Making Law, The Press and Litigation

I was driving to work today when I received a phone call from a reporter from Law360, an internet publication widely known throughout the legal profession. She was calling to find out my reaction to the Court of Appeal's decision in the Toyota terror marketing case, which I most recently wrote about in this blog late last week.

I have had to deal with the press many times throughout my career. Most of the time it really serves no purpose for the client, which ultimately is the only consideration an attonrey has when contemplating how or if to deal with the press. "No comment" usually suffices. The only questions we answer are those posed in the courtroom.

In other cases, though, interaction with the press is helpful and desired. The Toyota/Saachi Terror Marketing lawsuit is one of those cases. You can Google this case and see some of the articles written over the months about this case. I was even contacted by a professor at Syracuse University who is going to be teaching this case to her students for the second year running.

Everything you do in the law requires preparation. Talking to the press is no different. So being caught unaware this morning was not anything I enjoyed. I asked the reporter what the court decided and she told me. I gave her my reaction and we said goodbye. Later she wrote this article which pretty much outlines the court's decision and some basic facts about this case.

When I got back to the office I pulled the opinion off the net and read it with pride and satisfaction. A lot of hard work went into this victory and many people contributed. It was the definative team effort. The defendants had wanted to pull the case out of the public court and litigate privately, behind closed doors, with limited discovery, no jury and no punative damages. Now my client is going to be able to have her day in open court and get to the bottom of this demented advertising campaign.

After reading the opinion I then prepared a press release (which includes the Court of Appeal's opinion) and sent it out to various media outlets. We will field calls for the next few days and that will be that. After all, this is just the end of the beginning of the case. This decision only gives our client the right to fight this case in open court.

Oral argument in this case was heard last Friday. The Court's decision came down the next Wednesday. The court has 90 days to file its opinion after the case stands submitted. It is not unusual to wait weeks or even months before the case is finally decided. To receive a decison three days after oral argument is highly unusual. This quick trigger along with the unanimity of the court means this was not even a close call. And when you read the opinion and the lawsuit you can understand why.

At the conclusion of my oral argument before the court last week I urged them to consider publishing this case. The law consists of two basic areas where courts look to guide them in making decisions. The first, most obviously, are the statutes the state legislature passes and ordinances cities pass. These are all "laws". The court has to follow the written laws and decide cases, when applicable, based on these laws.

The second body of law courts look to is called "case law". When a case goes to appeal all cases are decided by written opinion. Almost all of those written opinions are unpublished. This means other parties in other cases cannot use these unpublished cases to help other courts decide their own cases.

But a very few court of appeal decisions are published. These are the lucky ones. These are the cases that "make law" and in so doing, literally make history. For a better understanding of why this is no overstatement, check out this link regarding the concept of stare decisis. Yesterday's decision was one of those published cases. This means this case can be cited in all California cases, both at the trial level and on appeal. This appeal made law and now can be cited to guide courts in both arbitration cases in particular and contracts cases in general. There are not too many "fraud in the inception" cases and no such case having to do with internet click-through agreements. That's why the court decided to publish this case.

We live in a world increasingly dependent upon internet transactions involving contracting parties. These internet agreements are going to wind their way through the courts. A new world with new technology is going to require new law. This case is is but one rung in the ladder. Stay tuned and TLF will keep you posted, both literally and figuratively.

--Nick Tepper, Esq.

Categories: Civil Law, Appeal, Lawsuits
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