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First Circuit Declines to Reconsider Its Holding That Truth May Not Be a Defense Under 1902 Massachusetts Law

First Circuit Declines to Reconsider Its Holding That Truth May Not Be a Defense Under 1902 Massachusetts Law

The First Circuit has denied Staples’ request that it hear the Noonan v. Staples case en banc, or that it ask the SJC to advise it on how to apply the 100 year old Massachusetts statute which provides that “actual malice” may create an exception to the principle that defamation must be false to be actionable.

I posted on this case a few weeks ago (link here), and commented on the agita it had created in the First Amendment milieu. In fact, a vast number of publishers and First Amendment advocates filed an amicus en banc brief urging the First Circuit to reconsider this decision

Today, the Court denied this request and let its February 13, 2009 decision stand. In an order several pages long, the Court found that Staples had waived any First Amendment challenge to the state law by failing to raise it earlier, and that Staples could not, moreover, cite a case supporting the proposition that the law was unconstitutional. Here are some selective quotes from the Order:

Since its initial brief, Staples has argued under the premise that the term “actual malice” in § 92 means “malevolent intent.” Yet, Staples did not then challenge the constitutionality of such a construction. Thus, the . . . opinion found that it need not consider the issue. . . .

The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver. . . .

Further, Staples has not shown that the constitutional issue is so clear that the panel should have acted sua sponte to strike down a state statute, without the required notice to the state attorney general. Staples still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern.

Nor it is appropriate to now certify the question to the SJC. We have answered the question of state law regarding the proper interpretation of the statute, and Staples has not challenged that matter on rehearing. The question of the constitutionality of that state law under the First Amendment is a federal question, which we could answer without certification.

Staples’ petition for rehearing is here.

It is worth pointing out, as a complement to the Staples case, a recent decision by Massachusetts Superior Court Justice James Lemire, issued on January 14, 2009 in Oropallo v. Brenner. The issue in that case was not defamation, but rather the right to privacy under Massachusetts law.  Without going into the facts of the case (which are confidential in nature), the court acknowledged an employee’s “expectation that [certain] details [of her life would] be kept private.”  The court stated that there exists a genuine issue of material fact as to whether [the Town] had a legitimate interest in publishing  [a document that disclosed this information] to Town employees and volunteers that outweighed [the employee’s] interest in keeping aspects of her personal life from public view.”

Accordingly, the Court held, the case should proceed to trial.

In light of these two recent cases it probably goes with out saying, but of course I’ll say it anyways: employers should proceed with extreme caution with respect to statements they make about employees, lest they risk claims of defamation and/or invasion of privacy. Praemonitus, praemunitus.

Free The Market! by Gary Reback

Gary Reback, famed antitrust/IP lawyer and long-time thorn in the side of Microsoft, has written a book entitled “Free The Market!”.  The book will be released in mid-April and is available on preorder at Amazon now.

Based on a few excerpts on Reback’s web site it looks like this will be an anecdotal, “in-the-trenches” book (as opposed to theoretical/academic) that should be well worth reading for those interested in the antitrust/IP wars of the last two decades. Reback was truly in the center of most of the big cases during these years, and I hope his book captures the legal issues, strategies and behind-the-scenes events that he witnessed.

"You Assert That a ‘Spike’ is a Non-Pointed Structure Under This Patent? That Will Cost You $4.6 Million, Counselor!"

As I’ve said so many times in this blog, it’s not the law you need to fear, it’s the judge.

In CU Medical v. Alaris Medical System (a patent infringement case involving medical valves) the patent owner/plaintiff argued that the term “spike,” described in the patent as “a pointed instrument,” included non-pointed structures, such as a tube.The California U.S. District Court trial judge didn’t take kindly to this frivolous argument (in the eyes of the judge).  The judge also found that the plaintiff had made “multiple, repeated misrepresentations . . . to the Court,” another no-no.

The trial court imposed sanctions totalling $4.4 million under 35 U.S.C. Section 285 (“The court in exceptional cases may award reasonable attorney fees to the prevailing party”) as well as Rule 11 sanctions for good measure.

The CAFC affirmed. Here’s is a link to the case: CU Medical v. Alaris Medical System.

Connecticut Supreme Court Briefs Online

Here’s a link to Connecticut Supreme Court Briefs Onlne, a WordPress blog managed by members of the Connecticut bar who attempt to post the briefs in every case that is argued before the Connecticut Supreme Court.  The site also posts a short description of the issue in each case, the decision (when it becomes available) and a video of argument before the Court (also when available).

It would be great if every state did this, and if there were a centralized site that provided access to each state (StateCourtBriefsOnline.com?).

American Lawyer: The USSC Has the CAFC Trembling in its Robes

“Justice belongs to those who claim it, but let the claimant beware lest he create new injustice by his claim and thus set the bloody pendulum of revenge into its inexorable motion”

Frank Herbert

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For those who have access to the American Lawyer (and I realize that at $430/year that’s a tiny percentage of lawyers, and almost no non-lawyers), there’s a interesting article in the March 2009 issue on the impact the Roberts Court’s patent rulings in appeals from the CAFC (six cases, six reversals) has had on the CAFC. The article, titled “The Error of Their Ways,” shows the extent to which the USSC is pushing the CAFC in the direction of a more moderate (less permissive) application of patent law. According to this article, the Supreme Court has the CAFC questioning everything they have ever known about patent law. If this article is to be believed, the Supreme Court has effected a major retrenchment in U.S. patent law.

Oh well. Who said that the law was immune from creative destruction?

You may be able to find the American Lawyer in a library, but I doubt that many libraries would pay that subscription ….