The micro-blogging service filed court papers Monday asking a judge to quash a subpoena in which the Manhattan district attorney had ordered it to produce months-worth of old tweets, now deleted, that had been posted by Malcolm Harris, who was among 700 people arrested on the Brooklyn Bridge during a march on Oct. 1.

Prosecutors argued that these tweets might show whether Harris was aware that police had ordered demonstrators not to march across the bridge.  Harris unsuccessfully tried to fight the subpoena on his own. A New York judge ruled that Harris lacked standing to fight the subpoena because he did own the tweets, Twitter did.

Judge Matthew Sciarrino wrote in his April decision that once Harris posted his messages they became the property of Twitter and that any constitutional protection he had over their disclosure disappeared:

“While the Fourth Amendment provides protection for our physical homes, we do not have a physical ‘home’ on the Internet,” Sciarrino wrote. He also reasoned that Twitter was free to redistribute its customers’ tweets “to anyone, any way and for any reason it chooses.”

Twitter contends the judge misunderstood how its service works, claiming that Twitter users do not relinquish ownership of their messages or photos by posting them on the service. Twitter also argued that the federal Stored Communications Act provides Twitter users with standing to challenge demands for their account records. A decision will be forthcoming.

This is not the first time prosecutors have sought Twitter account information from “occupy” activities.  In January, a Massachusetts prosecutor subpoenaed the Twitter records of an Occupy Boston activist, as well as records linked to two certain “hashtags” (#BostonPD).  A CNN correspondent interviewed me to comment on the subpoena – and published the following:

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.”

This is just one example of how the line between privacy and accessibility is blurring in the age of Internet communication. Stay tuned, as I will survey this issue on the blog over the coming weeks. 

U.S. District Court Judge Richard Seeborg rejected Facebook’s attempt to recoup $700,000 in attorneys’ fees following its successful dismissal of a lawsuit about whether its Friend Finder featured violated California’s publicity law. That law says that people have the right to control the commercial use of their names and images and provides for damages of $750 per violation. The lawsuit alleged that Facebook’s Friend Finder tool unlawfully used their names and photos in ads without their consent.

Seeborg wrote that even though he dismissed the potential class-action lawsuit, he had not decided whether Facebook violated the California law. Instead, he tossed the case because the consumers could not show that they had the right to bring a case in federal court. Therefore, he said, Facebook did not prevail in a way that would entitle it to recover its legal bills.

A more detailed analysis of the Court decision to dismiss the Friend Finder lawsuit is detailed in my August 2011 post which can be found here.  While Facebook was unsuccessful in recouping their attorneys fees following dismissal of this suit, the overall resolution of this lawsuit is a “victory” for the social media site in the sense that it may deter future lawsuits over its Friend Finder feature under California’s publicity law (and possibly similar laws in other states). 

Earlier this week, I summarized recent federal district court decisions addressing whether social media accounts can be considered protectable trade secrets.  In each of these cases, a former employees retained the login credentials for their employers’ business social media accounts, refused to turn over the credentials, and used the information and friends list in connection with their new employment and to the detriment of their former employer.  Each court determined that the plaintiffs alleged sufficient facts to state a claim that their social media accounts were trade secrets.

While these decisions illustrate a potential remedy for the theft of social media information, prevention is much more efficient (and less costly) method of protecting social media information. Careful planning to protect a company’s social media presence and its business connections can save time and money in litigating against a former employee’s theft of social media information and credentials. In the article Are employer social networking accounts protectable trade secrets?, Kara Maciel and Matthew Sorensen provide the following suggestions for protecting this valuable information:

• Employers should ensure that they maintain a log of their social media account login credentials and that the log is appropriately updated.

• Require employees who establish and maintain such accounts on behalf of the company to enter agreements that provide that the accounts and their login credentials are the sole property of the company.

• Departing employees should be interviewed in connection with their exit to ensure that all company social media login credentials to which they had access have been returned.

Maciel and Sorensen also explain that in the event that an employee takes the login credentials for the employer’s social media accounts when he or she leaves the company, it is essential for the employer to take prompt action to recover the information as delay can result in the loss of legal protections for the accounts and any connections that they hold.

An ounce of prevention is truly worth the effort and expense of a litigation cure. Employers should consider including a provision within their existing social media policies or employment documents to prevent the unlawful use of their social media information from their current and former employees. 

Social media has become an increasingly important tool for businesses to market their products and services. As the use of social media in business continues to grow, companies will face new challenges with respect to the protection of their confidential information and business goodwill. One of those potential challenges is protecting valuable social media information as trade secrets.

Consider this scenario: An employee creates or manages a social media sites for their employer. The employee is privy to the user name and password credentials in order to access and operates the site on behalf of the employer to share information, interact with users, and obtain new “friends” for the company. The employer and employee gain valuable competitive information through the site’s unique list of friends, along with their personal information and their preferences.  Following a resignation or termination, the former employee retains the login credentials for their employers’ business social media accounts, refuses to turn over the credentials, and uses the information and friends list in connection with their new employment.  Would the employer have the ability to protect their social media information as a trade secret?

In the article Are employer social networking accounts protectable trade secrets?, Kara Maciel and Matthew Sorensen analyze several recent federal district court decisions addressing whether social media accounts can be considered protectable trade secrets. In each of the reported decisions, the court determined that the plaintiffs alleged sufficient facts to state a claim that their social media accounts were trade secrets. Factors the courts considered in reaching these decisions included:

• The significant negative consequences on the employer’s ability to effectively compete and market their products and services.

• The list of “friends” and other information could only be access through password protection.

• The “friend” connections for social media pages were more than just lists of potential customers, they also provided personal information about the “friends” and their preferences.

• The lists of “friends” could not be duplicated without a substantial amount of effort and expense.

• In one instance, the former employee had entered an agreement in which she had agreed that any work she created or developed during her employment would be the property of the company.

Maciel and Sorensen note that the courts did not find that the plaintiffs had established that their social media accounts were trade secrets, but rather held that they had alleged sufficient facts to state a claim that those accounts were trade secrets. The question of whether the employers will be able to prove the facts necessary to prevail on their claims was left open for determination at an evidentiary hearing or trial.

Trade secrets are one of many emerging areas where social media is affecting the law in unique ways. Unlike traditional websites, a social media site’s list of “friends,” followers, or connections and their corresponding personal information arms employers, companies, and social media users with unique access to valuable customer information.  On Thursday, I will share the authors’ advice on how employers and other social media users can protect their social media information and hopefully avoid the situation described above in the future. 

Volume V, Issue 18

May 5, 2012

Manuel Farach

Rhodes v. Newport Building and Const., Inc., — So.3d —-, 2012 WL 1557323 (Fla. 2d DCA 2012).

There are no further litigation proceedings once an arbitration award is paid in full. Accordingly, foreclosure of construction lien not permitted once arbitration award paid.

Feldman v. Villa Regina Ass’n, Inc., — So.3d —-, 2012 WL 1520852 (Fla. 3d DCA 2012).

Damages for temporary injury to real property consists of cost of restoring the property to its original condition. When cost of repair exceeds the value of the property in its original condition or when the injury is permanent, the measure of damages is the diminution in value of the real property. Moreover, a party cannot claim permanent damages throughout trial and then seek temporary damages when only temporary damages are awarded on the verdict form.

KPMG LLP v. Cocchi, — So.3d —-, 2012 WL 1520853 (Fla. 4th DCA 2012).

Under Delaware law, derivative claims against auditors are subject to arbitration.

Kondler v. Bottner, — So.3d —-, 2012 WL 1520857 (Fla. 4th DCA 2012).

An order directing a trustee to pay attorneys’ fees out of a specific trust is a non-final, non-appealable order.

U.S. Bank Nat. Ass’n v. Cowell, — So.3d —-, 2012 WL 1520858 (Fla. 3d DCA 2012).

Dismissal without leave to amend for failure to follow administrative procedures regarding packaging of motions for summary judgment is too severe a sanction, especially since the running of the statute of limitations converts the dismissal into a dismissal with prejudice.

Philips Lake Worth, L.P. v. BankAtlantic, — So.3d —-, 2012 WL 1520877 (Fla. 4th DCA 2012).

When the reading of two contractual provisions creates an ambiguity, parol evidence is permitted to explain the inconsistency. Accordingly, parol evidence is proper when a lease termination provision and new lease are in conflict with regard to right of new tenant to terminate a lease.

CitiMortgage, Inc. v. Synuria, — So.3d —-, 2012 WL 1520883 (Fla. 4th DCA 2012).

Gross inadequacy of foreclosure sale price, even if lender caused the foreclosure sale problem, constitutes basis for vacating foreclosure sale.

S.E.C. v. Morgan Keegan & Co., Inc., — F.3d —-, 2012 WL 1520895 (11^th Cir. 2012).

The “hypothetical reasonable investor” analysis conducted for purposes of S.E.C. Rule 10(b) – 5 includes statements made by an individual broker to an individual investor, not just statements made to the public as a whole.

Reese v. Ellis, Painter, Ratterree & Adams, LLP, — F.3d —-, 2012 WL 1500108 (11^th Cir. 2012).

Dunning letter and other documents sent to consumers relate to the enforcement of a security interest may have a dual purpose and also relate to collection of a debt and thus subject to the Fair Debt Collection Practices Act.

Volume V, Issue 17

April 28, 2012

Manuel Farach

Duplantis v. Brock Specialty Services, Ltd., — So.3d —-, 2012 WL 1440438 (Fla. 5th DCA 2012).

An undifferentiated offer of judgment based upon disputed vicarious liability is not enforceable.

Perrine v. Henderson, — So.3d —-, 2012 WL 1440455 (Fla. 5th DCA 2012).

Fraud on the court requires a clear evidence of plan to evade or stymie the court; a party’s misconduct consisting of inconsistency, nondisclosure, poor recollection, dissemblance, and even lying is insufficient to support a dismissal for fraud.

Weston Orlando Park, Inc. v. Fairwinds Credit Union, — So.3d —-, 2012 WL 1440592 (Fla. 5^th DCA 2012).

Court cannot reserve on a claim for breach of promissory note when it has granted foreclosure as the debt, i.e., the promissory note, merges into the foreclosure judgment.

Grapski v. City of Alachua, — So.3d —-, 2012 WL 1448503 (Fla. 1st DCA 2012).

The appellate standard of review for attorney fee awards is abuse of discretion.

JP Morgan Chase Bank v. Jurney, — So.3d —-, 2012 WL 1448655 (Fla. 2d DCA 2012).

An appellate opinion which “is effective upon release” but permits rehearing is effective upon release, and remains in effect while rehearing motions are disposed by court.

Roach v. Totalbank, — So.3d —-, 2012 WL 1414275 (Fla. 4th DCA 2012).

The defense of Statute of Frauds to a purported oral agreement to extend a loan may be barred by acts of estoppel occurring after written contracts are executed.

Continental Florida Materials v. Kusherman, — So.3d —-, 2012 WL 1414280 (Fla. 4th DCA 2012).

While clauses indemnifying parties for their own negligence are disfavored, a subcontractor may indemnify a general contractor for the subcontractor’s negligence.

West Const., Inc. v. Florida Blacktop, Inc., — So.3d —-, 2012 WL 1414304 (Fla. 4th DCA 2012).

Unless an offeree agrees in advance, an offer cannot define the manner of acceptance of the offer. Accordingly, a contractor’s use of subcontractor’s estimate in formulating its bid to the owner does not accept the subcontractor’s estimate either by contract language to that effect or by action.

Daniels v. JP Morgan Chase Bank, — So.3d —-, 2012 WL 1414305 (Fla. 3d DCA 2012).

A party cannot seek to avoid a trial court contempt order by bad faith appeal; an appellate court may dismiss the appeal under this circumstance.

Dougherty v. City of Miami, — So.3d —-, 2012 WL 1414322 (Fla. 3d DCA 2012).

Upon remand from second-tier certiorari review and based on the Law of the Case Doctrine, a tribunal may conduct only limited review to fulfill appellate mandate.

Dickson v. Heaton, — So.3d —-, 2012 WL 1414326 (Fla. 4th DCA 2012).

The contractual basis for attorneys’ fees does not need to be specifically pled. Furthermore, a party may waive the Stockman v. Downs requirement to plead a claim for fees if all parties are aware of the existence of an attorneys’ fees provision.

Solis v. Lacayo, — So.3d —-, 2012 WL 1414368 (Fla. 3d DCA 2012).

Under Fla. Stat. § 201.08 (1) (a), a trial court may not enter judgment on promissory notes secured by real estate while documentary stamps on notes remain unpaid.

South Florida Coastal Elec. v. Treasures on Bay II Condo Ass’n, — So.3d —-, 2012 WL 1414576 (Fla. 3d DCA 2012).

Whether an agency relationship exists is an issue of fact that cannot be determined on summary judgment if there are conflicting factual positions. Judicial estoppel applies only when a party successfully takes inherently conflicting positions in separate lawsuits.

MV Insurance Consultants v. NAFH Nat. Bank, — So.3d —-, 2012 WL 1414838 (Fla. 3d DCA 2012).

Arbitration may be compelled on obligations contained in one instrument but not all if the instruments are executed contemporaneously and intended as part of same transaction.

Dish Network Service L.L.C. v. Myers,— So.3d —-, 2012 WL 1414936 (Fla. 2d DCA 2012).

An attorneys’ fees multiplier is not available under the Fair Debt Collection Practices Act.

U.S. v. Home Concrete & Supply, LLC, — S.Ct. —-, 2012 WL 1413964 (2012).

A taxpayer’s overstating basis in real property it sold by over twenty-five percent (25%) is not an “omission” permitting the Internal Revenue Service to extend to six years the time within which it can assess the taxpayer.

Akanthos Capital Management, LLC v. CompuCredit Holdings Corp., — F.3d —-, 2012 WL 1414247 (11^th Cir. 2012).

Certain persons who are not parties to “no action clauses” in indenture agreements may still enforce the clauses and receive its protection.

F.T.C. v. Watson Pharmaceuticals, Inc., — F.3d —-, 2012 WL 1427789 (11^th Cir. 2012).

Absent sham litigation or fraud, reverse payment settlement is not violate of antitrust laws so long as anticompetitive effects fall within exclusionary potential of patent.

Anago Franchising, Inc. v. Shaz, LLC, — F.3d —-, 2012 WL 1380417 (11^th Cir. 2012).

A stipulation for dismissal is self-executing and dismisses case upon filing despite trial court post-dismissal order seeking to retain jurisdiction.

The Reporters Committee for Freedom of the Press reported last year that that there are “no set standard regarding tweeting from courtrooms and the rules tend to vary from state to state, and at times from trial to trial.” In the trial of Dr. Conrad Murray concerning the death of Michael Jackson, for example, tweeting was permitted and one local news station sent out nearly 1,900 tweets to about 3,000 followers. The report notes that in a tax fraud trial in the courtroom of U.S. District Court Judge Mark Bennett of Iowa, Bennett allowed a reporter to tweet about the proceedings but asked the reporter to sit in the back of the courtroom so that her typing would not be distracting.

Lawyers for broker TFS Derivatives may use the social networking site to track down its former employee Fabio de Biase as part of a suit brought against the company by investment manager AKO Capital. Attempts to serve the claim on De Biase at his last known address have so far been unsuccessful, prompting TFS to appeal during pretrial discussions for permission to contact the disgraced broker via Facebook

This is not the first time social media has been used to serve pleadings in smaller matters within the U.K. Last May, a U.K. lawyer successfully used Facebook to serve a hard-to-find debtor in a County Court trial. The high court previously allowed an injunction to be served via Twitter. The TFS/AKO case, however, appears to be the first in which Facebook has been used to serve a high court claim.

De Biase has been granted 14 days to respond to the claim, a significant extension from the two-day deadline that is typical in commercial cases, to allow time to check his Facebook account.

Serving pleadings via social media sites is increasingly common in Australia and New Zealand. I have presented on cases from Australian courts that both permit and disallow service through social media sites.  As serving pleadings through social media becomes more common abroad, I would not be surprised to see more litigants attempting to serve pleadings through these sites in the United States.

Volume V, Issue 16

April 21, 2012

Manuel Farach

Orange County Property Appraiser v. Sommers, — So.3d —-, 2012 WL 1365061 (Fla. 5th DCA 2012).

A landowner is not entitled to a simultaneous homestead exemption/tax cap and non-homestead tax cap for the same piece of real property.

Gonzalez v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 1366727 (Fla. 2d DCA 2012).

Whether plaintiff owns and holds the note on suite date, not the date of an assignment of mortgage, is the relevant inquiry for determining standing for foreclosure suit. If, however, the issue of standing has been placed at issue, the lender must establish through evidence it had standing on suit date.

Pena v. Citizens Property Ins. Co., — So.3d —-, 2012 WL 1366730 (Fla. 2d DCA 2012).

Even though fraud on the court is proven, dismissal with prejudice is too severe a sanction when the fraud relates to a procedural issue.

Deutsche Bank Nat. Trust Co. v. Clarke, — So.3d —-, 2012 WL 1314190 (Fla. 4th DCA 2012).

It is sufficient to introduce a copy of a promissory note if the original note has already been surrendered to the court and placed in the court file. It is not necessary to introduce the original mortgage into evidence as it is not a document contemplated by the Best Evidence Rule, Fla. Stat. § 90.953.

Flagstar Bank, F.S.B. v. Cleveland, — So.3d —-, 2012 WL 1314237 (Fla. 4th DCA 2012).

A party may not obtain relief from judgment by re-filing with a successor judge a previously denied motion for relief from judgment.

Khodam v. Escondido Homeowner’s Ass’n, Inc., — So.3d —-, 2012 WL 1315327 (Fla. 4th DCA 2012).

Even though a jury awards no damages for the breach, a party that proves the other party breached a contract is the “prevailing party” for purposes of attorneys’ fee awards.

Mullne v. Sea-Tech Const. Inc., — So.3d —-, 2012 WL 1315864 (Fla. 4th DCA 2012).

Fla. Stat. § 713.12 (joint interests of spouses in property can be liened and foreclosed as long as one spouse signs contract) does not permit an in personam judgment against the non-signing spouse. Moreover, a trial court is without jurisdiction to award unpled damages notwithstanding a default has been entered.

Burtoff v. Tauber, — So.3d —-, 2012 WL 1316848 (Fla. 4th DCA 2012).

Not being given the opportunity to contest the allegations contained in a motion for injunction, either at the issuance or the motion to dissolve stage, requires reversal.

Pruitt v. Sands, — So.3d —-, 2012 WL 1317228 (Fla. 4th DCA 2012).

Local government’s interpretation of its own ordinances and rules is entitled to great weight in administrative proceedings.

SEIU Florida Public Services Union, CTW, CLC v. City of Boynton Beach, — So.3d —-, 2012 WL 1317617 (Fla. 4th DCA 2012).

A party objecting to an arbitration award must, pursuant to Fla. Stat. § 682.09, file a motion to vacate or modify the award within 90 days of award issuance otherwise the award will stand.

William G. Graney, P.E. v. Caduceus Properties, LLC, — So.3d —-, 2012 WL 1290841 (Fla. 1st DCA 2012).

The Relation Back Doctrine under Florida Rule of Civil Procedure 1.190 (cc) applies when there is a mistake or misnomer in identifying a party; not when adding a new party. Accordingly, a first party plaintiff may not rely on the Relation Back Doctrine to add a new party to the first party complaint, even if the new first party defendant has already been sued as a third party defendant.

Harvey Covington & Thomas, LLC v. WMC Mortg. Corp., — So.3d —-, 2012 WL 1292421 (Fla. 1st DCA 2012).

Improper to deny additional time to conduct discovery when motion for summary judgment is pending and discovery has not been responded to.

Thomas v. Ocwen Loan Servicing, LLC, — So.3d —-, 2012 WL 1292423 (Fla. 1st DCA 2012).

A movant for summary judgment must show absence of material fact issues and factually refute the non-movant’s affirmative defenses or show their legal insufficiency.

Filarsky v. Delia, — S.Ct. —-, 2012 WL 1288731 (2012).

A person temporarily hired by a governmental unit to carry out a governmental function is entitled to the qualified immunity of 42 U.S.C. § 1983. Accordingly, attorney hired by city to assist municipality in investigating wrongdoing in municipality is entitled to qualified immunity.

Miller v. Chase Home Finance, LLC, — F.3d —-, 2012 WL 1345834 (11^th Cir. 2012).

The federal Home Affordable Modification Program (HAMP) does not create an implied private cause of action on behalf of homeowners against their lenders.

Crystal Dunes Owners Ass’n Inc. v. City of Destin, Fla., Slip Copy, 2012 WL 1293117 (11^th Cir. 2012).

Landowners may not sue local Sheriff for failure to enforce trespass laws as there is no substantive due process right to governmental aid or protection.

Holston Investments, Inc. B.V.I. v. LanLogistics Corp., — F.3d —-, 2012 WL 1293469 (11^th Cir. 2012).

In a case of first impression in the Eleventh Circuit, the court holds that a dissolved corporation has no principal place of business for diversity purposes.

Dream Custom Homes, Inc. v. Modern Day Const., Inc., Slip Copy, 2012 WL 1320122 (11^th Cir. 2012).

Architectural work is protected by copyright so long as claimant has a valid copyright and demonstrates original elements of the protected work have been copied. To determine whether copying occurred, a plaintiff must prove defendant copied portions of the protected work and that the copied elements are not protected expression.  Only the arrangement of common elements, not the common elements themselves, are protected by architectural copyright law.

Facebook alleges that Yahoo is violating patents covering services such as its homepage, content optimization, relevance engine, photo-sharing service and advertisements displayed throughout the site. Facebook’s own engineers allegedly invented three of these patents, and another was co-invented by Mark Zuckerberg himself.

This is not the first time Facebook has battled over patents. In 2008, Leader Technologies Inc. sued Facebook, alleging the company infringes a patent on its data management tool. The case went to trial in Delaware district court in 2010, the first time Facebook had ever faced a jury. The jury found Facebook had infringed the patent, but it also invalidated the patent because Leader had sold the technology before seeking patent protection. Leader appealed the ruling to the U.S. Court of Appeals for the Federal Circuit, which heard oral arguments in March. The court has not yet issued an opinion.

Facebook’s countersuit can be found here.