Law

Anette B.

Anti-SLAPP Laws Without Mandatory Award of Fees and Costs is a Hinderance to the Access to Justice and Chills Free Speech

Arizona recently passed a new anti-SLAPP law, 2022 Ariz. HB 2722 (it’s not in effect yet and won’t be for a few months at least) and while a colleague of mine and are are working on a more comprehensive discussion about anti-SLAPP and this new law specifically (which I will link here once done and/or you can always follow me here or on various social media to get the latest) as I was writing the initial draft of that article this week I became more and more frustrated. Anti-SLAPP laws without a mandatory award of attorneys fees and costs to the prevailing party of such motion is a hindrance to the access to justice for real victims of SLAPP suits and chills free speech. How? Let me elaborate.

I should preface this with the fact that I spent the better part of a decade working as in-house counsel of an interactive online forum and I’ve pretty much seen it all when it comes to true victims sharing their honest stories (and being threatened because if it) and bad actors using the Internet as a source of revenge (where people are desperate to make the harassment stop and to remove untruthful, hurtful, information from the platform). As such, my opinion is through a lens of having heard countless stories from all sides.

Generally speaking (obviously there are always outliers) those who lawfully criticize wrongdoers, especially online, do so because they don’t have the means to file suit regarding the experience that led to the criticism. Complaining online is their remedy. If those being criticized are powerful and/or wealthy, it’s really easy to say “Take that content down or I’ll sue you.” Many Americans are living paycheck to paycheck, but even if they are comfortably above that, they often cannot afford to be sued. Just look at how long it took to get through the Depp/Heard case. Granted, that was where two parties were heavily pushing back on who was right … but this is not unlike many civil cases. In fact, the behaviors exhibited in that court room and on display for the watching world to see is not all that unusual for litigating parties. The only difference there is that it was televised and people care enough about celebrity dirt to watch the case unfold on live television/online streaming.

But if you aren’t a celebrity or wealthy individual … if you cannot afford to fight back through expensive lawyers, even if you’re in the right … what do you do? Chances are you begrudgingly remove the content to save your own pocket book, or worse, lose a legal action and end up with a, albeit by default, judgment against you if you cannot, for whatever reason (and there are many reasons) don’t appear in a case. Ahh, yes … the threat of a SLAPP suit is indeed a huge and powerful sword.

But what happens if you cannot remove the content because the website’s terms of service prohibit it, or such posting has been scraped and put up elsewhere such that you do not have control over it? Oh yes, this happens all the time online. People don’t read Terms of Service and unfortunately, copy cat websites scrape content that isn’t theirs. In this instance, chances are, you will get sued anyway. Why? Because it’s worth it for the wealthy/powerful to try to get a court order to remove the content from the internet and they can’t do that without a suit. After all, many platforms will honor court orders for content removal even if they are obtained by default.

And in a lot of ways, this makes sense. Especially when bad actors/defamers hide behind anonymous accounts and/or are in foreign countries that make pursuing the perpetrator cost prohibitive or near impossible for real victims. Real victims need relief and this is one such pathway to remedy. On the other hand, for the truth tellers, it can be hard to stand up to wealthy/powerful bad actors when faced with a lawsuit. Those who speak up honestly can get the short end of the stick. If a suit is filed, and they can’t afford to defend against it, are they to be victimized yet again by default? I know it happens. I’ve seen it happen. Let me give you an example.

Imagine with me for a moment that you are a business owner of a new start-up company called Cool Business, LLC operating in Arizona, and you want to engage the services of a advertising company. Your friend, Tim, gives you the name of Great Advertising Co. based out of New York. A New York advertising company sounds fancy and you think they will probably do a far better job than anyone here in little Arizona so you reach out to them. The conversation goes great, they send you a basic contract to sign for the work to be done for Cool Business, LLC and require a $6,000.00 deposit so they can get started on the work and another $4,000.00 in 90 days for a total contract of $10,000.00 over three months. You skim the agreement, gloss over the headings of the boilerplate terms (because they’re all the same, right?), sign it and send them the $6,000.00. Everything goes great at first, but months into the relationship, and dozens of calls later, you realize that Great Advertising Co. is flakey. They aren’t delivering the services on time, there is always an excuse for why the work isn’t done, but when the 90 days hits, they still ask for their additional $4,000.00 pursuant to the contract. The business relationship at this point has soured. Great Advertising Co. demands their additional $4,000.00 under the contract, which you refuse to pay, and you instead demand a refund of your $6,000.00. Great Advertising Co. refuses to refund you the $6,000.00. Pissed off, you take your story to your favorite business attorney in Arizona and she reviews your contract and advises you that while you may have a breach of contract claim, the terms of your contract say that you agree to litigate any matters stemming from the agreement in a court in New York and that because the contract is with Cool Business, LLC that you’d have to hire a lawyer, in the state of New York, to handle the matter for you because businesses have to be represented by a lawyer in the court that you’d have to file in. Knowing that New York lawyers can be very expensive, you decide it’s not worth the hassle and to cut your losses. Understandably being upset, however, you take to the Internet to tell everyone you know how, truthfully, Great Advertising Co. ripped you off and you explain in detail what happened. You post your reviews to Google, Yelp, Facebook and any other place you can find to help spread the word about these unscrupulous business tactics and you leave it at that. Ten months later you receive a letter from a Great Advertising Co.’s New York lawyer telling you that you need technically still owe the $4,000.00 under the contract and that Great Advertising Co. doesn’t appreciate the negative reviews and demands that you immediately remove them or they will file a lawsuit against you for defamation. You ignore the letter because you know that you have a good breach of contract case and the First Amendment on your side because what you said was 100% the truth and you know, after talking to your favorite defamation attorney a few years back, you know that the truth is a defense to a claim of defamation. A day prior to the one year anniversary of your pissed off customer online posting tirade you are served with a complaint, based out of New York for defamation. You’ve watched the Johnny Depp and Amber Heard defamation trial. You saw how long that case was drug out and you know that you don’t have the funds to pay an attorney to fight for your rights in New York. You didn’t even have the funds to hire a New York attorney to bring a breach of contract case against Great Advertising Co. to try and get your $6,000.00 back. As such, feeling defeated, and without talking to your favorite defamation attorney again, you just ignore the complaint. You figure, what’s the worst that can happen. Great Advertising Co. obtains a default judgment against you individually with an order to take down the content and the judge awards $2,500.00 in damages.

Now, this entire hypothetical, while obviously facts have been changed and such, is based off a true story of what one individual experienced and how these types of situations can go south in a hurry. There are countless similar stories just like this out there. Good folks are victimized not just once, by the initial acts, but twice in some instances like in this hypothetical. But this is where good anti-SLAPP laws come into play.

Anti-SLAPP laws are designed to fight back against those who file lawsuits just to try and silence their critics, but without the promise of attorney fees and costs for the work, victims of little means are hard pressed to find lawyers willing to help (hence the hinderance to access to justice). The sad truth is that most lawyers (like most professions) cannot afford to work for free – being a professional is expensive and it’s not getting any cheaper. When anti-SLAPP laws include such fee provisions, it’s a lot easier for attorneys to consider taking on a SLAPP case, with low or no money down, case because they know they will get paid when they win. This is of course presuming it’s a deep pocket that filed the SLAPP in the first place because the reality is a judgment is only worth one’s ability to collect.

When anti-SLAPP laws fail to include such provisions, there is little deterrent to filing a SLAPP suit. Yes, if the little person being picked on has means, maybe they will think twice but that’s not often the case and the SLAPP filers know, and bank on, the litigation causing financial hardship or stress so that the truth teller will simply give in to the demands to remove the content prior to even answering the complaint, thus chilling truthful speech. It’s a powerful tactic. If it wasn’t, there wouldn’t be so many states with anti-SLAPP laws trying to curb such problems in the first place.

As many legal practitioners are painfully aware, it can be very difficult to get a judge to award attorneys fees and costs absent it being statutorily required. So even if you fight against a SLAPP suit, and win, you could still be out tens of thousands of dollars (or more depending on the case) with no guarantee of recovery. As an attorney, when you have to tell potential clients this, you can see the defeat in people’s faces before you even get going. It’s scary. What average person has tens of thousands of dollars laying around to pay to a lawyer to fight for their First Amendment right to free speech?

Would those odds make you excited about standing up for yourself? I think not. If you knew all this, would you be so willing to share with the public honest information about bad actors and you personal experience? I think not.

And this doesn’t just go for complaining consumers, but also for investigative journalists. If you think a random, but bigger company, going after an unhappy customer who got ripped off is bad and complained about it is bad … imagine what a powerful elite will try to do to an investigative journalist trying to uncover some very serious dirty laundry and expose it to the world?

Bottom line, for any anti-SLAPP law to be a true shield, among other things, it must contain, at minimum, a statutory award of attorney fees and costs.

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

#firstamendment #defamation #antiSLAPP #legislation #accesstojustice

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Anette B.

It’s hard to find caselaw to support your claims when you have none – Wilson v. Twitter

When the court’s opinion is barely over a page when printed, it’s a good sign that the underlying case had little to no merit.

This was a pro se lawsuit, filed against Twitter, because Twitter suspended at least three of Plaintiff’s accounts which were used to “insult gay, lesbian, bisexual, and transgender people for violating the company’s terms of service, specifically its rule against hateful conduct.”

Plaintiff sued Twitter alleging that “[Twitter] suspended his accounts based on his heterosexual and Christian expressions” in violation of the First Amendment, 42 U.S.C. § 1981, Title II of the Civil Rights Act of 1964, and for alleged “legal abuse.”

The court was quick to deny all of the claims explaining that:

  1. Plaintiff had no First Amendment claim against Twitter because Twitter was not a state actor; having to painfully explain that just because Twitter was a publicly traded company it doesn’t transform Twitter into a state actor.
  2. Plaintiff had no claim under § 1981 because he didn’t allege racial discrimination.
  3. Plaintiff’s Civil Rights claim failed because: (1) under Title II, only injunctive relief is available (not damages like Plaintiff wanted); (2) Section 230 of the Communications Decency Act bars his claim; and (3) because Title II does not prohibit discrimination on the basis of sex or sexual orientation (an no facts were asserted to support this claim).
  4. Plaintiff failed to allege any conduct by Twitter that cold plausibly amount to legal abuse.

The court noted that Plaintiff “expresses his difficulty in finding case law to support his claims.” Well, I guess it would be hard to find caselaw to support claims when you have no valid ones.

Citation: Wilson v. Twitter, Civil Action No. 3:20-0054 (S.D. W.Va. 2020)

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

Anette B.

“Internet Law” explained

For some reason, every time one says “lawyer” people tend to think of criminal law, family law or personal injury law.  Perhaps because those are very common.  Most people even understand the concept of a corporate or business lawyer, someone who handles trust and estates, or even one that handles intellectual property.  However, when we say “Internet Law” many people get the most confused look on their face and say: “What the heck is that?” If that is you, you’re in good company.  And, to be fair, the Internet really hasn’t been around all that long.

If you were to read the “IT law” page on Wikipedia you’d see a section related to “Internet Law” but even that page falls a little short on a solid explanation – mostly because the law that surrounds the Internet is incredibly vast and is always evolving.

When we refer to “Internet Law” we are really talking about how varying legal principles and surrounding legislation influence and govern the internet, and it’s use.  For example, “Internet Law” can incorporate many different areas of law such as privacy law, contract law and intellectual property law…all which were developed before the internet was even a thing.  You also have to think how the Internet is global and how laws and application of those laws can vary by jurisdiction.

Internet Law can include the following:

  • Laws relating to website design
  • Laws relating to online speech and censorship of the same
  • Laws relating to how trademarks are used online
  • Laws relating to what rights a copyright holder may have when their images or other content is placed and used online
  • Laws relating to Internet Service Providers and what liabilities they may have based upon data they process or store or what their users do on their platforms
  • Laws relating to resolving conflicts over domain names
  • Laws relating to advertisements on websites, through apps, and through email
  • Laws relating to how goods and services are sold online

As you can see just from the few examples listed above, a lot goes into “Internet Law” and many Internet Law attorneys will pick only a few of these areas to focus on because it can be a challenge just to keep up.  Indeed, unlike other areas of law, “Internet Law” is not static and is always evolving.

Do you think you have an Internet Law related question? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business and individual clients and strive to meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

 

 

 

 

Anette B.

From the #MoronFiles | Note to Dabblers: When in doubt, refer it out!

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shitbags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

09/10/2018 #MORONFILES ENTRY:

If you are a lawyer and your website boasts that you are the top “insert any law practice not having to do with civil internet defamation matters here” and that is ALL that it is listed that you practice on your website…perhaps you should stick with what you know.  More often than not, dabbling makes you look like an unprofessional asshole to those who do practice in the area you are dabbling in and you are really doing a disservice to your client.  Don’t get me wrong, I’m all for learning new areas of law…  I wouldn’t be doing what I am doing but for me learning new stuff…but I could do reasearch on my own and I also found mentors.  And if you don’t have a mentor, you should be damn smart enough to conduct basic research first before you go sending your little nasty grahams.  Have a leg to stand on for crying out loud!  Be smart enough to know what you don’t know.  When in doubt, refer it out!

So client gets a letter from a law firm, from a foreign jurisdiction (but not THAT foreign – like this country likes to cite to our case-law on occasion) that basically provides the run of the mill demand letter and threat of litigation if the client doesn’t comply.  Sounds rather standard; so what’s the problem?  This particular lawyer has not a f*cking clue what he/she is talking about.  This is evident by the fact that they cited to a local statute that would ONLY make sense if it was filed some 2+ years ago…and if they applied to someone OTHER than this particular client. *Sigh*

I don’t care what area of law you practice in – claims have some sort of statute of limitations.  If your law school education didn’t teach you that – go get your damn money back!  It’s basic legal analysis 101.  If you are going to make a demand, you should probably look that up first to see if your threat of litigation is going to make you look like a tool or not by being outside of the statute of limitations for the claim you are asserting. Now, I know that some attorneys argue that it is okay to bring a claim that is outside of the SOL and wait to see if the Defendant raises that defense.  I do not subscribe to that kind of lawyering and some State Bar opinions are with me on this.  Second, you should see if such liability actually even extends to the person/entity that you are threatening…and if your own jurisdiction didn’t just create some law that is totally opposite of the position that you are trying to pursue.  Yeah, because I can do research too…and that happened here. *Asshat*

This is a prime example of a person/firm that I won’t forget…and it is a person/firm that I would NEVER refer anyone to…because they have already proven they don’t do necessary research to adequately advise a client.  That is true of anyone who makes my #MoronFiles list (the list is getting longer by the day – though I don’t write about them all).  This is why I think it’s important that clients and lawyers understand statute of limitations and other pertinent aspects that should be contemplated before sending such threats.  It’s not just your client that is watching you (and that you could be harming by wasting their resources)…so are others in the profession.  I remember who are above-board and who aren’t…and I’m happy to refer to colleagues in the space, even if they are opposite of a client of mine, if they show professionalism.  To be clear, this isn’t the first of it’s kind…just felt like venting regarding this one today.

Until next time friends!

 

Anette B.

Domesticating a Foreign Subpoena in Arizona

So you have initiated legal action in your local state court but an entity or person that you need information from is based out of or otherwise located in the state of Arizona.  What do you do?  Well, if you want someone to tell you how to do it (yep, step by step instructions) or otherwise don’t really want to mess with it much at all, you can seek help from Beebe Law, PLLC.  Simply start by filling out the Arizona State Subpoena Domestication Intake Form.  If you just want to learn a little more…keep reading.

Every state has their own unique set of laws and procedures when it comes to domesticating a foreign subpoena and Arizona is no exception.  The following are a few important points:

  1. Make sure you know who the entity’s statutory agent is and where they are located.  You should be able to find this by searching the Arizona Corporation Commission’s website.
  2. Ensure that you are complying with Arizona’s Interstate Depositions and Discovery rules.
  3. If you are asking for medical records or anonymous author information, there are special rules/laws surrounding that you will need to research.
  4. If you are commanding attendance at a deposition or hearing be sure you are doing it at a location consistent with the rules.
  5. Don’t forget your witness fees!
  6. You will have to arrange to have the subpoena served, e.g. through a process server.

Many can absolutely accomplish the goal of foreign subpoena domestication in Arizona entirely on their own (as long as you pay close attention to the rules) however, if you are unsure of the process, or otherwise just don’t want the hassle of it, feel free to reach out to us.  We are here to help you navigate and/or take over the nuances and have created an entire Foreign State Subpoena Domestication Intake Form to get you started.

If you are in need of assistance with laws and procedure in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business and individual clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  
Anette B.

10 Online Safety Hacks You Can Implement Today

Every day you read about major companies, or even law firms, getting hacked.  Talk about some frustrating stuff! It’s even worse when it actually happens to you.  Of course, with the increase of technological convenience comes greater cyber security risk.  One of my personal favorite cyber security gurus and “Shark Tank” star Robert Herjavec recently provided insight for an article that outlined 10 safety hacks that are easy to implement if you aren’t already doing them.  What are those 10 safety hacks?  Continue reading…

Some of these seem pretty intuitive.  Others perhaps not so much but are a good idea.

  1. Enable multi-factor authentication (MFA) for all of your accounts.
  2. Cover internal laptop cameras.
  3. Don’t do any shopping or banking on public Wi-Fi networks.
  4. Ensure that websites are SSL secure (https instead of http) before making financial transactions online.
  5. Delete old, unused software applications and apps from your devices.
  6. Update your anti-virus software as soon as updates become available.
  7. Refresh your passwords every 30 days for all accounts and use unique passwords for each account.
  8. Update computer/mobile software regularly.
  9. Don’t click on unknown links or open unknown attachments.
  10. Change the manufacturer’s default passwords on all of your software.

One of my favorites is the “cover internal laptop cameras.”  I personally used to get made fun of because I would place a sticky note over the top of my camera on my computer.  I suppose it didn’t help that it was bright green (or hot pink) depending on what color sticky note I had handy so it drew attention until I was given a better one (a plastic slider made specifically for this purpose) at a networking event from Cox Business. Now it doesn’t seem so silly after all.

Another one that I know is important, but probably more difficult to do, is to “refresh your passwords every 30 days for all accounts and use unique passwords for each account.”  Holy moly!  Think of how many accounts have passwords these days?  Literally every different system/app/website that you use requires a password! One LinkedIn user listed as a “Cyber Security Specialist” for a software company offered the solution of a program like LastPass.  Apparently, according to this particular individual anyway, LastPass saves all of your passwords in a securely encrypted container on their servers and have many other built in safety features in the event of stolen or hacked data.  This way all you have to know is one password and LastPass will do the rest.  While surely there are other similar solutions out there, if you are interested, you can read more about LastPass on their How It Works page. Sounds pretty cool, right!?! It might help you break out of that password hell.

A little common sense plus adding in these 10 security hacks can go a long way! Do you have any security hacks to share? Have a favorite password protector that you use? Let us know in the comments!

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  
Anette B.

Schools and Sunscreen to License Plate Covers: 10 new Arizona laws that may impact you – effective this week.

Often times, when laws are passed, they are done without most people noticing.  That’s because small changes to state statutes aren’t all that “news worthy” and it seems that the only people that care are those that wrote them.  However, starting Wednesday, August 9th, 2017, there are 10 laws that Arizonans might actually find relevant, or at least interesting:

  1. Sunscreen in School: Remember the frustration with trying to get your kid to be able to use sunscreen at school, camp or daycare without a prescription?  Stress no more!  HB 2134 fixed that by allowing school aged kids to have and use sunscreen without a note or prescription!
  2. Schools and Inhalers: I can recall growing up with asthma and recess could be troublesome without an inhaler.  Fortunately, that probably won’t be an issue anymore. HB 2208 grants trained school personnel the authority to administer a rescue inhaler to a student (or adult) provided that such student or adult is showing signs of respiratory distress during school or a school sponsored event.  It also allows schools to apply for grants and accept donations to buy inhalers and spacers.
  3. Hot Cars are No Place for Pets and Kids: We’ve seen more than our share of news stories about kids and pets being left in hot cars and dying as a result.  Passers by have long been concerned about civil liability for breaking into locked and unattended vehicles in order to rescue the pets or kids. After all, no good deed goes unpunished, right? Well, worry no more! HB2494 remedied that by protecting persons who enters a locked, unattended, vehicle in connection with the rescue of a child or pet if that person believes that the kid or pet is in “imminent danger of physical injury or death.”  The caveat is that the person MUST call the police or animal control first and stay with that animal or child under they police or animal control arrive.
  4. Background Checks for Private Gun Sales: There has been a lot of confusion surrounding whether or not one had to do a background check on someone when there was a private sale or gift of a gun. Confusion be gone. SB 1122 has made it clear that the state, county and city governments cannot require background checks to be done on private gun sales, gift, donations or other transfer.
  5. Arizonans with Disabilities Act: Businesses know that in order to operate they often need to take into consideration patrons/customers that have disabilities. There has been recent talk about this even applying to a business’s website. Nevertheless, it appears that to help out businesses, SB 1406 amends the Arizonans with Disabilities Act to give a business up to 90 days in order to cure violations for structural access before a lawsuit can be filed against them, and websites have also been exempt from from the state accessibility requirements.  Of course, for the website business owners, this doesn’t mean that a case won’t be brought against you in a different state that doesn’t have the same rules (people are crazy litigious like that) but it’s good to know that you’re seemingly safe, for now, with the laws of this state.
  6. Crummy Moving Companies Beware: Nothing says “crummy moving company” like one that will get all of your belongings loaded up and to your (in-state) destination but refuses to unload your stuff if you have a disagreement over the payment – like added surprise charges that you weren’t anticipating. HB 2145 addresses that problem by making it illegal for a moving company to fail to unload your belongings over a disagreement over the bill.  Moving companies have to provide a written contract and disclose all fees.  No more surprises = no more disagreements (hopefully).
  7. End of Life Decisions are Difficult: At the end of one’s life – decisions that are being made take a toll on all of those involved – doctors and nurses included. SB 1439 protects doctors, nurses and entire medical facilities from discrimination when they refuse to participate in or otherwise provide any service or item that would result in the death of an individual.
  8.  License-Plate Covers: For all those who think they are being slick with the fancy license plate covers, electronic devices or film that “hides” your license plates from cameras, etc. – you might want to get rid of them.  SB 1073 makes it illegal to cover your license plate in a manner that obscures the license plate from any angle.
  9. Serving Age of Alcohol Decreased: HB 2047 reduces the age in which a person can serve alcohol.  Under the old law one had to be 19 years old before they could serve alcohol.  Under the new law a person only has to be the age of 18.
  10. Pharmacists and Emergency Prescriptions: It can be scary to run out of necessary medication and not be able to get a refill timely.  SB 1269 now allows pharmacists to issue a one-time emergency refill of a non-controlled medication used to treat an ongoing medical condition in particular circumstances including when the pharmacy has had prior record of the patient such patient has a history of being prescribed such medication.

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  
Anette B.

Five Benefits to Keeping Your Business Lawyer in the Loop

Let’s face it, the word “lawyer” for many is akin to a four letter expletive that people are offended by. Typically because it reminds people of getting sued and/or having to shell out, often unexpectedly, loads of cash that they rather have spent elsewhere…like on a vacation.  Similarly, like in all professions, not all lawyers are created equal, and not all lawyers really have their client’s financial interests at heart – after all, being a lawyer and having a law firm is a business. I personally pride myself on NOT taking advantage of my clients…giving them direction on how they can do things themselves and helping only where they REALLY need/want it…but after 18+ years in the legal field, I know that not all lawyers share my same client-friendly mindset. It is no wonder that people cringe at the thought of having to use a lawyer.

Lawyers don’t have to be a thorn in your side through.  In fact, a good lawyer can be a business’s greatest adviser and advocate – keeping in mind that a job of a lawyer is to tell you what you NEED to hear which can sometimes be very different than what you WANT to hear. All businesses should have a lawyer or two that they keep in regular contact with and it should be part of your regular business operating budget.

Before you go thinking I’m crazy, here are a few reasons that keeping your lawyer updated on the goings on of your business is advantageous:

  1. Lead Generation: Your lawyer can often be your biggest cheerleader (and lead generator) for future customers. Chances are your lawyer is tapped into many different networks.  You never know when someone they know will need your business’s products or services and a solid referral from your lawyer could be future revenue in your pocket.
  2. Idea Generator: An attorney that understands you, your business, and your goals can be an invaluable asset when it comes to creative thinking.  Brainstorming on new ideas with your lawyer may prove to be helpful in that they may be able to think of concepts outside the box for your business that you may not have already thought about.  What if that lawyer helps you generate the next million dollar idea?
  3. Cost Cutting: One thing that many lawyers are good at is organizing and streamlining processes – it’s part of the way we think.  What if your lawyer was able to give you ideas on how to streamline an existing process that will considerably help cut costs moving forward?  If a few hundred dollars for your lawyer’s time on the telephone could save you thousands of dollars in the next year, wouldn’t you do it?  Sure you would.  You’d be a fool not to.
  4.  Risk Mitigation: When you brainstorm with your lawyer on a new business concept, they can often help you plan your road-map to reach your goals and help you navigate around pitfalls that you might not even think about.  For example, when clients come to me talking about setting up a new business I always ask them the business name and ask if they have considered any reputation issues with that new business name.  The same goes for contracting issues, employee issues, etc. To that end as well, there is a LOT of bad information being circulated around on the internet. Indeed it is wise to conduct your own research but don’t you think it prudent to have your research double-checked by someone who knows where to actually find the correct information when it comes to the law? As Dr. Emily So once said, “better information means better ideas, means better protection.”
  5. Cost Effective: It is a lot cheaper to keep your lawyer up to speed on your business as it grows, even if through a short monthly 15 minute call, than it is to try and ramp your attorney up (trying to teach them everything about your business, including policy changes and the like in a short amount of time) when you suddenly need advice in order to be reactive to a situation – like when you are named as a defendant in a lawsuit.  When you are named as a defendant in a lawsuit, you typically only have 20 days (varies by court and jurisdiction) from the date that you are served with a complaint in order to determine what your defenses are and what sort of a response you will need to file.  That process becomes a whole lot easier if your attorney already knows about you, your business, it’s policies and procedures, etc.  It is also easier to to budget in a few hundred dollars a month to keep your attorney up to date then to get smacked with a request for a $20,000.00 retainer, most of that potentially being eaten up just “learning” about your business, and then having subsequent large litigation bills.

As you can see, there are many reasons to regularly communicate with your attorney and hopefully you would find it more advantageous and beneficial than paying your monthly insurance bill. As Benjamin Franklin once said, “an ounce of prevention is worth a pound of cure!”

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

 

Anette B.

From the #MoronFiles | F’n Litigators

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shitbags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

06/13/2017 #MORONFILES ENTRY:

No offense to any of the “normal” professional litigators out there because I work with some AMAZING ones…but what the hell is with the scorched earth approach right out of the box?  You are not an ape.  Stop pounding your chest.  I understand getting a little frustrated after repeated inquiries  (when there is merit to your position) however, when you come out of the box swinging, threatening meritless litigation (because you are too lazy to f’n do some legal research before running the diarrhea of the fingers on your keyboard) you are not setting yourself up for good things to come.  This is especially true when you are asking for a favor – you know, asking someone to do something they are not legally obligated to do.  You can bet that counsel like me will remember your shit attitude in the future, your name will be marked on the “shit list”, and you won’t be given any courtesies in the future.  Your shitty attitude has just screwed any future clients who may be similarly situated.  You want to be helpful to your clients?  Check that ego at the door. Respect begets respect and people remember how you treat them.

Anette B.

From the #MoronFiles | I Demand!

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shitbags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

05/23/2017 #MORONFILES ENTRY:

Perhaps not as good as the prior entry, however, this is still worth a note because it is one of my biggest pet peeves. If an individual or entity is NOT (emphasis on the NOT) legally obligated to take any action in connection with your situation one wonders what in the world counsel is thinking when they write a letter and use the phrase “I demand…” in bold and underlined, in the closing of their letter. You “demand!?!” What? Are you my mother asking me to do my chores or else I’m going to be grounded for the summer? Given the fact that your tone is complete shit, and my client has ZERO legal obligation to do anything, your “demand” is now being filed away and NOT responded to. #DENIED! Why? Because I’m not interested in dealing with an ass-hat and you have now given me NO incentive to even look at your materials.  Moral to the story: Like my momma always says “you catch more bees with honey than you do with vinegar.” I subscribe to that philosophy…plus I like to treat others as I would expect to be treated.

 

Anette B.

So Good You Can’t Make It Up | A Collection From the #MoronFiles

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shitbags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those here for your reading pleasure:

07/05/2017 – A “Nominal Defendant” | Following a nice four day weekend it’s always fun to come back to the office to a freshly filed complaint against one of your clients. Said complaint was filed out of state (one in which does NOT have jurisdiction over my client for a host of reasons including Plaintiff having agreed to jurisdiction elsewhere), the “cause of action” (which isn’t really a cause of action in the first place – apparently Plaintiff’s counsel confuses causes of action with remedies) is without legal merit, and counsel called my client a “nominal defendant.” Let’s be real here; there is no “nominal defendant.” ALL defendants (in most cases anyway) will have to extend valuable resources and time to deal with even the most handicapped complaint by filing motions to dismiss for lack of jurisdiction or other defenses.  You can’t paint a rainbow on birdshit and call it a rainbow…no, it’s still birdshit.  You know, just so we are clear…

06/16/2017 – You Know You Are A Lazy Lawyer When | It’s been a busy few weeks to say the least.  This one will be short and sweet.  If you are going to spend the money to serve someone, you should probably spend some time actually trying to figure out the proper entity to name and statutory agent first.  A way you start this is by trying to run a search in this really cool search engine called Google.  And then you can also use these cool public websites where businesses are registered called the Corporation Commission for the particular state.  That will not only give you proper entity spelling but also who the proper statutory agent for service is.  Now don’t get me wrong, I know that sometimes that can be easier said that done for some entities…BUT…this particular one I have in mind is EASILY found online.  What this tells me: lazy lawyer probably just billed his client for less than half ass work that will result in NOTHING because it’s not valid. #Ignored #FeelingSorryForTheirClient

06/13/2017 – F’n Litigators | No offense to any of the “normal” professional litigators out there because I work with some AMAZING ones…but what the hell is with the scorched earth approach right out of the box?  You are not an ape.  Stop pounding your chest.  I understand getting a little frustrated after repeated inquiries  (when there is merit to your position) however, when you come out of the box swinging, threatening meritless litigation (because you are too lazy to f’n do some legal research before running the diarrhea of the fingers on your keyboard) you are not setting yourself up for good things to come.  This is especially true when you are asking for a favor – you know, asking someone to do something they are not legally obligated to do.  You can bet that counsel like me will remember your shit attitude in the future, your name will be marked on the “shit list”, and you won’t be given any courtesies in the future.  Your shitty attitude has just screwed any future clients who may be similarly situated.  You want to be helpful to your clients?  Check that ego at the door. Respect begets respect and people remember how you treat them.

05/31/2017 – You Signed Your Name on This? | So here is a new one for the books.  A business client of mine is served with a third-party Subpoena Duces Tecum (fancy way of saying it’s asking for documents or things) today.  Today is May 31st – and this is important and you will see why in a minute.  Okay, standard procedure…except: 1) it’s an Amended Subpoena (never received the original subpoena); 2) allegedly issued from a state court that is in another state (so yeah, that’s not going to work – domestication pal); 3) asking for information to be provided back in the middle of April “to avoid having to make an appearance” (so, we get to time travel like Marty McFly?); 4) the said date of appearance was also scheduled for back in the middle of April (hmmm, must be banking on more of that time travel); 5) the date of said Amended Subpoena was dated back on the first of this month (so you know, the document production and/or appearance was supposed to occur BEFORE it was even signed AND the person apparently couldn’t get it served for over 30 days); 6) the Subpoena had no case number; and…oh, this is the best part… 7) WAIT FOR IT…WAIT FOR IT…when I looked up the case caption…there is no case pending with that case caption in that court!  You have got to be kidding me!?!  To top it off, right there at the bottom of this pile of crap is the name, bar number and signature of the attorney that paid to have it served upon my client.  Well alrighty then Shady McShaderson…

  • 06/08/2017 – UPDATE on “Shady McShaderson” | Just when you thought that things couldn’t get any more ridiculous than what was mentioned above…when “Shady McShaderson” got called out for above mentioned antics the response back was basically that the law of the state allows for attorneys to do a subpoena without a case number.  Ummm, come again?  I’m well aware of the pre-litigation discovery process in the particular state and this is NOT in line with the procedure, pal.  I don’t care what color you paint your abuse of process turd…it’s still a stinky turd!
  • 8/23/2017 – UPDATE on “Shady McShaderson” | Whoa! Shady McShaderson got a case going! So after sending a BS subpoena, for a case that doesn’t exist, Shady McShaderson and realized we’ve ignored it, the genius counsel finally filed a case!  What did said genius counsel do? Provided us with a case number.  That’s it?  What a fricken moron.  Come on…how much lazier and shadier can you get?  Of course such action was called out and it was explained, again, what the PROPER procedure is…  The response “no worries…”  Where do they find these people?  And how do they keep a bar license?

05/23/2017 – I Demand! | Perhaps not as good as the prior entry, however, this is still worth a note because it is one of my biggest pet peeves. If an individual or entity is NOT (emphasis on the NOT) legally obligated to take any action in connection with your situation one wonders what in the world counsel is thinking when they write a letter and use the phrase “I demand…” in bold and underlined, in the closing of their letter. You “demand!?!” What? Are you my mother asking me to do my chores or else I’m going to be grounded for the summer? Given the fact that your tone is complete shit, and my client has ZERO legal obligation to do anything, your “demand” is now being filed away and NOT responded to. #DENIED! Why? Because I’m not interested in dealing with an ass-hat and you have now given me NO incentive to even look at your materials.  Moral to the story: Like my momma always says “you catch more bees with honey than you do with vinegar.” I subscribe to that philosophy…plus I like to treat others as I would expect to be treated.

05/12/2017 – Disbarred Attorney | Today I reviewed a rather rude communication from an individual who wrote a meritless threatening letter (and I mean, the person couldn’t possibly have a viable claim based upon statute of limitations and other precedent law given the situation) making dumb statements and signed their name with “a Dallas lawyer” and a request that the communication be taken seriously.  Sure thing there good buddy!  Well, when I receive communications that I perceive to be on the “shittier side of Sears” (my spin on the old “softer side of Sears” advertising) I will look into the individual.  Ah, low and behold said “Dallas lawyer,” was DISBARRED from the state of Texas over two years ago for some rather naughty stuff…as in the crime allegedly committed is a felony in the state.  Right there, on the State Bar website, CLEAR AS DAY, it said this person was DISBARRED.  The State law there says that you are not a lawyer in the state unless you are licence to practice there.  So, no person, that makes you NOT a Texas attorney…and, in fact, your state can make holding yourself out as an attorney, when you aren’t, a felony.  Get that? F-E-L-O-N-Y.  Yeah, poor decision on your part.  Asshat.

Until next time friends…

 

Anette B.

From the #MoronFiles | Disbarred Attorney

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shitbags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

05/12/2017 #MORONFILES ENTRY:

Today I reviewed a rather rude communication from an individual who wrote a meritless threatening letter (and I mean, the person couldn’t possibly have a viable claim based upon statute of limitations and other precedent law given the situation) making dumb statements and signed their name with “a Dallas lawyer” and a request that the communication be taken seriously.  Sure thing there good buddy!  Well, when I receive communications that I perceive to be on the “shittier side of Sears” (my spin on the old “softer side of Sears” advertising) I will look into the individual.  Ah, low and behold said “Dallas lawyer,” was DISBARRED from the state of Texas over two years ago for some rather naughty stuff…as in the crime allegedly committed is a felony in the state.  Right there, on the State Bar website, CLEAR AS DAY, it said this person was DISBARRED.  The State law there says that you are not a lawyer in the state unless you are licence to practice there.  So, no person, that makes you NOT a Texas attorney…and, in fact, your state can make holding yourself out as an attorney, when you aren’t, a felony.  Get that? F-E-L-O-N-Y.  Yeah, poor decision on your part.  Asshat.

Anette B.

A “kids will be kids” mindset could get parents into legal trouble in Arizona

I am fortunate enough to live in a fairly close knit community full of beautiful families and a lot of kids.  However, no matter how amazing of a community I might live in, the truth is, we, like most communities, still have the occasional chaos that neighbors will complain about.  Indeed, we hear about it all – from minor situations like barking dogs, rules of an HOA, or kids making too much dust playing in the dirt to increasingly more problematic issues like speeders, theft of packages from people’s doorsteps, and vandalism of facilities on occasion.  Our community even has a Facebook page wherein people will, in addition to posting good things going on in the community, also discuss these kinds of issues and/or put people on blast for perceived transgressions.

In this mix of issues that people will talk about includes rambunctious kids, often teenagers, that make poor decisions and choose to do things like break little kids playground equipment in the community because the equipment isn’t being utilized properly or perhaps steal items from people’s property – probably because they think it is funny and don’t really consider the consequences. Today, many people have camera phones and/or camera systems set up on their homes that catch the perpetrators in action.  The community response to these kinds of issues are as mixed as the members of the community.  Some people demand that the local police/sheriff is called.  Others will post the images, if they have them, onto Facebook as a form of public shaming.  Some will hold onto the images and complain about it on the community Facebook page hoping that the parents of children will take some responsibility and have discussions with their kids.  Even yet, some will do a combination of any or all of the above…hoping to deter future bad conduct.

In one recent example that I can think of one homeowner caught on tape what appeared to be a teenager stealing an item from his property.  The homeowner wrote on the Facebook community page about the transgression, advised that they had video of the act, and requested that the item be returned.  Of course, there was a community uproar and all kinds of advice (good and bad in my opinion) was handed out on how the homeowner should handle the situation.  Further review of the comments to the thread suggest that the homeowner spoke to the perpetrating teen’s parents and allegedly received a “kids will be kids” mentality response.    Ah…maybe “kids will be kids” but when it comes to property damage and/or theft, at least here in Arizona, that could be problematic for the parents and is something that should be taken a little more seriously.

PARENTS CAN BE LIABLE FOR THEIR “KIDS BEING KIDS”

Now if something happens that is purely accidental a parent probably won’t be found to be liable.  However, if your little Pumpkin, Prince/Princess, or Snowflake does it on purpose – well, you could have a legal battle ahead of you.  Your kid may have only taken a $5.00 Dollar Store troll doll from someone’s front sidewalk and/or smashed it in the road because it seemed funny, however, in the eyes of the person whose property was stolen or damaged…it’s not so funny.  What’s the harm?  It’s only $5.00 right?  Well, let’s look at how this can escalate into a mess that could cost you well over $5.00 to deal with.

CIVIL LIABILITIES IMPUTIMPUTEDED TO THE PARENTS

Arizona Revised Statute § 12-661 covers liabilities of parents or legal guardians for malicious or willful misconduct of minors.  As of this writing, Section 12-661(A) states “Any act of malicious or wilful misconduct of a minor which results in any injury to the person or property of another, to include theft or shoplifting, shall be imputed to the parents or legal guardian having custody or control of the minor whether or not such parents or guardian could have anticipated the misconduct for all purposes of civil damages, and such parents or guardian having custody or control shall be jointly and severally liable with such minor for any actual damages resulting from such malicious or wilful misconduct.”  Section 12-661(B) states “The joint and several liability of one or both parents or legal guardian having custody or control of a minor under this section shall not exceed ten thousand dollars for each tort of the minor. The liability imposed by this section is in addition to any liability otherwise imposed by law.”  Emphasis of bold, italics, and underlining added.

HOW THINGS CAN GET EXPENSIVE FOR UNSUSPECTING PARENTS

Depending on how important the issue is to the homeowner, and how much damage was done, the homeowner very well file a complaint against you for the actual damages utilizing A.R.S. § 12-661 AND any other related civil causes of action including legal theories like negligence and the duty of care (especially if parents had notice of the misconduct and failed to do anything to try and deter such behavior) which may provide for monetary remedies beyond actual damages.  More than one child involved?  You may have to multiply those damages per child involved.  Further, most insurance companies will not agree to pay out claims caused by an intentional act so one shouldn’t rely on that either.

Depending on the damage amount claimed or estimated in a compliant will determine which court (Small Claims Court – up to $3,500, Justice Court – up to $10,000, or Superior Court – over $10,000) your matter will be heard in.  The general rule of thumb, the bigger the court, the more expensive the filings fees and other costs may be.  For example, a response to a complaint filed in the Maricopa County Superior Court currently costs $237.00.   Need to hire an attorney to defend you in the civil matter?   A recent State Bar of Arizona magazine article has suggested that the billing rate for many attorneys in Arizona is $275.00/hr.  I have colleagues that bill upwards of $465 an hour and some have a minimum bill of .2 – that’s 12 minutes or $55.00 if your attorney bills the $275/hr.  Send a text message asking about your case.  That’s $55.00 done and gone – just like that. I can advise from experience that many attorneys will expect an upfront retainer of $5,000 – $25,000 depending on the complexity of the matter and your Answer to a Complaint alone can run $2,500 or more.  Then you add in the legal research fees, the copy fees, mailing fees and anything else that might be required for your case.  What about your time?  Your time is valuable right?  What about the time you will have to devote to tending to legal matters?  Time is the one thing you can’t get back…

FAILURE TO CORRECT ACTIONS ON LITTLE THINGS CAN LEAD TO BIGGER PROBLEMS

As adults we are all likely aware of the big Bernie Madoff situation where he stole $18 billion (yes, billion with a B) from investors.  No one starts out with big things. No one sets out to have a career of misdeeds that can land them into legal trouble just as an addict doesn’t take their first hit or sip anticipating becoming an addict.  Apparently Madoff told Vanity Fair “Well, you know what happens is, it starts out with you taking a little bit, maybe a few hundred, a few thousand…You get comfortable with that, and before you know it, it snowballs into something big.”  Now it’s a stretch to compare kids to Bernie Madoff, however, you get the point – and the psychology on it is pretty much the same.

According to the Association for Psychological Science, “[a] new study finds that getting away with minor infractions ends up making it easier for people to justify bigger, more serious ethical violations.   Over time, small ethical transgressions – like stealing pens from work – can put employees on the ‘slippery slope’ of increasingly bad behavior.”  You can review the full article here.  This is why it is imperative that parents take action with even the smallest of issues – which includes figuring out why your child is misbehaving (which might include seeking assistance from a family counselor, doctor, support group, etc.), determining appropriate consequences and sticking with those consequences.  It’s also important to monitor your kids behavior and keep him/her away from situations in which there is temptation to continue with poor choices.

 

Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

 

 

Anette B.

Texas Court Paving the Highway for Abuse of Anonymous Authors’ Rights One Pre-Litigation Discovery Order at a Time: Glassdoor v. Andra Group

The United States has long held close to its heart the right for authors to speak anonymously.  However, protecting an anonymous author is getting more and more difficult these days.  The March 24, 2017 ruling by the Appellate Court for the Fifth District of Texas in Glassdoor, Inc., et al. v. Andra Group, LP certainly didn’t help either.

In my practice I see volumes of subpoenas sent to websites holding third-party anonymous content requesting the anonymous author’s identifying information.   Most of the time Plaintiffs file a John or Jane Doe defamation related litigation, which preserves the statute of limitations, and then they conduct limited discovery in order to ascertain who the proper defendants are and move forward from that point.  Typically, most states have some sort of notice requirement to the anonymous author that would provide them the opportunity to appear and defend their right to remain anonymous.  In the state of Arizona we have the controlling case of Mobilisa v. Doe, 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24 (App. 2007).  It’s common for websites to raise objections on behalf of an anonymous author when the appropriate basic standards have not been met and, as I recently discussed in another article regarding Glassdoor, courts are ruling that websites like Glassdoor have the standing for the same.  This process, including giving author notice in a reasonable way, has always seemed fair to me.

Unfortunately, there seems to be a loophole that many Plaintiffs are taking advantage of, and it can be problematic for anonymous authors and websites alike.  I think that pre-litigation discovery tools (Illinois Rule 224, Texas Rule 202, etc.) are being abused in cases dealing with anonymous authors.   While I firmly believe that purposeful defamers and harassers should have the book thrown at them (i.e., fines, community service and/or educational requirements), often times the burdens on the plaintiff are not that high, it may not require notice to the author, and once an anonymous author’s information is revealed you can’t un-ring that bell.  I believe that pre-litigation discovery tools need either a very high threshold, have a notice requirements like that of Mobilisa or, alternatively, be barred in cases where a party is utilizing it to seek anonymous author information.

In this case Andra filed a Rule 202 petition against Glassdoor seeking to discover the anonymous reviewers’ identities relating to some ten (10) allegedly defamatory postings made about it.  Glassdoor, along with two (2) of the anonymous authors, filed an anti-SLAPP dismissal motion.  The trial court denied the motion and granted in part the Rule 202 petition which basically allowed Plaintiff to take the deposition of Glassdoor (even though claims against Glassdoor were not anticipated) regarding two (2) of the anonymous postings, not written by Glassdoor nor either Doe 1 or Doe 2, and was going to limit the deposition to five specific statements within those reviews.  Glassdoor and the anonymous authors understandably appealed the trial court’s ruling.

The Appellate court then skipped over the whole concept of anonymous free speech when it justified the trial court’s order by stating that “[k]nowing the reviews’ contents alone did not tell Andra [plaintiff] whether it had viable claims against the anonymous reviewers” and that “Andra also needed to know not only the reviewers’ relationships with Andra to evaluate potential defensive issues such as substantial truth.”  See Memorandum, p. 7.  Yeah, you read that right.  The balancing test on pages 8-10 are equally problematic and even through the trial court limited the deposition of Glassdoor to a handful of statements the author(s) of the selected statements still didn’t necessarily have notice nor necessarily the opportunity to appear and defend.  Even more troubling is the statement by the Court “[b]ut Rule 202 does not require a petitioner investigating a potential claim to show a probable right in relief on the merits.”  See Id, pg. 12.  Say what?  So a Rule 202 petition can be a BS fishing expedition, not give notice to an author of the BS fishing expedition, require a website to extend time and resources to sit for a BS fishing expedition and/or raise all defenses that may otherwise lie with the knowledge of an author, and that is all okay?  Who made up this batch of Koolaid?  How can the Court not see how this is paving the highway for abuse by plaintiffs?

You can review the entire Memorandum Opinion here: 

.

Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

 

 

 

Anette B.

Why Google De-Indexing May NOT be an Effective Reputation Management Solution.

What reputation management companies should know, defamation lawyers probably already know, but clients either aren’t being warned about or the clients are willing to try it anyway…

So your client comes in and complains that someone defamed them on the internet.  You put on your Super Lawyer cape and rush in to save the day.  No problem, you’ll walk through the litigation, get a court order that tells Google to remove, block or otherwise de-index the content from their search engine and, viola!  Problem solved, right?  WRONG.

While I sort of eluded to these issues in my blog article troubles with defamatory online reviews and content scrapers, just because search engines like Google will agree to de-index (which arguably, at least in the United States, they are under no obligation to do thanks to Section 230 of the Communications Decency Act) doesn’t mean that the content goes away.  Indeed, it remains alive in many ways:

  1. The complaint that you filed, which contained the alleged defamatory language and or copies of the alleged defamatory postings is STILL part of the public court record and, in theory, always will be – most of which is accessible online;
  2. The website that hosts the alleged defamatory content may refuse (rightfully under the current US laws) to remove the content regardless of whether or not it is found to be defamatory;
  3. Google might “de-index” but they pretty much give people a road map on where to find the information via the Lumen Database and provide, where applicable, the supporting documents like a court order which, if people are smart and interested, they can find more information about the litigation through court records; and
  4. Under most privilege laws, one could write a story about the court case, even repeating verbatim the defamatory language right out of the court record, without penalty.

Indeed, if you search out a particular name in Google, and you see, at the bottom of the search results a statement about the matter having been removed from the search engine links, chances are, someone had information removed for some reason.  Typically a link to the Lumen Database is provided by Google and parties can click on that link to learn more about why the information was removed and what links were subject to being removed from the search results.

Depending on the situation, this “de-indexing” may not even last that long.  All a website has to do, if they were so inclined, is to update the URL and that would render the original URL de-index essentially useless.  The party who submit the information would then have to go back and try again by either getting another court order or resubmitting what they have to Google again – but then it could become a game of whack-a-mole and for what? The information is STILL available anyway.

I completely understand wanting to find a solution for relief for those that have genuinely been harmed online but I think there needs to be a shift from trying to bury and cover things up to providing A LOT more education regarding these issues (why people should be leery of what they read online, ways to not get themselves into these problems in the first place, constructive ways of handling issues) and perhaps, as I said recently, come up with harsher punishment for internet defamers.

Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.