Slowly the lumbering beast awoke: "Law Firms" just now waking up to law blog PR issues

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ABAJournal has an article about the recent awareness in law firms that law blogs can create PR issues for them to manage.  (Martha Neil, Law Firms Waking Up to PR Issues Posed by Law Gossip Blogs (June 3, 2008) www.abajournal.com.)  Amazing.  How can law firms continue to be so slow to respond to the world of technology when they spend so much energy counseling clients to err on the side of caution and best practices?  The article summarizes the incongruity:

“Today, leaked information can potentially reach huge numbers of strangers throughout the world in record time, thanks to electronic communications and legal gossip blogs—yet many law firms aren't focusing on this risk.

(Ibid.)  In addition to the PR disasters and issues mentioned in the ABAJournal article, perhaps it will take a few high-profile PR implosions on law blogs to convince the techo-phobes at the top of the law firm food chain to recognize law blogs as a new avenue for journalism, editorial commentary and public discourse.

The complex litigation mavens are ahead of the curve.  To survive the demands of modern complex/class litigation, litigators need every technological advantage they can find.  Online information, including law blogs, are now a staple for such attorneys.  But, in the grand scheme of things, complex (including class action) litigation is a tiny slice of the civil litigation pie.  It will take time for the techonolgy tools and resources of complex litigators to migrate into widespread, general use.  (Actually, I worry that it may take centuries for the legal profession to "get with it," as the legal profession, in general terms, strikes me as the most resistant to change of any profession on earth...save that really old profession that never need to change, and even that profession has embraced technology to deliver its wares.)  Until all civil litigators unite in their awareness and use of law blogs, be proud that you are on the leading edge, just by reading this post.

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COMPLEX TECH: The Complex Litigator is giving Twitter a test-drive

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TwitterThe Complex Litigator is giving Twitter a test-drive.  I have been examining the craze that is Twitter for many months.  Apparently, the world is divided into two camps: the Twitter-crazed and "What-the-heck-is-Twit-What-Huh?"  Both the Obama and Clinton campaigns used Twitter to interact with supporters.  In short, and in keeping with the concept of Twitter, Twitter is a tool for posting 140 character or less messages that anyone following your posts can read.  Now for the longer version...

What Twitter does is relatively simple to explain.  How you use Twitter is much harder to define, because of its flexibility:

“Giving you a finite definition of Twitter is tricky. It’s use varies greatly, and depends a lot on the individual user. Technically, Twitter is considered a micro-blogging tool. It’s just like regular blogging, but with one significant rule change. After logging in, you are faced with the question “What are you doing?”, and just like a blog you can share exactly what you’re doing, feeling, thinking, reading - but all in less than 140 characters of entry space.

In terms of the options available for legal web marketing, Twitter - or micro-blogging tools generally - is the shortest method of discourse we’ve seen to date. If e-books & web-distribution of publications are at the longer discourse level, and regular blogs are sitting somewhere in the middle, then Twitter obviously at the far end (short-end?) of our continuum.

So what can you do in such a short space? Actually, quite a bit. Think: chat & discussion, link exchanges, debate, endorsement, or public critique. It’s a big dinner table conversation with peers that you get to choose. The format is also mobile friendly, which in my view, has had a substantial impact on the site’s growth.

(Steve Matthews, Lawyer Marketing with Twitter (May 5, 2008) www.stemlegal.com/strategyblog.)  Because you can include links in a "Tweet" (Twitter post), and because tinyurl.com lets you make short links out of giant links (like permalinks on blogs), you can include quite a bit of information in a Twitter post.

So what with The Complex Litigator do with Twitter?  For now, I will post links to new blog entries and, if anyone decides to follow me on Twitter (hsleviant), I may use Twitter to collect information.  You can actually subscribe to a Twitter "feed" with any RSS reader.

Of interest to lawyers is the fact that Twitter provides a new platform for (1) marketing, (2) collaborative communication with other lawyers, and (3) interaction with clients.  Lawyers using Twitter (effectively - what that means is still being discovered) have reported an increase in website traffic and resulting business.  Twitter is on the bleeding edge of technology-meets-marketing, and pioneering lawyers may stake prime territory in this new frontier.  Or they may end up dead next to a watering hole filled with poisonous toxins.  One or the other.

The over-arching question is whether Twitter can support its own success.  The infrastructure for handling the message traffic through Twitter is probably just short of crazy.  It has suffered a number of outages in recent months, probably due to traffic.  However, the success of Twitter is generating investment revenue for Twitter; the infusion of cash may help Twitter scale up to handle the load.  Of course, as Leo Laporte (tech industry pundit) recently noted, if Paris Hilton ever gets interested in Twitter, it will implode in a day, killing everyone in Silicon Valley (because hundreds of thousands of teens with text-capable phones will "follow" her and then realize they can chat on Twitter).

You can find me on Twitter as "hsleviant" (thecomplexlitigator was too long - Twitter is all about short).

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Court of Appeal denies a Request for Rehearing in Antelope Valley Press v. Poizner, butressing its application of the Borello “right to control” test with an extra footnote

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Greatsealcal100On April 30, 2008, the Court of Appeal (Second Appellate District, Division 3), relying solely on S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 [256 Cal.Rptr. 543], applied the Borello employment factors test to newspaper carriers delivering the Antelope Valley Press, concluding that paper deliverypersons were employees.  (See this blog's May 12, 2008 post on Antelope Valley Press.)  Apparently Antelope Valley Press wasn't thrilled by that decision and filed a Petition for Rehearing. As is usually the case, the Court of Appeal wasn't thrilled with receiving a Brief indicating that it had done a poor job analyzing the situation, because it added a small footnote to its original decision:

“We reject AVP’s contention that the court’s analysis in JKH Enterprises is flawed. AVP asserts that JKH Enterprises did not “consider fully” the decision in Interstate Brands v. Unemployment Ins. Appeals Bd., supra, 26 Cal.3d 770, 773, 775, where the Supreme Court had affirmed the trial court’s determination that certain of the employees of Interstate Brands were not entitled to unemployment insurance benefits, and held that it was proper for the trial court to apply the independent judgment test in reviewing the evidence produced at an administrative hearing because the case affected a fundamental vested right of the employer. We note that the Supreme Court denied review in JKH Enterprises. We also note that the Interstate Brands court did not address the question whether the subject workers were employees or independent contractors. Their employee status was admitted by Interstate Brands. However, Borello did address that issue, and there the Supreme Court simply stated that “[t]he determination of employee or independent-contractor status is one of fact if dependent upon the resolution of disputed evidence or inferences, and the [administrative agency’s] decision [on that status issue] must be upheld if substantially supported.” (Borello, supra, 48 Cal.3d at p. 349, italics added.) The Borello court did not state whether the question of worker status involves or affects a fundamental vested right. As noted in footnote 13, post, the evidence in this case is disputed. Therefore, in deciding this appeal in favor of upholding the Commissioner’s decision that the carriers are employees and not independent contractors for purposes of workers’ compensation insurance, we did so by addressing the question whether that decision is substantially supported by the evidence in the administrative record.

(May 30, 2008 Order Modifying Opinion.)  The Court finished by denying the Petition for Rehearing.  You didn't see that one coming, did you?

I know that the Petition for Rehearing is often filed just to establish that every effort for review has been exhausted prior to filing a Petition for Review with the California Supreme Court.  In other words, the denial is presumed and the rehearing request is mechanical.  But if you file a Petition for Rehearing with the idea that it will actually help your client, think again.  Compared to Petitions for Writs, which are rarely granted, the odds on winning California's lottery must be better than getting a Rehearing Petition granted.

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COMPLEX TECH: LegalTech trade show is coming to Los Angeles

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Legaltech According to the executive director of LegalTech, LegalTech is "the MOST IMPORTANT technology event for the legal professional. . . ."  I suppose I'll take his word for it, since I can't think of a similar event that clearly tops LegalTech.  Slight ribbing aside, I have attended LegalTech in past years and find it to be the best way to effectively compare competing solutions for law technology issues.  Every website tells you that their software has the latest and greatest features, best usability, and so on.  That's all marketing jibberish.  You need to examine a software package and decide for yourself if it looks intuitive and appears to solve (at a price you can afford) issues your firm faces in a way that is better than the solution you may already have in place.

The Complex Litigator will be attending LegalTech this year.  I'll be looking for interesting developments in technology that could make complex litigation and class action practice smoother to navigate.  LegalTech will provide seminars on issues that include:

Best Practices and Issues in Information Management for CIOs and IT Directors • Electronic Discovery Issues in Litigation • Knowledge Management • Leveraging Legal Technology for Practice Management and Transactional Support • E-Discovery Jeopardy! • Corporate Perspectives on EDD • Legal Outsourcing: Trends, Best Practices, and Emerging Markets • “Tomorrowland”- What is on the Legal and Technology Horizon? • Data Privacy Issues for Multinational Corporations

In other words, something for everyone.

A few rising names in legal technology arena are involved in LegalTech.  For example J. Craig Williams, the blogger responsible for May It Please The Court, is on the faculty.  If you handle technology decisions at your firm, or if you offer input in that regard, try to stop by LegalTech and check out what's new.  You'll at least get some free pens with corporate logos on them, and maybe a flashlight for your kid.  I'm hoping for coasters and frisbees.  And a squooshy ball.

Where:  Los Angeles Convention Center
When:  June 26 - June 27

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TJX Companies, Inc. v. Superior Court sets "limits" on class actions under Song-Beverly Credit Card Act of 1971

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Greatsealcal100The Song-Beverly Credit Card Act of 1971 (Civ. Code, § 1747 et seq.), in simplistic terms, protects credit card holders in a variety of ways, including limiting liability for billing errors or unauthorized usage.  In addition, the Act regulates conduct of merchants accepting credit card payments for transactions.  The California Legislature has declared that the Act is intended to mirror provisions in the federal Truth in Lending Act.  (Civ. Code, § 1747.01.)

Some of the protections available under the Song-Beverly Credit Card Act have just been limited or clarified, depending upon your point of view.  In TJX Companies, Inc. v. Superior Court (May 22, 2008) ___ Cal.Rptr.3d ___, the Court of Appeal (Fourth Appellate District, Division Three) construed portions of Civil Code section 1747.08, which provides, in part:

Except as provided in subdivision (c), no person, firm, partnership, association, or corporation that accepts credit cards for the transaction of business shall do any of the following:

(1) Request, or require as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to write any personal identification information upon the credit card transaction form or otherwise.

(2) Request, or require as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to provide personal identification information, which the person, firm, partnership, association, or corporation accepting the credit card writes, causes to be written, or otherwise records upon the credit card transaction form or otherwise.

(3) Utilize, in any credit card transaction, a credit card form which contains preprinted spaces specifically designated for filling in any personal identification information of the cardholder.

The Court of Appeal, hearing Petitions for Writs of Mandate, was asked to (1) determine whether a one-year statute of limitation applied to the penalty provisions in section 1747.08, and (2) determine whether section 1747.08 applied to return transactions.

First, the Court of Appeal held that the mandatory language in section 1747.08 rendered the penalties under that section mandatory.  As a consequence the one-year statute of limitation set forth in Code of Civil Procedure section 340 governed the matter, rather than the three-year statute of limitation set forth in Code of Civil Procedure section 338.

Second, the Court of Appeal, construing the language of section 1747.08, determined that the statute was clearly intended to govern initial credit card transactions, not returns that might follow after such transactions.  The Court specifically noted the merchant's need to protect against fraudulent returns as a policy basis supportive of its construction of the Legislative intent.

I routinely see decision like TJX described as "limiting" or "expanding" a particular statutory or regulatory system.  For example Privacy Law Blog said:

“On May 22, 2008, the California Court of Appeal narrowed the scope of claims available under California’s Song-Beverly Credit Card Act of 1971, California Civil Code § 1747.08, ruling that the statute is subject to the one-year statute of limitations of Code of Civil Procedure section 340 and does not apply to merchandise returns.

(Tanya Forsheit, No Shopping Spree for Plaintiffs Under California's Song-Beverly Credit Card Act (May 26, 2008) privacylaw.proskauer.com.)  But is this really accurate?  The TJX decision was a question of first impression.  Did the Court of Appeal "narrow" anything?  I don't think anybody had a definitive answer as to which was the applicable statute of limitation.  You wouldn't need a Writ to find out if it was so clear, would you?  Textual descriptions of this sort seem more useful as a barometer of the author's bias, rather than as an analysis of the outcome.  Editorial characterizations of this ilk are more likely to have some significance if, for example, a number of Courts of Appeal construe a law in one way over many years, after which the Supreme Court weighs in and reverses those decisions.  Then it seems fair to say the the Supreme Court "limited" or "expanded" a particular understanding of the law.

As for questions of first impression about the reach of a particular statute, use commentaries about the decision to guage whether the commenter is "reporting" or just writing an op-ed piece for their constituency.  It's not my intention to single out Proskauer on this issue.  Commentary like this is pandemic to the blawgosphere (there I go, using that horrific term).  I'm sure I'm guilty.  But it's no secret that the consuming audience for Proskauer's perspective isn't your average plaintiff's attorney.

So long as you know where an author is coming from, bias can be useful.  It is a good thing to have a variety of perspectives expanding the public dialog.  Just be careful that bias in analysis doesn't unintentionally create an impression of change where none actually occurred.

UPDATE:  Class Action Defense Blog has a very thorough post analyzing TJX.

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COMPLEX TECH: If your firm doesn't understand technology, digital redaction disasters are inevitable

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With electronic court filings becoming a thing of the present, not the future, adequate electronic redaction is now essential. For example, General Order 08-02, issued by the United States District Court, Central District of California, requires redaction to protect "sensitive and private information."  The Order provides, at Part IV.E:

“The parties shall refrain from including, and/or shall redact where inclusion is necessary, the following personal data identifiers from all documents filed with the Clerk.

  1. Social Security Numbers: If an individual’s Social Security Number must be included in a document, only the last four digits of that number should be used.
  2. Taxpayer Identification Numbers: If a taxpayer identification number must be included in a document, only the last four digits of that number should be used.
  3. Names of Minor Children: If the involvement of a minor child must be mentioned, only the initials of that child should be used.
  4. Dates of Birth: If an individual’s date of birth must be included in a document, only the year should be used.
  5. Financial Account Numbers: If financial account numbers are relevant, identify the name or type of account and the financial institution where maintained, and only indicate the last four digits of the account number.
  6. Home Address: If a home address must be included, only the city and state should be used.
  7. Additional Information: For good cause, the assigned judge may require redaction of additional information.

Before the digital world was fully upon us, redactions were accomplished with a black marker.  Now, attorneys and support staff are preparing documents for filing electronically, and redactions are applied with electronic tools.  Unfortunately, some people believe that a redaction is sufficient if the private text is visibly obscured.  But with digital information, merely obscuring text may not (or will not) actually remove it from the electronic document.  The results of incomplete redaction can be devastating.

In a sex discrimination case against General Electric, Sanford, Wittels & Heisler (based in Washington, D.C.) electronically filed documents for the plaintiffs with large passages redacted.   (Douglas Malan, GE Suffers a Redaction Disaster (May 28, 2008) www.law.com.)   The redactions were insufficient:

“But as of late last week, you could download several documents through PACER's federal court filing system, copy the black bars that cover the text on the screen and paste them into a Word document.

Voilà. Information about the inner-workings of GE's white, male-dominated management and their alleged discriminatory practices against women, which is supposed to be sealed by court order, appears with little technical savvy required.

(Ibid.)  The fallout is that a potential settlement may unravel because of the disclosure of information about General Electric that both sides agreed to keep secret.

A PACER account representative was unaware of the problem until she was guided through the process of downloading, copying and pasting the "redacted" information into new document, where, like magic, it appeared in an unredacted form.  It is important to note that PACER employees do not check filings for redaction adequacy.  That obligation rests on the lawyers.  As noted in Malan's law.om article, "Where once a black marker strike on a piece of paper was sufficient, redaction in the digital world requires special software and the know-how to delete the words behind the shield."  In the GE case, "Plaintiff's attorney Sanford couldn't say what process or software his law firm used to redact the information in the Schaefer case. 'Quite frankly, I'm not involved in the mechanics,' he said."  (Ibid.)  One would venture a guess that this unfortunate attorney knows now.

In a subsequent post I plan on reviewing Adobe Acrobat v.8, which provides secure redaction tools sufficient for all filings and at a price point that should be affordable to even the smallest firms.

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Supreme Court declines to consider whether state laws limiting class actions ban clauses are preempted by federal law

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According to the Associated Press, the United States Supreme Court rejected T-Mobile's appeal in three related cases.  The issue in the three cases is identical: whether state laws limiting class action ban clauses in consumer contracts are preempted by federal law.  As of this posting, the Supreme Court docket does not yet reflect the denial of the Petition in case 07-976.

T-Mobile sought review of a Ninth Circuit decision that precluded enforcement of a class action ban on the ground that a recent "Third Circuit decision (Gay v. Creditinform) created a conflict among the lower courts."  (Gupta, Supreme Court Refuses to Hear Class-Action Ban Issue (May 27, 2008) pubcit.typepad.com.)  [Note: Public Citizen participated in the opposition to T-Mobile's petition.]

State and federal courts have been holding of late that class-action bans in arbitration clauses are unconscionable under state contract law, a result seen in the Discover Bank decision (Discover Bank v. Superior Court (2005) 36 Cal.3d. 148) in California.  Defendants routinely argue that the Federal Arbitration Act preempts state law on this issue.  However, that argument has not met with success; the Federal Arbitration Act expressly saves generally-applicable state contract law of unconscionability from preemption.

UPDATE:  The May 28, 2008 Order List from the Supreme Court includes the Laster v. T-Mobile determination.

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ClassActionBlawg.com provides yet another quality roundup of class-related blog posts

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Paul KarlsgodtOn most weeks, ClassActionBlawg.com surveys the blogosphere for posts topical to class actions.  Paul's latest roundup is probably the most extensive (and most useful) yet.  (Karlsgodt, Class Action Blogosphere Weekly Review (May 20, 2008) ClassActionBlawg.com.)  You'll find links to such blogs as Carlton Fields’ class action blog Classified, Drug and Device Law Blog, and Federal Civil Practice Bulletin.

Of particular note, ClassActionBlawg.com mentioned a guest blogging submission by Elizabeth Cabraser on ACSBlog.  As someone worthy of a WHO'S WHO post in her own right, any comments by Ms. Cabraser are worth a read.

Finally, thanks to ClassActionBlawg.com for including in the weekly roundup an earlier post by The Complex Litigator on developments affecting punitive damage claims in class actions.

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In Korn v. Polo Ralph Lauren Corp., a dash of plaintiff's allegations and a pinch of defendant's evidence beats remand under CAFA

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In Korn v. Polo Ralph Lauren Corp., the defendant found the right recipe for resisting the plaintiff's efforts to remand the matter back to state court.  (Korn v. Polo Ralph Lauren Corp. (E.D. Cal. 2008) 536 F.Supp.2d 1199.)  First, defendant successfully opposed plaintiff's argument that defendant had not established diverse citizenship.  The Court accepted as true the plaintiff's allegation that Polo Ralph Lauren Corp. was incorporated in Delaware, with a principle place of business in New Jersey.  (Korn, at p. 1203.)  Second, the Court coupled plaintiff's demand for $1,000 in statutory penalties per unlawful transaction with defendant's declaration that it had processed more than 5,000 credit transactions to conclude that the amount in controversy exceeded $5 million.  (Korn, at p. 1205-6.)  The moral of the story is that you can plead around CAFA removal, but not if you insist on alleging facts that will undermine any possibility for a successful remand motion.

[Via Class Action Defense Blog]

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LLRX.com includes The Complex Litigator as one of the "Blogs of Note" in the class action realm

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LLRX.com is self-described as "the premier free, independent, one person produced Web journal dedicated to providing legal, library, IT/IS, marketing and administrative professionals with the most up-to-date information on a wide range of Internet research and technology-related issues, applications, resources and tools."  (About LLRX.)  In a recent article, LLRX.com offers a list of online resources for keeping up to speed on developments in the field of class action litigation.  (Scott Russell, Keeping Up with Class Actions: Reports, Legal Sites and Blogs of Note (May 19, 2008) www.llrx.com.)  Along with a few of the usual suspects (e.g., The UCL Practitioner), The Complex Litigator received a mention, for which I am very grateful; LLRX.com reportedly receives over 130,000 unique visitors each month.

Take a look at the article for a list of other resources (some of which are blogs included right here on The Complex Litigator's blogroll).

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