Facebook is turning to the courts to fight “clickjacking,” according to Mashable.  Clickjacking occurs when users are presented with some kind of enticing material, such as a too-good-to-be-true promotion. The clickjackers add code to these links that hide the “like” button in the link itself. Once a user clicks the clickjacking link, the material is instantly shared to the user’s entire social network.

Facebook and the Washington Attorney General filed separate lawsuits accusing Adscend Media of clickjacking. According to the Attorney General’s Complaint, Adscend Media operates an “affiliate advertising network that targets Facebook’s networking platform with deceptive unsolicited messages couched as messages from user’s friends.”  The general allegations of clickjacking are alleged as follows:

Defendant’s advertising scheme is designed to trick Facebook users into allowing spam to be sent to all of their Facebook friends.  While the subjects and contents of these messages vary from advertising campaign to campaign, all of them deceive Facebook users in two ways: (l) they do not identify the Defendants or their affiliates as the senders of the message, and (2) they do not disclose that the messages are advertisements, despite the fact that the messages’ sole purpose is to lure users to participate in deceptive advertising scams if they click on the links presented in the posts. Given Facebook’s social environment; users unwittingly click on the links is because they believe the links were sent by their own Facebook friends.

The Washington Attorney General’s Consumer High-Tech Protection unit alleged that Adscend’s clickjacking practices netted the company up to $1.2 millon each month.  Adscend Media denies the claims. A copy of the Attorney General’s Complaint can be found here.

Real Property and Business Litigation Report

Volume V, Issue 4

January 28, 2012

Manuel Farach

Feltus v. U.S. Bank Nat. Ass’n, — So.3d —-, 2012 WL 246464 (Fla. 2d DCA 2012).

Pleadings that are in conflict with a motion for summary judgment create an issue of material fact that defeats summary judgment.

McDonald v. Johnson, — So.3d —-, 2012 WL 246468 (Fla. 2d DCA 2012).

The value of stock in a decedent’s revocable trust is to be considered when determining a spouse’s elective share. Accordingly, a surviving spouse is entitled to discovery to determine the value of the revocable trust.

Lespisto v. Senior Lifestyle Newport Limited Partnership, — So.3d —-, 2012 WL 204264 (Fla. 4^th DCA 2012).

A party signing a contract as a “financially responsible party” and not as a “resident’s representative” is not bound to arbitrate if the contract only states party representatives are compelled to arbitrate disputes.

Baleanu v. Sandelescu, — So.3d —-, 2012 WL 204287 (Fla. 4^th DCA 2012).

A corporate party that appears for trial without counsel may not be defaulted unless prior notice is given that failure to obtain counsel will result in a default.

Brander v. Stoddard, — So.3d —-, 2012 WL 204299 (Fla. 4^th DCA 2012).

If service may be invalid, a court should suspend jurisdiction and grant leave to permit submission of evidence of jurisdiction.

Lake Charleston Homeowners Association, Inc. v. Haswell, — So.3d —-, 2012 WL 204469 (Fla. 4^th DCA 2012).

A misnomer in a case style or judgment, i.e., a clerical mistake, may be corrected under Florida Rule of Civil Procedure 1.540.

Arsali v. Chase Home Finance, LLC, — So.3d —-, 2012 WL 204480 (Fla. 4^th DCA 2012) (en banc).

The Fourth District recedes from its prior precedent and holds that inadequacy of sale price does not always need to be proven in order to vacate a foreclosure sale. The Fourth District further certified the question to the Florida Supreme Court for determination.

Gemini Investors III, L.P. v Nunez, — So.3d —-, 2012 WL 204722 (Fla. 3d DCA 2012).

The court grants rehearing and issues a new opinion which states the general and not the specific factual misrepresentation. The court’s prior holding that failing to inform a purchaser of shares in a company that the company is at risk of losing 50% of its revenues is both a fraudulent inducement into a contract and securities violation under Florida Statute § 517.301 (1) (a) remains unchanged.

Blue v. Covington County Bank, — So.3d —-, 2012 WL 178377 (Fla. 1^st DCA 2012).

Reservation of jurisdiction in a final judgment to determine a setoff on a foreclosure sale indicates that judicial labor is not at an end and appellate review is therefore premature. Additionally, a mortgagee should not be entitled to execute on a promissory note following foreclosure sale and before entry of a deficiency judgment.

Real Property and Business Litigation Report

Volume V, Issue 3

January 21, 2012

Manuel Farach

Deutsche Bank Nat. Trust Co. v. Lippi, — So.3d —-, 2012 WL 162023 (Fla. 5^th DCA 2012).

Dismissal of mortgage foreclosure complaint for lack of standing is too severe a sanction unless the Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), factors are met.

Barreau v. Peachtree Cas. Ins. Co., — So.3d —-, 2012 WL 162035 (Fla. 5^th DCA 2012).

An insurance company’s “intuition” that a claim is fraudulent is insufficient to delay or deny a claim, and failure to promptly pay claim solely on this basis will result in award of fees to insured.

Carolina Consulting Corp. v. Ajax Paving Industries, Inc. of Florida, — So.3d —-, 2012 WL 163927 (Fla. 2d DCA 2012).

A contractor in a bonded construction project cannot refuse to perform based on failure to be given adequate assurance of payment.

Block and Stephens, Trustees v. Tosun, — So.3d —-, 2012 WL 126656 (Fla. 4^th DCA 2012).

Trial court may not vacate existing judgment for lack of service without an evidentiary hearing to determine whether there was good service. A return of service is not the only way to prove effective service.

Kimmick v. U.S. Bank, N.A., — So.3d —-, 2012 WL 126774 (Fla. 4^th DCA 2012).

A party may raise waiver as an affirmative defense to a mortgage foreclosure notwithstanding the existence of a “no waiver” clause in the mortgage.

Sunbeam Television Corporation v. Mitzel, — So.3d —-, 2012 WL 126784 (Fla. 3d DCA 2012).

A party may not proceed to trial on a claim not plead in her complaint when objection has been timely made to the new claim.

City of Key West v. Florida Keys Community College, — So.3d —-, 2012 WL 126858 (Fla. 3d DCA 2012).

The State of Florida has not waived sovereign immunity with respect to stormwater utility fees imposed by municipalities, and the state may not be sued for same.

DRD Marine Corporation v. Byrd Technologies, Inc., — So.3d —-, 2012 WL 127085 (Fla. 4^th DCA 2012).

A trial court may not dismiss for failure to prosecute under Florida Rule of Civil Procedure 1.420 (e) if the notice under the rule has not been served first. Likewise, a court cannot order that a file be “closed” without first complying with Rule 1.420 (e).

LPI/Key West Associates, Ltd. v.  Beachcomber Jewelers, Inc., — So.3d —-, 2012 WL 127318 (Fla. 3d DCA 2012).

A party may withdraw a pretrial stipulation upon motion that demonstrates good cause (such as fraud, misrepresentation or mistake of fact) why the stipulation should be withdrawn.

Mims v. Arrow Financial Services, LLC, — S.Ct. —-, 2012 WL 125429 (2012).

Federal and state courts have concurrent jurisdiction over alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227.

Golan v. Holder, — S.Ct. —-, 2012 WL 125436 (2012).

So long as the works were protected in their country of origin, works previously in the copyright “public domain” may become protected works under United States law pursuant to the Uruguay Round Agreements Act.

Feldkamp v. Long Bay Partners, LLC, Slip Copy, 2012 WL 163875 (11^th Cir. 2012).

The relationship between a private club and its members is governed by contract, and a member who meets the requirements is entitled to a full refund of their membership deposit notwithstanding some of the deposit was paid by a third party.

Social media plays an important role in marketing for attorneys. Social networks such as Facebook, professional networks such as LinkedIn, and blogging sites such as Twitter provide attorneys with easily accessible avenues to publish, share, and comment on the law, politics, and everyday life. As more attorneys turn to social media for their personal and professional use, law firm social media policies are becoming essential.

In the most recent addition of Law Practice Magazine, the American Bar Association (“ABA”) recognizes that many law firms struggle with creating policy for the use of social media. The ABA suggests the following guidelines to consider when preparing a policy appropriate for your firm:

• All firms should develop a social media policy that encourages the use of these new and emerging tools in innovative ways. Get input from all stakeholders and participants by establishing a committee of your rainmaking lawyers, senior managers, IT experts, marketers, and members of Gen Y to devise your specific firm strategy.
• For each new technology, draft general guidelines on what information lawyers may share online, including considerations on how the communication reflects upon you and your colleagues, how faithfully it represents your clients’ interests, and the implications of making this information public.
• Your law firm brand is important. So involve your marketing staff throughout the process, because it is its responsibility to promote, protect and enhance the integrity of your brand.
• Seasoned bloggers should be trusted to click and submit. Junior contributors should have their work read by one other editor before it goes live. Any more filters than that and your firm’s communications may lag.

On Tuesday, I summarized The Social Media Guide for Lawyers on this blog. The ABA Law Practice Magazine featured the Guide as a useful social media resource.  I co-authored the Guide with members of the 2010-11 Meritas Leadership Institute Class.  The Guide addresses significant challenges with social media, including ethical issues, time management/productivity, and provides sample firm social media policies that are in-line with nearly all of the ABA’s suggested guidelines discussed in the article linked above.

As a member of the 2010-11 Meritas Leadership Institute class, I had the pleasure of working with a select group of talented attorneys from across the world to investigate and analyze the role of social media in the practice of law. As part of our year long investigation, we prepared The Social Media Guide for Lawyers.  The Guide addresses significant challenges with social media, including ethical issues, time management/productivity, and offers sample firm social media policies that address the following subjects:

Real Property and Business Litigation Report

Volume V, Issue 2

January 14, 2012

Manuel Farach

Perdido Key Island Resort Development, L.L.P. v. Regions Bank, — So.3d —-, 2012 WL 104464 (Fla. 1^st DCA 2012).

Arbitration of personal guarantees not required when arbitration provision of note is narrowly drawn and does not require arbitration of disputes beyond promissory note. However, a mortgage which incorporates note with an arbitration provision must be arbitrated. Arbitration is compelled of some, but not all, claims even though possibility exists of inconsistent awards between arbitration and litigation.

Jones v. Portofino Tower One Homeowners Ass’n, — So.3d —-, 2012 WL 104466 (Fla. 1^st DCA 2012).

Notwithstanding the issue whether owners of improvements on leased land are deemed to be owners of underlying fee under the doctrine of equitable ownership, property appraiser and tax collector may not seek to tax at trial that property they originally valued as exempt from taxation.

O’Connor v. Zane, — So.3d —-, 2012 WL 104505 (Fla. 1^st DCA 2012).

A judgment creditor has standing to assert a claim under Fla. Stat. §717.124 against unclaimed property in the possession of the Department of Financial Services.

Krock v. Rozinsky, — So.3d —-, 2012 WL 75145 (Fla. 4^th DCA 2012).

A court should consider several factors in determining whether a continuance is mandated (e.g., whether the denial of the continuance creates an injustice for the movant; whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance), but a court does not abuse its discretion in denying a continuance when there has been a history of last minute continuance requests.

Rodgers v. After School Programs, Inc., — So.3d —-, 2012 WL 75184 (Fla. 4^th DCA 2012).

A motion for post-trial interview of jurors should be granted only if the motion is sworn and also makes allegations that would require a new trial if true. Nonetheless, interview of jurors is not required if the information not disclosed during voir dire was the result of lack of diligence of the trial attorney.

Keybank Nat. Ass’n, Inc. v. Passport Marine, Inc., — So.3d —-, 2012 WL 75248 (Fla. 4^th DCA 2012).

A trial court is not permitted to enter a final judgment upon on a preliminary hearing in a replevin action; the preliminary hearing only establishes whether plaintiff has proven the “probably validity” of its claim.

CompuCredit Corp. v. Greenwood, — S.Ct. —-, 2012 WL 43514 (2012).

A party seeking redress under the Credit Repair Organization Act, 9 U.S.C.A. § 2, is required to arbitrate disputes in accordance with the contract between the parties even though the Act gives a party the right to “sue.”

Lawrence v. Bank of America, N.A., Slip Copy, 2012 WL 89904 (11^th Cir. 2012).

Florida law does not require banking institutions to investigate transactions, and thus, there is no requirement on bank to investigate whether an account holder is perpetrating a Ponzi scheme.

Twitter has to provide the U.S. Department of Justice with all account information for three users who allegedly support WikiLeaks, a federal judge ordered last Wednesday according to Mashable.

U.S. District Judge Liam O’Grady denied a motion to suspend previous orders that would allow the DOJ access to the Twitter account information of three people who are suspected of having ties to WikiLeaks.

The account information for Jacob Appelbaum, a computer security researcher, Birgitta Jonsdottir, a member of Iceland’s Parliament and Dutch activist Rop Gonggrijp will be used in the investigation into WikiLeaks and its leader, Julian Assange.

The information the Department of Justice requested is extensive, reportedly including all mailing addresses and billing information known for the user, all connection records and session times, all IP addresses used to access Twitter, all known email accounts, as well as the ‘means and source of payment,’ including banking records and credit cards.” The DOJ wants all the above information beginning with Nov. 1, 2009 to the present date, according to the report.

In December 2010, a magistrate judge granted the Department of Justice permission to seek the three account holders’ Twitter information under a secret order. Twitter’s “Guidelines for Law Enforcement” says it will notify users of subpoenas for information if law enforcement does not submit a statute or court order to keep the information request secret. The request for Twitter account information was kept secret until early 2011, when the Department of Justice allowed its request to go public.

This is the second recent decision enforcing a subpoena seeking to access Twitter account holder information. In early January, a Suffolk County court overruled objections to a Massachusetts prosecutor’s subpoena directed at the Twitter records of an Occupy Boston activist, as well as records linked to two Twitter hashtags.  While certain activits believe these subpoenas violate internet users privacy rights and freedom of speech, it is becoming apparent that more courts are allowing access to personal information collected by Twitter.

Real Property and Business Litigation Report

Volume V, Issue 1

January 7, 2012

Manuel Farach

Carden & Associates, Inc. v. C.O.D. Trees Partnership, — So.3d —-, 2012 WL 28279 (Fla. 5^th DCA 2012).

An appellate court may issues sanctions for a party’s failure to attend appellate mediation under Florida Rule of Appellate Procedure 9.720 (b).

Alorda’ v. Sutton Place Homeowners Ass’n, Inc., — So.3d —-, 2012 WL 28710 (Fla. 2d DCA 2012).

If the covenants of a community association provide a legal remedy for a violation, then the association may not seek injunctive relief for the violation. Accordingly, an association which prevails on equitable relief to correct a violation when a legal remedy exists is not a prevailing party, and is not entitled to prevailing party attorneys’ fees and costs.

Breazeale v. GDC View, LLC, — So.3d —-, 2012 WL 28801 (Fla. 1^st DCA 2012).

A condominium unit may not be conveyed until it is “substantially completed,” and a unit is not “substantially completed” under Fla. Stat. § 718.104 (4) (e) until all common elements serving the unit are completed, and a surveyor and mapper files an affidavit attesting to this fact.

Cox Enterprises, Inc. v. Pension Ben. Guar. Corp., — F.3d —-, 2012 WL 11015 (11^th Cir. 2012).

A court directing distributions of corporate assets to shareholders must make a determination that the distribution will not make the corporation insolvent in violation of Fla. Stat. § 607.1436 (8). Determination of insolvency is made on date of distribution.

PNC Bank, Nat. Ass’n v. Colonial Bank, N.A., Slip Copy, 2012 WL 10877 (11^th Cir. 2012).

A party may recover attorneys’ fees for “no damages,” waiver, and Economic Loss Doctrine defenses. Additionally, a party may recover attorneys’ fees for losing arguments, so long as it ultimately prevails.

A decision by Massachusetts prosecutors to subpoena the Twitter records of an Occupy Boston activist, as well as records linked to two Twitter hashtags, has free speech advocates up in arms, calling the move a violation of the First Amendment CNN reports.

Suffolk County prosecutors demanded that Twitter hand over information posted on the social media website by user “Guido Fawkes,” whose Twitter handle is @p0isAn0N, as well as information from the user behind @OccupyBoston and those who Tweeted #BostonPD or #d0xcak3, according to the document.

In the subpoena, which was issued on Dec. 14, prosecutors requested that Twitter release to them “all available subscriber information,” including IP address logs for the time period between Dec. 8 and Dec. 13 as part of an “official criminal investigation.”

Those dates coincide with clashes between protesters and police in Boston’s Dewey Square. Dozens of protesters were arrested after refusing to leave the public space after being ordered to do so by Boston’s mayor, Thomas Menino.

Subpoenaing Twitter records is becoming more common, according to lawyer Ethan Wall, of the Richman Greer law firm in Miami. Wall, who specializes in intellectual property litigation, said the practice could have “a chilling effect on free speech.”

“We are in this information-accessible age where we can post anything and everything from anywhere on any device,” Wall said. “Because it’s so easy I don’t think that people put the thought into how this might affect them personally, professionally or legally.”

A Suffolk County Superior judge held a private hearing Thursday and impounded all documents pertaining to the case. Following a sidebar with counsel, the judge overruled the objections to the subpoena.

A CNN correspondent contacted me over the holidays to comment on the subpoena prior to the court issuing its ruling.  This is not the first time Twitter records have been subpoenaed in high profile cases. In March 2011, the U.S. Department of Justice served a subpoena seeking the identity of the founders and supports of WikiLeaks.  As more people flock to Twitter to comment on their personal, professional, and political lives – I foresee more subpoenas directed at this type of information in the future.

Real Property and Business Litigation Report

Volume IV, Issue 53

December 31, 2011

Manuel Farach

Kissimmee Health Care Associates v. Garcia, — So.3d —-, 2011 WL 6843009 (Fla. 5^th DCA 2011).

Pre-suit mediation is not a condition precedent to filing suit under Fla. Stat. § 400.0233 (1) (nursing home negligence statute).

Tranquil Harbour Development, LLC v. BBT, LLC, — So.3d —-, 2011 WL 6851194 (Fla. 1^st DCA 2011).

Pursuant to Fla. Stat. § 718.104 (4)(e), a surveyor’s certificate of substantial completion is necessary before units can be conveyed to purchasers so recording the certificate (and not issuance of certificate of occupancy) determines whether units are “substantially completed” for contract and legal purposes.

Department of Revenue v. Ruehl No. 925, LLC, — So.3d —-, 2011 WL 6851275 (Fla. 1^st DCA 2011).

Parties can provide in a lease that the “total rent” to be charged does not include the cost of leasehold improvements, and thus, no tax need be paid on the leasehold improvements.

Giordano v. Romeo, — So.3d —-, 2011 WL 6782933 (Fla. 3d DCA 2011).

Under the Communications Decency Act and Florida Supreme Court precedent, a website enjoys complete immunity for the defamatory postings of third parties on its website.

Globetec Const., LLC v. Custom Screening & Crushing, Inc., — So.3d —-, 2011 WL 6783057 (Fla. 3d DCA 2011).

Non-signatories to contracts cannot neither compel arbitration under the contract’s arbitration provisions nor bring an action for fraudulent inducement into a contract.

Goldblatt v. C.P. Motion, Inc., — So.3d —-, 2011 WL 6783565 (Fla. 3d DCA 2011).

Liquidated damages clause in the non-compete provisions of a settlement agreement constitutes a penalty and is unenforceable when damages are ascertainable.

American Safety Cas. Ins. Co. v. Mijares Holding Co., LLC, — So.3d —-, 2011 WL 6783659 (Fla. 3d DCA 2011).

Neither the risk of inconsistent verdicts in two jurisdictions nor the splitting of causes of action are sufficient reasons to not enforce a valid forum selection clause.

In re United Tile & Stone, Inc., Slip Copy, 2011 WL 6846216 (11^th Cir. 2011).

Mutual mistakes cancel contracts against all except third party bona fide purchasers without notice of the mistake.