December 2008

Illinois Governor Rod Blagojevich Forgot This Important Rule of Discretion

“Never write if you can speak;
never speak if you can whisper;
never whisper if you can nod;
and never nod if you can wink.”

Martin Lomasney (1859-1933) Massachusetts State Senator, State Representative, Alderman and Ward Boss of Boston’s Ward Eight.… Read the full article

Here is a link to the decision of federal district court judge John W. Darrah (N.D. Ill.), denying the defendants motion to dismiss in the trademark suit brought by the Jones Day law firm against the web site Blockshopper.com, which reports on upscale residential real estate transactions in Chicago and other cities. I wrote about this case in some detail here. Jones Day’s assertion that a post on the site describing real estate purchases by two Jones Day attorneys could create confusion (and therefore constitute trademark infringement) has been widely ridiculed. The judge, however, disagreed. His decision is highly legalistic, and takes Jones Days’ allegations at face value, despite the fact that they are (in the opinion of many knowledgeable observers) implausible on their face (to put it mildly).  Go figure.… Read the full article

Suffice it to say, very few people realize that violating the “terms of use”  (aka the small print that no one reads) on a web site may constitute violation of a federal law that has both criminal and civil penalties.  Yet, this was the basis for the prosecution of Lori Drew,  the woman who allegedly created a MySpace account under the name of “Josh Evans.”   Using this account, Drew developed an online relationship with Megan Meier, a 13-year-old girl.  “Josh Evans” said hurtful things to Megan, who took her own life.

Pamela Jones lays out the legal issues in this case on Groklaw, here, where she links to many key documents, and embeds the EFF’s amicus brief, in its entirety.

I was trying to figure out how to explain to you all that is involved in the case of the U.S. v. Lori Drew, the cyberbullying case that so many lawyers are expressing concerns about.

Read the full article

"Excuse Me, What Isle is the Chutzpah In?"

by Lee Gesmer on December 11, 2008

"Excuse Me, What Isle is the Chutzpah In?"

Whole Foods, in the wake of the D.C. Circuit’s decision reinstating (in a manner of speaking) the FTC’s challenge to the Whole Foods – Wild Oats merger, has filed a most unusual lawsuit in the federal district court in the District of Columbia. Whole Foods is seeking to terminate the FTC’s administrative proceedings investigating the merger. The stated grounds are violation of the Due Process Clause and the Administrative Procedure Act (the APA).

Here is a link to the complaint (scribd.com).

This lawsuit is unusual, to say the least. The essence of Whole Foods complaint seems to be that the FTC has prejudged the case and set an unreasonably aggressive discovery schedule. I’m not aware of any grounds for this legal theory at this stage of an administrative proceeding, but I’m sure that Whole Foods’ lawyers have done their homework, and that these claims have some legal merit. Stay tuned.… Read the full article