Indiana Technology Lawyer

Indianapolis Litigation-The Collections Endgame

Friday, May 28, 2010 by Scott Kreider

I am an Indianapolis Attorney here at Alerding Castor Hewitt LLP. This is my first blog post – so bear with me. As a brief introduction, my role at ACH is working on our litigation team, both at trial and on appeal if necessary, on issues related to business law, probate litigation, SaaS litigation, and other technology litigation – just to name a few of the areas.

One area often overlooked in the litigation process is the area of collections. Some lawyers might look upon the collection process with disdain because it’s not as “sexy” as doing other things. But at bottom, bringing a suit is all about collecting money. After all, a judgment is just a piece of paper. At ACH, we pride ourselves on being able to assist clients in the collection process; it’s a part of our commitment to being a Partner in Success and we represent a variety of clients in business litigation and technology litigation in this process.

We often encounter situations where we have an out-of-state defendant who has breached a contract by failing to pay for services. In fact, it’s not that unusual in cases for our SaaS law and technology law clients for this to occur. Many times such a defendant will fail to appear to defend itself in the suit and we wind up obtaining a default judgment for our clients. The question is, what do you do next? Do you undertake a proceeding supplemental in Indiana to try to collect on a judgment when the defendant is unlikely to show, or do you take your default judgment (i.e., piece of paper) to the defendant’s state and try to domesticate it (in other words, try to collect there)?

I recently witnessed a couple of examples of this very situation. The answer boils down to a matter of cost-benefit analysis. In my humble opinion, it’s probably worth the minimal time and effort to undertake a proceeding supplemental in Indiana. Plus, you don’t have to immediately take on the added expense of hiring another lawyer in the defendant’s state to do the job for you.

The reason for this is that you never know what will motivate someone to make good on a debt owed to you, or at least negotiate some sort of payment arrangement. While it doesn’t happen in every case, it’s not unusual for a defendant to try to resolve a case after receiving notice of a proceeding supplemental. This is even more likely once they receive notice of one of the later steps in that process, such as an order to show cause why the defendant should not be held in contempt for failing to appear or a body attachment warrant to arrest the defendant. And if it doesn’t work out, you’ll still have your judgment that you can take to the other state.

Changes in the Get Hope. Get Help provisions

Tuesday, May 18, 2010 by Chris Stephen

Your friendly neighborhood technology counsel here: As you likely know, my goal is to become THE Indiana technology lawyer; however, technology is not my only area of interest. Like many of the folks at Alerding Castor Hewitt, technology law is a passion, but we all strive to be a full service law firm for all businesses. Thus, in addition to tech stuff, I also litigate matters for several banking and business clients. And, as any good lawyer does, when I see changes in the law that may impact my clients, I want to shout it from the rooftops. One such change that, to date, has gone largely unheralded is an amendment passed to the Indiana "Get Hope. Get Help" statute (Ind. Code 32-30-10.5-8).

For those that don't know, this provision, enacted originally in 2009, requires a lender to send a written notice to a mortgage holder regarding their default and options to avoid foreclosure before the lender can proceed with a foreclosure suit. The intended purpose of the law is to avoid unnecessary foreclosure of residential properties by "requiring early contact and communications among creditors, agents and debtors" and "facilitating the modification of residential mortgages in appropriate circumstances." This is debtor safeguard that lenders have to navigate before they can foreclose on a property. The letter itself has a large "GET HOPE. GET HELP" header, hence the nomenclature.

The new provisions amended to the statute in the 2010 session clarify that any time before a sheriff's sale, a debtor can do one of three things with the property. They can: (1) appeal a finding of abandonment; (2) redeem the real estates; or (3) retain possession of the property until the sale. These three things already existed in Indiana law, but are now more clearly set out and obvious. The goal is clearly to make the options abundantly clear to all involved.

To me the more important change is the requirement that the applicable notice prescribed by the statute must be in 14 point font. The necessary language is "Mortgage foreclosure is a complex process. People may approach you about "saving" your home. You should be careful about any such promises. There are government agencies and non-profit organizations you may contact for helpful information about the foreclosure process. For the name and telephone number of an organization near you, please call the Indiana Foreclosure Prevention Network".

So, all you lenders out there heed the warning of the new statute. There are procedures that you must follow before you can even get to a court room. While I understand the reasoning behind these provisions, they are certainly something about which lenders should be aware. The foreclosure process is a necessarily lengthy one, and you don't want to unnecessarily extend that by using the wrong size font.

Privacy Law - Part 2: What the Heck Is It?

Wednesday, April 28, 2010 by Chris Stephen

I must take a moment to open with a caveat. The study of privacy and hence privacy law or privacy litigation is an analysis that spans centuries. In fact, while it seems like privacy issues have only recently come to the forefront with the advent of technology, they have, in fact, been prevalent in ever major level of recorded history. I put this point out there to help you recognize that there are books and books addressing the issues of privacy and my little foray into the issue is but a nail-scratch on the surface of a very large issue. Nevertheless, I would be remiss in my role as an Indiana technology lawyer if I didn't delve into the issue at least from an overview perspective. Now, onto the bigger (and better) question of "what the heck is it?". There are, in my humble opinion, four basic approaches to this question: (1) academically; (2) legally; (3) structurally; and (4) realistically. I will address each approach separately.

Academic Perspective:  In the simplest of academic terms, privacy law is the method and mechanism of protecting the private matters or interests of the citizen. This definition leads to the ultimate issue from the scholarly perspective of what is privacy. The debate over that simple term, however, has raged for years and encompasses an extremely wide umbrella of ideas. From a political perspective, privacy is that sphere of information that wholly belongs to the individual and is unnecessary for the overall governmental function. Aristotle believed that there were two spheres. The first is the public sphere and in this sphere is the information necessary to govern the polis or city-state. The other sphere is the individual sphere in which each person has the information and matters pertinent to only themselves. It does not impact the polis and is solely private, but must exist to ensure the welfare of the entirety. Later, John Lock would address the issue by theorizing that the inherent state of man (the state of nature) is one in which they all have equal right to their self. It is this act of giving up some of these rights to the greater body that leads, according to Locke, to the development of organized government.

Anthropologically, privacy are those matters that we keep from the community at large. Anthropologists have found that even in social settings where there is very little physical privacy, the members of that society will act to protect their own privacy in other matters (i.e. hiding feelings, averting eyes, etc) to maintain some level of intimacy and ultimately, individuality. And this doesn't even get into philosophically, economically, medically, or any other - ly of which we may think. As you can see, the academic perspective is somewhat scattered, but the overarching theme is that privacy (and subsequently privacy law) is the component of self that is maintained to establish and maintain the individual.

Legal Perspective: From the legal perspective, privacy law is the protection of information related to the person. There are two basic types of legal perspective. The first is the protection of private information from a constitutional perspective. This is the basic premise behind the Fourth Amendment. The idea that citizens are free from the government simply prying into their business is fundamental to American jurisprudence. It is also a fundamental difference between the United States and other countries that has led to some very interesting debates related to privacy, but we'll cover that more in Part 2. From a constitutional standpoint, privacy is the protection of the individual from the invasion of the government without a reason. The other legal perspective is the protection of information from the tort perspective. These are the private causes of actions that relate to the invasion of privacy and lead to the majority of the privacy litigation that we see today. Questions such as: can my employer look at my e-mails; can my insurance company see my health records; can this website give my address to the cyberworld. These questions are the bread and butter of the tort perspective. And, frankly, are the most important to my clients. But overall, the legal perspective of privacy is, like the academic perspective, focused on the establishment and maintenance of barriers between individuals.

Structural Perspective:  What I'm calling the structural perspective is actually the most amorphous perspective that I've made up. It is deals with the components and subparts that make up privacy law because the parts make up the whole. But, the components of privacy law are as widely varied as the other definitions. There is a component for protecting information about one's health. There is a component for protecting those activities that one engages in in their home. There is a component for protecting the contents of one's vehicle or property. There is a component for protecting one's personal contact information. There is a component for protecting one's financial information. The list goes on. Needless to say, from a structural perspective, privacy law is the protection of that information that is necessary and pertinent to our identity, well-being, and overarching individuality.

Realistic Perspective: Finally, we get to the perspective that is most likely to impact our individual lives. For the individual, privacy law realistically means those steps and actions that one must take or protect to ensure that information pertinent to your well-being is protected from dissemination to parties without legitimate interest in the information. Whether this is monitoring against identity theft or moving to quash a subpoena that seeks information in violation of HIPAA. These are the steps that have to be done to protect your individual information. For the business, privacy law realistically means the steps and actions that must be undertaken to protect against the dissemination of information related to either my clients, my products, or my business perspectives. This is important both from a regulatory approach and a litigation approach. Both individuals and businesses need to know (a) what information is protected and (b) how to protect it. These are the fundamental realistic questions to be answered.

So, in conclusion, privacy law is an enigma wrapped in a riddle. We know we need it, but aren't always a hundred percent sure what it is. It is rooted in our mythos and theory. It is part of the underpinnings of society, both American and human in general. And, the more connected we get, the more important it becomes. In Part 3, I'll take a look at some of the major legal precedents on the issues of privacy law and litigation. Stay tuned.

Venue Selection Clauses - The Hidden Danger (Part 1)

Sunday, March 14, 2010 by Chris Stephen

Your friendly neighborhood technology legal counsel here to discuss with you the hidden dangers lurking in your unassuming (and unread) terms of service agreements. Janet Croswell, one of our fabulous tech lawyers, posted back on February 10, 2010 about the pitfalls that businesses face related to the clickwrap agreement (here's a link for those playing along at home blog.alerdingcastor.com/blog/alerding-castor). Now for those of you scratching your head and wondering what a "clickwrap agreement is", the answer is simply those pesky agreements that we all have to agree to in order to do anything on-line and that none of us actually read. I'm fascinated by this stuff and I'll probably only read one in twenty that I ever click past. They are the superfluous hurdle that we fly past in order to enjoy our Internet-y goodness. But, as Janet so wonderfully pointed out, these hindrances are actually contracts to which we are binding ourselves, or worse, our companies. "What" you exclaimed under your breath, "You mean this is binding on me?" And I'm forced to tell you, "yes". Which leads to the inevitable "so what" question.

The "so what" in this scenario is that you are likely locking yourself into a venue-selection provision. I know the phrase sounds like you are making the decision of whether your play Deer Creek or Red Rock during the next summer tour cycle, but actually you are significantly limiting your options from a litigation standpoint. Venue is the place where a lawsuit can be brought. Obviously, you would like to bring a lawsuit near where you are located and where there is law that favors your position, but if you agree in contract that it will be brought in Poe-Dunk, North Dakota, well then friend, that's where you are headed.

Recently, several courts have concluded that venue selection provisions contained within a clickwrap agreement are enforceable. The most recent cases involve the venue-selection provision in the Google AdWords contract. In TradeComet.com v. Google, a New York District Court found that the language from Google that

"THE AGREEMENT MUST BE CONSTRUED AS IF BOTH PARTIES
JOINTLY WROTE IT AND GOVERNED BY CALIFORNIA LAW EXCEPT
FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE GOOGLE
PROGRAM(S) SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL
OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA,
AND GOOGLE AND CUSTOMER CONSENT TO PERSONAL
JURISDICTION IN THOSE COURTS."

required the dismissal of an action brought in New York court. The District Court went through a very succinct analysis of the standards for enforcement of a venue-selection provision and then made its determination of both (a) the enforceability of this agreement and (b) the reasonableness of enforcement of this provision in the instant case.

Another court reached the same decision in Flowbee International, Inc. v. Google, again looking at this venue-selection provision in the Google clickwrap agreement. In that case, the District Court ordered transfer rather than simply dismissing the action, but it nevertheless did transfer the case to the Northern District of California.

These two cases illustrate the fact that when you click on that little box, you might be shoehorning yourself into a court that you don't want. To date, most courts have applied the same analysis to as these courts did to determine that you, my friend, are stuck. In fact, the District Court for Southern Indiana reached this decision in Appliance Zone, LLC v. Nextag, previously cited by Ms. Croswell.

Now if you're sitting there wondering, "Ok, Mr. Bigshot at the information technology law firm, what is a poor web-browser and member of the 21st century to do?" My only answer is: tune back in to Part 2.

2010 Top 50 Indiana Super Lawyer: Brian Hewitt

Thursday, February 18, 2010 by Janet Monroe

Indiana Probate Litigation, Indiana Entrepreneurial Law

Congratulations are in order to Brian Hewitt, the newest parter of Alerding Castor Hewitt, LLP, who was recognized this week as one of Indiana's 2010 top 50 Super Lawyers.

Brian concentrates his practice on estate, trust, and guardianship planning, administration, and litigation; and mediation and business law.

He is a Certified Estate Planning and Administration Specialist, a Fellow of the American College of Trust and Estate Counsel, and a member of the Probate Litigation Committee of the American College of Trust and Estate Counsel.

Brian has spoken widely at continuing education seminars on estate planning, business succession, litigation, and mediation.

Congrats Brian!

We are proud that you have chosen to join us as a named partner of Alerding Castor Hewitt, LLP, an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.

Bill Boncosky Joins the ACH

Monday, January 4, 2010 by Janet Monroe

Alerding Castor Hewitt, LLP, Indiana Technology Litigation, SaaS Litigation

Alerding Castor Hewitt, LLP is proud to announce the addition of Indiana technology lawyer Bill Boncosky to the firm.

The former General Counsel for ExactTarget, Bill has tremendous experience as technology counsel for one of the most successful technology start ups based right here in the heart of Indianapolis. A company that had just over a dozen employees when he joined, Bill has substantial experience in licensing agreement negotiations, ASP Law and Cloud Computing Law serving in that role for over seven years. He will be able to provide significant guidance based on solid experiences to many of our clients operating within this industry.

If you're looking for SaaS legal consulting, the attorneys at Alerding Castor Hewitt, LLP can help. The newest attorney to join the firm, Bill Boncosky, is no exception.

E-books for Lawyers: The Future or Flash-in-the-Pan

Friday, November 20, 2009 by Chris Stephen

As an admitted technophile, I can't help but look into all the newest gizmos and gadgets. Plus, working at an information technology law firm, I can even bill it sometimes. Thus, I've recently begun a fascination with e-books. Jason Wilson has done a very interesting set of blogs looking at the use of e-books (or lack of use) for lawyers (www.jasnwilsn.com/). Jason's viewpoint is as a counterpoint to a recent set of blogs by Professor Eugene Volokh (volokh.com/2009/10/02/the-future-of-books-related-to-the-law/). I find this debate interesting for lawyers in general, but litigators specifically.

While I appreciate Jason's point of the importance of cloud computing and web based interfaces for lawyers, I have to admit that I personally think that e-readers are likely to have increasing presence in courtrooms around the country. I am genuinely intrigued by the thought of turning to my e-reader to "leaf" through a treatise on privacy litigation or ASP law that I've downloaded while sitting in a courtroom. This is particularly true when the courtroom that I'm sitting in is located in small town Indiana (or any other small town) that is still working on integrated computer systems and look at you askew when you ask about WI-fi. Web based interfaces are extremely important to the 21st century attorney, but there are still limitations. And if technology can allow me to carry treatises and law books that I might need before a court while still using my super sleek briefcase, I'm all for it.

Don't Drink the Kool-aid, Choose Your Partners Wisely

Tuesday, November 17, 2009 by Janet Monroe

Indiana Technology Lawyer, Indiana Technology Counsel I saw a great article awhile back in Entrepreneur and thought I should post the article for those in the formation stages of their next business venture.

I can't stress enough how much time and energy it takes to launch a start-up, and just how much the success or failure of a budding new company rests on the people involved. I see it everyday as an Indiana technology lawyer involved in Indiana entrepreneurial law.

You can count on spending hours upon hours of the day with your business partners, so consider who those people are wisely. At the very least, read this article by Scott Gerber, who is a columnist for Entrepreneur.com's Young Entrepreneur and the CEO of Gerber Entertainment.

Partnerships can turn out to be a blessing or a curse. For every thriving partnership featured in Entrepreneur, there are thousands that end up stagnant, dissolving, dysfunctional or worse--in court. More often than not, performing basic due diligence can keep you from ending up in bad partnerships. So, have you done your homework? Are you ready to trust your financial security on someone else’s personality, work ethic and business acumen? Before you drink the partner Kool-Aid, here is a list of the top ten worst business partners for your start-up--along with some tips to help you avoid this cast of characters:

Mr. Employee
Mr. Employee is a first-time entrepreneur with a pristine resume and an abundance of references. He enjoys collecting a weekly paycheck, health benefits, and eating dinner with his family nightly at 7 p.m. Unfortunately, Mr. Employee isn’t really self-sufficient and doesn’t know how to move the business forward without you instructing his every move. Plus if your investment deal doesn’t pan out soon he is going to need to find a “real job” to pay the kids’ college tuition. Tip: Risk-adverse individuals who do not share your priorities will not be productive partners. Pass up individuals who cannot commit equal time, energy and financial resources.

Mr. Perfectionist (also known as Mr. Procrastinator)
Mr. Perfectionist needs every “i” to be dotted and “t” to be crossed before he schedules an official product launch date. He enjoys researching competitors, building industry case studies and improving his 150-page business plan. Mr. Perfectionist really wanted the new business to be up-and-running by now, but still feels something isn’t quite right. He plans on putting together another comprehensive survey to send to all of his colleagues, friends and family in the next few weeks to help flesh out the concept further. Tip: A good plan today is always better than a perfect plan tomorrow. Steer clear of excuse-prone procrastinators. Seek out self-starters who run with the ball and make things happen.

Mr. College Buddy
Mr. College Buddy had a stroke of genius while out at the bar one night, wrote it on a cocktail napkin and asked you to help him “make it happen”. He enjoys bragging about his great idea and giving you directions on how to execute (he’s not into the “heavy lifting” thing). The issue: he’s moving across country to start med school in the Fall. But fear not, Mr. College Buddy will make himself available by phone when he’s not studying, working, in class or on a date. He’ll be sure to forward you the address where you can mail his 50% of the profits. Tip: Never assume all of the risk in exchange for half the reward. Ideas are worthless without proper execution. Before you bring a co-conceived idea to fruition, make certain that your partner plans to be around for the long-run. Napkins are not legally binding. Always execute an operating agreement.

Mr. Inventor
Mr. Inventor thinks he’s created the next billion-dollar widget. He enjoys giving two-hour dissertations on Chinese electrical engineering standards to investors and making business decisions based on ‘nice people’ and ‘gut feelings’. Mr. Inventor doesn’t really understand the phrase ‘in the black’, but feels it’s imperative to spend all of the company’s investment proceeds on research and development. Tip: Brilliant academics are not necessarily brilliant businessmen. In lieu of a partnership, first consider licensing deals or strategic partnerships. If you decide to go ahead with a partnership, be sure your agreements clearly distinguish the differences between product control and operational control.

Mr. Right
Mr. Right will be the first person to tell you that he is never wrong. His favorite phrase is ‘my way or the highway’. He will rarely discuss his decision making process because he views such discussions as a weakness. He enjoys demeaning partners who don’t agree with him and making decisions without telling them. Funny thing about Mr. Right: he always seems to blame everyone but himself when his plans don’t pan out. Tip: Communication is the key to a successful partnership. Find a collaborator, not a dictator. No one is always right.

Mr. Dreamer
You’ll hear Mr. Dreamer say this line a lot: “One day, when we’re millionaires…” He loves talking about retiring by 29 and how he intends to spend his hypothetical millions on a gold plated yacht that he’ll dock off the coast of his private island. One small problem with Mr. Dreamer: he doesn’t seem to know how to keep the business above water next month. Tip: Big paydays come from years of hard work and persistence, not excessive rambling and daydreaming. While it’s important your partner be both positive and optimistic, it is equally important that he or she is grounded and focused.

Mr. Spender
Mr. Spender can’t possibly survive without a six-figure salary, lavish office and an in-house cigar roller. Price is no object when it comes to entertaining a client or flying first class. If you’re lucky, Mr. Spender might even invite you to one of the extravagant dinner meetings that he charges on your company’s corporate card. Tip: There is no such thing as the unlimited checkbook. Partner with fiscally conservative, financially responsible individuals who strive to make every dollar benefit company growth and development--not their personal lifestyles.

Mr. CEO
Mr. CEO feels compelled to tell everyone that he is a CEO within 30 seconds of meeting him--even if his company is worth less than the paper on which his business card is printed. He loves cocktail receptions, his name written in fancy fonts, and stacks of luxury car magazines neatly piled on a coffee table in plain sight of customers. The only thing he doesn’t seem to like: real work. Tip: Successful companies are not built on titles, talking and toys. Keep away from selfish, egotistical individuals who want to talk the talk versus walk the walk.

Mr. Vacation
I’d tell you more about Mr. Vacation, but I don’t know much about him. He never seems to be around. Tip: No-shows are dead weight and eat away profits. Make sure that your operating agreement clearly outlines partner responsibilities and vacation days.

And the partner to avoid like the plague is…

Mr. Personal Issues
Mr. Personal Issues always has a sad story. On the same day as your company’s keynote presentation at the big conference, his son’s wisdom teeth need to be pulled and his dog died of pneumonia. He would love to attend next week’s investor meeting, but his divorce hearing might tie him up all day. Unfortunately, Mr. Personal Issues can’t afford his legal bills, so he’ll need to pull a little more money out of the company this month to avoid his ex-wife from taking 50% of his equity in the settlement. Thankfully, this will be the last time he needs money… Tip: You’re not in business to be a babysitter or a psychiatrist. Know everything there is to know about a prospective partner before you sign on the dotted line. Discuss everything from business to politics to family life to finances. If a potential partner seems to have a few screws loose, run as fast as you can in the other direction.

SaaS Law - MBO Conference

Wednesday, October 21, 2009 by David Castor

I am speaking this afternoon at the MBO Conference on the Legal Landscape of Corporate Blogging. It was an honor to be invited to participate in this year's conference, and I am truly looking forward to the time.

As an Indiana technology lawyer I monitor areas of law that impact my clients' business worlds. My colleagues and I monitor Internet laws, privacy laws, ASP law, SaaS law, cloud computing law, and various other areas of business law to best advise our clients on how to navigate the legal landscape of emerging technology fields. Blogging law is the topic for today's talk.

We will be covering areas such as copyright infringement, defamation claims, privacy laws and Section 230 protections. We will also address the recent FTC Guidelines on endorsements by bloggers.

This should be an interesting discussion.

10 Cases Where Online Activity Came Back to Haunt III

Saturday, October 3, 2009 by David Castor

This is part III of a hilarious article by Robert Ambrogi on the IMS Expert Services blog. I am an Indiana technology lawyer focusing on entrepreneurial law, SaaS business law and technology law. As such, this article hits home as it lies at the intersection of social media and legal process. Enjoy.

4. Lawyer's blogging backfires

A California lawyer learned the hard way to watch what you say on your blog. His posts helped earn him a suspension from law practice. But the case has an unusual twist. The lawyer in the felony trial was there not as an advocate, but as a juror. Not only that, but he had not disclosed to anyone that he was a lawyer.

Even though the judge warned jurors not to discuss the case, the lawyer wrote about it on his blog. His posts identified the judge by name and described her as "a stern attentive woman with thin red hair and long, spidery fingers that as a grandkid you probably wouldn't want snapped at you." He gave the first name of the defendant and described his alleged crimes, referring to him as "a stout, unhappy man."

If the defendant was unhappy at trial, he later had reason to smile. When the lawyer's blogging came to light, the defendant's conviction was lifted and he was given a new trial. As for the blogging lawyer, he earned an 18-month suspension from the practice of law.

3. Blogging makes bad medicine

When a doctor decided to blog his own med-mal trial, it was a prescription for trouble. The doctor, known to his readers only as Flea, was already writing his blog when he was served with a lawsuit. As the case progressed, he periodically posted about it, describing his feelings when he was served with the complaint and reported on his own deposition.

When the trial finally got underway, he continued to blog, relaying his impressions of the plaintiffs' lawyer (whom he nicknamed "Carissa Lunt"), describing his "dress rehearsal," and accusing jurors of dozing off. While he may have thought his blogging had gone unnoticed by others in the courtroom, that was anything but the case.

During cross-examination of the physician, the plaintiff's attorney – the very one the doctor had described on his blog – surprised him with the question, "Are you Flea?" Yes, he sheepishly admitted. It was, according to one news account, a "Perry Mason moment."

The next morning, the parties entered into a confidential settlement reported to be "substantial." Ironically, jurors probably had no sense of the import of the question. But it was enough to signal that the plaintiffs' lawyer was prepared to delve into the blog in open court. Given some of what Flea had written there, settlement no doubt seemed the wiser course.

2. MySpace, my downfall

When an attractive New York model sued a high-profile billionaire claiming he had pressured her into sex when she was only 16, the tabloids were in a tizzy. Soon, the story was all over the gossip pages.

But it did not take long before reporters at one newspaper discovered the model's MySpace page. Based on what they found there, the newspaper reported that she was in fact a he. It also reported a graphic description taken from the MySpace page of the model's sexual fantasy involving multiple men and women. Further snooping revealed evidence that the model may have been much older than 16 at the time of the alleged affair.

After the MySpace page came to light, the model's lawsuit against the billionaire seems to have fizzled. But the model filed a second lawsuit, this time against the newspaper that discovered the page. She alleged that the newspaper's description of her fantasy defamed her by portraying her as a "promiscuous slut."

An appellate court disagreed. Because the newspaper reported only that the model had a fantasy – not that she actually engaged in the conduct – it did not defame her, the court reasoned. "The references to the Myspace pages merely served to highlight the ambiguity regarding the sexual identity of the person who sued the billionaire," the court said.

1. YouTube, Your Honor

Nothing, it seemed, could derail the nomination of Sonia Sotomayor to be the first Hispanic on the Supreme Court. Nothing, that is, but the resurrection online of her own long-forgotten words.

First it was that now-famous YouTube video. It showed a 2005 speech by Sotomayor to law students interested in becoming law clerks. The difference between serving in a trial court and in an appellate court, she told them, is that a "court of appeals is where policy is made." Conservatives jumped on the comment, saying it showed her to be a judicial activist.

As if that was not enough of a blow, next came the resurfacing of her 2001 speech, published by Berkeley's La Raza Law Journal, in which she said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life."

Fortunately for now-Justice Sotomayor, neither her comment about judicial activism nor her "wise Latina" remark was enough to derail her track to the nation's highest court. But both serve as reminders that no matter what might be at stake, in the age of social media, the shadow of one's past is never far behind.

Today is the Innovation Summit

Tuesday, September 29, 2009 by David Castor

The TechPoint Innovation Summit 2009 is finally here. I have been looking forward to this event this year (which has not necessarily been the case in past years).

This year's focus is more tailored to helping seed and emerging stage Indiana technology companies pursue excellence in developing their innovation, marketing their innovation and seeking funding for their innovation. As an Indiana tech lawyer these topics hit right at heart of the needs I have wrestled through with my clients.

I am moderating the plenary panel this afternoon on Funding Innovation in Indiana. The panel includes representatives from angel investor groups, private equity firms, and state sponsored innovation grant organizations.

Clayton Christensen is the keynote speaker at lunch. I just finished reading his book The Innovator's Dilemma - a "how to" book on business development for innovation companies.

My firm is hosting a booth at the event. Also, keep an eye out for Iasta, who will be hosting a booth near ours.

~~~~~~

Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.

10 Cases Where Online Activity Came Back to Haunt I

Wednesday, September 23, 2009 by David Castor

This article is just too good and deserves a repost on the Business & Culture Blog. I am an Indiana technology lawyer focusing on entrepreneurial law, SaaS business law and technology law. As such, this article hits home as it lies at the intersection of social media and legal process. The article is by Robert Ambrogi and posted on the IMS Expert Services blog. I will repost it in 3 parts - all are worth reading.

What happens in Vegas stays in Vegas. The same is not true of what happens online. With increasing regularity, litigants, lawyers, witnesses, jurors and even judges are seeing their online activities come back to haunt them in court.

This month, Bullseye brings you the best of the worst – 10 of the most outrageous examples of people caught in the courtroom by what they did on Facebook, Twitter or elsewhere online.

Next month, we will tell you how to participate in social media safely, so that your online activities don't get you in legal hot water.

10. Counting keystrokes
Mary Mack, corporate technology counsel for the e-discovery company Fios Inc., once worked on a personal injury case in which the plaintiff claimed that his injuries left him unable to use his hands for anything but minimal activities. Searching the Web for information about the plaintiff, the defense team discovered that he was a blogger. Not only was he a blogger, but he was a prolific blogger.

Had the defense counsel simply confronted the plaintiff with his numerous blog posts, that probably would have been sufficient to discredit him. But the defense team went an extra step. It downloaded all his blog posts and calculated precisely how many keystrokes would have been required to write them all.

When the defense confronted the plaintiff with that number at trial, the plaintiff's facial expression no doubt said even more than his well-functioning fingers ever could.

9. Texting is a no-no
During a video deposition, the deponent, an executive of the company being sued, was in California. Plaintiff and defense counsel were in New Jersey. The deponent's pro hac vice attorney was in Michigan. The video stream showed deponent and his PHV attorney from only the chest up.

Turned out, deponent and his counsel were busy below chest level, texting each other throughout the deposition. No one might ever have been the wiser, had PHV counsel not inadvertently addressed one of these text messages to plaintiff's counsel.

Needless to say, plaintiff's counsel went straight to court, demanding to see the text messages. The defense fought their release, arguing attorney-client privilege protected them. A federal court in New Jersey sided with the plaintiff and ordered the text messages handed over. Texting was no different than passing notes, it ruled, and violated the Federal Rules of Civil Procedure.

8. Twittering from the bench
A magistrate in England found himself steeped in hot water after it was discovered that he was "tweeting" about his cases. It all came to a boil after another magistrate discovered the tweets and complained.

The tweets came after the magistrate was called in on a Saturday to hear bail applications for defendants arrested the night before. "Called into Court today to deal with those arrested last night and held in custody," he tweeted. "I guess they will be mostly drunks but you never know."

He continued to tweet as he heard the cases of three men accused of robbery. For example, one tweet said, "1st defendant. Conspiricy to rob TSB of £500,000. Good start - wrong previous convictions presented." He later concluded with this tweet: "Finished hearing bail. 3 refused for planning robbery of £480,000 from Tsb in Dawley, Telford."

When the magistrate learned that his tweets were to be investigated by a judicial advisory committee, he chose instead to resign from the bench. But even as he resigned, he maintained he did nothing wrong. Where better to defend himself but on Twitter, where he posted this explanation: "I didn't tweet whilst sitting in court but in the retiring room during the break and at the end of the hearing."

TechPoint Innovation Summit 2009

Monday, September 21, 2009 by David Castor

Funding Law / SaaS Legal Counsel - TechPoint Summing

Next week is the TechPoint Innovation Summit. This will be an exciting event for Indiana-based technology leaders.

This year I am pleased to moderate the plenary panel discussion on "Funding Innovation". As an Indiana tech lawyer / SaaS law attorney who helps clients set capital structures and meet capital goals, this is a topic I live and breath and am always striving to see fulfilled. Thus, I am thrilled to take part in this discussion.

The panel consists of venture capital and private equity investors from all over the nation - all with experience in funding innovative companies in Indiana. I have met a ton of technology business owners seeking capital investors to fund their innovation initiatives, but I have met very few who know how to navigate the process well (or even where to begin). This panel will address questions for early-stage, mid-stage, and later stage companies looking for capital infusion.

A bit on TechPoint:

TechPoint promotes technology-based enterprise and economic development through lobbying and government advocacy, educational and networking programs, and strategic economic development initiatives. TechPoint seeks growth in Indiana's emerging technology clusters, including advanced manufacturing, logistics, health and life sciences, and information technology.

The entire summit will be a great event. Many of the topics of the summit are going to be those that I have addressed with my business law / SaaS law clients. Check out the website and the agenda and consider attending.