Governor Hogan appoints David W. Lease to be Circuit Court Judge

Governor Hogan's Press Release

Maryland Governor Larry Hogan has appointed David W. Lease of our firm to be a Judge on the Circuit Court of Montgomery County, Maryland. Judge Designate Lease's investiture ceremony is Friday, January 19, 2018 at the Circuit Court in Rockville.

Federal Indictment in BitTorrent Cases

The lawyers behind those extortionate BitTorrent cases have been indicted: Indictment.

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.

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.

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

SpamLaw: Fourth Circuit Affirms Dismissal of Foreign Banks from "Honey Pot" Internet Pharmacy Case

I have handled defense of alleged email “spamming” cases in both state and federal courts.  Recently, the United States Court of Appeals for the Fourth Circuit rendered an important opinion in regard to the reach of court’s jurisdiction in these cases: Unspam Technologies v. Chernuk.

In Unspam Technologies v. Chernuk, the Fourth Circuit upheld the U.S. District Court for the Eastern District of Virginia’s dismissal of foreign banks that were alleged to have profited from a spamming conspiracy. 

The plaintiffs in this case were a company formed for the purpose of pursuing enforcement of Internet laws, and an Arlington, Virginia resident who claimed that he himself was the victim of a spam conspiracy. The two plaintiffs specifically were seeking to redress a global cyber-crime conspiracy “to use popular credit card processing systems (particularly the Visa network) to collect funds from the sale of illegal counterfeit prescription drugs over the Internet to American consumers.” They alleged that consumers in the U.S., such as the individual plaintiff, responded to email advertisements for prescription drugs and paid for the drugs with credit cards. The Internet “pharmacists” then presented the credit card transactions to Internet Payment Service Providers, which in turn presented them to foreign banks participating in the international Visa network. The banks collected on the charges from the consumers’ accounts through the Visa network, but ultimately, the pharmacists never filled the orders for the prescription drugs or filled them with counterfeit drugs.

The plaintiffs argued that the frequency and nature of such transactions supported their claim as to the existence of a global conspiracy that violated U.S. and Virginia law. Plaintiffs agreed to the dismissal of one of the pharmacist defendants, and failed to properly serve the other. The only defendants remaining on appeal were foreign banks alleged to be integral to the conspiracy in that they were “responsible for the vast majority of this illegal business extending over a number of years” because they processed the largest number of transactions submitted to the Visa network by the fraudulent Internet pharmacists. The plaintiffs asserted that these banks, although headquartered outside the United States, could be sued in the United States for knowingly participating in a conspiracy that both depended on critical resources within the United States and caused widespread harm to American consumers. Plaintiffs further alleged that because the banks were part of a global conspiracy, any single defendant’s constitutionally sufficient contacts with Virginia would subject every coconspirator to personal jurisdiction in Virginia.

To justify personal jurisdiction over the foreign banks, the plaintiffs contended that the Internet “pharmacists” deliberately transmitted spam emails over the Internet, seeking to sell prescription drugs and aiming at email addresses that had been “harvested” from web pages, including addresses of persons in Virginia, such as the individual plaintiff. They argued that, based on this contact with Virginia, the district court had jurisdiction over the pharmacists under Virginia’s long arm statute and thus over the pharmacists’ coconspirators.

Plaintiffs asserted that the court should apply a “conspiracy theory of personal jurisdiction,” and thereby keep the foreign banks in the case. The court noted, however, that conspiracy requires a “common plan,” and there were no allegations that the banks’ processing of the transactions were designed to achieve the illegal ends of the fraudulent pharmacists.

In cases involving Internet activity, the Fourth Circuit previously adopted a three-part inquiry to determine whether a defendant is subject to jurisdiction in a state because of its electronic transmissions to that state. As set forth in a 2002 Fourth Circuit decision, ALS Scan v. Digital Serv. Consultants, 293 F.3d 707, the inquiry considers:

1) the extent to which the defendant purposely availed itself of the privilege of conducting activities in the state;

2) whether the plaintiffs’ claims arise out of those activities directed at the state; and

3) whether the exercise of personal jurisdiction would be constitutionally reasonable.

Plaintiffs failed to show any sufficient connection between the foreign banks and Virginia. Not one of the banks directed its business to Virginia or aimed its commercial efforts at customers in Virginia, and there was no indication that any of the banks acted in such a way as to subject itself to the sovereign power of a court in Virginia. Finally, there was no evidence that any drug transactions involving the plaintiffs were connected by intermediaries to these foreign banks. There was no legal basis for the court to exercise jurisdiction over the foreign banks and to do so would be unconstitutional.

Here’s a link to the case: http://www.ca4.uscourts.gov/Opinions/Published/112406.P.pdf

Ripken Baseball Sex Discrimination Case - Arbitration Clause Not Enforceable

In a recent decision, Raglani v. Ripken Professional Baseball, the United States District Court for the District of Maryland denied an employer’s motion to dismiss or stay and compel arbitration in a gender discrimination action brought by a former employee. The decision rested on two grounds: 1) there was insufficient consideration for agreement, i.e., a mutual exchange of promises to arbitrate; 2) the requirement of a neutral forum was not met.

Briefly, the case involved an action under Title VII of the Civil Rights Act of 1964 and Maryland state law, alleging that the plaintiff was unfairly terminated for engaging in a romantic relationship with a subordinate, when, despite a company policy forbidding such relationships, she alleges several of her male counterparts engaged in sexual relations with their subordinates and never were reprimanded. The plaintiff’s action also alleged negligence, wrongful discharge and breach of contract.

Upon her hiring, the plaintiff was required to sign a Problem Support Policy Acknowledgement and Agreement (“PSP”), which stated it was “‘a valid and binding legal obligation … in consideration of [her] hiring for employment or [her] continued employment … .’” The PSP stated it was a “procedure” to be used by “‘[a]nyone who feels they have a problem that requires management’s attention.’” The court provided a pointed criticism of what it characterized as an unbalanced agreement: “The PSP is entirely one-directional, binding employees to dispute resolution procedures …. but silent on [the employer’s] obligations to do anything other than “facilitate” this process in the event an employee submits a ‘problem’ to management.”

The “binding arbitration” provision in the company’s PSP stated:

Human Resources will provide a list of qualified Arbitrators upon a formal request to move to this step. … The rules of the arbitration will be subject to the Federal Arbitration Act and agreed to by both parties. … [Employer] will assume responsibility for the costs of the Arbitrator. If the [employee] decides to have their attorney present, the cost of that attorney will be the responsibility of the [employee]. After the meeting, the Arbitrator will submit a decision in writing and this decision shall be final.

The court found the arbitration provision defective and unenforceable because by giving the employer exclusive control over the list of arbitrators, it denied one party (the employee) access to a neutral, arbitral forum. The court also stated that the arbitration provision was too vague with regard to establishing rules by which arbitration would be conducted. (The provision does state that arbitration rules would be subject to the Federal Arbitration Act, but the FAA does not establish rules.)

While the court addressed the potential for bias where one party has the authority to limit the arbitrator selection process, something not discussed is the exponential bias one might imply from the fact that the employer both circumscribed arbitrator selection and assumed sole responsibility for paying the arbitrator. Given this pairing of control and monetary power, the arbitrator could be viewed as the employer’s “hired gun.”

A link to the decision is here:

http://www.mdd.uscourts.gov/Opinions/Opinions/Raglani%2016%20April%202013.pdf

Anti-SPAM Ruling: Maryland Federal Jury Decides that Beyond Systems, Inc. is Not a Bona Fide ISP

I have handled cases defending companies and individuals being accused of sending SPAM emails.  The usual plaintiff company was Beyond Systems, Inc.  Beyond Systems claimed that it was an interactive service provider (ISP) and that it was negatively affected by SPAM emails.  The cases I handled were for small companies and individuals that lacked sufficient resources to defend the cases – so the cases were settled (relatively inexpensively) in order to avoid paying what would have been substantial legal fees to defend the cases through trial.

In the very good news for the world category: someone finally had enough financial resources to defend one of these cases all the way through to trial, and last month a jury in the United States District Court for the District of Maryland ruled that Beyond Systems was not an ISP.  If Beyond is not an ISP under the Maryland Act (MCEMA), then it should not be entitled to bring any cases against alleged spammers under a Gordon v. Virtumundo case.  (I cited the Virtumundo case to the same Court in 2007, but on a preliminary motion, which the Court denied.  I blogged about the issues here: Previous Blog Post)

From here, the Court will now decide whether or not the case may proceed at all given the jury’s finding.  Hopefully, this is the end for Beyond Systems' and its owner’s extortionate litigation tactics.

Lawyers at Venable defended the case for Connexus Corp.  Their news release about the case is here: Venable News Release.

The Washington Post wrote about the case here: Washington Post Article.

Thousands of Collection Suits Dismissed by Maryland District Court

The District Court of Maryland, Maryland's court of general jurisdiction in civil cases up to $30,000.00, dismissed 3,564 collection cases on Tuesday after reaching a settlement with the debt collection agencies involved.  The State will also receive $1 million.

The settlement came after the State had claimed that the the collection agencies violated state and federal laws and submitted false or misleading documentation with the courts.

Press Release

Bit Torrent John Doe Cases Limited by Maryland's Federal Court; Risk of Extortionate Settlements Too Great

In the past year, I have handled several Bit Torrent file-sharing cases.

Recently, the United States District Court for the District of Maryland (Judge Chasanow) in Third Degree Films v. Does 1-108 ruled that copyright plaintiffs may not join multiple “John Doe” defendants in a single copyright infringement case that alleges copyright infringement via “Bit Torrent” file-sharing.

The plaintiff was suing 108 John Doe defendants for the alleged infringement of a porn film. Plaintiffs in such cases used Federal Rule of Civil Procedure Rule 20 as the basis for joining multiple defendants in one case. This allowed the plaintiffs to pay a single $350.00 filing fee to sue hundreds of defendants, and allowed those plaintiffs to save on legal fees as well.

The Court held that: “the risk of extortionate settlements is too great to ignore,” that “the risk of inappropriate settlement leverage is enhanced in a case . . . involving salacious and graphic sexual content where a defendant may be urged to resolve a matter at an inflated value to avoid disclosure of the content the defendant was accessing,” and that the “prejudice, expense, or delay” of joining such defendants substantially outweigh the convenience of such joinder.

This may be a significant blow to the porn companies and legitimate movie studios that have been using joinder of dozens, and sometimes hundreds, of John Doe defendants to make their cases economically feasible. The filing fee for a federal case with 100 defendants is $350.00. The filing fee for a case with one defendant is $350.00. If the copyright plaintiff wants to sue 100 defendants, it will now have to pay $35,000.00 in filing fees to initiate a case that last month cost only $350.00.

Maryland Court of Appeals: Maryland Courts Can Divorce Same-Sex Couples; Maryland Legislature Suffers From Multiple Personality Disorder

On May 18, 2012, in Port v. Cowan, the Maryland Court of Appeals decided that parties to a California same-sex marriage could be divorced by a Maryland Circuit Court. The Court decided that based on the doctrine of comity, which allows laws and judicial decisions of one state to be recognized by another state out of deference and respect, the California marriage was subject to dissolution through Maryland’s divorce proceedings. This ruling is based on the Court determining that same-sex marriage is not “repugnant” to the public policy of the State of Maryland.

In making this ruling, the Court of Appeals found that the Maryland Legislature was suffering from “multiple personality disorder.” The Court said that this “lay-diagnosis” is based on the Maryland Code (section 2-201 of the Family Law Article) currently defining marriage as being between only a man and woman; and the many other statutes protecting same-sex couples from discrimination in employment, health care, and estate planning.

A copy of the opinion is here: http://mdcourts.gov/opinions/coa/2012/69a11.pdf

New Maryland Case on Attorney's Fee Awards - Fixed Percentage Fees in Promissory Notes & Post-Judgment Attorney Fee Awards

The Maryland Court of Special Appeals recently addressed an issue that affects lawyers and other contract and promissory note drafters. In Suntrust Bank v. Goldman, the Court ruled that actual reasonable attorneys' fees incurred are the proper measure of an attorney fee award even where the promissory note calls for a fixed percentage fee based on the amount of the obligation due.

In the case, Sunstrust's Credit Line agreement provided that Suntrust was entitled to an award of attorneys' fees equal to 15% of the principal due "or reasonable attorneys' fees allowed by law." Suntrust asked for an award of $60,206.00 (15% of the balance due) and the Circut Court for Baltimore County awarded actual attorneys' fees of only $3,094.00.

The Court of Special Appeals agreed with the Circuit Court. The Court's opinion is here. Specifically, the Court held: "Thus, Maryland law limits the amount of contractual attorneys fees to actual fees incurred, regardless of whether the contract provides for a greater amount. The contract may provide that the amount of fees is determined by a percentage or some other method, but to comply with the indemnification requirement, the amount of fees paid pursuant to the agreement between the claimant and its attorneys must equal or exceed the amount provided for in the contract."

The Court also dealt with the issue of attorneys' fee awards for post-judgment collection efforts, and seemingly recommended that if a creditor wanted to be able to pursue reimbursement for post-judgment colection efforts, it could include clear language in its agreements providing that the parties intend that the attorneys' fee provision shall not merge into a judgment on the agreement.

New Business & Technology Opinion - Montgomery County Circuit Court

The Circuit Court for Montgomery County, Maryland, Judge Ronald Rubin, recently issued an opinion in the Hospitality Partners, LLC v. Brewmasters Hotel, LLC case.

The case is summarized and linked to by Edward Sharkey of the Maryland State Bar Association's Business Law Section at http://bit.ly/r5Jx0h.

In the case, the Defendant argued (on a motion for new trial) that a $2.8 million judgment was inappropriate where there was a contractual clause allowing the Defendant to terminate a contract without cause and calling for a termination payment far below the $2.8 million awarded.

The court held that the Defendant did not argue applicability of that clause at trial, and could not do so now on a motion for new trial. In essence, the Defendant was stuck with its decision to try and terminate the contract "for cause."

Maryland Court of Special Appeals: Perpetual Waiver of Statute of Limitations Unenforceable

In 2009, I helped my partner David Lease try the case of Ahmad v. Eastpines Terrace Apts. in the Circuit Court for Montgomery County. In that case, the plaintiff sued a company owned by his elderly father alleging that he was entitled to payment for services allegedly rendered to the company, and for amounts allegedly advanced on behalf of the company.

Defendant denied owing anything to Mr. Ahmad, and argued that even if any amounts ever had been due Plaintiff for his claims, those claims were barred by Maryland's three year statute of limitations. Plaintiff argued that a document he drafted and had his elderly father sign waived the statute of limitations. [The document had been drafted in English, and Plaintiff's father could not read English]

At trial, the Circuit Court held that the document did not perpetually waive the statute of limitations, and that in any event, a perpetual waiver would be against public policy and unenforceable. Judgment was entered in favor of our client on all of Plaintiff's claims. Plaintiff appealed to the Court of Special Appeals.

The Court of Special Appeals affirmed the Circuit Court. The appellate Court held that the document in question did not specifically say that it waived limitations perpetually, and that even if it did, perpetual waivers of limitations would be unenforceable under Maryland law.

A copy of the opinion is here.

New Case on Attorneys' Fee Awards

The Maryland Court of Special Appeals today decided Friolo v. Frankel, which will be known as Friolo IV because it is the fourth appeal of this case on the issue of attorneys' fees in a wage payment and collection case under Maryland law.

The opinion is here.

It is likely that none of the parties in the case are happy with the result. According to Plaintiffs' counsel, they have billed hundreds of thousands of dollars in this case, but were only awarded a fraction of those fees. Defendants have spent similar amounts and the result of the case requires that they pay Plaintiffs the original (small) judgment in the case and more than four times that much in legal fees to the Plaintiffs' counsel.

Maryland Court of Appeals Rules: "Landlord - No License, No Rent Case"

For a long time I have wondered how the Maryland Court of Appeals would rule in a summary ejectment (rent case) landlord-tenant case if the tenant challenged the validity of the suit based on the landlord’s lack of a license required by the local jurisdiction where the property is located. On May 4, 2011, the Court of Appeals ended my speculation. In McDaniel v. Baranowski, (copy here) the Court ruled that a landlord without a license to rent his or her property cannot bring a summary ejectment action against the tenant.

In light of the McDaniel case, every tenant lawyer will be searching the licensing records of the landlord to see if the rent case can be dismissed on a preliminary motion. Every landlord would be wise to make sure that all licensing requirements are followed.

A question remaining is what happens next if you are a landlord? How can you remove your tenant for failing to pay rent if you are not licensed? Well, the Court seems to say that as long as the landlord obtains a license and pleads and proves that licensure in Court, the landlord can proceed. Therefore, the landlord appears to be able to cure the defect; and even though the landlord was not licensed at the time of the lease to the tenant, a newly licensed landlord may sue for possession after a tenant’s failure to pay rent.

Negligent Hiring/Negligent Retention Claims not Barred by Workers' Compensation Law

A common issue encountered in running a business is the application of the Workers’ Compensation laws. These laws provide for benefits to be paid to injured employees, and preclude employees from suing their employers for such injuries. Employers have, on occasion, sought to use these Workers’ Compensation laws to further narrow the scope of claims that an employee may bring.

On March 21, 2011, the Maryland Court of Appeals decided Ruffin Hotel Corporation of Maryland v. Gasper. In Ruffin Hotel, the Circuit Court for Montgomery County had dismissed Plaintiff’s negligent hiring/retention claim after finding that the cause of action was barred due to preemption by the State’s Workers’ Compensation laws. The Plaintiff appealed, and the Court of Special Appeals reversed, finding that the Workers’ Compensation laws did not preclude an employee from suing an employer for negligent hiring/retention of a fellow employee.

After the Court of Special Appeals’ decision, both parties sought review in the Court of Appeals. The Court of Appeals affirmed, stating that: “We reject the proposition that the General Assembly intended the Workers’ Compensation Commission is the exclusive forum in which a negligent hiring/retention claim must be litigated whenever such a claim is asserted by an employee against his or her employer as a result of intentional and unlawful misconduct of a fellow employee.”

A copy of the decision is found here.

Reported Maryland Court of Special Appeals Case on Personal Jurisdiction: Owning Unimproved Real Estate is not Sufficient Minimum Contacts

An issue that often is litigated is personal jurisdiction, or “can we sue the defendant here?” Last week, the Maryland Court of Special Appeals rendered a published opinion on the issue in the case of Cappel v. RIASO, LLC. A copy of the opinion is here. In this case, the court was asked to determine whether, in an action to enforce a confession of judgment clause in a guarantee of a promissory note that was signed outside of the State of Maryland, the Circuit Court for Montgomery County, Maryland had personal jurisdiction over the guarantors (Mr. & Mrs. Cappel) by virtue of their owning unimproved real estate in Maryland that was unrelated to the issues in the case. The Circuit Court had found that it did have jurisdiction over the Cappels because by owning the land the Cappels were “transacting business” in Maryland and they had sufficient “minimum contacts” with the State of Maryland to allow personal jurisdiction.

The Court of Special Appeals reversed and vacated judgments against the Cappels for $2,938,312.51. The Court found that owning unimproved real estate in the State of Maryland was not sufficient to allow for personal jurisdiction in Maryland where the real estate in question had nothing to do with the dispute between the parties.

This means that the Plaintiff will now need to start over and sue the Cappels in either D.C. or Virginia, and that the lien on the Cappel’s Maryland real estate that was created by the judgment will be vacated. One wonders whether the Cappels will be able to sell the property before the creditor is able to obtain a new judgment in D.C. or Virginia and then record it as a lien against the Cappels’ Maryland property.

New Fourth Circuit Opinion on Arbitration -- Appeal of Arbitrability Decision Divests Trial Court of Jurisdiction

I have addressed arbitration issues many times before on this Business Law Blog. They are important because so many agreements now contain mandatory arbitration clauses. On February 10, 2011, the United States Court of Appeals for the Fourth Circuit issued an opinion in the case of Levin v. Alms and Associates, Inc. A copy of the decision can be found here. In this case, the appellate court held that when a trial court order regarding arbitrability of a dispute was appealed, the trial court is divested of jurisdiction and cannot continue on to handle the case until the appeal is resolved. The appellate court reversed the trial court which had allowed what it believed was the “non-arbitrable” portion of the case to go forward while the appeal was pending.

The appellate court also went on to decide that the trial court was wrong on the merits. That is, the appellate court held that the trial court was wrong to decide that certain claims were not subject to arbitration.

Before including an arbitration provision in your business agreements, you should be sure to consult with counsel to determine whether such a provision is in your interest and to discuss the scope and effect of such a provision.

Dan Snyder v. The Washington City Paper -- Why Didn't Snyder Choose Home Field Advantage?

In a case of note, local businessman Daniel Snyder of Rockville/Potomac, MD brought a libel suit in New York against local free newspaper The City Paper. A link to the lawsuit is here.

There is obviously a lot being written about this case now. One issue that I have not seen any information on is the choice of forum/venue. Snyder sued in New York, when he is a Montgomery County, Maryland resident, and would presumably have "home field advantage" here in Rockville. Or, maybe he thought that his reputation locally was so bad that he had to seek a venue where fewer people (Judges and Jurors alike) have formed an opinion of him.

I will wait and hope that the issue of venue/jurisdiction is litigated and that the case comes home to Rockville where it belongs.