Monthly Archives: December 2014

Famous Trade Secret Lawsuit: “Oscar” People v. GoDaddy

Google famous trade secret lawyer
In 2012, Google won a noteworthy trade secret lawsuit.

**We’re travelling back in time to review one of the more famous trade secret cases of the past five years.**

In 2012, Google won a major trade secret battle. A complicated lawsuit, Google actually wasn’t a named party; instead, GoDaddy and The Academy of Motion Picture Arts and Sciences – the folks who give out Oscars — were. But the search engine giant was yanked into the fray because of its AdSense program.

AMPAS v. GoDaddy: A Lawsuit That Turned Into Famous Trade Secret Case Involving Google

At its core AMPAS v. GoDaddy was a cybersquatting lawsuit. In short, AMPAS felt GoDaddy’s “CashParking” program unfairly capitalized on the Academy’s name and reputation. For example, piggybacking off the “Oscar” brand, one enterprising domain marketer purchased oscarliveblogging.com and oscarlist.com and signed up for the GoDaddy parked pages revenue program. When Oscar season hit, the forward-thinking “legal cybersquatter” earned a chunk of change.

Exhibiting the inflexibility now characteristic of traditional entertainment institutions, The Academy filed a lawsuit against GoDaddy, claiming that the domain registrar was unfairly profiting from AMPAS’ name.

Wait, NO! It’s Google’s Fault!

In an attempt to deflect responsibility, both GoDaddy and AMPAS blamed Google’s AdSense program. AMPAS wanted access to AdSense secrets to make sure proper anti-copyright precautions were being taken; the group also wanted to examine Google’s revenue share calculations. Meanwhile, GoDaddy argued that Google is “solely responsible” for any misappropriated funds generated via domain advertising violations.

Hand Over Your Famous Trade Secret, Google! Judge Says: Not So Fast.

Basically, GoDaddy and AMPAS wanted Google to hand over corporate secrets, under the pretext of a lawsuit. But Judge Paul Grewal sided with the search engine, deeming the request burdensome. Grewal reasoned that legitimizing the discovery motion would unnecessarily – and unfairly — expose Google to an avalanche of third-party legal hassles.

Google has won cybersquatting/online intellectual property issue.

“AMPAS has not shown that the 4,000 pages of documents Google already produced does not provide the information it needs or why at least some of the additional discovery it wants was not obtained from GoDaddy or public sources.”

Crux of the Issue: No Bad Faith Intent To Profit

The legal heart of AMPAS v. GoDaddy was whether or not GoDaddy engaged in a “bad faith intent to profit.” In online intellectual property lawsuits, proof of a domain being used “inappropriately” isn’t enough (though, there are exceptions). Plaintiffs also need to demonstrate that the defendant is profiting from the infringement.

Consult With A Trade Secret Lawyer

Are you dealing with a trade secret hassle or online intellectual property challenge? Solve the problem today by consulting with a Kelly / Warner lawyer.

Famous Trade Secret Source Article

Bogus Online Reviews: The Case of the Competitor

competitor online trade libel
What are your legal options if a competitor posts a bad review of your business on a consumer review website?

The First Amendment serves up a whole lot of freedom, so defamation cases aren’t the easiest to win. The exception? When plaintiffs can prove that their competitors are behind the disparaging reviews.

Online Trade Libel Lawsuits Over Internet Consumer Reviews Are On The Rise

I’m sure you’ve read the memo by now, but if not: Online trade libel lawsuits are on the rise thanks to consumer review websites like Yelp, Ripoff Report and TripAdvisor.

Due to the rise in cases, many people are asking questions like: “Are these lawsuits fair?” and “Don’t First Amendment protections render most Internet defamation cases moot?” The answers: Yes and no.

The Difference Between Free Speech and Defamation / Libel

Sure, it’s 100% legal, for you, me and everyone we know, to shout-type negative opinions online. But what isn’t legal is publicly lying about a business or person. Doing so is considered defamatory, and people who engage in the practice can be successfully sued by the businesses they besmirch.

Free speech rights are broad, and opinions aren’t usually considered statements of fact.

What If My Competitor Is The Person Posting A Bad Review?

Oftentimes, though, online disparagement isn’t the work of actual customers, but instead the nasty machinations of a competitor.

You read that right: to gain market advantage, some business owners and marketers will post fake, negative testimonials about competitors’ products or services. Sometimes marketers are paid to write disparaging fake reviews; other times business owners convince friends to act as “Salieris of Defamation.” Either way, it’s an underhanded trick that has cost thousands of companies millions of dollars over the past decade.

If You Can Prove A Competitor Is Behind A Bad Review, Your Chances Of Winning An Online Trade Libel Lawsuit Skyrocket

The great news: it’s much easier to win a trade libel lawsuit if you can prove a competitor is the puppet master behind a bad online review. If you suspect a competitor is behind a spate of negative press targeting your business – you probably have the makings of an excellent defamation lawsuit.

Contact An Online Trade Libel Lawyer

Fake, defamatory consumer reviews is unfair competition at its worst. Contact Kelly / Warner if you’re the target of an online trade libel attack. We’ve won hundreds of Internet business defamation cases.

Marketing Defamation: A New Type Of Online Business Libel

marketing defamation lawyer
A new marketing trade libel lawsuit may be one of the first of its kind.

Dust off a deerstalker and limber that legal mind — for a fascinating libel lawsuit is afoot!

Video streaming company, FilmOn, is suing high-level Web analytics/Online Marketing firm, DoubleVerify, for what can only be described as “classification marketing defamation.”

FilmOn v. DoubleVerify presents a different type of libel – one singular to online marketing analysis. Plus, the case teases a new set of legal questions regarding the intersection of new-model media distribution, digital globalization and reputational torts.

The Two Sides of This Marketing Defamation Lawsuit: Filman & DoubleVerify

The Plaintiff: Filman

A decidedly 21st century venture, FilmOn deals in all things streaming. The company offers a plethora of packages ranging from global video-on-demand services to custom branded media players. According to Business Insider, “FilmOn provides hundreds of live TV channels and on-demand programming to the web, both for free and with some content behind a subscription.”

Judging from the website, it appears FilmOn doesn’t necessarily develop content, but instead provides private-label streaming — and more. For example, a convention may use FilmOn for customized video services; or, a business may order a bespoke media player.  Individual TV-streaming packages are also available. In essence, FilmOn isn’t necessarily a content creator, but instead a platform provider.

The Defendant: DoubleVerify

A high-level Web analytics firm, DoubleVerify promises clients “appropriate environments for [their] brands with real-time blocking controls.” In other words, they help you make sure your online advertisements appear in “apt” online neighborhoods.

For example, if a company is selling a family-friendly product, it probably doesn’t want to advertise on an “adult entertainment” website. DoubleVerify helps with that.

The Main Issue: Undesirable Classification

The issue anchoring FilmOn v. DoubleVerify is straightforward:

DoublVerify labeled FilmOn a “copyright violator” and “adult content distributor” in its advertising classification database.

As a result, many DoubleVerify brands opted not to have their ads appear on FilmOn’s website – which decimated the streaming company’s bottom line. After all, like many online-based businesses, Internet advertising dollars are a significant revenue stream for FilmOn.

We Are Not What You Say We Are

When FilmOn executives learned of their company’s classification in the DoubleVerify system, they contacted the analytics advertising firm, explained how their services worked, and cogently argued that, legally speaking, FilmOn is not a copyright violator, nor adult entertainment purveyor.

But their pleas failed; in the eyes of DoubleVerify, FilmOn remained an intellectual property infringing p-rn runner.

Unwilling to let the classification stand, the streaming media company filed a business lawsuit against the online marketing outfit.

What Makes The FilmOn v. DoubleVerify Business Defamation Lawsuit Interesting?

FilmOn v. DoubleVerify is worth mentioning because it speaks to the current state of the marketplace – the marketing-dependent state.

Think about it for a second: a giant chunk of the digital economy is fueled by marketing. If I were feeling cynical and extra get-off-my-lawn-y (which I’m not), I might remonstrate: “People used to make things that were then marketed, now we just market marketing!” Which is fine. The trend will continue the more digital we become. But the shift does present a new set of legal questions and implications.

The Shift To Big-Data Marketing: The Legal Implications

Will this tectonic shift to big-data marketing impact business law? Marketing defamation law?

Reputation classifications will become more popular, and lawsuits like FilmOn v. DoubleVerify will become the norm. Moving forward, businesses must be diligent about monitoring online reputations — not just online, but in brand databases.

Marketing, Subjectivity and Defamation Law

As the marketing industry metastasizes, questions regarding subjectivity, as it relates to defamation law, will come to the fore. Cloud- and platform-oriented services, as opposed to content-oriented services, will present new legal quandaries in the coming years. Will Section 230 of the Communications Decency Act suffice?

Soon, courts will need to establish case law addressing “classification marketing defamation” as a separate phenomenon.

 Source

Professional Defamation Case Study: Resigned CFO v. Executives

professional defamation
A professional defamation case study

Walgreen Co.’s former Chief Financial Officer, Wade Miquelon, filed a libel lawsuit against the pharmacy conglomerate. Miquelon insists that both Walgreen’s CEO and the company’s top shareholder illegally besmirched his character via a pair of Wall Street Journal articles and a handful of emails.

We know we’re behind “breaking” on this case, but since our firm focuses on professional defamation litigation, for blogging purposes, we wanted to take a close look at the lawsuit. Specifically, we want to consider the question: Can Miquelon win?

Professional Defamation Case Study: Walgreen’s CFO v. Walgreen’s

Things Were Already Tense At The Office

According to Miquelon, the seed of this professional defamation saga took root last year. At the time a beleaguered entity, Walgreen was stuck between a tax-inversion inconvenience and activist investors. Then a bad 2013 morphed into a worse 2014, when a $1 billion mistake stained the company’s August financial disclosure.

CFO Says, “See Ya”

In the midst of the turmoil, Walgreen’s CFO – Wade Miquelon – resigned. He cited family and further opportunities as reasons for departure. But the financial books were less-than-ideal, and the search was on for a scapegoat. To some people, it seemed like Miquelon’s leaving provided a convenient, public fall guy for extant Walgreen executives.

Executives’ Disparaging Comments Published In The WSJ

Cue a pair of Wall Street Journal articles wherein Walgreen CEO, Gregory Wasson, and the company’s largest shareholder, Stefano Pessina, are quoted as holding Miquelon “personally responsible” for the corporation’s $1 billion mistake.

Additionally, at least according to Miquelon’s lawsuit, Walgreen executives were also regaling investors with disparaging tales of ex-CFO Miquelon during this same period.

Frustrated by the finger pointing – and worried it might affect future employment opportunities – Miquelon filed a defamation of character lawsuit against Walgreen Co. – specifically Wasson and Pessina.

Miquelon’s Business-Related Defamation of Character Lawsuit Claims: Truth & Financial Disclosures

Miquelon swears he warned Walgreen brass of impending financial disquiet. He says he urged them to “publicly report the truth.” Miquelon also suggests that Wesson and Pessina counselled him to “tamper with the earnings forecast.”

The lawsuit also highlights instances wherein Wasson and Pessina allegedly implicated or insinuated Miquelon as the cause of Walgreen’s “bungled” bottom line. And to bolster his defamation argument, Miquelon included emails, text messages and corporate documents wherein Wasson and Pessina praised his competence.

What Miquelon Must Prove To Win This Professional Defamation Lawsuit

To win a defamation lawsuit in the U.S., plaintiffs must prove at least the following:

  • The defendant made a false, unprivileged statement of fact about the plaintiff;
  • The statement caused either reputational or material harm to the plaintiff; and
  • The defendant acted either negligently or with actual malice.

To wit, in this case, Miquelon must prove:

  • He was not responsible for Walgreen’s financial predicament. He’s already started building this argument by including praising messages from Wesson and Pessina in his filing. But in order to win, Miquelon needs more.
  • As for proving harm or loss, Miquelon’s lawyer elaborated:

“The unanswered articles have had the inevitable negative impact on Miquelon…Miquelon has gone from being a 49-year-old former CFO of a Fortune 30 company … who had Chief Operating Officer … and CFO opportunities in the marketplace, to being a man with no such options and no recourse other than this lawsuit.”

Can Walgreen Co. Get The Records Sealed To Prevent Proceedings From Affecting Current Business Deals?

When Miquelon’s lawsuit landed, Walgreen attorneys quickly moved to get the proceedings sealed. Unfortunately for the corporation, the judge didn’t grant the request right away, instead opting to delay a decision until November 6th in order to carefully consider the motion. [UPDATE: Walgreen did get the gag order at the beginning of November.]

It’s still anybody’s guess who will win this professional defamation lawsuit. It’s a case that will stand or fall on the strength of lawyers’ arguments. If it gets past the first set of dismissal motions, discovery will undoubtedly play a significant role in this suit.

The case is Miquelon v. Walgreen Co., 14-ch-16825, Cook County, Illinois Circuit Court

Dance Moms Defamation: A Look At The Case That Could Have Been

Oh lo, fellow celebrity defamation enthusiast! The legal gods have spoken, and the Dance Moms defamation trial is a no-go. A judge ruled that Kelly Hyland’s slander claims against bedraggled TV Dance Coach Abby Lee Miller are meritless. (But! Hyland’s breach of contract charge against the Dance Moms production company is headed to trial.)

Dance Moms Defamation: A Look Back In Color

Despite Dance Mom Kelly Hyland’s slander claims not cutting legal muster, let’s look back at the case – because in the legal blogging business, it’s not often you can litter a post with LOL-media. Besides, there’s footage of the events, so why not use ‘em!

***

In the beginning, the Hyland sisters were just two American tweens who took dance classes at Abby Lee Miller’s academy.

Then, one day, the Fairy Reality TV Godmother touched down at Abby Lee’s dance factory. Kazzam! Stars were born!

But then reality raillery got real – and physical. Accusations were lobbed, fists were flung and arrests were made.

Seasoned in the ways of reality TV stardom, after the incident, Abby Lee cried on the shoulders of four other people well-versed in on-air brawling (albeit verbal), the hosts of The View.

And bingo!  Hyland fired back with a Dance Moms defamation lawsuit alleging slander and breach of contract (with the production company). The asking price: $5 million in punitive damages.

From the lawsuit:
“the producers of the show [Collins Avenue Entertainment], in an effort to attract ratings and viewership, encourage and facilitate conflicts between Miller on the one hand and the young girl dancers and their mothers on the other.”

But alas, the presiding judge disagreed. She found no grounds for a valid Dance Moms defamation claim.

 

Pro-tip and tl;dr: if you sign on that Faustian reality TV contract line, don’t hope to launch a successful defamation lawsuit if something goes wrong on-air.