Canadian lawyer copyright action against Thomson Reuters certified as class action

February 24, 2012
Thomson bReuters Messenger

Following recent news of an attorney federal class action filed in New York against LexisNexis and West for copyright violations, Jason Wilson at rethinck reports that the Canadian copyright action against Thomson Reuters has been certified as a class action.

The action in Waldman v. Thomson Reuters Corporation 2012 ONSC 1138 (Court File No. 10-CV-403667CP) involves a primary and secondary copyright infringement claim and infringement of moral rights claim brought by Lorne Waldman, a leading immigration and refugee lawyer, against Thomson through its legal publishing division, Carswell.

Waldman previously drafted and filed an appeal factum in the Court of Appeal for Ontario, on behalf of his client as intervenor, Maher Arar, in Bouzari v. Republic of Iran, an appeal which involved the issue of state immunity for torture.

Waldman subsequently registered a claim for copyright in his factum with the Canadian Intellectual Property Office. The Waldman class action alleges that  Thomson infringed the copyright of the class members by allowing subscribers to the Litigator service to access copies of court documents authored by lawyers and law firms, without permission and for a fee. Waldman claims on behalf of the class, $50 million in general damages and disgorgement of profits, or, alternatively, statutory damages under section 38.1 (a minimum of $500 and a maximum of $20,000) , $1 million in punitive damages, costs and pre-judgment interest.

Justice Perell rejected Thomson’s arguments that the class action was antithetical to the underlying rationales for class proceedings; namely, the open court system, access to justice, behaviour modification and judicial economy.  Perell J. also rejected Thomson’s arguments based on lack of commonality, identifiable class or preferable procedure criteria, finding that any purported difficulty in adjudicating individual claims to copyright, lack of originality or creativity, client contribution or waiver of privilege, were triable issues or to be addressed during the litigation, as were any available statutory and common law defences, such as fair dealing.  As Perell J. notes,

[7]               However, notwithstanding Thomson’s challenges, in my opinion, Mr. Waldman’s action does satisfy the criteria for certification, and with some modifications to the class definition and to the common questions, his action should be certified.

[8]               As my Reasons will reveal, Thomson’s arguments about commonality and about the preferable procedure criteria of certification should be rejected. In the main, Thomson’s arguments fail to recognize that certification is a technical and procedural legal phenomenon and the court’s gatekeeper’s role is limited to ensuring that the technical and procedural elements of the test are satisfied, which, subject to some adjustments, is the situation for the case at bar. Some of Thomson’s arguments against certification, while relevant to the determination of the merits of the action and to Thomson’s several defences, are not pertinent to whether, as a procedural matter, the action should be certified as a class action.

Full Disclosure: I have co-authored a few pleadings and facta that are on the Litigator database which means I would qualify as a member of the Class, unless I opt out].

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Leave a Comment » | Civil Litigation, civil procedure, class action, class actions, Class Conflicts, client, copyright | Tagged: , , , , , , , , | Permalink
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Guest Post by Josh Reynolds:  Releasing Our Inner Rachel

February 23, 2012

While Jordan Furlong struggles with unbundling and rebundling legal services as if they were hemlines, because law firms are perpetually foundering on the edge of a precipice, apparently at risk from the weight of flowing receivables, a greater threat to the profession looms from below. South of the border, in a land built on swamps and inhabited by hobbit like beings and New Yorkers preparing to die, stands a man of curious stature.  Yes, he’s standing, even if it’s hard to tell.

Obviously, I speak of Brian Tannebaum, whose invective has sliced and diced the youthful, the innovative, the fresh-faced and perky lawyer who seeks nothing more than to thrive in Furlong’s vexing legal universe.  Tannebaum can’t stand it. Late at night, with the lights dim, he scours the internet for novel approaches to thwart, exuberance to quash and effort to belittle.  He calls himself a bully, but not even a bully can suck the life out of a young lawyer like a Tannebaum.

And so this Tannebaum sets his beady eyes on his victim du jour, Rachel Rodgers, whose crime is to try. To try? Yes, to try.

The facile negativity of the Tannebaum, always as gloomy as the basement where he would resign young lawyers to wallow in their debt and dashed dreams, toward any effort to challenge the status quo, which invariably favors lawyers who have had a decade or two to spend developing their skills and referral base comes like night after day.  Would he prefer they sit on a couch bemoaning their sorry choice, to become a lawyer at a time when jobs are scarce and clients even scarcer?  Would that evil chuckle escape his thin lips, knowing that another young lawyer was left destitute and disheartened by his attack?

Some, the hard-hearted and vicious, will applaud the Tannebaum, his purported emphasis on horse-and-buggy ethics of the sort crafted when most residents of his chad-challenged state were young.  But if there was merit to his sneer, we would still be wearing breeches and a waistcoat.  The edge keeps moving, cutting, expanding, without regard to the narrow limits permanently fixed in the mind of the Tannebaum.  And they are moved because of the youthful exuberance of lawyers like Rachel Rodgers.

Futurists in the law struggle to see what changes technology will bring, just as Bell and Edison pondered the implications at the birth of their devices.  Perhaps not every new idea will be a game-changer, but some most assuredly will.  And it will be both the seers, like Furlong, and the doers, like Rodgers, who lead the charge for change, and who will enjoy, or suffer, for their choices.  Let them!

Why, oh why, must the Tannebaum feel as if its his responsibility, like the avenging angel, to always be the one to call out thought leaders as frauds and fools?  What makes him so confident that they aren’t right, that they haven’t discovered, or at least promoted, a new and effective way to make the law more accessible to those most in need, and simultaneously bask in the glow of being the lawyer with the guts to push the edge away.  Is it not right that those with the guts get to enjoy the glory?

Is there any one of us, any lawyer, any person, who doesn’t want to distinguish ourselves by taking risks and leading thought?  Certainly, many are afraid of being wrong, not to mention being the target of the evil Tannebaum.  Yet, that’s why the few who have chosen not to be afraid, not to cower in the face of evil, deserve both our praise and appreciation.  To the extent we have a Rachel Rodgers hiding within us, we too could be bold enough to lead the charge.

But then, not every new idea will end up being a game changer.  Not every cutting edge concept will serve to better serve clients or make our name a household word.  In fact, it’s quite likely that much, perhaps even most, of what is propounded by those who adore technology will turn out to be massive and horrible failures, causing unforeseen and unintended consequences that could harm so many.  And those of us who embrace our inner Rachel’s will have gone down the path, wreaking havoc with the lives and fortunes of others, and unintentionally have been the font of misery to so many.

If only there was someone who would remind us that his could happen, who would rein us in and calm our ferver.  If only there was a lawyer who cared so little for being loved and adored by others, drawn to him by uncritical positivity and support, and would speak the words that so few want to hear, but so many need to hear.  If only there was a Tannebaum to keep us from making these horrible mistakes and harming others.

Leave a Comment » | Brian Tannebaum, Legal Ethics, legal marketing, legal practice, legal profession, social media | Permalink
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Lisa Spagnolo on “Iura Novit Curia and the CISG: Resolution of the Faux Procedural Black Hole”

February 22, 2012

Lisa Spagnolo (Monash University – Faculty of Law) has published “Iura Novit Curia and the CISG: Resolution of the Faux Procedural Black Hole” in I. Schwenzer & L. Spagnolo, Towards Uniformity: The 2nd Annual MAA Schlechtriem CISG Conference, Eleven International Publishing (2011) 181-221. The Introduction reads:

“A growing line of cases points to a potential black hole in the CISG. Through a combination of domestic procedural rules and waiver principles it seems many cases to which the CISG clearly applies are being determined on the basis of inapplicable law, simply because counsel failed to mention the CISG.

This result is at worst incorrect, and at best, unsatisfactory. In my view, judges (and to a lesser extent, arbitrators) who realize the CISG applies to the case before them rather than the local sales law presented by counsel, often should, and in many cases, must apply the CISG. In this article I will present the case for how and why this should occur, regardless of local procedural ground rules.

The chapter begins in Part 2 with a typical factual setting and examples of it in practice. Part 3 presents the traditional view, according to which the forum’s procedural rules should provide the solution, outlines the nature of iura novit curia, and queries whether observed diversity in outcomes can be attributed to variance in procedural rules or interpretation of the CISG. The balance of the chapter attempts to provide a resolution to the problem that will improve certainty. Parts 4 and 5 respectively pose and analyse the questions so often obscured by the approach taken in the cases and by the traditional view: is there an obligation to apply the CISG if it is not pleaded? And if so, does failure to plead the CISG  per se amount to an agreement to exclude it? Part 6 puts forward a range of practical solutions, and Part 7 draws some brief conclusions.”

The paper is available for free download via the Pace Law School CISG Database here [pdf link].

3 Comments | CISG, contract, Convention of International Sales of Goods, International, international arbitration, international commercial arbitration, International Commercial Law, international commercial litigation, international dispute resolution, international law, international litigation, international sales law, iura novit curia, Lisa Spagnolo, United Nations Convention on Contracts for the International Sale of Goods | Tagged: | Permalink
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International Banking Antitrust Class Action Filed In New York

February 15, 2012
English: The Montreal head office of the Royal...

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Gelboim v. Credit Suisse Group AG et al. (12-CV-1025) is is a recent international banking antitrust class action filed in the U.S. District Court (S.D.N.Y). A pdf copy of the pleading is available here.

The Plaintiff seeks certification of the class action as a representative plaintiff under Rule 23(b)(3) of the Federal Rules of Civil Procedure. She alleges that the world’s leading international banking institutions, including the Royal Bank of Canada, conspired to manipulate the London Interbank Offer Rate (LIBOR), administered by the British Bankers Association,  in violation of the Sherman Antitrust Act, 15 U.S.C.§ 1 “to create the appearance of financial strength and not reveal to the market their true respective financial positions.” (at para. 10).

(H/T Marc Goldstein)

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Scott Greenfield: He Did It His Way

February 14, 2012

I am still reeling from Scott Greenfield’s abrupt announcement, on the day of his 5th blawging anniversary, that he has decided to shutter his magnificent blawg: Simple Justice.

Dan Hull and Brian Tannebaum have already paid personal and professional tribute to Scott Greenfield: the man, the lawyer, the curmudgeon, the husband, the father, the friend. Many on Twitter have expressed their 140-character long wishes and condolences.

I have never met Scott, as the interwebz hipsters say, “IRL”. Yet, I have had the  distinct privilege of getting to know him as a lawyer and as a blawger in the past few years. We have talked over the phone and exchanged emails regularly. I have often burdened Scott with practice-related questions. Not once has Scott given me short shrift. Even as I approach 20 years of legal practice, he remains one of my very few trusted mentors.

Scott and I acquainted on Twitter, of all places, back in 2009. For his own inscrutable reasons, Scott chose to add me as one of his “friends”. This means nothing to many who only see Twitter as a means to an end.

Over time, we have shared some jokes and ideas, but mostly I gained from Scott a deeper and more abiding respect for the nobility of the legal profession. Candidly, if I had met Scott as a new lawyer, I would have chosen to become a criminal defence lawyer instead. The depth and breadth of his passion (used in the traditional, not social media, sense) and respect for the Rule of Law, even when the legal profession and the judiciary lose sight of the meaning of “Simple Justice”, resonated with me on a fundamentally personal level.

As I recently said on the Twitter: “I lament @ScottGreenfield’s decision to shutter Simple Justice. I do not need to know his reason for his doing so.”

I previously paid tribute to Scott in a post, which is reproduced below:

A Tribute to one of the Four Horsemen: Scott Greenfield and His Simple Justice Blawg

 

The White Horse

“I watched as the Lamb opened the first of the seven seals. Then I heard one of the seven living creatures say in a voice like thunder, “Come!” I looked, and there before me was a white horse! Its rider held a bow, and he was given a crown, and he rode out as a conqueror bent on Conquest.” —Revelation 6:1-2 

This is a short tribute to Scott Greenfield, the author of the widely acclaimed Simple Justice blawg and one of the Four Horsemen of the Blawgosphere.

I began blawging last August and first became “virtually” acquainted with Scott Greenfield, along with Mark W. Bennett (Defending Peopleand Social Media Tyro), Brian Tannebaum (Criminal Defense Blog andMy Law License) and Brian Cuban (The Cuban Revolution) by following each of them on Twitter and their blawgs. I take credit in dubbing them “The Four Horsemen”: they are the harbingers of the decline of the legal profession in the wake of the social media hyperbole that permeates the internet with an odoriferous ,sickly-sweet smell of brimstone and treacle.

While each is fiercely individualistic, they all share a common trait: a fierce dedication to exposing hypocrisy, injustice and tyranny—whether it is committed by the government, the legal profession or individual lawyers  or what I call “fauxyers” (those who are suspended, disbarred, unemployed or non-practising).  While our perspectives, practices and philosophies differ, we shared an antipathy towards self-anointed legal ethicists, cyberpaths and social media svengalis; none of whom deserve mention, even in passing.

This post is a modest expression of collegiality in response to Scott’s recent post entitled: Simple Justice: Simple Justice: Through The Eyes of Scott Greenfield.   

Like many others (most recently Eric Turkewitz over at New York Personal Injury Law Blog), I admire Scott’s unique ability to write cogently and succinctly about a wide range of legal and societal issues. How Scott is able to sustain the prodigious output of quality legal analysis remains a mystery; but self-discipline is not preternatural, it is a skill that is learned, yet cannot be taught.

Just as the White Horse represents righteousness, so does Scott’s Simple Justice blawg. Scott, as he notes, writes for himself. We are the beneficiaries of his selfishness. Most of Scott’s posts are devoted to timely, incisive analysis on substantive criminal  law issues, much like the Law & Order slogan of “stories ripped from the headlines”. Yet, Scott does not fictionalize, sanitize or trivialize. His Simple Justice  blawg is the embodiment of a Manichean conflict of the good versus the mediocre; a pitched battle against spammers, trolls, social media gurus, and the Slackoisie—all of whom share a common pathology: a narcissistic sense of self-entitlement. Well enough that the White Horse also signifies pestilence or plague, and it is Scott whose infectious writing is a panacea to all the phony baloney wanna-be unemployed legal marketing experts.

Keep fighting the good fight, Scott. I continue to try to scale the vertiginous heights with the hope that someday I will stand aloft on the shoulders of a blawging giant.

Wherever and whenever you end up writing again, Scott, I will be among the first to read and benefit from your insights.  While this may be the end of Simple Justice, it is a surely the beginning of even greater things.

And now…a musical interlude as the curtain closes….

1 Comment | Scott Greenfield, Simple Justice | Permalink
Posted by Antonin I. Pribetic

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