I read numerous blog comments from people who were outraged to see attorney Stuart V. Goldberg sharing an “honest recollection” of his obviously confidential discussion with Lindsay Lohan. Why Goldberg needed to explain to People magazine why he couldn’t accept Lohan as a client went unexplained. His comments regarding Lohan – while not being her attorney of record – were as follows:

“I found her not fully forewarned of the consequence of her actions.”

“I’m concerned that she’s not disciplined or tehtered enough to the reality of adult consequences.”

“She doesn’t seem to have the awareness of what’s going to befall her.”

Goldberg needed “100 percent loyalty and zero tolerance for dishonesty… they didn’t seem to understand the urgency and gravity of the situation.”

From my observation, I am guessing this slick talking criminal lawyer orchestrated the entire event to mislead the public’s perception. On day one, Goldberg appears to decline Lohan as a client because she’s so spoiled and deluded that she’s just not worth the effort. He’s the hero and she’s the spoiled (but helpless) child. On day two, Goldberg has a change of heart and, after reflection, takes her case. What changed his mind?

Reading the ostensibly candid betrayal again, I realize that Goldberg’s comments to People Magazine were likely planned. How else to explain this sudden article – did Goldberg fall out of bed and into the editor’s office? Is it also coincidence that his same words will undoubtedly be used for her defense? Lohan is a “lost child” and so far removed from reality that shei simply unable to understand and appreciate the consequences of her actions.

The manipulation of the press has always been an uneasy issue to manage. But what is problematic to me is when the public is led to believe that it’s the lawyer who can decide whether to disclose the contents of a seemingly confidential legal consultation. If this was all planned, perhaps this goes beyond “zealous representation of the client.”

Amusing is finding another registration of iPad just two weeks ago by a company called “IP Application Development LLC” as well. It looks like Apple will need to oppose that filing as well (unless this curious company registering the mark in several other countries is a front for The White Giant.) So was it sheer hubris that led Apple to release the latest iProduct without concern for trademark law or was it an oversight of counsel that had been partying too often in the valley? Apple actually does have a fine team of attorneys in Cupertino, some of which I have the pleasure of friendship.

This newsworthy item begs me to ask the following question. After tearing my ACL playing football several years ago in Central Park (while making a darn fine interception), I registered the domain iKnee.com. I’m also the proud owner of iKoto.com and iSlime.com (don’t ask, I must have imbibed too much sake when that occurred.) This begs the question as to whether I will need to surrender said domains should Apple come calling as it runs out of words to use for its growing product line?

While we’re in a jocular mood, I was amused to discover that other companies registering iPad as a trademark included a bra manufacturer. It seems that humor has cropped up on all fronts regarding the product, purporting that the iPad can solve a whole host of female problems. Joking aside, from a utilitarian standpoint I’m not sure what the iPad is supposed to do and the void it fills for up to $1,000. Perhaps Apple wants to be the “first in the game” but this is an expensive way to go to accomplish something I cannot identify. It has no USB adapter and it has no camera. It doesn’t feature flash for web browsing and, from my understanding, 3G and WiFi will only be available in upcoming models. There aren’t storage expansion options via SD cards either. Perhaps it buys extra coolness for $500 (plus all the necessary extras.)

Data Playing Poker on Star Trek

At a Christie’s auction, Moustakis won bids for approximately $25,000 for items that allegedly appeared on Star Trek, The Next Generation – a poker table and Star Trek uniform and poker visor allegedly worn by actor Brent Spiner, who plays the character “Data” on the show. (Also sold were a six and a half foot model of the Starship Enterprise for over a half million dollars and another uniform and pants allegedly worn by Spiner/Data sold for almost $10,000.) Moustakis claims that after having a conversation with Spiner at a convention, he discovered that the items were never actually worn on the show. Further investigations lead Moustakis to believe the items were fake, although it is unknown to me what led him to that conclusion.

The bottom line? The judge ruled that Christie’s warranties and limitations of liability insulated the auction house. I’m not sure I was altogether satisfied with the explanation although there are many facts here that we don’t know about this sensational case. It is alleged (and which may have been introduced into evidence) that Christie’s had posted incorrect information that was revised in a handout provide to live bidders – in addition to a correction made before the auction. Despite  this disclaimer, the plaintiff apparently claimed that Christie’s had knowledge of numerous duplicate items that Paramount (studio creating Star Trek) was warehousing and which never appeared on the show. Moustakis apparently discovered several identical items available on eBay for less than half the price he paid, as well as differentiation the poker table on the show from the one he had bought.

Certainly I can understand the disappointment of the bidder but several million dollars worth of damages?

2009 NY Slip Op 09543

Decided on December 22, 2009

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 22, 2009

Sweeny, J.P., Catterson, Renwick, Freedman, Abdus-Salaam, JJ.

1847 117179/07

[*1]Ted Moustakis, Plaintiff-Appellant,

v

Christie’s, Inc., et al., Defendants-Respondents.

Jeffrey Benjamin, P.C., Forest Hills (Jeffrey Benjamin of counsel), for appellant.

Levine Sullivan Koch & Schulz, L.L.P., New York (Nicole A. Auerbach of counsel), for respondents.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 7, 2008, which granted defendants’ motion to dismiss the complaint to the extent of dismissing all causes of action related to one of the items purchased by plaintiff, as well as the claims for fraud, negligent misrepresentation and violation of the General Business Law relating to all items, and the demands for punitive damages, unanimously affirmed, without costs.

This action arises out of an auction of memorabilia from the Star Trek television series and motion pictures. Contrary to plaintiff’s contention that defendant Christie’s had represented the Commander Data uniform to be one of a kind, no such representation was ever made in the auction catalogue. Significantly, the Conditions of Sale, which plaintiff accepted in order to be allowed to participate in the bidding process, expressly declared that “all property is sold as is’ without any representation or warranty of any kind by Christie’s or the seller.” UCC 2-316(3)(a) recognizes that “unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like as is’ . . . which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.”

Even assuming there was a breach of contract or warranty as to the other two items purchased by plaintiff at the auction, he was, under the Conditions of Sale, contractually precluded from pursuing the massive recovery he now demands. The only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods (see UCC 2-719[1][a]).

The allegations of fraud and negligent misrepresentation are virtually identical to those upon which the causes of action for breach of contract and breach of warranty rest, and are thus duplicative, inasmuch as there is no pleading of the breach of a duty separate and apart from the contractual obligation owed to plaintiff. In that regard, it is axiomatic that “a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]).

Nor does plaintiff have a viable cause of action against these defendants under General Business Law § 349 or § 350. A party seeking those remedies must charge conduct that is consumer oriented, with an impact on the public at large (Canario v Gunn, 300 AD2d 332 [*2][2002]). Finally, the misconduct alleged here, which arises from a private contract, does not resemble the egregious wrongdoing that could be considered part of a pattern directed at the public generally, so as to warrant the imposition of punitive damages (see Garrity v Lyle Stuart, Inc., 40 NY2d 354, 358 [1976]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 22, 2009

I’m hoping there is more to this story than appears to be written and reported by the Canadian Broadcasting Company. Most of the articles I’ve read seem to be harping on the angle, that using Facebook to terminate medical benefits is wrongful. Nathalie Blanchard reportedly told CBC that her doctor advised her to have fun as a way to forget her problems, including nights out at a local bar and short getaways to sunny destinations. She complains that Manulife told her that her Facebook photos are evidence that she’s no longer depressed and she has hired an attorney to explore next steps. Blanchard’s lawyer, Tom Lavin, stated “I don’t think for judging a mental state that Facebook is a very good tool.”

I’m trying to understand how and why these extended benefits could have been justified in the first place. Thanks to the unchecked, massive theft responsible for the downfall in economies worldwide, numerous people are suffering from serious clinical depression. What is preventing all of them from receiving a year and a half vacation sick leave on an insurance company such as Ms. Blanchard? I thought that only Americans had such a “Constitutional Right” to happiness, not Canadians.

Blanchard’s lawyer requested a new psychiatric evaluation of his client and thinks Manulife’s investigation was inappropriate. Blanchard estimates that the Facebook debacle has cost her thousands of dollars in benefits. So how much has her debacle cost policy holders in the form of the rising price of health insurance premiums? Am I missing something here?

Interesting to note that, in addition to its reply, Match.com filed a motion to dismiss on the basis of a lack of jurisdiction of the New York Federal Court, claiming that the user agreement specifies that any disputes involved the Match.com web site must be litigated in the state of Texas. More upcoming on this case soon.

A significant part of the unacceptable iPhone battery drain comes from Apple’s insane notion that the iPhone is always connected wirelessly to “the cloud” and should always try to connect to retrieve new information at every opportunity. This will occur regardless of how the user utilizes the phone and Apple doesn’t seem to think those user settings are important.

Try using the mail application, for instance. I have several accounts which all are unfortunately separated into their own mailboxes (you cannot consolidate mailboxes on the built-in mail application.) Each time you merely seek to look up an email to get a name, phone number or address, the iPhone will attempt to connect to the server and retrieve new mail. If you do this multiple times daily as I do (and most people who use email hourly), your phone will drain rapidly and there is nothing you can do about it. Unfortunately Apple provides precious few email options and doesn’t include an option to stop checking each time you open a mailbox account. The solution? Get rid of all your unnecessary mailboxes, use only the most critical accounts and check them as rarely as possible.

Another problem I’ve noticed is that, even if I’m using Airplane Mode (radio off), virtually every application I fire up tells me that there is no Internet connection or that Location Services is turned off. The frequency in which this occurs is maddening. I cannot imagine that these constant messages don’t burn up more battery time as applications search for connectivity to the cloud. Since I spend a great deal of time on the subway train and out of range, I use Airplane Mode every day for at least 90-150 minutes. Wouldn’t you think that, by now, Apple would have a setting to stop these nag screens ?

Another problem is the inane restriction that Apple has in not allowing any file synchronization using the USB port other than what iTunes permits. This means that if you have documents or other files that you sync, you must maintain a WiFi connection. For example, I use Dataviz’ Documents to Go and also the QuickOffice application to synchronize my office work files. With my Palm and Blackberry, each time I had the phone in the dock, a USB synchronization allowed all my files to be synchronized. It was poetry in motion. With the iPhone, I must make sure WiFi is turned on, open up each application individually and make sure it is paired and/or connected via WiFi and manually synchronize. It’s enough to tear your hair out and drain your battery too.

While the iPhone certainly has its benefits and can be an enjoyable experience, as a practical business phone it’s a liability at present. I’m afraid that we might not see a remedy coming from Apple any time soon. Ultimately your choices are either (a) consider using your phone less intenstively, (b) buy a bulky extended battery pack, or (c) make sure you’ve got charging opportuinities at your remote locations. Other battery saving tips are available on Apple’s site, such as turning down the brightness, etc. but these are just general tips and won’t solve the ultimate issue.

Trina Thompson is suing Monroe College for her tuition money, finding that her college degree is not resulting in an instant job. She is also seeking $2,000 to deal with the stress she has been going  through looking for a full time job on her own without the perceived hand holding of the career placement office. What is important to note is that she’s suing pro se, by herself, and is not being represented by an attorney looking to break new ground. It’s a rough economy and it seems that everyone is looking to find money somewhere.

As most should know who join virtually any dating site including match.com, the world’s largest online dating service, you can put up a profile but you have to pay to play. On match.com, paying to play is to the tune of approximately $20-40 per month, depending upon the length of time you subscribe and the options you choose. But you don’t have to pay to check out the service – and that is obvious instantly when you create a profile. But McGinn believes that match.com bears the responsibility – and fails to deliver – to differentiate between who is a paying subscriber and who is not. As such, a man can pay for membership and write to endless women whom he does not know are non-payment members who cannot reply, causing him wasted time and heartbreak.

“When a subscriber cancels their subscription, their profile continues to appear to be that of an active subscriber, nothing indicates to the viewer their limited access to read e-mails or respond to them… Match derives a benefit from giving members ‘matches’ who can’t reply because the notifications that someone has expressed interest in them induces some non-subscribers to subscribe in some cases.”

So if McGinn didn’t understand the way match.com works, wouldn’t the match.com folks have given him his 40 bits back and avoided a class action lawsuit? Probably… but for people like Mr. McGinn, apparently the deep rooted pain doesn’t end there.

“Match defrauds the consumer of his/her time, labor, and emotional investment… Match’s policy causes humiliation and disappointment for some members of the Class who feel rejected when their e-mails get no reply… causes severe emotional distress and anxiety for some members of the Class, including those who keep writing e-mails to one member after another and never hear back from any because he/she is writing to people who’ve cancelled. Because the writer has no way of knowing this, he or she may experience profound personal anguish, suffering which is easily preventable by Match.”

The next part of the brief does make a point but it misses the mark by a mile. A member is reported as “active” whether they login to cancel an account, deal with a billing issue, or something other than an intent to find a date. Is that deceptive? I’m not sure how anyone can differentiate the reason why someone logged into their account until after the deed is done. Additionally, how many times will a member log in to cancel an account? 23 times per month? There are some legitimate points about raising the activity level on match.com in order to entice membership, but nothing compelling.

Now here is the reason why this firm should have hired me to perform some expert review of their case and complaint, LOL! I observed that when a user merely reads a private email message sent from match.com, the act of viewing the email triggers the user’s online status to “active!” Now that is a significantly misleading and deceptive tactic which other users have already complained about prior – the misleading representation that someone is active or has “logged in” when they have not, in fact, logged in or performed any activity with relation to the service.

Let’s take an example where boy meets girl for the first time and likes her. While he doesn’t want to lose her and appear to be insincere, he still will review his emails from those who reply to his prior love missives but won’t login to start a new connection. Unbeknownst to him and probably most users, match.com will report him as “active” not just be replying to an email that runs through the match.com system, but merely opening an email message that could be an advertisement that he’d like to put in the trash, the likely result of code embedded invisibly in the email. When the girl logs in (or has a friend do so) to check on the sincerity of the boy, he appears to be checking out women every day while insisting that he prefers to see her exclusively. Now this deliberate attempt to mislead non-members into thinking that there are far more active users than actually appear is deceptive and match.com profits from this deceptive practice.

Match.com has been accused of fraudulent conduct before – in 2005 a lawsuit was filed against match.com and Yahoo, alleging that attractive employees were required to go out on a set number of dates with elegible single men. This lawsuit was later dropped. So what is going to happen now in 2009? It’s difficult to say, but if this is litigated, it will provide us with some case law on what is and what isn’t considered a deceptive practice in the shady practice of trying to lead web site visitors to the conclusion that more “action” is happening on a web site than is truly occurring in the hopes of coaxing another membership fee. At the very worst, it will be an exercise in entertaining courtroom fodder meeting reality TV as it will expose the life of the latest forlorn 40-something New York male looking for love in all the wrong places… the New York Southern District Court… and you can download the complaint against match.com here.

On May 12, Carroll reports that the servers now exist in two separate facilities, there are problems, but by the end of the day, a “major portion” of the servers will be under the same roof. Not quite sure what that means but on May 13, another update states that there are some expected glitches, and while some blogs appear to have been lost, all data is still intact and 3 move phases were completed. (How many phases were planned for this move?) At least there is a daily account. Forward to May 17 and the report is now that 2/3 of all the servers have been moved. So if you do the math, does that mean that there should be 12/3 more phases left? I’m not quite sure but, after all this time, it’s quite apparent that several people are going to need to find new jobs (and perhaps a good attorney.)

Complete silence for the next two weeks – that’s right, two weeks. Carroll announces on June 3 that the move was completed two days earlier and that the move of 900 machines has saved 50% of their rack footprint. The plan was apparently for “only five weeks” but the cost savings was well worth it, giving the company a serious chance to succeed moving forward. Sure there is some cleanup necessary but (wiping sweat from his brow), Carroll assures us all it was worth it and it’s Miller Time for the incredible Technorati Team. Not so fast, Dorion. Things still aren’t working properly (in fact, I can’t even properly complete the claim and setup of this blog as of June 14.)

It’s silence again, this time until June 12. Now we hear from Jen McLean, VP of Marketing. When reporting is passed to the marketing group, you know something serious is going on behind closed doors as the company seems to be moving the wash into full spin cycle (but is apparently still all wet.)

“It’s been a tumultuous month. For us – and unfortunately for you. We’re sorry for the frustration and the less than great service. While not an excuse, here is the reason:”

Yes, it has been a very tumultous month with numerous outages and problems… and absolutely no support for blog owners to have an idea of what is actually going on.  But wait a minute – didn’t we hear the reason for this move many weeks ago?

“We changed co-location facilities. We, well the four members of our ops team, moved 1,000 servers and ALL of our real-time search infrastructure. Things are now returning to normal, although slower than we would have liked.”

Quite a herculean effort!!  I think we went from 600 to 900 to over 1,000. Actually, I think Carroll’s exact words were “We have successfully moved nearly 900 machines…” just a few days earlier. Regardless, I don’t think many Technorati users want to hear what an incredible effort it has been – they just want to be able to gage expectations.

“We haven’t lost any data – so when things are back to normal your link counts and authority will be exactly where they should be.”

That’s great but you’ve been repeating yourselves for the past several weeks… two months on the Internet is like two centuries in dog years… or something like that.

“We’ll follow up in more detail so you have information on exactly which services have been affected and how, and when they’ll be completely functional again.”

I don’t know how to tell you this, Jen, but the problem is that all your users know the problems – what they need to know is an understanding of when there will be a solution! We certainly hope that the good folks at Technorati can finally get the service back to full working order. But these embarrassing and long lingering technical problems at Technorati and the complete abandonement of all support makes Twitter look like a fine tuned, well oiled machine. Point made. In the meanwhile, get this feed from Feed burner!