The Business Dispute Law Blog by Bill Garrison

In an important case – one in which the opposing parties brought many, many lawyers to the fight – a federal appeals court (the Second Circuit Court of Appeals) rejected a contractual provision aimed at barring merchants from bringing class action claims against AMEX.  LINK

The Court concluded that the expense to be incurred by a single plaintiff merchant bringing such a claim (in this case, an antitrust claim) meant that only an aggregation of plaintiffs and their claims could make it feasible for such claims to be brought at all.  Consequently, the Court concluded, the contractual class action waiver at issue “should not be enforced because enforcement of the clause would effectively preclude an action seeking to vindicate the statutory rights asserted by the plaintiffs.”

While the Court emphasized that it was “concerned solely with the class action waiver contained in the contract between the parties before us,” it is not difficult to make the argument, inevitably to be made by plaintiff attorneys, that the Court’s reasoning necessarily applies to most of the class action waivers utilized in consumer transactions because only a small percentage of consumer transactions involve sufficient potential damages that a single plaintiff, bearing the cost of attorney’s fees and expert costs, could “economically” litigate such claims. 

I would be stunned if this case is not presented to the Supreme Court.  It is of great important to a lot of powerful interests.

Open source software is unquestionably the modern foundation for much important and even artistic collaborative work product.  Put simply, really great and diverse software is developed through the open source process that could not be otherwise achieved.  

But as open source development advances in its scope and reach, inevitable questions arise as to the rights and responsibilities of the original author, i.e., the original developer and copyright holder. 

Foremost among those questions are these: Can a software developer submit his or her code (copyrighted material) to open source availability and yet use the license he or she offers for that code as a means to maintain control over how that code is distributed and modified in the future? 

And if the answer to that question is “yes,” where a subseqent software developer does modify and utilize the original developer’s code in a manner contrary to the applicable open source license, does the original developer have all the remedies available under a copyright infringement claim (because the terms of the license are seen as limiting the scope of the copyright authority granted) – or is the original developer limited to a breach of contract claim (because the terms of the license are seen as not limiting the scope of the copyright authority granted)?

The U.S. Court of Appeals for the Federal Circuit has answered these important questions.  In its August 13, 2008 decision, the Court determined that “Copyright holders who engage in open source licensing have the right to control the modification and distibution of copyrighted material.”  The Court also determined that, where a subsequent developer violates the terms of the open source license, the original developer can assert a copyright infringement claim (because the terms of the license limit the grant of copyright authority) and is not limited to a breach of contract claim.

The ramifications of this decision are significant.  An original open source software developer can take greater comfort in his or her ability to control the original work product and its subsequent uses, and thus pursue creative and economic goals with less fear of competitors “taking a short cut” to the same or more advanced software (i.e., matching the original developer’s work product without the investment of time and labor, and then maybe adding some bells and whistles).  A subsequent open source software developer must exercise great care, including potentially utilizing legal counsel, to ensure that his or her work product reconciles to the terms of the open source license at issue.

If appears the Feds are cracking down on illegal immigration by actually going after those that profit most from it.  Novel approach.

“Law enforcement officials will ‘use all the tools we have, whether it be criminal enforcement or immigration laws to break the back’ of businesses that exploit undocumented immigrants, said Homeland Security Secretary Michael Chertoff at a news conference.”

If this turns out to be more than mere posturing, certain businesses will have to rethink their “blind eye” policies and procedures.  For the rest, this just emphasizes the need to make careful and defensible documentation of employee records.

Here is an interesting perspective on the new federal law prohibiting anonymous and "annoying" internet communications.  The potential scope of such a law, which supposedly makes it a federal crime to  use the "internet… without disclosing [one's] identity and with intent to annoy, abuse, threaten, or harass any person…who receives the communications," is so broad and unworkable as to boggle the imagination.  I knew of any number of people, including myself, that make potentially annoying commentary on internet message boards employing anonymous usernames.  I could get a lengthy sentence for my post-Rose Bowl commentary alone.  Hook’em. 

Texas, like many other states, has passed legislation designed to address the ever-growing problem of identity theft.  The newly-added Identity Theft Enforcement and Protection Act (Chapter 48 of the Business and Commerce Code) requires businesses of all sizes to implement and maintain reasonable procedures to protect "sensitive personal information."   Further, "[i]f an information security breach occurs, [businesses] must notify Texans whose sensitive personal information was, or was reasonably believed to be, acquired by an unauthorized person." 

This new law has important implications in the context of litigation.  When an adversary demands the production of documents and other things, a company must exercise care not to produce such information in a manner that would give rise to potential liability under the law.

A Pennsylvania district court has determined to uphold the separation of religion and government despite mounting pressure from religious interests. 

Law blogger Carolyn Elefant offers advice to lawyers thinking about hanging up their own shingles in Some FAQ on Solo Practice. In her post she answers a series of frequently asked questions about going solo. For instance, she discusses what you’ll need to start a solo law practice, advice on renting office space or working from home, etc.

One of the issues not mentioned is what legal structure a solo practitioner should use. Whether you’re working from home or renting office space, the limited liability company (LLC) will give you the best of all worlds. It’s no mystery why LLCs are the most popular business structure. You’ll get some of the best features of partnerships and corporations, but unlike a sole proprietorships, your personal assets are protected.

I discovered a new legal resource called The Legal Talk Network, a great find. The network produces a number of law-related radio shows, including one called Coast to Coast, co-hosted by J. Craig Williams, of May it Please the Court, and Robert Ambrogi, author of two law blogs.

They discuss the latest legal topics with other law bloggers, such as the Supreme Court nominations, displaced Gulf Coast lawyers post-Katrina, and Internet free speech and privacy law. On their most recent show, they talked about why more lawyers aren’t doing pro bono work. You can listen online or download the MP3s.

Read these words of wisdom passed from father to son in How to Succeed as a Lawyer. Written by lawyer Roland Boyd to his son forty years ago, the letter is timeless. From the State Bar of Texas web site:

11. Remember, to be a good lawyer you must first be a good man.

Your sole ambition should be to be a good husband, a good father, a good neighbor, a good citizen, and a good lawyer. If you achieve this, you will have achieved all the success there is. The pressure of life. In the space age, it is very easy for a young man to get the idea that he must be a dynamic individual, he must break all records, he must set the world on fire. If he gets this idea, he starts life with a handicap. The papers are full of such cases at this time.

12. Remember, don’t ever put your interest in the fee ahead of your interest in the case.

Your future depends more on the manner in which you handle the case than on the amount of the fee you collect.

13. Remember, the primary purpose of the legal profession is to find, recognize, interpret, and preserve the truth.

The quicker you can learn the truth about any situation, the better off you will be. After you learn it, don’t join issue against it.

At the end of the letter, Boyd says that the law is the “greatest profession there is.”  I don’t know about that — I’d rather be a professional athlete — but its got its moments.

Check this out: according to a survey performed in the UK, literally 2-3 billion dollars are lost annually to bullying in the workplace, primarily as a result of victims/workers avoiding work to avoid the jerks that torment them.  Having handled a great many employment cases, nothing amazes me.  But, candidly, I had no idea that bullying, which is not actionable as a legal claim unless it reaches the real extreme (e.g., intentional infliction of emotional distress), is a major impediment to workplace productivity.