Archive for the 'Lawsuit' Category

Sarah Palin’s Defamation Suit Against NYT Tossed: What is the Line Between Biased and Fake News?

Sarah Palin’s defamation lawsuit against The New York Times has failed. U.S. District Judge Jed S. Rakoff dismissed Palin’s suit late August. Palin’s suit focused on an editorial the New York Times published shortly after a Congressional Baseball Shooting in mid-June.

In its opinion column, the editorial board alleged that the 2011 shooting of Rep. Gabrielle Giffords and several others was connected to a map passed around by Palin’s political action committee in 2010. The map showed several electoral districts — including Giffords’ — under illustrated crosshairs. The newspaper issued a correction two days later, clarifying that “in fact, no such link was established.” Shortly after, Sarah Palin filed her suit, seeking damages for the alleged defamation.

Judge Rakoff ruled that Palin’s legal team had failed to put forth plausible evidence of malice, a required element in a defamation suit by a public figure. Malice means that news outlets must knowingly publish false information or acted with reckless disregard for the truth towards public officials. Given the speed of events and the New York Times swift retraction after they discovered their error, it was very unlikely that the newspaper acted out of malice.

Fake vs. Biased News

Judge Rakoff’s ruling might also end threats of future suits by other prominent Republicans to sue “fake news” that print or publish unfavorable stories. The New York Times editorial linking Sarah Palin to the shooting of Representatives Gabrielle Giffors and Steve Scalise was poorly written, since it gave the impression that Palin’s campaign ads were an indirect causation of the Congress Persons’ injuries.

sarah palinThe reaction by many Republicans was to cast New York Times as fake news. Although the editorial lead to conclusions that were outrageous, it should not implicate the newspaper as a whole since the editorial was quickly retracted and the rest of the newspaper maintains an investigative team that has often uncovered real information that is in the public interest.

However, many people, including politicians in office, have confused biased news with fake news. Biased and fake news are not the same. Bias news means that the author has is writing or speaking in a manner that casts his or her “side” in a favorable light. The author is usually making an argument designed to advance some sort of agenda.

However, just because the author is making an argument favorable to his or her objective, doesn’t mean that the facts the author is using are fake. In fact, it’s often to an author’s advantage to use facts that are proven true so that the listener or reader trusts the author. All lawyers write bias legal briefs to advance the interests of their clients. Of course, lawyer’s pleadings are expected to be factually accurate; if a lawyer is discovered lying to the court, there will be consequences.

Fake news, on the other hand, is factually false and/or there is almost no evidence to support the claims. Fake news can be committed intentionally or unintentionally. If it’s the latter, it means the author made a mistake. If a child is taking a math test and answers “2+2” with “five,” the child is wrong, but he isn’t doing it intentionally. It might be reckless if the kid is just guessing what the answers are, but if he honestly believes two and two make five, then it isn’t reckless either. However, if the information is false and the author knows the information is false, then the author is intentionally spreading fake news.

Defamation against a public figure is not just fake news or incorrect news, but intentional or reckless fake news.  Defamation means that the author was spreading fake news intentionally or that the author was just widely speculating without regard to the truth, like the child randomly guessing on a math test.

Of course, there is some overlap. Biased news can be fake. However, non-biased news can also be fake and not all biased news is fake. If this is confusing, here it is broken down:

Non-Biased and Not Fake News is:

  1. Confirmed and collaborated news reports by several respectable news agencies
  2. Basic and easily confirmed facts presented by credible and authentic evidence, such as photographs and sworn testimony
  3. Exhibits entered into legal evidence by a court of law

Non-Biased and Fake News:

  1. Factual errors in news reports
  2. Factual errors in editorials

Biased and Not Fake News:

  1. Most editorials and opinion columns
  2. Legal briefs
  3. Polls with transparent methodology

Biased and Fake News:

  1. Unconfirmed reports which draws conclusions based on inferences and assumptions
  2. Polls with hidden methodology and/or completely one-sided questions
  3. Some editorials and opinion columns

How Does This Work for Real Political/Legal Issues?

Similarly, we could apply this model to address most political and legal issues:

Non-Biased and Not Fake News:

  • Obamacare is the nickname for the Affordable Care Act passed in 2010.

Non-Biased and Fake News:

Biased and Not Fake News:

  • Obamacare will raise premiums for some Americans.
  • Obamacare will expand healthcare coverage for some Americans.

Biased and Fake News:

Obviously separating biased and fake news will not always be easy. However, if we can learn to better examine our public rhetoric, perhaps we will be able to overcome our present political divide. And hopefully, after that, we can avoid any more shootings over political differences.

Class Action Lawsuit for Subway but Not for Equifax, Why?

In January 2013, an Australian teenager shared a Facebook picture of his Subway Footlong Sandwich alongside a measuring tape, showing that the advertised “Footlong Sandwich” was only 11 inches. Class-action lawsuits over false advertising of 11 inch sandwiches were filed by the dozens as lawyers all rushed to the courthouse to get a piece of the dough.

A Milwaukee federal judge approved a settlement that would have given the plaintiffs’ side $520,000 in attorneys fees, $500 for a couple of named plaintiffs, and a court order that Subway change its baking procedures. The catch: Subway had already changed its procedures before the first lawsuits were ever filed. The settlement did next to nothing to actually change Subway’s practices. One of the class members to the case, Theodore Frank, appealed the settlement. The Seventh Circuit overturned the deal.

According to Judge Sykes, the appeals court overturned the settlement because early discovery established that Subway’s baked rolls were almost uniformly within 12 inches. Rolls that were shorter were almost certainly due to minor statistic variance that was unavoidable. More importantly, the Court found that no customer was shorted any food, even if a sandwich roll fails to bake to a full 12 inches. Finally, subway sandwiches are made to order in front of the customer; any discrepancy can be immediately corrected at the counter.

Nevertheless, the class action lawyers who brought the case plan to challenge the appeal. They claim there were Subway memos that prove their case wasn’t a frivolous cash grab. The memos were not part of the public record because the documents were introduced during settlement discussions, where evidence is kept off the record.

class actionThe Value of Class Actions

Proponents of tort reform will certainly jump on this case and this ruling to justify reforming class action suits. Tort reform, at least in the early 2000s, mostly refers to reform of medical malpractice. However, those same reformers would be happy to remove or neuter class actions to the point of impotence.

The Subway case clearly highlights how class actions can be abused. The fact that a few sandwiches are off by an inch due to baking variances while the quality and quantity of the food received remains unchanged is hardly a serious injustice that warrants a court’s intervention. The case would merely be humorous if not for the idea that lawyers were profiting off the case while the consumers they claim to represent were given mere inches of the fees the lawyers received.

However, this Subway case should not bring the extinction of class action suits. In an era when corporations are allegedly neglect or even malicious, removing class action suits would only mean removing one potential tool in checking corporate power. The issue with the Subway case isn’t that the attorneys were paid ($520,000 is on the low end for a case like this), but that the alleged injury seems very trivial. An inch off a sandwich is hardly the end of anyone’s world.

Will Equifax Also Face a Class Action Lawsuit?

On the other hand, a company like Equifax is a more legitimate target for a class action. I’m not suggesting Equifax can be liable for being hacked; that would be like blaming a bank for getting robbed. However, the fact that Equifax knew for weeks that there was something wrong and failed to notify those affected is an egregious breach of public trust. If the hackers had obtained an individual’s information and Equifax had the opportunity to alert that individual to the theft of that person’s information, then Equifax can certainty be liable for that negligence.

Indeed, the use of class actions against Equifax would be solution that both sides of the political spectrum could support. Conservatives are divided on whether to use the heavy arm of the Justice Department to punish Equifax for its failure to report because conservatives prefer to minimize federal power and maximize the free market. The perfect midway point of that discussion would be class actions, private individuals coming together to sue a company instead of relying on the federal government to prosecute criminal indictments.

The only issue is that Equifax’s terms of service requires that individuals waive their right to a class action lawsuit. Class actions can be used against Subway to pay $520,000 in fees to protect a few hundred individuals from 11 inch sandwiches, but millions of Americans can have their private data stolen without ability to bring a class action. If people want to reform to class action, they should start with contracts that hamstring proper usage of these kinds of lawsuits.

Uber Pulls Rider Tracking Feature After Settling FTC Privacy Violations

Over the last couple years, Uber has become virtually synonymous with legal troubles. They’ve faced case after case on everything from employment law to trade secret issues to sexual harassment lawsuits to simple failure to comply with DMV registration requirements. However, their most recent legal hot water has dealt with privacy law, the Federal Trade Commission (FTC), and false representations. Just a few weeks ago, these issues culminated in an FTC settlement agreeing to-among other things-20 years of FTC oversight.

As part of the settlement, Uber has agreed to overhaul their privacy policies and the implementation of those policies. One of the first of these changes has involved the removal of a much criticized rider tracking feature. For a while included a much criticized default feature that tracked user location for five to ten minutes after they got out of the car. You can already see how this might be abused. However, the feature was made even more of an issue by the fact that users had to jump through in-app hoops each time they looked for a ride if they wanted to not be tracked. The feature was apparently meant as a security measure for riders. However, the combination of Uber never really explaining the purpose of the feature to users and-as you’ll see as we discuss the settlement-Uber’s less than stellar track record when it comes to securing user data made pulling the rider tracking a near necessity.

This is likely the first step of many Uber will take in response to the FTC oversight it will face for the next couple decades. Let’s take a look at the problems that got them in this situation in the first place-the charges brought against them by the FTC, exactly what the settlement does, and how you can avoid Uber’s mistakes.

uberThe FTC Charges

The FTC is an agency, created by the Federal Trade Commission Act, with the goal of eliminating unfair competition and promoting consumer protection. They do this in a number of way but primarily by bringing charges against companies that either deceive or treat consumers unfairly. This includes things like false advertising, false business claims, breach of contract, scams, product defects, and more.

In Uber’s case, the charges brought by the FTC dealt with privacy issues. However, privacy at a federal level is a tricky concept. There’s no real guaranteed rights to privacy beyond the expectation of privacy which limits how the government may search and seize you and your property. When it comes to private companies, privacy protections exist but mainly as a web of federal statutes which apply piecemeal to specific situations such as credit reporting, finances, health information, etc. This being said, an enormous number of companies in this day and age have privacy policies which dictate their own stance on how they will behave regarding customers private information. This usually deals with the handling of personally identifiable information-things which can tell people who you are or where you are-rather than more general metadata. However, when a company represents that they will treat private information in a certain way then doesn’t follow its own privacy policies this creates a false representation situation. This was the gist of the FTC’s charges.

First, the FTC charged Uber with misrepresenting the extent to which it monitored its employees’ access to personal information about users and drivers. Second, they said that Uber represented the things they did to protect that information-no surprise given that Uber had an enormous 100,000 user data breach back in 2014.

Uber has said, both through its privacy policy and statements to the press, that they have a strict policy of prohibiting their employees from accessing rider or driver data. This general rule is subject to an exception of legitimate business purposes. However, despite having the policy in place, Uber didn’t take all the steps you would expect to follow through on this promise. They didn’t even have a system in place at all to see if employees viewed personal data until after the privacy policy was published. Even after the system was in place, it was nowhere near large enough or well-staffed enough to keep track of all the employees in such an enormous company. Then, in 2015, it stopped using the system altogether for months on end. This obviously wasn’t in line with what their policy represented, even if they had a system in place the FTC treated their policy promises as false because their infrastructure was nowhere near enough to reasonably follow through on their policy position.

Uber’s privacy policy also included statements about the security measures they provided to their users-encryption, firewalls, and the like. They promised that information would be stored safely and used only for authorized purposes. They promised the most up to date, industry standard, data security measures. They further promised that all personal information was kept secure to the “highest security standards available.” However, in the wake of the Uber data breach, their security measures came across a little lacking compared to their promises. They didn’t use all the security tools available, allowed engineers easy access to data with a single access code, didn’t store any information in an encrypted format until March 2015. Then there was the way the breach itself actually occurred-an Uber engineer posted the single code required for total access to all the information on Git Hub. The FTC felt that, while Uber did take some steps to protect information, they didn’t take reasonably priced security steps that could have prevented the breach-or simply allowed them to live up to their promises. Thus, the FTC brought this as another charge of false representation.

Avoiding Uber’s Mistakes

To make these charges go away, Uber agreed to a settlement with the FTC which forbids them from misrepresenting their privacy positions and security measures, implement a comprehensive privacy policy addressing the security risks they created, and submit to 20 years of FTC audits. If this sounds like a serious blow for a business to take, you’re quite correct. This is just one of the many shakeups Uber is facing, having just recently replaced its original CEO Travis Kalanick with Dara Khosrowshahi. However, they have publically stated a new commitment to improving their privacy policies. What’s more, their mistakes can be instructive for protecting your own business.

First and foremost, if you have a privacy policy follow your own policies. This doesn’t mean just following the letter of your promises. You will be expected to take reasonable steps to implement programs to ensure the protection of private information. This will usually be enough to comply with the basic level of privacy requirements placed on a private business. However, in this age of tech and internet it’s often worth consulting with a privacy professional. What’s more, if you are in a privacy sensitive field such as banking, credit reporting, health care and several other fields, there may be more laws that apply to your business. Uber has been committing an enormous number of resources to ensuring that it doesn’t run afoul of privacy law or the FTC again. Ultimately, this sort of situation is one where an ounce of prevention can be worth more than a pound of cure–protect your company by ensuring you have well drafted policies that you carefully follow.

Texas Voter Discrimination Ruling Stayed By Justice Alito

It hasn’t been a good year in the courts for the integrity of Texas voting. They’ve had their voter ID laws ruled to be made with the purpose of discriminating against minorities and two separate courts have ruled that they’ve gerrymandered their districts to intentionally “pack and dilute” minority votes. One of these gerrymandering cases was upheld as intentionally discriminatory on appeal a few weeks back–placing Texas on a short deadline to fix the districts before next year’s voting took place. The Voter Rights Act (VRA) and a Supreme Court ruling known as Shelby mean that any of these rulings-if they stick-could leave Texas asking for federal pre-clearance for any voting laws they seek to enact. This is important because the VRA was amended a few years back to remove its enforcement provisions-rendering it essentially toothless unless a case like the ones against Texas succeeds. In the wake of these changes, Texas and states passed voting laws that have faced constitutional challenges across the nation.

However, another wrinkle has been thrown into the equation for the most recent court ruling on the gerrymandering cases against Texas. Justice Alito, acting on his sole authority as a Justice of the Supreme Court of the United States, has issued a one sentence order stalling the ruling requiring Texas to change the make-up of some of its districts. This isn’t a ruling of the Supreme Court, but it does indicate that the Supreme Court will be taking a look at the case once they all reconvene.

In order to understand the implications of Justice Alito’s actions, it’s necessary to take a look at the ruling underlying Justice Alito’s actions.

votingThe Underlying Ruling

Gerrymandering in the law operates on a fairly simple principle, creating voting districts with race as the primary consideration, or even just creates a result of diminishing the voting rights of a particular race, is a violation of the Constitution. It is worth noting that, as counter-intuitive as it may sound, there is such a thing as legal gerrymandering. Gerrymandering by political party does not face much of anything in the way of legal repercussions. However, that was not the case here. The court’s three-person panel ruled that the districting was done with the intent and purpose of depriving Latino voters of the ability to elect candidates of their choice.

Texas argued that this could not possibly be the case. After all, the maps were redrawn in 2011-right back when the VRA required Texas to submit voting laws for preclearance due to a history of discrimination-and immediately challenged in court. They lost in court, ruled to be discriminatory, and the court itself redrew the maps. How, asked Texas, could maps drawn by a court be discriminatory?

The answer, according to the court, was that the court in 2011 was essentially forced to do a rush job-and said as much in their ruling. After the original maps were found unconstitutional, both parties offered many compromise plans between them-usually based to some degree on the original maps. Faced with time pressures and an upcoming election that couldn’t proceed without the maps, the court accepted one of these compromises but acknowledged that it only was making a preliminary decision as it had very little time to evaluate the incredibly complicated question of whether a district was drawn in a way that limited the rights of a particular race. Then, in 2013-after the VRA was neutered-a new districting scheme very close to the original scheme-although it implemented parts of the altered version the Court made-was implemented by Texas.

This meant, according to the recent court ruling, that while one district got a pass for following the court’s provisions, most of the districts carried over the discriminatory intent of the original 2011 districts. With this in mind, the ruling required Texas to swiftly change their districts into ones that were not racially discriminatory.

The Effect of Justice Alito’s Order

The stay throws a monkey wrench in the proceedings. However, despite some worrying that the order is an indication that the Supreme Court will overrule the lower court ruling, this is unlikely to be the case. Not only is the order Justice Alito acting on his own, likely to allow the other Supreme Court Justices time to look over the case, the order is also very temporary-only lasting until September 5th after the Supreme Court receives filings from civil rights groups.

What the order does imply is that the Supreme Court will hear this case and decide one way or another. At a minimum, this means that any action on these districts will be delayed for a few months minimum-perhaps even allowing the districts to remain in effect for the 2018 elections. This has the unfortunate side effect of potentially leaving minority voters underrepresented for another full year-an incredible injustice. This stay is early stages for the Supreme Court’s approach here. We won’t know the full extent of what they will do for some time. At this point we can only wait and see if Justice Alito’s order is a temporary roadblock or the end of the line.

The U.S. Supreme Court May Decide the Fate of Google Trademark

Everybody knows Google, much to the pleasure of Google itself. Google is one of the largest brands in the world and the best known. If you’ve used the internet odds are pretty good you’ve been to a Google site. The brand-and their titular search engine-is so ubiquitous that it’s far from uncommon to hear somebody refer to the very act of searching the internet as “googling.” It’s even in the Merriam-Webster  dictionary as a verb meaning to search the internet. This is the product of incredible marketing and market positioning. It also has the potential to shoot Google in the foot.

When Merriam made their changes, Google made a blog post which carefully explained that the addition-while flattering-should exclusively be used when referring to searching the internet with Google itself. This is because of concept in trademark known as genericide-losing trademark protection because your trademark becomes interchangeable in the public’s eyes with the type of product itself. Kleenex, trampolines, elevators, aspirin, cellophane, zippers, thermos, xerox, linoleum, band-aids. All very common products with one thing in common, they were once brand names that were so popular they lost protection by becoming generic terms for the product they are associated with.

Google has long fought, as with their Merriam-Webster post, to maintain their brand in the face of a public that might lead them to genericide through popularity. Now, there’s a chance Google will have to defend its mark in front of the highest court in the land-the Supreme Court of the United States.

googleThe Lawsuit Against Google

The lawsuit currently seeking to be heard by the Supreme Court is already half a decade old. It deals with one Chris Gillespie who registered a whopping 763 domain names following a singular formula-google[insert popular word here].com. Everything from “googledonaldtrump.com” to “googledisney.com.” Google obviously didn’t care for this and hit Gillespie with a cybersquatting complaint. Cybersquatting claims kick somebody off a domain name where they buy it with a bad faith intent to profit off another’s trademark. Gillespie, unsurprisingly, lost his domains. He then appealed saying that Google didn’t properly have a mark in the first place due to genericide. He lost that one too, however, the ruling on the case left room for his appeal to the Supreme Court. To understand his appeal, let’s take a look at exactly how genericide works.

Understanding Genericide

Trademark law itself provides protection to registered words or symbols used to represent a brand of good or service—guarding against others using the mark in a way that could confuse consumers as to source or sponsorship. It does this through trademarks, service marks, and a few other types of mark protection. Genericide, however, is an issue of the strength and registrability of a trademark.

The strength of a trademark is judged by its distinctiveness, the more distinctive the mark the greater protection it receives. A mark with an arbitrary relationship to the good it represents (such as Apple computers) or a totally made up word as a mark (such as Kodak) would receive the strongest protection and can always be registered with the Patent and Trademark Office (PTO).  A mark that suggests a quality of the good it is a mark for, such as Greyhound describing a swift form of transportation, can always receive trademark protection but have less strength than a fanciful or arbitrary mark.

Below these types of marks on the protection totem pole are descriptive marks—marks that actually describe some part of the good or service.  A good example of a descriptive trademark is All-Bran brand cereal, the brand actually describes the type of cereal sold. Descriptive marks may only receive protection so long as the mark is associated with the product or service in the eyes of the public. This is known as acquiring secondary meaning and generally takes some serious marketing and several years in the marketplace.  Five years is a pretty common number to see in relation to acquiring secondary meaning, but it has more to do with the thoughts of the public than any hard and fast period of time.

Finally, the very bottom of heap when it comes to trademarks is—you guessed it—generic trademarks. Generic trademarks are marks that are the common name for the product or service sold.  For example, Bread brand bread would be generic.  Generic marks are can never be registered as protected trademarks in the first place. Genericide occurs, as we discussed above, where the average consumer considers your mark a generic term for an entire class of product or service.

“Googling” something is a common term, it’s easy to see why it might be a target for this sort of lawsuit. However, the courts drew a distinction between how the public uses a mark and how they perceive it.

The Ruling in Favor of Google

Gillespie’s case focused on evidence of how often “google” was used as a verb. It showed rap lyrics using the term as a verb, it showed how often the public used it in that manner, it pointed to the dictionary definition of “googling.” What it didn’t do was show that Google was interchangeable with search engine products.

The court made a new distinction in approaching genericide-indiscriminate versus discriminate use. The determination of genericide hinges on how the public uses and views the mark. The court here made a distinction between whether the public refers to googling in reference to all search engines but with the actual Google search engine in mind or if they are referring to all search engines as Google. The issue was simply that, while Gillespie had quite a bit of evidence of the public using the term “google” to refer to the act of using a search engine. He provided basically no evidence that the term “google” wasn’t used for search engines that aren’t Google. In the case of Kleenex, this was easily proven by the interchangeable use of Kleenex and tissue. Kleenex was a branded adjective describing tissue and people were just asking for a Kleenex-thus generic. Where the term is turned into a verb, the court wasn’t ready to make the same link as a verb didn’t necessarily show the same link.

This didn’t make it impossible to use “verbification” to say something is generic, but the ruling certainly made it a lot harder-much to the pleasure of Google and other brands such as Adobe who are battling genericide as all altered photos are described as “photoshopped.”

This ruling had just enough new law to it to merit an appeal to the Supreme Court, and Gillespie has done exactly that.

Will Supreme Court Hear the Case?

Statistically no. The Supreme Court hears only a very small portion of the cases before it and generally only choose case dealing with unsettled issues of law which impact the entire nation as opposed to evidentiary issues.

However, the lower court ruling-while restricted to the 9th Circuit-has some serious potential impact. Turning brands into verbs is common. Gillespie’s request to be heard by the Supreme Court highlights windexing windows, tasering suspects, and photoshopping pictures. The ruling makes it much harder to consider any of the marks associated with these verbs generic. That’s a serious change in legal approach. The Supreme Court may yet hear the case.

Either way, this is not the first genericide lawsuit Google has faced and is unlikely to be the last. Google has entered common parlance due to its own success. However, they take steps like the response to Merriam-Webster mentioned above to try and ensure they avoid genericide. These are steps you too can take with your own businesses-always using the type of product in conjunction with your brand (Google search engine), always capitalizing your mark when you use it, avoiding using your mark as a noun or verb in your own materials (Google themselves break this rule sometimes by using their name as a verb), and-as Google did-posting materials correcting others where they use your mark as a generic term for your product.