FMLA policy on company intranet sufficient notice to employee

In the retaliatory discharge case of Dube v. J.P. Morgan Investor Services, plaintiff Dube alleged, among other things, that he had not been given proper notice of his rights under the Family and Medical Leave Act of 1993, 29 USCA § 2601 et seq. (“FMLA”). The employer moved for summary judgment. In granting the employer’s motion, the court found that prior to Dube’s period of absence, the company’s human resource policies (including information about the FMLA) had been provided to all employees via the company’s intranet website. The court concluded that the posting on the intranet adequately gave notice to Dube of both his and his employer’s obligations under the FMLA.

Dube v. J.P. Morgan Investor Services, 2005 WL 1140766 (D.Mass., May 13, 2005).

No dog-gone jurisdiction over New Jersey resident

Paws With a Cause, Inc., a Michigan non-profit corporation, sued Paws For a Cause, LLC, a New Jersey entity, for trademark infringement in federal court in Michigan. Plaintiff operates the website pawswithacause.com, while defendant operates pawsforacause.com. The defendant moved to dismiss under Fed. R. Civ. P. 12(b)(2), citing a lack of personal jurisdiction.

The defendant explained that it had “never ever conducted business of any type with anyone from the State of Michigan.” The plaintiff, however, claimed that it suffered a tortious injury in Michigan from the defendant’s operation of the website with a confusingly similar domain name. The plaintiff also argued that the defendant had caused injury in Michigan by maintaining an unauthorized link from its website to the plaintiff’s website. Finally, the plaintiff argued that it suffered injury resulting from the defendant’s “telephonic threat to pursue a criminal investigation unless plaintiff withdrew its complaint.”

The court rejected the plaintiff’s arguments. It held that even if the potential confusion caused by the similarities in the parties’ names caused some sort of tortious injury in Michigan, the defendant’s contacts with Michigan were too attenuated to satisfy due process. As for the threat of criminal prosecution, the court noted that although it lacked diplomacy, it “was not totally unjustified.” In any event, the threat couldn’t give rise to personal jurisdiction, as the plaintiff’s claims did not arise from the communication.

Paws With a Cause, Inc. v. Paws For a Cause, LLC, 2005 WL 1118114 (W.D.Mich., May 11, 2005).

Statements on law firm website result in attorney suspension

New Hampshire’s Supreme Court Committee on Professional Conduct accused the respondent of violating New Hampshire Rule of Professional Conduct 7.1, which provides that a lawyer is prohibited from making a “false or misleading communication about the lawyer or the lawyer’s services.” Under the rule, a communication is false or misleading if it “contains a material misrepresentation of fact or law.”

The website for the respondent’s law firm “suggested that he had experience in helping small businesses file direct public offerings, although [he] had only drafted offerings that had never been filed.” The referee appointed to the case determined that the language on the website “advertised [the respondent’s] expertise in financing and raising capital even though ‘he did not have any special training or experience in securities law.'” The referee determined that such statement was a violation of Rule 7.1, and the state’s Supreme Court affirmed the decision.

Richmond’s Case, — A.2d —, 2005 WL 1048105 (N.H., May 6, 2005).

Morgan Freeman wins transfer of morganfreeman.com from cybersquatter

Perhaps Morgan Freeman never learned about the high profile domain name disputes involving celebrity names (e.g., Madonna, Bruce Springsteen and Julia Roberts), because he didn’t register morganfreeman.com before it was snatched up by Mighty LLC in April 2003. After learning about Mighty LLC’s cybersquatting, Freeman filed a complaint before a WIPO arbitration panel under the Uniform Domain Name Dispute Resolution Policy.

Mighty LLC didn’t respond to Freeman’s complaint, so the decision never had the opportunity to be very instructive. Prior to the filing of the complaint, Freeman’s attorneys contacted Mighty LLC, to which Mighty LLC responded: “Your client isn’t the only Morgan Freeman. Why do you think he/she is entitled to the domain name?”

The panel found that Freeman’s long and successful career made his name distinctive for use in connection with movies and entertainment services. The panel also recognized Freeman’s rights in the domain name based on a pending United States trademark application for MORGAN FREEMAN [Serial No. 78/531,828]. The panel further held that the circumstances indicated Mighty LLC had no rights or legitimate interests in the domain name, and that it was registered in bad faith.

A regular reader of this weblog (or listener to the podcast) will recognize that Mighty LLC is no stranger to domain name disputes.

Freeman v. Mighty LLC, Case No. D2005-0263 (April 28, 2005).

Microsoft website unreliable as a matter of law

An appellate court in Michigan has affirmed the trial court’s refusal to take judicial notice of information on Microsoft’s website relating to the corruption of server event log files. The court found that Microsoft’s website is not a “source whose accuracy cannot be reasonably questioned.”

After Valrene Mae Schilke was terminated from her position as a technical analyst for Express Management Services, she did what a lot of fired IT workers have probably dreamed of doing: she wrought havoc on the company’s network. Unfortunately for Schilke, however, she didn’t cover her tracks well enough to prevent investigators from tracing malicious activity to the IP address for her home computer. She was charged with one count of “unauthorized access to a computer” under Michigan law, and a jury convicted her of the crime.

At trial, Schilke admitted that she changed the network’s administrative password, deleted user accounts, and took home backup tapes and CDs without authorization. Schilke was also accused of deleting the computer system’s “event log,” but she denied this claim. She argued that a known defect in Microsoft software was instead responsible for the missing event log information. She asked the court to take judicial notice of information contained on Microsoft’s website regarding corruption of event log files.

According to the decision, under Michigan law, for a court to take judicial notice, a fact “must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” The trial court found that the alleged problem with the event logs was not “capable of accurate and ready determination,” and that “the Microsoft web site does not constitute ‘a source whose accuracy cannot be reasonably questioned.'”

The appellate court held that the trial court did not err in refusing to take judicial notice of the Microsoft website. It affirmed the defendant’s conviction and sentence.

People v. Schilke, 2005 WL 1027039 (Mich.App., May 3, 2005).

Wal-Mart on the domain name war path

WIPO arbitration panel orders transfer of walmartfacts.biz.

Wal-Mart seems to have been particularly vigilant lately about protecting itself from third parties setting up websites critiquing Wal-Mart and its practices. See, for example, recent blog postings by Eric Goldman, Kevin Heller, and an article from SiliconValley.com.

Wal-Mart recently scored a victory in an arbitration proceeding under the Uniform Domain Name Dispute Resolution Policy (“UDRP”) before the World Intellectual Property Organization (“WIPO”) against Jeff Milchen, a self-proclaimed critic of Wal-Mart from Bozeman, Montana who registered the domain name “walmartfacts.biz”.

The arbitration panel took great liberty with the factors set forth in the UDRP to determine that Milchen registered the domain name in bad faith. The panel found that Wal-Mart had “not adduced sufficient facts to show the existence of one of the bad faith elements under paragraph 4(b) [of the UDRP].” Instead, the panel noted that the 4(b) elements are not exclusive, and looked at “the totality of the circumstances surrounding the registration and use of the Domain Name” to determine that bad faith existed.

In taking this “totality of the circumstances” approach, the panel considered four factors to find that the domain name was registered in bad faith. First, the respondent had not used the domain name to post content constituting fair use or any other legitimate purpose. Second, the respondent knew of Wal-Mart’s trademark rights when he registered the domain name in January of 2005. Third, the respondent’s “admitted animus” was an indication of actual malice and ill will toward Wal-Mart. Fourth, the use of the entire Wal-Mart trademark in the domain name made it difficult for users of the Internet to infer a legitimate use of the domain name by the respondent.

Wal-Mart Stores, Inc. v. Milchen, Case No. D2005-0130 (April 10, 2005).

Listing in web directory not enough for personal jurisdiction

Plaintiff Kalk, a resident of Delaware, filed suit in federal court in Delaware against his former employer, Fairfield Language Technologies, who has its principal place of business in Virginia. The dispute arose out of Kalk’s employment by Fairfield in the state of Florida.

Fairfield moved to dismiss the complaint for lack of personal jurisdiction. The court granted the motion. Fairfield argued that it did not transact business in Delaware or own property there, nor had it purposefully availed itself to the privilege of conducting activities in Delaware.

The only evidence Kalk submitted regarding Fairfield’s contacts with Delaware was evidence of a link to and description of Fairfield’s website on the Delaware Immigration Directory’s website. This evidence was not persuasive. The court found that Kalk adduced no evidence that Fairfield sought to be listed on the website. Thus, the court held that Kalk’s evidence was insufficient to show purposeful availment.

Kalk v. Fairfield Language Technologies 2005 WL 945715 (D.Del., April 22, 2005).