Monday, February 16, 2015

Anti-Spam Law: Beyond Systems Loses at the Fourth Circuit

On February 4, 2015, the United States District Court for the Fourth Circuit put what is hopefully the final nail in the coffin for Beyond Systems and its “litigation as a business model” ISP business.

The Court affirmed the 2012 District Court Judgment which had ended Beyond Systems’ lawsuit regarding alleged SPAM email it "received" regarding Kraft Foods’ Gevalia coffee.

The Court held that the District Court was correct that Beyond Systems “consented to the harm it claims it suffered. . . . Beyond Systems created fake e-mail addresses, solely for the purpose of gathering spam, … it embedded these addresses in websites, … it increased its e-mail storage capacity to retain huge volumes of spam, … by which it hoped to increase its eventual recovery under anti-spam statutes.” The Court's opinion is here.

I previously wrote about this case Here and Here.

Tuesday, August 13, 2013

White Flint Mall Litigation - Lord & Taylor Sues to Halt Bethesda/Rockville Redevelopment Project; Mall Files Counterclaim for $1 Billion.

Litigation regarding the redevelopment of the White Flint Mall site is underway in the United States District Court for the District of Maryland.  The outcome of the case could significantly affect the planned redevelopment of the North Bethesda/Kensington/Rockville, Maryland area in which the Mall has operated for more than 30 years.

Lord & Taylor has sued the owner of that mall (White Flint Mall, LLLP – which in turn is owned by the Lerner Enterprises and related persons and entities) alleging that the redevelopment of the site is in violation of a Reciprocal Easement Agreement (“REA”). The Mall has filed a counterclaim against Lord & Taylor alleging that the department store is wrongfully interfering with the redevelopment of the site.

Lord & Taylor’s argument is that the REA precludes White Flint from changing the building and site without Lord & Taylor’s permission. Lord & Taylor is seeking specific enforcement of the REA, and a halt to the redevelopment.

White Flint is seeking One Billion Dollars ($1,000,000,000.00) from Lord & Taylor in damages on grounds that Lord & Taylor has gone along with the redevelopment and not objected to it until the redevelopment was already underway.

In the meantime, the mall is nearly empty. Only a handful of stores remain and anchor tenant Bloomingdales’ building was demolished earlier this year. 

The Greenberg Traurig firm represents Lord & Taylor.  Katten Muchin Rosenman represents White Flint Mall. The judge assigned to the case is Roger W. Titus, and the case number is 8:13-cv-01912-RWT. Copies of the pleadings are available on PACER for a fee. If you don’t have PACER access, let me know and I may be able to email you copies of the documents.

Thursday, August 1, 2013

Employers Take Notice: New Maryland Wage Lien Law Changes the Landscape

In Maryland, effective October 1, 2013, there is an interesting new law which: (1) may become an effective tool for employees to collect wages from recalcitrant employers, (2) may become a real problem for employers, and (3) may overburden the court system.

Under the new Wage Lien Law, an employee can serve a notice of lien on an employer that has failed to pay wages; and if the employer fails to contest the lien by filing an action in the Circuit Court to dispute the lien, then the lien will become final. To pursue collection on the lien, the employee must then file a lien statement with the land records office for liens on real estate and with the Maryland State Department of Assessments and Taxation for liens on personal property. The lien will be enforceable like a UCC lien against personal property, or a Judgment Lien against real property against the assets which have been liened. The employee can also be awarded his legal fees associated with the lien case at the Circuit Court hearing.

A link to the Wage Lien Law is here

Two definitions under the law are of particular importance:
  • The definition of employer under the new law is expansive, and includes not only the   corporate entity for which the employee is working; but also the persons in control of the entity and its payroll.  Therefore, the employee will be able to lien not only the assets of the business, but also of these control persons.
  • The definition of wages does not include commission payments. Therefore, these claims will typically not be very large unless the employee has tolerated not being paid for multiple pay periods.

 The Circuit Court will be required to adjudicate these employer lien challenges within 45 days of filing. That is a very short time from filing to hearing for many of the already very busy Circuit Courts. It will be interesting to see whether that timing requirement is honored by the Courts, or whether they will simply schedule hearings in the normal course and disregard the 45 day rule.

One problem that I see is that if an employee sends a notice that he is owed less a $1,500.00 or so in wages, when he is not in fact owed that sum, or if it at least is a disputed claim, will the employer spend the funds necessary to hire counsel to defend such a claim? Or, will the employer settle with the employee or pay the employee the amount claimed simply in order to avoid the legal fees and costs of contesting the lien.

Under the law, if the employee’s wage claim is frivolous, then the Court can award the employer its legal fees, but it is often difficult to show that a claim is frivolous, and collecting your legal fees from a disaffected (maybe unemployed?) former employee can be a real challenge.

If you are an employer who has been served with a wage lien notice, it will be important to act quickly and contact counsel to advise you as to how to proceed.

For another perspective on this, and some links of interest, take a look at the blog post of a very experienced lawyer who pursues many wage collection claims for employees: Rubin Employment Law Blog