Daughter Unwittingly Drops $80,000 Facebook Bomb on Dad

Patrick Snay had worked as headmaster of Gulliver School in Florida, but his 2010-2011 contract was not renewed.  In response, Snay sued Gulliver asserting causes of action for age discrimination and retaliation under the Florida Civil Rights Act.   The parties settled the matter on November 3, 2011, and executed a general release and a settlement agreement for full and final settlement of Snay’s claims, with the school to pay $10,000 in back pay to Snay with “Check # 1″; $80,000 to Snay as a “1099” with “Check #2; and $60,000 to Snay’s attorneys with “Check # 3.”

The settlement agreement included a confidentiality clause prohibiting Snay and his wife from disclosing the existence and terms of the agreement subject to disgorgement of the $80,000.

13. Confidentiality. . . [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement . . . A breach . . . will result in disgorgement of the Plaintiffs portion of the settlement Payments.

Unfortunately, shortly after signing the agreement, Snay told his daughter that the case had been settled and that he and his wife “were happy with the results.” Four days after the agreement was signed and before payment by Gulliver was made, Snay’s daughter posted the following on Facebook to about 1,200 of her Facebook friends, many of whom were either current or past Gulliver students:

“Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

Gulliver soon discovered the posting and notified Snay that he had breached the confidentiality agreement and that it would forward the attorney’s fees payment, but not the $80,000 to Snay.  In response, Snay asked the court to enforce the agreement for full payment.  The lower court agreed with Snay.  Gulliver then appealed.  In its decision on February 26, 2014, the Florida District Court of Appeals reversed, holding that Snay had breached the confidentiality clause and therefore forfeited the $80,000.  Snay found out the hard way that confidentiality agreements can have teeth and that breaching the confidence through social media can have real bite.

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U.S. Federal Judge Permits Service of Process Through Social Media

In the United States, there is a requirement that notice of a lawsuit against a party be served on that party with a reasonable likelihood that the notice will be received so that the party may respond to it.  A federal plaintiff must comply with both constitutional due process notice requirements and Rule 4(f) of the Federal Rules of Civil Procedure.  In order to satisfy due process, the methods of service must provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co, 339 U.S. 306, 314 (1950).  Often, that is done by having a process server hand the defendant the lawsuit papers (“personal service”), typically a summons and a complaint.  Other methods may include serving the agent of the party or leaving the papers at the person’s dwelling with a person of suitable age.

However, should location of the defendant prove difficult for service, the rules also allow a plaintiff to ask the court for an order allowing service by alternative means. Modernly, service of lawsuit papers has occasionally been allowed by notice through social media.  Such service has been approved in at least Australia, New Zealand and in England.  In 2009, service of an injunction was allowed on Twitter.  In 2012, the English High Court approved service of a lawsuit via Facebook.  See article here.

In a case in U.S. District Court in Alexandria, Virginia, the plaintiff, WhosHere, Inc., asked Magistrate Judge Thomas Rawles Jones, Jr. for an order permitting it to serve lawsuit papers on defendant Gokhan Orun, a resident of Turkey, by way of e-mail, Facebook and LinkedIn.  Plaintiff brought the underlying lawsuit against Mr. Orun, alleging among other things trademark infringement, unfair competition and cybersquatting.

Rule 4(f)(1)-(3) of the Federal Rules of Civil Procedure governs service of process on an individual in a foreign country and provides three mechanisms of service:  (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by [certain specified means outlined in the Rule] reasonably calculated to give notice . . .; or (3) by other means not prohibited by international agreement, as the court orders.

Plaintiff had presented to the Court certain facts of earlier attempts at service. Plaintiff attempted to serve the lawsuit by e-mail and by the Hague Convention, but both attempted methods were unsuccessful.

Recent decisions establish that courts applying Rule 4(f)(3) can order any means of service so long as it provides reasonable assurance that defendant will be notified of the lawsuit and is not prohibited by international agreement.  See Rio Props. v. Rio Int’l Interlink 284 F.3d 1007, 1016-17 (9th Cir.2002); BP Prods. N. Am., Inc., 232 F.R.D. at 265 (E.D. Va. 2005).

Judge Jones considered plaintiff’s motion and the facts presented.  In addition to acknowledging plaintiff’s previous attempts at service, he found no international agreement with Turkey that forbid service of process via e-mail, Facebook or LinkedIn.  Accordingly, in an order dated February 20, 2014, Judge Jones granted plaintiff’s motion to allow service upon Mr. Orun at his two e-mail addresses and his Facebook and LinkedIn accounts.  Order here.  Should one be a prospective defendant, a record of social media communications can result in effective service of process and actual or constructive notice of the lawsuit.

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Turning the Worm: Photographer Sued Getty Images for Posting His Photos and Won $1.2M

Professional photographer Daniel Morel was in Haiti on January 12, 2010, when devastation struck.  At 4:54 p.m. that day, the largest earthquake in the Caribbean in 200 years hit the island ultimately killing over 230,000 people.  During the remainder of that day, Morel shot many photos of the destruction and of those wandering through it in a trance-like state.  He then uploaded 13 of the photographs to TwitPic, an image-sharing website that links to Twitter, but importantly was legally independent from it.  Among its terms and conditions, TwitPic never asked for licenses to distribute the images.  In fact, TwitPic stated: “All images uploaded are copyright © their respective owners.”  Morel subsequently sent out Twitter posts that included links to the TwitPic photos, but he did not post the photos there nor did he authorize anyone to publish or distribute them.

Due to the sensational nature of the earthquake, a number of news organizations opened the links and copied and distributed Morel’s photographs as part of their news reports on the earthquake.  One of the copiers, Agence France Presse (AFP), was under a 2003 distribution deal with Getty Images allowing Getty to license the images for $195 each.  An editor at AFP discovered Morel’s photos through a Twitter account and provided them to Getty.  The photos were then widely disseminated to Getty’s clients, including several television networks and the Washington Post.  AFP and Getty had licensed 8 of the photos hundreds of times and collected between $15,000 and $30,000 in revenues.  AFP and Getty had even attributed the photos to a different photographer.

Through his lawyer, Morel expressed his displeasure with the various news outlets that had made use of his images.  He asked them to remove the images asserting that they had no right to copy or distribute them and that they had infringed his copyrights in the photos.  In response, on March 26, 2010, AFP filed suit against Morel in the U.S. District Court, Southern District of New York, and sought a declaration of non-infringement of Morel’s copyrights in the photos.  AFP asserted that Morel had granted any third-party a non-exclusive license to use the images by posting them on Twitter and that as a result of the terms and conditions under TwitPic, Morel granted a worldwide, non-exclusive, royalty-free license, with the right to sub-license others, to use, copy, publish, display and distribute those photographs.  AFP added that “when Mr. Morel posted his photographs on Twitter, he made no notation that he was in any way limiting the license granted to Twitter or third parties.”  AFP further accused Morel of engaging in “commercial defamation.”  Morel counterclaimed asserting that AFP, Getty and the Washington Post infringed his copyrights.

Several of the news outlets that published Morel’s images had settled with Morel for undisclosed amounts, including CBS, ABC and CNN.  In the court proceedings, U.S. District Court Judge Alison Nathan was unpersuaded by AFP’s arguments.  In January 2013, she ruled that AFP and the Washington Post were not operating under any license from Morel and were liable for copyright infringement of Morel’s photos.  [Summary Judgment Order here.]  Thereafter, it was conclusively established that Getty too was an infringer.  The Washington Post settled in September of 2013.  AFP and Getty, however, doggedly decided to take their chances at trial.  Infringement having been established, the remaining issues went before a jury to decide whether AFP’s and Getty’s acts of infringement were willful and to determine the amount of damages against them.  After a week-long trial, on November 22, 2013, the jury decided the infringements were indeed willful and awarded Morel maximum statutory damages of 1.22 million dollars.  [Amended Judgment here.]

For many years, Getty Images has issued cease and desist letters threatening others for copying photos acquired over the internet.  Being hit here with an actual judgment for the same acts Getty has repeatedly condemned, should have caused the company to figuratively look down to find its pants around its ankles.  Indeed, in this case, the worm turned.

 

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Food Truck Worker Fired For Tip-Shaming on Twitter

According to his own account, food truck worker Brendan O’Connor and his food truck crew prepared a $170 food order for employees of a local shareholder advisory firm who had sprinted up to his truck in South Street Seaport in Manhattan.  The stall was opened to support the area while repairs from Hurricane Sandy were underway.  “This group placed a huge order: three of this sandwich, four of another, three of the one that takes forever on the grill, two of the one that takes forever to assemble. Five or six milkshakes.” This slug of an order also stalled other customers’ orders on this rainy Monday.  When the order was completed, the firm’s customers took delivery of the food, but did not leave a tip.  So O’Connor fired off a tweet about it and identified the firm.  According to the article: “Apparently, those employees were mortified that their lunch truck had tip-shamed them—the home office in San Francisco even got involved.” Once notified of the tip-shame, O’Connor’s boss was none too pleased.  He apologized to the firm and fired O’Connor.

This is not the first termination over tip-shaming on social media.  According to the Consumerist, a waitress was fired for tip-shaming a pastor on Reddit for not ponying up the required tip for a large group at Applebee’s.  She posted a photo of the receipt on which the pastor wrote: “I give God 10%.  Why do you get 18?”  While not particularly a legal risk, tip-shaming on social media may adversely impact one’s employment.

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Appellate Court Strikes Down Judge’s Ruling That “Liking” Facebook Page Is Not Constitutionally Protected Expression

On May 8, 2012, yours truly wrote an article on this very blog about a decision by a federal judge in Virginia who, on April 24, 2012, ruled that “liking” a Facebook page was not expression protected by the First Amendment of the U.S. Constitution.  U.S. District Court Judge Raymond A. Jackson ruled that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”  There were a significant number in the legal community who set about scratching their collective heads about this ruling.

On September 18, 2013, the U.S. Court of Appeals for the Fourth Circuit weighed in and reversed Judge Jackson’s decision.  “That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”  See page 40 of Fourth Circuit opinion here.

Sometimes courts err.   Judges are humans too.   At times, even the U.S. Supreme Court has overturned its own decisions.

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Alleged Tagger Arrested After Liking Facebook Photo of Himself

In connection with the disturbance in downtown Huntington Beach on July 28, 2013, Huntington Beach Police posted photographs on the department’s Facebook page of a number of persons of interest seeking the public’s help to identify them.  One of the photos appeared to show a a tagger tagging the bumper of a police cruiser.  Having seen his glorious likeness, Luis Enrique Rodriguez, 18, of Anaheim, “liked” the photo of himself on the HBPD Facebook page.  He was shortly thereafter located and arrested for suspicion of vandalism.

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Police in Huntington Beach Turn to Social Media for Help to Catch Stop-Sign-Hurling “Bro”

On July 28, 2013, following the U.S. Open of Surfing in Huntington Beach, California, an array of disorderly young folk engaged in a variety of unsavory activities in downtown Huntington Beach.  Some of the primitives engaged in fighting, many taunted, some turned over portable toilets, some jumped on cars and tried to upend them, and others destroyed public and private property.  After it was toppled and broken from its foundation, a “Bro” picked up a full sized street stop sign and hurled it through the store front window of a local bicycle shop.  Sensing free n’ easy booty, opportunists in the crowd tried to help themselves to the bikes inside, but the shop was defended by shop employees.  Throughout the pandemonium, multitudes of videographers with smartphones held in the air captured a great many crimes.  Some posted video clips of the mayhem which often showed the perpetrators in action on YouTube and other social media sites.  Though many of the offenders have been arrested, thus far, stop-sign-hurler “Bro-magnon” has yet to be found.  Through social media, the Huntington Beach Police Department is now seeking the public’s help to bring him in.

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Update on Rakofsky vs. Internet

On May 17, 2011, yours truly posted an article on this blog about one Joseph Rakofsky, a newly minted lawyer who elected to represent a defendant in a murder trial.   It was not only Rakofsky’s first murder trial, it was Rakofsky’s first trial period.  The judge in the case was not amused with Rakofsky’s performance and shared some of his displeasure about it on the record and declared a mistrial.  “It appeared to the Court that there were . . . defense theories out there, but [Rakofsky had] the inability to execute those theories.  It was apparent to the Court that there was . . . not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to the detriment of Mr. Deaner.”  In addition, Judge Jackson also commented on the motion for payment by Rakofsky’s former investigator alleging that he was terminated and uncompensated based on his refusal to comply with Rakofsky’s e-mail request to “trick” a witness which the investigator characterized as “inherently unethical.”  “There’s an e-mail from you to the investigator [Bean] that you may want to look at, Mr. Rakofsky. It raises ethical issues.”

The Washington Post picked up on the story as did the American Bar Association.  So did a large number of bloggers who posted articles on their legal blogs and online comments “depicting the Deaner mistrial as an ‘object lesson’ for those unsuspecting clients that contemplate retention of inexperienced defense counsel in criminal cases based on low cost and exaggerated marketing.”

Deciding he could use more litigation experience, Rakofsky sued these media folks (at least 59 in total) asserting all manner of claims including defamation, emotional distress, and civil rights violations.  Motions to dismiss the claims soon followed.

On April 29, 2013, the court finally issued its order granting the motion to dismiss ruling that the articles written about Rakofsky were privileged and non-actionable opinion. Unless Rakofsky enjoys the taste of more crow and decides to appeal, this matter appears to have reached its welcome conclusion.

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Taking Care of Your Social Media in the Digital Afterlife

Google is now offering users a way to choose what will be done with their Google activity in the hereafter.  In its “Inactive Account Manager” feature, you can select trusted contacts to receive data from some or all of the following services: +1s; Blogger; Contacts and Circles; Drive; Gmail; Google+ Profiles, Pages and Streams; Picasa Web Albums; Google Voice and YouTube.  Or you can choose to have your data deleted — after three, six, nine or 12 months of inactivity.  Good on Google.

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Hair Stylist Sued for Friending Former Employer’s Clients on Facebook

According to a decision of a Massachusetts Superior Court, one day after beginning work in 2010 as a hair stylist for Invidia, LLC, a Sudbury, Massachusetts hair salon, Maren DiFonzo signed an agreement containing non-competition, non-solicitation and confidentiality provisions in favor of Invidia. The agreement provided that she would be restricted, after her departure from Invidia, from offering such services for a period of two years within a ten mile radius of Invidia.

After about 28 months at Invidia, Ms. DiFonzo informed her employer that she was leaving to work for another salon which was only 1.6 miles away. Four days after DiFonzo resigned from Invidia, David Paul Salons, her new employer, posted a “public announcement” on DiFonzo’s Facebook page, noting DiFonzo’s new affiliation with David Paul. One Ms. Kaiser posted a comment which said, “See you tomorrow Maren [DiFonzo]!” Ms. Kaiser then canceled her appointment at Invidia for the next day.

DiFonzo was thereafter sued by Invidia for breaching the agreement and Invidia sought a preliminary injunction to require DiFonzo to observe the provisions of the agreement until trial on the merits. To obtain such an order by the court, Invidia was required to prove that it would likely prevail at trial and that damages would be inadequate to remedy the breach.

When Invidia learned, almost immediately, that DiFonzo was going to work at David Paul Salons, it had its attorney send letters to both DiFonzo and David Paul Salons, expressing its intention to enforce the Agreement. DiFonzo’s employment at David Paul Salons lasted from August 20, 2012 to September 1, 2012. DiFonzo believed that David Paul Salons “fired” her on September 1, although Mr. Pompey, the owner of David Paul Salons, said that he told Ms. DiFonzo “to take time off from David Paul and return if she could get things straightened out with Mr. Patzleiner” of Invidia.” Mr. Pompey said that he took this action “solely [because of] the threats I received from Mr. Patzleiner” of Invidia, after a discussion with Mr. Patzleiner in which Mr. Patzleiner said that “he did not care” whether DiFonzo would solicit Invidia’s customers, but rather “he ‘needed to send a message’ to his other employees.”

In its supporting papers, Invidia pointed out that DiFonzo had become Facebook “friends” with at least eight of Invidia’s clients. Invidia also prepared a report indicating that 90 Invidia clients, formerly served by DiFonzo, “either did not keep his or her scheduled appointment, canceled, or failed to schedule a future appointment” since August 18,2012, the day of DiFonzo’s resignation.

Invidia’s owner stated that Facebook “is a significant channel of communication between Invidia and its clients.” Invidia argued that if these 90 clients are accustomed to communicating with Invidia through Facebook, they are probably Facebook-savvy enough to locate Ms. DiFonzo’s Facebook page after she left Invidia.

According to the court, however, Invidia failed to prove that damages were inadequate and failed to prove that it would likely prevail on the merits. Invidia did not show to the court’s satisfaction that DiFonzo solicited any of the purported clients via Facebook or otherwise.  The court held that: “So long as they reached out to Ms. DiFonzo and not vice versa, there is no violation of the non-solicitation provision of the Agreement.” Invidia’s request for the preliminary injunction was denied. [Court opinion.]

The court also noted: “The nature of a hair stylist’s relationships with her customers is such that it can be difficult to determine whose goodwill is being created as she pleases those customers enough to convince them to return to the salon for future visits. Given the nature of this industry, the question of whether this particular non-competition provision protects the employer’s goodwill is a difficult one, as to which Invidia’s theory may or may not ultimately carry the day.”

NOTE:  Many states allow such agreements restricting future employment that are “reasonable” as to geography and time period. With only certain narrow exceptions, such agreements in California would be void as a matter of law. See Cal. Bus. & Prof. Code § 16600 et. seq.

 

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