Monday, December 26, 2011

How much is one Twitter follower worth?

If the rightful owner of a Twitter account is found to have been damaged by an adverse party, how much should the account owner be compensated?  

There is a lawsuit pending in California Federal Court that might shed some light on the subject.  In that case, an employee of a popular mobile phone site,, quit his job after nearly four years.  While at the company, the employee had amassed 17,000 Twitter followers under the name @Phonedog_Noah.

After leaving the company, the man changed his Twitter handle to remove any reference to his former employer, but he kept all 17,000 followers.  Eight months later, PhoneDog sued, saying that the list of Twitter followers was their property because it was actually a customer list.  PhoneDog seeks damages of $2.50 a month per follower for eight months, for a total of $340,000. 

How in the heck did they come up with $2.50 per month?  I guess for negotiation purposes you could start with the total settlement demand and then calculate that down to a monthly amount.    But this lawsuit was filed last week, so it appears that they are finished negotiating.  Now PhoneDog better be preparing for trial.  They’re going to have to put forth some evidence as to damages.  It will be interesting to see how their expert explains the damages.  

I have put this California lawsuit on the list of cases that I am going to try to follow.  If I hear anything else about the value of this case, I will let you know.  It's an interesting question.  I wish my Twitter followers were worth $2.50 per month. 

By the way, if you aren't already following @husemanlaw on Twitter, you really need to click HERE now.   

Wednesday, December 21, 2011

Unusual Seventh Circuit opinion gets the point across

If a picture speaks a thousand words then Judge Posner certainly makes his point clear in a recently published opinion. Published November 23, 2011, the opinion consolidates appeals in two product liability cases for grants of forum non conveniens in multidistrict litigation. In the first sentence, he begins by indicating the court’s concerns about appellate advocacy in the two cases.

The appellant’s attorney (a practitioner from Houston, TX) was criticized for ignoring precedent and it was done quite creatively. Posner wrote, “The ostrich is a noble animal, but not a proper model for an appellate advocate”. He then includes a picture of an ostrich with its head in the sand followed by another one of a man in a suit (presumably a lawyer) with his head in the sand. The lesson (other than that ostriches don't really bury their heads in the sand)? It is right there in the opinion: “When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.”

Read the whole opinion here

Wednesday, December 14, 2011

Heather Weir Vaught named Chief Legal Counsel to Speaker Michael Madigan

I picked up the December 7th edition of the Chicago Daily Law Bulletin and was surprised to see a smiling face that I recognized from law school.  

The article was about the current Chief Legal Counsel to Michael Madigan moving on to a different position with the Republican Party.  The article also indicated that Heather, who is currently Madigan's deputy counsel, would be promoted to Chief Legal Counsel by the end of the year.

Congratulations Heather!!!!

Friday, December 9, 2011

Does a seller have a duty to disclose that someone has died in a car or house that he is trying to sell?

I've been reading a lot about dead people recently.  Last week I read an article about a woman in Detroit who is suing an auto dealership for selling her a car that smells like a dead body.  She claims that the car did not stink last winter when she bought it, but when the weather warmed up in the spring, the odor of death became apparent.  She claims that she had the odor tested and it came back positive for human remains.  She has sued the dealership for failure to disclose the fact that someone had died in her car.  HERE is an article about that lawsuit.

Then, yesterday I read about a guy in Sauk Village, Illinois who was showing a property that he owns to a prospective buyer.  When they walked into the basement, they found two dead bodies. HERE is the article from the Chicago Tribune.  The real estate agent for that house was quoted in the Tribune as saying that the seller is now required by law to disclose those deaths to new prospective buyers.

I'm not so sure about that.  The Illinois Residential Real Property Disclosure Act requires certain sellers of residential property to deliver to the prospective buyer a written disclosure statement as required by the Act.  HERE is a link to the written disclosure statement.    The form contains 22 questions that must be answered by the seller relating to potential material defects in the property.  I don't see anything on that form about dead bodies.  Unless the body rotted through the floor, somehow infected the water supply, or otherwise caused some material defect, I don't think that the existence of a dead body in the house is a material defect all by itself.  

There is further evidence against a duty to disclose a dead body in the Illinois Real Estate Licensing Act of 2000.  That Act says that "no cause of action arises against a licensee for failing to disclose...ii) that the property was the site of an act or occurrence that had no effect on the physical condition of the property or its environment or the structures located thereon." (i.e., a murder or a suicide)  225 ILCS 454/15-20.  This statute only limits the liability of the realtor, but if the realtor did not have duty to disclose, it can be argued that the seller does not either.

So, with respect to real estate in Illinois, I don't think that there is any duty for a seller to go beyond the requirements of the Disclosure Act, which does not require the disclosure of a dead body.  

And regarding vehicles in Illinois, there do not appear to be any laws on the subject.  I think it will come down to the language of the warranty, if any.  If you bought the car "as is," I think you're out of luck.  This does remind me of a Seinfeld episode however.  But I think Jerry's car was just in the shop when it came back stinky.  I don't think it was a purchased vehicle that stank.  And I don't recall Jerry ever suing anybody because of the odor.  So, I guess I'm right.  No duty to disclose exists.   Have a nice weekend.

Wednesday, December 7, 2011

The Rich Get Richer. (Sarcasm)

You will recall that I have been alerting my loyal readers for years about class action lawsuits in which you may be able to file claims.  I have written about some of my greatest settlements HERE and HERE.  

Well, today I received another check.  This case involved the use of credit cards overseas.  I heard about it just after I returned from the Philippines last summer.  Luckily I used my credit card when I was down there because HERE is copy of my latest settlement check.  That's right.  Read it and weep.

You will also see at the very bottom, I have been alerted that I may be a member of another class in a second lawsuit involving foreign transaction fees.  How much good luck can one guy have?!?!?!  

I haven't looked into it yet, but it appears that I may be entitled to another settlement check.  Three or four more of these and I'll be able to buy a nice steak dinner!!

When is an Employee's Covenant Not to Compete Enforceable

The Illinois Supreme Court has clarified when an employee’s promise not to compete with his/her employer is enforceable.

Reliable Fire Equipment Company sued two of its salesmen for violating employment agreements which included covenants not to compete. The salesmen had started their own company which provided services to some of Reliable’s customers. The circuit court found the covenants unenforceable and the appellate court agreed. Reliable appealed.

The Supreme Court begins its analysis by explaining that an employment contract that totally restrains trade is void because it “deprives the public of the industry of the promisor, and deprives the promisor of the opportunity to pursue an occupation and thereby support his or her family” but that a covenant not to compete “will be upheld if it contains a reasonable restraint and the agreement is supported by consideration.”

Recognizing that Illinois courts have failed to consistently apply a three-prong analysis that the Court traces back to 1896, the Court explains that a restraint is reasonable if it 1) is no greater than is required to protect a legitimate business interest of the employer, 2) does not impose undue hardship on the employee, and 3) does not injure the public.

Because lower courts have had the most trouble with the first prong - whether the employer has a legitimate business interest needing protection - the Court examines the many factors on which jurists have relied before holding that such factors are “only nonconclusive aids in determining the promisee’s legitimate business interest” and that the proper test is to consider “the totality of the facts and circumstances of the individual case.” The Court then identifies several important factors to consider including “the near-permanence of the customer relationships, the employee’s acquisition of confidential information through his employment, and time and place restrictions” and explains that no factor is determinative; its importance depends on the facts and circumstances in a given case.

Because the case “was tried under an incorrect theory of law” the Court reversed the judgment and remanded the case for a new trial.

Reliable Fire Equipment Company vs. Arnold Arredondo, 2011 IL 111871

Submitted by Brian D. Moore, Class of ’92.