LA Times published an article about how insurers are searching social networking sites to uncover fraud. (Hat tip to the Kaiser Health News Network). This is a common enough theme these days, but what is different is that some insurers supposedly are actually making claims decisions based on what they find on social media like Facebook or Myspace. I'm wondering if insurers subscribe to social medial search services, such as Spokeo. I find it hard to believe that claims adjusters are separately visiting each social media website to run a variety of searches.
Fourth Circuit rejects attempt to find error in trial court's refusal to investigate a Twitter posting
From the Virginia Lawyers Weekly blog: The Fourth Circuit has rejected an argument in a bankruptcy fraud appeal that a Tweet represented juror misconduct, and that the trial court erred by not investigating it. The Court's response to this was that:
Forde's string of possibilities about the origin of the Twitter posting — that the foreperson possibly talked to her husband, who possibly talked to his friend, who possibly took to Twitter in response to what the husband possibly told him — is nothing but speculation and thus falls far short of establishing reasonable grounds for investigation. The district court therefore did not err by denying Forde's request for an evidentiary hearing to investigate his claim.
What surprised me is that the defense even came up with an argument linking a Twitter posting back to the jury foreperson through several degrees of separation, kind of like the six degrees of Kevin Bacon. You need more than that to establish juror misconduct. Most likely the defendant, who had an online tutoring business, came up with this argument and the defense attorneys felt compelled to raise it on appeal.
Beta version of Wayback Machine is discussed by Celia's. I was surprised in a deposition a couple of months ago that a witness who created his business website was aware of The Wayback Machine.
A round-up of my favorite blog posts of the week:
1. Mold case in Eastern District of Virginia survives a motion to dismiss, from the Va. Lawyers Weekly blog. The plaintiff is proceeding on a negligence per se theory based on violations of the state building code.
2. A judge in the Eastern District of Virginia rejected a Twombly challenge directed at a defendant's affirmative defenses. Motions to strike affirmative defenses have long been a practice in Virginia. In D.C. and Maryland, plaintiffs' counsel don't waste their time with it. Sounds like the Judge here doesn't like his time wasted with it either. After all, it is the "rocket docket."
3. Comparison of file sharing services, YouSendIt vs SendNow, courtesy of the Oregon Law Practice Management Blog
The U.S. District Court for the District of Maryland recently held in Independence Receivables Corp. v. Precision Recovery Analytics that an arbitration agreement in a contract between the plaintiff and one of the defendants is enforceable. What is unusual in this case is that the contract made no reference to arbitration. Instead, the agreement provided in pertinent part that "[a]ny controvery concerning this Agreement, which the Parties cannot resolve within thirty days, will first be directed to mediation in Austin, Travis County, Texas . . . . In the event the dispute is still not resolved through mediation[,] then the dispute shall be settled by a mini-trial in State Court in Austin, Texas . . . ."
The Court noted that:
Although it may sound strange to refer to mediation and a mini-trial as "arbitration," Precision Recovery has argued that the meaning of "arbitration" under the FAA broadly encompasses any situation where "the parties have agreed to submit a dispute for a decision by a third party." Parisi v. Netlearning, Inc., 139 F. Supp. 2d 745, 749 (E.D. Va. 2001) (internal quotation and citation omitted). Plaintiff concedes that the FAA applies.
En banc decision from D.C. Court of Appeals in Grayson v. AT&T requires injury-in-fact for CPPA action
The Court today issued a 92 page decision. See page 49: "Thus, without a clear expression of an intent by the Council to eliminate our constitutional standing requirement, we conclude that a lawsuit under the CPPA does not relieve a plaintiff of the requirement to show a concrete injury-in-fact to himself."
That answers a troubling question about the D.C. Consumer Protection Procedures Act.
Another interesting thing in the opinion is in footnote 16, where the Court says, "this court has not yet decided whether it will follow the facial plausibility standard enunciated in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)."
A more detailed analysis of the Grayson case is available here.
Krebs on Security has another solid piece of reporting on the epidemic of commercial cyber-fraud, and on who should bear the loss.
The FDCC Quarterly in its most recent issue has an article on the allowable standards for the review of arbitral awards. Manifest disregard of the law may no longer be one of the standards.
Meanwhile, the D.C. Court of Appeals has nixed the immediate appeal of an order compelling arbitration, and the U.S. District Court for the District of Maryland has joined other circuits in requiring a surety to arbitrate if the performance bond incorporated by reference a construction contract that contains a mandatory arbitration clause.
After I helped my wife chop the ice off her van windows this morning at 4:30 am, I made this list of free legal classics:
The Art of Cross-Examination, by Francis Lewis Wellman
The Work of the Advocate, by Elliott and Elliott
Day in Court, or The Subtle Arts of Great Advocates, by Francis Lewis Wellman
A Treatise on Equity Jurisprudence, by Pomeroy
Blackstone's Commentaries on the Laws of England, Bks 1-2
John Marshall Gest, The Lawyer in Literature
Samuel Warren, Famous Cases of Circumstantial Evidence
John Forrest Dillon, John Marshall
Harlan Fiske Stone, Law and its Administration
Livingston Rutherford, John Peter Zenger, his press, his trial
Interesting tax malpractice case out of the D.C. Court of Appeals.