From: Boss Partner

To: Newbie

Date: 01/04/YR01

Re: Smith v. Johnson

Hi. I hope you’re settled in and that you like the office we’ve assigned to you. Listen,about the Johnson case that I wrote you about the other day…I had a very interesting conversation with a friend of mine who also practices law here inFresno. I told her all about the Johnson case and she told me that she heard that there was a casein the federal district court for the Eastern District of California that had many similar facts toour case. She tells me she thinks it discussed jurisdiction, defamation, invasion of privacy, andIntentional Infliction of Emotional Distress, which are all seemingly relevant to our case.Unfortunately, my friend forgot the name of the case although she thinks it was alsoabout the publication of a website called something-“exposed” and a movie that was made aboutsome high-profile murders. In any case, I’d love to go search for it but I have to prepare for mycourt hearing next Wednesday and I just don’t have the time.

Please do me a favor and:

– Find the case that my friend was talking about; and

– With regard to all of the issues in common with our case mentioned above (ONLY thoseissues, mind you), brief It formally in a way that will allow me to refer to it in the most usefulmanner.I know you’ve been given a copy of “Legal Research, Analysis and Writing” by Hamesand Ekern and I certainly expect that you will refer to their method in most effectively briefingthis case for me.

Thank you very much.B. Partner

This preliminary memorandum that is relevant for all assignments in this course:

From: Boss PartnerTo: NewbieDate: 01/02/YR03Re: Welcome!Dear Newbie:First, welcome to the firm of Aberdeen, Bernanke and Claustraphobic, situated here inlovely downtown Fresno, California. I understand that you’re going to spend your first dayfilling out forms and getting acclimated and settled in, but when you’re ready to start working,take a look at the rest of this letter, which will introduce you to our client, Jane Johnson.Jane Johnson lives in Portland, Oregon. A few years back, Jane used to sell stuff on ebayfor a living. But she got a bad online reputation because of a few bad reviews that were postedonline about her by her disgruntled customers. After these reviews steadily decreased hercustomer base, she was eventually forced to go out of business.Based on this experience and her bitterness against online websites that are devoted toallowing consumers who are upset to anonymously and maliciously post reviews aboutproducers, Jane came up with a new idea for how to make money. She decided to create a newwebsite that would be the devoted to allowing service providers and other sellers to complainabout customers that they didn’t like.Because Jane knew of a popular website devoted to allowing customers to complainabout service providers called “pissedconsumer.com” she decided to call her own site“pissedproducer.com.” On April 15, YR-01, she posted her homepage which contain thefollowing message:This website is devoted to allowing the producer to fight back. While there aremyriads of websites out there devoted to allowing malicious crybaby consumersto launching cowardly attacks against hard-working producers behind the safetyand anonymity of their own computers, this website levels the playing field.Producers are encouraged to post feedback about consumers that other producersshould be wary of. Producers may post stories about deadbeat buyers, customerswho leave unwarranted negative reviews or anything else that other producersmight want to be aware of. Consumers have many outlets to complain about ushard-working producers and so it’s only fair that they be subject to the same kindof public scrutiny for their wrongful actions.However, false information of any sort may not be posted on this website.Moreover, pissedproducer.com does not warrant that any information posted byany third party on this website is true. The posted content is solely theresponsibility of the party who posted it and in no way will pissedproducer.comassume any responsibility for any negative review posted by any person on thissite.2This site was an instant hit as within months, thousands of companies posted reviewsabout customers who had failed to pay their bills, made false and malicious complaints againstthem and committed other malfeasance.On July 18, YR-01, Jane added a feature to the website that allowed producers to uploadmultimedia files that portrayed poor consumer behavior. Using this feature, users of the websiteare able to upload audio and/or video files that show interactions with consumers even if theconsumer did not know that he or she was being recorded.Jane also began requiring all would-be posting produces to fill out a form with basicinformation about them and the customer they were complaining about, and evidence they haveof the incident. One of the required boxes that had to be checked was whether the producer hada video or pictures of the customer’s bad behavior. Although Jane sometimes used theinformation provided to weed out crackpots, she also used the information to generate moreinteresting and exciting postings through audiovisual content. Thus, whenever a producerchecked the video box, the website automatically opened up a pop-up box encouraging theproducer to also post the video or pictures.Jane did not, and still does not charge any sort of fee to the user or to the poster of anyinformation. However, in August of YR-01, Jane began selling advertising on the website.Within two months, the website was generating tens of thousands of dollars of advertisingrevenue each month. Today, the website generates almost $30,000 of advertising revenue eachmonths and Jane’s business is worth in excess of $1 million according to her estimate.On June 12, YR-02, Brenda James, who owns an auto repair garage here in Fresno,posted the following review about Douglas Smith on pissedproducer.com:Douglas Smith came into my shop the other day with his beat up old YR-09Toyota Corolla for an oil change and a diagnostic, since his check engine lightwas on. After a thorough diagnostic, I informed him that his catalytic converterneeded to be replaced or his car would not pass its next inspection. He asked mefor an estimate and I told him that it would cost approximately $800 to replace theconverter and that I would throw in the oil change for free. He agreed. When Ifinished the job, I gave him a bill for $808 and he then claims that he had neveragreed to pay that much. When I reminded him about the earlier estimate, hedenied that he had agreed to allow me to go ahead with the work.I told him I would not return his car without payment and he then cursed at mebut give me his credit card which I promptly processed. The next week, I foundthat the scoundrel had disputed the credit card charge, claiming that I had forcedhim to make the charge by threat of withholding his car and that he had neveragreed to the work and the first place. He also complained about me to the BetterBusiness Bureau even though I had done absolutely nothing wrong. I was forcedto spend many hours defending myself both in the credit card dispute and to theBetter Business Bureau all because one bitter customer’s false accusations.3Brenda also posted a video from a camera that overlooks the waiting area of her garage.The camera is in plain view, although, because it is in an innocuous location, it is possible thatcustomers did not know that they are being videotaped when they speak to Brenda or whomeveris working as cashier as Brenda’s garage.The video that Brenda posted is of Douglas Smith in a heated exchange with Brent.Throughout the discussion, Douglas appears to be angry and several times yells obscenities inthe direction of Brenda.Brenda then posted Douglas Smith’s home address and telephone number and for kicks,the make and model of Douglas’ car and his license plate number.On July 2, YR-02, Douglas was told by a friend about the post that Brenda had madeabout him. Furious, he immediately sent an e-mail to [email protected] demanding thatthe entire post about him be deleted immediately. Jane wrote him back a polite e-mail whereinshe suggested that he take advantage of a feature of the website that allows consumers to refutethe allegations against them on the same page on which the allegations appear. She also politelyrefused to remove Brenda’s post, explaining to Douglas that Brenda’s post does not violate anysite guidelines or rules.On November 20, YR-02, Douglas (through his attorney, Pete Bull), filed a lawsuitagainst Jane personally and against the business pissedproducer.com in the federal district courtfor the Eastern District of California (here in Fresno), alleging Defamation, two separateInvasion of Privacy causes of action — (1) Publication of Private Facts, and (2) Appropriation ofName or Likeness (the appropriation count both under the common law and under Californiastatute- California Civil Code §3344), and Intentional Infliction of Emotional Distress. Jane wasproperly served with the complaint on November 22.On November 27, YR-02, Jane called us and asked her to help her defend against thisaction. She told us that since the action is in Fresno, she wants attorneys from Fresno to representher. She came down to our office for a meeting on November 29 and formally retained ourservices. On December 6 (less than a month ago), we asked for and received from Plaintiff’sattorney an extension of sixty days to answer or otherwise move with regard to the Complaint.First and foremost, it’s ridiculous for Jane to have to come all the way from Portland toFresno to have to defend against this action. Arguably, Jane never set foot in California andDouglas should have to sue her, if at all, in Oregon. Although that would mean that we cannothandle the case since we are not licensed to practice law in Oregon, we do owe it to Jane toconsider whether we can have the case dismissed here in California on jurisdictional grounds.Anyway, for now just get settled into your office and think about this case a little bit andI’ll be in touch with your shortly with more information and maybe a request or two (or six).