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Connectiuct Business Litigation Blog
Commentary on lawsuits and legal issues impacting Connecticut businesses. Authored by experienced business litigation attorney, Kane Bennett of Aeton Law Partners, LLP.
You Should Not Ignore Choice of Law or Forum Selection Provisions In Business Contracts
In a typical business deal, the parties negotiate over essential terms such as price, payment, deliverables, indemnification, warranties, etc. Once you work out all the important details, the parties put together a written contract with the essential terms in it. If a lawyer is involved, the contract also will include a bunch of so called boiler plate clauses. The boiler plate clauses are the 10 or 12 clauses that appear at the end of a contract. Many times the boiler plate clauses get overlooked because the parties typically say “these clauses are in every contract.” Ignoring these provisions can be a costly mistake if the relationship breaks down and a lawsuit becomes necessary. In fact, when parties finalize a business deal they do not anticipate how these clauses might impact litigation down the road. Two of these clauses that frequently get overlooked are known as “choice of law” and “forum selection” clauses. This post will focus on forum selection. I will address choice of law in the next post. Forum selection clauses typically govern the location and venue where the parties can file a lawsuit arising out of any dispute subject to the contract. The provisions vary. Parties usually negotiate over the location, but often times the exclusivity of the location gets overlooked. Some examples might require the parties to file a lawsuit: in only one location, such as Connecticut or Massachusetts (exclusive) in only one court, such as Hartford Superior Court in Connecticut (exclusive) in multiple locations or courts
Otter Products Ratchets Up Its Enforcement of Counterfeit Otterbox Phone Cases
Recently, Otter Products LLC, the maker of specialty mobile phone cases including their DEFENDER®, COMMUTER® and IMPACT SERIES® line of products, has stepped up its enforcement actions against buyers and sellers of alleged counterfeit goods bearing their federally registered trademarks. To date, approximately 30 trademark infringement lawsuits have been filed against John Does and named individuals in the Central District of California, the Eastern District of New York and District of Colorado alleging the sale of counterfeit phone cases sold online including by Amazon marketplace, eBay and Craigslist sellers and retailers. Additionally, law firms retained by Otter Products have sent hundreds, if not thousands, of letters to suspected counterfeit sellers alleging multiple intellectual property violations including violation of the Lanham Act, federal trademark infringement, false designation of origin, unfair competition, false or misleading advertising, unfair business practices and unjust enrichment. Many of these letters allege illegal dealings in counterfeit Otterbox products as confirmed by the inspection of phone cases by an investigator who purchased a case online from the seller. Moreover, these letters often make an offer of settlement should the seller wish to resolve the matter in lieu of being sued in a state that is typically not their home state. If you’ve received a letter from a law firm retained by Otter Products, it is best to consider hiring an attorney that has experience representing sellers of alleged counterfeit goods so that you can better understand your options and determine if settlement is the best course of
New Update to Connecticut Data Breach Law
Connecticut Updates Its Data Breach Statute by Attorney David Benoit. A month after Vermont made substantive amendments to its Security Breach Notice Act to address a number of consumer protections, Connecticut followed suit on June 12th with a similar amendment to Connecticut General Statutes Sec 36a-701b to include a notice to the State’s Attorney General. Going into effect on October 1, 2012, Connecticut’s amended breach notification requirements will now include an obligation to notify the Connecticut Attorney General’s office pursuant to a new subsection (b)(2): “If notice of a breach of security is required by subdivision (1) of this subsection, the person who conducts business in this state, and who, in the ordinary course of such person’s business, owns, licenses or maintains computerized data that includes personal information, shall not later than the time when notice is provided to the resident also provide notice of the breach of security to the Attorney General.” Regarding when notice is to be made (both to the Connecticut resident and the Attorney General), the statute allows the notifying party a reasonable amount of time to accommodate delays resulting from law enforcement and company-led investigations meant to: (i) determine the nature and scope of the data breach, (ii) identify the individuals affected by the breach, and (iii) restore the reasonable integrity of the data system. Additionally, subsection (c) was amended to clarify that the state’s notification requirements are applicable only to personal information of “a resident of this state.” Furthermore, pursuant to Section (g), failure
Have You Received a Copyright Infringement Letter form a Connecticut Internet Provider?
What To Do If You Receive a Copyright Infringement Letter From Your Internet Service Provider (ISP) If you’ve recently received a copyright infringement letter from your Internet service provider, you’re not alone. Recently, there’s been a rise in the number of copyright infringement lawsuits filed across the country involving alleged copyright infringement or “piracy of content” via peer-to-peer (P2P) and file sharing services such as BitTorrent and The Pirate Bay. A recent report has identified over 220,000 individuals as having been sued since mid-2010 in mass BitTorrent lawsuits, many of them based upon alleged downloading of copyrighted works. Typically, plaintiffs involved in these cases file suit against a series of “John Does” alleging the illegal downloading of images, blockbuster movies and oftentimes, adult-themed videos. In their complaints, plaintiffs will often include a list of Internet protocol (IP) addresses that were used to engage in the illegal transfer of copyrighted materials. How will a plaintiff get my name and contact information? Through the use of court-ordered subpoenas, plaintiffs will request the Internet Service Providers (ISPs) (i.e., Comcast, Verizon, Cox, Time Warner) to turn over the individual names and contact information of the Internet account holders associated with the IP addresses that were identified in their complaint. Oftentimes, the ISPs will file motions to quash the subpoenas (motions asking the court to relieve them from having to turn over the requested information). If an ISP does not file a motion to quash, or the court rules in favor of the plaintiff,
IP Advice for Connecticut Start-Ups: Protecting Your Client’s Personally Identifiable Information
David Benoit presents his fourth post as a guest blogger on the topic of Intellectual Property for Connecticut Start-Up companies. In his fourth installment, he focuses on the need for entrepreneurs to protect their client’s most important assets: client personal information. In addition to implementing best practices with respect to a company’s own IP, start-ups need to be as mindful in taking adequate safeguards to ensure that any client IP that is being collected, stored, manipulated or distributed is not being used in a manner that will expose the start-up to liability. Client IP most often includes “NPI” (nonpublic personal information) and includes personally identifiable financial information and any lists, descriptions or other groupings of consumers derived using personally identifiable financial information. Unauthorized disclosure or access of personally-identifiable customer data typically results in financial liability (i.e., regulatory fines, penalties and legal fees) and reputational liability (i.e., damage to goodwill that the startup has worked hard to build). Knowing which IP safeguards to implement and what steps need to be taken if an IP breach occurs requires a thorough understanding of the ever-changing, multi-jurisdictional laws and regulations applicable to the start-up’s business. This could include federal regulations, state- and industry-specific requirements surrounding the collection, storage, deletion and distribution of sensitive customer or end-user data. Utilizing the services of a privacy attorney who understands not only your business, but also your client’s, is important to implementing best practices. Having an understanding of these regulations and standards, such as the Children’s
Software Liability Act in Connecticut – Good Idea or Too Much Regulation?
Do software publishers need more regulation to encourage creation of safe and reliable software?That was the general question posed for a debate at the RSA Conference USA on February 29, 2012. Sean Doherty of Law Technology News wrote an interesting article summarizing the two different positions. One side of the debate favors creating a regime of "civil liability for software manufacturers whose code causes harm to consumers." Opponents view a regime of civil liability for damages caused by software as another unnecessary regulation. In addition, opponents maintain that our existing laws already provide remedies for software liability. In Connecticut, there is no software liability statute or act. However, there are various existing legal theories that might apply to the sale of defective software, including: breach of contract; breach of express warranty; breach of implied warranty; and misrepresentation. Of course, there are also defenses to breach of warranty claims regarding software. In many instances, a software attorney writing a contract or license agreement will include a disclaimer of all warranties and a cap on damages. Some consumers and purchasers do not have the ability to hire an attorney to negotiate a purchase of software. Will a software liability act prohibit such disclaimers? Conversely, not all software vendors or manufacturers hire a software lawyer to protect their interests by drafting appropriate disclaimers in license agreements and contracts. Will a software liability act also protect software publishers from frivolous claims? As noted by the debaters at the RSA conference, everyone wants
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Connecticut Business Litigation is the most well-read litigation blog in the state of Connecticut. Founded by Attorney Kane Bennett in 2009, a pioneer in Attorney Marketing in the state of connecticut