Litigation – Attorney Evan Brown

November 29, 2024 Anonymity, Defamation, Electronic Discovery, Litigation

K-Pop companies seek U.S. court’s help to unmask anonymous YouTubers

Three South Korean entertainment companies turned to a U.S. court to assist in identifying anonymous YouTube users accused of posting defamatory content. The companies sought permission to issue a subpoena under 28 U.S.C. § 1782, a law that allows U.S. courts to facilitate evidence collection for foreign legal proceedings.

Applicants alleged that the YouTube channels in question posted false claims about K-pop groups they manages, including accusations of plagiarism and deliberate masking of poor vocal performances. Applicants – who had already initiated lawsuits in South Korea – needed the subpoena to obtain identifying information from Google, the parent company of YouTube, to pursue these claims further. Google did not oppose the request but reserved the right to challenge the subpoena if served.

The court ruled in favor of applicants, granting the subpoena. It determined that the statutory requirements under § 1782 were met: Google operates within the court’s jurisdiction, the discovery was intended for use in South Korean legal proceedings, and applicants qualified as interested persons. The court also weighed discretionary factors, such as the non-involvement of Google in the South Korean lawsuits and the relevance of the requested information, finding them supportive of applicants’ request.

The court emphasized that the subpoena was narrowly tailored to identify the operators of the YouTube channels while avoiding unnecessary intrusion into unrelated data. However, it also sought to ensure procedural fairness, requiring Google to notify the affected individuals, who would then have 30 days to contest the subpoena.

Three Reasons Why This Case Matters:

International Legal Cooperation: The case illustrates how U.S. courts can assist in resolving international disputes involving anonymous online actors.
Accountability for Online Speech: It highlights the balance between free expression and accountability for potentially harmful content on digital platforms.
Corporate Reputation Management: The decision reflects how businesses can use legal avenues to protect their reputation across jurisdictions.

In re Ex Parte Application of HYBE Co., Ltd., Belift Lab Inc., and Source Music Co., Ltd., 2024 WL 4906495 (N.D. Cal. Nov. 27, 2024).

November 24, 2024 Litigation, Social Media, Trademarks

People tagging the wrong place on Instagram did not help prove trademark infringement

The City and County of San Francisco sued the Port of Oakland and the City of Oakland alleging trademark infringement and unfair competition. The dispute began when Oakland renamed its airport “San Francisco Bay Oakland International Airport,” which San Francisco claimed created confusion and harmed the brand of its own airport, San Francisco International Airport (SFO). San Francisco asked the court for a preliminary injunction to stop Oakland from using the new name while the case proceeded.

The court granted the motion in part, finding that the new name improperly implied an affiliation between the airports. However, it rejected claims that Oakland’s actions caused confusion during online ticket searches or at the point of sale. Social media evidence featured prominently in the case but ultimately did not sway the court’s decision.

San Francisco argued that social media posts demonstrated actual consumer confusion. For example, some users on platforms such as Instagram tagged images of SFO with Oakland’s new name, while others expressed uncertainty about which airport they were referencing. Despite these examples, the court found the evidence weak and unconvincing. It noted that most of the posts lacked context, such as whether the users were actual travelers or how their confusion affected any purchasing decisions. Additionally, the court questioned the sincerity of some posts, particularly where users repeated the same confusion across multiple platforms or appeared to joke about the issue.

While the court acknowledged that social media evidence could have value, it stressed the need for reliability. Without clear patterns or evidence of widespread confusion, the posts provided little support for San Francisco’s broader claims.

Three reasons why this case matters:

The Limits of Social Media Evidence: This case demonstrates that courts demand robust, contextualized proof when social media posts are used to argue consumer confusion.
Trademark Law in the Digital Age: The case highlights the challenges of protecting trademarks in a world where branding and consumer perception are shaped online.
Impacts on Regional Branding: The ruling underscores the importance of clear naming practices for public infrastructure, especially in areas with competing interests.

City and County of San Francisco v. City of Oakland, 2024 WL 5563429 (N.D. Cal., November 12, 2024)

November 21, 2024 Litigation, Section 230, Social Media

Disabled veteran’s $77 billion lawsuit against Amazon dismissed

A disabled Army veteran sued Amazon alleging “cyberstalking” and “cyberbullying” on its gaming platform, New World. Plaintiff claimed Amazon allowed other players and employees to engage in harassment, culminating in his being banned from the platform after over 10,000 hours and $1,700 of investment. Plaintiff sought $7 billion in compensatory damages and $70 billion in punitive damages, asserting claims for intentional infliction of emotional distress, gross negligence, and unfair business practices. Plaintiff also filed motions for a preliminary injunction to reinstate his gaming account and to remand the case to state court.

The court, however, dismissed the case. It granted plaintiff in forma pauperis status, allowing him to proceed without paying court fees, but ruled that his complaint failed to state any claim upon which relief could be granted. The court found no grounds for allowing plaintiff to amend the complaint, as any amendment would be futile.

The court dismissed the case on several legal principles. First, it found that Amazon was immune from liability under the Communications Decency Act at 47 U.S.C. §230 for any content posted by third-party users on the New World platform. Section 230 protects providers of interactive computer services from being treated as publishers or speakers of user-generated content, even if they moderate or fail to moderate that content.

Second, plaintiff’s claims about Amazon employees’ conduct were legally insufficient. His allegations, such as complaints about bad customer service and being banned from the platform, failed to meet the standard for intentional infliction of emotional distress, which requires conduct so outrageous it exceeds all bounds tolerated in a civilized society. Similarly, plaintiff’s gross negligence claims did not demonstrate any extreme departure from reasonable conduct.

Finally, in the court’s view, plaintiff’s claim under California’s Unfair Competition Law (UCL) lacked the necessary specificity. The court found that poor customer service and banning a user from a platform did not constitute unlawful, unfair, or fraudulent business practices under the UCL.

Three Reasons Why This Case Matters

Clarifies Section 230 Protections: The case reinforces the broad immunity granted to online platforms for third-party content under Section 230, even when moderation decisions are involved.
Defines the Limits of Tort Law in Online Interactions: It highlights the high bar plaintiffs must meet to succeed on claims such as intentional infliction of emotional distress and gross negligence in digital contexts.
Sets Guidance for Gaming Platform Disputes: The decision underscores the limited liability of companies for banning users or providing subpar customer support, offering guidance for similar lawsuits.

Haymore v. Amazon.com, Inc., 2024 WL 4825253 (E.D. Cal., Nov. 19, 2024)

November 19, 2024 Litigation, Unfair Competition

Beauty products company wins preliminary injunction against online sellers

conterfeit

Plaintiff sued a group of unnamed individuals, corporations, and online sellers, alleging that they were selling counterfeit versions of plaintiff’s patented beauty products through various e-commerce platforms. Plaintiff requested a preliminary injunction to immediately stop these activities and freeze defendants’ financial accounts. The United States District Court for the Southern District of Florida granted the request, seeking to protect plaintiff’s intellectual property rights while the case continued.

Plaintiff argued that defendants had infringed on its utility and design patents by manufacturing, promoting, and selling counterfeit products that mimicked its patented designs and technology. Investigators hired by plaintiff purchased items from defendants’ online stores and determined they were unauthorized copies. Plaintiff claimed these actions caused irreparable harm to its brand reputation and financial well-being.

The court evaluated whether plaintiff met the legal standard for a preliminary injunction, which requires showing a likelihood of success on the merits, irreparable harm without relief, a balance of hardships favoring plaintiff, and alignment with the public interest. The court found that plaintiff provided strong evidence that defendants were selling counterfeit goods in violation of its patents. Defendants had no authorization to use plaintiff’s intellectual property, and their activities risked confusing consumers and damaging plaintiff’s reputation.

The court determined that the harm to plaintiff outweighed any potential harm to defendants, especially since defendants were engaging in illegal activities. The public interest also supported the injunction, as it protected consumers from being misled into buying counterfeit products. The court froze defendants’ financial accounts to prevent them from transferring funds out of the court’s jurisdiction.

Why This Case Matters:

Intellectual Property Protection: The ruling reaffirms the importance of enforcing patent rights against counterfeiters in the e-commerce space.
Consumer Protection: By halting counterfeit sales, the court safeguarded consumers from buying inferior and unauthorized products.
Digital Enforcement Tools: The decision highlights the role of injunctions and financial account freezes as tools to combat online intellectual property infringement.

Foreo Inc. v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A, 2024 WL 4652093 (S.D. Fla. Nov. 1, 2024).

November 7, 2024 Fraud/Misrepresentation, Litigation

Online IP enforcement case runs into difficulties

A recent decision highlights some of the difficulties of enforcing patent rights concerning products on e-commerce platforms. Plaintiff sued defendants over product takedown notices defendants sent to Amazon. The dispute centered around defendants’ claims that plaintiff’s drone product infringed on defendants’ patent, which covers specific sensor and control systems for drones. Defendants had reported this alleged infringement to Amazon, leading to the removal of plaintiff’s product listings. Plaintiff argued that defendants’ claims were made in bad faith and intended to damage its business rather than protect intellectual property rights.

TRO sought against Amazon takedowns

Seeking to reverse the takedown, plaintiff asked the court for a temporary restraining order (a “TRO”) requiring defendants to retract their report to Amazon and halt further takedown attempts related to the patent. Plaintiff claimed that the takedown had caused extensive harm, including loss of customer goodwill, reduced product visibility, and declining sales, especially as the holiday season approached. Plaintiff relied heavily on Amazon as its main sales channel, making the takedown particularly damaging.

TRO denied

The court ultimately denied plaintiff’s request for a TRO. In reaching its decision, the court relied on four key factors: the likelihood that plaintiff would win the case, the severity of harm it faced, the fairness of the request, and the potential impact on public interest. The court found that plaintiff had not demonstrated a clear likelihood of success, as it did not provide convincing evidence that defendants’ patent claim was baseless or made in bad faith. Additionally, the court viewed plaintiff’s losses as primarily economic, which could potentially be compensated with financial damages later, and thus did not meet the threshold for “irreparable harm.”

It would also have been burdensome

The court also noted that plaintiff’s request would require a mandatory injunction, which imposes a high standard of proof. Given that plaintiff had not fully shown that defendants’ actions were entirely groundless, the court refused to compel defendants to retract their report to Amazon.

This case underscores the challenges companies face when their sales depend on e-commerce platforms, where patent claims can lead to sudden and significant losses. While the court acknowledged the harm to plaintiff, it determined that such harm could be addressed through standard litigation, rather than emergency intervention.

Three Reasons Why This Case Matters:

E-commerce Vulnerability: Companies selling through platforms like Amazon face high risks when patent claims arise, as these claims can lead to immediate product delistings and revenue losses.
High Bar for Emergency Relief: This case demonstrates the difficulty of securing rapid court intervention for online takedowns, especially when potential harm might be addressed financially.
Patent Law’s Growing Role in Online Markets: As e-commerce expands, the reach of patent enforcement on major platforms presents distinct challenges and risks for businesses in digital marketplaces.

Zero Cloud One Intelligent Technology (Hangzhou) Co. Ltd., v. Flying Heliball LLC; World Tech Toys, Inc., 2024 WL 4665594 (W.D. Washington, November 4, 2024)

November 3, 2024 Litigation

Court rules on how punitive damages may apply in eBay corporate harassment case

A Massachusetts couple who ran an independent news blog sued eBay for allegedly orchestrating a targeted harassment campaign against them. Plaintiffs owned and operated EcommerceBytes, a trade publication that covered e-commerce, often with critical insights into companies such as eBay. According to plaintiffs, eBay’s executives became increasingly concerned about this coverage and decided to respond in a way that went far beyond normal corporate PR strategies. Instead of addressing the criticism directly, eBay’s former executives allegedly launched a campaign to frighten and silence plaintiffs through harassment, surveillance, and various disturbing tactics. Plaintiffs accused eBay and several of its former employees of planning and executing actions that included sending grotesque packages, stalking plaintiffs in their hometown and even posting false online ads to publicly humiliate them.

Both parties took steps to try to control which state’s law would apply to the issue of punitive damages in the case. Plaintiffs asked the court to apply California law for punitive damages, arguing that much of the alleged harassment campaign had been coordinated from eBay’s headquarters in California. California law allows punitive damages for cases involving malice or oppressive behavior, which could lead to significant financial consequences for the defendant if plaintiffs were successful. In contrast, eBay filed its own motion asking the court to apply Massachusetts law, which generally does not permit punitive damages without specific statutory authorization. eBay argued that Massachusetts law should govern the case since many of the alleged harassment activities—such as physical surveillance and vandalism—occurred in Massachusetts, where plaintiffs lived.

The court ultimately allowed both parties’ motions in part, ruling that some of the claims would be governed by Massachusetts law and others by California law. For certain claims, such as trespass and false imprisonment, the court decided Massachusetts law would apply to punitive damages because those incidents occurred within Massachusetts. But the court ruled that California law would govern claims the claims for intentional infliction of emotional distress and civil conspiracy, since the alleged harassment campaign had been largely planned and coordinated from eBay’s headquarters in California.

Why this case matters:

Corporate Accountability: It shows how far-reaching corporate misconduct can be when unchecked and highlights the need for mechanisms that hold companies responsible for actions against individuals.
Limits of Corporate Power: The alleged conduct underscores the lengths some companies may go to when responding to criticism, raising questions about corporate influence and ethical boundaries.
Guidance for Cross-State Cases: The court’s decision to apply different state laws to various claims sets an example for how courts might handle complex cases that cross state lines and involve conflicting laws.

Steiner v. eBay, Inc., — F.Supp.3d — 2024 WL 4647877 (D. Mass., November 1, 2024)

October 19, 2024 Contracts, Litigation

Online agreement to arbitrate not enforceable

website terms and conditions

Plaintiff sued defendant gaming company alleging violation of Washington state laws addressing gambling and consumer protection. Plaintiff claimed that after starting with free chips in defendant’s online casino games, users had to buy more chips to keep playing. Plaintiff had spent money on the games and argued that defendant’s practices were unfair.

Defendant moved to dismiss the case and asked the court to compel arbitration. Defendant argued that plaintiff had agreed to defendant’s terms of service, which included an arbitration clause. The company claimed that by playing the games, plaintiff was bound to these terms, even though plaintiff did not explicitly sign a contract.

The court denied the motion to dismiss. It found that defendant did not provide enough information to show that plaintiff had been given proper notice of the terms of service or that he agreed to them. The notice on the game’s homepage was not clear or conspicuous enough for a reasonable person to understand that they were agreeing to the terms, including arbitration, just by playing the games.

Three reasons why this case matters:

Consumer Protection: It highlights the importance of businesses providing clear and understandable terms to consumers.
Online Contracts: The case shows that courts are careful when it comes to online agreements, requiring companies to ensure consumers are fully aware of the terms.
Arbitration Clauses: This case reinforces that arbitration clauses must be clearly presented and agreed upon to be enforceable.

Kuhk v. Playstudios, Inc., 2024 WL 4529263 (W.D. Washington, October 18, 2024)

April 22, 2024 Artificial Intelligence, Litigation

Footnote in opinion warns counsel not to cite AI-generated fake cases again

A federal judge in Wisconsin suspected that one of the parties appearing before the court had used generative AI to write a brief, which resulted in a hallucinated case. The judge issued an opinion with this footnote:

Although it does not ultimately affect the Court’s analysis or disposition, Plaintiffs in their reply cite to a case that none of the Court’s staff were able to locate. ECF No. 32 at 5 (“Caserage Tech Corp. v. Caserage Labs, Inc., 972 F.3d 799, 803 (7th Cir. 1992) (The District Court correctly found the parties agreed to permit shareholder rights when one party stated to the other its understanding that a settlement agreement included shareholder rights, and the other party did not say anything to repudiate that understanding.).”). The citation goes to a case of a different name, from a different year, and from a different circuit. Court staff also could not locate the case by searching, either on Google or in legal databases, the case name provided in conjunction with the purported publication year. If this is, as the Court suspects, an instance of provision of falsified case authority derived from artificial intelligence, Plaintiffs’ counsel is on notice that any future instance of the presentation of nonexistent case authority will result in sanctions.

One must hope this friendly warning will be taken seriously.

Plumbers & Gasfitters Union Local No. 75 Health Fund v. Morris Plumbing, LLC, 2024 WL 1675010 (E.D. Wisconsin April 18, 2024)

April 1, 2024 Cybersquatting, Litigation, Trademarks

Can the owner of a company be personally liable for what the company does?

personally liable

One of the major benefits of forming a corporation or limited liability company is the shield from personal liability the business entity provides to its owners. But that shield does not protect against all of the company’s officers’ conduct.

In a recent trademark infringement case in federal court in California, a court evaluated whether a company’s officer could face liability for trademark infringement and cybersquatting. Plaintiff sued the company and the owner individually, asserting that that the owner should be personally liable because he controlled and was involved in all significant corporate decisions regarding the alleged infringement.

Citing to Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058 (9th Cir. 2016), the court observed that a corporate officer can be personally liable when he or she is the “guiding spirit” behind the wrongful conduct, or the “central figure” in the challenged corporate activity.

In this case, the court declined to dismiss the individual defendant from the lawsuit. With respect to the alleged trademark infringement and cybersquatting, the court focused on the fact that the individual defendant:

was the founder and central figure of the company,
personally participated in all major business strategy, branding and marketing decisions and actions,
ran the company from his home,
was the only officer of the company and was simultaneously the CEO, CFO and Secretary,
promoted the company’s brand from his personal social media account, and
directly negotiated with the plaintiff’s founder to see whether the parties could “find a more peaceful resolution.”

Simply stated, the individual defendant was not merely a board member that “final say,” but was substantially involved in every aspect of the conduct of the business giving rise to the alleged intellectual property infringement.

Playground AI LLC v. Mighty Computing, Inc. et al., 2024 WL 1123214 (N.D. Cal., March 14, 2024)

See also:

March 25, 2024 Artificial Intelligence, Litigation

New Jersey judiciary taking steps to better understand Generative AI in the practice of law

We are seeing the state of New Jersey take strides to make “safe and effective use of Generative AI” in the practice of law. The state’s judiciary’s Acting Administrative Director recently sent an email to New Jersey attorneys acknowledging the growth of Generative AI in the practice of law, recognizing its positive and negative uses.

The correspondence included a link to a 23-question online survey designed to gauge New Jersey attorneys’ knowledge about and attitudes toward Generative AI, with the aim of designing seminars and other training.

The questions seek to gather information on topics including the age and experience of the attorneys responding, attitudes toward Generative AI both in the and out of the practice of law, the levels of experience in using Generative AI, and whether Generative AI should be a part of the future of the practice of law.

This initiative signals the state may be taking a proactive approach toward attorneys’ adoption of these newly-available technologies.

See also: