Monthly Archives: June 2013

Politician’s Defamation Suit Blocked Because Statute of Limitations Ran Out

online defamation lawyer
A Minnesota Politician can’t move forward with his defamation lawsuit against the Huffington Post because he waited too long.

Minnesota politician Jack Shepard failed to file his defamation lawsuit against the Huffington Post in time for it to be taken up by the Court. He intended to sue the Huffington Post for an article published back in 2010 that labeled him an “arsonist.” Mr. Shepard has never been convicted of any such crime.

Shepard said he repeatedly requested that the Minnesota prosecutor’s office drop the 1982 arson charge still open against him. In support of this request, he also filed a formal complaint, pro se, in June of last year. The charge brought against him at the time related to possible arson in his home. Mr. Shepard maintains his innocence and states that the charges are not believable, as there was no reason for him to set fire to his own home. Moreover, there was no insurance policy to cash in or any other monetary benefit to be gained. The arson charges have not been pursued by the prosecution. Mr. Shepard has never been convicted of any other crime.

Mr. Shepard moved to Italy and opened a dental practice. He claims that as a result of the article his business was ruined. He also feels strongly that if he is ever taken to court on the arson charges, it will be almost impossible for him to get a fair trial. “Millions of people believe the Huffington Post to be a credible source of information and just by reading the headline of the story they believe I am a convicted arsonist.”

The Post article also states that Shepard went to Italy not only to pursue his dental career, but also to  possibly escape prosecution.

The Huffington Post article was first published in May of 2010, and the statute of limitation on a defamation suit in Minnesota is 2 years. The clock starts to run when a publication is first mass-distributed to the public. Subsequent printings do not extend the clock.

In his claim, Shepard states that the 2 year rule does not apply in his case since the Post updated the article with additional information. He also used his service in the military as a means to show cause to re-set the statute of limitation clock.

The case has been reviewed by a panel of 3 judges in the 8th Circuit, and the determination was that the case was past the statute of limitations. “We agree with the district court that none of his submissions indicated that he was on active military duty at any relevant time,” explained the Court.

In these types of cases, the early bird gets the worm, and it is important to get the right representation and file a defamation lawsuit before the statute of limitations runs out.

Do you need an online libel lawyer? Contact Kelly Warner Law.

Advertisers Unhappy About Mozilla “Do Not Track” Plans

computers with two cookies
Mozilla’s “Do Not Track” option is causing consternation in the online advertising world.

Firefox will now block third-party cookies by default and online marketers are upset, as they believe it will cut their ability to track online browsing trends and prevent them from being able to target consumers with ads. It may, however, be good news for online users, giving them more control over their privacy and less pop up ads. Nevertheless, advertisers are seeing red over the change.

IAB (Interactive Advertising Bureau) president and CEO Randall Rothenberg’s take on the changes is that it will do nothing to help Mozilla advance their agenda of providing more choices and innovation for the consumer. He claims the move will instead hurt the process by limiting consumer choices, thereby hindering innovation.

According to Mr. Rothenberg, the move to block all third party cookies will disenfranchise many users and everyone will lose the freedom and flexibility to choose on how they experience and utilize the Internet. The changes, Rothenberg claims, will force many small businesses and independent content providers out of business.

At the recent Digital Media summit, Rothenberg was blindsided during his interview with Terry Kawaja, founder and CEO of LUMA Partners. In the middle of his interview, SVP of business and legal affairs at Mozilla, Harvey Anderson, walked onto the stage. To put it bluntly, the exchange was “awkward.” Rotheberg apparently stated during the interview: “There are some people at Mozilla who are actively against the ad business.” Anderson volleyed back by saying, “We’re not opposed to advertising in any way, shape or form.”

Microsoft recently joined the bandwagon by starting a “Do Not Track” default browser header that sends a message to advertisers not to track their users. The ad community has bluntly come out to say they will not adhere to the request and will continue their practices undeterred.

ANA president and CEO Bob Liodice voiced in a recent statement. “It is time that Microsoft realign with the broader business community and provide choice to consumers, which is why ANA’s board of directors has come together and emphatically denounce this ill-considered approach.”

Rothenberg also wrote in his blog post “If third-party cookies become blocked; all advertising on the Internet will diminish in value because advertisers will not be able to control the delivery and performance of their ads. Without third-party cookies, the web will revert to a giant spam machine.”

It remains to be seen. Advertisers will continue to battle against the changes and the Companies that run the internet work to find the right balance that keeps everyone happy.

Electric Car Defamation Battle: GreenTech v.

GreenTech defamation lawsuit
The tiny car that launched a big-dollar online defamation lawsuit.

GreenTech Automotive, a North Mississippi electric car maker, is suing for cyberlibel. The car maker wants a cool $85 million because of two articles the advocacy group published online.

Green Tech manufactures MyCars — small electric vehicles. The newish e-car company has plans to make full-size cars at a plant in Tunica, Mississippi. Per the terms of a $3 million loan from the Mississippi Development Authority, GreenTech has a little over a year to create at least 350 jobs in the state.

According to GreenTech, everything was trucking along smoothly until published a pair of unflattering articles, about the car company, on The Plaintiffs seems to be most concerned with one story that quoted an investment adviser who criticized GreenTech’s use of the EB-5 investment program, which allows overseas investors an easier citizenship path in exchange for cold, hard cash. Specifically, GreenTech is arguing that improperly characterized the company’s reliance on the EB-5 program for funding as a “fraud.” The lawsuit also says the articles’ assertion that the EB-5 program is the company’s “chief source of funding and capitalization” isn’t true.

Since nearly every U.S. defamation lawsuit requires the plaintiff to prove some form of material harm, GreenTech avers the articles under review were responsible for investors’ reconsideration of a $25 million cash injection. Moreover, since the automotive entity is in the midst of a $60 million fundraising campaign, GreenTech insists their development efforts are in jeopardy as a result of the negative online press.

U.S. defamation lawsuit requires the plaintiff to prove some form of material harm.

“They were clearly upset about our reporting,” said Watchdog’s managing editor, Will Swaim. “It’s interesting that the adviser clarified what he meant, and we clarified the story. We thought we were being rather gentlemanly about this given what’s going on with Terry McAuliffe.”

Why the focus on McAuliffe? Well, he is the ex-president of GreenTech and is currently embroiled in a contentious gubernatorial race. As is the case with most political campaigns, McAuliffe’s past work-life is under review, so GreenTech is front and center. Actually, Swaim insists Watchdog became interested in the automaker after vetting McAuliffe.

“It was only a tertiary interest that we started looking at GreenTech itself,” Swaim argued. “Our interest in this was through the back door. It was Terry McAuliffe. He entered the gubernatorial race and was telling everybody he was a major automaker.”

Watchdog’s parent company, the Franklin Institute, also issued a statement to a Virginia newspaper. It’s President, Jason Stverak, claimed that GreenTech’s lawsuit is baseless. “We are confident that GreenTech’s claims are without merit, and we will continue to report on this important story,” Stverak said.

Guess we’ll have to wait and see how this very 21st century lawsuit turns out. In the meantime, if you need an online defamation attorney, get in touch with Kelly Warner Law.

Prince PO’d With Forbes: Put Me In The Top 10 Or Else!

Forbes defamation lawsuit
A prince is upset that Forbes didn’t put him in the list of Top 10 Richest People in the World.

Saudi Prince Alwaleed bin Talal is angry at Forbes, y’all. In their annual “rich list,” the magazine estimated the prince’s worth at $20 billion – $10B less than he claims.  So how does the blue blood plan to get even? Why by filing a defamation lawsuit against Forbes, Inc., of course.

Prince Alwaleed is the 58-year-old grandson of Saudi Arabia’s founder. And believe it or not, despite having a well-connected family, Alwaleed made most of his money on his own by investing in global brands at a time when their share prices were depressed. Along the way he has built up significant stakes in assets such as Apple, Citigroup, Disney and the Savoy Hotel.

To put it simple, his portfolio is impressive and he likes people to know it.

Prince Alwaleed bin Talal was ranked as the world’s 26th richest man by the  Forbes, which estimated his worth to be around $20bn.  Despite being pronounced the richest man in the Arab world, Prince Alwaleed accused Forbes of “intentional biases and inconsistencies” and insisted his real value was nearly $30B.

Forbes responded to the Prince’s public complaints by accusing the prince of “systematically” exaggerating his wealth in order to improve his standing on the rich lists.  Forbes said it had sought to establish his wealth based on the underlying value of his company’s investments rather than the price of its Riyadh-traded shares. Why? Because, according to Forbes, the Riyadh investments would inexplicably rise each year right around the time the magazine was collecting the annual “rich list” data.  The magazine also said the prince as pressured them to use his own $29.6B figure, “which would return him to the top 10 position he has craved”.

Kerry Dolan, a Forbes journalist, wrote: “The value that the prince puts on his holdings at times feels like an alternate reality.

“For the past few years, former Alwaleed executives have been telling me that the prince, while indeed is one of the richest men in the world, consistently exaggerates his net worth by several billion dollars.”

In March, Prince Alwaleed did an interview with the Sunday Telegraph. During the sit down he mentioned his intention to sue Forbes for defamation. “They are accusing me of market manipulation,” Alwaleed accused. “This is all wrong and a false statement. We will fight it all the way against Forbes.” He also called the Forbes’ list “flawed and inaccurate, displaying bias against Middle East investors and financial institutions.”

“This is all wrong and a false statement. We will fight it all the way against Forbes.”

Jeffrey Towson, Alwaleed’s former Head of Direct Investments, published a white paper in response to the Forbes article titled “The 8 Big Mistakes in Forbes’ Attack on Prince Alwaleed.” Towson wrote that “Forbes’ explanation of his (Alwaleed’s) behavior, his business and his investment strategy is one of the worst I have ever seen. It is full of mistakes and mis-characterizations.”

Earlier this month (June 2013) Alwaleed launched a defamation claim in London against the publisher of Forbes, its editor, Randall Lane, and two journalists from the magazine. Forbes announced their surprise at the libel action but stands by its story.

The Forbes‘ list ranked Mexican telecommunications tycoon Carlos Slim as the world’s richest man with $73B, followed by Microsoft founder Bill Gates, who placed second with $67B.

TCPA Rule Changes Coming Soon!

FCC Logo
New TCPA rules are coming in October! Are you ready!?

If you use robocalls or texting to advertising a product or service, be sure to familiarize yourself with recent TCPA developments. First passed in 1991, the Telephone Consumer Protection Act (TCPA) protects consumers from unwanted or unrequested phone solicitations. The Federal Government plans to enact additional measures designed to further solidify the existing law.

The Telephone Consumer Protection Act

Marketing and advertising are vital components of any successful business, and more often than not, the “most heard” message is the one that sticks in the consumer’s mind. Not surprisingly, businesses capitalized on the immediacy and convenience of telemarketing and automated messaging systems.

Under the TCPA, businesses are required to obtain prior consent from consumers before engaging in any telemarketing, automated messaging, text messaging or fax solicitations. The TCPA defines conditions for prior consent as:

  • A clear and unambiguous statement for consumers regarding future solicitation attempts;
  • Solicitations are not a condition of purchase;
  • Businesses must obtain and use a designated phone number as provided by the consumer.

Since the passing of the TCPA, the Federal Communications Commission has made it a point to enforce the law – and they’re not shy about handing down multi-million dollar judgments.

New TCPA Consent Requirements

The Federal Communications Commission amended the existing TCPA law to include additional requirements for businesses to follow. Starting on October 16, 2013, any business sending out solicitations must first obtain prior consent in writing from consumers before engaging in this type of marketing. This new mandate applies specifically for any text messages, auto-dialed messages and pre-recorded calls sent to cell phones and residential land lines.

Businesses can exercise their own discretion in terms of how they obtain written consent from consumers. This includes consent given through email, text messages, website forms and telephone key press in the form of digital or electronic signatures. The signature requirement ensures consumers have taken some type of deliberate action in their consent to receive marketing solicitations. These requirements match those laid out in the E-SIGN Act, which specifically addresses electronic and digital signature authorizations.

TCPA Penalties

The stiff penalties involved with violating the Telephone Consumer Protection Act are nothing to sneeze at. Businesses found to be in violation of the law stand to pay out anywhere from $500 to $1,500 for each unsolicited call and text message sent.

As it’s not unusual for business marketing campaigns to send out hundreds or even thousands of messages at a time, TCPA fines can quickly amount to hundreds of thousands of dollars in a matter of days. Businesses that persist in violating the law may also be subject to consumer class action litigation suits where penalty fines can easily reach multi-million dollar amounts.

Steps Businesses Can Take To Make Sure They’re In Compliance With The TCPA

With the start date for the newly amended TCPA law just around the corner, businesses would do well to start implementing the new requirements before revisions go into effect. In the event a consumer files a claim, the business has to prove it obtained written consent from the consumer. Businesses must also show they provided a clear and unambiguous disclosure message when consent was given. This is the strongest defense a business can present to protect itself from litigation

In the case of consent in the form of digital signatures, a business can use the following materials in their defense:

  • Web page printouts of consumer consent notifications;
  • Printouts of screenshots showing the consumer’s signature (e-signature) and phone number;
  • Consumer IP address records.

Since the federal statute of limitations on TCPA violations remains active for four years, businesses should make keep records of written consents received for a minimum of four years.

If you need a TCPA lawyer to review your material for compliance, contact Kelly Warner Law.

Google Antitrust On The Menu Again?

Google Logo to represent ongoing Google antitrust battle
Is the Google antitrust question on the FTC’s radar  again?

Just when Google thought their antitrust worries had washed away with a wave of other campaign-year  flotsam, the Federal Trade Commission has fired up the bat signal and are summoning the proverbial “A Team.” Their focus, once again, seems to be on the Khal of Search, Google.

A new marketing czar is now at the helm of the FTC. Moreover, judging from early reports, it seems the commission is focusing on the logistics of Google’s ad exchange program, instead of organic SERP results, like last time. Could these two variables result in a bad outcome for Google this go round?

The Google Antitrust Legal War

Google is no stranger to the antitrust litigation ring. The first unfair competition arrow was shot from the SS FTC in 2007. Back then, the commission concerned themselves with the tech company’s acquisition of a large online advertising firm, DoubleClick. Agents reviewed the structure and practices of each entity to determine if a marriage of the two companies would end up creating an unfair mega-corp. In the end, officials decided Google could buy DoubleClick because the purchase was “unlikely to substantially lessen competition.” At that point, the antitrust investigations were suspended.

Things were quiet for several years. Then in 2012, the FTC started breathing down Google’s back again. This time, the commission examined whether or not Google was unfairly promoting their holdings in search results. The case was closely watched, and in the end, a deal was reached. Google essentially walked away with a slap on the wrist; but public reaction to the 2012 Google antitrust decision was mixed.

A New Google Antitrust Investigation for 2013?

Just when Google and legal watchers thought the Google antitrust wars were over, word hit the wires that the nation’s consumer watchdog was sniffing around the search giant’s territory once again. According to reports, representatives from the FTC have supposedly been talking to online marketing industry people about Google’s advertising program. Specifically, parties questioned said they were asked about:

  1. How Google provided and served ads on their websites;
  2. Google’s advertising bidding process;
  3. Whether or not Google was offering below market prices to advertisers who agreed not to use any other online ad network.

The rumblings have begun, but at the time of this writing, the Federal Trade Commission has yet to file the appropriate paperwork to move forward with yet another Google antitrust investigation.

What do you think? Should Google be censured for antitrust activity? Or, did the tech company just do a really good job at building a stronger, faster business model? Let us know on Twitter.

Facebook Defamation Case Study: Kennel Lawsuit Defendants Get A New Case

kennel lawsuit was sparked by facebook defamation
A kennel lawsuit in Virginia, which involved Facebook defamation, was vacated due to jury misconduct.

A US district judge has ordered a new trial in a Virgina kennel lawsuit. Why the new suit? The kennel owner may have engaged in jury misconduct. The plaintiff in that trial, Russell Ebersole, won a $30,000 settlement against Bridget Kline-Perry, who accused him of animal abuse. Kline-Perry’s accusations were made in the form of Facebook comments, which led to the libel suit by Ebersole, who sought $1.35 million in damages. Ebersole denied the abuse and claimed Kline-Perry was trying humiliate and discredit him.

Judge Vacates Previous Facebook Defamation Kennel Lawsuit

Judge James C. Cacheris explained the vacated September 2012 jury decision by citing recently obtained, “highly negative” video evidence that prevented the defendant from properly making her case at trial. According to reports, the videos show Ebersole kicking a dog and yanking on its leash hard enough to cause it to cry in pain. He also allegedly used a leash to lift a puppy off its feet and violently shake and swing it. The taped incidents supposedly occurred at Aberdeen Acres Pet Care Center, located in the town of Stephenson. Ebersole owns the center.

The videos were obtained by Steven Bancroft, who is Kline-Perry’s defense attorney, after authorities in Frederick County charged Ebersole with 13 counts of cruelty to animals. Despite a subpoena, the videos were not made available to Kline-Perry at the time of the trial. Ebersole is the creator and owner of the videos, which had been seized by local officials. Judge Cacheris explained that since Ebersole failed to inform Kline-Perry or her attorney about the videos during the discovery phase, he was engaging in misconduct.

Plaintiffs in the Kennel Lawsuit Are Not Pleased With The Judge’s New Decision

Ebersole’s attorney, Andrew Bodoh, stated that he was displeased with the judge’s decision and will most likely file an appeal against a new trial in the kennel lawsuit case. Bancroft said that in his three decades of law practice, he had never seen a judge vacate a jury decision without a very good reason.

Judge Cacheris has encouraged Ebersole and Kline-Perry to attempt to reach a satisfactory settlement outside of court. If that does not take place, the new trial is scheduled begin on September 10, 2013.

Neither Ebersole nor his attorney could be reached for further comment.

Arizona Business Law: Serving Notice

Arizona Business Law Rulings
Arizona Business Law Rulings: In order to enforce judgment on an Arizona resident or business, all of the paperwork from the originating jurisdiction must be perfect.

A new Arizona business law judgment should be viewed as a significant new chapter in the annals of interstate litigation.

What is the new Arizona business law? If you live in another state and want to enforce a judgment on someone in Arizona, make sure every administrative “T” is crossed and “I” is dotted in your jurisdiction. Why? Because recently an Arizona appeals bench ruled that in order to impose a ruling on an individual or business in the Grand Canyon State, all procedures in the originating state must be followed exactly.

Texas Plaintiff Wants To Enforce Summary Judgment In Arizona

Earlier in the year, Hillcrest Bank – a Texas-based business – brought a claim against Mr. Richard J. Sodja of Phoenix, AZ. Presumably, the latter had engaged in business with the former. The case went down in Texas and Hillcrest won, but the defendant never showed.

When someone in Texas wants to sue an entity in another state, it must go through the Texas Secretary of State who forwards a petition and citation to the appropriate party. As such, Hillcrest took their case to the appropriate party in order to inform Sodja in Arizona.

How The Texas Bank Served Notice To The Arizona Plaintiff

In the case of Hillcrest v. Sodja, the Texas Secretary of State sent the service notice to an Arizona address listed on Hillcrest’s petition. It was the address of Sodja’s out-of-home office. After the prescribed amount of time passed, and the Texas party hadn’t received an acknowledgement or response from Sodja, a judge granted a summary default ruling in favor of the bank. In order to get their bucks, after receiving the favorable judgment, Hillcrest filed a notice with the Maricopa Superior Court to enforce the ruling. At that time, Sodja moved to void the judgment, but the trial judge sided with the bank. After that, Sodja appealed.

Arizona Appeals Court Says “Sorry, But The Paperwork Was Incorrect, So Jurisdiction Is In Question.”

Unlike the trial court, however, the Arizona appeals court agreed with the defendant. Judge Margaret Downie penned the court’s opinion. In her decision she acknowledged, “The Full Faith and Credit Clause of the United States Constitution requires Arizona Courts to respect and enforce judgments rendered in court of their sister states.” But not required to if there is a question of jurisdiction in the original case.

The question of jurisdiction was an important one in Sodja’s case.

According to Texas law, “a statement of the name and address of the non-resident’s home or home office” must be included in a proper service notice. The problem for Hillcrest Bank is that the petition addressed to Sodja had to be sent to his home or home-office in order to be valid.

It wasn’t. It was sent to his out-of-home office on Camelback Road. Due to the incorrect address, technically speaking, Texas failed to assert proper jurisdiction over Sodja by denying proper due process. As such, Downie and the court reasoned that the motion to enforce the judgment against Sodja was invalid.

Speak With An Arizona Business Lawyer Today

The law is just as technical as it is analytical. That is why it is important to have an experienced lawyer handle matters, as not doing so could cost you more in the long run. If you have a business law matter dealing with Arizona courts, and are in need of an Arizona attorney, contact Kelly Warner Law.