Inside Counsel presents the 12th Annual Super Conference in Chicago

The National Law Review  is pleased to bring you information about the upcoming 12th Annual Super Conference in Chicago sponsored by Inside Counsel.

Reasons why you should Attend This Year’s Event:

  1. Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.
  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

Inside Counsel presents the 12th Annual Super Conference in Chicago

The National Law Review  is pleased to bring you information about the upcoming 12th Annual Super Conference in Chicago sponsored by Inside Counsel.

Reasons why you should Attend This Year’s Event:


  1. Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:
    Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.
  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

Inside Counsel presents the 12th Annual Super Conference in Chicago

The National Law Review  is pleased to bring you information about the upcoming 12th Annual Super Conference in Chicago sponsored by Inside Counsel.

Reasons why you should Attend This Year’s Event:


  1. Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:
    Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.
  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

Inside Counsel presents the 12th Annual Super Conference in Chicago

The National Law Review  is pleased to bring you information about the upcoming 12th Annual Super Conference in Chicago sponsored by Inside Counsel.

 

Reasons why you should Attend This Year’s Event:


  1. Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:
    Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.
  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

Using Online Shame as a Defense to a Trademark Infringement Claim May Not Always Be Effective

An article regarding Trademark Infringement by Geri L. Haight of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. was found recently in The National Law Review:

The Wall Street Journal had a piece recently about how the recipients of trademark infringement cease and desist letters are increasingly using ”online shame” to gain leverage in disputes with trademark owners. As “trademark bullying” is a hot topic among trademark lawyers and in the press, this article picks up on that theme. It highlights a dispute between a small online cookbook entrepeneur who allowed users to save recipes by clicking on a “K” for “Keep” and a trademark owner who asserted rights to the marks K and KEEP in a strongly worded cease and desist letter. In response, the cookbook entrepreneur posted the cease and desist letter online at chillingeffects.org, an organization that “aims to support lawful online activity against the chill of unwarranted legal threats[.]“ As the WSJ article reports, the cease and desist letter got attention and the cookbook entrepreneur is now being represented — free of charge — by legal counsel.

In the age of social media, the practice of publicly “shaming” trademark owners is increasingly common. And it can be effective. In the EAT MORE KALE vs. EAT MOR CHIKIN trademark dispute example, over 28,000 people have signed an online petition demanding that the Georgia-based fast food company, Chik-fil-A, stop bullying a small Vermont-based business that sells t-shirts bearing the slogan EAT MORE KALE. Then the Vermont Governor held a press conference expressing support for the Vermont-based business. And the story spread like wildfire throughout the national media. Clearly, many more people have become aware of the small Vermont business owner making EAT MORE KALE t-shirts in his home as a result of Chik-fil-A’s demand letter (and the social media aftermath) than would have known of this business had Chik-fil-A not sent a cease and desist letter. The potential use of social media to attempt to shame an overreaching trademark owner is clearly an important consideration in any trademark enforcement matter. Social media, when used effectively and appropriately, can quickly change the dynamics of a trademark infringement dispute.

The WSJ article makes an additional point, albeit in passing. It quotes David Bernstein of Debevoise & Plimpton LLP who cautions that shaming tactics can backfire by highlighting infringing conduct. This point is important to remember. Although ”trademark bullying” stories grip the headlines, most cease and desist letter raise legitimate claims of trademark infringement. Simply posting such a letter online may not garner the sympathy that you expect (Interestingly, one comment posted to the WSJ article reflects that the EAT MORE KALE small business owner has not convinced everyone of his position despite his effective social media campaign). Moreover, a potential defendant’s online statements about the matter may simply provide more ammunition to the trademark owner to use in an eventual litigation. While “shaming” can be effective in fending off an over-reaching trademark owner, it does not work and is not appropriate in all situations.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Inside Counsel presents the 12th Annual Super Conference in Chicago

National Law Review is pleased to bring you information about the upcoming 12th Annual Super Conference sponsored by Inside Counsel .

Reasons why you should Attend This Year’s Event:

  1. Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.

Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:

  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

Are Bloggers’ Free Speech Rights Under Attack?

The National Law Review recently published an article by Jesse L. Jenike-Godshalk of Dinsmore & Shohl LLP regarding Blogger’s Free Speech:

A recent legal opinion has some concerned about just how broad free speech rights may be for bloggers who are not associated with institutional media, such as newspapers and television stations. In Obsidian Finance Group, LLC v. Cox, No. CV-11-57-HZ, slip op. (D. Or. Nov. 30, 2011), a federal judge ruled that a self-proclaimed “investigative blogger” was not “media” and, therefore, was not entitled to certain First Amendment protections that are reserved for the media.Despite the alarm that this case has generated, it actually is not a major setback for the free speech rights of bloggers.

The Case: Obsidian Finance Group, LLC v. Cox

From late 2010 to early 2011, Crystal Cox made numerous blog posts in which she accused Obsidian Finance, LLC and one of the company’s senior principals, Kevin Padrick, of corrupt, fraudulent, and illegal conduct. Obsidian and Padrick subsequently sued Cox for defamation. Rather than hiring an attorney, Cox chose to defend pro se.

In August 2011, before the case went to trial, the judge granted summary judgment to Cox with regard to all but one of her blog posts, because the posts were statements of opinion protected by the First Amendment. See Obsidian Finance Group, LLC v. Cox, No. CV-11-57-HZ, slip op. (D. Or. Aug. 23, 2011). A statement, such as a blog post, can be the basis for a defamation suit only if the statement is a provable assertion of fact. In contrast, statements of opinion are protected by the First Amendment. According to the judge, blog posts, by their very nature, are usually statements of opinion.

Prior to the trial, the judge still had several issues that he needed to resolve. Among these issues was Cox’s claim that she was “media” and therefore, based on U.S. Supreme Court precedent, the plaintiffs could not recover damages from her for defamation without proof that she was at least negligent in making the allegedly defamatory statements. The judge rejected that Cox was “media,” writing:

Defendant cites no cases indicating that a self-proclaimed “investigative blogger” is considered “media” . . . . Without any . . . authority on the issue, I decline to conclude that defendant in this case is “media” . . . .

Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”

Obsidian Finance Group, LLC v. Cox, No. CV-11-57-HZ, slip op. at 9 (D. Or. Nov. 30, 2011). Following this ruling, the case went to trial, and the jury found for the plaintiffs, awarding $2.5 million in damages.

Not a Major Setback

Despite the concern that this case has generated, the case is not a major setback for the free speech rights of bloggers, and it can even be regarded as a pro-free speech case. First, some of the judge’s statements suggest that bloggers enjoy expansive First Amendment rights. In his ruling on summary judgment, the judge stated that blog posts, by their very nature, are usually “opinions” and not provable assertions of fact. Such “opinion posts” are protected under the First Amendment and are not actionable as defamation—regardless of whether the writer is “media.”

Second, the judge established a very low bar for what a blogger must do to enjoy the additional free speech protections that are reserved for “media.” To wit, a blogger must present some evidence that he or she is a journalist. Cox lost this issue because she presented no evidence.

The judge provided her with a list of seven types of evidence that she could have offered. This list does not create an exacting standard of proof for a blogger to meet. To be considered “media,” a blogger would not need to offer all seven types of evidence. In fact, a blogger would not necessarily need to offer any of the seven types of evidence. The list is not exhaustive, but is merely “[f]or example.” A blogger must present “evidence of this nature.” Thus, a blogger could prove that he or she is “media” by presenting types of evidence not on the list. In addition, most bloggers probably would be able to present some evidence of the types that are on the list—e.g., “proof of editing,” “keeping notes of conversations,” or “creation of an independent product rather than assembling writings and postings of others.”

Had Cox hired an attorney, the attorney almost surely would have been able to offer some evidence that Cox was “media.” Actually, had Cox hired an attorney, she might have won the entire case on summary judgment—and she would have entirely avoided the issue of whether she was “media.” Herein lies the real lesson from this case: If you are sued for defamation, get yourself an attorney.

© 2012 Dinsmore & Shohl LLP.

Inside Counsel presents the 12th Annual Super Conference in Chicago

National Law Review is pleased to bring you information about the upcoming 12th Annual Super Conference sponsored by Inside Counsel .

Reasons why you should Attend This Year’s Event:

  1. Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.

Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:

  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

8th Annual Asian ITechLaw Conference

The National Law Review is pleased to bring you information on the upcoming 8th Annual Asian ITechLaw Conference:

ITech --8th Annual Asian ITechLaw Conference on February 23 and 24, 2012

As National Law Review member you are entitled to a 10% discount to the

8th ITechLaw International Asian Conference

ITechLaw’s 8th annual run of the very popular International Asian Conference will take place in Bangalore – the high technology capital of India.

The theme for India VIII is Technology Law in an Era of Changing Business Paradigms. For a glimpse of what is lined up for a discerning attendee like you, please visit http://www.itechlaw-india.com. Be sure to be one of the first to sign up for this landmark India event.

  • 8th Consecutive event of the ITechLaw India series
  • A ringside view of Indian IT, Media and Telecom Law
  • Supported by several of the largest law firms and global associations
  • ITechLaw’s CyberSpaceCamp® to be held on February 22, 2012
  • Contemporary topics addressed by leading experts drawn from some of the best global law firms
  • Engaging debates with panelists from industry, regulatory authorities and in-house legal departments
  • Interactive sessions on issues affecting the largest IT bases in the world
  • Welcome Reception and Art Show, promoting emerging Indian artistes, allowing delegates to network with local corporates and invited guests
  • Gala Dinner and Networking Luncheons – ample networking opportunities to meet fellow professionals
  • I – Win Tea Meeting
  • In – House Counsel Breakfast Meeting
  • Exclusive golf outings on February 22 and 25, 2012
  • Make the trip a memorable experience by taking an excursion to exotic destinations across southern India, such as Mysore, Kerala and Tamil Nadu

Look forward to a considerable amount of debate and brainstorming. Social meets such as luncheons and gala dinners will enable attendees to indulge into fruitful networking with prospects, contacts and peers from around the world.

See you at the 8th ITechLaw International Asian Conference.

Electronically Stored Information, Social Media and the Rules of Professional Conduct: Are you compliant with your duties of competence and diligence?

Recently published in The National Law Review was an article about Compliance and Diligence and Electronic Media by  Charles H. Gardner of  Much Shelist, P.C.:

Electronically Stored Information and its increasingly complex progeny, social media evidence (collectively, “ESI”) are quickly being woven into the fabric of discovery and the practice of law.  As the cases and rules of professional conduct discussed below demonstrate, lawyers who fail to thoughtfully investigate and use social media evidence (both that of their own client and that of the opposing party(ies)) are not engaged in best practices.

The American Bar Association (“ABA”) Model Rule of Professional Conduct 1.1 (Competence) states that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” (The Model Rules have been adopted in all of the fifty states, except California, and in the District of Columbia and the U.S. Virgin Islands). Comment 5 to Rule 1.1 provides, in part, that “[c]ompetent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation (emphasis added).” Further, the ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion No. 98-411(1998) states, “[w]e believe the ethical issues are the same whether [involving] substantial legal or procedural aspects of a client’s matter or [a lawyer’s] ethical duties in furtherance of the client’s matter.”

Much has changed since the ABA adopted the Model Rules of Professional Conduct and its predecessor guidelines. Electronic data and communication and social media communities such as Facebook, MySpace, and Twitter have become linchpins of society and discourse. As of December 2011, Facebook alone reported that it had 845 million monthly users and more than 483 million average daily users (http://newsroom.fb.com/content/default.aspx?NewsAreaId=22, last visited Feb. 12, 2012).

In the recent case of Griffin v. Maryland, 192 Md. App. 518, 535 (2010), the court opined, “[i]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites (emphasis added).” In addition, a 2010 study by the American Association of Matrimonial Attorneys found that an overwhelming eighty-one percent of the nation’s top divorce attorneys said that they have seen an increase in the number of cases in which social media evidence plays a role. Sixty-six percent of those attorneys cite Facebook as the primary source of such evidence. Accepting as an imminent practical reality that an attorney has or will soon have an affirmative duty to investigate social media evidence, what might the cost be to the attorney, the client, or both for failing to do so or, worse, failing to preserve such evidence?

Consider hypothetically the evidentiary value of photographs posted on a disability claimant’s social media page showing her rock climbing, for example. One can see just how persuasive ESI can be.  However, ESI can also be a minefield of professional liability. Consider the case of Lester v. Allied Concrete Company, Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011) in which a Virginia attorney was found to have instructed his assistant to tell his client to remove a photograph from a social media website. Finding that the lawyer had violated Virginia’s equivalent of Model Rules 3.3 (Candor toward the tribunal), 3.4 (Fairness to opposing parties and counsel), 5.3 (Responsibilities regarding non-lawyer assistants), 8.4 (Misconduct) and rules of court regarding conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, the court sanctioned the attorney with a fine of $540,000. In addition, the court fined the client $180,000 for spoliation of evidence. For the twenty-first century practitioner, a well thought-out ESI discovery plan could mean not only the difference between success and failure in the matter at hand, but may also mean the difference between a grateful client and a client that brings a malpractice claim, a disciplinary complaint or both for ineffectiveness in investigation and preparation. However, case investigation and preparation are not the only source of risk for attorneys and judicial officers.

The case of In re: B. Carlton Terry, Jr., No. 08234 (N.C. Judicial Standards Commission, April 1, 2009) demonstrates how critical it is for attorneys to be savvy in social media and ESI discovery in general. In that family law case, the judge, plaintiff’s counsel and defense counsel were discussing Facebook in a meeting in chambers. Plaintiff’s attorney commented that she did not know what Facebook was and did not have time for it. Following the meeting in chambers, Judge Terry and defense counsel became friends on Facebook and discussed the case in some detail. Judge Terry also conducted independent investigation into plaintiff’s social media pages and quoted from them at the hearing. The judge did not inform plaintiff’s counsel of his actions until after he had entered an oral order. Plaintiff’s counsel immediately sought to and did have the judge’s order vacated. Judge Terry voluntarily disqualified himself and the case was remanded for a new hearing, costing the taxpayers a considerable amount. Ultimately Judge Terry was publicly reprimanded by consent in formal proceedings before the Judicial Standards Committee.

Had plaintiff’s counsel conducted a thorough, or even a rudimentary, ESI investigation, the wrongdoing on the part of defense counsel and the bench could have been addressed promptly which would have spared both Plaintiff and the taxpayers significant costs in having to try the same matter twice.

Furthermore, it is worth noting that the rules of professional conduct apply equally to in-house counsel and transactional attorneys as to litigators. In the more casual in-house and transactional business environments, the line between clients and business colleagues can become easily blurred. These attorneys should be especially mindful of their professional responsibilities and the implications that their actions may have on their organization in the event that litigation ensues.

Following are six simple and practical suggested steps towards developing a strong ESI discovery plan and investigation process:

  1. Educate yourself about social media and ESI in general. If you do not know where to look, you could be lost in a search engine “black hole”. Not only can you place yourself ahead of the pack in the legal community, you will also be able to communicate with your children and grandchildren!
  2. Draft a written ESI discovery plan that includes an immediate request for a discovery hold on ESI.  Be systematic and judicious in your requests. And be mindful of Model Rule 1.3 (diligence).
  3. Draft and circulate acknowledgement forms to all personnel in your organization and obtain their signatures.  These documents should educate your personnel about sound social media practices and emphasize ethical concerns as well as the legal liability to the organization, to you and to the employee, who could also face appropriate discipline for violating company policy.  Be mindful of Model Rule 5.3 (responsibilities regarding non-lawyer assistants). And, with respect to employees, be mindful of the limitations imposed by the National Labor Relations Act when drafting your policies and acknowledgement forms.
  4. Instruct your client that ESI is evidence and that the client should not tamper with or destroy such evidence until the case is completely resolved, including during the time allowed for appeals and in appellate proceedings, if any.
  5. Check your client’s social media pages.  Know what you are up against.
  6. Conduct a thorough review of any and all available ESI of the other party.  Be careful to abide by the “no contact” rules.  For example, do not send a surreptitious friend request to gain access to another party’s ESI, but rather, look only at what is publicly available to you and obtain proper warrants for any additional information.  And be prepared to argue to the court why the evidence is relevant and why it should be produced and admitted.

If you are not making diligent and competent use of ESI, you place yourself and your client at a severe disadvantage and you are arguably breaching your ethical obligations. The immediate future is a rare opportunity to be on the cutting edge of developing law.  With a little knowledge and a reasonable amount of follow-through, you can set yourself apart in the new media frontier by making sound use of the bountiful resources that new media technologies have brought to the practice of law.


Charles H. Gardner is Special Counsel to the Intellectual Property & Technology group at Much Shelist, P.C. and head of its social media practice.  Mr. Gardner is a frequent writer and lecturer on the topic of social media and new media technologies. He has been featured in Crain’s Chicago Business and The Chicago Daily Law Bulletin and will be leading a CLE seminar on the “Laws of Social Media” (tailored for house counsel and business executives) on February 21, 2012.* Before joining Much Shelist, Mr. Gardner served as Director of Legal and Business Affairs for Harpo Studios, Inc. Mr. Gardner has a juris doctorate from Loyola Law School, Los Angeles (Entertainment Law Review) and a bachelor’s degree from the University of California, Berkeley.  He is admitted to practice law in California, New York, Illinois, the District of Columbia and before the United States Supreme Court.

*For more information and/or for complimentary registration, please call or e-mail Mr. Rodney Abstone at CLS Executive Search at (312) 251-2564 or email rabstone@clsexecutivesearch.com. 

© 2012 Much Shelist, P.C.