Litigation

Google it: Justice Department files Antitrust Case Against Google

Amanda Erickson, MJLST Staffer

Technology giants, such as Google, have the ability to influence the data and information that flows through our day to day lives by tailoring what each user sees on its platform. Big Tech companies have been under scrutiny for years, but they continue to become more powerful and have access to more user data even as the global economy tanks. As Google’s influence broadens, the concern over monopolization of the market grows. This concern peaked on October 20, 2020 when the Justice Department filed an antitrust lawsuit against Google for abusing its dominance in general search services, search advertising, and general search text advertising markets through anticompetitive and exclusionary practices.

The Department of Justice, along with eleven state attorney generals, raised three claims in their lawsuit, all of which are under Section 2 of the Sherman Antitrust Act. The Department of Justice claims that, because of Google’s contracts with companies like Apple and Samsung, and its multiple products and services, such as search, video, photo, map, and email, competitors in search will not stand a chance. The complaint is rather broad, but it details the cause of action well, even including several graphs and figures for additional support. For instance, the complaint states Google has a market value of $1 trillion and annual revenue that exceeds $160 billion. This allows Google to pay “billions of dollars each year to distributors . . . to secure default status for its general search engine.” Actions like these have the potential to curb competitive action and harm consumers according to the government.

The complaint states that “between its exclusionary contracts and owned-and-operated properties, Google effectively owns or controls search distribution channels accounting for roughly 80 percent of the general search queries in the United States.” It further mentions that “Google” is not only a noun meaning the company, but a verb that is now used when talking about general searches on the internet. It has become a common practice for people to say, “Google it,” even if they complete an internet search with a different search engine. If Google is considered to be a monopoly, who is harmed by Google’s market power? The complaint addresses the harm to both advertisers and consumers. Advertisers have very little choice but to pay the fee to Google’s search advertising and general search text monopolies and consumers are forced to accept all of Google’s policies, including privacy, security and use of personal data policies. This is also a barrier to entry for new companies emerging into the market that are struggling to gain market share.

Google claims that it is not dominant in the industry, but rather just the preferred platform by users. Google argues that its competitors are simply a click away and Google users are free to switch to other search engines if they prefer. Google points out that its deals with companies such as Apple and Microsoft are completely legal deals and these deals only violate antitrust law if they exclude competition. Since switching to another search engine is only a few clicks away, Google claims it is not excluding competition. As for Google’s next steps, it is “confident that a court will conclude that this suit doesn’t square with either the facts or the law” and it will “remain focused on delivering the free services that help Americans every day.”

Antitrust laws are in place to protect the free market economy and to allow competitive practices. Attorney General William Barr stated “[t]oday, millions of Americans rely on the Internet and online platforms for their daily lives.  Competition in this industry is vitally important, which is why today’s challenge against Google—the gatekeeper of the Internet—for violating antitrust laws is a monumental case.” This is just the beginning of a potentially historic case as it aims to protect competition and innovation in the technology markets. Consumers should consider the impacts of their daily searches and the implications a monopoly could have on the future structure of internet searching.

 


Nineteen Eighty Fortnite

Valerie Eliasen, MJLST Staffer

The Sixth and Seventh Amendments affords people the right to a trial by jury. Impartiality is an essential element of a jury in both criminal and civil cases. That impartiality is lost if a juror’s decision is “likely to be influenced by self-interest, prejudice, or information obtained extrajudicially.” There are many ways by which a juror’s impartiality may become questionable. Media attention, for example, has influenced the jury’s impartiality in high-profile criminal cases.

In cases involving large companies, advertising is another way to appeal to jurors. It is easy to understand why: humans are emotional. Because both advertisement perception and jury decisions are influenced by emotions, it comes as no surprise that some parties have been “accused of launching image advertising campaigns just before jury selection began.” Others have been accused of advertising heavily in litigation “hot spots,” where many cases of a certain type, like patent law, are brought and heard.

A recent example of advertising launched by a party to a lawsuit comes from the emerging dispute between Apple Inc. and Epic Games Inc. Epic is responsible for the game Fortnite, an online “Battle-Royale” game, which some call the “biggest game in the world.” Epic sued Apple in August for violation of the Sherman Antitrust Act of 1980 and several other laws in reference to Apple’s practice of collecting 30 percent of every App and in-App purchase made on Apple products. When Epic began allowing Fortnite users to pay Epic directly on Apple products, Apple responded by removing Fortnite from the App Store. The App Store is the only platform where users can purchase and download applications, such as Fortnite, for their Apple products. In conjunction with the lawsuit, Epic released a video titled Nineteen Eighty Fortnite – #FreeFortnite. The video portrays Apple as the all-knowing, all-controlling “Big Brother” figure from George Orwell’s 1984. The ad was a play on Apple’s nearly identical commercial introducing the Macintosh computer in 1984. This was an interesting tactic given the majority of Fortnite users were born after 1994.

Most companies that have been accused of using advertisements to influence jurors have used advertisements to help improve the company image. With Epic, the advertisement blatantly points a finger at Apple, the defendant. Should an issue arise, a court will have an easy time finding that the purpose of the ad was to bolster support for Epic’s claims. But, opponents will most likely not raise a case regarding jury impartiality because this advertisement was released so far in advance of jury selection and the trial. Problems could arise, however, if Epic Games continues its public assault on Apple.

Epic’s ad also reminds us of large tech companies’ power to influence users. The explosion of social media and the development of machine learning over the past 10 years have yielded a powerful creature: personalization. Social media and web platforms are constantly adjusting content and advertisements to account for the location and the behavior of users. These tech giants have the means to control and tailor the content that every user sees. Many of these tech giants, like Google and Facebook, have often been and currently are involved in major litigation.

The impartial jury essential to our legal system cannot exist when their decisions are influenced by outside sources. Advertisements exist for the purpose of influencing decisions. For this reason, Courts should be wary the advertising abilities and propensities of parties and must take action to prevent and control advertisements that specifically relate to or may influence a jury. A threat to the impartial jury is a threat we must take seriously.

 

 

 

 

 


Printing Pistols: Litigation Continues over the Legality of 3-D Printable Firearms

Holm Belsheim, MJLST Staffer 

3-D printing is the process of creating three dimensional objects by layering very thin layers of plastic into the desired shape. All you need is the printer, raw material, and a good blueprint. From gadgets and toys for home use to replacement organs, there are many things one can make. Some of the possibilities, however, pose significant legal concerns. At the heart of years of litigation is a group behind the designs for a working, 3-D printable firearm.

In 2013 Cody Wilson founded Defense Distributed to distribute and monetize 3-D printable gun designs. Defense Distributed’s first design, the Liberator, could fire a single shot. Plans for the Liberator were downloaded an estimated 100,000 times from the Defense Distributed website alone, and have since been hosted on several other sites. As of 9/25/2018, a search of the Defense Distributed file site DEFCAD turned up nine different designs for printable guns and gun parts. The group ultimately hopes to create a larger community of 3-D gun designers and printers.

Ignoring the national debate over firearms, 3-D printed guns pose a unique security risk. Making a gun is not illegal. Liberators are concerning because, like most 3-D printed objects, they are made of plastic. They aren’t detectable by metal detectors, and furthermore lack serial numbers or other identifying information. Per the Undetectable Firearms Act, undetectable guns have been illegal since 1988. While the Liberator design incorporates two metal pieces, one solely to set off metal detectors, the design doesn’t require them to function. Anyone with a 3-D printer can choose whether to include these pieces. Thus, these ‘ghost guns’ pose a substantial security risk.

The Liberator debuted on May 6th, 2013. Two days later, Defense Distributed took down the designs after the U.S. State Department deemed them a violation of export laws under the Arms Export Control Act. In 2015, citing 1st, 2nd and 5th Amendment arguments, Defense Distributed sued the United States in District Court (Defense Distributed v. U.S. Dept.t of State, 121 F.Supp.3d 680, (W.D.T.X. 2015)) and then, upon appeal, in the Fifth Circuit (838 F.3d 451, (5th Cir.  2016)) before being denied certiorari by the U.S. Supreme Court. Surprising some, the U.S. Government settled with Defense Distributed in 2018, giving the group license to upload the plans again as well as paying some of their legal fees. Only a few days after the plans were reuploaded however, Oregon and several states sued Defense Distributed, the U.S. State Department and others.(State of Washingtonv. U.S. Dept.of State2:18-cv-01115-RSL (W.D.W.A. 2018)). Subsequently U.S. District Judge Robert Lasnik issued a restraining order against Defense Distributed’s hosting of the plans.

So far, the injunction doesn’t seem to have done much. Near the end of the order is this phrase: “Regulation under the AECA means that the files cannot be uploaded to the internet, but they can be emailed, mailed, securely transmitted, or otherwise published within the United States.” Interpreting this literally, Defense Distributed removed the option to directly access digital plans but has continued sales through other means, namely mailing copies on USB sticks. At least 400 orders have been placed. Whether this workaround remains legal will likely be brought up in the future. For now it’s anyone’s guess whether Defense Distributed read it correctly or played a little too loose with the spirit of the injunction. My prediction is that Defense Distributed won’t be penalized: the options laid out in the injunction are too specific to be accidental.

The litigation is expected to continue. As of 9/25/2018, Defense Distributed has raised $342,000 for its legal expenses while receiving assistance from the Second Amendment Foundation and others. Meanwhile, a total of 21 Attorneys General are on the opposing side. They cheered the injunction but aim for more, potentially a complete ban on 3-D printable guns. The arrest of former Defense Distributed director Cody Wilson on unrelated charges has had no effect upon the case so far.


Apple Faces Trademark Lawsuit Regarding its iPhone X Animoji Feature

Kaylee Kruschke, MJLST Staffer

 

The Japanese company, emonster k.k., sued Apple in the U.S. on Wednesday, Oct. 18, 2017, claiming that Apple infringed emoster’s Animoji trademark with the iPhone X Animoji feature.

 

But first, what even is an Animoji? According it a Time article, an Animoji is an animal emoji that you can control with your face, and send to your friends. You simply pick an emoji, point the camera at your face, and speak. The Animoji captures your facial expression and voice. However, this technology has yet to reach consumer hands. Apple’s website says that the iPhone X, with the Animoji feature, will be available for preorder on Oct. 27, and will be available for purchase Nov. 3.

 

So why is Apple being sued over this? Well, it’s not the actual technology that’s at issue. It’s the name Animoji. emonster’s complaint states that Enrique Bonansea created the Animoji app in 2014. This app allowed users to customize moving text and images and send them in messages. The United States Patent and Trademark Office registered Animoji to Bonansea on March 31, 2015, who later assigned the trademark to emoster in Aug. 2017, according to the complaint. Bonansea also claims that he received requests from companies, that he believes were fronts for Apple, to sell the trademark in Animoji. But these requests were denied, according to the complaint.

 

The complaint also provides more information that sheds light on the fact that Apple probably knew it was infringing emonster’s trademark in Animoji. The day before Apple announced its iPhone X and the Animoji feature, Apple filed a petition with the United States Patent and Trademark Office requesting that the office cancel the Animoji trademark because emonster, Inc. didn’t exist at the time of the application for the trademark. This was a simple mistake and the paperwork should have said emonster k.k. instead of emonster, Inc.; emonster was unable to fix the error because the cancellation proceeding was already pending. To be safe, emonster applied again for registration of the trademark Animoji in Sept. 2017, but this time under the correct name, emonster k.k..

 

Additionally, Apple knew about emonster’s app because it was available on the Apple App Store. Apple also helped emonster remove apps that infringed emonster’s trademark, the complaint stated. Nevertheless, Apple still went forward with using Animoji as the name for it’s new technology.

 

The complaint also alleges that emonster did send Apple a cease-and-desist letter, but Apple continued to use name Animoji for its new technology. emonster requests that Apple be enjoined from using the name Animoji, and claims that it is also entitled to recover Apple’s profits from using the name, any ascertainable damages emonster has, and the costs emonster incurs from the suit.

 

It’s unclear what this means for Apple and the release of the iPhone X, which is in the very near future. At this time, Apple has yet to comment on the lawsuit.


What’s Shaking? Sodium Warnings Upheld in NYC Restaurants

MJLST Guest Blogger, Tommy Tobin

[Editor’s Note: This is the last in guest blogger Tommy Tobin’s latest series on Food and FDA law.  You can find the earlier posts here and here.]

New York’s intermediate appellate court recently upheld a salt shaker. In the February 10, 2017 decision, the court found that New York City could require chain restaurants to mark certain dishes with a “salt shaker” icon, warning consumers that the food contained considerable amounts of salt.

In June 2015, the City issued notice of its intent to require foodservice establishments to warn diners about high salt menu items. After considering over 90 comments and a public hearing, the city adopted its “Sodium Warning” Rule, effective December 1, 2015. In adopting the Rule, the City noted that cardiovascular disease was the leading cause of death in the City and that higher sodium intake was related to increased blood pressure. Further, New York City residents regularly consumed more than the daily recommended amount of sodium and restaurant food was a “primary source” of the salt in New Yorkers’ diets.

The Rule requires chain restaurants—defined as foodservice establishments with 15 or more locations that offered similar menu items—to note food items or meal combinations containing the daily recommended amount of sodium with a specific warning. The warning mandates that a salt shaker icon be placed next to applicable menu items. It also required the following language be displayed at the point of purchase, explaining that the icon “indicates that the sodium (salt) content of this item is higher than the total recommended limit (2300 mg). High sodium intake can increase blood pressure and risk of heart disease and stroke.” The Rule imposes a $200 penalty for non-compliance.

Writing for a unanimous five justice panel, Justice Gesmer ruled against the National Restaurant Association, which had as members more than half the chain restaurants that would be affected by the Rule. The Association challenged the Rule on three grounds, arguing that it violated the separation of powers, was preempted by federal law, and infringed upon its members’ First Amendment rights.

Regarding the separation of powers, the Association argued that City’s health department had exceeded its authority and encroached upon legislative functions in making the Rule. The court was explicit in rejecting the Association’s argument, finding that providing health-related information was the “least intrusive way” to influence citizens’ decision-making. The Rule provided further information to consumers regarding health risks and left it to the diners themselves to decide their dietary choices. The court found that the City has “always regulated” restaurants as necessary to promote public health and did not exceed its authority in adopting this Rule. The court also noted that the same chain restaurants are subject to the City’s calorie content warnings for high-calorie menu items

The Association further argued that the City’s Rule was preempted by federal law, which requires nutrition labeling on grocery store foods. The court rejected this argument as the federal law in question, the Nutritional Labeling and Education Act (NLEA), contained provisions excluding certain warnings and foods from its preemptive effects. Relying on 21 U.S.C. § 343(q) and Second Circuit’s decision in New York State Restaurant Association v. New York City Board of Health, 556 F.3d 114, 124 (2nd Cir. 2009), the court found that the NLEA permits states and localities to establish nutrition labeling for restaurant foods, provided that they are not identical to federal requirements.

The court also examined the appellant’s First Amendment arguments. The Rule would compel commercial speech by placing the salt warnings on menus. Applying the Second Circuit’s New York Restaurant Association, the court examined this compelled commercial speech requirement under a lenient rational basis test. The court found that City’s intended purpose to improve consumer knowledge of potential health risks of salty foods was reasonable. Moreover, the Rule’s applicability only to chain restaurants was not arbitrary or capricious; instead, it was based on health considerations and to facilitate compliance.

The Rule upheld by the court provides advocates new lessons on how to nudge consumers in making point-of-purchase decisions to promote public health. Given the prevalence of cardiovascular disease across the country, additional jurisdictions may consider adopting provisions similar to the “Sodium Warning” Rule. Time will tell how future salt warnings might shake out.

The case is National Restaurant Association v. New York City Department of Health and Mental Hygiene et al., No. 2629, — N.Y.S.3d —- (N.Y. App. Div. Feb. 10, 2017).


As Clear as Milk: Misleading Milk Marketing?

MJLST Guest Blogger, Tommy Tobin

[Editor’s Note: This is the second in guest blogger Tommy Tobin’s latest series on Food and FDA law.  You can find his earlier post here.]

Milk and cookies are one of the quintessential American comfort food combinations. Even so, considerable controversy has arisen out of products being labeled and sold as “milk.” I guess that’s just the way the cookie crumbles.

“Milk” has a precise regulatory definition under 21 C.F.R. § 131.110. Inter alia, “milk” is “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” Leave it to the C.F.R. to make food sound delicious.

The Eleventh Circuit recently decided that a “skim milk” product could be sold as such. The Circuit’s March 20, 2017 decision in Ocheesee Creamery LLC v. Putnam examined whether a Florida statute barred the business from labeling its product “skim milk” if it did not contain Vitamin A. The court below had upheld that law, and the dairy appealed claiming infringement of its free speech rights. Using dictionary definitions and common sense, the panel ruled that the dairy’s use of the words “skim milk” to describe its skim milk would not mislead consumers.

As consumers walk around the grocery store, they may see other products labeled “milk.” As the AP declared, “fake milk” is one of America’s latest food fights. In addition to milk from cows, consumers may see products labeled as “milk” that are derived from almonds, soy, coconuts, or rice. Would consumers actually get confused between these “milk” products and cow milk? The Northern District of California said no.

In a 2013 decision in Ang v. Whitewave Foods Co., consumers brought suit asserting, inter alia, that products like “soymilk,” “almond milk,” and “coconut milk” represented fraudulent business practices and false advertising as they did not come from cows. The court found the claim utterly ridiculous, finding that the descriptions accurately described the nature of the products. The opinion reasoned that “it is simply implausible that a reasonable consumer would mistake a product like soymilk or almond milk with dairy milk from a cow. The first words in the products’ names should be obvious enough to even the least discerning of consumers.”

In 2015, the Northern District of California revisited whether “soymilk” would mislead a reasonable consumer.  In Gitson v. Trader Joe’s, the federal court examined whether advertising a product as “soymilk” would violate the Federal Food, Drug and Cosmetic Act. The court first examined whether the use of “soymilk” was false or misleading, finding that the “reasonable consumer (indeed, even the least sophisticated consumer) does not think soymilk comes from a cow.” Second, the court analyzed whether “soymilk” ran afoul of the regulatory definition of “milk” discussed above. The court concluded that Trader Joe’s did not attempt to pass off its soymilk as “milk,” that is the soymilk was not purported to come from a cow.

While many might find the courtroom melee over milk to be melodrama, figuring out what’s in a name is more than making a mountain out of a molehill. It may matter to companies’ bottom lines.

From mayonnaise to margarine, food fights over standards of identity are likely to increase given the rate of innovation in the food industry and its creative marketers, according to the Food+Bev Law Blog. As noted there, “what you call a food clearly influences consumers’ opinions and purchasing decisions.” Time will tell how companies and consumers react to evolving identities and innovation throughout the food industry.


The Future of Zero-Calorie Soft Drink Trademarks After the TTAB’s Coke Zero™ Ruling and Dr. Pepper Snapple’s Pending Federal Circuit Appeal

Joseph Novak, MJLST Staffer

For the past 13 years, Coca-Cola has been trying to trademark nothing. Well not actually nothing. Zero. As in zero calories. During this time, the Trademark Trial and Appeal Board (TTAB) has denied trademarking Zero for soft drinks, as the term was either generic (Referring to the genus of the good, i.e. Coke Zero as a zero calorie sports drink) or merely descriptive (Describing what the good is, i.e. “Zero” describing “Coke” as a zero-calorie version of the drink); neither of which is distinctive enough upon the Abercrombie spectrum to warrant trademark protection.

Not surprisingly, other large soft drink companies have opposed allowing Coke to register “Zero”, as no other company would be able to use “Zero” on their own mark subsequent to Coke obtaining such a trademark. This past May, the TTAB issued a ruling in favor of Coke (over the opposition of Dr. Pepper Snapple Group) allowing Coke to register numerous trademarks containing “Zero” for their soft drinks. The TTAB held that “Zero” had “acquired distinctiveness through a showing of secondary meaning”, which is a fancy way of saying that Coke had proven that the millions of dollars they had spent on marketing “Zero” meant that consumers of soft drinks were now likely to associate the term “Zero” with the Coca-Cola brand.

The TTAB ruling also contemplates Coke’s trademark infringement claim against Dr. Pepper’s “Diet Rite Pure Zero” mark for likelihood of confusion. For a mark to infringe upon another, the potentially infringing mark must cause confusion to the consuming public as to source, i.e. a showing that consumers of soft drinks would confuse the source of “Diet Rite Pure Zero” with “Coke Zero” given the distinctiveness of the “Coke Zero” mark. The TTAB essentially punts the infringement issue, dismissing Coke’s infringement claim for a failure to prove priority (because Coke could not show that they had acquired distinctiveness through before Dr. Pepper’s use of the term “Zero”, there was no infringement cause of action).

Dr. Pepper Snapple has appealed the issue of distinctiveness to the Federal Circuit, asking the court to find “Zero” as generic for zero-calorie soft drinks. That appeal is still pending. Assuming the TTAB’s finding of acquired distinctiveness for “Coke Zero” holds, the question becomes whether future uses of “[Soft Drink X] Zero” will be barred by the Patent and Trademark Office (PTO) for likelihood of confusion with “Coke Zero”? Or does this TTAB ruling only prevent future use of “Zero” on its own as a mark for soft drinks?

As outlined in this previous MJLST article, both the PTO (in deciding whether or not to register a trademark) and the Federal Circuit (who hears appeals from TTAB decisions) use the Dupont factors to determine whether there is a confusing similarity between a pending mark and an existing mark. These 13 factors, analyzed together as a whole, include:

  1. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression.
  2. The similarity or dissimilarity and nature of the goods described in an application or registration or in connection with which a prior mark is in use.
  3. The similarity or dissimilarity of established, likely-to-continue trade channels.
  4. The conditions under which and buyers to whom sales are made, i.e. “impulse” vs. careful, sophisticated purchasing.
  5. The fame of the prior mark.
  6. The number and nature of similar marks in use on similar goods.
  7. The nature and extent of any actual confusion.
  8. The length of time during and the conditions under which there has been concurrent use without evidence of actual confusion.
  9. The variety of goods on which a mark is or is not used.
  10. The market interface between the applicant and the owner of a prior mark.
  11. The extent to which applicant has a right to exclude others from use of its mark on its goods.
  12. The extent of potential confusion.
  13. Any other established fact probative of the effect of use.

Like many likelihood of confusion cases, the analysis would likely come down to (1) similarity between the marks in terms of sight, sound, and meaning, and (2) whether or not either side could show actual confusion or a lack of such. For example, Coke would argue that any subsequent use of “Zero” in connection with a soft drink would be likely to confuse consumers that (according to the TTAB ruling) have come to associate “Zero” and soft drinks with Coca-Cola products. On the other hand, any subsequent user of “Zero” for soft drinks would likely have to rely upon a dissimilarity in appearance of the mark (as “Zero” would be the same in terms of sound and meaning), or show a lack of actual confusion between the two marks. Otherwise, the potential subsequent user could attempt to argue that “Coke Zero” is the mark in its entirety, and that “[Soft Drink X] Zero” is inherently dissimilar in its nature and thus, unlikely to cause consumer confusion.

In any regard, evidence of actual consumer confusion often comes down to which side has better survey design and results, which often correlates with which side has more resources to conduct such a survey. Thus, if the Federal Circuit upholds the TTAB decision to allow the “Zero” trademark, you better believe that Coca-Cola will put in a hero-like effort to protect their long sought-after victory over “Zero.”


The Excitement and Danger of Autonomous Vehicles

Tyler Hartney, MJLST Staffer

“Roads? Where we’re going we don’t need roads.”

Ok. Sorry Doc. Brown, but vehicular technology is not quite to where Back to the Future thought it would be in 2017; but, there are a substantial amount of companies making investments into autonomous vehicles. Ford invested $1 billion to acquire an artificial intelligence startup company that had been founded by engineers previously employed by Google and Uber with the intent to develop self-driving vehicles. Tesla already has an autopilot feature in all of its vehicles. Tesla includes a warning on its website that the use of the Self-Driving functionality maybe limited depending on regulations that vary by jurisdiction.

To grasp an understanding of what many of the experts are saying in this field, one must be familiar with the six levels of autonomy:

  1. No autonomy
  2. Driver assistance level – most functions still controlled by human driver
  3. At least one driver assistance system – cruise control or lane monitoring
  4. Critical safety features – shifts emergency safety features such as accident awareness from vehicle to human
  5. Fully autonomous – designed for the vehicle to perform all critical safety features and monitor road and traffic conditions
  6. Human like autonomy – fully capable of autonomy even in extreme environments such as off-road driving

The societal benefits could be vast. With level 4 autonomy on household vehicles, parents and siblings need not worry about driving the kids to soccer practice because the car is fully capable of doing it for them. Additionally, the ridesharing economy, which has grown incredibly fast over the past few years, would likely see a drastic shift away from human drivers. Companies have already begun to make vehicles for the purpose of clean energy ride sharing using autonomous vehicles such as Ollie. Ollie is an electric and 3D printed bus that can be summoned by those in need of a ride in a similar fashion to Uber.

While this self-driving vehicle technology is exciting, are we really there yet? Last June, a fatal car accident occurred involving a Tesla using its autopilot function. The driver in this case had previously touted his car saving him from an accident; he was very confident in the ability of his vehicle. It was later reported by a witness that there was a portable DVD player in the car that was found playing Harry Potter at the time of the accident. If this witness is correct, the driver of the vehicle violated the Tesla disclaimer that reads the autopilot feature “is an assist feature that requires you to keep your hands on the steering wheel at all times.” Some experts argue these manufacturers have to be more upfront about the limitations of their autopilot feature and how drivers should be cautious in the use of this advanced technology. It is no question that the driver of the Tesla (if you can call him that?) was reckless in the use of this technology. But what about the liability of the vehicle manufacturer?

The deceased’s family hired a product defect litigation law firm to conduct an investigation in conjunction with the federal government’s investigation. The goal of these investigations was to determine if Tesla is at fault for the vehicle’s autopilot feature failing to stop. Recently, news broke that the government investigation concluded that no recall must be made for the Tesla vehicles nor did the government levy any fines to the automaker. The government reported that the autopilot feature was not defective at the time of the crash because it was built to protect the driver from rear-end collisions (the man’s car rear-ended a truck) and also gave notice to consumers that the driver must remain fully attentive to the operation of the vehicle.

Legally, it appears that plaintiffs won’t likely have much luck in suits against Tesla in cases like this. The company requires purchasers to sign a contract stating the autopilot function is not to be considered self-driving and that they are aware they will have to remain attentive and keep their hands on the wheel at all times. However, Tesla operates on an interesting structure where purchasers buy directly from the manufacturer which may give them more of the ability to engage in these types of contracts with their consumers. Other automobile manufacturers may have a more difficult time maneuvering around liability for accidents that occur when the vehicle is driving itself. Car companies are going to have to ensure they provide repeated reminders to consumers that, until technology is tested and confidence in the feature is significantly higher, that the autopilot features are in the beta-testing mode and driver attention and intervention is still required.


Exploring the Final Frontier—The Relevance of Brain Imaging in Litigation

Mary Riverso, MJLST Staffer

Human curiosity and technological advancements have led to the exploration of the ends of the earth, the deep seas, even outer space. We have learned so much about the animals we live amongst, the nooks and crannies of planet Earth, and our role in the universe. But as we continue to explore farther and farther outward, we often overlook how little we actually know about ourselves.

The human brain remains predominantly mysterious and unknown. Neuroscientists continue to attempt to map the brain, to assign different functions and behaviors to the different regions of the brain supposedly responsible for them. However, a thorough understanding remains nearly impossible given the intricate circuitry of brain functioning. While certain areas of the brain are sometimes responsible for discrete tasks, complex functions are not exclusively localized. It is more accurate to think of the brain as composed of neuron circuits – the different regions constantly connecting with one another via neuron circuits to work together to process information and complete tasks. Technological advancements now allow for many groundbreaking and non-invasive means of observing the functioning brain. For example, devices administering scans for functional magnetic resonance imaging, or fMRI, monitor blood flow to detect areas of activity. Whereas an electroencephalogram, or EEG, is a test that measures and records the electrical activity of your brain. Finally, magnetoencephalography, or MEG, captures the magnetic fields generated by neural activity. As the capacity and means to monitor brain functioning expand, the potential for successful brain mapping increases. As a result, using brain images resulting from these scans as evidence in litigation becomes more tempting.

The potential for brain imaging to be used as expert evidence in litigation is already being explored. Criminal defendants, such as Herbert Weinstein, want to use the results from brain scans and tests to show that they are not responsible for their criminal actions due to a physical mental disease or defect. Other defense teams see the potential of brain imaging to aid in assessments of truth-telling. Physicians who administer the tests must be willing to testify as expert witnesses to the results and their medical conclusions. Often times, the physicians probe brain function and analyze energy utilization of the brain and then administer tests of human behavior and mental representations to provide a basis for their medical conclusions. However, a major hurdle for potential neuroscientific evidence is its relevance under Federal Rule of Evidence 401 (“FRE 401”). FRE 401 demands that before such evidence be admitted, it must have a tendency to make a fact of consequence more of less probable. But because the brain remains so misunderstand, it is difficult, or arguably impossible, to draw any exact conclusions that a physical disease or defect in fact caused a behavioral or mental defect.  As a result, courts have come out on either side of the threshold issue in FRE 401 – some have found that the neuroscientific evidence is appropriate for consideration by a jury who can decide what inferences to draw from it, while others find that this kind of evidence is too prejudicial while being only minimally probative and exclude the evidence under FRE 403, and still others allow the evidence but only for limited purposes, such as the sentencing phase of proceedings instead of the guilt phase. As technology continues to advance and neuroscientists continue to learn more about brain functioning, this kind of evidence may become commonplace in litigation. But for now, the admissibility decision seems to be fact-and-circumstance dependent, based on the case, the expert, the evidence, and the judge.


Did the Warriors Commit a Flagrant Privacy Foul?

Paul Gaus, MJLST Staffer

Fans of the National Basketball Association (NBA) know the Golden State Warriors for the team’s offensive exploits on the hardwood. The Warriors boast the NBA’s top offense at nearly 120 points per game. However, earlier this year, events in a different type of court prompted the Warriors to play some defense. On August 29, 2016, a class action suit filed in the Northern District of California alleged the Warriors, along with co-defendants Sonic Notify Inc. and Yinzcam, Inc., violated the Electronic Communications Privacy Act (18 U.S.C. §§ 2510, et. seq.).

Satchell v. Sonic Notify, Inc. et al, focuses on the team’s mobile app. The Warriors partnered with the two other co-defendants to create an app based on beacon technology. The problem, as put forth in the complaint, is that the beacon technology the co-defendants employed mined the plaintiff’s microphone embedded in the smartphone to listen for nearby beacons. The complaint alleges this enabled the Warriors to access the plaintiff’s conversation without her consent.

The use of beacon technology is heralded in the business world as a revolutionary mechanism to connect consumers to the products they seek. Retailers, major sports organizations, and airlines regularly use beacons to connect with consumers. However, traditional beacon technology is based on Bluetooth. According to the InfoSec Institute, mobile apps send out signals and gather data on the basis of Bluetooth signals received. This enables targeted advertising on smartphones.

However, the complaint in Satchell maintains the defendants relied on a different kind of beacon technology: audio beacon technology. In contrast to Bluetooth beacon technology, audio beacon technology relies on sounds. For functionality, audio beacons must continuously listen for audio signals through the smartphone user’s microphone. Therefore, the Warriors app permitted the co-defendants to listen to the plaintiff’s private conversations on her smartphone – violating the plaintiff’s reasonable expectation of privacy.

While the Warriors continue to rack up wins on the court, Satchell has yet to tip off. As of December 5, 2016, the matter remains in the summary judgment phase.