Tag: Litigation

  • Service of a Lawsuit via Twitter

    Service of a Lawsuit via Twitter

    In August, the Democratic National Committee (DNC) used popular social media platform Twitter to serve a lawsuit against WikiLeaks. In addition to acting as a source of news, a marketing platform, a place to share images of your aesthetically appealing lunch, as well as a home for late-night political statements, Twitter has now become (on rare occasion) an acceptable means for serving an opposing party with a lawsuit.

    What is “Service of a Lawsuit”?

    Service of a lawsuit simply means the process of notifying someone who is being sued that they are being sued. In New York, Rule 308 of the Civil Practice Law and Rules governs service of a summons and complaint on the opposing party.

    The idea behind requiring service upon an opposing party is to provide notice so that they can appear and defend themselves. Additionally, service notifies the court that the opposing party is aware of the legal action taken against them. This is a prerequisite to obtaining a final judgment.

    How can a Lawsuit be Served upon an Opposing Party?

    As mentioned earlier, in New York, Rule 308 provides several different methods of service. Some examples are:

    1. Personal delivery of the documents to the adversary.
    2. Personal delivery to an individual at the adversary’s last known residence AND mailing a copy as well to that address.
    3. Personal delivery to the adversary’s legal agent.
    4. By affixing a copy of the documents to the door of the last known residence or place of business AND by mailing a copy of same to that address. This method can only be utilized if attempts at using the first two methods are unsuccessful.
    5. In such manner as the court may direct if service under methods 1-4 are impracticable.

    In the federal court system, service is governed by Rule 4 of the Federal Rule of Civil Procedure. Rule 4 lays out the methods by which service can be effectuated:

    1. Personal delivery of the documents to the adversary.
    2. Leaving a copy of the summons at the adversary’s home AND mailing a copy of same to that address.
    3. Delivering a copy to each person authorized to receive service for the defendant

    Before allowing a creative form of service, a judge will usually require a party to exhaust all other service methods.

    DNC Serves WikiLeaks via Twitter

    For the DNC, service via ordinary means would have been no easy task. How could the DNC personally serve papers on an organization that prides itself on anonymity and a decentralized global presence? The lawyers for the DNC therefore had a compelling argument that the normal methods of service were impractical. Thus, the lawyers had to develop a creative method of providing “notice” of the lawsuit to WikiLeaks.

    The DNC argued that serving WikiLeaks via Twitter was appropriate because WikiLeaks frequently Tweets. Thus, it can be understood that WikiLeaks regularly uses and checks their Twitter account. Further, the DNC argued that service via Twitter was permitted in a prior lawsuit – a 2016 case in California.

    The service of the lawsuit came in the form of a single Tweet from the law firm representing the DNC.

    The Court found that this single social media message is an appropriate form of notice of a legal action.

    Though it may seem odd that a judge in a court of law would permit use of a social media platform in order to deliver correspondence in a lawsuit pending before the court, there have been other instances of service via social media in recent years.

    Other Examples of Service via Social Media

    As mentioned above, there is a 2016 case from the United States District Court for the Northern District of California in which the judge permitted service via Twitter. In that case, the plaintiff was attempting to serve a man living in Kuwait who could not be located. Due to the fact that the man had resisted all conventional forms of service and because the man had a large, active Twitter account and following, the judge gave the plaintiff permission to serve the Kuwaiti man via Twitter.

    In 2014, a judge allowed a man to serve his ex-wife over Facebook. The man’s ex-wife had successfully evaded all conventional attempts at service. The ex-wife operated an active Facebook account. Due to the level of activity, the family court judge ruled that it would be appropriate to serve the lawsuit over Facebook.

    In later 2017, a Canadian judge allowed a defendant to be served via Instagram private message and LinkedIn. The defendant in that case was unable to be reached at his physical address or email address. The plaintiff’s lawyer in that case used her social media sleuth skills to find the defendants profiles online on Instagram and LinkedIn and successfully served the plaintiff through those platforms.

    In the United Kingdom, service via social media platforms has become much more commonplace than it is in the United States. As far back as 2011, lawyers in Britain were permitted to serve a summons using social media platforms like Facebook. As far back as 2009, a court in Britain allowed an injunction to be served to a defendant via Twitter.

    What does this Mean for You?

    The consequences of these expanded forms of service are two-fold. As the world becomes more and more connected with the pervasiveness of the internet and the interconnectivity facilitated by social media, it is becoming harder and harder to avoid service of a lawsuit. No longer can one dodge a lawsuit by not providing a current mailing address or by not checking your mail. Courts are becoming wise to the prevalence of social media (as well as technology generally) and are using that to better promote the administration of justice.

    If you have questions about service of a lawsuit, or have other questions, please call or email one of our litigation attorneys for a free consultation.

    Disclaimer: This blog is made available by Kloss, Stenger & LoTempio for educational purposes only. It is not intended to provide legal advice nor form any attorney client relationship between the reader and Kloss, Stenger & LoTempio. You should always seek professional advice from a licensed”attorney for any legal questions you may have.

  • Trade Secret Protections for Small Businesses

    Trade Secret Protections for Small Businesses

    Business owners seeking to protect their proprietary information or invention have many different options. The most common method that people think of is patent protection. Depending on the complexity of the subject matter, patents can be expensive to draft, prosecute, and defend. Additionally, not all information that a business may find valuable will fall under the umbrella of patentable subject matter. Where can a business turn to protect their valuable information that is not protected by a patent?

    The simple answer is to turn to trade secret for protection. The same protections that have protected the iconic taste of Coca-Cola, Google’s proprietary search algorithm, McDonald’s Big Mac special sauce recipe, as well as WD-40’s secret formula can be put to use by your business to efficiently and effectively protect your business’ information.

    What is a Trade Secret?

    A trade secret can take several forms. For instance, a trade secret could be a formula, pattern, compilation of data, computer program, or device. Practically, with trade secret protections you can protect any information that is valuable to your business that you keep secret. In order to receive common law legal protections for a trade secret, the information must meet a few requirements.

    Trade Secret Requirements

    First, the information must actually be economically valuable. That is, what you are seeking to protect must convey some kind of economic benefit to the holder. For example, a curated client list satisfies this requirement because the list is valuable to a competitor in the field. Think of this as the secret sauce.

    Second, the information must be secret. This requirement is a bit confusing because secret here means not widely known by the public. You do not need to keep the information you wish to protect as a trade secret absolutely secret. Your business’ managers and employees are free to possess and use the secret knowledge for the benefit of the business. The secrecy requirement is closely tied to the economically valuable requirement. If your competitors and the public are generally unaware of the information then it is likely valuable to your business.

    Third, the holder of the information must have taken some kind of precautions to keep the information secret. You can satisfy this requirement, for example, through non-disclosure or confidentiality agreements that prevent employees from sharing your valuable, secret information.

    What is Trade Secret Misappropriation?

    Trade secret misappropriation is legalese that simply means that some bad actor stole your business’ valuable information and either used it or disclosed it in a way that harmed your business. There are a few requirements to meet in order to assert a claim of trade secret misappropriation in state court.

    Information is a Trade Secret

    First, the holder of the trade secret must prove that the information met the requirements for a trade secret. Business-owners often overlook this initial step. You or your business’ conduct prior to the trade secret theft could potentially be detrimental to your ability to recover for the trade secret theft. For example, if your business does not have a confidentiality agreement in place with your employees, vendors, or potential business partners then the courts may find that your business did not do enough to protect your trade secret.

    Trade Secret Acquired Through Confidential Relationship

    Second, trade secret misappropriation requires that the bad actor acquired the trade secret information as a result of a confidential relationship with the holder of the trade secret. For example, if you hired an employee who signed a non-disclosure agreement and then upon leaving your business that employee spread confidential information protected by the non-disclosure agreement, you or your business could potentially pursue that employee for trade secret misappropriation. However, if you disclose the information outside of that confidential relationship, it is likely not actionable (think of an inventor or entrepreneur’s elevator pitch).

    Here, it is important to note what trade secret misappropriation does not cover reverse engineering. Reverse engineering of a trade secret is not trade secret misappropriation. This is the big trade-off associated with trade secret protection. Unlike patent protection, trade secret protection does not prevent use of the secret information. Instead, trade secret protection only prevents a bad actor bound by some kind of agreement from violating that agreement. Trade secret provides another cause of action to help to protect the internal workings of your business that set you apart from your competitors.

    Unauthorized Use or Disclosure

    Third, trade secret misappropriation requires that the bad actor has either made unauthorized use of the trade secret information or has disclosed the secret information. For example, this requirement would be satisfied if a disgruntled ex-employee of Coca-Cola who signed a non-disclosure agreement shared Coca-Cola’s secret formula on the internet.

    Potential Remedies for Trade Secret Misappropriation?

    Remedies for trade secret misappropriation fall generally into the two buckets. First, pursuing trade secret misappropriation as a cause of action allows the court to enter injunctive relief. If a disgruntled ex-employee is sharing your company’s secrets online on social media, a court can order that ex-employee to stop spreading your business’ trade secrets. A judge can enter this order early in litigation before any arguments on the merits of the case have begun. This is a time and cost-effective way to protect your business’ trade secrets.

    Second, juries have been extremely sympathetic to businesses harmed by trade secret misappropriation. Juries have awarded huge awards in the past. For example, in a case recently heard in a Texas state court involving a Quicken Loans company allegedly stealing the trade secrets of a Silicon Valley real estate start-up, a jury awarded the start-up over $706 million dollars to compensate the start-up for the theft of its trade secrets.

    Trade secret protection is a valuable option for businesses seeking to protect the inner workings of their businesses.

    For more information, or to speak with an attorney about protecting your business, please contact our office for a free consultation.

    Disclaimer: This blog is made available by Kloss, Stenger & LoTempio for educational purposes only. It is not intended to provide legal advice nor form any attorney client relationship between the reader and Kloss, Stenger & LoTempio. You should always seek professional advice from a licensed attorney for any legal questions you may have.

     

  • What is Arbitration and Mediation?

    What is Arbitration and Mediation?

    To many, arbitration and mediation are synonymous. Both involved the resolution of a dispute with the assistance of a third party. However, there are major legal differences between these tools of alternative dispute resolution. It is important to know those differences before attempting to mediate or arbitrate a dispute.

    MEDIATION

    Mediation is where the parties agree to negotiate with the help of a neutral third party, known as a mediator. The mediator can be chosen by the mutual consent of the parties. While there is usually only a single mediator, on rare occasion a panel of mediators may be used.

    Mediation is non-binding, which means the parties reserve the right to proceed to further ligation or trial if mediation fails.

    Mediation can be advantageous because:

    • It can save the parties money.
    • It can save the parties time.
    • A mediator can help the parties see case issues more clearly.
    • The mediator can offer his or her impartial opinion of the flaws in each parties’ case.
    • A knowledgeable and experienced mediator can often provide his or her opinion on the likelihood of success at trial for a particular party.
    • Each party can discuss privately and confidentially with the mediator their private thoughts regarding settlement, this can allow the mediator to identify a possible solution.

    Mediation can be disadvantageous because:

    • If the matter does not settle, the parties may be forced to go to trial anyway.
    • The parties may be too far apart or too disagreeable to settle.
    • The mediator may not have a good grasp of the facts of the case in order to help bring the parties together.
    • The parties may not be negotiating in good faith with each other.
    • Several mediation sessions may be required before a matter is able to settle.
    • The dispute between the parties may be time sensitive and cannot wait for the parties to reach an agreement.

    If mediation is successful and the parties reach an agreement, that agreement will be reduced to writing (a Release and Settlement Agreement) for the parties to sign. This can be done by the attorneys for each party. If a lawsuit has already been commenced, it will also include a Stipulation of Discontinuance of the lawsuit which must be filed with the Court.

    ARBITRATION

    Like mediation, parties who wish to arbitrate seek out a neutral third party, an arbitrator, to assist with resolving the dispute. The arbitrator can be chosen through the mutual consent of the parties. The arbitrator is typically an individual knowledgeable and experienced in the law. Often times other attorneys or former judges are asked to act as an arbitrator.

    However, unlike mediation, an arbitrator will render a final decision that is almost always binding on the parties. An arbitration proceeding could be considered a mini-trial where each side presents their case to the arbitrator, who will made a final decision. There is no back and forth negotiation in an arbitration proceeding like there is in a mediation.

    Arbitration can be advantageous because:

    • It can save time.
    • It can save money.
    • The proceedings are private unlike trial.
    • The parties must obey the arbitrator’s decision.
    • The parties avoid going to trial.

    Arbitration can be disadvantageous because:

    • Absent corruption, fraud, or misconduct, an arbitrator’s decision generally cannot be appealed.
    • Arbitrators are not bound by the substantive law or rules of evidence, they may do justice as they see fit.
    • If one party has an economic advantage over the other party, that party will not be able to leverage that advantage against the other party through litigation.

    Arbitration and Mediation can be useful alternative dispute resolution tools under the right circumstances. They can save both time and money for the parties when done correctly.

    Before engaging in arbitration and mediation, it is recommended that you consult with a knowledgeable attorney experienced in both forms of alternative dispute resolution. Our experienced attorneys have served both as arbitrators and mediators, as well as attorneys on behalf of clients.

    For more information on arbitration and mediation, please contact our office for a free consultation with an attorney.