South Carolina Intellectual Property Litigation

South Carolina Intellectual Property Litigation

Defamation of Character Damages – Can You Recover Without Evidence of Actual Damages?

Posted in Common Law, Damages, Defamation, Libel, Presumptions, Slander

This post addresses a unique aspect of defamation law, specifically how a plaintiff whose character or reputation has been defamed can recover damages without proof of actual damage to his or her reputation.

2012-hyundai-sonata-WHY-large-9

As a father of three sons, I always got tickled by the Hyundai Sonata commercial depicted above, although I’d bet my former next door neighbors appreciate it even more than me. You may recall the very patient neighbor finally suggests to the inquisitive little boy, “Why don’t you go ask YOUR Dad? (click link for commercial). Humans have an instinctual need to understand things, particularly things that seem counter-intuitive or are exceptions to general rules. As lawyers, this instinct is heightened to say the least.

As noted by Aaron Hall in this blog post, Minnesota’s defamation law provides, “Defamation affecting the plaintiff in his business, trade, profession, office or calling are defamatory per se and thus actionable without any proof of actual damages.” Most other state’s common law of defamation provides similar presumed damages recoveries for a defamation per se, as opposed to a defamation per quod. However, as noted in this blog post by Dancing with Lawyers, not all state laws provide for a presumption of damages when the statement is a defamation per se.

Defamation, Two Types:  Libel or Slander:

As stated by the Court of Appeals in Parrish v. Allison, the difference between libel and slander can be described as follows:

Defamatory communications take two forms: libel and slander. Libel is the publication of defamatory material by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed word. Slander is a spoken defamation. (Parrish v Allison from 2007 is reported here).  

It should also be noted that the various state laws or rules may be applied differently for slander (spoken words that damage) and libel (written words that cause damage to reputation). Generally speaking, because the written words are with us longer, the law provides greater protection for victims of libel.

Defamation Per Se /or/ Per Quod – What is the Difference?

The distinction is that the defamation per se is defamatory standing alone. For example, the newspaper falsely reports, “Dr. Jim Jones got sued over a dozen times and lost his medical license in Missouri before coming here to practice.” Whereas, a defamation per quod requires the reader or hearer to associate other evidence to the statement to make it defamatory. For example, a news article or a FaceBook / social media posts suggests that an orthopaedic doctor in Town X was reportedly intoxicated when he was called off the golf course last Saturday to perform an emergency surgery, but does not name the doctor. As it turns out, there are only two orthopaedists in small Town X, the other is a female in a wheelchair (who does not play golf), and the only golf course in town is a male only club.

Because the reader must associate other evidence, namely knowing that there are only two orthopaedists in Town X, etc., the reader then associates the male orthopaedic doctor with performing a medical operation while intoxicated, does not immediately discuss it with anyone, but in the future refuses for anyone in her family to see anyone in the local orthopaedic practice, instead leaving town for such services, and in the future repeats the story she heard numerous times in private when the subject of a broken arm or leg comes up in the community. Because the court may classify the story about the male intoxicated golfing orthopaedic doctor as a defamation per quod, to recover for defamation, he would have to, for example, find a witness to testify about how his reputation or character was diminished in the community because of that publication / FaceBook post.

Case Law Explaining the Difference Between Defamation Per Se and Per Quod:

In South Carolina, the law regarding a defamation per se and presumed damages is stated as follows:

Under the common law, “[l]ibel is actionable per se if it involves written or printed words which tend to degrade a person, that is, to reduce his character or reputation in the estimation of his friends or acquaintances, or the public, or to disgrace him, or to render him odious, contemptible, or ridiculous.  (Erickson v Jones Street from 2006 is reported here).

In contrast, South Carolina courts have described a defamation per quod as follows:

If the defamatory meaning is not clear unless the hearer knows the facts or circumstances not contained in the statement itself, then the statement is defamatory per quod. In cases involving defamation per quod, the plaintiff must introduce facts extrinsic to the statement itself in order to prove a defamatory meaning. (Parrish v Allison from 2007 is reported here).

Another way to describe it is like this, in a defamation per se, the plaintiff need only introduce the news article itself, in the defamation per quod, the plaintiff needs the witness / reader of the statement to explain why she knew the article was referring to that particular orthopaedic male doctor. This same witness could then testify that reading the statement damaged the character or reputation of the plaintiff male golfing orthopaedic doctor.

So What to Make of All this Latin Per Se / Per Quod Jargon?:

The role of the lawyer / advocate is to convince the jury and the court that the offending statement is defamation per se (if you represent the plaintiff), or defamation per quod (if you represent the defendant). If the defendant’s counsel fails to convince the jury that the statement is a defamation per quod, their next step is to attack the rebuttable presumption of damages, defend on grounds that the statement is truthful, or that an absolute or qualified privilege applies.

However, some of us must still ask, “why allow a plaintiff to recover without proof of actual damages?” 

It is the embodiment of policy developed over years and years of refinement of the common law. The premise behind that policy is that “one’s reputation is invaluable.” It is also very likely a by-product of the U.S. Constitutional prohibition against a prior restraint of speech. Unlike folks in the United Kingdom who can get what this author considers to be somewhat ridiculous and impractical SuperInjunctions where the court order the press (yes, all of the press) not to report on certain private affairs (i.e., mostly soccer player’s illicit affairs), in the U.S., the constitutional right to free speech necessarily allows you to defame another person, but not without consequences!

The Right to Make the Statement, the Right to Bring the Lawsuit:

If you live in the U.S., you have a right to defame another person, however, the law provides that they can bring an action against you for the defamatory statements and recover. The victim of the defamatory statements does not have to wait around until their reputation is completely ruined, and their business lost, to bring an action. This is in part because, as a general rule, they cannot seek an injunction to stop you from saying or writing things about you, and also supported by the fact that a plaintiff cannot always know, and may never know, who shunned him or her because of what they heard or said from another source.

Defamation Per Se Damages:

The damages recoverable may vary from state to state, or at least the way in which they are described may vary. Some states use the three categories: (i) nominal damages: (ii) actual damages; and (iii) punitive damages. If you are defamed, depending on the character of the comments and the ill will or motivation attributed to the speaker or writer, you may be able to recover nominal damages and punitive damages without evidence of actual harm to your reputation.

In South Carolina, the defamation damages categories are often described by the following three categories: (i) general damages, (ii) special damages and (iii) punitive damages. These general damages in South Carolina represent the presumed category of damages described above and include such things as “injury to reputation, mental suffering, hurt feelings, and other similar types of injuries which are incapable of definite monetary valuation.” Special damages under South Carolina law include “tangible losses or injury to the plaintiff’s property, business, occupation or profession, which are capable of being assessed and which result from injury to the plaintiff’s reputation.” Punitive damages are also recoverable in South Carolina if the plaintiff can show by clear-and-convincing evidence that the nature of the statement is necessary to warn others from committing similar offenses in the future.

Wrap Up:

This brief review of some of the principles in play when there is concern that a statement may be damaging to someone’s reputation, and therefore be actionable, illustrate the complexities that can be involved in a defamation lawsuit. Also, the statute of limitations in defamation cases can be as short as two years, not three years as in most other claims.

If you are involved in a dispute regarding allegations of defamation, either as a potential plaintiff whose character or reputation has been damaged or as a defendant, you should seek counsel that is experienced in handling these types of cases in the state in which the action will be brought, understands these distinctions, why they exist, and how to use them in your case.

 

5 (or More) Reasons not to ABANDON the “Duty of Loyalty”

Posted in Confidential Information, ERISA, Fiduciary Duty, General, Jury Issues / Trial, Loyalty, Trade Secrets

This post started as a “5 Things You Need to Know about The Duty of Loyalty,” however, the many lessons to glean from the Western Blue Print case out of Missouri in 2012 covered below caused a title change. So here are 5 thoughts on the often neglected Duty of Loyalty, and reasons why it should not be ignored or abandoned:

1.  What is the Duty of Loyalty? The Duty of Loyalty is defined in numerous ways in varying contexts:

  • Cornell University’s Legal Information Institute defines the Duty of Loyalty as follows: “The duty of loyalty stands for the principle that directors and officers of a corporation in making all decisions in their capacities as corporate fiduciaries, must act without personal economic conflict. The duty of loyalty can be breached either by making a self-interested transaction or taking a corporate opportunity.”
  • Black’s Law Dictionary defines the adjective “loyalty” as a “faithfulness or allegiance to a person, cause, duty, or government.”
  • Black’s Law [Free Online] Legal Dictionary defines the Duty of Loyalty as follows: “A legal requirement in certain systems where the BOARD OF DIRECTORS and executives must ensure that any action taken is done in good faith and with the best interests of shareholders in mind. A breach of duty of loyalty can lead to legal action by shareholders.”
  • In pretty much every state, every employee owes a Duty of Loyalty to his or her employer.
  • The [Employee’s] Duty of Loyalty can negate a statutory right to wages, and some stout wage payment remedies, including trebled damages and attorneys’ fees. As stated in our supreme court’s favorite legal treatise at 14 S.C. Jurisprudence 32 (Labor Relations) (citations omitted):
    • “Wage Payment Act provisions requiring employer to pay wages due to terminated employees do not supplant employee’s common-law duties of loyalty and fidelity to employer; if employee breaches duty of loyalty to employer by soliciting employer’s customers for competing company while working for employer, forfeiture of employee’s wages is appropriate.”
    • For example, Judge Ralph King Anderson, Jr.’s South Carolina Requests to Charge  provides a charge for Employment Contract – Breach of Duty of Loyalty jury as follows: “An employee is not entitled to any compensation for services performed during the period he engaged in activities constituting a breach of his duty of loyalty even though part of those services may have been properly performed.”
  • Other states, for example, Missouri, provide the following regarding the Employee’s Duty of Loyalty: “Every employee owes his or her employer a duty of loyalty.” Interestingly, the Missouri Supreme Court in Western Blue Print Co., LLC v. Roberts (quoted above) held that the employee(s) in question did not owe their employer a fiduciary duty, and the plaintiff there ABANDONED its Duty of Loyalty claim in favor of the theoretically broader Fiduciary Duty claim. The distinction drawn in casting off the Fiduciary Duty claim was the fact that the scheming employee, Myrna Roberts, was not an officer or a director in the company, and apparently the court was not apt to expand The Fiduciary Duty to all employees. Perhaps because they could affirm the result on the tortious interference claim. It appears that the ABANDONMENT of the Duty of Loyalty claim, in hindsight, may have been a mistake, but could also have been part of a trial strategy as it is commonly believed that the Duty of Loyalty is subsumed within The Fiduciary Duty. Still further, the practical differences between the facts required to prove a tortious interference with contract and a Breach of the Duty of Loyalty are, arguably, minimal in this circumstance given Myrna’s employment contract.
  • A similar interplay of legal duties is involved for attorneys representing insureds under a policy requiring the insurer to indemnify and defend the insured.

Any or all of the above aside, when a jury gets charged on the Duty of Loyalty, we believe their instincts will inform them as to what it means. However the duty may be defined or charged, expect that the factfinder will understand very well the concept as one that is not likely to be twisted by knaves. They will be thinking about their Labrador Retriever that licks their face every morning and sits by their side every night loving them, and barks to warn of any change in circumstances at the house.

It may not be that the jurors can define loyalty, or even care to, but like Justice Potter Stewart / Alan Novak on hard-core pornography, they “know [disloyalty] when they see it.” The jury will not need Carrie Underwood to understand and decide if the accused defendant was “stand[ing] by” the plaintiff or merely or merely pretending.

2.  In what context does the Duty of Loyalty most often arise? The great thing about writing a blogging piece and titling it as “The X Things You Need to Know,” is the blogger can offer themselves “softball” questions. But is this really a softball question? Does the duty arise most often in breaches by employees-to-their-employers or by fiduciaries-to-their-beneficiaries, as in the recently reported Tibble v. Edison Int’l case decided by the U.S. Supreme Court, a/k/a SCOTUS, or by Boards of Directors? Certainly the effects of the latter two breaches can be far reaching and impact many employees or shareholders.

3.  How does the Duty of Loyalty interact with other legal duties? As noted in our previous “spectra” post, the Duty of Loyalty along with the Duty of Reasonable Care are generally considered to be embodied within The Fiduciary Duty. The Duty of Loyalty could also embody the same duties of confidentiality as provided for in a non-disclosure agreement. As noted above in the Western Blue Print case from Missouri, the Duty of Loyalty, in certain circumstances can be considered separate from The Fiduciary Duty.  A key distinction worth noting is that an employee is often free to plan to compete with his or her employer if they chose to resign, however, by taking specific action to plan for competing with his employer while still employed there, they may well be subject to viable claims for breach of the Duty of Loyalty, trade secret theft, etc.

4.  Who Can be Sued for Breach of Loyalty? In South Carolina, as provided in the 1972 case Lowndes Products v. Brower, our supreme court held that not just the disloyal employees, but also third-parties that knowingly aided-and-abetted the employees in their breach of loyalty were liable to the plaintiff, Lowndes Products. So the claim for breach of loyalty may not be limited only to the disloyal employees. Interestingly, in Lowndes, the supreme court affirmed the refusal of the trial court (and the master) of plaintiff’s claim for misappropriation of trade secrets because it found reasonable steps were not taken to protect the trade secrets, however, the court noted, “An employee has a duty of fidelity to his employer apart from the question whether he has an obligation to maintain the employer’s processes and system of operation in confidence.” It is not clear what the difference is, if any, between claims against the third-parties for: (i) aiding-and-abetting a breach of loyalty, and (ii) intentional interference with contract (employment contract).

5.  How Does the Duty of Loyalty Arise in E.R.I.S.A. / 401(k) Litigation?  In the above-referenced Tibble decision, the SCOTUS held that the 401(k) Plan fiduciaries owe the plan participants a Duty of Care in selecting and arranging for the plan’s administrative fees associated with purchasing the same shares from different channels (e.g., retail versus institutional shares). Specifically, the Court held the plan fiduciaries breached their legal duties to the plan participants by allowing retail funds to be available at a much higher per transaction cost to the plan participants, thus reducing the participants’ available investment funds. The court noted evidence in the record that it was customary to simply ask for a reduction in the institutional fee or for a waiver of the mandatory minimum transaction charges. Such a failure by the plan fiduciaries could fall under the category of a breach of the Duty of Care (i.e., not diligent in evaluating and selecting plan options), but could also, in certain circumstances, could constitute a breach of the Duty of Loyalty. For example, suppose that the party recommending the particular investment option had other arrangements with the party earning the higher sales commission? The Duty of Loyalty differs from the Duty of Care in that its adds the duty of disclosure (transparency) and also the duty to undertake to both avoid and disclose conflicts of interest.

Conclusions

Whether your analysis of the ever-present Duty of Loyalty arises in the context of: (i) employment relationships; (ii) publicly traded board-member-to-shareholder duties; (iii) as a member of an LLC or other closely held corporation; (iv) ERISA plan fiduciaries of defined contribution 401(k) plans; or (v) otherwise, knowledge of the duty, its breadth and nuances, and situations in which it has been consistently applied by the courts can be critical to the success (or failure) of your cases.

And remember, don’t ABANDON this duty in your individual obligations, or when you get your case to the jury. In the 1972 Lowndes Products case referenced above the Duty of Loyalty was used to save what was considered a trade secret misappropriation case. In the Western Blue Print case from 2012, the Court there allowed a tortious interference claim to save what was likely considered primarily a Breach of Loyalty case. These two cases illustrate very well why your pleadings should include all available options for relief (and defenses) for your clients.

 

Ordinary Care, Reasonable Care and The Fiduciary Duty – The First in a Series of “Spectra” Posts

Posted in Confidential Information, ERISA, Fiduciary Duty, General, Jury Issues / Trial, Non-Disclosure Agreements, Policy

We like to put things in order, right? It helps us understand the concepts and the analytical process further identifies distinguishing characteristics. In the legal world, however, complex concepts are more appropriately placed on a spectrum, rather than a list. Dictionary.com provides a non-physics definition of “spectrum” as follows: “a broad range of varied but related ideas or objects, the individual features of which tend to overlap so as to form a continuous series or sequence, e.g., the spectrum of political beliefs.”

Key words: range, related and overlap. Today, we look at the following three related legal duties, each of which overlap, but are also unique and distinct:

1. Ordinary Care, e.g., as owed by a bank to its depositors and customers in the handling of their checking transactions (likely a result of privity of contract and statute);

2. Reasonable Care, most commonly found in auto accident cases (arises the moment you turn the key and engage a pedal), medical malpractice, and other so-called “negligence” cases;

3. The Fiduciary Duty, e.g., as owed by a Trustee to a beneficiary, a lawyer in a lawyer-client relationship, or a by a 401(k) plan fiduciary to the participating employees (limited generally to special relationships, but also created by statute, as in case of ERISA and 401(k) plans).

To begin to illustrate how these three duties are related and can overlap, we introduce a fourth: The duty of confidentiality  is generally included within The Fiduciary Duty. This duty can also arise in conjunction with all three duties identified above by: (a) special relationship; (b) contract, for example as a non-disclosure agreement (NDA); (c) court order; or (d) statute, as in duty to protect personal information such as social security numbers, etc., to the extent that hackers do not already have all that.

How Do These Three Legal Duties Differ?

Ordinary Care is characterized by what is customary in any given context. In other words, are you doing what others like you in your field are also presently doing? For example, just because average speed on a Detroit-to-Novi freeway is 96 mph, making such conduct “customary,” that speed is still likely a violation of applicable law. As such, the person driving 96 mph causing an accident violates her duty of Reasonable Care. Recall from the link above, Reasonable Care is defined as, “the level of care that someone of ordinary prudence would have exercised under the same circumstances.” Note that establishing evidence of the Ordinary Care standard will likely require “expert” testimony. For example (back to banking), what if the expert witness testifies that Bank of America is doing something to protect your accounts that Wells Fargo is not doing? Would Chase or JP Morgan then be held to the Ordinary Care standard set by BoA, or could that be an issue for the jury?

So how do we determine what is prudent (Reasonable Care) vs. what is customary (Ordinary Care)?

Assume a “hypothetical utopian” community has 100% of its citizens acting with the utmost level of care, liability under a Reasonable Care standard is still evaluated by what would a reasonable person have done, not as compared to the hyper-vigilant utopians. In contrast, if a “hypothetical” community of reckless people is used to establish Ordinary Care, then the level of care owed under an Ordinary Care could be far less than that of Reasonable Care.

So how does The Fiduciary Duty differ from Reasonable Care and Ordinary Care?

The Fiduciary Duty, arguably, subsumes the Duty of Reasonable care and adds to it the Duty of Loyalty. One held to a Fiduciary Duty standard is required to act with respect to the affairs of the client-beneficiary in the same manner he or she would act with respect to their own affairs. Avoidance of conflicts of interests is implicit in The Fiduciary Duty.

So does this mean that the person owing The Fiduciary Duty, if a reckless person in their own right, then only owes the client the same recklessness for which they would apply to their own affairs? Certainly not. In fact, one of the primary differences between a Reasonable Care Duty and The Fiduciary Duty is that The Fiduciary Duty is owed to a specified individual or group of people, whereas, the duty of Reasonable Care is generally owed to all persons in any particular context, e.g., all persons driving or riding on the road in which you drive your vehicle.

Can the conduct of the client or beneficiary of the duty owed negate or reduce the duty owed?

Yes. For example, in banking law, frequently referred to as the UCC, the bank owes a duty of Ordinary Care unless the customer has failed, ironically, to exercise Reasonable Care by inspecting returned checks for forgeries, or for forgeries by the “same wrongdoer.” Similarly, in a common law negligence case where the duty of Reasonable Care is owed, if the plaintiff is negligent or “comparatively negligent,” then he or she may also lose the benefit of the legal duty owed as the cause of the injury is attributed to their own actions.

The Fiduciary Duty necessarily implies that the party owing this duty must act in the best interests of the beneficiary (loyalty), and no such legal concept like comparative fault can be used to mitigate or eliminate The Fiduciary Duty owed. This is true of lawyers and their clients, of a Trustee for children who have lost their parents and have trust funds to care for them left behind, and also recently covered when a party takes on the “fiduciary” responsibility to ensure that a company’s 401(k) plan is managed in a way that is in the best interests of the employees and not to provide for unnecessary fees or unnecessarily excessive management charges over and above what would have been customarily available.

What to do if you think you have a claim for breach of a legal duty owed?

If you or someone you know has a claim or thinks you might have a claim for breach of Fiduciary Duty, contact me to discuss it and learn what options may be available to you. While past results are no guaranty of future performance, our firm has the experience and ability to handle these types of cases and take them to trial, if necessary.
[Future “spectra” series posts will include: (1) standard of review for appellate matters including / ranging from any evidence, to abuse of discretion, to de novo review; and (2) trademarks including from fanciful, to arbitrary, to suggestive, to descriptive, to generic.]

Fish Tank Trade Secrets

Posted in Confidential Information, Jury Issues / Trial, Non-Disclosure Agreements, Policy, Trade Secrets

Sammy, Nuk or Tiger

I.  Background Fish Tank Facts:

In September of 2012, our family had plans to host several families at our house to watch the Clemson v. Florida State football game being played in Tallahassee. My wife loves people and entertaining. To create a fun, festive, and pleasant environment for the game, she and the children, while running errands that Saturday, decided to purchase a small fishbowl. Included in this “small” fishbowl were three Orandas. An Oranda, as shown above, is a bright “orange” and white fish from the goldfish family, pretty hearty but they do require a decent amount of space, oxygen, etc. (more than provided in a 2.5 gallon fishbowl). Continue Reading

Blurred Lines v. Got To Give It Up: 7 Things you need to know about the Pharrell / Marvin Gaye copyright lawsuit

Posted in Copyright, Fair Use, General, Jury Issues / Trial

On March 10, 2015, a jury in Los Angeles returned a $7.3 million verdict in favor of the estate of Marvin Gaye against pop icon, Pharrell Williams (The Voice, Happy), and Robin Thicke for copyright infringement.  The case involved the famous 1977 hit song by Marvin Gaye and made famous, at least in part, on the classic Saturday AM TV show Soul Train. Intellectual property lawyers and pundits have quite a bit to say about the verdict, its future validity, and implications for innovation in the music industry.  Below are 7 things to consider about this case: Continue Reading

Are Employee Non-Competes Good Policy? Many ways to Skin a Cat, Trade Secrets, Non-Solicitations, Confidential Information / NDA

Posted in Confidential Information, Injunctions, Jury Issues / Trial, Non-Disclosure Agreements, Policy, Trade Secrets

At least two states, Michigan this year and Massachusetts in 2014, have proposed legislation to curtail / eliminate the rights of parties (i.e., employers) with respect to non-compete agreements. The Michigan proposal would make “void” any non-compete agreements not related to the sale of a business.  California has banned these agreements for years and agreements in restraint of trade have been banned going back to 1414 in Dyer’s case, so presumably any constitutional challenges to such a ban have been vetted and failed, or else it has just been chalked up to being … California. But the California ban is not exclusive to employees residing in California, as parties and their lawyers often seek the application of Conflicts of Laws to have the law of one state applied in another state. In addressing the potential constitutional issue, courts have held that the employee’s right to be freely employed trumps the right to contract.

In contrast, in Wisconsin, there is a pending bill that would change that state’s history of restricted enforcement of restrictive covenants. So why all the attention to noncompete agreements in the employment context? Will these bills pass or are they just one of the many events of posturing or pandering that can be expected in all legislative branches? To highlight that this is an issue that makes a difference, we refer you an older post by Jonathan Pollard where the lawyers fought over whether or not Florida (favorable to noncompetes) or Minnesota (noncompete likely unenforceable) law would apply.

Recently, bloggers, including Christopher McKinney and Eric Meyer, have addressed this subject. Apparently the state legislatures believe there is sufficient evidence of employers being heavy handed (i.e., Jimmy Johns) in the application of non-competes, Continue Reading

The Rule of Law – Does It Make a Difference?

Posted in Constitution, General

Recently, my friend and U.S. Congressman Trey Gowdy spoke about the Rule of Law, specifically with respect to the President’s recent Executive Order regarding Immigration.  With gridlock in D.C. being the norm, expect to hear a lot more about Executive powers.  For example, commentators are suggesting Roberts is looking at approving some aspects of Obamacare under Executive interpretation powers, therefore, leaving those aspects up for elimination under a new administration.  For 50-75 years, it has been expected that Executive interpretations of regulatory matters delegated by Congress would change when a different party occupies the White House.

In legal circles, this is the manifestation of what is known as Chevron deference, which gives the Executive branch power / discretion to interpret any ambiguities in a statute and enact regulations implementing their preferred interpretations (in theory eliminating the ambiguity). In effect, by this doctrine, the Executive branch gets the power to do what the Judicial branch normally does (i.e., interpret the law). Then, when parties come before the Judicial branch for resolution of their disputes related to the Executive interpretation in a regulation or in a policy statement or a guideline, the Judicial branch is obligated under Chevron to accept the Executive interpretation, as long as it is reasonable. As noted in the Roberts link above, the Judicial branch could then be obligated to accept two different interpretations resolving the same statutory ambiguity.
Continue Reading

What about the Statute of Frauds (?), said the “Uniform Electronic Transactions Act” (UETA)

Posted in Electronic Signatures, General, Injunctions, Jury Issues / Trial, Real Estate

Despite its enactment in 2004 in most all of the 50 states, the Uniform Electronic Transactions Act (“UETA”) has not received the amount of attention one might expect.  This is particularly true with respect to real estate transactions, for which it seems an overwhelming majority of real estate agents, brokers, realtors and others in the industry still think that “[t]he statute of frauds … requires some memorandum or note of the agreement relating to real estate to be in writing and signed by the party charged therewith or his agent.”  For example, even the first source for legal research in South Carolina, S.C. Jurisprudence, the chapter on the Statute of Frauds, makes no mention of the UETA, its statutory origin at S.C. Code § 26-6-10 et seq., or its potential significance to parties negotiating a contract via email.  In 2015, the vast majority of real estate transactions, whether residential or commercial, are handled by email.

According to the NCSL, 47 of the 50 states have enacted the UETA, with New York, Illinois and Washington being the exceptions, and even those states have enacted similar legislation.

Once again, despite the UETA being over 10 years old, and despite the fact that most UETA’s do not provide an exception to the applicability of the Act to “contracts for the sale of real property,” only a handful of cases can be found interpreting the UETA in conjunction with the well known SOF. Continue Reading

“Ready for Trial Your Honor” … the 12 month pledge

Posted in General, Jury Issues / Trial

This article by ACEDS on the recent sanctions levied against a major law firm in a patent trial which they won for their client raises numerous issues with the practice of law that need to change. The article refers to “structural woes,” of the legal system.  Anyone who practices law can attest to the length of time it usually takes to bring a case to trial, and the costs of litigating a high stakes or even a low stakes case.

If the case is in state court and requires a trial of more than one week, getting the trial scheduled around the lawyers and clients schedules will likely require a herculean effort by itself, and if it is set in a rural county with not so many terms of court and one that almost never has two judges trying cases, good luck to you. Federal court cases with their court-produced scheduling orders tend to keep cases on track, and the fact that those cases are assigned to one judge who usually has a whole month term, the length of the trial as long as it is not more than two weeks should not be cause for delay.

Just recently, I was told by insurance company adjuster that because the opposing party could also afford to take the case to trial, it  was very difficult to settle the case.  Obviously this person has become accustomed to having time on his side.  This comment also suggests reliance on the standard knee-jerk reaction Continue Reading

Motive – Help Yourself

Posted in General, Jury Issues / Trial, Trademarks

I hope everyone is having a wonderful June.  Extremely busy here.  School is out.  Our three teenage sons are all playing summer baseball on high school and college fields throughout the Southeast, swimming on the Rockbridge Swim Team, as well as working, lifting weights, going to Palmetto Boys State, The Naval Academy Summer Session, and trying to get all our fishing gear and boats ready for a week at Litchfield / Pawleys Island.  In the midst of all of this, I am working so hard and am presently motivated to get strong and stay stronger than my teenage boys who are closing the gap rapidly.  Ask them and they will say they have passed me already.  They just can’t “help themselves.”

I am now so old that I actually went to sleep before the end of all three #CWS games between Vandy and UVa.  Congrats btw to my child hood friend and now famous Mayor of Greenwood, @WelbornAdams on the Vandy Victory.  Check out his Twitter profile and make sure he removes the “long suffering Vanderbilt” claim there.  As a music lover, Welborn will hopefully appreciate that in analyzing motive, “we are programmed to receive” (The Eagles, Hotel California), and also the link below which you must read to find and listen to @OzzyOsbourne while still with @BlackSabbath.  Listen to those guitar strokes at the start of Hotel California and you will be motivated for something.

The IP Topic You will Not Be Hearing Too Much About Today:

My IP idea for a new blog post was to remind everyone that state trademark registrations, for example as provided for at S.C. Code Section 39-15-10 et seq.,  pack a strong punch for any registered trademark holder looking Continue Reading

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