Case Comments
| Publication year | 2020 |
| Author | Lowell Anderson |
Lowell Anderson
Stetina Brunda Garred & Brucker
"Business and Professions Code section 16600 has consistently been interpreted as invalidating any employment agreement that unreasonably interferes with an employee's ability to compete with an employer after his or her employment ends. [Citation omitted.] However, the statute does not affect limitations on an employee's conduct or duties while employed." Two employees promised they would not compete with their employer when they opened and operated a business, but later did compete and concealed the competition. When sued for breaching the promise, a jury found the employees breached a duty of disclosure and were liable for fraud. The promise was not voided by § 16600 and findings of fraud and interference with prospective business advantage were affirmed. Techno Lite, Inc. v. EMCOD, LLC, 2020 Cal. App. LEXIS 41, 2020 WL 289084 (Cal. 2d Dist. Ct. App. 2020).
"Clickwrap agreements require users to affirmatively assent to the terms of use before they can access the website and its services. Browserwrap agreements do not require the user to take any affirmative action to assent to the website terms." "Users are put on constructive notice based on the conspicuousness and placement of the terms and conditions, as well as the content and overall design of the app.... For example, courts will not enforce agreements where the terms are 'buried at the bottom of the page or tucked away in obscure corners of the website,' especially when such scrolling is not required to use the site.... Similarly, courts decline to enforce agreements where the terms are available only if users scroll to a different screen... complete a multiple-step process of clicking non-obvious links, or parse through confusing or distracting content and advertisements.... Even where the terms are accessible via a conspicuous hyperlink in close proximity to a button necessary to the function of the website, courts have declined to enforce such agreements." Here, a user could play a gambling game without having to affirmatively agree to the terms and conditions. A summary judgment denying arbitration of a class action lawsuit, compelled by the terms and conditions, was affirmed. Wilson v. Huuuge, Inc., 944 F.3d 1212 (9th Cir. 2019).
An attorney retainer agreement did not mention appeal and identified the matter by district court case number, so the agreement did not require counsel to represent the client on appeal. A motion to withdraw from representation was granted. M.A. Mobile Ltd. v. Indian Inst. of Tech. Kharagpur, 2019 U.S. Dist. LEXIS 209226, 2019 U.S.P.Q.2d 464417 (N.D. Cal. 2019) (Judge Orrick).
After obtaining a partial recovery in a lawsuit, an attorney and his law firm were fired. The former client posted a YELP review on an account shared with the client's daughter, saying the firm was "underhanded and shady," was "unprofessional and unethical," used "scare tactics," had "an awful moral compass," and urged readers to "stay away from this firm." The law firm sued the client's daughter for defamation as her photo appeared on the account, and maintained the lawsuit without joining the former client, even after the former client represented that she left the postings as confirmed by the initials on the postings of the shared account. On appeal from an anti-SLAPP dismissal, the firm argued the statute did not apply because the daughter-defendant denied making the posts so the defamation cause of action was not "arising from any act of" defendant as required by the statute. But a prior decision rejected that logic, because the Plaintiff's Complaint defines the contours of the claim and holding otherwise would make the anti-SLAPP law unavailable against baseless claims. The statute's automatic stay of discovery was properly maintained to prevent Plaintiff's discovery into who made the YELP statements, because "[discovery may not be obtained merely to 'test' the opponent's declarations" which said the client-mother posted the statements. As the law firm did not establish the minimal showing that the defendant made the postings the anti-SLAPP dismissal and fee award were affirmed. Abir Cohen Treyzon Salo, LLP v. Lahiji, 40 Cal.App.5th 882 (2d Dist. 2019).
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An attorney was sued for malicious prosecution by a defendant after filing and then voluntarily dismissing a lawsuit, apparently because of the Plaintiff-client's illness. Filing the lawsuit was protected activity under the anti-SLAPP statute as it involved the right to petition. As to the minimal merit required to avoid anti-SLAPP liability, a claim for inflection of emotional distress was barred by the litigation privilege of Cal.Civ.Code § 47. A claim for malicious prosecution required a lack of probable cause for the claim and an attorney can "bring a claim they think unlikely to succeed, so long as it is arguably meritorious." What evidence can be considered is discussed in the opinion, but was too complex to summarize here. But "an attorney may rely upon information supporting a client's claim unless the information is indisputably false," and probable cause is based on known facts rather than the adequacy of an attorney's investigation and research. The grant of an anti-SLAPP motion and dismissal were affirmed. Litinsky v. Kaplan, 40 Cal.App.5th 970 (2d Dist. 2019).
Authors of the song "Gimme Some Lovin'" performed by the Spencer Davis group, were accused of copying the base line from plaintiff's song, in the 1950's. A 1990 book contained portions of an interview with Davis, who was not a party. The interview may be in an ancient document, but it was still hearsay for which no exception was established. One Defendant's website posted a document containing a double hearsay statement by Davis of copying, but it was hearsay under Fed.R.Evid. 801(d)(2)(A) and posting the document may imply agreement with it but FRE 801(d)(2)(B) requires an actual manifestation of adoption or a statement of belief in it to avoid the hearsay exclusion. Two other third party Internet documents were excluded for the same reason under § 801(d)(2)(B). An expert report finding substantial similarity in the base lines was excluded as it was created after the summary judgment hearing and submitted a month later in opposing a personal jurisdiction motion. All documents were properly excluded. As no evidence of striking similarity was offered at the motion and no evidence of copying was submitted to oppose declarations saying no copying occurred, summary judgment dismissal was affirmed. One judge dissented. Parker v. Winwood, 938 F.3d 833 (6th Cir. 2019).
Plaintiff alleged the copyright in two issues of the comic "Rivets & Ruby" were infringed by a 2016 animated TV show Rusty Rivets involving robots Rusty Rivets and Ruby in a recycling yard and distributed in 1996-98. An expert's declaration addressed similarities at an abstract level and did not differentiate protectable and unprotectable elements of the works so as to be helpful to the court in performing an extrinsic analysis, and was thus not considered. After analyzing the script separate from the images, the court found the works were not substantially similar and were not so striking as to create a reasonable inference of copying to satisfy the access requirement. The bare possibility of access is insufficient to avoid summary judgment of non-infringement, which was granted. Knowles v. Spin Master, Inc., 2019 U.S. Dist. LEXIS 160965, 2019 U.S.P.Q.2d 353185, 2019 WL 4565102 (C.D. Cal. 2019) (Judge Anderson).
Under 17 U.S.C. § 504, the district court awarded statutory damages on works copied before registration but distributed after registration because the infringement was a different type and violated separate rights under § 412. That approach was rejected on appeal, in part because § 504(c)(1) authorizes "an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable" and allowing statutory damages for different types of infringement arising after registration would result in multiple damage awards instead of "an award." Also, denying statutory damages encouraged early registration. The statutory damage award was reversed. S. Credentialing Support Servs., LLC v. Hammond Surgical Hosp., LLC, 956 F.3d 780 (5th Cir. 2020).
In violation of subscription terms, for ten years, an investment firm subscribed to a daily investment newsletter on energy securities which was distributed by the firm to employees and other third parties, with the firm altering a PDF file name to conceal the publication's source on 425 of the distributions. A jury found infringement of 1,646 individual works, including 425 DMCA alterations of copyright management information (CMI), found that Plaintiff failed to mitigate its damages and could have avoided infringement through reasonable diligence, and awarded statutory damages for copyright infringement for each of the 1,646 and 425 works-under a jury instruction not to award damages if they were avoidable through reasonable effort. Applying mitigation, the district court awarded none of these statutory damages but awarded damages for other infringements. The Fifth Circuit found that mitigation applies only to post-injury consequential damages and under Petrella, each act of copyright infringement accrues separately and is not a continuing act. Also, statutory damages under 17 U.S.C. § 504 do more than approximate actual damages because they deter infringement. "We hold that mitigation is not an absolute defense to statutory damages under the Copyright Act and the district court erred when it ruled otherwise." Similar logic applied to DMCA statutory damages under 17 U.S.C. § 1203. "Therefore, mitigation is not an absolute defense...
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