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.

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.

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.

It’s the business of bankruptcy, and these days, with four major airlines in Chapter 11, it’s big business.

The litany of firms that will provide professional services to Delta and Northwest as they wade through bankruptcy court will rack up fees of tens, perhaps hundreds of millions of dollars over the next few years. A partner at one of the firms helping Delta charges $795 an hour.

Businesses filing bankruptcy have interests to protect, and lawyers are needed for a variety of reasons, such as making sure companies adhere to bankruptcy law and helping to draft reorganization plans that are proper. Lawyers have to earn a living like any other professional, and the bad rap is often undeserved, but $795 an hour certainly strikes a chord amongst those creditors who are recovering only a small percentage of what they are owed.

I was able to get to my apt at the Anchorage Sat 09/03/05," said one message posted yesterday. "Came in thru Eden Isles off Hwy 11 — the beautiful white anchor at entrance is covered in about 7 ft of debris and there is only a one-lane path to enter/exit until over the little bridge."

Also featured is fellow law blogger Ernest Svenson, also known as Ernie the Attorney, who is from New Orleans and evacuated to Houston, Texas and later to Baton Rouge. Svenson began posting notes via a friend out of town, to whom he would text messages from the city. Information-sharing during a natural disaster is only the tip of the iceberg of what blogs can and are doing. No longer just a place to rant about politics or tell readers what you ate for breakfast, blogs are dynamic marketing tools, news portals and interactive message boards. They’ve been a blessing to people looking for missing loved ones. Bloggers are posting photos and e-mails from readers, trying to reunite families and friends. Since the disaster began, new and existing blogs are helping refugees and other survivors find places to live, work, and regroup after losing everything in the hurricane, an unexpected but valuable function.

Technorati Tags: blogs, law blogs, katrina, ernietheattorney

Simply this … such agreements are seldom audited, i.e., considered and crafted in light of the circumstances to which they are meant to apply.  More often than not, neither the employer nor the employee exercises any diligence in formulating these agreements in accordance with basic legal requirements.  Employers use form agreements that they attempt to apply in varying jurisdictions to every new hire, no matter what the new hire’s position.  (I personally have reviewed prominent defense contractor non-compete agreements that were entirely unenforceable.)  On the other side, employees sign "new hire" documents without reading the contents.

So who pays the price for this lack of diligence?  Well, usually the employer — both in not being able to prevent a former employee from harming the business by competing, and in the form of significant legal expense trying to "undo and redo" a bad agreement.  For if the employer fails to sufficiently and orginally customize the restrictions set forth in a non-compete agreement, then the agreement is thereafter unenforceable.  Further, in such states as Texas, a defective non-compete agreement remains unenforceable and cannot be unilaterally fixed by the employer (by concession), but only by judicial order or agreement with the former employee, i.e., the employee is not legally bound in any way by the subject non-complete agreement until the employer devotes significant time and money to the problem. 

Believe it or not, while the above "defect and reformation" consequences seem bad enough, these can lead to other, perhaps unforeseen, problems in the hands of a knowledgeable attorney.  For example, what happens if a business has attempted to restrain 10 employees from competing but, for reasons of defective agreements, has only successfully restrained 7 of those employees?  The 7 restrained employees can make the argument that, given the harm the business will lawfully suffer from the 3 un-restrained employees, it is of no benefit to restrain the other 7 employees, i.e., since there are 3 leaks in the boat that can never be fixed, there is no point devoting resources to fixing 7 other leaks in the boat.  The boat is going to sink.  That a non-compete agreement be of real benefit to the employer is a requirement, in Texas for example.  Peat Marwick v. Haass, 818 S.W.2d 381 (Tex. 1991). 

Why endure such uncertainty when these problems can be avoided with a little advance consideration?  Audit your non-compete agreement(s), whether you are the employer or the employee.  Know your rights and obligations under the agreement.  It could benefit you down the road in ways you never imagined.