About ericpapp

Mr. Papp obtained his law degree from Willamette University College of Law in Salem, Oregon. Since passing the CA bar in 1995, Mr. Papp has attained a reputation as an aggressive litigator who is comfortable advocating for his clients in every arena including bench and jury trials, administrative hearings, arbitrations and mediations.

Facebook Not Required to Remove Negative Posts about Celebrity Country Artist

facebook suit

If it is True and a Matter of Public Interest, Facebook Does not have to Remove the Post

JASON CROSS et al., Plaintiffs and Appellants, v. FACEBOOK, INC.,

Plaintiffs are Jason Cross, also known as Mikel Knight, a country rap artist, and two entities affiliated with him. Defendant is Facebook, Inc. (Facebook). The dispute arises out of a Facebook page called ―Families Against Mikel Knight,‖ which page, plaintiffs claimed, incited violence and generated death threats against Knight and his team. Plaintiffs sought to have the page removed, Facebook refused, and plaintiffs sued, in a complaint that alleged six causes of action. Facebook filed a special motion to dismiss all six causes of action, arguing that they arose from protected activity and that plaintiffs could not show a probability of prevailing on any of them. The trial court held that the complaint was based on protected activity, that plaintiffs could not prevail on the first three causes of action, and granted the anti-SLAPP motion as to them. The trial court denied the motion as to the three other causes of action—claims alleging statutory and common law claims for violation of Knight‘s right of publicity, along with a derivative unfair competition law (UCL) claim—concluding that Knight had shown a probability of prevailing on them.

In order to promote his work, Knight’s marketing efforts included hiring of independent contractors who would travel throughout the country in vans that featured Knight‘s name and logo, promoting his music and merchandise. On June 9 and 16, 2014, two vans were involved in separate accidents when the drivers fell asleep at the wheel. The accidents had tragic consequences, including two deaths and one serious injury. Shortly after the accidents, a publicly available Facebook page called ―Families Against Mikel Knight‖ was created, apparently by a person (or persons) related to the victims. As to plaintiffs‘ version of what followed, their brief describes it this way: ―numerous commenters began posting statements inciting violence and death threats against Knight and members of his record labels . . . . Because of these comments, numerous members of Mr. Knight‘s promotion team were verbally threatened and physically assaulted. [¶] In addition to these threats and assaults, the unauthorized Facebook page also severely impacted Knight and 1203 Entertainment‘s business deals. In 2014 and 2015, Knight was in negotiations with numerous companies to sign lucrative deals involving his music. But once representatives from these companies, which included Nielsen SoundScan and the Dallas Cowboys football team, reviewed the content of the unauthorized Facebook pages, they backed out of these negotiations.‖ Sometime in late 2014, Knight informed Facebook of the comments and threats. And on June 5, 2015, Knight‘s attorney sent a letter to Facebook demanding that it remove the pages. Facebook refused. A lawsuit followed which alleged six causes of action, styled as follows: (1) breach of written contract; (2) negligent misrepresentation; (3) negligent interference with prospective economic relations; (4) breach of Civil Code section 3344; (5) violation of common law right of publicity; and (6) unlawful and unfair business practices, Business and Professions Code section 17200 (the UCL claim).

Facebook filed a demurrer, and a special motion to strike (anti-SLAPP motion). The anti-SLAPP motion contended that the complaint arose from the exercise of the constitutional right of free speech in connection with an issue of public interest, and that plaintiffs could not show a probability of success for two reasons: (1) the claims were barred by the Communications Decency Act; and (2) even if not, the claims were not viable under California law.

Finding that the lawsuit involved an issue of Pubic Interest and that the Plaintiff failed to demonstrate a likelihood of prevailing on the merits of their claims, the Appellate Court affirmed in part and reversed in part and remanded the case to the trial court with instructions to (1) enter an order granting the anti-SLAPP motion in its entirety and striking the complaint, and (2) hold a hearing, following further briefing, to award Facebook the attorney fees to which it is entitled under section 425.16.

Eric Papp, Esq. 

Visit: www.ca-nvlaw.com

 

 

Spokeo Needs to Get it Right

spokeo emojiIt May Be Free, But the Info on Spokeo Still Needs to be Accurate

Robins v. Spokeo (Spokeo III) (8/15/2017)

Spokeo, Inc., operates a website by the same name that compiles consumer data and builds individual consumer-information profiles. At no cost, consumers can use spokeo.com to view a report containing an array of details about a person’s life, such as the person’s age, contact information, marital status, occupation, hobbies, economic health, and wealth. More detailed information is available for users who pay subscription fees. Spokeo markets its services to businesses, claiming that its reports provide a good way to learn more about prospective business associates and employees.

At some point, Thomas Robins became aware that Spokeo had published an allegedly inaccurate report about him on its website. Robins then sued Spokeo for willful violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. FCRA imposes a number of procedural requirements on consumer reporting agencies to regulate their creation and use of consumer reports.1 The statute gives consumers affected by a violation of such requirements a right to sue the responsible party, including the right to sue (and to recover statutory damages) for willful violations even if the consumer cannot show that the violation caused him to sustain any actual damages. (See id. §§ 1681n, 1681o.)

Robins’s suit alleged that Spokeo willfully violated various procedural requirements under FCRA, including that Spokeo failed to “follow reasonable procedures to assure maximum possible accuracy” of the information in his consumer report. (Id. § 1681e(b).) He alleged that, as a result, Spokeo published a report which falsely stated his age, marital status, wealth, education level, and profession, and which included a photo of a different person. Robins alleged that such errors harmed his employment prospects at a time when he was out of work and that he continues to be unemployed and suffers emotional distress as a consequence.

On remand from the Supreme Court of the United States, the 9th Circuit noted that, “Robins is certainly correct that FCRA purportedly allows him to sue for willful violations without showing that he suffered any additional harm as a result. See 15 U.S.C. § 1681n. But the mere fact that Congress said a consumer like Robins may bring such a suit does not mean that a federal court necessarily has the power to hear it.”  As such, the question at hand is whether the inaccurate information, alone, can “establish an injury sufficiently concrete for the purposes of Article III standing.”

To establish such an injury, the plaintiff must allege a statutory violation that caused him to suffer some harm that “actually exist[s]” in the world; there must be an injury that is “real” and not “abstract” or merely “procedural.” (Spokeo v. Robins (Spokeo II) 136 S.Ct. 1540 at 1548-1549 (2016).)

In evaluating Robins’s claim of harm, the Court asked: (1) whether the statutory provisions at issue were established to protect his concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests.

As to the first question, the Court agreed with Robins that Congress established the FCRA provisions at issue to protect consumers’ concrete interests. The Court previously observed that FCRA “was crafted to protect consumers from the transmission of inaccurate information about them” in consumer reports. (Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995); see also Spokeo II, 136 S. Ct. at 1550 (Congress enacted FCRA to “curb the dissemination of false information”); S. Rep. No. 91–517, at 1 (1969) (“The purpose of the fair credit reporting bill is to prevent consumers from being unjustly damaged because of inaccurate or arbitrary information in a credit report.”).

Second, the Court must determine whether Robins has alleged FCRA violations that actually harm, or at least that actually create a “material risk of harm” to, this concrete interest. (See Spokeo II, 136 S. Ct. at 1550; Strubel, 842 F.3d at 190. Robins must allege more than a bare procedural violation of the statute that is “divorced from” the real harms that FCRA is designed to prevent. Spokeo II, 136 S. Ct. at 1549; Van Patten, 847 F.3d at 1042.)

In the end, the 9th Circuit held, “We are satisfied that Robins has alleged injuries that are sufficiently concrete for the purposes of Article III. As noted, we previously determined that the alleged injuries were also sufficiently particularized to Robins and that they were caused by Spokeo’s alleged FCRA violations and are redressable in court. (See Spokeo I, 742 F.3d at 412–14.) The Supreme Court did not question those prior conclusions, and we do not revisit them now. Robins has therefore adequately alleged the elements necessary for standing.”

The take away is that while all violations of the FCRA may not be enough for liability, in this case, Robins passed the hurdle and Spokeo will likely face a trial on the matter.

Eric Papp, Esq.

Visit: www.ca-nvlaw.com

Private Facebook information Remains “Private” – So Far

Quiet Court in Session“Private” Facebook Posts are “Private” 

FACEBOOK, INC., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; LANCE TOUCHSTONE, Real Party in Interest – (9/26/17)

Here, in Facebook v. Touchstone, a subpoena seeking to obtain “private” Facebook information is at stake. In this regard, real party in interest Lance Touchstone is awaiting trial in respondent San Diego County Superior Court (the trial court) on a charge of attempting to murder Jeffrey R. (the victim). (Pen. Code, §§ 664/187, subd. (a).) After the shooting incident, the victim has been active on his personal Facebook, Inc., (Facebook) account. He posted updates of his physical recovery from the hospital, requesting private messages over the Facebook messaging system. On the public portion of his Facebook page that is visible to all Facebook users, the victim posted updates of court hearings in this case, asking his friends to attend the preliminary hearing. In public posts the victim also discussed his personal use of guns and drugs, and described his desire to rob and kill people.

Believing nonpublic content of the victim’s Facebook account might provide exculpatory evidence helpful in preparing for trial, Touchstone served petitioner Facebook with a subpoena for the subscriber records and contents of the victim’s Facebook account, including timeline posts, messages, phone calls, photos, videos, location information and user-input information from account inception to the present date. Facebook filed a motion to quash the subpoena on the ground the Stored Communications Act (SCA) (18 U.S.C.2 § 2701 et seq.) prohibited disclosure of the victim’s account contents. In an accompanying declaration, counsel for Facebook stated that Touchstone could obtain the requested contents directly from the victim or by working with the prosecutor to obtain a search warrant based on probable cause. Touchstone opposed the motion on the grounds he had a plausible justification for requesting the contents of the victim’s account, he should be allowed to obtain the contents because law enforcement could do so by a search warrant, his constitutional right to a fair trial trumped the SCA, and he could not obtain the contents from other sources because the victim was uncooperative and the prosecutor had not obtained a search warrant. At oral argument, defense counsel represented that the prosecution refused to issue a search warrant for the material and that she has been unable to locate the victim to serve him with a subpoena. The trial court denied the motion to quash and ordered Facebook to produce the contents of the victim’s account for in camera inspection by a certain date.

In the end, the Court held, “The SCA expressly prohibits electronic communication service providers from “knowingly divulg[ing] to any person or entity the contents of a communication.” (§ 2702(a)(1).) This statutory prohibition is subject to limited exceptions, none of which apply. (§ 2702(b)(1)-(8).) As we have discussed, Touchstone’s constitutional challenges to the SCA lack merit. Accordingly, the supremacy clause (U.S. Const., art. VI) prohibits enforcement of the trial court’s order because “California’s discovery laws cannot be enforced in a way that compels [a provider] to make disclosures violating the [SCA].” (Negro v. Superior Court, supra, 230 Cal.App.4th at pp. 888-889.).”

Until the California Supreme Court finally decides the matter in Facebook1, which is pending before the High Court, Facebook “private” information will remain private.

Eric Papp, Esq.

Visit: www.ca-nvlaw.com

Yelp Ordered to Produce Documents Identifying Anonymous Negative Poster

Orange County Court House

Be Careful When Posting Negative Yelp Reviews to “Get Even.” It May Just Land YOU in a World of Legal Trouble.

In this case, Montagna filed a lawsuit against Sandra Jo Nunis and several Doe defendants alleging a single cause of action for trade libel. According to the first amended complaint, Montagna, an accountant, prepared a tax return for Nunis in 2015. Montagna initially quoted Nunis a “minimum” fee of $200 for the preparation of her return, based on her representation that her income was comprised exclusively of wages reported on a W-2 form, and she would require only a simple return. However, both Nunis’ income and the resulting tax return were allegedly more complicated than she had represented. As a consequence, Montagna charged Nunis $400 for preparation of the return, rather than the $200 fee he initially quoted. Nunis allegedly paid Montagna only $200, and refused to pay him more even after receiving “a collection letter” for the balance. And in November 2015, Nunis allegedly went online to the Yelp website and posted the following review of Montagna, using the alias Alex M.:

“Too bad there is no zero star option! I made the mistake of using them and had an absolute nightmare. Bill was way more than their quote; return was so sloppy I had another firm redo it and my return more than doubled. If you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action. I chalked it up as a very expensive lesson, hope this spares someone else the same.”

Montagna alleged the following statements made by Nunis in the review were provably false: (1) the return he had prepared for her was accurate and complete; (2) he had not caused her to hire another firm to redo his work; (3) he was not negligent in preparing her return, such that her refund more than doubled; and (4) no one in his office screamed at, harassed, or threatened her. Montagna allegedly sent a demand to Nunis, asking she retract the Yelp review, or correct the false and libelous statements, and warned her that if she failed to do so, legal action might be taken against her. Nunis, however, allegedly failed and refused to either delete or correct her review and Montagna thereafter filed the lawsuit.

A subpoena was issued to Yelp to confirm the identity of the “anonymous” poster.  Yelp fought the Subpoena on a number of grounds, including “Freedom of Speech of the Poster,” and lost.  The Court held,

“We are unpersuaded by Yelp’s contention because we cannot agree with its characterization of the review. While it is true that pure expressions of opinion are not actionable, “[t]hat does not mean that statements of opinion enjoy blanket protection. [Citation.] To the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. [Citation.]” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 156 (GetFugu).)”

And, as such, the Court ordered, “…we conclude the latter finding was sufficient to support the trial court’s order compelling Yelp to produce the subpoenaed documents in the circumstances of this case.”

The lawsuit against the Yelp poster will proceed.

(YELP INC., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; GREGORY M. MONTAGNA et al.(11/13/2017).)

Eric Papp, Esq.

Visit: www.ca-nvlaw.com

The “Black Box” in your car

The "Black Box" in your car. The Event data Recorder (EDR) If you have been in a car accident, be aware that there is a little known or utilized piece of evidence in later model cars, a “black box.” Technically, it is called the Event Data Recorder (EDR). While it doesn’t necessarily record everything, it may record such things as acceleration, deceleration, impacts, braking, if seat belts were used, speed at the time of the crash, steering angle and if the airbags were deployed. This “objective” data, might help to clarify witness statements. However, be aware that in some instances the data can be overwritten. So you might have to move quickly to preserve it.

Eric Papp, Esq.

Visit: www.ca-nvlaw.com

How “Secret” is Secret for a Trade Secret?

Top SecretReasonable Efforts to Maintain Secrecy is a Question of Fact
Whether reasonable secrecy efforts were made is a question of fact. (San Jose Const., Inc., 155 Cal.App.4th at 1543 (“[W]hether SJC made adequate attempts to keep its prospective project information secret is for the jury to measure.”); In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 306 (“[W]hether a party claiming a trade secret undertook reasonable efforts to maintain secrecy is a question of fact….”); Mattel, Inc. v. MGA Entertainment, Inc., 782 F.Supp.2d 911, 960 (C.D. Cal. Jan. 5, 2001) (“The determination of whether information is the subject of efforts that are reasonable under the circumstances to maintain its secrecy is fact specific.”). Here, for example, is the office or location in question; is office is “off limits;” do the computers have a password; is access restricted to certain people; are there non-disclosure or confidentiality agreements, even oral ones, in place? Importantly, secrecy efforts need only be reasonable under the particular circumstances involving a specific party, industry and situation. (DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 881(“The secrecy requirement is generally treated as a relative concept and requires a fact intensive analysis.”); see generally CACI No. 4404.) Here, the trade secret plaintiff may not be in the aerospace industry or computer software engineering firm. In this case, we may be talking about small, mom and pop operations. In such a circumstance, whether the security which was implemented by the trade secret Plaintiff was reasonable is a question of fact for the jury.

Eric Papp, Esq.

Can Information That is “Generally Known” Be a Trade Secret?

uniqueWhether Information is Generally Known is a Question of Fact

Whether the subject information is generally known to the public or competitors is a question of fact. (Thompson v. Impaxx, Inc. (2003) 113 Cal.App.4th 1425, 1430 (“The issue of whether information constitutes a trade secret is a question of fact.”).) Again, as the Altavion court held, “…even if some or all of the elements of Altavion’s design were in the public domain and thus unprotectable, the combination was a protectable trade secret if it was secret and had independent economic value.” (Emphasis original) (Altavion, Inc. v. Konica Minolta Systems Laboratory Inc. (2014) 226 Cal.App.4th 26, 47.)

So, the first inquiry is whether or not the information is “generally known” to the public or competitors.  However, even if some aspect is “generally known,” a novel or unique combination of the information may remove it from the “generally known” into a trade secret.

Eric Papp, Esq.

Trade Secrets Do Not Need to Be in Writing

Legal Pad, pen and law book5. Trade Secrets do Not Need to be in Writing

Trade secrets need not be in writing. (Morlife, Inc, 56 Cal.App.4th at 1522 (“to afford protection to the employer, the information need not be in writing but may be in the employee’s memory”); Brocade Communications Systems, Inc. v. A10 Networks, Inc., 873 F.Supp.2d 1192, 1215 (N.D. Cal. June 12, 2012) (“It is this combination of elements that makes the information valuable and not generally known to the public. Moreover, the mere fact that the information is not in a written list is not dispositive of sufficient particularity.”) Here, many trade secret Defendants attempt to make much of the fact that some of the information in contention was in the Defendant’s “head.” However, as cited above, this is not dispositive and, at best, raises an issue of material fact as to what exactly was in the Defendant’s head and what combination of facts, whether in his head or not, fall under the Trade Secret claim.

What if the information is “generally known,” can that still be a trade secret? The next post will cover this question.

Eric Papp, Esq.

Public Information as a Trade Secret

Private Property - public info4. Public Information as a Trade Secret
Importantly, a trade secret may consist of public information and/or elements, combined with information and/or elements that are not generally known, as long as the combination is unknown, kept secret, and has independent economic value. (Altavion, Inc., 226 Cal. App. 4th at 48 (“even if some or all of the elements of [the plaintiff’s] design were in the public domain and thus unprotectable, the combination was a protectable trade secret if it was secret and had independent economic value”) (original italics); 02 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 420 F.Supp.2d 1070, 1089-1090 (N.D. Cal. March 9, 2006) (court affirmed jury instruction which stated, “Combinations of public information from a variety of different sources when combined in a novel way can be a trade secret. It does not matter if a portion of the trade secret is generally known, or even that every individual portion of the trade secret is generally known, as long as the combination of all such information is not generally known.”); SkinMedica, Inc. v. Histogen Inc., 869 F.Supp.2d 1176, 1194 (S.D. Cal. April 23, 2012) (“A trade secret may be comprised of partly or entirely non-secret elements and still merit protection.”) Often, the Defendants in a trade secret case, as those in the San Jose Const. case, complain that the information sought to be protected by Plaintiff was, in some manner, public. But, again, that is not fatal to a trade secret case. Rather, it is about having all the pieces of the puzzle to the exclusion of all others.

Must Trade Secrets be in writing? The next post will cover this topic

Eric Papp, Esq.

“Information” as a Trade Secret

Hand in the cookie jarImportantly, “Whether information is a trade secret is ordinarily a question of fact.” ( San Jose Const., Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1537 citing: In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 300; Thompson v. Impaxx, Inc. (2003) 113 Cal.App.4th 1425, 1430; and Morlife, Inc. v. Perry (1997) 56 Cal.App.4th 1514, 1521, 66 Cal.Rptr.2d 731.) As the San Jose Const. Inc. case held, “Whether that information actually constituted a trade secret is a factual issue for the jury or court to determine at trial, as did the trial court in Morlife.” (San Jose Const., Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1540, citing Morlife v. Perry, supra, 56 Cal.App.4th 1514 at 1521.)

1. Facts as Trade Secrets
Trade secrets can consist of facts. (See Silvaco Data Systems v. Intel Corp., (2010) 184 Cal.App.4th 210, 220-221, as modified on denial of reh’g (May 27, 2010) disapproved of on other grounds by Kwikset Corp. v. Superior Court (2011) 51 Cal. 4th 310 (“Indeed a trade secret may consist of something we would not ordinarily consider an idea (a conceptual datum) at all, but more a fact (and empirical datum), such as a customer’s preferences, or the location of a mineral deposit. In either case, the trade secret is not the idea or fact itself, but information tending to communicate (disclose) the idea or fact to another. Trade secret law, in short, protects only the right to control the dissemination of information.”) (original italics) (Bold emphasis added).)

2. Ideas as Trade Secrets
Trade secrets may relate to ideas, even potentially patentable ideas, as well. (Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 54-55 (“[I]t has been held that a trade secret in the broad sense consists of any unpatented idea which may be used for industrial and commercial purposes . . . . In conclusion, it is clear that if a patentable idea is kept secret, the idea itself can constitute information protectable by trade secret law.”) (italics omitted); Mattel, Inc. v. MGA Entertainment, Inc., 782 F.Supp.2d 911, 961-962 (C.D. Cal. Jan. 5, 2011.) Here, for example, if the ideas were kept secret, then, in short, the Plaintiff had all the pieces of the puzzle to the exclusion of all other competitors.

3. Negative Information as Trade Secrets
Trade secrets can consist of “negative information,” or information that results from failed efforts or experiments, because such “dead ends” in research or marketing may have value. (See, e.g., Cal. Civ. Code § 3426.1 comment (“The definition of trade secret . . . includes information that has commercial value from a negative viewpoint, for example the results of lengthy and expensive research which proves that a certain process will not work could be of great value to a competitor.”) (original italics); Courtesy Temporary Service, Inc. v. Camacho (1990) 222 Cal.App.3d 1278, 1287 (“The broader definition in the proposed Act . . . includes information that has commercial value from a negative viewpoint, for example the results of lengthy and expensive research which proves that a certain process will not work could be of great value to a competitor.”) (original italics) citing legis. committee com., Cal. Civ. Code § 3426.1, p. 108.) Here, for example, this is an important observation. Imagine a trade secret defendant who would declines to bid any job they know the Plaintiff is already supplying or that the Plaintiff can supply cheaper.”

This is exactly the type of secret, competitive information that anyone would like to have. Information that allows you to not waste your time, money and energy bidding and quoting and competing with an entity you know you cannot beat on certain jobs or, obversely, know you can beat on others. Oftentimes, the only way to know these competitive outcomes for certain, would be be to use the Plaintiff’s trade secret information, that is, to have all the pieces to the puzzle that the Defendant could use to bid jobs in order to beat the Plaintiff or to avoid other jobs altogether.

The next post will cover “Public” information as trade secrets.

Eric Papp, Esq.