JD Supra Hot Docs - Newsworthy Legal Filings From the Source

Electronic Privacy Information Center v. The Federal Trade Commission: Motion for Temporary Restraining Order and Preliminary Injunction

Electronic Privacy Information Center — Fri, 10 Feb 2012 15:46:54 GMT

Case Name: Electronic Privacy Information Center v. The Federal Trade Commission
Document Name: Motion for Temporary Restraining Order and Preliminary Injunction
Post Date: 02/10/2012
Filing Date: 02/10/2012
Document Summary:
EPIC Sues Federal Trade Commission to Enforce Google Consent Order

EPIC today filed a Complaint and a Motion for Temporary Restraining Order and Preliminary Injunction in Federal District Court in Washington, DC. EPIC is seeking to compel the Federal Trade Commission to act prior to March 1, when Google plans to make changes in its terms of service that will make it possible for the company to combine user data without user consent. EPIC alleges that this change in business practice is in clear violation of the consent order that Google entered into on October 13, 2011. The consent order arises from a complaint that EPIC brought to the Commission in February, 2010 concerning Google Buzz and a similar attempt by Google to combine user data without user consent. For more information, see EPIC - In re Google Buzz, FTC - "FTC Charges Deceptive Privacy Practices in Google's Rollout of Its Buzz Social Network."

Please see full Motion for TRO below for more information.

Contributor: Electronic Privacy Information Center [Full Profile | Docs Posted]

Electronic Privacy Information Center v. The Federal Trade Commission: Complaint for Injunctive Relief

Electronic Privacy Information Center — Fri, 10 Feb 2012 15:44:10 GMT

Case Name: Electronic Privacy Information Center v. The Federal Trade Commission
Document Name: Complaint for Injunctive Relief
Post Date: 02/10/2012
Filing Date: 02/10/2012
Document Summary:
EPIC Sues Federal Trade Commission to Enforce Google Consent Order

EPIC today filed a Complaint and a Motion for Temporary Restraining Order and Preliminary Injunction in Federal District Court in Washington, DC. EPIC is seeking to compel the Federal Trade Commission to act prior to March 1, when Google plans to make changes in its terms of service that will make it possible for the company to combine user data without user consent. EPIC alleges that this change in business practice is in clear violation of the consent order that Google entered into on October 13, 2011. The consent order arises from a complaint that EPIC brought to the Commission in February, 2010 concerning Google Buzz and a similar attempt by Google to combine user data without user consent. For more information, see EPIC - In re Google Buzz, FTC - "FTC Charges Deceptive Privacy Practices in Google's Rollout of Its Buzz Social Network."

Please see full complaint below for more information.

Contributor: Electronic Privacy Information Center [Full Profile | Docs Posted]

Prop 8: Perry v. Brown: Opinion Regarding the Constitutionality of Proposition 8

Adrian Lurssen — Tue, 07 Feb 2012 18:09:24 GMT

Case Name: Prop 8: Perry v. Brown
Document Name: Opinion Regarding the Constitutionality of Proposition 8
Post Date: 02/07/2012
Filing Date: 02/07/2012
Document Summary: Copy of the 9th circuit appeals court decision ruling that Proposition 8 is unconstitutional.

Quote: ""Although the constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted…"

Contributor: Adrian Lurssen [Full Profile | Docs Posted]

Kiobel v. Royal Dutch Petroleum Co.: Brief of Amicus Curiae The CATO institute In Support Of Respondents

Cato Institute — Mon, 06 Feb 2012 18:51:57 GMT

Case Name: Kiobel v. Royal Dutch Petroleum Co.
Document Name: Brief of Amicus Curiae The CATO institute In Support Of Respondents
Post Date: 02/06/2012
Filing Date: 02/03/2012
Document Summary:
One of our oldest laws, the Alien Tort Statute (1789), grants federal courts jurisdiction over lawsuits brought by aliens for actions “in violation of the law of nations.” Courts have differed in their method of interpreting this “law of nations”—an old way of saying “international law”—and thus in their decisions on what behavior violates it and the types of defendants who may be liable. Recent ATS litigation has thus ignited a debate over the role of judges in applying international law. Kiobel v. Royal Dutch Petroleum presents the question of whether, under the ATS, the law of nations can be applied against an entity that is not a natural person: a corporation. In this case, 12 Nigerians sued Royal Dutch and its Shell subsidiaries, alleging that Nigerian soldiers committed human rights abuses on the companies’ behalf between 1992 and 1995, purportedly in response to demonstrations against oil exploration. The district court dismissed most of the claims but let certain others proceed. The Second Circuit dismissed the case entirely, holding that the ATS's jurisdictional grant does not extend to cases against corporations, which are not liable for crimes under the law of nations. The Supreme Court agreed to review the case. Cato has now filed a brief arguing that the ATS must be interpreted in a manner consistent with Congress’s original jurisdictional grant. This interpretation, supporting the Second Circuit’s ruling, maintains the Constitution’s separation of powers—which gives Congress the power to determine the scope of federal courts’ jurisdiction. Allowing courts to expand their jurisdiction without Congress’s consent would create a “democracy gap” that would be particularly serious here, where the case involves issues of foreign affairs that are appropriately the province of the political branches. The Supreme Court made clear in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. (1999) that evolving methods of interpreting international law do not inform the ATS’s jurisdictional reach, which has not changed since 1789. Nonetheless, lower courts are split on whether corporations may be liable for the sorts of violations at issue here, largely due to their varied interpretive methods. In our brief, we urge the Court to clarify the proper method of interpreting the law of nations under the ATS. We argue that Judge José Cabranes, a leading international law jurist (and Justice Sonia Sotomayor’s mentor) who authored the Second Circuit’s Kiobel decision, set out the correct interpretive method in an earlier case, Flores v. Southern Peru Copper Corp. (2003). Judge Cabranes’s reasoning in Flores embodied both the guidance that the Supreme Court would give in Sosa v. Alvarez-Machain (2004) and the teachings of classical theorists like Grotius, by defining customary international law as “composed only of those rules that States [countries] universally abide by, or accede to, out of a sense of legal obligation and mutual concern.” Judge Cabranes used as relevant evidence the States’ formal lawmaking actions, such as international conventions that “establish[] rules expressly recognized by the contesting states” and international custom where the States adhere “out of a sense of legal obligation.” He further acknowledged that the method used in 1789 to interpret what comprised the law of nations defined both the claims and the parties cognizable under international law. By looking to the proper sources, Judge Cabranes correctly concluded that corporations cannot be held liable for violations of international law for ATS purposes, and in so doing recognized the constitutional checks that prevent courts from expanding their own jurisdiction.

Please see full brief below for more information.

 

Contributor: Cato Institute [Full Profile | Docs Posted]

Lee v Drake - Cash Money Records, Inc.: Complaint for Music Publishing Royalty Accounting

Tamera Bennett — Tue, 07 Feb 2012 04:37:54 GMT

Case Name: Lee v Drake - Cash Money Records, Inc.
Document Name: Complaint for Music Publishing Royalty Accounting
Post Date: 02/06/2012
Filing Date: 02/02/2012
Document Summary: Grammy nominee Drake has been sued by an ex-girlfriend who claims she co-wrote the hit song "Marvin's Room" and is entitled to part ownership in the copyright in the song; copyright in the sound recording; and payment of songwriter royalties.

The first 30 seconds of the song is a recording of a phone conversation with the ex-girlfriend and plaintiff, Erika Lee. Lee asserts that she and Drake had every intention to write the song together and that her contributions were intended to be incorporated into the final song. Lee contends the intro "phone message" is key to the underlying song.

Lee's complaint is somewhat confusing as issues of ownership of the sound recording are intermingled with claims asserting ownership in the underlying song.

The most interesting thing in the complaint to me is a cause of action for Breach of Fiduciary Duty. Really, songwriters have a fiduciary duty to one another? If a record label doesn't have a fiduciary duty to an artist, do we really think that one songwriter would owe the highest duty of utmost care to a co-writer?

Contributor: Tamera Bennett [Full Profile | Docs Posted]

Landlord bears cost of latent structural defect not cause by tenant alteration unless expressly provides otherwise.: Strict ruling on Landlord responsibility for latent structural defects not cause by tenant alteration

Reuben Ortenberg — Fri, 03 Feb 2012 15:47:36 GMT

Case Name: Landlord bears cost of latent structural defect not cause by tenant alteration unless expressly provides otherwise.
Document Name: Strict ruling on Landlord responsibility for latent structural defects not cause by tenant alteration
Post Date: 02/03/2012
Filing Date: 02/02/2012
Document Summary: Landlord and tenant entered into a lease of commercial space. Tenant took space “as is” and intended to do alteration work to suit its needs. The lease provided that the landlord would not be required to perform any work to ready the space for the tenant, and that landlord would provide a construction allowance to tenant. Tenant was responsible for getting all permits, and for compliance with all federal, state and city regulations, one of which requires landlords to maintain their buildings in a safe condition. Landlord was responsible under the lease for repairs to the building, including the common elements, and structural repairs other than those required by the tenant. Landlord was also responsible under the lease for compliance with all federal, state and city regulations that did not arise from the tenant’s use.
Tenant alteration work disclosed latent defects in structural steel columns. Tenant demanded the landlord remedy the condition at landlord’s expense. When landlord failed to do so, tenant made the repairs and commenced action for breach of the lease, claiming that landlord is responsible for the costs and seeking indemnification. The court below granted landlord’s motion to dismiss, but the Appellate Division, First Department reversed, holding that latent structural defects not caused by tenant’s alteration work is the responsibility of the landlord, unless the lease provides otherwise, which in this case it did not.

Contributor: Reuben Ortenberg [Full Profile | Docs Posted]

Guggenheim Capital v. Toumei: Order Denying Plaintiff's Motion for an Appeal Bond and Awarding Reduced Attorneys' Fees

Ronald Coleman — Sun, 05 Feb 2012 04:16:48 GMT

Case Name: Guggenheim Capital v. Toumei
Document Name: Order Denying Plaintiff's Motion for an Appeal Bond and Awarding Reduced Attorneys' Fees
Post Date: 02/04/2012
Filing Date: 01/31/2012
Document Summary: Order on motions by plaintiffs seeking requirement of $100,000 appeal brief and nearly $700,000 in attorneys' fees and costs in Lanham Act statutory damages case where both final judgment and order awarding attorneys' fees were entered on default.

We entered an appearance on behalf of certain defendants following the entry of final judgment for purposes of post-trial proceedings, including this motion by plaintiffs, which we opposed.

The court denied the plaintiffs' motion for an appeal bond and drastically cut the attorneys' fee award. The court noted that in light of the fact that "(1) most of the defendants never appeared; (2) the case was resolved on the basis of default judgments; and (3) almost no discovery was taken . . . invoices [submitted by the plaintiffs' law firm McDermott Will & Emery] totaling $834,384.66 for 1,600.50 hours worked are not reasonable. The number of hours billed to this matter is excessive, as is the number of attorneys who performed this work.

"Plaintiffs have not explained why it was necessary to assign five partners, two senior associates, and one junior associate to this matter, given that this case was resolved on the basis of default judgments and no discovery was taken. The Court finds that the number of attorneys and the number of hours expended on this case [by McDermott Will & Emery] was significantly in excess of what was necessary to achieve the same results. . . ."

The underlying decision has been appealed.

Contributor: Ronald Coleman [Full Profile | Docs Posted]

John Doe v. U.S. Direct Ins. Co.: Motion and Brief in Support of Motion to Compel Discovery of Plaintiff's Facebook Login Information

Daniel E. Cummins — Tue, 31 Jan 2012 15:35:11 GMT

Case Name: John Doe v. U.S. Direct Ins. Co.
Document Name: Motion and Brief in Support of Motion to Compel Discovery of Plaintiff's Facebook Login Information
Post Date: 01/31/2012
Filing Date: 01/31/2012
Document Summary: Civil Litigators are well aware that there is an increasing trend in Social Media Discovery litigation in the Pennsylvania courts (and nationwide).

Insurance defense counsel Daniel E. Cummins of the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins recently had an opportunity to draft the below Motion and a supporting Brief on a Motion to Compel a Plaintiff to produce his Facebook login information. The discovery issue resolved without the Motion and Brief having to be actually presented the motion in court.

The Motion, Brief, and proposed Order are published here as possible forms for others to utilized when faced with similar Social Media Discovery issues.

Contributor: Daniel E. Cummins [Full Profile | Docs Posted]

Rude Music Inc v Newt Gingrich 2012: Complaint against Newt Gingrich 2012 Copyright Infringement

Tamera Bennett — Tue, 31 Jan 2012 16:54:13 GMT

Case Name: Rude Music Inc v Newt Gingrich 2012
Document Name: Complaint against Newt Gingrich 2012 Copyright Infringement
Post Date: 01/31/2012
Filing Date: 01/30/2012
Document Summary: Newt Gingrich's campaign makes the news twice in a week for claims of copyright infringement of a song. Rude Music Inc., owned by Frank Sullivan, a co-author of the song "Eye of the Tiger," filed a copyright infringement lawsuit in federal district court in Chicago for Gingrich's use of the song on the campaign trail. So long as Gingrich's campaign has secured the necessary public performance license, any song my be played at a campaign event without any additional permission from Rude Music, Frank Sullivan or Rocky Balboa. Rude Music complaint's does raise an interesting point regarding videos of campaign events where "Eye of the Tiger" can be heard. There may be a blush of a valid claim for copyright infringement related to these videos. Reproduction and distribution of the video footage looks a lot less like a "public performance" and more like a synchronization of the song to the other visual images in the footage.

Volcano Records (parent company is Sony), the copyright owner of the underlying sound recording, is not a party to the lawsuit.

Contributor: Tamera Bennett [Full Profile | Docs Posted]

Electronic Privacy Information Center v. U.S. Department of Justice, et al.,: Complaint for Injunctive Relief

Electronic Privacy Information Center — Fri, 27 Jan 2012 17:15:25 GMT

Case Name: Electronic Privacy Information Center v. U.S. Department of Justice, et al.,
Document Name: Complaint for Injunctive Relief
Post Date: 01/27/2012
Filing Date: 01/27/2012
Document Summary: EPIC Files Suit for Documents Detailing Surveillance of Wikileaks Supporters

EPIC has filed suit against the Department of Justice and Federal Bureau of Investigation under the Freedom of Information Act for documents detailing surveillance of Wikileaks supporters. After Wikileaks November 2010 publication of diplomatic cables, the U.S. government opened investigations into Wikileaks supporters and pressured many online donation systems, including Amazon and Paypal to cease processing donations to Wikileaks. In June 2011, EPIC filed Freedom of Information Act requests with the Department of Justice and the Federal Bureau of Investigation. EPIC is seeking documents that detail government requests for information about users of Facebook, Twitter, Paypal and Visa.

Please see full complaint below for more information.

Contributor: Electronic Privacy Information Center [Full Profile | Docs Posted]