Company sued by university can continue emailing that it will not hire students

University of Illinois v. Micron Technology, Inc., No. 11-2288 (C.D.Ill, Order dated April 11, 2013)

The University of Illinois sued Micron for patent infringement. Micron sent an email to several professors that read in part:

Because Micron remains a defendant in a patent infringement lawsuit that [the University] filed against Micron in Federal court in Illinois on December 5, 2011, effective immediately, Micron will no longer recruit [University] students for open positions at any of Micron’s world-wide facilities.

The University asked the court for a preliminary injunction barring future harassing communications from Micron to any University employee. The court denied the motion, holding that:

  • the term “harassing” was vague and therefore the requested injunction would violate Rule 65(d)’s requirement that the injunction describe in reasonable detail the acts to be restrained
  • the prior restraint of speech would likely violate Micron’s First Amendment rights
  • the sought after preliminary injunction did not pertain to the injury alleged in the complaint

Though the court sided in favor of Micron on the question of whether to enter an injunction, it questioned the company’s motives. It found Micron’s decision to be “without tact,” and was “very concerned” that Micron was trying to interfere with the litigation. But there was not sufficient evidence for the court to draw such a conclusion.

Court lets FTC serve litigation documents by Facebook

Decision discusses how courts should allow use of technology of “then-recent vintage”

FTC v. PCCare247 Inc., 2013 WL 841037 (S.D.N.Y. March 7, 2013)

The Federal Trade Commission filed suit against a number of Indian defendants alleging they operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers. (Ars Technica provided some entertaining background on this industry last fall.)

After some difficulty in effecting service of the summons and complaint on the defendants in India, the FTC asked the court for leave to serve the remainder of the documents in the case (e.g., additional pleadings, motions, notices) via email and Facebook. The court granted the FTC’s motion.

The Federal Rules and Alternative Service

Under Federal Rule of Civil Procedure 4(f)(3), a court may fashion means of service on an individual in a foreign country, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process. Under Rule 4(f), service of process on foreign corporations may be made in the same manner as on individual defendants.

Not Prohibited By International Agreement

The court noted that the United States and India are signatories to the Hague Service Convention. Article 10 of that Convention allows for service of process through alternative means such as “postal channels” and “judicial officers,” provided that the destination state does not object to those means. India has objected to the means listed in Article 10, although that objection is specifically limited to the means of service enumerated in Article 10.

The court found that service by Facebook is outside the scope of Article 10. And since India has not objected to service by email or Facebook, the court held that international agreement did not prohibit such service.

Comports With Due Process

Quoting Mullane v. Cent. Hanover Bank & Trust Co., the court spelled out that “constitutional notions of due process require that any means of service be ‘reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'” Here, the court found, service by email and Facebook were reasonably calculated to provide defendants with notice of future filings in the case.

The FTC had set forth facts that supplied ample reason for confidence that the email and Facebook accounts identified were actually operated by defendants. Two of the defendants had registered their Facebook accounts with email addresses that were independently verifiable. And another of the email accounts was the one used to register one of the defendants’ domain names. The court could also glean information as to the Facebook accounts’ legitimacy by noting that a number of the defendants were Facebook friends with each other.

Service Via Technological Means of “Then-recent Vintage”

The court acknowledged that Facebook service was a relatively novel concept, and that defendants conceivably might not in fact receive notice by that means. But the Facebook service was merely a backstop to email service. (The court observed that “if the FTC were proposing to serve defendants only by means of Facebook, as opposed to using Facebook as a supplemental means of service, a substantial question would arise whether that service comports with due process.”)

It noted that as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means “of then-recent vintage,” rather than dismissing them out of hand as novel. In 1980, in allowing service of Iranian defendants via Telex, a judge from the same court remarked in New England Merch. Nat’l Bank v. Iran Power Generation and Transmission Co. that courts should not “be blind to changes and advances in technology. No longer do we live in a world where communications are conducted solely by mail carried by fast sailing clipper or steam ships.” Twenty-two years later, the Ninth Circuit, in Rio Properties, Inc. v. Rio Int’l Interlink, saw itself “tread[ing] upon untrodden ground” to allow service of process via email.

In this case, taking a cue from Rio Properties to be “unshackled” from “anachronistic methods of service” and, through the due process inquiry be permitted “entry into the technological renaissance,” the court found email and Facebook service to be proper. This was particularly true where defendants were shown to have “zealously embraced” the technologies, and already had knowledge of the lawsuit.

See also:

Court considers Yelp posting as evidence of potential consumer confusion in trademark case

Posting by confused consumer was not hearsay.

You Fit, Inc. v. Pleasanton Fitness, LLC, 2013 WL 521784 (M.D.Fla. February 11, 2013)

In a trademark case between competing health clubs, the court considered a Yelp posting in entering a preliminary injunction, finding that while the anonymous posts were not conclusive evidence of actual confusion, they were indicative of potential consumer confusion.

The dispute centered over the use of “You Fit” and “Fit U” for health clubs. A Yelp user posted the following:

I am soo [sic] confused. I was a member at Youfit in [Arizona] and when I moved back to [California] I saw this place by my house and thought great my gym is here! When I went into the gym, I realized it was called Fit U. They use the same basic color scheme on their sign and the motto seemed the same. When I asked the girl at the desk, … [she] said her owner created this brand. I said what are you [ sic ] rates? Seemed very similar to me as when I was a member at Youfit. Very confusing and a big let down.

The court rejected defendant’s hearsay argument. It noted that affidavits and hearsay materials which would not be admissible evidence for a permanent injunction may be considered if the evidence is appropriate given the character and objectives of the injunctive proceeding. With no analysis as to why, the court found the Yelp posting appropriate to consider at this stage of the case.

Moreover, the court observed in a footnote that the Yelp post was not hearsay to begin with. It was not being offered to prove the truth of the matter asserted, but to demonstrate the consumer’s confusion — a then-existing mental state of the declarant, which is an exception to the hearsay rule. This is an interesting finding. The hearsay and non-hearsay uses of the post both turn on the same content, particularly the statement “I am soo [sic] confused.” That statement is the matter asserted (and in such capacity, excludable hearsay). And it is also the mindset of the declarant (and in such capacity, subject to an exception to the hearsay rule).

The court’s opinion does not address what one might see as the real problem with the Yelp evidence — its authenticity. Perhaps the parties did not bring that up. But one does not have to venture far in imagination to see how a crafty plaintiff could generate, or direct the generation, of self-serving social media content that would be helpful as evidence in a litigated matter.

See also: Customer reviews on social media provide important evidence in trademark dispute

Accessing email server from Canada supported personal jurisdiction in the U.S.

MacDermid, Inc. v. Deiter, No. 11-5388 (2d Cir. December 26, 2012)

The Second Circuit reversed a District Court that held it could not exercise personal jurisdiction over a Canadian defendant accused of accessing email servers located in Connecticut.

Defendant lived and worked in Canada for a U.S.-based company having its principal place of business in Connecticut. She knew her company’s email servers were located in Connecticut.

When she learned that she was about to be terminated from her position, she forwarded confidential company data from her work email account to her personal account.

The former employer sued in the U.S. District Court for the District of Connecticut. That court dismissed the case, holding that the relevant Connecticut state statute (Conn. Gen. Stat. § 52-59b(a)) did not authorize the exercise of personal jurisdiction. The lower court found that although the statute authorized personal jurisdiction over one who “uses a computer” in the state, defendant’s alleged computer use took place exclusively in Canada.

Plaintiff-employer sought review with the Second Circuit Court of Appeals. On appeal, the court reversed, holding that the state statute authorized the exercise of personal jurisdiction, and that such exercise comported with due process.

The court found it was “not material” that defendant was outside Connecticut when she accessed her employer’s servers. It held that the statute required only that the computer or network, not the user, be located in the state.

On the due process issue, the court found that defendant had minimum contacts with Connecticut, as she knew the servers were located there. The court also found that she purposefully directed her alleged tortious activity there. After balancing other relevant factors (e.g., location of witnesses, burden on the defendant, Connecticut’s interests in seeing its laws enforced), the court found the exercise of personal jurisdiction to be reasonable.

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