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Monthly Archives: September 2014

Are 12,800 Tweets by One Judge too Many?


This is the question that was raised in a recent NY Times article.  According to the article, tweeting judges may leave the public with “a general impression of casualness unbefitting a jurist.” In contrast, the judge in this story states that his use of Twitter allows him to stay connected to voters which is important in a Texas where judges are elected.

NY Times: Some Judicial Opinions Require Only 140 Characters

Another Brief Filed in Elonis v. U.S.


Another brief has been filed in Elonis v. U.S.  As most will recall, this case requires the Supreme Court to determine what standard of proof is required to convict someone of issuing a threat.  Must the government prove the defendant’s subjective intent to threaten or merely show that a “reasonable person” would regard the defendant’s statement as threatening?  Elonis is relevant to this blog because the defendant’s threats occurred on Facebook. 

For more background on Elonis go here

For additional briefs go here. The most recent brief is below.

Brief for National Center for Victims of Crime in Support of Respondent

Ride Sharing Companies Targetted by CA Prosecutors


According to reports from Bloomberg and the LA Times, several ride-sharing companies (Lyft, Uber and Sidecar) were recently put on notice that they are engaging in unlawful business practices.  In a joint letter by the top prosecutors from San Francisco and Los Angeles, these ride-sharing companies were told that they might face a civil lawsuit if they did not modify certain practices.  For example, in the letter to Sidecar, the company was informed that it had to stop:

(1) Making representations that lead customers to believe that the company screens out drivers who have ever committed driving violations, DUI, sex assault, and other criminal offenses; and

(2) Allowing shared-ride service fares on an individual-fare basis.

Advertising on Social Media

Erin Hickey and Nancy Ly have written a very informative article about advertising on social media.  Of particular interest, at least to me, was their advice regarding celebrities. According to the authors,

Starting a conversation on social media about your product or service with a celebrity, and using #celebrity, is a strategy that you should probably avoid. If the celebrity, however, starts the conversation with you, then you may have a few options and opportunities in how you respond.

Law360: Advertising On Social Media: How To Avoid Legal Problems

Social Media Providers Challenge Digital Estate Law


Last month, I blogged about Delaware’s new law which addresses the ownership and control of digital assets after someone dies. This new law is based on the Uniform Fiduciary Access to Digital Assets (UFADDA) Act. To read about UFADDA or my earlier post go here.  

The purpose of this post is to highlight the article below, which examines the concerns that social media providers have with UFADDA and the new Delaware law.  Social media providers, at least according to the article, believe that these new laws violate their terms of service and the Electronic Communications Privacy Act. According to Bill Ashworth, Yahoo’s senior legal director of public policy, “when an individual signs up for a Yahoo account, they agree to our terms of service, which outlines that neither their account nor the contents of their private communications are transferrable at the time of death.” 

ITWorld.com:Yahoo slams new ‘digital will’ law

CA’s Anti-Yelp Law Has Congressional Support: Consumer Review Freedom Act

Brad Sherman


Eric Swalwell


As some are aware, California is in the process of passing a law (AB 2365) which would prohibit contract clauses that require the consumer to waive her right to make any negative statements regarding the goods or services involved in a contract.  Earlier this month, Representatives Eric Swalwell and Brad Sherman introduced the Consumer Review Freedom Act (H.R. 5499) which mimics AB 2365 on the national level.

The need for bills like AB 2365 and the Consumer Review Freedom Act arose because some businesses were creating so-called “anti-disparagement” clauses which prohibit customers from making negative reviews or comments about the services or goods received. In one egregious example, Kleargear.com imposed a $3,500 fine on Jen Palmer after she went on to Ripoff Report to voice her displeasure with the company. On Ripoff Report, she wrote that Kleargear.com had “horrible customer service practices.”

Palmer’s critique lead Kleargear.com to issue a $3,500 fine pursuant to the “anti-disparagement” clause which was allegedly included in the “Terms of Use” on its website. Palmer and her husband refused to pay the fine and Kleargear.com then reported this $3,500 as a debt to credit reporting agencies.

Jen Palmer subsequently brought a civil action against Kleargear.com claiming Fair Credit Reporting Act violations, defamation, and other torts. In June 2014, a federal judge issued a default judgment in favor of Palmer and awarded $306,750 in damages. Despite the ultimate triumph of Jen Palmer, many feel that AB 2365 and the Consumer Review Freedom Act are necessary to stop businesses from overly restricting the First Amendment rights of consumers.

ABA CLE on Social Media and Jurors (Oct 15th)

 On October 15th the ABA is offering a CLE entitled Using Social Media in the Jury Selection Process.  The CLE runs from 1:00-2:30. 

According to the ABA’s website this seminar will touch upon

  • ABA Formal Ethics Opinion 466
  • Best practices
  • Successful use of social media in securing impartial and fair juries

The course will be taught by

    John Browning

    Scott Malouf

    Donald Lundberg