For laypersons and lawyers alike, the trial of Martha Stewart last winter was irresistible legal theater. But if, between all the discussions of Ms. Stewart's courtroom attire and lunchtime dining habits, you missed seeing how the district court and Second Circuit wrestled with the issue of media access to jury selection, you may want to give ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir. 2004) a read.
Three recent cases involving government inquiries provide sobering lessons about electronic evidence to corporations and their lawyers. The most notorious, U.S. v. Arthur Andersen, LLP, resulted in criminal convictions. Another, In the Matter of Banc of America Securities LLC, involved SEC enforcement action. The third, United States v. Philip Morris, arose in a Department of Justice civil suit. If nothing else, the cases demonstrate that corporations exposed to such investigations must implement effective and well-maintained information management systems.
Recent rulings of importance to you and your practice.
In the February 2003 edition of this Bulletin, I commented on the then recently issued "final" Sarbanes-Oxley (SOX) Rules on Standards of Professional Conduct for Attorneys. The "final" rules were not in fact final, because the SEC both had sought additional comments on the rules and had proposed, and sought comments on, a modified form of its controversial proposed "noisy withdrawal" rules. Since then, there has been no further word from the SEC about when and how a lawyer for a company or business executive is required or permitted to report client misconduct to a third party, including regulators and law enforcement authorities. But that does not mean all has been quiet. Significant changes have been made by the ABA to the Model Rules of Professional Conduct in this area and by international organizations wrestling with the role of lawyers in anti-money laundering compliance efforts.
Heller Ehrman White & McAuliffe has agreed to settle a suit charging that the firm drove a now-defunct dot-com into the ground by making a first-year associate its lead attorney.
Recent cases of interest in the Internet industry.
Several months ago, U.S. District Judge Michael Mukasey of the Southern District of New York sentenced one of the most notorious "typosquatters," John Zuccarini, to two and a half years for violating the Truth in Domain Names Act, which was enacted by Congress last year.
Although his arrest and conviction remain the most significant actions taken under the statute, the Domain Names Act adds another possible step that can assist companies that are victimized by typosquatting on the Internet.
Recent developments of note in the Internet industry.
This month:
First Suit Filed Against Internet 'Spyware'
House Passes Second Anti-Spyware Bill
Grokster Officals Settle Separate Copyright Case
AOL Files First 'Spim' Suit
RIAA Sues 750 More
U.S. Teen Soccer Prodigy Adu Wins Cybersquatter Case
U.S. Declares War on Intellectual Property Theft
We've covered the CAN SPAM Act fairly extensively from a "what is it" type of perspective. In this article, Board of Editors member Jonathan Bick provides some practical advice on how to advise those clients who want to send marketing e-mails lawfully (it just doesn't seem right to say "spam lawfully.
The U.S. Court of Appeals for the Second Circuit held that a New York-based plaintiff properly filed suit in Manhattan federal court alleging unjust enrichment and misappropriation of idea by the British Broadcasting Corp. (BBC). Gross v. British Broadcasting Corp. Plaintiff Pat Gross claimed that the BBC had without permission used her idea for a documentary about militant animal-rights activists that was broadcast in the United Kingdom. The district court dismissed the complaint for forum non conveniens.
