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so quick disclaimers today's
presentation is not intended as legal
advice uh this is for general
information purposes uh although I am a
lawyer I am not your laer
now about
me I am while I just mention I'm a
lawyer I'm more of a computer geek than
attorney uh I've been working in it
since the
1990s I've switched over to doing
information security work and 20 years
ago at this point uh I made the choice
to go to law school because I had a
frustration that existed between the
communication gaps between technicians
and attorneys when it came to Notions
such as contraction issues when it came
to interpreting
regulations fine smart people get in the
room talking past each other for
multiple hours and getting upset and
leaving and nothing getting accomplished
so my response probably not saying I
decided to go to law
school currently my day jobs I work
inent response for a federal government
agency uh I don't work day in day out
primarily focusing attorney but the
information I learned while
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going while going to law school and
practicing from time to time has been
beneficial in what I do now I'm also
known for being relatively
outspoken which is a nice way of saying
I'm on a wind bag uh where this comes
into play is that over the years I've
worked on many different projects as
help desk as systems engineer as assis
admin as as instant response and in
those environments I've had an
opportunity to work with some wonderful
bright intelligent people who go off and
do interesting things and sometimes get
themselves in trouble uh and a few of
them remember who I am and and come talk
to me when that happens and every time
one of my peers finds himself getting in
trouble related to something that they
said or something that they posted
online one of the first things that come
out of their mouth is but I have a
freedom of
speech
well maybe um even my mother who passed
away a few years ago she knew nothing
about law didn't rec but the one thing
she would repeat over and over again is
this is America I have a freedom of
speech well in some cases freedom of
speech might not be available for all
now I like to take a moment and I
realize
this might seem a little old timey might
seem a little bit not relevant to a Tech
conference but I want to take a moment
and look back to the notion of what we
we think of as free speech in the United
States and that comes from most people
already know the idea of the First
Amendment from the Bill of Rights now
the wording on
this is something that church I'm going
to try to get through this and I'm
hoping I don't have too many people
laughing as I go through here so it
simply says Congress shall make no law
respecting an establishment of religion
or prohibiting the free exercise thereof
or abridging the freedom of speech or of
the press or the right of the people to
peacefully assemble and to petition the
government for redress of grievances
now that portion that little blue
portion or Bridging the freedom of
speech is where all this notion that we
think of in this country as I have a
freedom of
speech starts
with it's not even a full sentence it's
a sentence fragment but that is one
thing that is so well known that's
probably
better better recognized than any one
other element of law except for well we
won't go too far down to the other
amendments
but I'm a huge fan of XKCD and I think
that as we get into this a little bit
they hit this pretty nicely so I'm sure
many of you have seen this particular
presentation but I don't want to steal
uh Randle Thunder on this one but it's a
reminder that when we talk about freedom
of speech we talking about a restriction
that the government has placed upon
itself this is not a restriction that
prevents individuals referring to other
individuals it does not put a
representation for a company on what
they can or cannot do to you uh this is
the notion of a restriction of
government action the government will
pass no
law now where that comes into
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play especially amongst technicians
infosec cyber security folks when people
run into issues or legal challenges
related to something they've said or
something that they have done it
normally comes in one of two buckets one
of them being a claim that what they've
done is defamation or B that something
that they have said or done is violating
a contract that they are party to I'm go
ahead and take a t down through these PA
now
defamation
defamation is not exactly a New Concept
this goes back historically uh we see
occasionally celebrity news items where
one group is suing another we'll see uh
you know people upset about things that
are put forward in the Press uh but it
doesn't necessarily have to be the
notion of something on a large scale uh
we're seeing more and more activity as
it releases social media come into play
um defamation a simple definition simply
malicious or groundless harm to the
reputation or good name of another in
making a false statement to a third
person now I want to pause here for just
a moment and contemplate that we think
about defamation as you know someone
wrote something and it showed up in the
New York Times and and you know that
person's claiming it's false and ruined
their
repition you do not need to publish at
that level to trigger defamation lawsuit
simply stating something to a third
person in a email making a phone call
writing a note and handing to that
person you have triggered enough of the
requirements to equal the fundamental
notion of
defamation now defamation per
se effectively is the notion that you've
said something about somebody or written
something about somebody that has no way
of having in meeting and we're going to
talk a little about some of the examples
of that now elements one of the fun or
perhaps horrible things that you go
through in law school over and over
again is every law as you are looking to
how it applies will have a breakdown
what elements need to be met for this
law to be so when we talk about
defamation we have effectively four
elements so the first element is simply
a false statement provided is
factual nothing particularly complicated
there publication or communicating
statement to another person now
publication simple you you put it in you
know USA Today you show it up on
CNN that's but the idea that
communicating the statement to another
person so one area that I have
personally seen people get into trouble
with is somebody calls for a reference
and they say well you know
Bob Bob might drink a little bit uh and
and so you're talking to one person on a
phone call that leads to them likely not
getting that job that statement if it is
false could fall into the realm of
defamation fault the idea that the
statement you made that you have some
fault that you are at least negligent in
making the statement
um and then finally the fourth element
is that statement needed to cause some
level of d Dage now in Practical
aspect defamation can be a very
difficult item to prove and one of the
difficult elements is often to prove
damages if you think through
this even if you know someone has said
something bad about you it's not always
obvious how you can prove that that
false statement or that damaging
statement cost you a job or C you know
even if you didn't get the job how can
you prove that that state
was the reason for that particular
action so this is one of those tripping
points that makes it very difficult to
come forward and be victorious at
verdict in a defamation claim now we
talked earlier about defamation per se
so or excuse me uh got ahead of myself
the idea of when you have a statement
that's made about a public party uh so
if you're talking about a politician if
you're talking about a CEO of a major
company who is commonly in the Press uh
the idea that the standard of that
person claiming that something that else
said was said about them was defamation
is a little bit higher so you don't
actually have just negligence you must
prove that the statement was made with
actual malice and this is one of the
reasons that press organizations
normally do pretty well in defamation
lawsuits because it can be difficult to
prove that you went beyond just
negligence in making a false statement
that you actually knew that your
statement was false that you went ahead
with it act with it anyway um you may
have seen some uh news recently
regarding uh Fox News is being sued by
uh voting
manufacturer it's one of the cases where
it's probably the best surface evidence
I've ever seen of actual malice so I'm
I'm glad I'm not an attorney for Fox
News at this moment uh but this goes
back to a case that's well known and we
cited very frequently New York Times
vant
now examples of defamation defamation my
example earlier about someone uh making
a statement that someone might drink too
much uh stating that somebody hasn't
worked at a place that that they had
worked uh those are things that can
commonly be considered to beator now
defamation per se as we discussed
earlier
earlier is a bit of a Twist it's idea of
making a statement that cannot
have other interpretation so the
historical classic notion is that
somebody has a loathsome disease uh this
came around a lot of casework uh around
leprosy on the idea that you need to
stay away from somebody because that can
be contagious you can in turn be
problematic uh the idea that that so and
so is a criminal
um that making that statement uh that
can move from defamation defamation per
se and the key takeaway of being in
defamation per se is that that last
element of Damages you no longer have to
prove that element of Damages that
damages is going to be assumed which
makes the idea of winning a defamation
case considerably easier so something to
keep in mind now I want to take a
refrain here just for a moment uh I'm
assuming that most people here are
familiar at some level or another the
electronic Freedom Foundation uh if you
are not I would highly recommend
spending a little time go to their
website they have very good information
regarding many things regarding speech
uh Interest online for people who are
either technology users or people who
are technicians themselves um they have
been doing very good work for many years
and I just like to take the opportunity
to call out their work and if you find
yourself having questions you could do a
lot worse than uh checking with them
about your particular
concerns now as we pivot over to the
other bucket this is where I find most
people get caught up with in the
discussions I've had contractual matters
and on the surface this can sound funny
he's like well what do you mean what
what
contracts could I have gotten into that
could impact what I can say
well there are a lot more contracts that
frequently have restrictions on speech
than one might consider uh many people
especially if you're a technician if you
work on configuring items or if you're
someone in the purchasing power you will
frequently be asked to sign
non-disclosure agreements now these are
relatively straightforward every now and
then you'll have non-disclosure
agreements that that drift off a little
bit but the general principle is that
someone's going to show you information
uh and that you're
agreeing not to disclose that
information uh Severance agreements have
been in the news recently we're going to
discuss that for a bit employment
contracts are a very large one um
employee handbooks oddly enough uh this
is this is a weird space where depending
on what side the parties are on a
particular issue uh there will often be
a fight as determine whether an employee
handbook institutes a contract or not uh
so if the employer feels that there's a
clause in an employee handbook that
mandates that someone does someone and
they fail to do it they will fight tooth
and nail to say yes they agreed to this
they sign the employee handbook this is
a contract if the employee handbook on
by chance happens to offer a reference
to a benefit or something else that they
don't want to live up to they will shout
up and down and slam the desk saying no
this is not a contract this is just some
other document uh so it's interesting
how the same attorney and just a matter
of minutes can can find a way to be on
both sides of that particular argument
but it is one that pops up interesting
places uh more frequently than you would
think licensing agreements often have
restrictive statements in them referring
to limiting what you can say about a
product um there have been some
conflicting case law on whether or not
that is a legitimate use of a licensing
agreement but it does happen um and
settlement agreements so anytime you
have two parties have already been in
some type of dispute they've come to
together and made an agreement it's not
unheard of for people to put in
restrictions in that agreement saying
you will not say anything derogatory or
deping depending on what the wording is
uh but
sadly a lot of people don't bother to
read the things they're put in front of
them so sometimes they're surprised when
later they get upset and they say
something and they they get the nice
little C sis letter saying that hey what
are you doing you can't say that you
made this
promise so
as we mentioned earlier non-disclosure
agreements relatively straightforward
their intent and purpose makes a lot of
sense for someone trying to build a new
product trying to enter into uh an
industry and they are hoping that their
particular idea their special sauce is
somehow not going to be given up or
taken over by somebody else uh so people
take an effort to try to put forward a
contractual restriction say hey I will
share this with you but you've got to
promise me that you're not not going to
share this with something else
um in my experience most of these are
relatively straightforward every now and
then sometimes through carelessness
sometimes maybe for nefarious means
someone will write a clause in a
non-disclosure agreement that will
extend beyond the little Special Sauce
that they have and and talk about you
know larger broader issues that you
can't even mention that you have seen
them or that if you have any thoughts on
their you know that that's not the
intention or purpose of a non-disclosure
agreement
and there have been some instances where
overly broad non-disclosure agreements
will be set aside if someone tries suing
on them outside of the realm that most
people consider to be non-disclosure
agreements but it's a gamble if you want
to go down that road uh even if you find
yourself having potentially said
something outside of the scope of what a
reasonable non-disclosure agreement has
if the agreement that's in question is
very Broad
um it's a risk going forward uh
depending on what venue you have that h
on um with that in mind I I generally
encourage people who are being asked to
sign a non-disclosure agreement number
one ask
yourself do you really need to go down
the road with them because anytime
you're signing an agreement that sets
you up for potential
litigation there's a cost or pain Factor
you might not think about that but it's
out there number two if you do have an
interest and spend a few moments read
them normally these are much much more
than a page page and a half if it does
not make sense if what is being claimed
in there is obviously Beyond scope push
back because generally speaking someone
coming to with a non-disclosure
agreement often wants you involved once
you do something and will often make
those changes prior to the agreement now
while it's possible that someone can
change an agreement after you've agreed
to it uh you're leverage to to encourage
that change is much better before you
sign that agreement um so something to
think of to lower your exposure level to
make your life a little bit easier down
the road should you have a falling out
with whoever's coming to you at this
time Severance agreements Severance
agreements have been in the news
recently um National Labor Relations
Board uh is an administrative office
that spends a lot of its time overseeing
impact not only of unions but of
employment with within middle to large
companies now they recently cleared a
case just over a month ago at this point
that said that you can no longer have
restrictive covenants with in Severance
agreements that prevent you from talking
about conditions of employment at a
company this has been historically a
relatively common practice when people
are getting fired or laid off they'll
offer you a severance package and in
that severance package if you read the
fine print says we'll pay you x amount
of dollars but you can't and not say
anything about you know you cannot talk
about this you cannot disparage you
cannot any combination of items there
the national libal regulations board
came out with a ruling that said that
this is not valid companies cannot use a
severance agreement to take action
against employees for their speech uh
the general notion section seven uh the
native National Labor relation act
references the idea of employees to be
able to gather together share
information about the working conditions
for the possible Gathering of forming a
union forming other protective groups
within a company and if you squelch the
ability for people to communicate with
one another it makes it very difficult
for that possibility to exist so the
idea that the national ation board said
no now this ruling is relatively new I'm
sure it's going to be challenged
somewhat with borderline cases
educations so I would not take that as a
blanket statement that anything goes um
if you're going to be you know saying
completely Reckless items or malicious
items I'm sure that some employer going
to be willing to spend the money and
time to go after somebody to to see
exactly how much room this particular uh
production has but if you are an
employee who has been let go you now
have much more Elbow Room than you did
just a month
ago now for the timeliness of this I'd
also like to point out that many federal
agencies pivot quite a bit based on the
Administration so as has been the
history for at least two decades
probably quite a bit longer when
Republicans are in the White House
effectively they change out the lead
Staffing at National Labor Relations
Board and they make that group very
company focused um and so you know if
you know the next president or the
president after that happens to be a
republican we can anticipate changes
that nlrb is going to change their view
and say no no you know employees can't
actually say things or talk to people uh
so yeah uh and then if that changes back
to a democratic group there's a very
good chance that this pivots back and
leans more to be friendliness toward
unions toward employees uh
so this might
seem trivial but keep in mind that the
length of time that it takes for a case
to go
through hearings and go to trial can be
tremendously long so just because right
now you have a democrat in office uh
there's no guarantee there will be a
democrat in office when the case is
actually heard uh so this ruling this
had been something that had been put on
the you know Front Burner within weeks
of the Biden Administration coming into
office and they just got to it February
of 2023 so it took them two years after
the administration landed to make this
change to get a case through and come up
with this ruling uh
so as we who spend time in technology
our idea of of change and the timelin of
that doesn't necessarily play well with
the time frame change in law and
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regulation employment
contracts in the US there's not an
absolute need to have an employment
contract if you're working for someone
either as an employee or as a contractor
um but frequently there will be an
employment contract and if an employment
contract exists then the Clauses in that
contract are simply changing the default
terms that exist between employee and
employer there really nothing more
complicated than
that historically the courts have
been very lenient with companies who
want to go ahead and place restrictive
Clauses upon their employees within
contract uh we as a nation we have been
very big on the right to contract uh and
allowing some particular item it where
that gets pushed back on is when you run
into conflicts with law or regulations
so when you have child labor laws uh
when you have uh which in some states I
believe Arkansas just made announcements
that they're working on rolling back
their State uh uh child labor laws
because they for a period of time were
were more restrictive for child labor
than the federal government and now
their new governor uh she doesn't seem
to think that you know having kids work
in Coal Mines is a big deal uh so yay
Arkansas um
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some of the com some of the Clauses that
we'll see in employment contracts that
come into play here uh arbitration
clauses non-competes nons
solicitations uh I had not actually seen
a non-derogatory statements Clause until
recently and that one became a bit of a
uh bit of a headache for uh someone I
was helping uh venue inform selection
choice of law uh some employers will
place in restrictions that state you
can't work someplace else uh while
you're there so the idea that you must
dedicate your working time to that
employer and a little bit out of the
scope of this talk uh but comes up quite
frequently amongst the people who come
to me is intellectual property
restrictions the idea that while you're
working at a company anything you're
doing there the ideas you come with
products that you come up with they are
potentially the ownership belongs to the
company instead of to yourself and for
those people who have aspirations of
building a new program or building a new
technology or expanding some technology
uh even if what you plan on doing is
open source work uh this can be a
tripping point that you should be aware
of what you've agreed with your employer
uh before you go
forward
arbitration arbitration there
is
uh my apologies good bad douly
so arbitration has become a larger and
larger animal in the US legal system and
largely this is because the legal system
is quite honestly swamped uh there are
more cases both civil and criminal than
can possibly be dealt with uh we have
not significantly grown the courts out
for decades uh so as more demand is
going through
there is no there are no more judges
there are no more uh more staff for
courts to handle these prrams they've
taken efforts
to modernize uh improve Notions of
submitting cases but there's a limit to
how far the existing system can go and
most judges are are simply swamped with
this in mind courts all the way to the
Supreme Court have been
very supportive of the the notion of
arbitration anything you can do to move
cases out of the court system is
considered to be a good thing
now as you'll see here shortly I have my
qualms with the notion of arbitration as
it's actually practiced in the United
States but it's not entirely a Bad Thing
number one it does address some of those
concerns that we have about the Overflow
in court systems it gives you another
place for a case to be
heard generally speaking it's not near
as timec consuming to have a case heard
in arbitration as it is to have it heard
in a court it's the procedures
especially if you're representing
yourself are far less Byzantine than
they are in a court system it's much
easier to
address the needs of an arbitrator to
move your case forward if it's something
that is of keen interest to you if it's
something very important it's probably
still very much in your interest to have
a representative who is familiar with
that particular form and can help you
through this
but it is more approachable as a prosay
representative than than the courts are
in
general the bad now where I often come
in or
people former co-workers friends people
I've
known they have made a statement about
somebody they've they've said harsh
things things about software and they
review or a particular security tool um
theyve they've said things about their
employer that their employer is unhappy
with they are often very upset they're
often worked up they feel that something
is wrong and something needs to be said
and people need to be able to hear this
generally speaking arbitration is a
closed system arbitration dockets not
visible publicly the things that are
shed in arbitration are not going to be
seen there's often not required but
often often gag orders placed on parties
within arbitration that prevent you from
talking about the details what come
place in arbitration so if you're origin
point if your starting point at this was
something is very wrong I have been
wrong these people have been wronged the
idea of taking your matter and having it
heard in a system that nobody can know
about it is generally not the solution
that you want to have
but the reality is is that courts are
very fond of the notion of arbitration
and especially if you have agreed that
your disputes will be handled through
arbitration through an employment
contract through a severance agreement
through something along those lines it
can be very difficult to get that set
aside and allow your case to be held
outside of arbitration and this is
something that pains people greatly so
sadly by the time you get to the point
you have that conflict you're quite
possibly too far down the road to have
good chance of the outcome that you want
as least as far as being heard which is
why I do encourage people to pause and
think about those contracts they're
signing how look at your contracts how
many of them have arbitration guidance
in there do you have the leverage if
you're working for a shop especially a
small to mediumsized shop to request
that hey let's let's modify this
arbitration let's limit the scope of
this um you know and it's very difficult
at the star relationship to think about
how things might go badly um because
when you start a new job or you go into
a new business business venture we're
all optimistic we're all hopeful that
things are going to be bad but one of
the things and when I put my lawyer hat
on is I try to advise people that yes
everything's wonderful it's great you
know people but what it going to be when
things get ugly what you what positions
and what options are you going to have
down the road and looking at that at the
start of a relationship so much easier
to deal with than it is at the end of a
relationship now the
ugly for
individuals individual computers
Executives at companies you know as as a
single person who has found themselves
on the wrong side of a conflict with
with their former employer or someone on
that line or group group who they
contracted with and they find themselves
in
arbitration you as an individual even if
you are very seasoned individual it's
unlikely you're going to find yourself
going into arbitration on a regular
basis you are a seldom user of
arbitration whereas the company
especially if it's a medium to large
siiz company there's a very real
possibility that they've used
arbitration numerous times they are
going to be familiar with the
arbitrators within a particular pool
oftentimes arbitration clauses will make
promises that the company will pay the
bill for the arbitrator
that makes it a little bit easier for
you as the the party going into this to
cover that but that not necessar all the
bills but at least the arbitrator's bill
then both parties get to say or push
back on who has put forward as an
arbitrator but that pool of arbitrators
that are going to be pulled
from the organization you're working
against is very likely to have a better
understanding of who those parties are
and because for the people who work as
arbitrators they know that they're being
hired by companies they know if they
want to be hired down the road as they
continue on through their career uh if
they consistently side against
corporations or companies in their
rulings it doesn't take that long for
companies and corporations to realize
that maybe this isn't an arbitrator who
should be in our
pool so this creates the possibility of
a bias unconscious or otherwise uh that
an arbitrator is going to be challenged
to bite the hand that feeds them
and we've seen numbers that if you look
at cases that are gone through
arbitration compared to those that go
through the courts uh there is a
significant Delta in the percentage of
cases that the individual wins in
arbitration compared to that of Tri
courts um so it's not insurmountable
Hill but uh very frequently as the
individual contributor you don't want to
be in
arbitration
non-compete
clauses many of us have probably worked
someplace at some time or another that
have non-compete clauses
um some of these Clauses can be very
very restrictive uh fortunately for
employees over the course of time the
courts have said for Public Policy
reasons we want people to be able to
work because if people are working they
can pay taxes they can feed their
families they they can buy a house they
can do all these things that we as a as
a society as a public want them to be
able to do so courts have in
general been skeptical of anything that
sets up restrictions for people to be
able to find
work but courts will weigh that against
the notion is there a valid interest of
the company that if people are you know
going to cross the street and work for
the competitors that can legitimately
harm that company so generally speaking
and it varies a little bit by
jurisdiction how this will work
out they will require that for a
non-compete contract clause to be held
up it has to be of a reasonable duration
and reasonable duration as an individual
you might think well a few weeks this
can vary often many jurisdictions will
allow one to two years of time that you
can be restricted from working at a
particular place um they will often put
on reasonable Geographic restriction so
idea that uh if you say well you can't
work within the State of Arizona well
that's very fewer people are going to
consider that to be a reasonable
restriction uh but they might say that
okay you can't work within 10 miles of
of this particular location that will
generally be allowed or accepted um it's
a sliding scale so the more aggressive
they are in geographical restriction the
more aggressive they are in time
duration the more possible they will
push back and there's also the notion of
uh reasonable limitation so a courts can
be less favorable to a company that says
you can't work in any notion for the
competitor compared to if they say well
you can't do if you're a plastic surgeon
who specializes in and ey lifts it's
like okay well you can't work doing ey
lifts within a 35 mile radius here
because you're going to steal business
from the company that that does this but
you can go do other types of surgery as
a general practice so the more
restricted that is the more likely the
court is going to upheld that particular
restriction so the whole notion that has
developed over time is a balancing
of not necessarily the employees best
interest but of the Public's best
interest against that of protecting the
employer who put forward the clause in
the first place now the historical
rule when a non-compete Clause has been
too broad is to strike the entire clause
and so this is the incentive to get
companies to restrict that to a
reasonable level to have a better chance
that their Clause will be held up and to
discourage people from making crazy over
the top request now I bring that forward
non non solitation is very similar on
the idea that you know you worked at
some place you found some really good
co-workers and now you have the new job
directly across the street I want to
hire all these people uh very similar
that courts will go through this
Balancing Act of what is the rights of
the people to have better jobs what is
you know what do we want that Society
compared to what is valid for the
protection of the business so once again
if you Scope this narrowly the employer
is is likely to be for if you Scope it
very broadly don't put time restrictions
on it uh it's quite likely to be set
aside
now the reason I brought those up
specifically is we have this is a clause
I came across recently uh I'm not going
to read it to you but if you take a look
what bothers me about this Clause is
this isn't a non defamation this is a
non derogatory Clause so this is the
employer effectively saying that you
can't go on and say anything about us we
don't like doesn't there's not even a
requirement that what you're saying not
be true just anything that they decide
that they don't like which in my mind is
an insanely broad notion also notice I
don't see anywhere in this Clause that
there's a time restriction
now many people who work in it and
information
security are young if if you're in your
20s or 30s and you sign a clause you
sign a contract with someone that says
you will never say anything bad about
them uh I will tell you as an old geizer
myself that 30 40 50 years uh it's a lot
of time um and the idea that it's in my
mind insane that a employment Clause can
be put forward that that's that for 50
60 years uh not for National Security
not for you know not for the well-being
of the nation but because some executive
at some company has thin skin uh that
that that a person can't say anything
about them
now where I've seen this be run into
difficulty for companies is the notion
that well it's easy to prove that
someone said something that is
derogatory that something that made them
feel not good about themselves okay
that's an easy bar to clear but it's
very hard to show damages it's like okay
well someone said something mean about
me on Twitter or on Instagram
um but what is your damage well uh in an
arbitration I can't talk about the
specific details uh we saw a company go
after someone claiming $1 in Damages and
amounted to in excess of $400,000 in
legal
fees
um perhaps you're doing better than I am
financially but $400,000 would
definitely put a dent in my operational
budget for the year
uh and that the legal fees in that
particular case amounted to a half day
arbitration hearing uh and a handful of
attorneys scraping images off of a
social media site and screen capturing
them and writing the complaint uh so so
imagine if you were dealing with a case
that actual work needed to be done uh
that number can get really ugly really
fast so if you find yourself being
offered a job uh considering doing
contract work for somebody who has a
clause that looks something like that I
really suggest you go someplace else
really really
fast Clauses we don't often think about
uh choice of venue choice of form choice
of
law
uh as we go about our business you
know last few years I've been working
primarily from a basement so I I don't
travel nearly as much as I used to uh
but it is a big world it is a big
country I live in Northern Virginia
rightside Washington DC so I drove here
uh took me about 11 hours in my little
Volkswagen GTI to make the trip nice
it's a lot of flatness in case in
Indiana in case anyone was wondering
really really flat
H
but in a
contract it's quite possible that there
might be a choice choice of forum or
choice of venue Clause that might state
that any disagreement that rises from
the contract or from deployment contract
from the employment that came from that
contract will be held in a certain
location so if you work for a tech
company where their headquarters is in
California you might well have a clause
in your employment contract says well if
we're getting the lawsuit we're having
this in a court in California
um if you don't live in California that
could be inconvenient for you uh I was
personally sued for defamation uh when I
was in grad school I was going to grad
school online at the extension school
for Harvard and one of my fellow
students got upset with me and uh he
sued me and 17 other parties including
this including the school uh for many
things but the lead one being defamation
um because I referred to him as he
quoted in his his case four words he
said I refer to him as a fool a loon an
ass and an embarrassment and I I have
said all those things about them and I
continue to say those things about him
um but he sued me in the courts in
Massachusetts uh and I was of course
living in Virginia um I tried to
persuade the court that uh they did not
have personal jurisdiction over me
because I while I went to an online
school uh I did not actually reside or
work or or otherwise function mes but
the courts decided that no uh he was in
Massachusetts uh we had the commonality
of both going to the same school so that
was enough so I got a chance to make 13
trips over the course of seven years uh
to Define myself for saying that he was
a loon and ass a fool and an
embarrassment um I eventually did win on
summary judgment but he's now had two
and a half years into his appeal uh that
is still ongoing so now being 2023 these
are statements made in 20 201 on April
Fool's Day 2011 um by the way if you're
going to have a conference at a major
university where your speakers come
forward and say the biggest problem with
this country is that we haven't managed
to kill all the witches may I suggest
you don't hold that on April Fool's Day
uh just little bit of
advice but anyway I I digress
so these contract Clauses are ways that
you could find
yourself defending yourself in a place
that you might not have thought of uh so
it's worth taking a little time looking
over the contracts before you start a
new job or new contract what are you
potentially getting into um choice of
law is an interesting one in the notion
that our courts will accept the idea
that you might be sued in your home
state but they could have a restriction
that says you will use the law of some
other state um this sometimes creates
some unusual circumstances because let's
say the courts of Massachusetts aren't
necessarily particularly good at
applying the laws of say Arkansas but
from time to time they'll try and
occasionally unusual things will come
from that uh one of the areas that in my
personal lawsuit for defamation uh I
reside in Virginia and I made the
argument that in Virginia the schedule
limitations on defamation is one year
whereas in Massachusetts they had a
larger window so even though he by far
missed that requirement in in Virginia
because I was using the they were using
the law of Massachusetts in
Massachusetts that la window did allow
that case to move forward so uh there
are a lot of tweaks that can change from
jurisdiction to jurisdiction so even if
you do happen to know or understand the
laws as it relates to your speech in
your home state the internet's a big
broad beautiful place and there are a
lot of jurisdictions that are being
overlapped uh it's nearly impossible
going into any state you make online to
know all the potential places that could
come into play with that at the time
it's only after things have fallen apart
and people are now throwing things at
each other that you start getting dug
into the notion of what rules apply and
how they're going to impact your
case
so even if you get to the notion that
for all practical purposes you're not
going to be guilty of defamation you're
going to you're not going to be in
violation of your contract
clause you're not necessarily out of the
woods on the
that one of the lovely beautiful things
about our legal system is that
effectively anyone can sue anyone else
for practically anything uh you know you
can choose to sue me for blocking your
view of the space aliens on the horizon
even if there are no space aliens on the
horizon doesn't necessarily mean the
suit can't be brought very unlikely to
win but the notion from the time that a
lawsuit is brought to the time that is
cleared can be much longer than than
most people think even in cases that on
the surface don't make a lot of sense
um you know as I mentioned in my
personal case we you know the four words
that I was accused of using pretty well
fall in most people's definition of
opinion uh but it it took me you know in
the sort of five to six years to get a
summary judgment on that uh I was
defending myself in that so it kept my
legal fees somewhat low but I did make
numerous Tri uh back and forth to
Massachusetts and I was very fortunate
at the time that since Harvard was also
being sued Harvard has some very good
lawyers um and since they were being
sued largely on the same grounds that I
was uh I got a chance to see what they
filed and I used that to shape a lot of
my my thoughts and opinions um so uh
creative borrowing as they might refer
to that
now if you find yourself on the
receiving end of one of these legal
threats or a lawsuit
even if you're going to get to the point
of it being dismissed it can still have
significant legal fees for you it can
take a tremendous amount of your time uh
there can be travel involved if
especially if you're in a jurisdiction
that's not your own even if you even
you're fortunate enough to be sued in
your home state if you live in a
relatively large state it can be a long
ways to whatever place within the state
they decide to hold trial you know uh
those of you might happen to remember
from the opening my last name is Vita
um which is not good for courts that
decide to hold their document
alphabetical order uh so you can spend a
lot of time at a court waiting for your
particular hearing to be be heard
because they are overstressed over
booked um things that would think be 15
20 minutes can be all day Affairs for
everybody so these things take
and most people if you're not an
attorney a that threat of legal action
or an actual lawsuit this isn't your
primary goal or function in life you
have other things you want to do you
want to work you want to be with your
family you want to be at school you want
to be further in your life you want to
be out running what go and see the movie
this is time taken away from your
existence that you are simply not going
to get
back now long arm
statutes as I mentioned uh my personal
experience with getting a chance to
visit Massachusetts multiple occasions
um
we are seen there's always been some
level of forum shopping that takes place
by parties who happen to be well funded
enough or or motivated enough to try to
bring a legal action in a place they
think is favorable to the outcome they
want uh I think we're seeing that taken
to a new level recently uh in some of
the lawsuits that are being brought
specifically in Texas and in certain
jurisdictions in Florida uh often
politically uh minded items so we have a
case in Amarillo Texas where they're
challenging that the idea that the FDA
uh had approved a medication that can be
used for uh medically induced abortions
and this has been an approved medicine
for 20 years and now they want this
judge in Amarillo to make a
determination should the FDA be allowed
to approve drugs um now it's very likely
that this particular judge is going to
say no that FDA can't do that because he
has very clearly established he has ax
to grind and so uh we see the FDA and
and others making their way to Armadillo
Texas to uh participate in this item um
I can tell you that the FDA has a very
very very small footprint in the greater
armadillo area uh so yeah it clearly
wasn't to be where all the people who
had input to decision uh were
but on individual matters the idea that
sometimes instead of for failable
location someone can try to bring a suit
in a particular location because they
know it's going to be inconvenient for
you uh so sadly as an individual
contributor as as a technician if you
find yourself in one of these particular
lawsuits uh the idea that it's easier
for a company to spend money uh than it
is for an individual even a relatively
small companies likely to be better
funded than a relatively well-to-do
individual uh so this is just one of
those problems that come into play now
you can often battle this you might be
able to make an argument to get a court
to buy in on the notion that no they do
not have jurisdiction over you know this
isn't the proper form for this PR
but um but is a it is a a challenge that
needs to be worked through and even if
you are successful you often have to
make one or more trips to that
jurisdiction to make that argument to
get yourself moved over to some other
court now some jurisdictions such as
Virginia Virginia uh
have unusual ideas within their uh long
now I I reside in Virginia I am not a
member of the Virginia bar I'm a member
of the DC bar uh
but the long arm Statute in Virginia
specifically can be interpreted in a
manner that if you do any action that
can impact a system in Virginia then the
courts in Virginia can have jurisdiction
over that case now if you've never spent
time driving around Northern Virginia
there are an epic boatload of of data
Farms server farms in Northern Virginia
uh they are all over the place major
providers from every service you know
Amazon web service they have some of
their biggest server Farms there in
Virginia so if you state something on a
social media platform if you if you send
an email to Something There is a very
very good chance that somewhere along
the way that made a change to a system
in Virginia and theoretically that gives
an attorney an ability to argue that
Virginia should now have jurisdiction
over the actions from that item uh which
I personally think is insane but it
appears to be part of the argument used
in I'm not I I am not that much on
celebrities but I I believe uh Johnny
Depp had just had a relatively large
defamation case in Virginia and neither
of them have strong ties to Virginia but
basically because the communications
took place they use that argument to
bring that into the Virginia courts uh
so I suspect that's not the last we're
going to see so if any of you do get
sued in end of Virginia uh Dro by maybe
we can have a drink
um
so the long arm
statutes there's a legitimate need for
the idea of long arm statute and
predominantly the historical notion went
back to the idea of a of a case called
international shoe uh this is a fun
thing that that LW students get
tormented worth in their first year of
law school and the idea that this mail
order door-to-door shoe sales company
international shoe was being sued
because apparently their shoes stun I
guess uh and the notion that in our no
no we're we're in this we're not in
these other places we just sent shoes to
people we we you know we mailed them to
them we camping servers and the courts
came down with the notion that to have
physical jurisdiction personal
jurisdiction something you have to have
some type of interaction with that
particular party uh normally it's doing
business in a particular area having a
presence using their courts or their
legal system using their that
jurisdiction's resources those are all
things that can that can trigger that
action but the internet has made that
muddier what is when you are on Facebook
when you're on Twitter when you're on
Instagram when you are when you're
communicating with people from all over
the country all over the
world where are you doing
business the courts continue to struggle
with that
um and as such uh people are going to
make the notion that they were harmed
where they were or they were harmed
where their family was uh
and there's not necessarily a right or
wrong with this uh it does leave open
the possibility of forum shopping that
notion that somebody who has an aor
grind might try to find an argument that
will bring you into a jurisdiction
that's least favorable to you uh and you
just need to be aware that things are
often not as cut and dry as you think
going into fic item so
time as I'm running near the end of my
hour I think this appropriate to have
this in our world things move fast
things change quickly in law not so much
uh there is a celebrity who is now being
sued for having run into somebody on a
bunny slope uh Glen palro I believe it
is um now the argument of did the
optrician run into her did she run into
the into the optrician who knows but
seven years after a collision on a bunny
slope we're now in a trial think about
that for a little bit how trivial does
it sound that two people bumping into
out of the bunny slope seven years to
get to a
court
so keep in mind that these things have a
really really long
tail good news bad news most cases that
are threatened or brought don't actually
make it to verdict B majority will
either get dropped because it's just not
worth pursuing or people will choose to
make a settlement um you know numbers
have ranged as high as 85 90% of cases
that are threatened never actually get
diverted um but that doesn't necessarily
mean there's not going to be impact cost
or damage to you before you get
there I think we might have CL for one
or two questions if anyone has is so
inclined nope I have no time so I am
done uh thank you very much for your
time I appreciate it
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