Category: Communication Media & Internet

Cameras Coming to an Illinois Courtroom Near You: What Are the Rules and What Impact Might They Have

Heyl Royster Law firm

Probably everyone saw portions of the O.J. Simpson and George Zimmerman trials, because each was a high profile case broadcasted on live television. Now, cameras are coming to Illinois courtrooms.

In January 2012, the Illinois Supreme Court approved the use of“extended media coverage” in the courtrooms of judicial circuits that applied for such coverage and received approval. “Extended media coverage” essentially means the use of still cameras, video cameras, and audio recording. Over time, 40 Illinois counties have applied for and received approval to allow extended media coverage in their courtrooms.

Attorneys and clients must familiarize themselves with the applicable rules for extended media coverage, and must consider and prepare for the practical implications if cameras will be present at trial. While such media coverage will likely be limited to criminal cases in most instances, it will inevitably occur in high profile civil cases, including some medical malpractice cases. And, if extended media coverage proves to benefit one side or the other over time, attorneys representing those parties will undoubtedly push for more and more coverage.

Who or What is Considered “Media”?

Historically, the media may have been thought of as newspapers and television stations. Today, however, the term media may include biased blogs, social media, or other similar internet media that does not follow basic standards of journalism. Luckily, Illinois rules operate with a more historical definition of media, thus limiting who may request to cover the trial and hopefully ensuring a certain amount of fairness in reporting. In order to be credentialed under the rules, a media member or organization must be regularly engaged in news gathering and reporting, cover judicial proceedings on a consistent basis, and must regularly follow basic journalistic standards for ethics, accuracy and objectivity.

Request for Extended Media Coverage

Extended media coverage is not allowed as of right. Instead, a credentialed media member must make a written request and have that request granted by the court before extended media coverage is allowed. The request for media coverage must be made at least 14 days before the trial or hearing the media member wishes to cover. Further, the written request must be provided to all attorneys. The 14 day requirement allows the defense time to consider the request and make appropriate objections prior to the trial or hearing.

Objection to Extended Media Coverage

Objections to extended media coverage may be raised by the parties to the lawsuit and may also be raised by witnesses. In either case, a written objection is required, but the timing of the objection can differ for parties and witnesses. If a party, i.e. plaintiff or defendant, wishes to object, his written objection must be filed at least 3 days before the beginning of the trial or hearing. Witnesses must be advised by the attorney presenting their testimony of the right to object, and the witness must file his objection before the beginning of the trial or hearing. The rule also allows the judge to exercise discretion to consider objections that do not comport with the timing requirements.

Once an objection to extended media coverage has been made, the judge may rule on the basis of the written objection alone, or he may choose to hear evidence. At his discretion, the judge may choose to hear evidence from a party, witness, or media coordinator before ruling.

It would be inadvisable to object to media coverage in a trial where no member of the media has made a written request for coverage. Such a pre-emptive motion would be likely to draw media interest where none previously existed.

Technical Requirements and Sharing Equipment

Technical requirements for the cameras and other equipment are provided in the rules. The overall theme of these rules is to ensure that any equipment is not obstructive or disruptive during the trial or hearing. The equipment cannot produce distracting lights or noises during operation. Further, no flashbulbs or other lighting may be used to aid the cameras.

The rules limit the amount of equipment allowed in the courtroom, again with the overall goal of limiting obstructions and distractions. A maximum of two still cameras and two television cameras are allowed, but the judge may choose to limit that to only one still camera and one television camera. Only one audio recording system is permitted. Obviously, if multiple media outlets wish to cover the trial or hearing, they may be required to share the video and audio stream under the rules.

What May be Filmed or Photographed

Most trials and other hearings may be recorded, with exceptions limited mostly to the area of family law. Importantly though, several portions of the trial cannot be recorded. Jury selection cannot be recorded at all, and the media is forbidden from filming or photographing individual jurors or the jury as a whole. This is an important protection provided in the rule, because if a juror is assured that he cannot be recorded, the juror should feel less inclined to consider public opinion in deciding the case. Further, the media may not record interactions between the lawyer and client, between opposing lawyers, or between the judge and the lawyers, i.e. sidebars. And, no materials, papers or exhibits can be recorded unless they are admitted to evidence or shown to the jury. These limitations are obviously important to protect the confidential attorney-client relationship, among other things. Finally, no filming is allowed during recesses or in the public areas or hallways, which provides some known off-camera time.

Live Blogging

A judge also has discretion to allow live blogging during a trial or other proceeding, which does not include visual or audio recording. The most typical example of live blogging would be tweeting, but includes any transmittal in text form of testimony, proceedings, and summaries from the courtroom. Again, only credentialed news media are allowed to engage in live blogging.

The rule allowing for live blogging simply says that it may be allowed upon request. It does not provide a time-period within which the request must be made, and does not provide for objections. However, the decision to allow live blogging is left to the “absolute discretion” of the judge, and therefore, it seems reasonable that a judge would also be vested with the authority to allow objections and consider whatever he deems necessary. In any event, an objection can always be stated on the record, whether or not the judge chooses to consider it.

Required Jury Admonishment and Jury Instruction

Jurors cannot be photographed or filmed, with the apparent goal of minimizing any influence or consideration of public opinion. Carrying this theme further, the rules require the trial judge to read an admonishment to the jury at the beginning of the trial and an instruction to the jury at the conclusion of trial regarding the media coverage. Of course, the admonishment and instruction advise the jury that they should not be influenced by or draw inferences based upon the presence of the media. Also, importantly, the admonishment advises the jury they cannot be photographed or filmed as a group or individually, and it advises the jurors to inform the court if the cameras are distracting or cause an inability to concentrate.

Practical Considerations and Potential Effects

At the outset, the lawyer and client should consider whether they do or do not want cameras in the courtroom. In most cases, the defense would prefer cameras not be present so that the trial is focused exclusively on liability and damages, not extraneous issues. If a request for extended media coverage is made, the lawyer and client should ask themselves why the request is being made, and whether a written objection should be filed. If an objection will be filed, however, it should be based upon specific facts or concerns in that case. The Illinois Supreme Court and local judicial circuit have already determined, from a policy standpoint, that cameras should be allowed if the rules are complied with. Therefore, objections based upon general concerns that cameras may be disruptive or may have a negative impact on the jury are likely to fail.

Conclusion

While most defendants and their lawyers are opposed to cameras in the courtroom, it appears that they are here to stay for the foreseeable future. Given the national trend toward cameras in the courtroom and instantaneous media, it’s hard to imagine that these rules will ever be reversed. Therefore, attorneys and clients will need to carefully consider how to operate within the rules in a way that most favors the presentation of their case.

ARTICLE BY

Matthew Thompson
OF
Heyl, Royster, Voelker & Allen, P.C.

Facebook, Inc. v. Rembrandt Social Media, L.P., Granting Request for Rehearing IPR2014-00415

Drinker Biddle Law Firm

Takeaway: Compliance with Section 42.105(b) regarding service by electronic means or EXPRESS MAIL is not required under Section 42.106(a)(2) in order for a filing date to be accorded to a petition.

In its Decision, the Board granted Patent Owner’s Request for Rehearing, but only to revisit the Board’s earlier statement regarding compliance with the requirements for service of a petition.

In its Decision on Institution, the Board had stated that “mailing via FedEx after the cut-off time on Thursday without electing Saturday delivery failed to comply with 37 C.F.R. § 42.105(b).” Patent Owner contended that the Board “misapprehend[ed] the regulatory nature of an alleged error in service of the Petition in this case,” and that the Board misapprehended “whether a failure to effect service on February 6, 2014, was ‘harmless.’”

The Board found Patent Owner’s arguments not persuasive but granted the Request for Rehearing to address the service of the Petition in this case. The Board determined that service of the Petition in this case complied with 37 C.F.R. § 42.106, which states that a filing date will not be accorded until “service of the petition on the correspondence address of record as provided in [§] 42.105(a).”  The Board stated that “Section 42.106(a)(2) does not require compliance with § 42.105(b) for a filing date to be accorded,” and that the Petition was properly accorded a February 6, 2014 filing date in this case.

Facebook, Inc. v. Rembrandt Social Media, L.P., IPR2014-00415
Paper 14:  Decision on Request for Rehearing
Dated: July 31, 2014
Patent: 6,415,316
Before: Phillip J. Kauffman, Jennifer S. Bisk, and Matthew R. Clements
Written by: Clements

ARTICLE BY

Intellectual Property Litigation Drinker Biddle
OF
Drinker Biddle & Reath LLP

How to Get Amazing Attention for Your Firm on Social Media

The Rainmaker Institute

Human beings are wired for loving the spotlight.  When you post something on social media and no one comments or likes, it feels almost like a personal rejection.  And when you’re posting to get attention for your business and no one cares what you’re writing, you are wasting your time.

social mediaOne of the most important ways to get noticed on social media — especially on Twitter — is to make sure your post has a great headline.  There are actually very good psychological reasons for using certain words that makes it almost irresistible for people to click.  Here are 8 proven formulas to craft your headlines around:

  1. Surprise — using words that surprise or startle captures attention because we love novelty.  Words that break the pattern stand out.
  2. Questions — using questions works because a question mark stimulates the human brain to seek an answer.
  3. Curiosity — using incomplete information in your headline to pique curiosity.  A famous example of this is the 1926 ad with the headline, “They laughed when I sat down at the piano…but when I started to play…!”
  4. Negatives — using negative superlatives like “worst” or “stop” intrigues us because we want to know if there is something we shouldn’t be doing.
  5. How to — we all want to get better, so using “how to” in your headline makes a promise of improving the reader’s knowledge.
  6. Numbers — because humans dislike uncertainty, we respond well to numbers in headlines.
  7. Reader referencing — using phrases like, “For those who don’t know what to do after a car accident” or just the word “you” are powerful drivers.
  8. Specifics — quantifiable facts and figures that elicit an image in our head are incredibly intriguing.

Here are more than 180 power words to use in your headlines, courtesy of CoSchedule.com:

power words

ARTICLE BY:

Stephen Fairley
OF:
The Rainmaker Institute

Five Key Takeaways From ICANN 50 in London

Katten Muchin Law Firm

The 50th Meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) took place in London from June 22–26. This marked the first time that an ICANN meeting has been held in London, and also resulted in the largest attendance record for an ICANN meeting, with more than 3,300 individuals registered in attendance. Despite what could be characterized as organized chaos on the ground during the meeting, the following five topics and takeaways began to emerge for brand owners and new generic top-level domain (gTLD) applicants—topics which have only continued to blossom and garner further attention in month following the formal conclusion of the meeting.

1. Geographic Terms Trump Trademarks, According to the Argentina Proposal

In essence, the Argentina proposal seeks to block at all levels of the domain name system, “terms with national, cultural, geographic and religious significance,”; including “regions of countries, regions of continents, sub-regions of countries, rivers [and] mountains, among others …”; subject to registration through relevant national approval. The proposal adopts a highly aggressive posture toward inevitable conflicts between natural, cultural, geographic and religious terms on the one hand and trademarks on the other hand, no doubt in response to ongoing disputes within ICANN over the .AMAZON and .PATAGONIA new gTLD applications.

Contrary to the principle of freedom of use of geographic names, allowing private companies to register geographic names as part of gTLDs [sic] strings creates a high risk for these names to be captured by companies that want to use them to reinforce their brand strategy or profit from the meaning of these names, limiting the possibility of utilizing them in the public interest of the affected communities.

See GAC Meeting: Briefing to ICANN Community – Protection of Geographic Names in gTLDs (June 25, 2014).

Although the national, cultural, geographic and religious terms contemplated are clearly distinct from geographical indications, such as BORDEAUX, FETA or DARJEELING, the two have been conflated and the Argentina proposal has raised similar ire from nations vehemently opposing the .WINE and .VIN new gTLD applications within the Governmental Advisory Committee (GAC). Accordingly, based on serious concerns within the GAC that the Argentina proposal is not rooted in international legal norms, that it hinges upon impractical and ad hoc terminology lists, and that it fails to grasp the purpose or intent of exclusivity pursuant to national trademark legislation, the GAC agreed to take this discussion out from behind closed doors and into a more public forum, via a GAC project team.

Accordingly, it is incumbent upon all stakeholders to question and ultimately oppose the Argentina proposal by weighing in on project team deliberations leading up to ICANN 51 in Los Angeles in October. Indeed, ever-expanding blocks will certainly hamper registry growth and harm contracted parties. Most importantly, myriad companies, and even third-party legitimate users, may ultimately find their famous brands and desired strings wholly excluded from the domain name system.

2. Conflicts Addressed Between Trademark Sunrise Protection and the Domain Name Collision Mitigation Framework

To date, ICANN’s domain name collision mitigation framework has failed to explicitly account for mandatory rights protection mechanisms, such as trademark sunrise and claims periods. Thus, many famous brands experienced frustration leading up to the London meeting, particularly because certain registry operators felt disinclined to allocate names corresponding with famous trademarks during sunrise periods, and instead held them as reserved names on collision block lists—a practice technically permitted within the name collision mitigation framework and Registry Agreement.

In the closing moments of the London meeting, ICANN shocked both the trademark and registry communities when it announced that ICANN would not require collision block list names to be allocated during sunrise periods, and if collision block list names were ever released for registration down the road, then only a 90-day claims period would apply, rather than any sunrise period. Both brand owners and registry operators disagreed with this announcement. Specifically, sunrise allocation stands as the clear preference for brand owners, given the choice between sunrise protection and mere claims notifications. In addition, registry and registrar systems would require substantial and costly retooling in order to ensure adequate claims notices are delivered to registrants beyond original claims periods.

Accordingly, in the wake of ICANN 50, the Registry Stakeholder Group (RySG), Intellectual Property Constituency (IPC) and Business Constituency (BC) all coalesced around a compromise counter proposal, based on the novel set of circumstances created by name collisions and mitigation measures. The compromise proposal prescribed a 30-day period for collision block list names to serve as the functional equivalent to the trademark sunrise period. In addition, the compromise proposal removed the additional 90-day claims period for collision block list names. See Application of Rights Protection Mechanism to Name Collision Block Lists(July 17, 2014). The New gTLD Program Committee (NGPC) within the ICANN Board of Directors stands poised to approve the domain name collision mitigation framework accounting for the compromise counter proposal.

3. The Circumvention of Rights Protection Mechanisms Has Reached a Boiling Point

ICANN leadership has increasingly emphasized its need for specific details in response to complaints from commercial stakeholders regarding the circumvention of intellectual property rights protection mechanisms in new gTLDs. In response, the Business Constituency and the International Trademark Association (INTA) continue to gather specific evidence, screen grabs and industry news coverage expanding upon the ways in which certain registry operators and registrars have skirted the letter and spirit of new gTLD rights protection mechanisms. Some overarching categories of abuse examined to date include inter alia:

  • preregistration offers or allocation of domain names prior to trademark sunrise and devoid claims notifications;
  • extortionate premium names programs or sunrise registration pricing covering famous trademarks;
  • incorrect claims notices integrated with advertisements; and
  • bulk premium name warehousing with registry affiliates.

Indeed, industry news coverage has already flagged a number of these practices in the public arena. See e.g., Domain Incite, GoDaddy Risking Oscars Wrath With .BUZZ Premium Domains (March 7, 2014); Domain Incite, ICANN Smacks New gTLDs For Pre-Sunrise Auctions (June 18, 2014). The goal for commercial stakeholders and INTA will be to educate ICANN on the abusive practices brand owners are encountering in the marketplace, and also demand remedial action, despite the laisse faire approach to pricing taken by ICANN in the past, and also in dealings with mere applicants who have not yet executed a Registry Agreement.

4. Improvements  for a Second Application Round Are Already Under Formation and Consideration

While in London, the Generic Names Supporting Organization (GNSO) Council unanimously passed a motion that: created a discussion group to exchange experiences gained in the 2012 new gTLD application round and identify topics for further study and policy development; solicited subject matter input from the ICANN Board of Directors; and requested a timetable from ICANN staff for the next application round, as well as a status report on pending studies evaluating the 2012 new gTLD application round. Concurrently, the New TLD Applicant Group (NTAG) held a public session in London dedicated to new gTLD program lessons and potential improvements. Commentators generally agreed on the necessity for “a defined and predictable process across the board that works for all applicant categories.”; More pointedly, intellectual property representatives advocated:

  • regulations governing premium names programs and trademark sunrise periods;
  • completely redrafted objection procedures, with the exception of the legal rights objections;
  • affirmations requiring that all domain names be subject to trademark sunrise periods; and
  • protected marks lists, similar to Donuts’ DPML model but less expensive, across all new gTLDs.

Brand owners, prospective applicants in the second round, as well as prospective objectors, are all well-advised to participate in this ongoing discussion, which will no doubt contribute to share guidelines for future new gTLD delegations.

5. ICANN Accountability Has Taken Center Stage in the Internet Assigned Numbers Authority (IANA) Transition

Community discussions to date concerning the IANA transition have concerned the process to transition IANA stewardship, and now increasingly, enhancing accountability to the community. The accountability concerned addresses the absence of the historical contractual relationship between ICANN and the US Department of Commerce (DOC)—more specifically, the theoretical possibility that the DOC could terminate its IANA contract with ICANN to renegotiate terms or engage some other qualified entity. As it stands, accountability generally already exists within ICANN in a multifaceted way, including inter alia:

  • overarching accountability and transparency commitments in the bylaws;
  • well-documented relationships with contracted parties;
  • periodic structural and effectiveness reviews mandated by the Affirmation of Commitments;
  • bylaws-mandated accountability mechanisms, namely the Ombudsman, Reconsideration Requests, and Independent Review Panels;
  • operational information on finances, metrics and performance;
  • rigorous selection processes for ICANN Board members;
  • publication of board resolutions, minutes, and statements of interest; and
  • United States rule of law as a Californian not-for-profit corporation.

In addition to exchanging ideas about improving upon this existing accountability framework, the community in London debated philosophical considerations behind accountability itself. From the debate, one message has been made loud and clear, as recently reaffirmed by U.S. National Telecommunications and Information Administration (NTIA) Assistant Secretary Lawrence E. Strickling, the “important accountability issue will and should be addressed before any transition takes place.”; See U.S. NTIA, Keynote Address By Assistant Secretary Strickling At the American Enterprise Institute (July 22, 2014). In other words, to place the matter in perspective, the IANA transition presents a unique opportunity with unprecedented pressure on ICANN to ensure its accountability framework and mechanisms work for the community—that they are cost effective, expeditious and efficient, while according due process to parties negatively affected by the actions or inactions made by ICANN.

ARTICLE BY

Brian J. Winterfeldt
Of:
Katten Muchin Rosenman LLP

New Mexico Issues a Notice of Proposed Rulemaking to Revise its State Rural Universal Service Fund

Lewis Roca Rothgerber

This past Wednesday, the New Mexico Public Regulation Commission (NMPRC)approved a Notice of Proposed Rulemaking (NOPR) to revise New Mexico’s State Rural Universal Service Fund following numerous workshops and filings by NMPRC staff, the New Mexico Attorney General’s Office, and both wireline and wireless industry participants in Case No. 12-00380-UT. The NOPR will revise 17.11.10 New Mexico Administrative Code (NMAC). The NOPR will be published for comment, with the goal of providing a final rule by October 1, 2014 that will limit the growth of the  State Rural Universal Service Fund (SRUSF), expand telecommunication service to unserved and underserved areas of the state, earmark a portion of the fund for the build out of broadband service, and ensure better accountability for the use of state funds under the program.

The proposed rule was approved 5-0, with two amendments, by the Commission. The NOPR is expected to be filed in Case No. 12-00380-UT on Monday, July 28, 2014. Let’s briefly summarize several key provisions of the proposed NOPR, subject to comments being filed and final approval by the Commission.

First, because many wireline companies have not increased their residential rates in a rate proceeding before the Commission for over 15 years, the benchmark rate for residential customers will increase to $18.09. A company that chooses  not to raise its benchmark would have the difference subtracted from what it would normally receive from the SRUSF.  Second, business rates will be adjusted over a three year period. Third, the formula for reimbursement from the fund will be adjusted to use 2012 voice minutes. Minutes have decreased since the SRUSF statute and rules were established. The decrease has occurred because more people are using wireless phones and other services. This will result in a reduction in payouts from the fund, which is funded by all telephone customers (both wireline and wireless). The end result will be a reduction of about $9 million annually from the current $24 million fund. Because of the size of impact on the payments to the rural local exchange carriers, this would be phased in over several years. Fourth, from the $9 million savings in annual payments, $5 million will be set aside to fund the build out of broadband capable infrastructure as part of the SRUSF. This $5 million broadband fund will be available to both wireline and wireless providers on a project-by-project basis.”. The $5 million must be used for infrastructure, and companies will be required to fund 25 percent of each approved project. 50 percent of the SRUSF project money would be awarded upfront, and the remaining would be provided after progress reports are filed and reviewed by the Commission. Lastly, if a company can demonstrate need, they may come before the Commission for additional funding.

Two additional changes to the proposed NOPR were made by the Commission at the Open Meeting on July 23. First, the Commission approved an annual cap of a 3 percent surcharge on customers phone bills to fund the SRUSF. If expenditures exceed the 3 percent, then the amount of money from the fund will be prorated among recipients. SOLIX, a private company under contract with the Commission, manages the fund for New Mexico. Second, companies will be required to provide detailed information on how they have spent both federal and state universal service funds since the initial rule became effective in 2006. The official comment period and other due dates will be published in an order on Monday, with the goal to have the docket closed by October 15, 2014.

 

Tips on Creating Press Releases Reporters Will Use

The Rainmaker Institute

Business communications firm Greentarget has just released the results of interviews with 100 news reporters and editors in their 2014 Disrupting the Press Release report, and it’s clear what journalists want from firms seeking the news spotlight:  just the facts.

The core findings from this report underscore the need for communicators to understand that journalists want only the vital information, and they want it immediately apparent.  Don’t make them wade through a bunch of legal jargon, boilerplate text or self-serving quotes that sound like no human would ever speak those words.

BIG NEWS. Press Releases

In fact, Greentarget points to a perfect example of the kind of press releases journalists favor:  the ones that come from police departments, who tend to follow TV detective Joe Friday’s maxim of “Just the facts, ma’am.”

And here’s why:  journalists spend less than 60 seconds scanning a press release.  If the value is not immediately apparent, they are on to the next one.  Half the reporters and editors surveyed said that they receive, on average, 50 press releases a week.  The other half said they receive more — up to 100 or more a week.

Beyond writing concise, fact-driven releases, here are some tips on how to grab a reporter’s attention:

  • Email your press releases.  80% said they prefer email.  Not one said they prefer a phone call.
  • Craft a compelling subject line.  79% said a good subject line gets your release opened.
  • Send your release early.  44% said they prefer to get press releases in the morning.
  • Leave out the least important information: boilerplate language, stilted quotations, fluff.
  • Be sure the journalists you are sending your press release to cover that beat and are relevant to their audiences.

The good news is that 88% of journalists said they still find value in press releases, especially those that contain thought leadership (research, surveys, etc.).  Least valuable?  Personnel announcements.

My experience has shown me that many attorneys are notoriously poor press release writers, both in terms of obtuse language and too much filler.  When it comes to press releases journalists will pay attention to, always remember that less is more.  Better yet, have a professional who knows what they are doing write your press releases.

Article By:

Stephen Fairley
Of:
The Rainmaker Institute

Sender Beware: How Your Emails or Letters may be Ruled a Binding Contract

Heyl Royster Law firm

Often when we think of a contract, we think of the multi-page document that is plagued with legal jargon and minuscule print, followed by signature lines, and then sometimes followed by even more documents nicknamed “schedules” or “annexes” that in some way modify or supplement everything in the previous pages. But courts do not necessarily require contracts to take on this formal appearance in order to be enforceable.

In order to create a binding contract, courts require the following four elements: (1) an offer, (2) acceptance of that offer, (3) consideration (meaning payment or other benefit to one party or a detriment to another party), and (4) definite certain terms. If there is no formal, written contract, then courts will require a fifth element: demonstration of an intent by the parties to be bound by a contract. This fifth element is an objective standard, so it has nothing to do with what you actually intended, and everything to do with the language actually used by the parties and how a reasonable person (really, a judge) would interpret it. See Alyasmen Group, LLC v. MS Rialto Raintree Village IL, LLC, 2011 IL App (1st) 102875-U. As a result, courts in Illinois and other states have on more than one occasion found all of these required elements to be present in emails or letters sent by unsuspecting business people.

In one somewhat surprising case, business partners exchanged emails about how to close a joint real estate business venture and distribute earnings from completed real estate transactions. Less than one month after the partners reached an agreement by email as to how earnings would be distributed, the partners signed a written contract with terms different than what was agreed to in the emails. One of those business partners later sued to enforce the agreement set forth in the emails. Upon review of the case, the court determined that the business partners expressed the intent to be bound by the emails where one of them stated in his email, “this is final and agreed to,” and even offered to print out and sign a copy of the emails. Furthermore, the terms of the agreement were sufficiently definite and consideration existed such that the judge ruled the emails could constitute a binding contract aside from the actual signed, written contract. Bryant v. Way, C.A. No. 11C-01-164 RRC, 2011 WL 2163606 (Del. Sup. Ct. May 25, 2011).

Courts seem most eager to rule emails are binding contracts when the emails relate to the settlement of an ongoing dispute. An employer was able to enforce an agreement reached through email with an employee regarding settlement of that employees’ employment discrimination claim in Todd v. Kohl’s Department Store, No. 08-CV-3827, 2010 WL 3720265 (N.D. Ill. Sept. 15, 2010). Similarly, in Protherapy Associates, LLC v. AFS of Bastian, Inc., No. 6:10CV0017, 2010 WL 2696638 (W.D. Va. July 7, 2010), a judge ruled an email setting forth payment terms in settlement of a dispute between a provider of physical therapy services and nursing homes was enforceable against the nursing homes.

Emails are not the only correspondence exposed to potentially being ruled an enforceable contract. Letters of intent generally are used to express the intent of two parties to enter into a written agreement in the future, but these too could be construed as an enforceable contract. The Illinois Supreme Court found that one letter of intent between a general contractor and subcontractor was ambiguous as to whether the parties intended it to be a binding contract and as a result ruled that the trial court must hold an evidentiary hearing to determine whether the letter of intent would in fact be binding. Quake Const., Inc. v. American Airlines, Inc., 141 Ill. 2d 281 (1990). Regardless of the outcome, the parties most certainly incurred legal fees and expenses for a court to rule on whether a letter was an enforceable contract.

So how can you prevent your emails and letters from becoming your next contractual obligation? If you are negotiating or making an offer to someone via email, include a disclaimer in your email that makes it clear the negotiations or offer are contingent on the parties signing a written contract. Don’t bury this disclaimer at the bottom of the email in fine print; intentionally include it in the body of the email so there is no denying your intent. If you are negotiating by a letter of intent or sending some other correspondence such as an offer of employment, use language to make it clear that the letter is not intended to create a binding contract. And as always, if there is any uncertainty, have an attorney do a quick review of before you sign or hit send – your legal fees will be far less for a precursory review than later if you are sued for breach of contract.

Article By:

Stacy Crabtree
Of:
Heyl, Royster, Voelker & Allen, P.C.

European Commission Discusses Big Data

Morgan Lewis logo

The European Commission (the Commission) recently issued a press release recognizing the potential of data collection and exploitation (or “big data”) and urging governments to embrace the positive aspects of big data.

The Commission summarized four main problems that have been identified in public consultations on big data:

  • Lack of cross-border coordination
  • Insufficient infrastructure and funding opportunities
  • A shortage of data experts and related skills
  • A fragmented and overly complex legal environment

To address these issues, the Commission proposed the following:

  • A public-private partnership to fund big data initiatives
  • An open big data incubator program
  • New rules on data ownership and liability for data provision
  • Mapping of data standards
  • A series of educational programs to increase the number of skilled data workers
  • A network of data processing facilities in different member states

The Commission stated that, in order to help EU citizens and businesses more quickly reap the full potential of data, it will work with the European Parliament and the European Council to successfully complete the reform of the EU’s data protection rules. The Commission will also work toward the final adoption of the directive on network and information security to ensure the high level of trust that is fundamental for a thriving data-driven economy.

Article By:

Barbara Murphy Melby
Doneld G. Shelkey
Of:
Morgan, Lewis & Bockius LLP

 

The Walls Shouldn’t Have Ears: Ruling on Eavesdropping Puts Burden of Prevention on Illinois Employers

MUCHblue

Are your employees surreptitiously recording conversations? It’s a frightening thought. But based upon a new Illinois Supreme Court ruling, they are now free to do so. To discourage this behavior, Illinois employers should consider implementing a policy prohibiting such surreptitious recordings.

In People v. Clark, the Illinois Supreme Court ruled that the state eavesdropping statute, which had made it illegal to record conversations in Illinois without the consent of all parties, was unconstitutionally overbroad under the First Amendment. The state Supreme Court reasoned that audio and audiovisual recordings are “medias of expression commonly used for the preservation and dissemination of information and ideas and thus are included within the free speech and free press guarantee” of the First Amendment.

Consider for a moment how your employees might use secretly recorded conversations against you. An employee who has previously complained to your human resources department about another employee who made inappropriate sexist or racist comments, may now freely record all conversations with the colleague, and can use those recordings in a lawsuit against the company. Or, an employee might surreptitiously record everything said during an internal investigation of alleged wrongdoing by the company, and could then provide third parties with those recordings.

Given the removal of statutory barriers, Illinois employers are now forced to create their own systems for preventing this objectionable conduct. One such avenue would be to implement a policy prohibiting the recording of conversations absent the consent of all parties.

Under certain circumstances, employers may want to record workplace conversations. However, the employer, not each individual employee, should dictate when recording conversations is appropriate. Company policy should be unequivocal and forbid the recording of any conversations with colleagues or business conversations with third parties, regardless of where such conversations take place, without the consent of all parties to the conversation.

Note that such a policy would not prohibit an employee from using such surreptitious recordings in a lawsuit against the company, or from sharing such recordings with others, because Illinois law no longer requires the consent of all parties. But with clear guidelines in place, Illinois employers would at least have the option of taking disciplinary action against employees who violate the company’s policy. Employees generally don’t want to risk losing their jobs by violating such rules, and may therefore think twice before making secret recordings.

In response to the concerns of employers and others, the Illinois General Assembly is already considering new legislation that would limit the recording of conversations in a way that does not violate the Constitution. And while Illinois employers should monitor the progress of such prospective legislation, adoption of a company policy prohibiting the secret recording of conversations can help reduce the likelihood of such behavior in the interim.

Article By:

Robert K. Neiman
Of:
Much Shelist, P.C.

Price Comparison Advertising – Massachusetts Law

GT Law

Retailers doing business in Massachusetts should ensure that their price comparison advertising complies with Massachusetts law, particularly 940 C.M.R. § 6.05 (Section 6.05). Otherwise, they may face a civil enforcement action by the Massachusetts Office of the Attorney General (MA AGO), a putative class action brought by a consumer under the Massachusetts Consumer Protection Act – Chapter 93A, or even a civil action brought by a competitor alleging unfair and deceptive trade practices.

What is price comparison advertising?

As defined in Section 6.05, price comparison advertising “is a form of advertising used in the sale of products whereby current prices are compared with the seller’s former or future prices, the prices of other sellers, or other stated values to demonstrate price reductions or cost savings.” According to the regulation, which was promulgated by the MA AGO, (1) “price comparisons based on false, arbitrary or inflated prices or values deceive or mislead the public” and (2) “[a]buse also occurs when sellers fail to disclose material information which is important to enable consumers to understand the price comparison.” To protect against this alleged deception and abuse, Section 6.05 regulates price comparison advertising.

Which practices does Section 6.05 deem unfair or deceptive?

Section 6.05 is divided into various sections (as more fully described below) that provide retailers with guidance concerning what the MA AGO deems to be unlawful. Violations of Section 6.05 may be enforced by the MA AGO in a civil enforcement action as well as by consumers, who may seek to assert claims individually and on behalf of all those “similarly situated” under Chapter 93A.  Massachusetts law even supports civil actions brought by competitors harmed by unlawful advertising practices.

Specifically, Section 6.05 provides that the following are unfair or deceptive acts:

  • Unidentified Price Comparisons. Sellers cannot state or imply that they are offering any product savings by making a direct or indirect price comparison, unless they “clearly and conspicuously”1   describe the basis for the comparison; provided, however, that sellers may claim a savings or make such a comparison (without disclosing the basis) if they are making a comparison to their own “former price” (as determined by Section 6.05(3)).
  • Comparison to Seller’s Own Former Prices. Sellers cannot compare their current price with their own former price for any product, unless such former price is a “bona fide, actual price” that they had offered “openly and in good faith for a reasonably substantial period of time in the recent past” to the public.2
  • Introductory Offers and Future Price Comparisons. Sellers cannot make an introductory offer or compare their current product price with a future product price unless (i) the future price takes effect immediately after the sale and not later than 60 calendar days after “the dissemination date of the introductory offer or price comparison” and (ii) following the effective date of the future price, the product is offered “openly and in good faith” at that price for at least equal to  the period of time offered at the introductory price, but not less than 14 days (except for certain circumstances).3
  • Use of “Sale” Terminology. Sellers cannot use the words “priced for sale,” “on sale,” “sale,” “selling out,” “clearance,” “reduced,” “liquidation,” “must sell,” “must be sacrificed,” “now only $X,” or other terms which state or imply a price savings unless certain specific factors listed in Section 6.05 are met.4
  • Use of “List Price” or Similar Comparisons. Sellers cannot compare their current product price with a “list price,” “manufacturer’s suggested retail price” or similar term, unless the list or manufacturer’s suggested retail price is the price charged for the advertised product by a reasonable number of sellers in the seller’s trade area as of a particular “measurement date” determined by Section 6.05.5
  • Comparison to Other Seller’s Price for Identical Product. Sellers cannot compare their price with another seller’s price for an identical product, unless the stated higher comparative price is at or below the price at which the identical product is being offered in the seller’s trade area as of the “measurement date” or other specifically identified period under certain circumstances.6
  • Comparison to Seller’s Own or Other Seller’s Price for Comparable Product. Sellers cannot compare their price with their own price or another seller’s price for a comparable product unless the comparable product is being offered for sale as of the “measurement date,” or other specifically identified period, at the stated higher comparative price, unless certain factors are met.7
  • Price Comparisons on Price Tickets or Labels. Sellers cannot imprint or attach any ticket or label to a product that contains a fictitious or inflated price which is capable of being used by sellers as a basis for offering fictitious price reductions.8
  • Range of Savings or Price Reduction Claims. Sellers cannot state or imply that any products are being offered for sale at a range of prices or at a range of percentage or fractional discounts unless various factors are met.9
  • Use of Terms “Wholesale” or “At Cost.” Sellers cannot state or imply that any product is being offered at or near a “wholesale” price or “at cost” (or words of similar meaning) unless the price is, in fact, either at or below the price paid by the seller at wholesale, or, in the case of a service, the seller’s cost for the service excluding overhead and profit.
  • Use of Terms “Two for the Price of One” or “Buy One – Get One Free.” Sellers cannot state or imply that products are being offered at the usual price of a smaller number of the same or a different product unless (i) they clearly and conspicuously disclose all material sale conditions being imposed; (ii) the price advertised as the usual price for the smaller number of products is their own “former price”; and (iii) the products are of substantially the same quality, grade, material and craftsmanship as the seller offered prior to the advertisement.
  • Use of Term “If Purchased Separately.”  Sellers cannot make any price comparison based on the difference between the price of a system, set or group of products and the price of the products “if purchased separately” (or words of similar meaning) unless: (i) a reasonable number of sellers in the trade area are currently offering the products as separate items at or above the stated separate purchase price as of the “measurement date”; or (ii) they have actually sold or offered the products for sale as separate items at the stated separate purchase price.
  • Prices for Parts or Units of Sets or Systems. Sellers cannot advertise a price for any product that normally sells as part of a pair, system, or set without clearly and conspicuously disclosing that the price stated is the price per item or unit only, and not the price for the pair, system or set.
  • Gifts. Sellers cannot state or imply that any product is being offered for free or at a reduced price (“a gift”) in conjunction with the purchase of another product unless various factors are met.10
  • Use of Disclaimers. Sellers cannot use a price comparison that is prohibited even if the advertisement contains disclaimers or explanatory language.
  • Are there any other requirements11  that sellers should consider when assessing their price comparison advertising?
  • Record Keeping Requirements. Sellers must maintain records for a period of six months after the last dissemination of subject advertisements and provide those records to the MA AGO, upon request, to substantiate the propriety of such advertisements.12
  • Deceptive Pricing Generally, Examples, and Loss Leaders. Although not contained within Section 6.05 itself, the MA AGO has adopted a more general regulation dealing with “Deceptive Pricing” set forth in 940 C.M.R. § 3.13(2).13  This subsection describes generally what the MA AGO deems deceptive and provides some examples. In addition, related § 3.13(3) prohibits sellers from selling or offering for sale so-called “loss leaders” to induce a buyer to make a purchase of a product sold only in combination with other merchandise on which the seller recovers such loss.
Article By:

Michael E. Pastore
James P. Ponsetto
David G. Thomas
Of:
Greenberg Traurig, LLP

1 “Clearly and conspicuously” means that “the material representation being disclosed is of such size, color, contrast or audibility and is so presented as to be readily noticed and understood by a reasonable person to whom it is being disclosed.” Section 6.01 provides guidelines for determining if disclosures are proper. 

2 Section 6.05(3) lists various factors that are considered when determining whether a “former price” is a “bona fide, actual price.” Section 6.05(4) provides certain safe harbors for comparison prices.  A complete list of factors and a description of the safe harbors are contained in 940 C.M.R. §§ 6.05(3)(a) and 6.05(4), which are available at  http://www.mass.gov/ago/government-resources/ags-regulations/940-cmr-600.html  (MA AGO’s Website). 

3 These circumstances and exceptions for certain offers limited to certain consumers who are deemed “first time purchasers” as defined in the regulation are contained in 940 C.M.R. § 6.05(5), which is available at  the MA AGO’s Website. Also, Section 6.05(5) contains separate requirements for health clubs. 

4 These factors are contained in 940 C.M.R. § 6.05(6), which is available at the MA AGO’s Website. 

5 Section 6.05(7) contains separate requirements for manufacturers or franchisors. Also, the “measurement date” is defined in Section 6.01. 

6 These requirements are contained in 940 C.M.R. § 6.05(8), which is available at the MA AGO’s Website. 

7 These factors are contained in 940 C.M.R. § 6.05(9), which is available at the MA AGO’s Website. 

8 There are certain exceptions for prices that are pre-ticketed by manufacturers or other sellers, as contained in 940 C.M.R. § 6.05(10), which is available at the MA AGO’s Website. 

9 These factors are contained in 940 C.M.R. § 6.05(11), which is available at the MA AGO’s Website. 

10 These factors are contained in 940 C.M.R. § 6.05(16), which is available at the MA AGO’s Website. 

11 This advisory does not contain an all-inclusive list of the MA AGO’s advertising regulations and requirements. Sellers, among other things, should be aware of additional requirements set forth in 940 C.M.R. § 3.00 (General Regulations) and 940 C.M.R. § 6.00 (Retail Advertising). 

12 940 C.M.R. § 6.14 contains specific and detailed record retention requirements for price comparison advertising, which is available at the MA AGO’s Website. 

13 This more general regulation is available at http://www.mass.gov/ago/government-resources/ags-regulations/940-cmr-3-00/940-cmr-300.html.