Category Archives: Social Networking

New York Court Denies Chase Bank’s Request to Serve Alleged Credit Card Scammer on Facebook

A New York district judge denied Chase Bank USA’s Motion to serve a defendant via Facebook this week. Chase had attempted to serve the woman numerous times through physical addresses that it had tracked down for her but was unsuccessful.  So naturally, Chase wanted to take it to the next level and serve her through Facebook. The Judge would not allow the service (which was theoretically possible under New York’s laws regarding service of process) because Chase had not made a sufficient showing that she was likely to receive and read the material if service was made in that manner. So, as a practice pointer, if one needs to serve a defendant via Facebook, the lawyer should monitor the proposed Facebook account to see how often the defendant appears to post to his or her page, what sort of information is being posted, i.e., real wall posts or replies by the defendant as opposed to  unanswered posts by the defendant’s “friends” or random applications, and whether the page’s owner is indeed the right person. Based on the reasoning of the New York district judge, this is the sort of evidence that would be necessary to obtain permission to serve process in such an unorthadox manner. So, do you think you could serve a wily defendant through Twitter? Pinterest? Instagram? It will be interesting to see where the law goes in this area and will likely be harder for the tech-saavy defendant with an on-line presence to avoid service  in the future.

Trayvon Martin Case and Intellectual Property Issues

This case has been heart-breaking on so many levels, no matter your position on the social issues that are implicated. Whether you believe Zimmerman  acted in self-defense or created a situation where someone’s beloved son was killed while minding his own business, carrying a Snapple and some Skittles, there is no question that many lives have been destroyed, careers ruined, and, most tragic by far,  a child with a promising future is dead.  It is not for me to decide what happened in this case because I wasn’t there and I don’t know. I have friends with different views on Zimmerman’s actions and motives, but all I can think about is Trayvon’s parents, and the parents of other young African-American boys or men, who live in  fear that the same thing could happen to their child. I have no answers and nothing but my heart-felt sympathies to offer to these families.

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Twitter Supoenas and the 99%

Twitter and social networking accounts, expectation of privacy?Prosecutors have subpoenaed the Twitter records of Jeff Rae, an arrested Occupy Wall Street protester, and four others, seeking account information and tweets sent around the time the protests heated up last fall. Rae was arrested during a mass protest on the Brooklyn Bridge in October. The subpoena seeks all of Rae’s tweets from Sept. 15 — two days before the Occupy movement began in downtown Manhattan — through Oct. 31, along with account and contact information for Rae.

 Based on the subpoenas filed in another protestor’s case, prosecutors appear to be looking for evidence that would prove the defendant’s state of mind at the time of the alleged crime. The protestors were primarily arrested on misdemeanor changes such as blocking traffic, disorderly conduct or defying police orders. Many of the protestors have argued that they did not realize they were defying police orders but prosecutors are trying to show that the defiance was knowing and deliberate.

 Rae plans to fight the subpoena, stating “I was a little bit blown away,” Rae said. “It’s interesting that in places like Egypt our leaders applaud people for using Twitter and social media for their movements. Here, I’m being subpoenaed for using social media.” He said his lawyer would file a motion to quash.

 A special Manhattan criminal court has been set up to handle Occupy cases. Many have been resolved through a type of conditional dismissal that wipes the charges away if the defendant stays out of trouble for six months, but hundreds of protesters have chosen to move ahead with trials.

 I think it’s pretty much a sure bet that prosecutors will gain access to these twitter accounts. Assuming they have probable cause, it should be no different that obtaining a defendant’s phone records or bank account information. In fact, I would think one would have even less of an expectation of privacy in one’s tweets than in one’s phone or banking records. The purpose of twitter is to shout out your thoughts to the world and connect with other like-minded people, wherever they may be. Except for private messages (which the prosecutors say they are not seeking), anyone and everyone can see what you are tweeting. Consequently, the privacy expectation is practically non-existent in the sent tweets. The account information is a closer question but courts have recently held that this information is also available to prosecutors because the defendant loses his expectation of privacy in the information once it is shared with a third party, i.e., Twitter. So prosecutors will undoubtedly get the account information as well.

 Check out this article on Law360 where my law partner Kathryn Walker and I were quoted on this issue yesterday. We both feel that the information is likely discoverable by prosecutors. What do you think?

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Social Media Explained For the Newbie

This pretty much sums it up, folks. Let me know if you have any questions.

Mining Social Networking Sites for Evidence In Litigation

I am delighted to welcome my friend and fellow IP litigator, Brian Wassom, as my first guest poster on the blog. Brian is a partner in the firm Honigman Miller Schwartz  and Cohn LLP, located in and around Detroit, Michigan. Although Brian is not from Tennessee (which we will will gladly overlook), his observations on the use of social media in litigation cut across all geographic lines. Be sure and check out Brian’s excellent website on social and emerging media found at Wassom.com. Without further ado, here’s Brian’s post:

I never cease to be amazed at what people will write in social media–or at how useful some of those posts can be in court.  Even if the substance of your case has nothing to do with social media, every IP litigator owes it to themselves and to their clients to keep an eye on what opponents and their customers are saying online.

Here are just a few examples of how social media has proven useful in trademark infringement cases that I’ve recently handled:

Proof of Service and Willful Infringement
Just a few days ago, I was drafting a motion for default judgment against a local retail business that uses a very close imitation of our client’s trademarks.  These defendants had spent months ignoring our cease and desist letters, then failed to answer our complaint when we eventually sued.  We had proofs of service, but in these situations, I sometimes wonder what other evidence I could point to if the defendants ever disputed that they’d been properly served. It had been awhile since I’d seen the defendants’ Facebook page, so I looked it up. As it turned out, although the defendants had chosen not to fight the lawsuit in court, that hadn’t stopped them from venting on Facebook about us and the lawsuit to their customers.  This began even before their time to answer the complaint had run out! And if their posts were helpful in proving that they had gotten timely notice of the lawsuit, their responses to customers’ comments were even better.  Not only did the defendants say things like “yes, we have just been sued,” but as an illustration of just how serious the matter was, they even described how thick the summons and complaint were! To top it off, they went on to admit that they had been intentionally “putting [us] off” during those months when they were receiving our cease and desist letters.  That should go a long way in showing this to be an “exceptional case” of willful infringement worthy of an award of costs and fees under the Lanham Act.

Evidence of Actual Confusion
Last year, I was drafting a trademark infringement complaint against an establishment that used knock-offs of our client’s well-known trademarks.  Let’s call my client “Plaintiff,” and the infringer “Defendant.” Of course, it was my job to allege facts showing that Defendant’s actions were causing a likelihood of confusion among potential customers as to whether its goods and services were somehow sponsored by or affiliated with Plaintiff.  And one of the most powerful ways to do that is by demonstrating “actual confusion”–proof that a real customer actually did reach that mistaken conclusion. Normally, such evidence is a bear to come by, and requires expensive customer surveys to gather. But now there are entire social media businesses dedicated to encouraging customers to share their thoughts about each and every establishment they visit.  So, on a lark, I looked up Defendant’s establishment on Yelp! Wow.  Not only were there a string of one-star reviews condemning the quality of the place’s goods and services–all of which would be useful in proving other parts of my case, like damages–but I found one review that evidenced exactly the type of “actual confusion” I was looking for.  Specifically, this customer ended her post by saying, “[Plaintiff] should be more careful who it franchises its biz to!!”  The court took note of that and similar evidence when it ruled in our favor.

Proof of a License Breach
Sometimes, social media is where the actual infringement happens.  Another case involved a defendant who was licensed to sell only our client’s products.  But we suspected that they had begun to also sell a competing product side-by-side with ours–which would have been a clear violation of their license. One of the first things I did was find the licensee online–in this case, its Twitter account.  The licensee’s self-description in its Twitter profile still identified our client’s product.  But scrolling through its stream of posts, I found a few tweets from a few months earlier that–sure enough–announced that the licensee had started advertising a competing product as well.  With this evidence in hand, we confronted and quickly resolved things with the licensee.

In each of these examples, social media offered me insights into my opponent’s thought processes and behavior that would have been difficult or impossible to get any other way.  And they came in the form of written statements that were easy to cut and paste right into a brief, pleading, or letter.  I now make it a habit to look up my opponents online in every case, just in case.

Paige’s two cents: This post also raises a good point in prepping your own client for litigation. I always tell my clients not to discuss their case with anyone if I am not present. I now also make it a point to specifically mention the social networking sites discussed here and remind them to keep the matter off Twitter, Facebook, and the like. I also recommend that our business clients keep a close eye on what their employees are putting on the Internet. Have strong and clear social networking policies in place at your business to prevent the disclosure of information that should not be shared. Assign an employee to routinely check your business’ internet presence to avoid just the type of thing Brian was able to exploit in the cases he discussed above.