A New Jersey Appellate court recently dealt with the issue of e-mail anonymity in Juzwiak v. Doe. Plaintiff was a Hightstown High School music teacher who received a series of nasty e-mails from a sender identified as "Josh Hartnett," that called plaintiff evil, compared him to the the devil, and generally said he was unfit to teach.
Plaintiff filed a John/Jane Doe complaint in Mercer County, claiming harassment and intentional infliction of emotional distress, and he served a subpoena on Yahoo seeking the name of the e-mail account owner. Yahoo notified the owner of the account, who moved to quash the subpoena. The trial court denied the motion to quash, but issued a stay so the matter could be taken up on appeal.
The standard in New Jersey to unmask an anonymous internet poster or e-mail sender was set in Dendrite International, Inc. v. Doe, 342 N.J. Super. 134 (App. Div. 2001), which required, among other things, that a plaintiff "produce sufficient evidence supporting each element of its cause of action, on a prima facie basis."
Here, on appeal, the Court held that plaintiff did not establish two elements of an emotional distress claim: that the defendant's conduct was so "extreme and outrageous ... as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" and that the conduct caused distress "so severe that no reasonable man could be expected to endure it."
The messages did not accuse plaintiff of committing "vile or criminal acts," nor did they contain racist insults, obscene or profane language. Plaintiff also failed to prove that the posting caused “unendurable distress.” The Court also held that plaintiff failed to show that he tried to identify the sender through other means, such as such as a telephone book or voting records, and granted the motion to quash.
If you would like further information about this post, please contact Mike Bono at mbono@wcmlaw.com
http://pdfserver.amlaw.com/nj/Juzwiak-a2302-09.pdf
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In what some experts are calling the largest unresolved Holocaust art claim, heirs of Baron Mor Lipot Herzog -- a well-known Jewish Hungarian art collector -- have commenced an action in federal court (District of Columbia) against the Republic of Hungary and various Hungarian museums seeking the return of over $100 million worth of art that they allege is rightfully theirs -- Complaint.
The artworks -- which include a number of works by El Greco, Velázquez, Renoir and Monet -- were seized in the 1940’s by the Hungarian government which was an ally of Nazi Germany. In de Csepel v. Republic Of Hungary, the heirs allege that the infamous Adolf Eichmann inspected the art collection in Hungary and had some works shipped to Germany and allowed the rest to remain in Hungary.
The suit raises a number of interesting legal issues regarding Hungary’s sovereign immunity and the relevance of a Hungarian court’s ruling that the heirs were not entitled to the artworks. An interesting allegation is that Hungary is pursuing other parties for the return of Nazi art - yet refuses to return this art to the heirs.
We will continue to follow this interesting case. Thanks to Mendel Simon for his contribution to this post.
If you would like more information, please contact Mike Bono at mbono@wcmlaw.com
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In Luchejko v. City of Hoboken, the plaintiff slipped and fell on ice on a public sidewalk abutting a condominium association’s property in Hoboken, New Jersey. The New Jersey Appellate Division ruled that the condo association did not have a duty to maintain the sidewalk and was therefore entitled to summary judgment.
Under New Jersey’s sidewalk liability rules, entities other than “commercial” entities are immune from sidewalk liability. Commercial entities have a duty to maintain sidewalks and remove snow and ice on the theory that they have the capacity to spread the risk of loss arising from injuries on abutting sidewalks by imposing higher charges for the entity’s goods and services. New Jersey courts have ruled that apartment complexes are “commercial” and therefore have a duty to maintain abutting sidewalks.
The court in Luchejko held, however, that the condo association was not like an apartment complex because an apartment complex is owned for investment purposes due to the owner's capacity to generate income from the property, whereas the units in the condo in this case are owner-occupied. Therefore, the condo association is not a "commercial entity and is entitled to immunity from sidewalk liability. A question left for courts after the Luchejko decision is whether a condo association that contains a commercial tenant is also immune from liability.
http://www.wcmlaw.com/pdf/Luchejko.pdf
Thanks to Mendel Simon for his contribution to this post. If you would like further information, please contact mbono@wcmlaw.com
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We have previously reported on the case of Bimbo Bakeries and Thomas’s English Muffins -- http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=492 and http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=509.
As you may recall, Bimbo Bakeries USA, the company that owns Thomas' English Muffins, sued former executive Chris Botticella in United States District Court for the Eastern District of Pennsylvania. Bimbo alleged that Botticella is one of few people in the world who knows the secret recipe (i.e., nooks and crannies) for Thomas' English Muffins, and signed a confidentiality agreement in March 2009.
Botticella later accepted a position at Hostess, and Bimbo claims that Botticella "will inevitably disclose to Hostess" details of the recipes involved in the confidentiality agreement. Such disclosures would cause irreparable damage to Bimbo, and Bimbo argues that they should not have to sit around and wait to see "nooks and crannies" in Hostess products before seeking relief from the courts.
A preliminary injunction was issued, and the 3rd U.S. Circuit Court of Appeals has now upheld the District Court’s injunction barring Chris Botticella from taking a new job at rival bakery Hostess Inc.
The preliminary injunction, issued in February 2010, was set to expire in two months but Boticella’s attorneys appealed the injunction in the interim arguing it was based on an unreasonable application of the “inevitable disclosure” doctrine. The 3rd Circuit, however, found the evidence showed Botticella continued to work for Bimbo for several months after accepting his new job with Hostess and attended high level strategy meetings. In addition, Botitcella downloaded sensitive trade secret documents to an external drive just before his departure from Bimbo.
The 3rd Circuit, applying Pennsylvania law, found that in granting injunctive relief in a trade secret case, a highly fact-specific inquiry must be made. Here, the case specific facts demonstrated a substantial threat of trade secret misappropriation and therefore the Court had the authority to bar Botticelli from beginning his employment with Hostess.
http://www.ca3.uscourts.gov/opinarch/101510p.pdf
Thanks to Chris O'Leary for his contribution to this post.
If you would like further information about this post or WCM's IP practice, please e-mail mbono@wcmlaw.com
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In difficult economic times, an increase in insurance fraud often follows. Recently, the National Insurance Crime Bureau published a report showing that staged auto accident questionable claims increased by 46% from 2007-2009, despite the fact that auto personal injury claims and claims for PIP benefits decreased during that period.
New York was the second highest state for such claims, falling only behind Florida.
And the number one city? New York, with more than 1,300 claims.
If you would like more information about this post, contact mbono@wcmlaw.com
https://www.nicb.org//newsroom/press_releases/staged-accident-questionable-claims-up
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Insurers that deny coverage often expect their decisions will be challenged in court. But recently, a policyholder made the unusual allegation that a denial of his claim constituted a violation of his civil rights.
In Robinson v. Allstate, in 1984, plaintiff purchased a homeowner’s policy, including coverage for plaintiff’s barn, which he used as a “barn/museum” to store his collection of 200 motorcycles. The Allstate agent told him the contents of the barn would be covered, “as long as he was not running a business.”
In 1999, gasoline leaked from one of the motorcycles, starting a fire. The barn burned down, and plaintiff suffered $800,000 in damages. Allstate disclaimed coverage, citing to an exclusion barring coverage for structures used for business purposes.
Plaintiff sued Allstate in New York State Court, and ultimately a jury held that Allstate properly applied the exclusion. Plaintiff also filed suit in federal court against Allstate, his village, the police department, and the county sheriff, alleging they engaged in a fraudulent conspiracy to deny him coverage for his loss and to violate his equal protection rights.
The federal judge held that res judicata barred plaintiff’s lawsuit, because the issues had already been decided in the state court action. But in any event, the court also ruled that plaintiff failed to prove the existence of any conspiracy, and that there was no conspiracy “motivated by a class based animus.” The court thus dismissed the lawsuit, saving insurers from another worry, at least for the moment.
If you would like further information about this post, contact mbono@wcmlaw.com
http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CFDCT%5CWNY%5C2010%5C20100330_0000347.WNY.htm/qx
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Yula Lipchitz, the wife of famed sculptor Jacques Lipchitz, died on July 20, 2003. During the probate of her will, Biond Fury asserted a claim of ownership in The Cry a 1,100 pound bronze sculpture, valued at around $1 million.
Fury claimed that Lipchitz gave him the sculpture in 1997, citing a handwritten note on the back of a photograph of the sculpture as proof. Fury said he stored the sculpture in a warehouse at his expense until it was removed by Hanno Mott, Lipschitz son, who shipped it to a gallery and then loaned it to the French government.
Fury subsequently sold his interest in the work to Petitioners David Mirmish, who filed the action against Mott. The Surrogate’s Court ruled in favor of the Fury/Mirmish, finding that a valid gift was made by Lipchitz to Fury. On appeal, the First Department held that the Surrogate Court improperly granted summary judgment because Fury’s testimony as to the transaction with Lipschitz was inadmissible pursuant to New York’s “Dead Man’s” statute. The Appellate Court also held there was in issue of fact as to whether a gift was made because there was conflicting evidence as to whether Lipchitz parted with “dominion and control” of the sculpture.
However, the Court held that the petitioner’s claims were barred by the three year statute of limitations for conversion and replevin claims. The court noted a conversion cause of action accrues upon the occurrence of "some affirmative act of asportation” – which occurred here no later than 1998, when respondent had The Cry removed from the Michael Leonard Warehouse without Fury's permission, delivered to the Marlborough gallery and then loaned to the French Government, all in the name of the Lipchitz family.
Thus, the Appellate Court reversed the Surrogate’s Court's decision and held Mirmish’s claims of ownership were time barred.
For more information about this post, please e-mail mbono@wcmlaw.com
http://www.leagle.com/unsecure/page.htm?shortname=innyco20100527413
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Plaintiff filed a shareholder dispute, alleging, in part, that the defendants made false and misleading statements regarding the financial condition of the subject company, causing plaintiff to invest to her detriment.
One of the allegations cited to internal e-mail correspondence among the defendants that took place on March 7, 2007, as support for the claim that the defendants had previous knowledge about the financial troubles and then disclosed contrary information to the public.
While litigating a motion to dismiss, plaintiff’s counsel revealed that he learned about the internal e-mails at issue in an article published in Business Spectator magazine. However, counsel subsequently realized that the reference in the article to “March 7” e-mails addressed 2008 e-mails and not 2007, as alleged by plaintiff. This was critical, because this e-mail exchange actually occurred after the company’s public collapse. Counsel conceded the allegation was false, but that it was unintentional.
Rule 11 of the Federal Rules of Civil Procedure requires that factual contentions in pleadings have evidentiary support. In order to comply with the rule, an attorney must make reasonable inquiries into the facts. Here, the Court focused on the fact that this was a “material allegation central to the viability of the entire pleading” -- and thus the failure of the attorney to conduct any further inquiry into that fact was “an act of gross negligence bordering on recklessness.”
The Court found this was the type of conduct Rule 11 was meant to address, and imposed sanctions, including the granting of all of the defendant’s legal fees, pending a showing that such an award does not represent an “unreasonable burden.”
If you have any questions about this post, please contact mbono@wcmlaw.com
http://www.nylj.com/nylawyer/adgifs/decisions/051410cote.pdf
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Jose Cantu is an oil titan from Mexico, who made a dramatic rise from a laborer to an owner of oil refineries. Billy Flanigan, a businessman and President of a Bahamian corporation, obtained a judgment against a Mexican petroleum workers union. Despite never having met Cantu, Flanigan believed that Cantu had connections with the Mexican government that would assist in his efforts to collect the judgment, and Flanigan engaged in a course of conduct designed to pressure Cantu into either paying Flanigan the judgment, or using his influence to help Flanigan collect from the union.
Flanigan prepared an “amicus brief” that resembled a legal complaint, listing Cantu as a defendant and declaring that Flanigan sought monetary damages. The “amicus brief” stated that Cantu was the operations manager of a racketeering enterprise, and that he had laundered large sums of money. It further alleged that Cantu had participated in the bribery of government officials and that Cantu was present when Mexican President Zedillo was awarded a $350 million bribe. The “amicus brief” also alleged that Cantu was involved in drug cartels, that he headed the “Ramiro Garza crime family,” that he illegally smuggled oil into the United States, that he had conspired with Iraqi President Saddam Hussein to illegally circumvent sanctions against Iraq and that he was personally responsible for causing the price of gasoline to rise. Flanigan ultimately accused Cantu of having committed mail fraud, wire fraud, tampering, obstruction of commerce, unlawful travel, theft by conversion and extortion.
Flanigan provided details from his brief to a reporter from the popular and widely-circulated Mexican magazine Processo, and the magazine printed an article about Cantu. The story was featured on the front cover, and it repeated Flanigan's allegations against Cantu. Due to the wide circulation of Processo magazine, Flanigan's accusations were distributed throughout the world.
A potential business partner learned of the allegations contained in the Processo article and immediately cancelled a multi-million dollar contract, resulting in a personal loss to Cantu of roughly $35,000,000. Cantu also introduced evidence that the damage to his reputation had resulted in an inability to secure other multimillion dollar contracts. In addition to affecting Cantu's personal and business relationships, the Processo article also prompted criminal investigations by the Mexican government and the United States Department of Justice – but Cantu was ultimately cleared of any potential wrongdoing.
Cantu filed suit in the Eastern District of New York, and a jury awarded him $38,000,000 in economic damages and $150,000,000 in non-economic damages to compensate Cantu for the harm to his reputation and the humiliation and mental anguish caused by Flanigan. In determining whether the judgment was excessive, the Court needed to determine whether the award deviated materially from reasonable compensation, using prior awards as not binding but instructive.
In calculating non-economic damages in a defamation case, including humiliation, mental suffering and damage to plaintiff's reputation, a jury may properly consider a number of factors. In this case, the jury was instructed to consider: [1] the plaintiff's standing in the community, [2] the nature of defendant's statements made about the plaintiff, [3] the extent to which the statements were circulated, [4] the tendency of the statement to injure a person such as the plaintiff, and [5] all of the other facts and circumstances in the case.
The Court analyzed each of the above factors, and also considered the fact that Flanigan engaged in a deliberate course of conduct tantamount to attempted criminal extortion, and affirmed the judgment - perhaps the largest defamation judgment in US history. Whether Canto can ultimately collect on his judgment remains to be seen, but I certainly doubt he will create his own "amicus brief" to assist in his collection efforts.
If you have any questions, please write to mbono@wcmlaw.com
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A common legal issue faced in many jewelry losses is whether goods freely provided by the insured jeweler to a third-party -- and then not returned -- constitutes a physical loss covered under the policy. Many courts across the country have held that, absent a specific exclusion, such a loss is fortuitous and covered under a typical property policy.
Recently, a California appellate court upheld one of those key exclusions in PNS Jewelry v. Penn-America Ins. Co. PNS is a jewelry wholesaler, and delivered more than $1.5 million in jewelry and watches to a thief posing as an armored car worker. The insurer denied coverage, citing the Voluntary Parting exclusion, which stated there was no coverage for “..voluntary parting with any property by [PNS] or anyone else to whom you have entrusted the property if induced to do so by any fraudulent scheme, trick, device or false pretense.”
PNS sued for breach of contract, arguing that “voluntary” means the insured acted with full knowledge of the facts and consequences of its actions. In essence, it argued that if an insured is induced to deliver property by fraud or deceit, that delivery could not be voluntary. The Court rejected PNS’s arguments and granted summary judgment in favor of the insurer, finding the language of the exclusion clear and unambiguous.
If you have any questions about this post, please contact mbono@wcmlaw.com
http://www.courtinfo.ca.gov/opinions/nonpub/B212348.PDF
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