Your friendly neighborhood technology legal counsel here: I recently saw an article over at PC World that security firm AVG recently did a study of the safest countries in which to surf the Internet. Seven of the top ten are in Africa, with Sierra Leone rated the safest. The study is based on incidence of attack by a compiled list of virus and malware attacks. The study found that Sierra Leone's average incident rate was one attack in every 692 surfers. Niger also fared well with 1 in 442 rate.
Now, I'm not going to get into the details of the survey, and there are obvious flaws. Particularly since you have a significantly lower number of users logging-on in Africa when compared to the U.S. or Europe. However, the results do bode well for that continent. Result like these may well attract private equity firms who are interested in doing more in the cloud or with SaaS.
Way back in January, 2009, David Castor wrote a good post entitled "Now is the Time to Invest in Africa" (blog.alerdingcastor.com/blog/business/0/0/now-is-the-time-to-invest-in-africa). I can only imagine that findings like the ones from AVG are only going to continue to continue to fuel the investment potential there.
For those interested, the worst places to surf are Turkey, Russia, and Armenia. The U.S. ranked ninth.
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?"
Alerding Castor Hewitt, LLP is a law firm that does a substantial amount of legal work with clients in SaaS law and as technology legal counsel. So much so that we were asked to contribute to Corporate Blogging for Dummies, a best practices book that our friends Douglas Karr and Chantelle Flannery were approached to write. As a law firm that utilizes blogging to reach our current and potential clients, the Alerding Castor Hewitt, LLP website was featured as an example within these pages.Partner David Castor contributed to the sections regarding legal services and our firm's blogging site. Using Compendium'sblogware,we have been participating in blogging for over two years and have been able to connect with private equity investors and constituents in the realm of business law, including software litigation and SaaS legal consulting. Check out Corporate Blogging for Dummies for more information on how you can use this SaaS tool to help grow your own business. Blogging is an effective way to help build a relationship with your audience. This book will show you how.
Back in October, 2009, I posted about the new endorsement / testimonial rules set out by the Federal Trad Commission (blog.alerdingcastor.com/blog/alerding-castor/0/0/ftc-makes-changes-to-blog-law). There has been some development since that time, but mostly everyone is still watching and waiting. The FTC did threaten to pursue Ann Taylor back in April, but otherwise, it has been relatively silent.
That is, however, until now. On August 26, 2010, the FTC reached a settlement with Reverb Communications regarding positive reviews that it left on iTunes for its clients' apps (FTC No. 092-3199). This is an instance where the FTC investigated and pursued an online review source that failed to disclose its material relationship with the party it reviewed.
Reverb Communication reached a settlement with the FTC in which it agreed to remove all product review or endorsement that is currently viewable by the public. There is also a five (5) year evidence maintenance component, including producing all complaints. Finally, there is a requirement that Reverb and its owner deliver copies of the settlement order to all of its current and future employees, agents, and representatives.
I don't really know whether this can be classified as software litigation, privacy litigation, or any other hot-button issue, but as a technology legal counsel, I find this order and settlement to be extremely important. With this very public order, the FTC is making a shot across the bow of all businesses that engage in on-line review of products as part of their business plan. The public nature of the Reverb order is, to me, more telling than any of the language contained therein. Thus, if you blog and '/ or make endorsements as part of your business plan, you need to have your eyes on the lookout for areas where your material connection can be questioned. If those areas, exist, you are exposed to the sanctions and reach of 16 CF.R. 255.0. BE AWARE!
One thing to remember is that the reviews posted by Reverb were not excessive or detailed, and could well have been completely true. "Amazing new game"; "ONE of the BEST"; "Really Cool Game", etc. Obviously, these were not voluminous diatribes expounding the virtues of their client. I almost wonder if the FTC would have scrutinized them as much if they had been more detailed, i.e. if it were more obvious they were paid, would the FTC care as much.
Another point to ponder is that the Reverb order does not go after any of the clients of the company who paid for these endorsements. But, the FTC has considered doing just that in the past. Thus, clients of businesses that are paid for building product and branding support need to be aware of these risks. You may wish to consult with your technology legal counsel to include language in your agreements that protect you against the ramifications of an FTC probe into your marketer. Or if you are a marketer, you may want to consider adding language to your agreements that detail what you will do or won't do with regard to this issue.
Here is a scenario that I can easily see playing out. Marketing Company X enters into an agreement with Client Y for, among other things, on-line marketing and endorsement. Marketing Company X doesn't comply with the FTC guidelines and gets an inquiry. Client Y also gets swept into the inquiry and the "scandal". Client Y then sues Marketing Company X for damages in lost profit, costs, and injury to reputation that it incurs as a result of the improper reviewing. And, I'm not sure that 47 USC 230 would give the Marketing Company X much protection. Thus, if you are Marketing Company X, I suggest that you make sure that such possibilities are clearly addressed in your upfront agreement.
The bottom line is that these laws are not new, but orders like the Reverb order are indicative of a new push by the government to regulate the Internet, and a wake-up call to the fact that the U.S. Government is watching the 'net. If you make your living through the online presence and word-of-mouth, you need to be aware and plan accordingly. Change your actions now to protect yourself down the road.
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
Your friendly Indianapolis attorney and Partner In Success at Alerding Castor Hewitt, LLP here with another post, this time for both business entities and lawyers who find themselves in the trenches of business law, SaaS law, internet laws, and privacy litigation and probate litigation.Partner and fellow blogger Dave Castor sort of beat me to the bunch by pointing out a great blog post by Michael P. Alerding (ACH’s Mike Alerding’s father) at Alerding & Co., LLC, which Dave re-posted below.I encourage all of you to read it if you haven’t already.
Mr. Alerding’s blog is not only great for businesses; it’s good for lawyers, too. We can debate all day long the chicken and the egg analogy about who is to blame for the “downward spiral” Mr. Alerding mentions. I propose that a better use of our time would be to recognize the problem and all work collectively as lawyers and business people to resolve it.Indeed, lawyers have a unique opportunity to help guide their clients to a resolution of issues, and they should feel that it is an obligation to work to get the client to do the “right thing.”Not only that, we as lawyers should take pride in being able to assist with that process.
Of course, I am one of those people who believe that words mean something.But I agree with the implications of Mr. Alerding’s post that the world is getting a little “overly-lawyered” with its legalese.For instance, if you can say something in 10 words, why use 45 to say the same thing?Do you have to flex your ego or demonstrate your academic prowess, or are you trying bill that extra time to demonstrate your worth to the client or partners?Likewise, a deal or agreement should remain a deal or agreement.So, as lawyers, if we tell another lawyer that we are going to look into something, or make a concession, why do we feel that we aren’t bound if we didn’t put it in writing?Why do some of us feel like we can play games (like “gotcha”) with an opposing party or competitor?Why do we as lawyers avoid doing the “right thing” and focus so much on “winning” an argument, or fall back on the excuse “well, I have to be a zealous advocate”?
All that the one-upmanship mentality or reneging on oral promises does is add to an aura of mistrust in a world that, in the modern age of technology, isn’t that big.Lawyers, i.e., folks engaged in the business and practice of law, can take away a lot from Mr. Adlerding’s message in our practice and in our counseling of our clients.
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 neighborhood technology counsel here: A couple of recent state court decisions are going to start personal injury attorneys frothing at the mouth, and might render some sleepless nights for defense attorneys. Both Ohio and Florida recently issued opinions in which they applied their state's respective long-arm statutes to garner personal jurisdiction over an out-of-state resident for tortious conduct that transpired over the Internet.
First, you need to know what a long-arm statute is. Essentially, it is a mechanism by which a state can obtain jurisdiction over an out-of-state resident for activities or actions undertaken that are related to an in-state resident or citizen. Without boring you with the legal details, they stem from the concepts of full faith and credit and due process and require a minimum amount of contact within the state to trigger. And, they have posed a pickle in Internet litigation because the Web allows access from out-of-state residents without actual presence or contact. At least that was the case until recently.
In Internet Solutions Corporation v. Marshall, the Florida Supreme Court, addressing a certified question from the Eleventh Circuit, determined that exercising jurisdiction over an out-of-state resident under Florida's long-arm statute did not violate due process. The basic facts are that Marshall ran a website based out of Washington, where she is a resident. She had no contact with Florida other than a short business related trip several years ago. However, she wrote a blog about a Florida based company and then she and some other posters trashed them online in the comment section. The Florida-based company sued for defamation in federal court under a diversity action (action between two citizens of different states). The district court found no personal jurisdiction and the Eleventh Circuit certified the question to the Florida Supreme Court. The Florida Supreme Court looked at two main analysis points: (1) whether the complaint alleged sufficient jurisdictional facts to being the action within the ambit of the statute, and (2) whether sufficient minimum contacts are demonstrated to satisfy due process requirements. The Court determined that both were satisfied. An interesting analysis point is that the Court reasoned that the long-arm statute had been applied to telephonic, electronic or written communications in the past and that the Internet is an extension of those rulings. Overall, it is a well-reasoned opinion applying a standard long-arm statute to the Internet.
Similarly, in Kauffman Racing Equipment, LLC v. Roberts, the Ohio Court of Appeals reached a similar conclusion when determining if an out-of-state residents comments over an Internet blog about an in-state plaintiff can be grounds for jurisdiction over the out-of-state resident in a defamation action. The Court utilized the same general analysis as in Marshall.
The obvious implications to Internet litigation of these opinions are pretty substantial. Until now, suing for tortious actions done over the Internet has been difficult because of those pesky due process minimum contacts, but that is slowly changing. These cases are a framework for an enterprising personal injury lawyer to sue someone that has never set foot in their state for tortious activities on the Web. And, right now we are only talking about defamation, but why wouldn't it extend to other torts. What about tortious interference with a business relationship, intentional infliction of emotion distress, and assault, to name a few. This is going to change the face of Internet litigation. We are going to see more lawsuits based on this. And, further, you, as a business owner, will need to be aware of what you are putting out on the cyberspace. You may be inadvertently exposing yourself.
And think of the other areas of technology litigation that this can be tied into. Two of the most predominant to me are privacy litigation and cloud computing law. Imagine that I have posted private information about you on the Internet in contravention to the law. We've never met and I've never been in your state, but the Internet has. Under these holdings, I can be hauled into the courtroom to address my actions. Or I've placed something into the cloud that doesn't belong. I've now exposed myself to multiple jurisdictions depending on to whom I have shown the material.
The ramifications are mind-numbing, but we'll see what other states start jumping on board. As I've always said, technology litigation and Internet litigation is in its infancy and we are going to see wide-spread changes from court's making decisions at the federal and state court level. It should be fun.
Be prepared: I'm going to get on a bit of a soapbox. I read a recent article at WSJ.com entitled "Using Social Networking as Legal Tool" (Linked Below). There is nothing wrong with this article. It very succinctly and pleasantly explains how certain law firms are using social networking and the Web to find clients for high-value plaintiff cases. And I don't disagree with that approach. As an attorney posting on a blog, I too hope to use social networking to get business, and would be foolish to argue otherwise. Thus, I cannot fault the firms employing such tactics. And I am glad that a more "mainstream" press outlet would pick up a story of this nature; highlighting the use of technology by lawyers.
The fault that I find, and what, frankly, irks me, is that this article gives no credence to the more innovative aspects of technological use that are gaining hold in the legal community. The article highlights the practice of "ambulance chasing" for the 21st Century. But there is so much more happening in the cyberworld. Legal scholars like Eric Goldman are posting daily with the new and interesting ways that technology litigation and cyberlaw are being explored. Courts are posting their opinions on-line to further the pursuit of knowledge by the populace. Courts and communities are moving to on-line activity such as filing and case work to speed up the legal process and reduce our environmental impact. Technology legal counsel throughout the world are espousing the virtues and pitfalls of cyberlaw. Property rights are being generated in virtual worlds. Privacy litigation is defining what can and cannot be exposed in the real and virtual worlds. Software litigation is defining what can and cannot be done with these wonderful bits and bytes of information. Cloud computing law is going to dominate the future courtrooms of the world as more and more data is put into the cloud. All of these things are happening now.
Our world is becoming a smaller place as we all become more connected, and lawyers are at the forefront of those debates and discussions. Yes, I think it is very interesting that Law Firm X has 25 people on staff twittering and establishing domain names so that sufferers of acute hypersensitivity can find a law firm willing to represent them. PLEASE don't misunderstand me because I believe that allowing those people to easily find representation IS IMPORTANT. But it is not the only thing that is happening out there in the cyber-ether. Instead of focusing on the new and novel way that lawyers are getting business, let's shine light on how those in the legal community are using the Web to define, explain and expand our world.
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.
Your friendly neighborhood technology counsel here: So, Mexico recently passed a new data protection law. On April 27, 2010, Mexico passed the Federal Law for the Protection of Personal data, which is likely to be signed into law by the President in the near future. This law not only allows for a mind-boggling $1.5 million penalty for violation, but it also applies to the private sector. Private and public entities will need to protect themselves from privacy litigation.
This law is much akin to the EU's data privacy laws. Meaning, among other things, that scope of the law is extremely broad. Additionally, all data is included, but certain types of data are given greater protection. This Sensitive Personal Data includes: "In particular, consider those that may reveal sensitive issues such as racial or ethnic origin, health status, present and future, genetic information, religious, philosophical and moral, union membership, political views, sexual preference." (translated from the Bill). The dissemination of any information that contains this sensitive data will require written consent from the owner of the data, the individual.
Now the $1.5 million question: What does this mean for my business? The simple answer is: Potentially alot. In the world of e-discovery and privacy litigation,this issue has already begun to rear its head in the context of the EU's data privacy law. With the number of American manufacturers and companies with a presence and facilities in Mexico, this type of broad legislation could result in the expenditure of millions of compliance dollars to craft protocols and document retention issues. Think of the billions of e-mails that must run through a Fortune 500 company. Now think about how many of those e-mails contain some amount of information that fits within the category I described above. To disseminate that information, each individual has to be contacted and give written consent. Like I said, mind-boggling.
Obviously, society is walking a thin line between protection of information and the availability of information for legitimate purposes. Privacy litigation both here and abroad is going to shape the breadth and direction of that line. And then, when we think we have a handle on it all, we'll start talking about what we are going to do under cloud computing law for that data that is stuck firmly in the cloud.
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.
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.
Your friendly neighborhood technology lawyer here: As you know, I'm a bit of a technophile and I've been watching the iPad craze with interest. There are other similar products that will be inundating the market in the near future (HP Slate and the one that I'm watching with anticipation, Notion Ink's Adam). As I watch, I've come to the conclusion that tablet computers are the future of litigation, whether you're talking privacy litigation, SaaS litigation, personal injury litigation, or commercial litigation. The reality of this technology is that it will allow a lawyer to have his library in his briefcase. I envision the ability to look up a treatise and show it to the judge from the comfort of my tablet, and if necessary, hook up to the wireless and look up the case law needed to win my case. Additionally, as more files go paperless and data is maintained only in an electronic form, the tablet computer will permit entire files to be carried with you. I'm not putting my trial case on mothballs just yet, but I do like to see technology changing the way we practice law. The wise counsel will allow technology to assist them in their practice to allow them to provide the best representation they can.
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 for Part 2 of my riveting analysis of the dreaded "venue-selection clause" In Part 1, I scared you with the reality that when you absently click, "I agree" you are very likely binding yourself to litigate any dispute in a location that is likely not conducive to your case or your pocketbook. And I'm sure that the point you've been wondering about since last we interacted is, "what can I do about it". Unfortunately, the answer is not much.
Your first option is to unplug yourself from the Matrix and steadfastly refuse to agree to anything on-line that forces your hand. You and my Aunt Mildred can then spend your days playing Go Fish and Old Maid while the rest of us soldier on.
Your next likely option is to simply read your agreements. Look for language that gives you wiggle room and latch onto it. For instance, in the American Airlines v. Yahoo case, the language of the provision stated that the end user agreed "to submit to the exclusive jurisdiction of" the court Yahoo liked. This, however, doesn't force you to bring suit there. It simply states that if you are sued there, you have to submit to the jurisdiction. Thus, when Yahoo tried to enforce this provision, the District Court said "no". So, when faced with the daunting reality that you want to sue someone and there is a venue selection provision, go to your friendly neighborhood technology legal counsel and inquire as to the limitations that are actually going to be imposed on you. And if you actually have any negotiating power, you can work to resolve this issue beforehand.
Another option is to litigate where you want anyway and see what happens. You might get lucky, or your opponent may not care. And then, if you get faced with a motion to dismiss, move to transfer to the proper court. Most courts will agree to a transfer before simply dismissing the action. You will have lost some time while the case was pending in your state, but depending on your ultimate goal, you may not care.
My final suggestion is to wait. It is the humble opinion of this writer that as more litigation arises under the on-line contracts that we "sign" and force the hands of folks like you and me, the Powers that Be (i.e. courts and legislators) will undertake to protect your ability to file a suit wherever you darn well please, and you will see cases and laws that change the implications of venue-selection provisions in on-line contracts. The more software litigation and SaaS litigation that we see, the more realistic my "wait and see" option becomes. Of course, the question you'll have to answer for yourself is whether that is a result that you want.
One final - final point is that you should always remember that the venue-selection provision can cut both ways. If the law in your forum is contrary to your position, you too can utilize that pesky provision to haul your opponent to a court that might be better FOR YOU. Likewise, if your opponent sues you in a court you don't like, you can look to that little provision to seek dismissal or transfer yourself. Never forget that, particularly in the litigation arena, what is good for the goose is also good for the gander.
Now, I'm not going to get into the details of the survey, and there are obvious flaws. Particularly since you have a significantly lower number of users logging-on in Africa when compared to the U.S. or Europe. However, the results do bode well for that continent. Result like these may well attract private equity firms who are interested in doing more in the cloud or with SaaS. 
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: 
Alerding Castor Hewitt, LLP is a law firm that does a substantial amount of legal work with clients in SaaS law and as technology legal counsel. So much so that we were asked to contribute to Corporate Blogging for Dummies, a best practices book that our friends Douglas Karr and Chantelle Flannery were approached to write.
Be prepared: I'm going to get on a bit of a soapbox. I read a recent article at WSJ.com entitled "Using Social Networking as Legal Tool" (
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 for Part 2 of my riveting analysis of the dreaded "venue-selection clause" In Part 1, I scared you with the reality that when you absently click, "I agree" you are very likely binding yourself to litigate any dispute in a location that is likely not conducive to your case or your pocketbook. And I'm sure that the point you've been wondering about since last we interacted is, "what can I do about it". Unfortunately, the answer is not much. 
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