
Open the Door to Electronic Data Discovery

90 percent of all documents prorduced since 1999 were created in digital form. If your document requests are only asking for the paper versions, you may be missing out on important information.

Tuesday, August 27, 2002

The Fourth Circuit Court of Appeals has a reputation for being pro-police. Its decision in Robles v. Prince George's County, Maryland, No. 01-1662 / 01-1728 (4th Cir. Aug. 26, 2002) would seem to perpetuate that reputation. But this time, it does at least dole out a slap on the wrist.

In Robles, the plaintiff claimed that two county police officers violated his state and federal constitutional rights by tying him to a metal pole in a deserted parking lot and abandoning him there for approximately 10 minutes. Apparently, the officers wanted to transfer the plaintiff to a neighboring county which refused to respond to the transfer call. So, to effectuate the transfer, the officers tied the man to a pole in an empty shopping center parking lot and made an "anonymous call" to the police in the other county to come pick the man up, which they did 10-15 minutes later.

The district court granted summary judgment to the officers on the federal claims on the basis of qualified immunity and on the emotional distress claim as a matter of law. A jury found for Robles on the state due process claim and awarded compensatory and punitive damages in the amount of $647,000. The district court granted a remittitur of the damage awards to $240,000, or in the alternative a new trial. Robles opted for a new trial limited to the amount of damages and was awarded $40,000.

On appeal, the Fourth Circuit upheld the grant of qualified immunity to the cops on the federal constitutional claims (the defense was not available on the state constitutional claims), disallowed $10,000 of the punitive damages which it found were improperly awarded against the county, and let stand $5,000 in punitive damages against one of the officers. The total verdict for the plaintiff - $25,000 compensatory and $5,000 punitive.

The Court concluded, "[i]n this unfortunate case, the district court struck a fortunate balance. While plaintiff sought to push the case for far more than it was worth, defendants seemed to believe that characterizing their actions as adolescent somehow relieved them of all responsibility for them. The district judge wisely let neither party have its way."

The moral to the story: if you're going to be a cop, the Fourth Circuit is still the place to work.

Sunday, August 25, 2002

Fourth Circuit Decides Two Cybersquatting Cases

On August 23, 2002, the United States Court of Appeals for the Fourth Circuit released two published opinions in cybersquatting cases. These cases both contain interesting analyses of the nature of in rem jurisdiction and some issues of first impression on the Anticybersquatting Consumer Protection Act.

PORSCHE CARS N. AM., INC. v. PORSCHE.NET, No. 01-2028/73/ (4th Cir. August 23, 2002) [link to PDF]

Porsche Cars North America, Incorporated and Dr. Ing. h.c.F. Porsche AG, a German company, brought an in rem action against 128 Internet domain names related to the name "Porsche" or another Porsche trademark, seeking an injunction that would transfer the right to use the domain names. The Porsche companies contended that some of the domain names violated their rights under the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d)(1) (“ACPA”), and that all of the domain names diluted their trademark in contravention of 15 U.S.C. § 1125(c).

The anticybersquatting statute authorizes in rem jurisdiction over a domain name if personal jurisdiction over the registrant of the domain name is unavailable.

The ACPA permits "the owner of a mark" to "file" an in rem action against a domain name if "the court finds that the owner . . . is not able to obtain in personam jurisdiction over a person who would have been a civil defendant" in an action concerning that domain name. 15 U.S.C. § 1125(d)(2)(A)(ii)(I).

Most of the domain names did not defend against Porsche’s suit. However, two of them registered by Christian Holmsgreen, a British citizen and three others registered by Alan Martin, a Georgia resident, remained in the suit.

The district court found that it had in rem jurisdiction over the British domain names under the ACPA See 15 U.S.C.A. § 1125(d)(2)(A)(ii)(I). Several months later and just three days before the scheduled trial in Virginia, the British domain names notified the court that their registrant had decided to submit to personal jurisdiction in California.

The British domain names contended, as the district court agreed, that "once there is in personam jurisdiction, you can no longer proceed in rem" - no matter when the in personam jurisdiction arises. The district court agreed and concluded that it had lost in rem jurisdiction under the ACPA as a matter of law.

The Fourth Circuit disagreed. It likened the existence of in rem jurisdiction to the existence of diversity jurisdiction: “...a court determines the existence of diversity jurisdiction 'at the time the action is filed,' regardless of later changes in originally crucial facts such as the parties' citizenship or the amount in controversy.”

The Court held that although “early in an anticybersquatting case, the availability of personal jurisdiction may defeat in rem jurisdiction over the name,” like personal jurisdiction, in rem jurisdiction can be waived, and “submission three days before trial by a person who received actual notice of the in rem action nine months earlier is far too late.” The Court refused, however, to state exactly how long is "too long" to wait.

The Court also upheld the ACPA against a Due Process challenge, and held that Porsche could not seek possession of any offending domain name through a trademark-dilution claim under 15 U.S.C.A. §§ 1125(c) and 28 U.S.C.A. §§ 1655.

HARROD'S LTD. v. SIXTY INTERNET DOMAIN NAMES, No. 00-2414, 01-1928 (4th Cir. August 23, 2002) [link to PDF]

This case involved a dispute over Internet domain names between two companies named "Harrods," both with legitimate rights to the "Harrods" name in different parts of the world. The plaintiff, Harrods Limited ("Harrods UK"), is the owner of the well-known Harrods of London department store. The defendants were 60 Internet domain names ("Domain Names" or "Names") registered in Herndon, Virginia, by Harrods (Buenos Aires) Limited ("Harrods BA"). Harrods BA, once affiliated with Harrods UK, is now a completely separate corporate entity that until recently operated a "Harrods" department store in Buenos Aires, Argentina. Herrods UK claimed that Herrods BA was using these 60 domain names to lead consumers searching for Herrods UK to Herrods BA's products.

The Court held that 15 U.S.C. § 1125(d)(2) authorizes an in rem action against domain names based on claims of infringement and dilution as well as bad faith registration. The in rem provisions of the statute meet the minimum contacts requirement of Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). On in issue of first impression among federal circuit courts of appeal, the Court also held that (1) the bad faith provisions of the statute only require proof by a preponderance of the evidence, and not the more stringent "clear and convincing" standard; and (2) the scope of the in rem provision of the ACPA, 15 U.S.C. § 1125(d)(2) not only covers bad faith claims under § 1125(d)(1), but also covers infringement claims under § 1114 and § 1125(a) and dilution claims under § 1125(c).

The opinion also contains a detailed analysis of the evidence of the bad faith registration of the domain names in question, applying the nine factors stated in § 1125(d)(1)(B)(i)(I)-(IX). In the end, the Court affirmed the district court's conclusion that Harrods BA registered 54 of the domain names in bad faith, specifically, that Harrods BA registered them with the intent to use those names to sell goods and services to non-South American consumers seeking to do business with Harrods UK. As to the other 6 domain names, it reversed the district court's grant of summary judgment as premature, and remanded for further proceedings.

Saturday, August 24, 2002

British Telecom loses hyperlink patent case

"The ruling frees all Internet service providers from the threat of having to pay a license fee to BT for hosting pages that use hyperlinks--the building blocks of the Web. If BT had won and license fees had been imposed, the charges would have almost certainly been passed on to ISP customers."

Friday, August 23, 2002

Guidelines Provide Rules for Opening Case Documents While Protecting Private Information
ABA Journal eReport
Clarksburg video poker site closed
Charleston Daily Mail

Here's a follow-up to a post from Monday 8/19/2002. The owner of the convenience store interviewed in the Clarksburg Exponent Telegram article gets busted by the lottery commission for not selling enough beer on the premises of his video lottery store. Apparently, the Lottery Commission has its own ideas about the loophole he intended to exploit.
Gazette Online - Byrd warns about loss of freedom

At a recent library dedication at Shepherd College, Senator Robert Byrd, staunch defender of the constitution, warned Americans of the need to be vigilant in protecting civil liberties.
Law firm tries to end green card shredding
Charleston Gazette Online

A West Virginia law firm throws out an idea to help fight terrorism: collect the information contained in green card applications instead of throwing it out.

Thursday, August 22, 2002

Gazette Online - Judge wants welfare hearing rules changed

Special Commissioner and retired circuit judge Daniel McCarthy has recommended to the State Supreme Court that welfare recipients whose benefits will be cut off by the 60 month rule should receive better procedural due process. He rejected the constitutional challenge to the 60 month rule.

Rory has included a short summary of the decision and link to the full text of the report on the Clerk's official website.
How Much Info Is Too Much Info?

"WASHINGTON -- States have made significant progress in putting their court records online, allowing the public to examine criminal cases, lawsuits and divorces. However, all are struggling to develop privacy standards that keep pace with the technology, says a report released Wednesday."

My two-cents
In the pre-Internet days, there were two basic types of court records -- public and non-public. Privacy advocates were largely unconcerned about the disclosure of private facts in court documents because, for the most part, no one would ever see them except the parties to the case, their attorneys and court personnel. Third parties who were merely curious or "nosey" would not go through the trouble and expense of tracking down paper documents locked away in some distant clerk's office.

The posting of records on the Internet changed all of that. Now, some courts are beginning to post nearly all of their "public" documents online. Anything that would be available to an individual who shows up at the clerk's office is now made available online. But should all publicly-available documents be available on the Internet? Or do we have to make a new distinction between "public" information and "electronically-available public" information?

Privacy advocates are now seeking to limit the posting of otherwise public court records, and the Courts are starting to listen. The problem for the Courts is three-fold: (1) what sorts of information should be withheld from electronically available documents, and (2) how can this information be sorted and (3) who will do the sorting? Some of the sorting can be done by categories of documents. For instance, a court could categorically exempt all bankruptcy petitions from electronic publication because they contain the debtor's social security number. Under PACER, the fact that a petition was filed would be available by looking at the electronic docket sheet, but the petition itself would not be available to download. That's easy enough, but what if the courts merely want to keep private certain types of information (e.g. unlisted telephone numbers and social security numbers, etc.)? Then it will have to either impose upon attorneys to redact this information before filing the document, or have court personnel review every filed document before scanning it to do the redacting. For example, if an attorney is attaching discovery responses to a motion to compel, and the responses contain the opposing party's social security number, the attorney would be required to redact that portion of the document. Another option might be to require that documents containing certain "private" information be submitted under seal (or perhaps with a "do not scan" notation of some sort to the clerk's office?)

Certainly, there are a lot of issues to be dealt with here. Once you start down the road of distinguishing between "public" and "truly public" court documents, lots of new rules and standards must be created.

Wednesday, August 21, 2002

Petitioning and Opposing Certiorari in the U.S. Supreme Court

FindLaw for Legal Professionals

These two articles, authored by Timothy Bishop and Jeffrey W. Sarles of Mayer Brown & Platt, provide a good primer on petitioning the U.S. Supreme Court for certiorari and opposing petitions for certiorari.
WVU Tech to study courthouses

"WHEELING (AP) -- WVU Institute of Technology will inspect every county courthouse in West Virginia before the state funds what could be a $300 million effort to modernize them, a state official said Tuesday." [The Dominion Post]

Tuesday, August 20, 2002

Haiku'da Been a Spam Filter

"Refined poetry and ruthless legal prosecution have been brought together in the latest effort to stop spam.

"A hidden scrap of copyrighted poetry embedded in e-mails will be used to guarantee that any message containing the verse is spam free. And if spammers dare to hijack the haiku, they will be aggressively sued for copyright infringement."
Judge throws out asbestos suit
Charleston Gazette

Judge Copenhaver has rejected a challenge by four railroads to the way West Virginia courts handle lawsuits filed by workers allegedly sickened by asbestos, ruling that the railroads “have an adequate opportunity to raise their constitutional challenges ... with the state trial courts and/or the West Virginia Supreme Court.”
Doctors rally for tort reform
Charleston Daily Mail

"Physicians in West Virginia are intensifying their pursuit of tort reform this week as they rally today during legislative interims in Wheeling and prepare for their annual health-care summit this weekend."

Monday, August 19, 2002

From Letter to a Young Law Student - Don't go to law school: But if you must, take my advice. By Dahlia Lithwick
From Why Do Busted Companies Always File for Bankruptcy on Sundays? By Brendan I. Koerner
Video Lottery's New Venue

Here's a good article in the Clarksburg Exponent Telegram
about how gray machines are getting into West Virginia convenience stores (legally, this time).

Perhaps the most poignant quote is from a convenience store owner who walled off an aisle that used to sell toilet paper and other similar items to create a space for five video lottery machines: "I've made more in two weeks off that aisle than I did in the last year."

Tuesday, August 13, 2002

News: Do we need geeks in government?

This article encourages programmers and other IT folks to stop wasting their time petitioning the government to repeal the DMCA and other stifling legislation and do what they do best -- keep one step ahead of the law.

Thursday, August 08, 2002

W.Va. hunting, fishing licenses available online

Huntington Herald-Dispatch

"CHARLESTON (AP) -- State hunting and fishing licenses are now available on the Internet.

"Gov. Bob Wise on Monday unveiled the Division of Natural Resources’ online hunting and fishing license system, called 'goWild!'"

Here are the links:
Hunting License
Fishing License

Federal judge sends asbestos lawsuits to state court
Dominion Post

"CHARLESTON (AP) -- State judges should be allowed to oversee 350 cases filed against Minnesota Mining and Manufacturing by individuals who charge they were sickened by asbestos, a federal judge ruled Tuesday.

"The ruling allows West Virginia's Mass Litigation Panel to hear on Monday pretrial motions regarding lawsuits filed against 3M and dozens of other manufacturers. A trial is set for Sept. 23."

Wednesday, August 07, 2002

How Companies Can Reduce the Costs and Risks Associated With Electronic Discovery
Modern Practice
FindLaw's Law Practice & Technology Magazine

This article discusses some of the burdens and practical implications associated with electronic discovery--mostly as it applies to corporations that produce and receive large quantities of e-mail on a daily basis.

The author makes a strong case for adopting e-mail retention and destruction systems and policies to avoid spoliation arguments when potentially discoverable e-mails are deleted.

How many of our clients have such systems in place? Better yet, how many of our own offices have such systems in place?

Monday, August 05, 2002

Rory Perry notes that he recently received notice that the W.Va. Supreme Court's decision in SER Mobil, et al. v. Gaughn, et al., which involved the procedures for conducting asbestos mass litigation in West Virginia, was being appealed to the United States Supreme Court. [Rory Perry's Radio Weblog]
Software licensing act amended

"A group of legal experts amended a proposed overhaul of state laws governing software licensing Thursday to address widespread concern about consumer rights that has stalled passage of the bill in most states."

Although Maryland and Virginia jumped on the UCITA bandwagon when the problem-ridden act was introduced three years ago, West Virginia's attorney general balked and the legislature took no action on it. To date, Maryland and Virginia are the only two states that have enacted it. Now that it has been amended to mitigate several of its more egregious provisions, its proponents will again lobby for its passage in the remaining 48 states.

Thursday, August 01, 2002

SMCRA turns 25
The Surface Mining Control and Reclamation Act of 1977 turns 25 years old this year, and surprisingly, neither the coal industry nor the environmentalists seem interested in changing it. In retrospect, some lawmakers criticize the government for its lack of enforcement.