August 2012

I guess the owners of the Grand Resort Hotel in Pigeon Forge, Tennessee have never heard of the Streisland Effect.  Their attempt to sue Trip Advisor for defamation based on the hotel’s inclusion in Trip Advisor’s annual “Dirtiest Hotels” list was dismissed by the federal district court for the Eastern District of Tennessee.  While facts can be defamatory, opinions can not. The court concluded that no “reasonable person could believe that TripAdvisor’s article reflected anything more than the opinions of TripAdvisor’s millions of online users.”

Professor Eric Goldman discusses this case in more detail here.

Seaton v. TripAdvisor, LLCRead the full article

Not surprisingly,  Massachusetts District Court Judge Rya Zobel has allowed the $675,000 statutory damages award against Joel Tenenbaum to stand in full. The background of this case is well known to many people, but the nutshell version is as follows.

Joel Tenenbaum was sued by Sony in 2007.  Sony alleged copyright infringement with respect to Tenenbaum’s download of 30 digital music files.  Harvard Professor Charles Nesson undertook the pro bono defense of Tenenbaum, and the case went to a jury trial, at which the jury awarded $675,000, 15% of the potential statutory maximum. The trial judge, Nancy Gertner (now retired from the bench), reduced this award to $67,500, concluding that it was excessive under the constitutional standard for evaluating punitive damages.  The First Circuit reinstated the verdict, and remanded the case to the district court, with instructions to consider the verdict under the principles of common law remittitur before considering a constitutional challenge.… Read the full article

Interview With Founder of SCOTUSBlog

by Lee Gesmer on August 15, 2012

If I could take only one legal blog with me to a desert island, it would be SCOTUSBlog.  (OK, don’t make fun of me).

Seriously, this blog — devoted entirely to the Supreme Court of the United States (“SCOTUS”) — is a fantastic legal resource.  Everything of interest relating to cases before the Supreme Court is collected here: cert. petitions, briefs, decisions and commentary.  There’s a lot going on at the Supreme Court, and this blog collects and organizes all of it.  It has become an indispensable resource for court-followers. In fact, as Mr. Goldstein notes, people within the Supreme Court (presumably law clerks) access the site hundreds of times a day.

The morning the Supreme Court released its decision on the Affordable Care Act this site was the go-to resource for people all over the world.  It even got the ruling right the first time.

Here’s a link to a GoverningWorks interview with Tom Goldstein (video and text but, irritatingly, in five parts, with more to come), founder of SCOTUSBlog, discussing why the blog was created, how it has evolved, the challenges it presents for Mr.… Read the full article

Despite what lawyers may promise their clients, lawyers cannot guarantee confidentiality in litigation.

Much time and effort is spent negotiating “protective orders” (a stipulation filed by the parties and “entered” as an order by the court).  Usually the “PO,” as its called, provides for three designations: “attorney’s eyes only,” “confidential” and non-confidential.  “Attorney’s eyes only” usually covers attorneys and experts retained by a party, but not the executives or employees of the party itself.

Lawyers work hard to make sure they follow the dictates of a PO.  Most embarrassing for lawyers is when they mistakenly “under-designate” a group of documents (“oops, those documents should have been attorney’s eyes only, not simply confidential.  Can we agree to redesignate them?  You haven’t shown them to your client yet, have you?”). Usually this isn’t a problem (after all, there but for the grace of God …), but sometimes it is, requiring a motion and decision by the judge on how to treat the “mistake.”

Not infrequently, one side will claim the other side has “over-designated” documents: “that shouldn’t be attorney’s eyes only, will you agree to redesignate it a confidential?… Read the full article