June 2009

"STOP PUTTING CLAUSES INTO YOUR CONTRACTS THAT SAY YOU CAN AMEND THE CONTRACT AT ANY TIME IN YOUR SOLE DISCRETION BY POSTING THE REVISED TERMS TO THE WEBSITE" . . .

June 11, 2009

… says Professor Eric Goldman, in his apologetically belated comments on Harris v. Blockbuster Inc., (N.D. Tex. April 15, 2009).  I discussed this case briefly in April, shortly after the decision was published.  To reprise, the court held that an arbitration clause in Blockbuster’s online t’s and c’s was unenforceable because Blockbuster was permitted to unilaterally amend the contract without notice. Prof. Goldman’s take on it (in addition to the title of this post), is – This language has a significant risk of killing the entire contract, which would strip away a lot of very important provisions that should be/need to be in the contract. So far Blockbuster has only lost its mandatory arbitration clause, but it’s possible other important risk management clauses (warranty disclaimer, liability limits, dollar caps, etc.) will similarly fall. If those clauses fail, let the plaintiff feasting begin! Professor Goldman has commented on a Ninth Circuit case to similar effect, Douglas v. US District Court ex rel Talk America, (9th Cir. 2007).  After discussing that case (which is very similar to Blockbuster), he stated: Although I don’t have any great practice-oriented recommendations based on this opinion, I do hope this opinion will help contribute to the demise of the “check back frequently for amendments” provisions in online user agreements. I’ve always considered those among the worst excesses of the dot com era.

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Google's Antitrust "Charm Offensive" and Consumer Watchdog.Org's Response

June 9, 2009

Surely, Google doesn’t want to go through what so many dominant companies in the U.S. have had to suffer – government antitrust scrutiny, in the form of merger/joint venture challenges and even, God forbid, a Microsoft-like monopolization suit.  For better or worse, intensive antitrust scrutiny is the price of success in the U.S., and while it can’t be avoided altogether, perhaps it can be minimized.  Or so Google hopes. To that end, Google has made available a webinar entitled “Google, Competition and Openness.” Consumerwatchdog.org is not buying it, and their “anonymous mark-up” of the document (giving it a grade of “F”), is embedded from Scribd.com, below. Anonymous Analysis of Google Charm Offensive

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"No, You May Not Buy a Judge," Supreme Court Rules, and the Dissent’s "40 Questions"

June 8, 2009

“Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935), quoted in Justice Scalia’s dissent in Caperton v. A.T. Massey Coal Co. —————– In mid-March I wrote a post about the decision facing the Supreme Court in Caperton v. A.T. Massey Coal Co. The issue was whether a state court judge’s failure to recuse himself from a case in which he received substantial campaign donations from one of the parties violates the Due Process rights of the other party. The Supreme Court issued a 5-4 decision today, holding that the judge’s failure to recuse in this case did violate the due process clause. The majority decision was written by Justice Kennedy, who was joined by Justices Stevens, Souter, Ginsburg and Breyer. Chief Justice Roberts dissented, joined by Justices Scalia, Thomas and Alito. Justice Scalia wrote a separate short dissent. I am a great fan of unanswerable, hypothetical questions (computers can provide answers, but only people can ask questions), so I quote in full the following “40 questions” from CJ Robert’s dissent. The dissenters intend these questions to show the extent to which the majority opinion has opened the field to collateral litigation over judicial disqualification: 1. How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”?…

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