William Carleton, Counselor @ Law

Substance and tactics in the California same-sex marriage case

The Silicon Valley economic case against California's Proposition 8 and for same-sex marriage did not surface during yesterday's oral argument at the US Supreme Court.

I listened to an audio file of the argument in Hollingsworth v. Perry, after the fact. Here's my take.

Cooper, the attorney for several sponsors of Proposition 8, attempted to launch into rhetoric about the wisdom of ages past, but the Chief Justice cut him off and insisted that he address first a procedural question, namely, whether Cooper's clients had standing to press a case in federal court.

Olson, a former Solicitor General of the United States during the G. W. Bush administration, did manage, slyly, to make a moral statement at the top of his remarks. He did it by acknowledging first that he knew the Court would want him to address the standing question, and stating an intention to get to that subject right away. And then he proceeded to frame the case in terms of the stigma imposed on gay and lesbian people by the same-sex marriage ban.

Because I was listening to a sound recording, I couldn't see the Chief Justice's face, but I imagine he felt bushwhacked by Olsen's tactic. At any rate, the Chief Justice, invoking fair play, eventually cut Olson often, too, but not before Olson had laid out more of his set speech than Cooper had his.

Olson was good, but in almost every respect he had the easier assignment. We are already on the cusp of a cultural shift, where all recognize there is no rational, moral, economic, child-centered, or healthy emotional reason to discriminate over the sexual orientation of couples who want to marry. Olson did a nice job with the standing questions, but on the substance, he was preaching to the choir.

Given this new reality, Cooper readily conceded there is no legitimate basis on which to discriminate against people because of their sexual orientation, other than with respect to marriage. And even with respect to discrimination in marriage, Cooper seemed loathe to actually cite any loss or harm to anyone from allowing same-sex couples to marry. As if acknowledging his weaker hand, Cooper's tactic was to divert attention from the merits to a question of democratic process: shouldn't the Court should stand down, he argued, and let society continue to have a healthy debate about marriage; because no one can really know what the societal consequences of same-sex marriage will be, wouldn't it be better to allow time to assess the consequences in those states which have already chosen to permit same-sex couples to marry?

Cooper's argument was that of a lawyer trying to win the case at hand. I'd imagine it irks those conservatives who want to defend the federal Defense of Marriage Act, the featured subject at this morning's Supreme Court oral argument. In the DOMA case, the issue is whether federal law can deny the benefits of marital status to same-sex couples who are legally married in those states that have already made Cooper's democratic choice.

Justice Scalia, the personification of the best argument that appointments for life are a bad idea, found Cooper's moral relativism appalling. He demanded that Cooper give concrete examples of how same-sex marriage could cause societal harm. And Scalia didn't wait for Cooper to provide an example. Scalia provided one: the adoption of children. It could be, Scalia argued, that a state wouldn't want same-sex couples to marry, because that would mean gay couples could adopt children. (Was Scalia not aware that it is legal for same-sex couples in California to adopt children?)

If Cooper was rolling his eyes, I didn't see it, but he didn't sound like Scalia was doing him any favors. Cooper did utter a canard or two on his own initiative, but, on the whole, he kept to his mission. He tried to define a space where one could feel principled - "we are simply deferring to the democratic process" - about being bigoted.

Not nearly as savvy as Cooper: the brief of the United States Conference of Catholic Bishops, which makes the polygamy argument:

"Though no party to this litigation argues that multiple friendships and polygamous relationships constitute marriage, it is not evident why they would not also qualify as 'marriages' under the Ninth Circuit's novel test."

I know Pope Francis is getting a lot of great press, and I want to keep an open mind about what he has to say about poverty and the distribution of wealth, but the Catholic position on same-sex marriage is medieval and un-Christ like. If the Pope were to withdraw his Church's opposition to same-sex marriage, that might have a bigger impact a judicial thinking than even the conversions of Senator Portman and other Republicans.

Photo from yesterday: Ted Eytan / Flickr.

California's businesses assess the competitive price of the state's bigotry

I'm posting today in advance of this morning's oral argument at the Supreme Court for Hollingsworth v. Perry, the case involving California's ban on same sex marriage. Assuming something doesn't come up at work at that hour, I'm planning to listen in on C-SPAN Radio.

There is so much good writing and good coverage on the case, I will be reading more than adding substantively to the main thread. But I did want to call out some passages from the brief submitted on behalf of Adobe, Akamai, Alaska Airlines, Apple, Cisco, Dropbox, Facebook, Google, HP, LinkedIn, McKinstry, Qualcomm, REI, salesforce.com and 86 other companies, all (I think) with substantial business operations and employees in the State of California.

These businesses want the Supreme Court to know that bigotry is bad for their ability to compete from operations based in California.

The key point in the brief, I think, is that California's Proposition 8 puts California employers at a disadvantage to employers in states that don't demean gay and lesbian couples:

"Recognizing the rights of same-sex couples to marry is more than just a constitutional issue. It is a business imperative. By singling out a group for less favorable treatment, Proposition 8 impedes businesses from achieving the market’s ideal of efficient operations—particularly in recruiting, hiring, and retaining talented people who are in the best position to operate at their highest capacity. Amici are competing domestically and internationally with companies inside and outside the United States in places where all couples, regardless of whether they are of the same sex, are afforded equal access to marriage. Those of us operating in states like California face a competitive disadvantage . . .

"It is undisputed that gay men and lesbians suffer a daily gratuitous insult by their relegation to second-class status—an insult that negatively affects their productivity in the workplace and thus indirectly impairs their employers. Businesses suffer a more direct injury than that, however. Because domestic partnerships are not equivalent to marriages, supra at 9-11, it should come as no surprise that loving, committed same-sex couples may choose to relocate to states where their relationships are afforded the dignity and respect they deserve as marriage. Take, for example, a graduating engineering student near the top of her class at MIT. She is interested in putting her skills to work for one of the major technology companies in Silicon Valley and finds the perfect job that utilizes all of her skills, talents, and education. The difficulty is that she is also in a long-term, committed, same-sex relationship and she expects that she and her significant other will soon marry and start a family. With those goals in mind, however, the couple cannot move to California (or, at least, would have no interest in moving to California) because they will not be able to get married in California or have their marriage from another state recognized in California. So, they may choose to stay in Massachusetts or New York, even if they are not able to find a position there fully utilizing her unique talents. Even worse for American business, she and her significant other could choose to move to Spain, Sweden, Portugal, the Netherlands, Denmark, or Belgium—all countries that recognize marriage of same-sex couples. And the superstars from those countries will be less likely to take jobs here."

What is the impact on the competitiveness of business operations based in California? The brief says, in a word, "devastating."

Photo: SirJoseMaria / Flickr.

Amazon and Google spar over cloud services talent

While I've been distracted trying to catch up on the fight in California between Zynga and Kixeye over management talent, Amazon has brought a similar case in my own Seattle backyard. Amazon is seeking to hamper what a former AWS sales exec may do for Google.

The Amazon suit seems to have come to a head. Geekwire reported last week that the federal judge in the Amazon case has issued a preliminary injunction, an order restraining the ex-Amazon employee from soliciting Amazon customers.

Now that sounds like a win for Amazon, but it's not really. The judge limited the duration of the court's restriction to the length of a contractual restriction that Google itself put on the executive when Google hired him.

Geekwire's report put the Amazon case on my radar and Todd Bishop's policy of posting links to primary source documents gave me a chance to look at the judge's order.

Check out the guest post I wrote for Geekwire to sum up what I found. It's titled Legal lessons from Amazon’s ‘noncompete’ battle with Google and has just been posted.

Happy new year everyone! I am so thankful for your support, your engagement, your passion. JLM's exhortation in the thread on Saturday's post will be my motto for 2013!

Meanwhile, back on the farmville . . .

Let's turn back now to the Alan Patmore / Zynga / Kixeye story (first installment, keying on the Zynga Employee Inventions Assignment and Confidentiality Agreement, here).

Patmore has now filed an answer to Zynga's amended complaint. And it's chock full of . . . affirmative defenses.

I'm not a litigator, so I checked with a former litigator (now a law prof) I know and trust and asked him: aren't "affirmative defenses" what you assert when you basically admit that the allegations being made against you are true, or could be, but that the facts asserted don't matter, because, even if true, some law or doctrine or superseding set of other facts protects you?

And aren't "affirmative defenses" not as good as other kinds of defenses, because the burden of proving the defense is on the part of the person being sued? (Generally speaking, the one doing the suing, the plaintiff - Zynga, in this case - has the burden of proving its allegations.)

Yes, he said, but: California state court practice is wierd; even elsewhere lawyers slip into the habit of labeling every defense thusly; and in any case mislabeling a defense as "affirmative" should not shift the burden to the defendant if it doesn't substantively belong with him.

Complicated stuff. But we need some basic reference point for the term, if not mastery of its uses, to appreciate the strategy of Patmore's answer.

Here, quoted verbatim, are eleven (11) of the twenty (20) affirmative defenses in the Patmore answer:

• "Plaintiff released, relinquished, waved and/or abandoned any right to any of the claims upon which Plaintiff now seeks relief."
• "Plaintiffs claims are barred in whole or in part by the applicable statutes of limitation."
• "Any alleged conduct or omission by Defendant was not the cause in fact or proximate cause of any injury alleged by Plaintiff."
• "Plaintiff failed, in whole or in part, and continues to fail, in whole or in part, to take reasonable steps to mitigate its damages."
• "Plaintiff's claims are barred, in whole or in part, by the doctrine of unclean hands."
• "Plaintiff's claims are barred, in whole or in part, by the doctrine of laches."
• "Plaintiff's claims are barred, in whole or in part, because by virtue of its own conduct, Plaintiff is estopped from recovering from Defendant."
• "Plaintiff is barred from any recovery, in whole or in part because any actions taken by Defendant, if any, with respect to Plaintiff, were based on an honest, reasonable, and good faith belief in the facts as known and understood at the time."
• "At all relevant times, Plaintiff consented to and approved all the acts and omissions about which Plaintiff now complains."
• "Plaintiff's claim is barred by the fact that it seeks to enforce a contract that is void against public policy."
• "Plaintiff's claim is barred by the fact that Plaintiff failed to take reasonable efforts to protect its alleged trade secrets."

In fairness, I should also report that Patmore's answer contains a general denial of "each and every allegation" in Zynga's complaint.

For its part, Kixeye, Patmore's new employer, last month filed a cross-complaint against Zynga (translation: it sued Zynga back), and that filing of Kixeye is much more talkative than the Patmore answer. We may visit the various factual allegations later.

Photo from Kaplan University online civil litigation course (used under a Creative Commons license).

Judicial self-publishing

Thanks to Robert Richards and the Legal Informatics Blog for the heads up on the subject of this post.

The United States Court of Appeals for the Ninth Circuit is quietly doing something astonishing. It has started to provide a service that at first blush you might think citizens in a democractic society should deserve or expect. But the outreach is indeed remarkable because the behavior is yet an outlier, an exception to the norm.

Timeout for some background on the importance of this Court. It is the body which hears the appeals of federal trial judges (who work in what are known as "federal district courts") throught the west coast of the United States, and further inland. The map pictured is from the Ninth Circuit's website and shows the extent of the Ninth Circuit's territory, or "jurisdiction." If a party in a lawsuit doesn't like the decision of the Ninth Circuit, they are out of luck, unless - and this is very hard to do, harder even than getting funded by a VC - she or he (or it) can convince the US Supreme Court to get involved.

What this important federal appeals court is doing is this: it is self-publishing its decisions; petitions of parties in cases at issue; the legal briefs by which parties present their arguments; and letters and other documents filed with the court, related to the legal appeals which the court is deciding. In short, the court is self-publishing the work of the court on the court's own website.

What's more, the service appears tuned to the consumption and reference habits of the most obviously immediate audience for the daylighted materials: litigators. Lawyers who focus on litigation, for whatever reasons, seem to like to use tablet readers. So, according to a press release, the materials that the Ninth Circuit publishes will be optimized for tablet readers, even at the expense of oversized renderings on desktops and laptops. 

(Aside: I heard an author on NPR this morning remark on how reading has now come full circle. The era of the bound book had a great long run, but now we are back to tablets and scrolling!) (Aside to that aside: while conceding the trend, this reader is comfortably returning to bound books, and this lawyer is re-embracing big-ass, heavy laptops and desktops with multiple monitors.)

A pet frustration of mine, a cherished peeve, is how, in the free information age, lawyers, even young ones out of school, still seem captured by for-profit legal publishing vendors who gatekeep legal information, including but not limited to court opinions. Laws and judicial opinions are, in fact, increasingly available on the open web, but lawyers and law firms still pay to access them!

The Ninth Circuit is acting as though the baseline assumption should be re-set. And they are investing resources to do so, by attempting to eliminate a feature that private publishing services use as a competitive differentiation to open sourced legal materials. Listen to the argument below from the Court's press release. (The "West" referred to is a publishing company to which the court previously outsourced the production of opinions.)

"A more important change involves the addition of case summaries prepared by court staff. The summaries save time by allowing readers to quickly get the gist of a decision without having to search through the opinion itself. West previously produced the summaries, but for copyright reasons they could not be included with opinions made available online."

Bravo Ninth Circuit!

In camera

According to Wikipedia, the legal phrase in camera "describes court cases (or portions thereof) that the public and press are not admitted to."

In camera may be where one's cell phones and social media account passwords go, when one gets pulled into the discovery process of a court case. (Also from Wikipedia: "discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions.")

Or at least you hope your stuff gets unpacked in camera.

Evan Brown posted yesterday about a case in which a trial judge ordered a defendant to turn over his iPhone to the lawyer for his former employer.

But the trial court, Evan tells us, was overruled by an appeals court:

"The appellate court found that the lower court’s order that defendant turn over his iPhone was beyond the scope of plaintiff’s request and was too broad for the needs of the case. Ordering production of defendant’s iPhone (which, the court observed, has built-in applications and internet access) 'was tantamount to ordering the production of his computer.' The iPhone would disclose irrelevant information that might include privileged communications or confidential information."

Venkat Balasubramani posted yesterday, too, about a couple of cases in which courts ordered similar in camera review for discovery purposes.

At least one of those rulings required parties to turn over passwords to Facebook accounts, something Venkat argues "should be completely off the list" of what a court would order people to do. Venkat reasons:

"Apart from the fact that this results in disclosure of or access to the entire contents of the account (including information that is not relevant or information that is covered by the Stored Communications Act) it may result in unwitting changes to the account. Facebook offers export functionality. . . . Presumably other sites offer something similar. If not, the litigant can manually export the information. Either way, courts should never take the password turnover route."

I had a quick peek at the court's written order in one of the cases Venkat blogged about. The list of things ordered turned over is pretty sobering:

"1. Any cell phone used to send or receive text messages from January 1, 2009 to the present;
"2. All necessary information to access any social media websites used by such person for the time period January 1, 2009 to present;
"3. All necessary information to access any email account or web blog or similar/related electronically accessed internet or remote location used for communicating with others or posting communications or pictures, during the time period January 1, 2009 to present."

Image from Naval-History.Net.

"When it absolutely, positively, has to be decided within a decade."

Startups, emerging companies, and even behemoths like Microsoft and Amazon have to watch the legal line drawn between "independent contractors" and "employees." It's a subject the comes up a lot in startup law and other legal blogs, and it will continue to come up.

Last week the Washington State Supreme Court published a decision that interprets the Washington Minimum Wage Act. For purposes of that statute, the Court decided that "employee" status was to be determined by an "economic dependence" inquiry, rather than a probing of the employer's "right to control" the activities of the person-in-question.

I'm not going to take this occasion to write a post about the perils of misclassifying an employee as an independent contractor. The case adds learning to that subject, but there are probably better judicial opinions to cite that contain broader discussions of the various factors to consider.

Rather, I'd like to mention two things that struck me about the opinion:

(1) It took a long, long time for the case to be resolved (if in fact it is now finally resolved). The opinion says that the case was brought in 2004 by FedEx pickup and delivery drivers who "handled a single route over the three-year period preceding the filing of the complaint." So it appears to have taken about a decade to resolve this fundamental question about whether the drivers were either employees or bona fide independent contractors.

(2) It's fascinating, almost like archeology, to see language from a bygone political era serving to parse legal distinctions that yet have impact on today's decidely more corporate society. Take this passage from the opinion as an example:

'The right-to-control test serves to limit an employer’s liability for the torts of another. By contrast, minimum wage laws have a remedial purpose of protecting against “‘the evils and dangers resulting from wages too low to buy the bare necessities of life and from long hours of work injurious to health,’” United States v. Rosenwasser, 323 U.S. 360, 361, 65 S. Ct. 295, 89 L. Ed. 301 (1945) (quoting S. Rep. No. 884, at 4, 75th Cong., 1st Sess. (Wash. 1937)), and “to insure that every person whose employment contemplated compensation should not be compelled to sell his services for less than the prescribed minimum wage,” Walling, 330 U.S. at 152.'

The quotes from the 1930s and 40s strike me as language that the two political parties in America today would absolutely shun.

Photo: Whitewolf Photography / Flickr.