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Webcasts of SJC Oral Arguments

by | Sep 14, 2005 | Courts

The Supreme Judicial Court and Suffolk University Law School are webcasting oral arguments, both live and archived.

  • Link to the Massachusetts Supreme Judicial Court Oral Arguments Site here.

Allan Van Gestel to Retire From Business Litigation Session?

by | Sep 13, 2005 | Business Lit. Session, Courts

Business Litigation Session. Judge Allan Van Gestel has been the presiding judge in the Suffolk Superior Court Business Litigation Session (the BLS), since its inception in October 2000. The session has been an unqualified success, and is closely associated with Judge Van Gestel, who has brought expertise and integrity to the session.

However, Massachusetts has a mandatory retirement age of 70, and Judge Van Gestel turns 70 in December.

For an article discussing the history of the session and Judge Van Gestel’s imminent retirement click here.

For the rules of the BLS click here.

The question on the minds of many Massachusetts lawyers, of course, is whether Judge Van Gestel will be “recalled” for special assignments. Judge Van Gestel reportedly is open to the prospect, but so far, the State is mum on this issue.

Justice Department Files Antitrust Suit Against National Association of Realtors

by | Sep 12, 2005 | Antitrust, Miscellaneous

Antitrust. Here is a link to the Complaint in this long-anticipated lawsuit. A link to the DOJ’s press release, announcing the suit, is here.

In a nutshell, the suit alleges that the NAR has blocked competition by allowing real estate agents to withhold listings from brokers who utilize the Internet. The DOJ and the NAR have been attempting for months to negotiate a settlement to the issues raised by this suit, and apparently the NAR made a last gasp attempt last Thursday, when it announced a modified approach to its policy on Internet listings. However, the DOJ believed that the NAR had not gone far enough, precipitating this lawsuit.

I’ll discuss this suit in more detail in a later blog.

Katrina

by | Sep 9, 2005 | Miscellaneous

Amazon.com “One Click” Contributions to Victims of Katrina can be made Here.

The ABA has organized a Hurricane Katrina Disaster Relief page here. This web page states: “The ABA is gathering information from individuals who are willing to provide legal assistance to those in need from the events in the Northern Gulf Coast.”

In considering whether to contribute services consider that a recent survey of Americans shows that lawyers have a lower “prestige” ranking than Members of Congress, and are tied with entertainers and actors. If you think this survey may be flawed, consider the fact that real estate agents and stockbrokers ranked last as proof of concept. It might be best for your mental health not to give this survey too much thought if you plan to speak to a jury in the near future.

Is the Owner of a Blog an "Interactive Service Provider"?

by | Sep 9, 2005 | DMCA/CDA

Communications Decency Act. Traffic Power.Com has sued Aaron Wall, owner of the Search Engine Optimization Blog, alleging defamation and misappropriation of trade secrets.

Assuming that the offending material was not written by Wall himself (but rather by one of his posters), the defamation claim against him is likely to be barred by the federal Communications Decency Act (CDA), which provides in part:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

If Wall is not the publisher or speaker of the offending words, he cannot be liable for their publication on his blog.

Although the term “interactive computer service” (ISC) is poorly defined, the courts have held that it includes not only traditional ISPs, but also web site hosts such as AOL. It’s hard to see why the definition shouldn’t extend to blog site owners.

Assuming that Wall is found to be an ISC, he’s halfway home. A number of courts have held that the law protects ISCs from defamation claims.

Immunity for trade secret misappropriation is more problematic. The CDA provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” However, the law fails to define “intellectual property.” While the three traditional branches of IP are unquestionably covered by this provision (patents, copyrights and trademarks, all of which are federal IP rights), it’s not clear whether trade secrets, which are a construct of state law and which have elements that lend themselves to both intellectual property analysis and tort analysis, will be treated as “intellectual property.”

Thus, this case has the potential to answer two important questions: are bloggers covered by the CDA, and does liability for trade secret claims fall within the CDA? Stay tuned….