Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Monday, April 27, 2015

Lawyer Expands Twitter Defamation Claims

Attorney Todd Levitt
Mt. Pleasant lawyer Todd Levitt has sued a local newspaper, a reporter, and its parent company for defamation [libel and slander], false light and other torts. The 19-page complaint, coming on the heels of the trial court's dismissal of Levitt's separate defamation suit against other defendants, contains 147 allegations spread across eleven counts.

Interestingly, the new defamation lawsuit also names the opposing counsel in the first case as well as two professors who teach in Central Michigan University's College of Business Administration.  For his part, opposing counsel has filed a grievance against Levitt.

Mr. Levitt became a plaintiff litigant when a student at CMU allegedly adopted Levitt's business and law firm persona in a fake Twitter account and began emanating a series of tweets that Levitt says were designed to defame, embarrass and harass.  This time last year, the complaint asserts, Levitt had 4500 followers [no easy feat] and was employed as an adjunct professor at CMU.

Last year, Levitt sued the CMU student but the defamation suit was tossed by the trial court and is now on appeal. We blogged about that case in this post.

Levitt has appealed the trial judge's order granting the tweeting student's motion for summary disposition on the basis that for over two months, the student's false Twitter persona gave no indication whatsoever that it was a parody and that the student intended to cause harm to Levitt's law practice through his micro-blog posts.

In the new case, Levitt is claiming that the local newspaper, Mt. Pleasant's Morning Sun, along with one of its reporters and the parent company, tortiously covered his battle with the Tweeting CMU student by intentionally [or recklessly] making misrepresentations about Levitt. Specifically, the complaint attacks one front-page headline that trumpets that Levitt made up a false award -Top College Lawyer- in order to enhance his electronic profile.

There are many many other examples set forth in the complaint. Fellow CMU business professors and adjunct instructors have a separate set of allegations reserved for their purported misdeeds.

We shall see where all of this goes; what a messy brawl.  If Levitt prevails in his tort case, it will definitely establish limits to what can be posted about a business on social media.

Meanwhile, Scribd, Volokh Conspiracy via the Washington Post, the ABA Journal, and even named defendant Morning Sun have all started following and reporting on this dispute as it involves the juicy intersection between social media and defamation. So stay tuned for updates and analysis as this case unfolds over the next few years.

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Sunday, April 26, 2015

Privacy and the Family Court: Sealing the Files

Oakland Family Court
Judge Joan E. Young
Over the years, our law firm has supported a privacy policy developed by veteran Oakland County Family Court Judge Joan E. Young. This policy involves restricting sensitive private information, usually taking the form of exhibits attached to a motion, to a "bench memorandum" that only gets filed with the judge; not with the clerk of the court.

Normally, when an attorney files a motion in family court, just like in any adversarial proceeding, all motions, briefs and attachments are included in the court record which is available to the public. Members of the public can then obtain [for a fee] any of the documents filed with the Court.  These documents are even available through the Internet via the Oakland County Court Explorer.

Like other adversarial proceedings, motions filed in family court result from conflicts that are irresolvable through informal means. In family court, motions can get particularly viscous and personal, depending on the skills, experience and decorum of the attorneys involved.

Recently, there has been some discussion among local family law professionals about sealing family court files from the public and making them available only to the parties and their respective counsel. A private divorce filing system was adopted in New York which now serves as a model for other states.

There are several examples of normally private matters that are subjected to the public eye in a family court proceeding when lawyers, paid to advance their client's agenda, are less than discreet:
  • Income and employment information;
  • Valuation and other disclosures regarding assets;
  • Business records;
  • Estate planning information;
  • Embarrassing conduct detailed in an affidavit or other sworn testimony;
  • Police reports and witness statements in unrelated cases;
  • Therapy or counseling information;
  • Children's academic records;
  • Statements about children's conduct;
  • Medical or mental health information about the parties or the children;
  • Sensitive information about other family members.
The list could be much longer given the diversity of situations presented to the family courts on a daily basis.

A motion is a vehicle in litigation whereby a specific legal issue is decided in the case. Attorneys routinely attach all manner of documentation to a motion in support of their legal position and factual assertions.

Once these documents are attached to a motion, they become part of the record in the case. This is critical because, if one party appeals the lower court's decision, only the documents contained in the record can be considered on appeal.

Therefore, sealing a family court file may create problems relative to appellate review. Also, sealed records may make abusive or unreasonable conduct more difficult to prevent unless the malfeasor knows he faces exposure.

The state courts in New York work around this by enumerating a comprehensive list of professionals in the procedural rules that have access to the family court records; they include those needing the documents for an appeal, and those involved in the prosecution of a distinct but related criminal matter.

Judge Young's policy on the privacy of family court filings has evolved over the years. At first, she made it known among family court practitioners that we should be attaching exhibits to the judge's copy of a filing only.

Over the years, however, she has come to adopt an "all or nothing" approach given the difficulty in arriving at a list of items, even a comprehensive one, that are to be afforded privacy.

At present, the bottom line is that disclosure of sensitive information is up to the discretion, skill and experience of the lawyer. If a lawyer reacts emotionally to an emotional issue, attaching emails, screen shots, pay-stubs, mental health assessments, or affidavits to documents that are filed in court, then this sensitive information becomes part of the permanent record in the case, subject to public scrutiny.

Unless or until the law changes, parties facing such public exposure can only avail themselves of the court rule that contemplates sealing a court file. In cases where a party seeks to seal an otherwise public record, the matter rests with the discretion of the family court judge assigned to the case.

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Thursday, April 23, 2015

Ashley Madison Adultery Website Going Public

Since 2001, has been around for married cheaters. The controversial website touts discrete electronic profiles for married folks interested in committing adultery.

Four years ago, the Canadian business attempted to go public on the Toronto Stock Exchange but could not raise sufficient capital or interest. Now they're at it again, this time planning an IPO for London, England sometime later this year.

The risque dating website claims over 35-million members and posted revenues of $115 million last year. They hope to raise $200 million in their IPO.

Perhaps the British and European dating markets are more sophisticated, but we here at the Law Blogger have to wonder about the public value of a company with Ashley Madison's business model. Company executives have long-admitted they sell the "darker side of dating."

Classically understated; folks get killed out that way. Also, they are selling a product that arguably encourages the erosion of the institution of marriage and that is illegal in many jurisdictions, including here in Michigan.

The company does have its marketing analytics down to a fine yet devious art form. If a person gets married in the United States and files their marriage license with the county, as required in most states, AM obtains that now-public information and begins sending advertisements and other electronic communication to individuals with a certain type of profile.

The illegality of adultery does not bother company execs who point to the case of South Korea. When AM began its operations in South Korea, where adultery was recently illegal, government censors blocked the web site. But then the Supreme Court in South Korea changed the 63-year old law, and AM has been allowed to operate with impunity.

In going public in London, the company will be directly competing with the French web site, Gleeden. One thing is for sure; across the globe, Ashley Madison has become synonymous with marital infidelity; apparently, that's a billion dollar a year industry.

For our part, we here at the Law Blogger have handled more than a few cases where one spouse alleges the other has created a profile on the Ashley Madison website. Therefore, despite the need to diversify the nationality of our investment portfolios, we will not be among the investors should this company go public.

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Monday, April 20, 2015

Lawyer Seeks to Uphold Ban on Same-Sex Marriage @ SCOTUS

Public opinion on the hot-button issue of same-sex marriage is divided into roughly two same-sized camps with proponents barely having the edge according to most opinion polls. Since 2009, this law blog has described the topic as the civil rights issue of our time.

Next week, a Michigan lawyer from a mid-sized law firm will be arguing the much-anticipated same-sex marriage case for the State of Michigan. Attorney John J. Bursch, now a partner at Warner Norcross & Judd, will present the state's arguments as the respondent in the DeBoer case. He will not do so on behalf of his law firm, however, as they declined to take the case. Mr. Bursch will appear as a Special Assistant Attorney General.

Let's not forget that a brief time ago, Bursch was the Solicitor General of the State of Michigan, serving as Attorney General Bill Schuette's litigator-in-chief. In this position, he argued 8 times before the SCOTUS in two short years and has been before the Michigan Supreme Court no less than 17 times.

Then he moved-on to private practice where he is the co-chair of Warner Norcross' appellate section. Bursch is the principal author of the Michigan Supreme Court publication Guide for Counsel and a chapter author of the Michigan Appellate Handbook. We should also mention his law firm's excellent law blog, One Court of Justice, to which Bursch, no doubt, makes regular weighty contributions for the firm.

When he takes the podium to face the 9 justices in the same-sex marriage and adoption case, he joins historic luminaries such as John Adams [who represented British soldiers accused of murder] Clarence Darrow [who also represented unpopular murderers of his day], John W. Davis [also prolific before the SCOTUS, and who argued in favor of segregated schools] and Paul D. Clement [who lost the same-sex Windsor case in 2012] by arguing a position most legal scholars believe is not on the right side of history.

In so championing the same-sex marriage ban, Bursch may not have the backing of his law firm, but he does have some intellectual reinforcements. A near record 64 amicus briefs have been filed in support of banning same-sex marriage.

After the oral arguments next Tuesday morning, a decision in the landmark case is expected toward the end of June. If past practice is any guide, the justices, some of whom are expected to write separately in what may become a "plurality" decision, will work on their separate opinions right up to the wire, releasing the opinion(s) just before the conclusion of the Court's session.

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Monday, April 13, 2015

Lawyer Specializes in Privacy Class Action Lawsuits vs Tech Giants

Jay Edelson graduated from the University of Michigan Law School in 1997. After working as an associate in Big Law for a few unsatisfying years, he struck out on his own in Chicagoland, specializing in privacy class action lawsuits.

These days, about a dozen years into this unique practice area, Edelson is loaded for bear and his case load is on fire.

Earlier this month, his law firm sued Facebook in a class action lawsuit in Cook County, Illinois, alleging violation of Illinoians' collective privacy in FB's secret collection of the world's largest database of consumer biometrics. Last year, his class action suit against Spokeo, the personal information search engine operating in Pasadena, CA, was appealed to the SCOTUS.

We here at the Law Blogger have a long-held belief that, legal or not, when you log key strokes while connected to the Internet, you are not operating in a private realm. Edelson's law suits attempt to beat back the tech giants hell-bent on mapping all of our on-line DNA onto an algorithm, usually designed for profit.

Here's how the class action lawsuit against Facebook begins:
Plaintiff Carlo Licata brings this Class Action Lawsuit Complaint and Demand for Jury Trial against Defendant Facebook, Inc., to put an end to its surreptitious collection, use, and storage of Plaintiff's and the proposed class's sensitive biometric data. 
The complaint then goes on to describe FB's Tag Suggestion feature [deployed since 2010] and how it actually utilizes proprietary facial recognition software designed to extract unique biometric identifiers in the user's uploaded photographs. This is done, according to the lawsuit, in violation of Illinois' Biometric Information Privacy Act; on the books since 2008.

Members of the proposed class include any resident of Illinois that has had his or her facial image, "collected, captured, or otherwise received while residing in the State of Illinois." In its prayer for relief, the class action suit seeks up to $5000 per individual.

Now let's just do the math on this for just a second. If Edelson's firm succeeds in certifying this class in Illinois and gets statutory damages, he may be able to move into every state that has a law similar the Illinois statute protecting biometric privacy. If he prevails state-by-state-by-state, the law firm's profits could be enormous depending on the size of the class; last we heard, FB had about a billion active users.

We will be tracking this very interesting privacy law suit as Facebook will not be taking this laying down; they have loads of available cash to hire top flight lawyers to defend the suit.

In the case against Spokeo, the plaintiff, Thomas Robins, as representative of a class of individuals, alleges he has been damaged due to the database's negligent collection and publication of inaccurate personal information. Edelson was able to reverse an early dismissal of the case on appeal to the Eleventh Circuit Court of Appeals.

[Side note: We wanted to test the accuracy of Spokeo's database and this author was nonplussed to see his own profile contained a reference to a former spouse -from whom he has been divorced for nearly ten years- listed as the his only relative.]

The narrow issue currently under consideration at the SCOTUS pursuant to Spokeo's petition for a writ of certiorari is whether an individual, who cannot articulate exactly how an alleged violation of the Fair Credit Reporting Act caused him damages, should nevertheless be able to access a federal court in a civil law suit; i.e. the issue is whether the plaintiff has standing to even bring the lawsuit.

According to the SCOTUS docket on this case, the petitoner's writ, Spokeo's response, and a dozen amicus briefs were distributed to the justices for their consideration and discussion at the April 17th conference.  We here at the Law Blogger think the case has a good chance of being heard.

Stay tuned on these and we'll get back to our readers with the developments.

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Wednesday, April 1, 2015

Governor Pardons Drunk Driver Convicted in Bloomfield Hills

Attorney Alan Gocha, Jr.
People that drive the mean streets of Bloomfield Hills, West Bloomfield and Keego Harbor drive in fear. At least when they've had a few drinks at the bars and restaurants along Orchard Lake or Telegraph Roads, or Woodward Avenue.

If you get pulled over anywhere within the jurisdiction of the 48th District Court and charged with operating a vehicle while intoxicated, you have a 33% chance of facing Judge Kim Small. She has garnered headlines over the years with her tough sentences, putting ordinary folks in jail for up to 30-days on a first offense.

In the case of 5-Hour Energy lawyer Alan Gocha, Jr., after unsuccessfully challenging the police traffic stop, he was sentenced to 6-days in the Oakland County Jail. His appeals, right up the line, also were unsuccessful.

That's when Mr. Gocha turned to the Governor's office. Since his election back in 2010, Governor Snyder has only pardoned 11 people.

A governor's pardon removes the conviction from your criminal history. While many other crimes are eligible for expungement, alcohol-related driving crimes are not among them; a drunk driving conviction follows you for life.

In the case of Mr. Gocha, a high-end lawyer with a single wealthy client, his pardon application asserted that his conviction was slowing deals with Wall Street and making his required international travel more difficult. In 2013, Gocha was among a select group of lawyers featured as "Leaders in the Law" by Michigan Lawyers Weekly.

Looking into this pardon, reporters learned that Gocha donated over $25,000 to the conservative Michigan Chamber of Commerce. In addition, one of Gocha's law firm's clients, ETC Capital, donated millions to the Republican Governor's Association.

These were, of course, legal political donations. But we here at the Law Blogger have to ask whether Governor Snyder, who is normally "by-the-book" in his judicial appointments, was somewhat swayed by politics in this case.

Correction's Deputy Director, Russ Marian, does not think so. Mr. Gocha is "just another person" who received no special treatment according to Marian.

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