ELIZABETH, N.J. - A blogger has made the necessary prima facie showing that her online posts qualify as journalism per the standards of Too Much Media LLC v. Hale (206 N.J. 209 $(2011$)), a New Jersey judge ruled April 12, finding that, as such, the blogger qualified for protection under the state's shield law (In Re January 11, 2013 subpoena by the Grand Jury of Union Co., N.J., No. 13-0001, N.J. Super., Union Co.).
SAN FRANCISCO - Because Yahoo! Inc. complied with two grand jury subpoenas in good faith when it supplied the government with subscriber information, a Ninth Circuit U.S. Court of Appeals panel on April 15 found that the digital media company was immune from lawsuit from the subject of the subpoenas under the provisions of the Stored Communications Act (SCA) (Fayelynn Sams v. Yahoo! Inc., No. 11-16938, 9th Cir.; 2013 U.S. App. LEXIS 7464).
WILMINGTON, Del. - The reorganized version of bankrupt media entity Tribune Co. on March 28 filed a brief in the U.S. Bankruptcy Court for the District of Delaware objecting to $13.25 million in "substantial contribution" applications filed by the Law Debenture Trust Company of New York (LDTCNY) and the Wilmington Trust Co., contending that they are not entitled to fees and expenses for services rendered as indenture trustees (In Re: Tribune Company, No. 08-13141, Chapter 11, D. Del. Bkcy.).
NEW YORK - Digital First Media (DFM), the parent company of bankrupt newspaper company Journal Register Co. (JRC), announced March 28 that the federal bankruptcy judge presiding over its case has granted approval of its motion to sell JRC's assets to 21st CMH Acquisition Co. (In Re: Journal Register Company, No. 12-13774, Chapter 11, S.D. N.Y. Bkcy.).
WASHINGTON, D.C. - A decision by the Board of Patent Appeals & Interferences (BPAI) that rejected various claims of an online advertising patent was vacated in part on March 7 by the Federal Circuit U.S. Court of Appeals (Function Media LLC v. David J. Kappos, Director, U.S. Patent and Trademark Office and Google Inc., No. 12-1380, Fed. Cir.).
ATLANTA - A customer of Nielsen Media Research Inc. failed to establish that it was an efficient enforcer of antitrust laws because it did not demonstrate that any potential competitors were willing and able to provide local television viewership ratings in the Miami area, the 11th Circuit U.S. Court of Appeals said March 4 in affirming that the customer lacked antitrust standing (Sunbeam Television Corp. v. Nielsen Media Research, Inc., No. 11-10901, 11th Cir.; 2013 U.S. App. LEXIS 4452).
WILMINGTON, Del. - Wilmington Trust Co., as indenture trustee for bankrupt media entity Tribune Co., on March 1 asserted a claim for more than $7.14 million related to costs it incurred related to an examiner's investigation of Tribune's failed leveraged buyout (LBO). Wilmington Trust argues that the examiner's work resulted in catching fraud as well as renegotiating Tribune's successful plan of reorganization (In Re: Tribune Company, No. 08-13141, Chapter 11, D. Del. Bkcy.).
NEWARK, N.J. - Two days after a New Jersey federal judge denied most of its motion to conduct discovery related to 11 John Does in a file-sharing lawsuit, an adult entertainment firm on Feb. 28 voluntarily dismissed its copyright infringement claims against all of the Doe defendants (Malibu Media LLC v. John Does 1-11, No. 2:12-cv-07615, D. N.J; 2013 U.S. Dist. LEXIS 26217).
WILMINGTON, Del. - The litigation trustee in the Chapter 11 bankruptcy of media entity Tribune Co. on Feb. 20 moved in the U.S. Bankruptcy Court for the District of Delaware for authorization to be substituted as the plaintiff in certain adversary proceedings seeking to recover fraudulent transfers pertaining to the leveraged buyout of Tribune belonging to the litigation trust (In Re: Tribune Company, No. 08-13141, Chapter 11, D. Del. Bkcy.).
LAS VEGAS - An adult entertainment site has established a prima facie case of U.S. jurisdiction over the operators of a foreign website to allow copyright claims against it to proceed, a Nevada federal judge ruled Feb. 14, denying a motion to dismiss (Liberty Media Holdings LLC v. Sergej Letyagin, et al., No. 2:12-cv-00923, D. Nev.; 2013 U.S. Dist. LEXIS 20103).
WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals on Feb. 13 affirmed a Texas federal magistrate judge's decision to invalidate an online advertising facilitation patent as indefinite, as well as a jury's subsequent verdict that two related patents are invalid and not infringed by Google Inc. (Function Media LLC v. Google Inc., No. 12-1020, Fed. Cir.).
NEW ORLEANS - Allegations of copyright infringement levied against NBCUniversal Media LLC and Syfy Media Productions LLC will proceed, thanks to a Feb. 4 ruling by a Louisiana federal judge (Preston Asevedo v. NBCUniversal Media LLC et al., No. 12-2005, E.D. La.).
OAKLAND, Calif. - A California federal judge on Jan. 29 refused to strike a motion for class certification in a lawsuit filed by former student athletes who claim that the National Collegiate Athletic Association (NCAA), Electronic Arts Inc. and Collegiate Licensing Co. violated Section 1 of the Sherman act by agreeing to fix at zero the amount of compensation antitrust plaintiffs were allowed to receive under NCAA rules for the use of their names, images and likenesses in products or media (In Re NCAA Student-Athlete Name & Likeness Licensing Litigation, No. 09-1967, N.D. Calif.).
CHICAGO - The Seventh Circuit U.S. Court of Appeals on Jan. 23 ruled that an Indiana statute that prohibits most registered sex offenders from using social networking websites, instant messaging services and chat programs is unconstitutional (John Doe v. Prosecutor, Marion County, Indiana, No. 12-2512, 7th Cir.; 2013 U.S. App. LEXIS 1528).
BOSTON - Allegations of copyright infringement levied in connection with 21 songs owned by two Latin American music-licensing companies were properly rejected on summary judgment and later at trial, the Second Circuit U.S. Court of Appeals ruled Jan. 15 (Latin American Music Company, et al. v. Media Power Group, et al., No. 11-2108, 1st Cir.).
WASHINGTON, D.C. - A patent assignee on Jan. 7 failed to persuade the U.S. Supreme Court to take up a dispute over a method for converting two-dimensional movies into three-dimensional movies (Three-Dimensional Media Group, Ltd. v. David J. Kappos, No. 12-48, U.S. Sup.).
WILMINGTON, Del. - Following a nine-day trial, a jury empanelled before U.S. Judge Sue L. Robinson of the District of Delaware on Dec. 13 deemed Apple Inc. liable for patent infringement (MobileMedia Ideas LLC v. Apple Inc., No. 10-258, D. Del.).
DENVER - Finding that the John Doe defendants in a file-sharing case "would suffer significant undue prejudice if forced to litigate this action as a group," a Colorado federal judge on Dec. 6 sua sponte dismissed all but one of the Does as improperly joined (Malibu Media LLC v. John Does 1-19,, No. 1:12-cv-03168, D. Colo.; 2012 U.S. Dist. LEXIS 173858).
FORT WAYNE, Ind. - An adult entertainment firm has sufficiently established that the Doe defendants that allegedly downloaded and shared its copyrighted work on the Internet did so via the same "swarm" and series of transactions to justify joinder at this stage in the litigation, an Indiana federal magistrate judge ruled Dec. 3, denying motions to sever by two of the Does (Malibu Media LLC v. John Does 1-14, No. 1:12-cv-263, N.D. Ind.; 2012 U.S. Dist. LEXIS 170987).
WILMINGTON, Del. - Walt Disney Studios Motion Picture Production on Dec. 3 filed a brief in the U.S. Bankruptcy Court for the District of Delaware objecting to bankrupt Digital Domain Media Group's (DDMG) motion seeking approval to sell assets and contracts free and clear of all liens, contending that Disney still has patent rights (In Re: DDMG Estate, No. 12-12568, Chapter 11, D. Del. Bkcy.).
NEW YORK - Finding no compelling reason to permit a John Doe defendant to proceed under a fictitious name, a New York federal magistrate judge on Nov. 27 ordered that a blogger be named in a copyright infringement lawsuit against him or her (North Jersey Media Group Inc. v. John Doe Nos. 1-5 d/b/a Stoopidhousewives.com, No. 1:12-cv-06152, S.D. N.Y.; 2012 U.S. Dist. LEXIS 167317).
NEW YORK - Executors of a terminated employee's estate failed to prove that the employer's stated reason for the discharge - reducing costs during economic downturn - was pretextual, the Second Circuit U.S. Court of Appeals ruled Nov. 5 in affirming that the employer did not interfere with health plan benefits in violation of Section 510 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C.S. § 1001 et seq. (John Gioia, et al. v. Forbes Media LLC, et al., No. 11-4406, 2nd Cir.; 2012 U.S. App. LEXIS 22689).
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 29 heard arguments on the ability of a group of respondents to challenge the constitutionality of a law that its opponents characterize as "dragnet surveillance" related to the power that it gives the executive branch of the government to monitor telephone and email communication involving foreign parties (John R. Clapper Jr., et al. v. Amnesty International USA, et al., No. 11-1025, U..S. Sup.).
In July 2008, a group of attorneys and human rights, labor, legal and media organizations sued Director of National Intelligence John M. McConnell, Director of the National Security Agency and Chief of the Central Security Service Lt. Gen. Keith B. Alexander and Attorney General Michael B. Mukasey, in their official capacities, in the U.S. District Court for Southern District of New York. They sought to bring a constitutional challenge to the FISA (Foreign Intelligence Surveillance Act of 1978) Amendments Act of 2008 (FAA), which was signed into law the same day the complaint was filed. James R. Clapper Jr., Keith B. Alexander and Eric H. Holder Jr., respectively, were later substituted as defendants when they assumed the positions held by their predecessors.
The plaintiffs, led by Amnesty International USA, alleged that under the FAA, the executive branch of the government is permitted to monitor international telephone and e-mail communications. It stipulates that the government may not "intentionally target any person known at the time of the acquisition to be located in the United States." However, the plaintiffs claimed in their complaint that the amendment will allow the collection of all international communications by U.S. citizens and domestic communications if there is uncertainty about the location of one of the communicating parties. In addition, the plaintiffs alleged that under the amendment, the government does not have to show the Foreign Intelligence Surveillance Court, before getting approval to conduct the surveillance, that any of the targets are foreign agents, connected with terrorism or engaged in criminal activity.
Judgment And Reversal
The trial court granted the government's motion for summary judgment, finding that the plaintiffs "failed to establish standing to challenge the constitutionality of the FAA on the basis of their fear of surveillance." The court found that their "abstract fear that their communications will be monitored under the FAA" was insufficient to establish standing.
On appeal, a Second Circuit U.S. Court of Appeals panel reversed, finding that the plaintiffs had standing to sue. In a March 2011 ruling, the panel held that "[t]he plaintiffs' uncontroverted testimony that they fear their sensitive international electronic communications being monitored and that they have taken costly measures to avoid being monitored - because we deem that fear and those actions to be reasonable in the circumstances of this case - establishes injuries in fact that we find are causally linked to the allegedly unconstitutional FAA."
In December, the government filed a petition for a writ of certiorari with the Supreme Court, which was granted in May.
Cascade Of Speculation
Justice Sonia Sotomayor questioned Solicitor General Donald B. Verrilli Jr., who represented the government, as to who, under the government's position, has standing to challenge the FAA. Verrilli stated that standing exists when "an aggrieved person, someone who is party to a communication, gets notice that the government intends to introduce information in a proceeding against them." He also argued that "electronic communication service providers can challenge authorizations under the act" and noted the importance of "the Article III standing requirement of injury in fact" to establish standing.
Verrilli further stressed that "[t]he government conduct being challenged has to either have occurred or be certainly impending." But in the present case, Verrilli said the plaintiffs had only a "cascade of speculation" about the executive branch's "intelligence priorities and objectives," how the branch's "officials are going to exercise their judgment to translate those priorities into procedures" and "the independent judgment of an Article III court assessing the lawfulness of those procedures and assessing" Fourth Amendment compliance.
The justices and Verrilli also dialogued about whether injury could be claimed for surveillance under the FAA when surveillance might be proper under another existing authority. Also, the justices questioned the possibility of how many people might be subject to the "extraordinarily wide-reaching power" conferred by the statute, but never be aware of it and, as such, never have standing to sue.
Justices Stephen G. Breyer and Elena Kagan referred to the example of plaintiff Scott McKay, a lawyer who represented two purported al Qaeda operatives who are accused of many crimes. McKay stated that the government intercepted some 10,000 of his phone calls and 20,000 emails involving his clients. The justices questioned whether the existence of the FAA creates an ethics problem for such a lawyer and requires him to take specific steps to avoid surveillance in accordance with his duties and, therefore, whether this represents an injury in fact.
Verrilli turned the focus back to the "targeting requirements, minimization requirements [and] certification by the . . . highest levels of the executive" branch, as well as "independent review by an Article III judge to ensure compliance" with the statute and the Fourth Amendment. As such, Verrilli suggested that the FAA does not represent "unbounded authority" as its challengers suggest.
Jameel Jaffer, representing the plaintiffs, said they "have standing here because there is a substantial risk that their communications will be acquired under the act and because this substantial risk has effectively compelled them to take immediate measures to protect information that is sensitive or privileged." Jaffer stressed that the plaintiffs communicate "foreign intelligence information," which is "the kind of information that the statute expressly authorizes the Government to collect, to retain and disseminate."
Chief Justice John G. Roberts Jr. focused on the "vast difference" between the "certainly impending" standard and the "substantial risk" standard, stating that the former was the proper standard before the court. Jaffer countered that the standard at issue in prior Supreme Court constitutionality cases was a question of whether there is a substantial risk. In the present case, Jaffer stated that there is knowledge that the government is using the statute because it has acknowledges such use, establishing "a certainty of Government conduct."
No Probable Cause
Jaffer stated that the plaintiffs took issue with the FAA because it did not have the same "probable cause requirement" that FISA did, subjecting a broader group of people to potential surveillance by the government. As a result, Jaffer said parties such as his clients have to take precautions, "some of which are very costly," when speaking with clients that they think "the government might believe to be a foreign agent."
Plaintiffs, and those injured by FAA, Jaffer said, include journalists "who report on war zones or . . . investigate human rights abuses in places . . . where the government is likely to" "mine Americans' international communications for foreigner intelligence information." He noted that plaintiffs include people who represent defendants that have been charged in "terrorism crime and foreign intelligence related crimes."
Verrilli is the solicitor general with the U.S. Department of Justice in Washington. Jaffer is staff attorney with the American Civil Liberties Union in New York.
[Editor's Note: Lexis subscribers may download the document using the link above. The document(s) are also available at http://www.mealeysonline.com/ or by calling the Customer Support Department at 1-800-833-9844.]
Mealey's is now available in eBook format!
WILMINGTON, Del. - Bankrupt special effects company Digital Domain Media Group Inc., which worked on the Academy-Award-winning "Titanic," on Sept. 23 selected a bid of $36.7 million for its assets (In Re: Digital Domain Media Group Inc., No. 12-12568, Chapter 11, D. Del. Bkcy.). Subscribers may view the notice available within the full article.
WILMINGTON, Del. - International Media Group Inc. (IMG), which initially filed for Chapter 11 bankruptcy, moved in the U.S. Bankruptcy Court for the District of Delaware on Sept. 21 to convert its case to a Chapter 7 bankruptcy (In Re: International Media Group Inc., No. 12-10140, Chapter 11, D. Del. Bkcy.). Subscribers may view the motion available within the full article.