Providing accurate, timely, and insightful legal commentary
Connectiuct Business Litigation Blog
Commentary on lawsuits and legal issues impacting Connecticut businesses. Authored by experienced business litigation attorney, Kane Bennett of Aeton Law Partners, LLP.
New Privacy Report From Federal Trade Commission (FTC)
The FTC released its 122 page Privacy Report today. This Report has been anticipated for some time. The FTC Chairman, Jon Leibowitz, summed up the purpose behind the FTC’s involvment in data privacy and security with release of the Report stating: Technological and business ingenuity have spawned a whole new online culture and vocabulary – email, IMs, apps and blogs – that consumers have come to expect and enjoy. The FTC wants to help ensure that the growing, changing, thriving information marketplace is built on a framework that promotes privacy, transparency, business innovation and consumer choice. We believe that’s what most Americans want as well. The Report is issued as "A Proposed Framework For Business and Policymakers." The Report is intended to "inform policymakers, including Congress, as they develop solutions, policies, and potential laws governing privacy." It is also intended to be a framework for how companies should address privacy. The biggest news making aspect of the Report is the endorsement of a Do Not Track system that would permit consumers to limit or control the amount of information given to advertisers that track consumers’ online behavior. This would be similar to the Do Not Call registry. For an excellent review of this far reaching Report, and its implications, read this post on the Privacy and Security Law Blog. For more information on the Do Not Track and online behavior tracking aspects of the Report, here is a post from Electronic Frontier Foundation. In the days ahead, there will be many more blog posts about the
Social Media Attorney – A New Niche To Address A Growing Concern For Business
I have written several posts on risk management and litigation arising out of social networking or media websites such as Facebook, Twitter and LinkedIn. Dan Schwartz’s Employment Law Blog includes coverage of a variety of concerns with use of social media and the need for internal policies and procedures. While Dan’s blog covers employment law and this blog covers business litigation, social media ends up a frequent topic on both blogs. In fact, you can read about social media on legal blogs across the country covering litigation, intellectual property, privacy, defamation, and the first amendment. Some say social media is a fad so why the extensive coverage on legal blogs? The facts is that as the use of social media continues to grow and involve massive numbers of users, so does the risk of litigation and potential for numerous other legal issues. To see some staggering statistics on social media, check out the link to this video I came across on Tyson Snow’s blog Social Media Esq. The video is by Erik Qualman, the author of socialnomics. Here is a link to the video on YouTube (social media revolution 2 refresh). If you want a real world example of social media’s growing impact on the legal industry, consider Citigroup (Citi). Citi posted on its website a job listing for Associate General Counsel. The Citi job is not for auditing, compliance, or litigation. Instead, in what may be a new trend, the Citi job is for Associate General Counsel-Social Media Attorney. Citi is not alone. Clorox also sought out an attorney to oversee its social media programs. I expect more companies will follow with new stand alone social media attorney
Constructive Trusts In Connecticut For Fraud and Unjust Enrichment
In business litigation in Connecticut, attorneys many times seek to impose a constructive trust over assets or income connected to wrong doing, breach of fiduciary duty, or fraud by business partners or agents. In a decision to be officially released on November 23, 2010, the Appellate Court upheld a trial court’s imposition of a constructive trust over certain assets of a business. The case is Trevorrow v. Marcuccio, and you can download it here. A constructive trust is not a real trust. Rather, it is a judicially created trust and thus the term "constructive." It arises when one party unjustly holds title or rights to property, such as assets or profits of a business partnership or corporation. The wrongdoing may involve simply retaining property, misappropriating property, or converting the property into another form. The trust is imposed against the wrongdoer who will be deemed to hold title of the property for the benefit of the innocent party. In Trevorrow, the Appellate Court stated: the issue raised by a claim for a constructive trust is, in essence, whether a party has committed actual or constructive fraud or whether he or she has been unjustly enriched Typically, you see attorneys seeking constructive trusts in cases involving fraud, duress, breach of fiduciary duty, or some type of commission of a wrong. However, the Trevorrow court clarified that the equitable remedy of a constructive trust is not only available in cases of actual or constructive fraud, but it is also available in cases where one party has been unjustly enriched at the expense of
Carders, Full Wallets and Identity Theft In Connecticut
I recently attended the Connecticut Privacy Forum. One of the presentations was by Kim Peretti who is Director of Forensic Services at Pricewaterhouse and a former federal prosecutor that chased down identity thieves globally. (read an interview with Kim here about the infamous TJX case). I learned quite a bit of information about trafficking in personal identifying information also known as PII. You can read my live tweets from her presentation here. In the data theft industry, the thieves are called "carders." They are out there looking for victims in person and online. The primary goal is not only credit card information, but "full wallets." Full wallets is when the carder gets all the information you might have in your wallet. Credit cards, license, bank cards, etc. The thieves might get this information from you personally, but more likely through a company that keeps this type of information. Once they get a full wallet, they typically sell it overseas where the information is stored on computer servers and offered for sale on websites. Scary stuff. As a coincidence, I have had a recent uptick of inquiries from victims of identity theft. There are many laws that are implicated in cases of identity theft such as wire fraud, computer fraud, and theft statutes. The theft may also involve a data breach such as in the case of TJX. Here is a quick summary of Connecticut’s statutory law for identity theft. In Connecticut, an attorney can file a civil lawsuit on behalf of a victim of identity theft and obtain an award of one thousand dollars or treble damages, whichever is greater pursuant
Can An Attorney Bind A Client To A Settlement Agreement Even If The Client Did Not Agree?
The answer is – yes, under the right set of facts. In Connecticut, attorneys must abide by a client’s decision to settle a case. Additionally, an attorney has to consult with a client and secure consent to accept or make a settlement offer. Seems straightfoward, right? However, what happens if an attorney reasonably believes he has consent, but the client later disagrees? Or, what if the client does give consent, but later changes her mind? Or, how about a situation where it appears to the opposing party that the client’s attorney had authority to settle based on conduct of the client. Does it matter whether there really was express authority given to the attorney to settle? In a recently released decision,Ackerman v. Sobol Family Partnership, et al, the Connecticut Supreme Court addressed these very issues. In the case, the Supreme Court upheld a trial court judgment in favor of a group of defendants that sought to enforce a settlement agreement. The case involved a history of negotiations between well known attorneys for the two sides, including a failed mediation and a few months of verbal and written exchanges on settlement terms. The underlying case involved a dispute concerning "management and oversight of a family partnership and various family trusts." Shortly before trial was scheduled to start, the defendants believed that a global settlement was reached for 1.1 million dollars based on an agreement with the plaintiffs’ attorney. The plaintiffs disagreed and claimed that their attorney did not have authority to bind the plaintiffs to the
Lawyers Going Fishing on Facebook – – Is It Ethcial?
Lawyers are all over Facebook and LinkedIn. What are they doing? If they are not marketing or social networking, they are fishing or "mining" for information about individuals and businesses. They are looking for this information to help with lawsuits. The business and employment trends involving social media are growing and as a result we will continue to see a variety of different lawsuits and legal issues involving some aspect of Facebook, LinkedIn, Twitter, MySpace and YouTube. For example, read the posts yesterday by Dan Schwartz’s Employment Law Blog detailing how privacy settings on Facebook permit easier production in electronic discovery and how facebook wall postings might be unavailable in discovery and deemed private. One of the issues lawyers will have to address when mining for data on Facebook and other sites is how to get the information. Do you seek the material in discovery and possibly risk a judge deeming the information unavailable as private or irrelevant? Do you just limit your search to what is publicly available? Better yet, what about having an investigator try to "friend" your target so you can get access to the information that is not available to public searches? If you are concerned about the ethics of this type of searching, you good instincts. Lawyers fishing on Facebook would be well advised to read through a few ethical opinions on the issue. Recently, the New York Bar Association issued an opinion related to ethical concerns for lawyers "fishing" for information and evidence on Facebook and LinkedIn. The verdict? Relying in part on a 2009 Pennsylvania Bar Association opinion, it was deemed ethical for lawyers to search
About CTBL
Connecticut Business Litigation is the most well-read litigation blog in the state of Connecticut. Founded by Attorney Kane Bennett in 2009, a pioneer in Attorney Marketing in the state of connecticut