“A problem that continues to evolve.”
– Matthew Verga, an attorney and e-discovery expert, on the continued creation of new emojis that will find their way into litigation.
Emojis are digital images that express ideas or emotions, such as a wink or a smile.
According to one dataset from Santa Clara Law Professor Eric Goldman, “Emoji case law references have basically doubled every year since 2015.”
Some are high-profile cases. In October, a federal grand jury indicted a Los Angeles city councilman on bribery and conspiracy charges.
“Listed in the 20-count indictment are email communications in which emojis allegedly convey confirmation and understanding of overt acts,” wrote Cedrya Mayfield for Law.com.
But Verga says researching emoji case law isn’t easy.
“When you’re researching case law, most of the big research services do not have support when searching via emoji or other elements, only text,” Verga said. “There’s no way to even find easily all of the opinions or guidance or attempts in the past to interpret a particular symbol on the record.”
Source: Technology and Marketing Blog
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By the Numbers
– The amount of restitution that a Virginia woman was ordered to pay to retailers and manufacturers because of her counterfeit coupon scam. She was also sentenced to more than 12 years in prison. It’s a cautionary tale as the holiday shopping season approaches.
Lori Ann Talens used a background in marketing and computer design to create fake coupons for grocery and drug store products, offering discounts.
“She trained herself in the different techniques she needed to manipulate barcodes to make these coupons work,” said FBI Special Agent Shannon Brill.
Talens would create the fake coupons and then sell them to people who knew they were fake, using an encrypted app.
Over a three-year period, Talens pocketed about $400,000 from her coupon subscribers. A search warrant uncovered more than $1 million worth of fake coupons. The FBI is still investigating those who bought the coupons knowing they were fake.
Talens did not allow customers to subscribe to the ring without sending a copy of photo ID and evidence they used counterfeit coupons before, ensuring they took on some risk.
The Coupon Information Corporation and the FBI advise against paying to join groups that give access to coupons, and to only download coupons from the manufacturer’s website or an authorized distributor.
A Hollywood comedy, Queenpins, is based on a similar coupon scam. Watch the trailer at https://bit.ly/3w0hrW1.
When Is a Single Word Worth $300 Million?
Short answer: When its plural form is used.
In another lesson in careful contract drafting, a corporate client has sued two law firms because of one pluralized word in an asset purchase agreement.
TerraForm Power LLC, in a lawsuit filed last month against the two large New York City law firms, alleges that the asset purchase agreement used the plural “buyers” instead of “buyer” – costing the company $300 million.
“Buyers” was used in the context of an “acceleration” clause for future payments that were due to a company that sold its assets to TerraForm Power and another company, which later went into bankruptcy.
The other company, SunEdison, had agreed to pay $510 million for future development projects relating to solar and wind farms.
TerraForm Power now alleges that use of the term “buyers” to describe who would be on the hook for future payments must have been a legal drafting error, because it would not have agreed to assume that contractual obligation.
Source: Bloomberg Law
Responding to Online Reviews: Ethical and Practical Considerations
Anyone can leave an online review regarding a lawyer’s services. Reviews typically originate from clients and interested parties to actions, but can also stem from interactions with opposing counsel and the public.
ABA Formal Opinion 496 reminds lawyers of their ethical obligations regarding confidentiality and discourages lawyers from responding to online reviews.
If you feel compelled to respond to an online review, make sure you understand the permissible responses outlined in the ABA opinion. State Bar of Wisconsin ethics counsel can provide guidance.
Another option is to explore whether the online service will remove the review. A video on removing or addressing online reviews is at wisbar.org/practice411, just click on the videos tab.
Maintaining confidentiality extends to the information you provide to the online service when seeking to remove a review. If you have questions about the practical considerations of removing an online review, contact Practice 411™ for a complimentary consultation.
Source: Christopher Shattuck, State Bar law practice assistance manager (Practice 411™)
Public Service Loan Forgiveness Expands: Apply by Oct. 31, 2022
West Allis city attorney Kail Decker recently discussed his experience with the Public Service Loan Forgiveness (PSLF) program, noting new rules that temporarily expand who qualifies.
The PSLF was created as part of the College Cost Reduction Act of 2007, under President George W. Bush. The intent was to allow those working in public service jobs – including public interest lawyers, and government lawyers such as prosecutors and public defenders – to clear the balance of their student loans after making 120 monthly payments (10 years). But applicants must make “qualifying” payments on “qualifying” loans while working for a “qualifying” employer. The program rules created a quagmire for those seeking a path to loan forgiveness.
As Decker explained in his Oct. 20 WisBar InsideTrack article, the temporary expansion allows those who did not previously qualify – based on technical disqualifications – to more easily meet program requirements for obtaining loan forgiveness.
Applicants have until Oct. 31, 2022, to apply under the temporary rules. “Anyone who has run into the FedLoan [Servicing] brick wall more times than they can count should dust off and line up for one more run,” Decker wrote.
On the Radar
COVID-19 and School Immunization Programs
As COVID-19 vaccinations start rolling out for school-age children, will they be required to get them as part of Wisconsin’s statewide school immunization program?
In October, California became the first state to require COVID vaccinations for K-12 children once the FDA fully approves COVID vaccines for those age groups.
Wisconsin law, Wis. Stat. section 252.04, requires the state Department of Health Services (DHS) “to carry out a statewide immunization program to eliminate mumps, measles, rubella (German measles), diphtheria, pertussis (whooping cough), poliomyelitis and other diseases that the department specifies by rule, and to protect against tetanus.”
Thus, if the DHS wants to add COVID vaccines to the list, it must “specify by rule.” However, DHS action during the pandemic has been the subject of much litigation in state courts.
In addition, Wisconsin is one of many states that allow immunization waivers for “reasons of health, religion, or personal conviction.” A handful of states don’t allow nonmedical waivers based on religious or philosophical beliefs.
Source: ABA Journal; National Conference of State Legislatures