My Space Not Liable for Sexual Assaults

Various girls aged 13 to 15 brought suit against MySpace Incorporated, the owner of the social networking site myspace.com, after they were sexually assaulted by men they met on the site. The cases were dismissed at the trial court level and consolidated for appeal. Plaintiffs argued that liability was premised on a breach of MySpace's legal duty to provide reasonable safety measures to ensure sexual predators did not gain otherwise unavailable access to minors through the myspace site, and contended the suit thus fell outside of the immunities granted by the Comunications Deceny Act ("CDA"). In a decision issued on June 30, 2009, a California Court of Appeal disagreed. The appellate court found that MySpace: 1) was an interactive computer services provider, 2) was not an information content provider as to the disputed activity, and 3) that plaintiffs were seeking to hold MySpace liable for information originating with a third party user of its services. As such, the Court held, MySpace was immune from liability under the CDA.

Copyright Act--Attorneys' Fees

A prevailing party in copyright actions may recover attorneys' fees under the Copyright Act. In Cadkin v. Loose, decided on June 26, 2009, the Ninth Circuit Court of Appeals held that a defendant is not entitled to attorneys' fees as a prevailing party under the Copyright Act when a plaintiff dismisses without prejudice a complaint for copyright infringement. The Cadkin decision represents a change in the law in the Ninth Circuit.

The Ninth Circuit in Cadkin found that a 2001 Supreme Court decision interpreting the definition of "prevailing party" in the context of the Fair Housing Amendments Act applied. The key inquiry in the Supreme Court case, Buckhannon v. Care Home Inc., was whether there had been a material alteration in the relationship of the parties. Since the plaintiffs in Cadkin voluntarily dismissed their copyright claim, they were free to re-file the case in the future and, as such, there was no material alteration in the relationship.

The Ninth Circuit now joins the First, Sixth, and Seventh Circuit Courts of Appeal in holding that Buckhannon applies to Copyright Act claims. No federal circuit court of appeal has held to the contrary.

Terrorist Can Sue Former Government Lawyer

After the terrorist attack on September 11, 2001, the Bush administration faced the novel task of ascertaining how to respond to a murderous attack on American soil by enemies who were not a formal country. Among other things, it thus requested legal analysis of the myriad issues raised by this unprecedented situation. One of the attorneys who provided legal analysis and memoranda is John Yoo, then a Deputy Attorney General at the Office of Legal Counsel and now a law professor at Berkeley.

Brooklyn born Jose Padilla is a former gang-banger with a lengthy criminal record who apparently converted to Islam while in prison for manslaughter. Subsequent to his conversion and release from prison, he traveled to, among other places, Afghanistan, Pakistan, and Saudi Arabia. Upon his return to the United States in 2002, he was arrested on suspicion of being involved with a plan to set off a “dirty bomb” within the United States.

Padilla was later classified as an “enemy combatant” and transferred to a military prison. He claims that while he was there he was subject to sleep and sensory deprivation, threats, and that he was forced to sit and stand. Padilla never claimed to have been subject to water boarding.

Padilla’s detention as an enemy combatant was upheld by a United States Court of Appeal on the basis he was closely associated with al Qaeda, had engaged in preparation of acts of terror, and was a threat to the security of the United States. A second legal challenge by Padilla to his detention was also denied by the courts.

Padilla was never tried on the charges for which he was initially detained but in August, 2007, following a three-month trial in a federal court in Miami, he was convicted of conspiracy to murder, kidnap, and maim, and other counts of aiding Islamic terrorists, for which he is now serving his 17-year prison sentence.

In January, 2008, Padilla sued attorney John Woo for damages arising from his detention as an enemy combatant. The government moved to dismiss the lawsuit, including based on governmental immunity. In a decision issued on June 12, 2009 that has surprised many legal pundits, United States District Court Judge Jeffrey White denied the government’s motion and held that the lawsuit against attorney Yoo could proceed. According to Judge White, "government lawyers are responsible for the foreseeable consequences of their conduct."

Of course, attorney John Yoo never arrested, detained, or interrogated Padilla. But--according to Judge White anyhow--Yoo’s legal analysis and memoranda may have “set in motion a series of events” that Padilla could show resulted in the deprivation of his constitutional rights.

No word yet from the Obama administration’s Justice Department on whether the government intends to appeal this decision. Many legal experts do expect such an appeal.

A separate lawsuit by Padilla against former Attorney General John Ashcroft has been filed in federal court in South Carolina

California Supreme Court Upholds Ban on Same Sex Marriage

In a decision announced on May 26, 2009, the California Supreme Court upheld Proposition 8, the California voter initiative that bans same-sex marriages. The Court held that the roughly 18,000 gay couples who married while same sex marriages were legal in California will not have their marriages invalidated as laws are generally not applied retroactively and there was no language in Prop 8 to vary the general rule in that regard.
The California Supreme Court had previously upheld same sex marriages in a decision in May, 2008. Same sex marriage opponents responded with a voter initiative, Proposition 8, to amend the state constitution to prohibit same sex marriages. The Court has now held the voter initiative did not violate the Equal Protection Clause of the state constitution and that the Court was required to uphold California's initiative process.
California does have laws granting legal rights and protections for registered "domestic partners" and laws prohibiting discrimination based on marital status and sexual orientation.
Same sex marriage is presently legal in Iowa, Maine, Vermont, Massachusetts, and Connecticut.

Legal Fees

In the April, 2008 issue of California Lawyer Magazine, the steering committee chair of the Association of Corporate Counsel is quoted as stating that many companies are shifting a sizeable portion of their legal work to regional and boutique law firms (and away from the larger national and international firms). The chairperson stated that in-house attorneys for these companies reported that the regional and boutique firms demonstrated "equal or greater expertise, gave more practical legal advice, and were much more responsive to client needs--all at less cost."

South Carolina Stops Foreclosures

The South Carolina Supreme Court has issued a restraining order preventing foreclosure sales on properties backed by mortgages held by Fannie Mae, Freddie Mac, or any mortgage lender who has received federal assistance monies. The restraining order is intended to allow homeowners to seek to take advantage of new federal programs to refinance mortgages.

Arbitration

A Senate Bill sponsored by Russ Feingold of Wisconsin would prohibit enforcement of pre-dispute arbitration clauses in employment, consumer, franchise, and civil rights disputes. Similar legislation has been introduced in the House of Representatives by Representative Hank Johnson of Georgia. While this type of proposed legislation introduced by Sen. Feingold and Rep. Johnson did not make it beyond the committee stage in the prior session of Congress, the present attempt has a much better chance of success given the Democratic party's present majorities in the House and Senate. Groups who support the legislation argue that mandatory arbitration clauses are unfair and deny a person her right to a jury trial. Opponents contend that arbitration provides a fair and quicker dispute resolution system. I will provide updates as necessary on this proposed legislation.