RipOffReport Litigation

At one point I was tempted to post on all of the litigation pending against RipOffReport.com, but soon realized what a massive undertaking that would be. Yesterday, however, I found a blogger who has already taken on the challenge. Please note that I haven’t a clue what a “Mozzer” is.

I could be wrong, but I believe the author has been involved in litigation with RipOffReport in the past.

Oral Argument in Craigslist litigation

The Seventh Circuit will hear oral argument (fifteen minutes per side) in Chicago Lawyers Committee for Civil Rights Under the Law, Inc. v. Craigslist Inc. on February 15, 2008. We won’t know the panel’s composition until the morning of, but I’m crossing my fingers Judge Easterbrook will be selected so we can see how his thinking has evolved, if at all, since the Circuit’s 2003 GTE ruling. The GTE panel also included Circuit Judges Bauer and Wood.

While I don’t expect to be live-blogging the argument, I will certainly be there scratching out some notes. Please tap me (the tie-less guy) on the shoulder if you’re able to make it to Court that day.

For a refresher, check out my 2006 guest post on May It Please The Court. Interested in reading the appellate briefs? Click here, and enter the case number (07-1101).

Guest Post: Lawsuit challenges online gambling ban in Washington state

In addition to being a skilled chess player, my partner John Leonard is also no stranger to the inside of a casino. While I don’t think he’s ever made a virtual wager, I thought he’d enjoy summarizing the following case, which challenges Washington’s Internet gambling prohibition. Thank you to Mr. Rousso for sharing the discovery request linked to below. -MHE

On the first day of the 2007 World Series of Poker Main Event, Lee Rousso, a resident of King County, State of Washington, filed a lawsuit in the King County Circuit Court asking that that State’s law barring internet gambling be declared unconstitutional. The law was passed in 2006, and became effective in June of that year.

According to the complaint filed in the suit, Rousso, from June, 2003 to June, 2007, regularly logged on to pokerstars.com, described as the “world’s leading internet poker site,” and played poker against other Pokerstar customers. Although most of Rousso’s internet poker playing involved “play money,” some of the games were allegedly played for virtual chips that represented real money.

Noting, among other things, that internet poker is not illegal under federal law, and that gambling, including poker, are legal in the State of Washington, Rousso charged in his suit that the Washington law outlawing internet poker was unconstitutional in that it violated the Commerce Clause of the United States Constitution because it: (1) discriminates against internet poker in favor of legal “brick-and-mortar” casinos in the State of Washington; (2) places an undue burden on interstate commerce; (3) places an undue burden on international commerce; and (4) infringes upon the federal regulation of internet gambling, and violates the General Agreement on Trade & Tariffs (the “GATT Treaty”). Rousso also charged that the law violates the U.S. Constitution’s prohibitions against cruel and unusual punishment, and because of its vagueness, violates the 14th Amendment’s guarantee of due process of law to citizens of the several states.

Unfortunately for Rousso, despite his impressive complaint, the suit has thus far not gone well. In response to his complaint, the State of Washington served upon him a demand for production of information that, according to Rousso, is confidential and protected from disclosure by the Fifth Amendment’s protection against self-incrimination. The lower court then denied Rousso’s request for a protective order with respect to the production of the requested information, a decision that Rousso has appealed to the Division One Court of Appeals.

However, conceding that the State had won the first round of the case, Rousso has stated that he has waiting in the wings a substitute plaintiff who could come in to the case, or perhaps file a new case, pursuing the same constitutional challenges to the Washington law that are at issue in the present lawsuit.

I’ll be watching this one closely, and will update as further information becomes available. Knowing, however, how difficult it is to get a state statute declared violative of the U.S. Constitution, I believe that Mr. Rousso is in for an uphill fight.

One question that comes to mind is why Mr. Rousso did not seek to have the statute declared invalid under the Washington State Constitution. While I readily admit that I am not a Washington lawyer, and know nothing about the Washington Constitution, I am aware of the growing trend of citizens of the states seeking relief from allegedly oppressive statutes under their respective state constitutions, which in many cases offer expanded constitutional protections not available under the Constitution of the United States. Just a thought.

I pressed John for an example, and here’s what he came up with:

It appears to me that the following articles from Article I, Declaration of Rights, of the Washington Constitution apply directly to Mr. Rousso’s case. This is especially true of Article 12. Article 8 may not be directly applicable because it deals with the irrevocable grant of privileges and immunities, which I don’t think is what is involved in the statute that Mr. Rousso is challenging. I don’t understand why he didn’t raise these State Constitutional provisions in his Complaint.

SECTION 12 SPECIAL PRIVILEGES AND IMMUNITIES PROHIBITED.
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

SECTION 8 IRREVOCABLE PRIVILEGE, FRANCHISE OR IMMUNITY PROHIBITED.
No law granting irrevocably any privilege, franchise or immunity, shall be passed by the legislature.

Thanks again, John, for the guest post. For anyone interested, here’s the press release Mr. Rousso issued when the suit was first filed.

Facebook agrees to Judgment in Putative Class Action

Eric Goldman and Venkat Balasubramani previously blogged about the filing of a class action suit against Facebook earlier this year in California. My thoughts after reading the complaint several times was that while I agree that Section 230 would likely immunize Facebook for the content of unwelcome text or SMS messages, the statute would not necessarily protect Facebook from potential liability for the mechanism itself and/or related policies. Well, don’t expect answers to these questions any time soon.

While it has apparently not yet been entered by the Court, yesterday Facebook filed a Stipulated Entry of Judgment of Dismissal with Prejudice and General Release. Per the stipulation, Facebook has agreed to implement a “notice system” whereby it will provide text message recipients with a way to stop receiving such messages from Facebook (although the stipulation contains some language suggesting that this notice will only be included in every 15th message transmitted by Facebook), identify Facebook as the sender of such messages, and press mobile carriers to utilize “deactivation logs” to reduce the frequency of undesired text messages transmitted by Facebook. Facebook has also committed to pay plaintiff and her attorneys in amounts to be determined by the Court.

No doubt Section 230 would have found its way into a Facebook motion and/or answer, given Facebook’s assertion in Paragraph 8 of the stipulation that it didn’t do anything wrong, and that “it is immune from any liability under the [CDA].” (emphasis added)

UPDATE:  On January 23, 2008, Judge Fogel entered a dismissal order terminating this case.

Guest Post: Sloan v. Truong, et al (S.D.N.Y.)

While he may not be a “Grandmaster,” my law partner John Leonard is our office chess wizard. So naturally I asked him to guest post on the recently filed Sloan v. Truong, et al case, which raises at least one Section 230 issue. Of course one read of the complaint will tell you that this case is about much more than intermediary liability, but I asked John to try to confine his summary to the Section 230 issue.

Please note that the documents linked to in John’s post are not court-filed versions, thus he/I cannot attest to their authenticity. My understanding is that because Mr. Sloan filed pro se, the Clerk will not post certain filings on PACER.

Take it away, John.

For those of you who play chess, or follow the Machiavellian twists and turns in the world of professional chess, and are interested in issues involving online liability, an interesting story is evolving in Federal Court in New York. There, in the United States District Court for the Southern District of New York, former U.S. Chess Federation board member Sam Sloan has filed a multi-million dollar lawsuit against former Women’s World Chess Champion Susan Polgar, her husband Paul Truong, and many others, alleging, among other things, that Ms. Polgar and Mr. Truong falsely posted over the Internet “thousands of obscene messages,” under the name of Sam Sloan. (The author or authors of said postings being referred to by Mr. Sloan as the “Fake Sam Sloan.”) Although Mr. Sloan’s 27-page long pro se complaint is quite a read, and the author of this post expresses no opinion on the merits of his case against Ms. Polgar and Mr. Truong, or any of the other defendants save one, of interest to those who follow this site is the fact that Mr. Sloan also named as a defendant Texas Tech University, where Ms. Polgar and Mr. Truong are presently (according to Sloan’s complaint) employed.

In his complaint, at paragraph 6, Mr. Sloan alleges that Polgar and Truong have posted obscene Fake Sam Sloan messages from the university computers at Texas Tech, and that (at paragraph 41) “Texas Tech University has allowed Polgar and Truong to use [its] computers to impersonate Sam Sloan…and to post Fake Sam Sloan…messages on the Internet.”

Obviously, these allegations raise questions under the “immunity” provisions of the CDA. Significantly, and perhaps fatally to Mr. Sloan’s complaint in its present form, Sloan’s complaint does not allege that Texas Tech knowingly allowed the use of computers to post and transmit the alleged obscene Fake Sam Sloan messages, although perhaps knowledge could be implied from the above-quoted language from the complaint. No doubt such an allegation would be difficult to prove. But perhaps the more fundamental question is whether Texas Tech qualifies for Section 230(c)(1) immunity in the first place.

I believe that it does, following the reasoning of the California Sixth District Court of Appeals decision in Delfino v. Agilent Technologies, 145 Cal. App. 4th 790, 52 Cal. Rptr.3d 376 (Dec. 14, 2006). There, the Court considered whether a corporate employer that makes its computers available to its employees is a “provider of an interactive computer service” within the meaning of the CDA. While acknowledging that there is no case directly on this point, the Court also noted that “several commentators have opined that an employer that provides its employees with Internet access through the company’s internal computer system is among the class of parties potentially immune under the CDA.”

Interestingly, the Court in Delfino also addressed the question of whether the employer who provided the computer access could be liable for misuse of the same under the common law theory of respondeat superior, by which an employer can be held responsible for the misdeeds of its employees. However, as the Court observed, in order for this doctrine to apply, the employer must have ratified the employees’ wrongful conduct; it must have, in effect, treated the employees’ conduct as its own. In the Sloan case, given that the case seems to derive from a long-simmering feud between Mr. Sloan and the individual defendants, it seems to me that it would be an almost impossible burden for Sloan to prove that Texas Tech University adopted the alleged conduct of Polgar and Truong as its own.

Based on the above, I predict that Texas Tech will soon be out of the lawsuit.