If your ex-boyfriend posts your naked picture on Yahoo’s website, can Yahoo be held responsible?  And here’s the naked truth on this one.  It all began when Cecelia’s ex-boyfriend created a profile of her without her permission, and posted it in several chat rooms on Yahoo’s website.  The profile included pictures of them naked together and encouraged males to check her out, when they did, they were treated to the pictures along with her address and telephone number.  In the words of the Court, she was inundated with male suitors expecting to have sex with her.  She sued Yahoo, but the Court held that the Communications Decency Act shields Yahoo from tort liability, that intermediaries cannot be held liable for what is placed on their sites by others.  The Court did hold, however, that she did had a breach of contract claim because a Yahoo representative had promised that the material would be removed, even though it wasn’t until she sued.  So, there it is, the Communications Decency Act protects indecency, while old-fashioned contract law rides to the rescue.  Go figure?

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Barnes v. Yahoo!, Inc., No. 05-36189, slip op. (9th Cir. May 7, 2009).

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If your pregnancy stunts the growth of your pension, can you do anything about it?  This case involved the question of whether pregnancy disability leave can be treated differently from regular disability leave when it comes to pension benefits and during the sixties and seventies, a large communications company gave employees who went out on disability full credit towards retirement.  But if you went out on pregnancy disability leave, that was treated as personal leave and capped at thirty days.  Now, if you’re thinking that’s really unfair and it should be illegal, well, you’re right; because it is unfair and it is now illegal.  The Pregnancy Discrimination Act makes it unlawful to discriminate an employment because of pregnancy.  The question for the Supreme Court was whether it should be retroactive, and David Souter, in one of his final opinions, decided that it should not be, because although the practice would clearly violate the law today, an earlier case had held that different rules for pregnancy was not discrimination based on sex.  So, while life begins at conception, pensions begin when Congress says so.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

AT&T Corp. v. Hulteen, U.S. Supreme Court, No. 07-543, May 18, 2009, Souter, J., Vol. 77, No. 44, Pg. 1699, 5-19-09

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If store security follows you around because you’re black, can you sue for discrimination?  This case got started when a black woman shopper at a well-known retail chain realized store security were keeping her under surveillance simply because she was black.  She claimed they followed her to the dressing room and were waiting for her when she came out.  She left the store after complaining to the manager.  Another black couple had a similar experience at the same store, claiming when they took their daughter to the dressing room a sales rep. and security guard were outside when they came out.  When they complained, the sales associate snickered and said, “So what?”  The plaintiffs sued claiming that the behavior was race-based surveillance and violated the federal law that provides, “that all persons living in the U.S. have the same rights to make and enforce contracts as is enjoyed by white persons.  But the Court found that racially-based watchfulness, however reprehensible, does not prevent a shopper from making a purchase.  So several Justices dissented, but the majority ruled and because you could still buy it, the Court didn’t buy it.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Gregory v. Dillards, Inc.,  Eighth Circuit Court of Appeals, (en banc), No. 05-3910, 5-12-2009, Colloton, J., Vol. 77, No. 44, Pg. 1697 5-19-09

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Just because you apologize doesn’t mean you have to pay them back. This case involved the apology of the United States to native Hawaiians for taking their island. Back in 1993, Congress enacted a joint resolution acknowledging the illegal overthrow of the kingdom of Hawaii one hundred years earlier. The resolution also made it clear that the apology did not imply that any money would be changing hands. This case involved certain Crown lands on the island of Maui which were given back to Hawaii to be held in public trust for the support of native Hawaiians. When the Hawaiian Housing and Community Development Corporation wanted to develop the land, the Office of Hawaiian Affairs, which manages the trust, sued and won in the Hawaii Supreme Court. But the U.S. Supreme Court reversed, holding that the congressional apology did not create any substantive rights over Crown lands. So maybe another apology will be in order, although native Hawaiians are probably getting tired of losing land, getting an apology and losing land all over again.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Hawaii v. Office of Hawaiian Affairs, U.S. Supreme Court, No. 07-1372, March 31, 2009, Alito, J., USLW, Vol. 77, No. 38, Pg. 1606 4-7-09

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It is said that as Maine goes, so goes the nation. But as for whether the rest of the nation wants to actually go to Maine, well, that’s another story. This case got started when 1.6 million customers of a Florida grocery chain called “Kash ‘n Karry” learned that the store computers had been hacked and the hackers had gotten access to virtually all their credit card information. Since they were all Floridians and Kash ‘n Karry is a Florida corporation, they sued in Florida State Court. They immediately ran into the Class Action Fairness Act, which allowed the defendant to remove the case from State Court to Federal Court, and it ended up in the Federal District Court in Maine. The Florida plaintiffs appealed and the First Circuit has just send the case back to the “sunshine state.” The Court said the home state exception applies when the class members and the defendant are citizens of the state in which the action was originally filed. So cash won’t carry the case up north and the main event will be in Florida.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Hannaford Bros. Co., Customer Data Security Breach Litigation, (Grimsdale vs. Kash’n Karry Food Stores, Inc., First Circuit Court of Appeals, No. 09-1392 5-1-09, Lynch, J. USLW, Vol. 77, No. 43, Pg. 1679 5-12-099

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Would you like to see some of your elected public officials in jail? I hope that’s not how you feel, but even if you do, it’s definitely not going to be easy putting them there. This case involved the Texas Open Meetings Act, which makes it a criminal offense to discuss public matters outside of an open meeting. Several public officials were indicted for exchanging e-mails that discussed privately whether or not they were going to call a council meeting to consider a controversial contract. They sued to block the prosecution, and the Court that first heard the case upheld the indictment, holding they could be prosecuted to the fullest extent of the law joining in the human cry to teach our public a lesson they won’t forget. But the Appeals Court reversed, holding that the law violated their right to free speech, and that public officials cannot be criminally punished for speaking out on matters of policy. So putting public officials in jail turns out to be a very hard sell, and despite open meetings and closed e-mails, taking bytes out of crime doesn’t play.

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Rangra v. Brown, Fifth Circuit Court of Appeals, No. 06-51587 4-24-09, Dennis, J., USLW, Vol. 77, No. 43, Pg. 1685, 5-12-09

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Do you like vodka and Russian vodka in particular? but what if your vodka looks like it comes from Russia and tastes like it comes from Russia, but it really comes from Brooklyn? This case, which makes you want to get a drink, started when Spirits International tried to register Moskovskaya as a trademark for its vodka. Although Moskovskaya is Russian for “of or from Moscos,” Spirits International admitted its vodka had no connection whatsoever with Moscow. The Patent and Trademark Office refused to register the mark deeming it geographically misdescriptive, and Trademark Trial and Appeals Board affirmed noting that a mark is misdescriptive if the relevant consuming public is misled. But Spirits International appealed, and the Court in a spirited decision reversed, stating that the mark should be denied only if a substantial portion of the consuming public understands Russian. So enjoy your vodka and as it is said in Brooklyn, “za vashe dorovye” which means, “see you under the table.”

THIS IS NEIL CHAYET LOOKING AT THE LAW™

In Re Spirits International NV, Federal Circuit Court of Appeals, No. 2008-1369, April 29, 2009, Dyk, J., USLW, Vol. 77, No. 43, Pg. 1690, 5-12-09, (prost, bottoms up, bottoms down)

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It is said you should keep your enemies close and your friends closer, and that’s particularly true about your friends on Facebook. This case got started when a lawyer was taking a deposition of an 18-year old woman who was going to be a hostile witness in an upcoming case. During the deposition, the lawyer learned the witness had an account with Facebook and decided to find out more about her by visiting her personal pages. When he found access was blocked, he hired an investigator to become one of the witnesses friends and report back to him. Before he went ahead, he contacted the Philadelphia Bar Association Ethics Committee, which concluded the proposed course of action was deceptive from the get go, because it omitted the material fact that the investigator intended to become the witness’s friend in order to discredit her testimony in the upcoming case. So friendly lawyer is still an oxymoron, and as it is also said, “With friends like these, who needs enemies.”

THIS IS NEIL CHAYET LOOKING AT THE LAW

Ethics Opinion, USLW, Vol. 77, No. 43, Pg. 2679 5-12-09 (FACE FACTS, FACE DOWN, MY SPACE, YOUR SPACE)

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The jailhouse snitch is back in business.  Forty-five years ago, the U.S. Supreme Court condemned the use of placing a jailhouse informer in a defendant’s jail cell to obtain incriminating statements.  Nevertheless, in this case while the defendant was awaiting trial on charges of murder and robbery, officials placed a jailhouse informer in his cell and he basically confessed to the murder.  When the case came to trial, prosecutors conceded the informer’s questioning violated the Sixth Amendment right to counsel and did not present the informer’s testimony in their case-in-chief.  But when the defendant took the stand and fingered a codefendant as the murderer, prosecutors introduced the informer’s testimony to prove the defendant was lying.  The Court noted that it has held in every other context that tainted evidence is admissible to discredit a witness.  So if you happen to be hearing this while you’re in prison, take a close look at your cellmate, because a snitch in time can add to your time.

THIS IS NEIL CHAYET LOOKING AT THE LAW™
Kansas v. Ventris, U.S. Supreme Court, No. 07-1356, April 29, 2009, Scalia, J., U. S. Law Week, Vol. 77, No. 42, Pg. 1664, 5-5-09

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Imitation may be the highest form of flattery, but plagiarism is unbecoming and becoming worse.  A company called iParadigms decided to offer plagiarism protection services to high schools and colleges.  The way it works is that participating schools submit student papers through the website TurnItIn.com.  The work is then compared with other works on the internet, commercial databases, and TurnItIn’s own ever expanding archive of submitted papers.  Several students copyrighted their papers before turning them in and then objected to them becoming part of the archives.  After their papers were archived anyway, the students sued.  The Court held that even though iParadigms makes a profit, it provides a substantial public benefit and, because of the fair use exception, does not violate the copyright law.  So TurnItIn has survived and if you plan to plagiarize, it may be time to take a u-turn.  Since if you turn it in, TurnItIn will turn you in return.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

A.V. v. iParadigms LLC, Fourth Circuit Court of Appeals, No. 08-1424, April 16, 2009, Traxler, J., U.S. Law Week, Vol. 77, No. 42, Pg. 1664, 5-5-09

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