Another post that doesn't quite fit neatly into Indiana Internet litigation or privacy law, but that intrigues me. BusinessWeek, passing along a Tim Greene article from NetworkWorld (found here: www.networkworld.com/nwlookup.jsp), is reporting that the U.S. military has issued an essay in which it urges its expertise in defense be put to use in protecting civilian networked infrastructure, such as power grids, financial institutions, etc. The essay from Foreign Affairs sets out the concept that our military networks are probed and scanned by outside sources millions of time a day by enemies looking for weakness and access. The Pentagon fears that the civilian cyberstructure could also be at risk from cyber-terrorism and that the U.S. military can help by using its tools to protect those necessary networks.
This concept imposes a sense of fear and foreboding in your friendly neighborhood technology legal counsel. On one hand, I can recognize the importance of protecting those networks. If Bruce Willis and Justin Long taught us nothing, it is that a "fire sale" can cripple this country (and big props to Kevin Smith for his part in that flick). Other than our Amish citizens, we, as a people, rely so heavily on our networks that we need to protect them. However, the idea of the government and military putting their hands into the inner workings of those civilian networks also scares the heck out of me. There are too many "technology deciding it knows what's best for us" movies for me to not worry about increased presence of government and military in our cyberworld.
I guess, the reality is that I have no answer to this issue, but I thought it was interesting. Like many of the questions we see arising in the cyberlaw realm, the answer to military intrusion in your civilian networks is "how much are you willing to give up in order to be safe?"
Your friendly Indianapolis attorney at Alerding Castor Hewitt LLP here with a history lesson and tie in to business law. Most of you have probably heard the term “gerrymander” and know that it refers to a process of dividing a territory into districts in order to give one political party an advantage over another by concentrating the voting strength of that party in as many districts as possible.Fewer of you probably know the origin of the term, and I imagine that even fewer know much about the man whose name spawned the term.
The term first originated in 1812 to describe a rather bizarre looking district boundary in Essex County, Massachusetts attributable to then-Governor of that state, Elbridge Gerry.Gerry had signed a bill passed by the state’s legislature to redraw districts that favored his party, the Democratic-Republicans, over the Federalists (whose influence was on the decline).Gerry would go on to be elected Vice President later that year and served under President James Madison; however, he died a couple of years later in office at the age of 70, thereby becoming thefirst Vice President who did not go on to become President.
Despite the notorious practice that has been associated with his name, Gerry was a Founding Father who made several contributions to the country:For example, he was a signer of both the Declaration of Independence and of the Articles of Confederation.He was also among the dissenting voices that refused to sign the Constitution because it did not contain a bill of rights.As those historians among you know, it was an agreement to create the Bill of Rights (the first ten amendments to the Constitution) that helped to secure ratification of the Constitution.
So how does this tie in to business law, and how does it relate to our business law, Saas law, entrepreneurial law, Indiana technology, and trademark clients?It illustrates how one false step can overshadow an individual’s contributions to our global community and then be forgotten to history.We at Alerding Castor Hewitt LLP know how important your name and reputation are to you; we feel the same way about our own name and reputation.It’s why we are committed to working with you at the planning stage of your business, in securing venture capital, and in helping you with your litigation needs so that you can secure and maintain that name and reputation, and the goodwill that goes with it, so that your name doesn’t get sullied and become the next “gerrymander.”
For the second year in a row, the firm committed to this year’s Innovation Summit as the Plenary Panel Sponsor.
This annual event brings together entrepreneurs, executives and policymakers for learning, dialogue and debate on the central challenge of today’s economy – turning today’s ideas into tomorrow’s business breakthroughs. The Summit includes keynote speakers, breakout sessions on a variety of innovation related topics, and dozens of trade and industry booths.
Innovation Summit will feature iconoclastic technology writer Nicholas Carr as the keynote speaker, author of the recently released book, The Shallows: What the Internet Is Doing to Our Brains. Agree or disagree with him, Carr makes us think – and that’s the first step towards innovation.
“There is no other event in the city that brings together this unique blend of people. The end result is sure to be an unprecedented amount of thought leadership in the innovation realm. Alerding Castor Hewitt, LLP could not be more excited to be a corporate partner,” comments David Castor, founding partner of Alerding Castor Hewitt, LLP.
Annual attendees include: Chief Executive Officers, CIO, CFO, CTO Executives, University Presidents, Association Leaders, Marketing Executives, Leading Educators and Scientists & Engineers.
Firm at a Glance:
Practice Areas: business counsel, licensing and technology legal counsel, software litigation
Headquarters: 47 S. Pennsylvania St., Suite 700
Founded: April 2007
Partners: Michael Alerding, David Castor, Brian Hewitt
Employees: 17, nine of them attorneys
Clients: 300, including Compendium Blogware, Iasta, First Merchants Bank, Indiana Bank and Trust, MainSource Bank
Gather 'round kids, this one is interesting. The decision actually came out in May, 2010, and I regret that I haven't had a chance to blog on it until now, but it is still a very interesting order that should have implications to privacy litigation, and litigation in general. In EEOC v. Simply Storage Management, LLC, Docket No. 09-CV-01223, the Southern District of Indiana was faced with the issue of discovery of social networking profiles of two individuals that claimed sexual harrassment by a supervisor. In its discovery, the Company requested "electronic copies of ********'s complete profile on Facebook and MySpace (including all updates, changes, or modifications to *******'s profile) and all status updates, message, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including, but not limited to "How well do you know me" and the "Naughty Application").. . . . " The EEOC went to the Court for guidance and the Court entered an order giving general guidelines, but determining that relevant portions of the social networking profiles were discoverable. Interestingly, the Court did not really address any privacy issues implicit in this request other than to reliance on two Canadian cases to establish that setting your profile to "private" is not a shield from discovery. The Court went on to provide the guidance that (1) any profiles, postings, or messages and applications are fair game; (2) third-party communications to the individuals must be produced if they place the claimants' own communications in context; (3) their photos and videos are fair game, but photos in which they are "tagged" are less likely relevant.
This is a very interesting case because it highlights the battle that is going to rage for years to come between the American jurisprudence viewpoint of discovery and the interest in privacy of what you post on the 'Net. "How much is too much in terms of what I post on a social networking site?" v. "If someone is posting it for everyone (or at least select everyone) to see, why can't I use it to prosecute or defend my lawsuit?" I wish I had the answer, but I think as privacy litigation and cloud computing law continue to evolve, these questions are going to become more prevalent.
Overall, I think Magistrate Lynch took a very reasoned approach to this problem. The issues raised in this case involve emotional distress, and the two claimants at issue both indicated that they had additional mental health traumas, above and beyond what one might "normally" expect in this type of case. Thus, if the question is "could the information shed some light on some aspect of this litigation" (which is always the question in discovery), then I think the answer has to be "Yes, it could be relevant to address those issues." It would be akin to a man claiming to have back pain arguing that photos of him water-skiing after the event in question aren't relevant. The simple fact is that our mental health and where we are emotionally is often evident in what we put on our social networking sites (as an aside, I will say that this is more true for some than others. Some people just need to stop posting things; but I digress). The items posted that show these claimants mental states are relevant. Now, the question of how relevant is still to be answered. If I'm the EEOC at this trial, I'm arguing that nobody posts things like "Today I was assaulted." or "I'm really depressed today because my supervisor assaulted me". For the most part, we sterilize (or most of us do) what we put into the 'Net. Thus, your social network profile is not an accurate snapshot of your emotional well-being.
To me, the more interesting question raised here is what happens when cloud computing law meets American discovery rules in the head-on, no-holds barred, death match that is coming. Things will be in the Cloud and there will be some passing relevance to an issue and then the fight will be on. The question in those cases, which I think is a question in this case as well, but that was not addressed by Judge Lynch, is the logistics of it all. Getting information back out of the Cloud, particularly archival information requires the cooperation of third-party entities and can be very burdensome and costly. Discovery is not meant to burdensome or overly complicated. Thus, we are going to be faced with issues of logistics that will need to be addressed. On top of that you add those pesky privacy litigation issue.
Of course, to bring this post to an actual close, this type of order is why I love these emerging legal questions that are derived from the advent and advancement of technology. There are so many facets to these issues and they strike at the heart of what we have always considered to be the core principles of litigation. But so long as you have parties either wanting money or wanting to avoid paying money, you will have zealous advocates turning over every stone to find the nuggets that make their case a win. And as the legal world polices itself, you will have these debates and conflicts over what is best for the individual case and what is best for the system overall. I think Judge Lynch's order alludes to and addresses both of those overarching concerns.
It’s not often that we at Alerding Castor Hewitt, LLP run into issues regarding the payment of commissions for our business law, SaaS law, and Indiana technology clients.When the subject does arise, however, it usually occurs when an employee separates from employment and makes a wage claim for unpaid commissions.The debate about whether the commissions are wages centers on whether the employee was entitled to the commission at the time of sale OR when the client pays for the product, service, etc.Employers often want to argue that the latter applies, and for two obvious reasons:(1) they want to avoid the penalties for unpaid wages, and (2) it can be economically difficult if not impossible to pay a commission if you don’t have the funds available because you are waiting on the client(s) to pay.
A recent decision by the Indiana Court of Appeals this week illustrates the issue.On Wednesday, the Court issued its for-publication decision in Wells Fargo Insurance, Inc. v. Land, No. 48A02-0911-CV-1099.The facts are fairly straight forward. Mr. Land sold crop insurance for Wells Fargo.After Mr. Land separated from Well Fargo to start his own business, Wells Fargo sued Mr. Land for violating a covenant not to compete. Mr. Land counterclaimed for unpaid commissions.Wells Fargo argued that the unpaid commissions were not earned until after a farmer paid the insurance premium and relied on a written plan or policy to support its position.In contrast, Mr. Land presented evidence – including deposition testimony from a manager – that he was never advised of this policy and was unaware that the policy existed.Mr. Land won at the trial level and on appeal.
In addressing the issue on appeal, the Court of Appeals noted the general rule that a party is entitled to commissions right away on business that he/she has secured regardless of when payment is received by the employer. The Court also noted that this general rule can be altered by written agreement or conduct of the parties.Ultimately, the Court concluded that Wells Fargo’s policy did not alter the general rule because Mr. Land was neither aware of nor apprised of the policy on commissions.
The case illustrates a good point for business law, SaaS law, and Indiana technology clients:trying to simply rely on a written policy, or worse yet, custom and practice, when sued on the issue of unpaid commissions is a tough row to hoe.You will have to contend with credibility issues, who said what, and who was advised about what.A better practice to consider would be a written agreement or signed acknowledgment by your employees that they have received the policy that commissions won’t be paid until after payment from the client is received, and that the employee agrees to be bound by the policy.Anything short of that could result in you having to face the same hurdle that Wells Fargo did.
Your friendly Indianapolis attorney at Alerding Castor Hewitt LLP here with an issue for those of you who, from time to time, might find yourselves embroiled in collections litigation over business law, SaaS law, or technology law matters.How often have you seen a debtor issue a check for payment and include on the memo line words to the effect of “as full satisfaction of claim,” “final payment in full of debt,” or some similar words despite the fact that the debtor owes you more than the face amount of the check?How many of you would go ahead and cash the check, or worse yet not even notice the memo line because you routinely cash every check you receive or utilize an automated system to process checks?
The questions I pose are more than mere hypotheticals.The savvy debtor, or more likely the debtor relying on the advice of savvy counsel, realizes that by including such words on the memo line of a check he or she could create a potential issue regarding an accord and satisfaction of the debt he or she owes to you if you have to file suit to collect on the debt.If nothing else, the debtor knows that you will either have to negotiate with them or spend money litigating the issue.Either way, when it’s all said and done, you will likely lose money collecting on the debt.
The applicable Indiana statute here is Indiana Code § 26-1-3.1-311.I encourage you to read the provision for yourself; however, in a nutshell, it gives the debtor who utilizes the memo line a possible “out” on the debt.For instance, the debt can be considered as discharged if you knew that the check was tendered in full satisfaction of the debt and either (a) before tender of the check did not send a conspicuous statement to the debtor that communications regarding disputed debts or instruments tendered as full satisfaction must be sent to a designated person, office or place, or (b) did not tender repayment to the debtor within 90 days.Those of you who take the time to read the statute might also notice that, technically speaking, the debtor is required to prove that he or she tendered the payment in good faith as full satisfaction and prove that the amount “was unliquidated or subject to a bona fide dispute.”In practice, however, it has been our experience at ACH that courts either do not enforce the technical requirements or, more often, are reluctant to resolve them because they see the issue as a factual dispute (a case of “he/she says v. what you say”) that requires a trial to resolve.
So what should you do when faced with this scenario?The best solution harkens back to the old saw about an ounce of prevention being worth a pound of cure:we at ACH recommend that you implement some process or system to monitor payment checks and, if you find that a debtor is trying to slip by on what they owe you by utilizing the memo line as I’ve described, do NOT cash the check.Instead, notify the debtor immediately of the dispute and non-conforming payment. While the risk is that you might lose out on a payment from a debtor who intends to stop paying you anyway, the benefit of such a practice is that you do not give the debtor a potential defense argument that results in greater collection costs and could result in you being unable to collect on the full debt owed to you.
ALERDING CASTOR HEWITT, LLP CLIENT NAMED 10TH FASTEST GROWING PRIVATE COMPANY IN INDIANA FOR THIRD TIME
Indianapolis, IN – Iasta, the leading provider of eSourcing software and solutions, was titled as the 10th Fastest Growing Private Company in Indiana for 2010 by the Indianapolis Business Journal (IBJ). A third time honoree, Iasta boosted its three-year growth rate at 134 percent.
The report profiled Iasta’s founding’s, current offerings and future outlook.
The IBJ ranks companies by their revenue growth over the last three consecutive years, which must exceed $1 million annually. In 2009, Iasta ranked 17th and in 2008 they ranked 14th. The award is based on revenue growth of the last three consecutive years. Iasta has thrived in a market where many others have been forced to make budget cuts and layoffs. “We’ve established a lot of credibility and there’s a lot of growth yet to be had,” said Bush.
Iasta experienced very rapid growth in its younger years at 80 to 90 percent a year. These days, the company still grows at 30 to 40 percent annually. Bush attributes the success of Iasta to flexibility and high quality in both software and services.
Dave Castor has represented Iasta as general counsel since 2002.
Firm at a Glance:
At Alerding Castor Hewitt, LLP, the attorneys focus on business law, litigation and technology law services. The firm has unique experience in niche markets such as software and technology licensing, e-commerce and Internet law and international business law.
This one is a fun little piece of pseudo-software litigation. The basic facts are that Facebook and its majority stockholder Mark Zuckerberg have been sued by Paul D. Ceglia, who claims 84% ownership in the website juggernaut. The part of this story that has been clogging the Net is that a state court judge in New York actually issued a temporary restraining order ("TRO") prohibiting Zuckerberg and Facebook, Inc. from disposing or selling any of its assets. This has produced the viral "Facebook assets frozen". Interestingly, Ceglia has produced a written contract, making this suit slightly more interesting than prior software litigation involving Facebook ownership in which former students at Harvard claimed Zuckerberg stole the idea from them (which a court ultimately found to be "dorm room chit-chat").
One aspect that the technology legal counsel in me finds interesting is that the Court granted the TRO. Generally speaking a TRO is an injunctive mechanism that can be used to stop someone from doing something. In order to get a TRO, you generally have to show that you have a basis for your claim and that you have a likelihood of success on the merits. I don't know for sure that New York is the same standard as Indiana, but I suspect that it is. That means that a court looked at the documents and found that there might be something here. I find that very intriguing. I will note, however, that Facebook's attorneys filed a motion to dissolve the TRO and noted that it was ex parte, meaning that it was entered without Zuckerberg or Facebook being given the opportunity to respond. It also sets forth that the only evidence presented to support the TRO was a "scant" affidavit. But, one must conclude that the Court nevertheless did the appropriate analysis.
Also, having read the documents filed, there might be something to discuss. However, the biggest issue that I see at the outset is that the contract allegedly happened in April, 2003. It would seem to me that there are is a statute of limitations issue, which may kill this lawsuit before it gets into really fun electronic discovery.
Facebook has removed this case to Federal court, which I think is a smart move. We'll see what develops. But I would urge everyone to consider the reality that this case poses to the software developer or web-designer. From the "Zuckerberg" side, be extremely careful what terms you put in your contracts because you may have to rely on or defend them later (after you are a famous success). In this software litigation, Cegila is claiming 84% ownership in the company based on a damages provision that stated that he would get 1% ownership for each month after January 1, 2004 that the contract was fulfilled. And, if the case survives the statute of limitations issue, this may become hotly contested.
Thus, be careful that you hold tightly to your equity in your company. Don't give it away willy-nilly. And, above all else, get good technology legal counsel; specifically ones that understand what should be in a well-drafted contract and that have available the expertise to determine how that contract language will play out in court.
Your friendly Indianapolis attorney at Alerding Castor Hewitt LLP here with a quick follow up on my first blog regarding collections for our business law, technology law, and SaaS law clients.A link to that post is listed below for those interested.
One of our Saas law clients recently obtained a favorable resolution in one of their cases to collect on a contract from an out-of-state debtor.We had obtained a default judgment for the client and were pressing forward with the proceeding supplemental here in Indiana.I don’t know if the debtor was ignoring the process, moving around the country, or what was going on, but he wasn’t responding.However, he finally contacted us when he ran into trouble trying to enter into a lease; apparently the judgment popped up on his credit history when the landlord ran a credit check.To make a long story short, the debtor was more than willing to come forward to settle the claim with our Saas law client.
This success story just bears out the point of my original post:it’s worth taking some minimal time and expense to proceed with a proceeding supplemental in Indiana on out-of-state folks before undertaking some more involved process.The result can be surprising.
Every once in awhile, I have the inkling to make a blog post that is not about developments in privacy litigation or technology litigation or cloud computing law or foreclosures or any of the other endless stream of ideas and legal thoughts that pass across my desk. This is one of those times. Because, while I think it is important for our readers to know that Mexico passed a new data privacy law or that litigation related to CAN SPAM is likely a rising field, I think it is equally important for our readers and clients to gain insight into the psyche of Alerding Castor Hewitt, LLP as it is viewed through the eyes of this humble writer. Thus the question: Who are Alerding Castor Hewitt, LLP.
First, I must note that I intentionally chose the plural tense in that question because, although I agree that Alerding Castor Hewitt, LLP is an entity that could be viewed as a singular, I fully believe that we are made of the people that permeate this place. Thus, we are a plural. Second, if what you are looking for is our resumes and the curriculum vitae of these Indiana technology counsel, you can check them out on our webpage.
Rather, I intend to discuss who we are in such a way that our readers and clients can relate to the ideals for which we stand. We are the rogues. We are the fighters. We are the fixers. We are the counselors. To a person, the attorneys at ACH are products of years of experience. We have all trudged through the mud of the legal profession in other locales before coming to this place. Which, inevitably, leads to the question of "why here?"
The answer to that simple question is that because here we can be what our clients need. We can be entrepreneurs. We can be fighters. We can truly embody the idea of counselor that so many of us sought when we went to law school in the first place.
Does that mean that I always give my clients the advise that they want to hear? No. My job, and the job of any great attorney, is to give the advise that is warranted in the situation. ACH not only gives its attorneys the ability to do that, but rather encourages it. I can honestly say that I have practiced from the biggest of big to the smallest of small, in the private sector and the public sector, and there is no place that I would rather practice law. I have told colleagues that ask me about ACH that I practice law in a way that every attorney wants to practice when they are honest with themselves as to what they want out of their profession.
This place is filled to the brim with spirit, humor, knowledge, and skill. And I think there are two quotes that best answer the question of Who are Alerding Castor Hewitt, LLP. The first is from Ulysses S. Grant. In a speech in London, Grant stated "Although a soldier by profession, I have never felt any sort of fondness for war, and I have never advocated it, except as a means of peace." The second is from Ode by Arthur William Edgar O'Shaughnessy, but was made famous (in my opinion) by Gene Wilder in Willy Wonka and the Chocolate Factory: "We are the music makers, And we are the dreamers of dreams."
Your Indianapolis Attorney at Alerding Castor Hewitt here with another litigation post for the business and technology world, this time regarding preliminary injunctions.What is a preliminary injunction?In simple terms, it is an equitable remedy that you can seek asking a court to order someone else to stop doing something or cease threatening to do something that is causing or is likely to cause you irreparable harm.It is another weapon in the litigation arsenal, one to restore the status quo between you and another entity until a court can resolve your dispute.
A request for a preliminary injunction can arise in any number of situations.I won’t try to name all of those that I have encountered, but one example involves claims of infringement of intellectual property (trademark, copyright or patent).Another example is interference with a contract.And of course, a recent example is the decision by the U.S. District Court for the Southern District of Indiana in Workman v. Greenwood Community School Corp., cause no. 1:10-cv-0293-SEB-TAB (S.D. Ind. Apr. 30, 2010), enjoining a school from permitting a school-endorsed prayer at a high school graduation.
The difficulty in obtaining a preliminary injunction should not be underestimated.This is in part due to the hefty applicable standard for this remedy, which includes a showing of a reasonable likelihood of success on the merits.And sometimes just finding time on a court’s calendar on short notice to hear your arguments can be a challenge.But if you can convince a court to issue a preliminary injunction, it is not unusual for a settlement to follow on the heels of the court’s order, in part due to the fact that the court will have concluded at that point that you will likely succeed on the merits of your claim.
Another possible result, though rare, is a decision by the court to consolidate a preliminary injunction hearing with a trial on the merits.This happened recently on a case handled by Brian Hewitt and Angela Hopper (a contract attorney who has provided assistance on a number of occasions).Brian and Angela were seeking to obtain a preliminary injunction in a probate litigation matter involving the appointment of a guardian to oversee the health care of an elderly lady.Their clients’ claim boiled down to a request that a settlement agreement be enforced.Not only were they successful, but the court took the interesting step of consolidating the hearing on their motion with a trial on the merits and entered judgment outright on their clients’ claims.
Brian and Angela’s case reveals an exciting aspect of litigation:sometimes the outcome of a hearing can be a surprise (and better than anticipated).In any event, deciding whether to seek a preliminary injunction is no light undertaking.As with any litigation matter, you should consult with your counsel to weigh the pros and cons before making a decision on whether a request for a preliminary injunction will advance your interests.
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.
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.
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.
You might wonder why an Indiana law firm with a practice in several areas of technology (Indiana Internet Litigation, SaaS Legal Consulting to name just two) finds itself supporting a golf outing that raises money for adoption? "As a firm that prides itself on supporting the local community, we don't always align our charitable giving strictly to serve our immediate demographic. There are many organizations deserving of our support and Adoptions of Indiana is certainly one of them," comments Dave Castor, Founding Partner and lead counsel in the firm's involvement with Internet-based companies.
On Tuesday, August 31st Adoptions of Indiana will host it's third annual golf classic at the Golf Course of Indiana. Now in its third year, this event looks to build upon past successes and top past earnings to ensure that critical programming continues for birth parents and adoptive families alike.
Adoptions of Indiana was founded in 1995 by professionals in the fields of mental health and social work whose lives were personally touched by adoption. ADOPTIONS OF INDIANA is a not-for-profit 501(c)(3) corporation that is licensed by the State of Indiana as a child-placing agency.
The agency is a member of the Joint Council on International Children's Services, the North American Council on Adoptable Children, and Indiana’s Adoption Coalition. In addition to being licensed in the state of Indiana, they are also licensed and approved by the state of Connecticut to assist their families who are adopting children born in Indiana.
Adoptions of Indiana works with highly respected and well established adoption agencies and adoption attorneys throughout the United States. Our agency provides domestic and international adoption services to Indiana residents.
Your friendly neighborhood technology counsel here: The Indiana Supreme Court recently discussed the ability of a lay witness to provide "expert" opinions in Sibbing v. Cave, 922 N.E.2d 594 (Ind. 2010). In that case, counsel asked the plaintiff what she believed caused her pain. She responded something to the effect of "the bulging disc in my lower back", and the opposing party objected based on a lack of expert foundation. The basic argument to the trial court was that this lay person cannot provide a medical diagnosis of what caused her pain because she wasn't an expert. The Supreme Court, upholding the trial court, found that a recitation of one's personal belief regarding a fact (in this case, the source of her pain) was within the scope of Indiana Evidence Rule 701.
I can read your minds at this point of my blog. You are thinking, "What in the heck does this have to do with technology litigation, SaaS litigation, software litigation, or any of the stuff that you normally discuss?" The important point of this case is that it can be used to get to "expert" type opinions from a lay person. This is important in tech lit because most of our technology clients have some knowledge as to the x's and o's of what is happening behind the scenes of a given situation or product, but they don't necessarily have enough expertise to survive a full-blown Daubert challenge to their status as an expert. Using Sibbing, a tech litigator (i.e. me) can now ask the straight forward question of "why do you think the widget broke" or "how do you think this SaaS agreement harms your company" or "what do you think your damages are" and allow our clients to spout their opinions, and in the face of a challenge, cite this precedential case. As you can imagine, the potential of this ruling is huge.
Additionally, for those really interested in law-dorking out [yes, I made up that word, so what], there is also a good analysis in Sibbing of the use of the medical diagnosis exception to the hearsay rule found in IRE 803(4) that distinguishes the previously held standard set forth in Coffey v. Coffey, 649 N.E.2d 1074. Not overly important in tech lit, but a good read for any litigator.
Given the firm's technology legal counsel and software litigation practice, it only makes sense that the firm would support the prestigious 2010 Techpoint MIRA Awards Gala taking place on Saturday, May 15th, 2010. It makes for a positive synergy between the two groups.
The TechPoint Mira Awards, presented by BKD, is the premier technology awards program in the state of Indiana. Since the turn of the century, TechPoint has honored Indiana businesses, schools and universities, and individuals for their contributions to the state’s technology-related economy. TechPoint’s prestigious Mira Awards program recognizes leaders and innovators in 11 different business categories.
“As a firm that offers technology legal counsel, we appreciate the opportunity to support TechPoint in an effort to further their mission,” says David Castor, partner at Alerding Castor Hewitt, LLP. “We enjoy supporting our clients as much as we can.”
Firm at a Glance: Practice Areas: business counsel, licensing and technology, litigation Headquarters: 47 S. Pennsylvania St., Suite 700 Founded: April 2007 Partners: Michael Alerding, David Castor, Brian Hewitt Employees: 17, nine of them attorneys Clients: 300, including Compendium Blogware, ExactTarget, Iasta, First Merchants Bank, Indiana Bank and Trust, MainSource Bank
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.
There is a good article on the Mercury News Blog today on How dot-com start-ups have changed 10 years later. The article addresses the maturity of both technology companies and US private equity investors over the last decade. It is an interesting read.
There has been a lot of activity in angel investor groups and venture capital investments in Indiana technology companies over the last few months. 2010 has definitely started with a bang at Alerding Castor Hewitt where we have helped five companies secure funding this calendar year. I am traveling with two technology clients in a couple of weeks to meet with investors in Southern California.
Still, the same rules apply when seeking funding. An early stage company looking for funding must prove:
1. Management Team (including expertise in field and proven financial and leadership ability) 2. Market Opportunity (including the need, ability to meet the need and scale) 3. Investment Opportunity (is the expected return worth the risk of investment)
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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.
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.
Another post that doesn't quite fit neatly into Indiana Internet litigation or privacy law, but that intrigues me. BusinessWeek, passing along a Tim Greene article from NetworkWorld (found here: www.networkworld.com/nwlookup.jsp), is reporting that the U.S. military has issued an essay in which it urges its expertise in defense be put to use in protecting civilian networked infrastructure, such as power grids, financial institutions, etc. The essay from Foreign Affairs sets out the concept that our military networks are probed and scanned by outside sources millions of time a day by enemies looking for weakness and access. The Pentagon fears that the civilian cyberstructure could also be at risk from cyber-terrorism and that the U.S. military can help by using its tools to protect those necessary networks. 
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). 
Given the firm's technology legal counsel and software litigation practice, it only makes sense that the firm would support the prestigious 2010 Techpoint MIRA Awards Gala taking place on Saturday, May 15th, 2010. It makes for a positive synergy between the two groups.
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 
There is a good article on the Mercury News Blog today on 
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.
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