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Wednesday, September 24, 2014

Your Next Facebook Message Could Contain Notice of a Lawsuit

 Facebook. Google +. LinkedIn. SnapChat. Instagram. Twitter.

More than ever, our social and professional lives are exposed on the internet. Logging on to check your Facebook after work, notice of a lawsuit is the last thing you would expect.

Not anymore.  In some, albeit rare, instances, service via social media has been approved. 

Ordinarily, upon the filing of a lawsuit, a plaintiff must serve the defendant and give him notice of the case against him.  Normally, the defendant is served via personal service or by mail.  If those methods fail, the third option entails service by publication.

Now, service by Facebook message might be an option.

Just last week a judge in New York ruled that a man could provide notice of his intent to stop paying child support (due to the child reaching the age of 18) by Facebook message.  After his ex-wife moved and left no forwarding address, she was seemingly unreachable by traditional methods. Although her physical location was concealed, the ex-wife’s internet presence was evident.  After noticing Facebook activity on the ex-wife’s page, the plaintiff’s attorney asked the judge for permission to serve by Facebook message. In an unprecedented move, permission to serve via social media was granted.

A few months ago, a judge in Virginia federal court allowed service by social media was allowed in the case of Whoshere, Inc. v. Gokhan Orun.  In a trademark infringement case, a Turkish defendant was particularly difficult to serve.  Prior to the filing of the lawsuit, plaintiff Whoshere, Inc. emailed the defendant, Gokhan Orun, notifying him of the possible legal issues.  Orun responded, thus confirming the validity of his e-mail address, and provided his usernames on other social media sites, such as LinkedIn and Facebook.

When Orun proved especially difficult to serve by traditional methods,  the plaintiff asked the court to grant permission for alternative means of service.

Because the defendant himself provided his e-mail address and social media information, the judge ruled that notice by social media networking sites and e-mail was permissible because it was reasonably calculated to provide notice of the lawsuit.

Due to the defendant’s foreign residence, electronic notice in this case is less alarming.

So What Does This Mean For You?

In most cases, it is highly unlikely that service will be allowed via social media networking sites.  Although a case may be made for e-mail service, that seems unlikely at this juncture.

Nevertheless, when the defendant’s physical presence simply cannot be ascertained, a court has the power to allow alternative methods of service, as long as those methods are “reasonably calculated” to provide the defendant with notice of the lawsuit.

Can Oklahomans be Served Notice of a State Court Lawsuit via Social Media or Email?  

Probably not.

Oklahoma law under Title 12 § 2004(C)  authorizes service on an individual through (1) personal service, (2) mailing, or (3) publication.

In order to provide notice by publication, the Court must first grant the plaintiff permission.  The plaintiff must show the court that, after diligent attempts to serve the defendant through regular means (personal service/mail), the plaintiff has been unable to locate the defendant. This normally requires an affidavit by the plaintiff’s attorney and the process server, outlining the failed attempts at service.

If granted permission, service by publication is accomplished by publishing a notice in an authorized newspaper in the county where the petition was filed one (1) day a week for three (3) consecutive weeks. If the defendant lived in another county, or failed to read the legal notice section of the newspaper, s/he could easily miss notice of the lawsuit.

Failure to receive notice of a lawsuit results in a failure to file a response, which can have devastating consequences to a defendant.  For instance, if no response is filed within a certain amount of time, the plaintiff may move for a default judgment—this renders judgment in the plaintiff’s favor solely because no timely response was filed.

Although at first glance, notice through social media sites seems outrageous, this nontraditional method has some redeeming qualities.  For instance, notice by publication is expressly allowed, but who actually reads the legal notice section of a newspaper? Who even knows what newspaper publishes legal notices?

Can you imagine your new Sunday morning routine? Here, honey- pass the maple syrup--- let’s check the legal notice section! ---- said no one ever.

An argument can be made that service via social media actually benefits a defendant, because although s/he may have a harder time dodging service, his/her due process rights are served because s/he is much more likely to check e-mail or Facebook than a small section in a local newspaper. So, the defendant could actually be prepared to defend a lawsuit against him, instead of blind ignorance leading to default judgments.  Additionally, in cases where default judgments are granted because of failure to answer or otherwise respond, executing the judgment presents another hurdle; service by electronic means may very well promote judicial economy.

Of course, on the other hand, the thought of checking your Twitter feed to find out that you’ve been served (in 140 characters) seems simply preposterous.  Notice by electronic means is not an easy answer.  How do you verify that the defendant actually maintains that particular social media account? What if the e-mail goes in the spam folder? What happens when a defendant responds to that electronic notice in the same manner--- is his Facebook response considered a responsive pleading or acknowledgement?

Who knows where technology will take us.   All I know is that if I ever get served via electronic means, I hope the notice includes emojis.

and here

For a more in-depth analysis of the Whoshere, Inc. case, check this out:

Sunday, September 14, 2014

SheRides: Permissible Gender Based Discrimination?

So long, Uber. SheRides is the next big thing.  A new taxi service in NYC is shaking up the world of transportation. SheRides is the first of its kind---- a taxi service, by women and for women.

SheRides enters a field predominately controlled and run by men.  Of course, most taxi drivers are male. This taxi service, geared toward women, aims to change that statistic.  SheRides seeks to not only (1) increase the number of women in the taxi driver workforce, but also (2) provide women passengers with a “safer”, more comfortable, alternative. SheRides hopes to capitalize on safety concerns of women passengers----- thinking that most women, if driven around by a stranger, would prefer to be driven by another woman.

So, the question remains—by hiring only women drivers, is SheRides violating the federal law against gender discrimination?

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on certain factors, such as age, sex, race, national origin, and religion.  Importantly, an employer cannot hire or fire a person based on their race. For example, a black male cannot be hired solely because he is black or because he is male and a white woman cannot be fired solely because she is white or because she is a woman.

Employment law is fairly complicated. Although Title VII reads as a strict prohibition against discrimination, certain exceptions exist.

For instance, an employer can discriminate based on sex if sex is a bona fide occupational qualification (BFOQ) of the job.  In order for the protected characteristic (age, sex, race etc.) to be a BFOQ, the employer must show that no person who lacks those characteristics is capable of performing the essential functions of the job. If an employer is able to show that the protected characteristic is a BFOQ, they have an affirmative defense against a discrimination case.

Hooters restaurant, for example, has been sued multiple times over its practice of hiring only women waiters.  Hooter’s argument, I understand, is that being female is a bona fide occupational qualification of servers because Hooters is in the business of providing “entertainment by women”.  Because most cases of this nature against Hooters settle, it is unclear whether courts would buy this affirmative defense.

In less recent history, several airlines were sued over refusals to hire men as flight attendants.  Although several different airlines argued that being a woman was essential to performing the functions of a flight attendant.  Because the essential function of an airline is to provide transportation, and not entertainment or some other intangible, gender cannot qualify as a requirement for flight attendants.  Airlines simply cannot show that a man is not able to perform the essential functions of a flight attendant and assist passengers during travel.

What does this mean for SheRides?

While I completely understand and appreciate SheRides dual purpose of making women feel comfortable and employing more women in the transportation industry, I do not see how this gender-based hiring can survive.

If SheRides argues that being a woman is a BFOQ to the job, the company will have to find some other distinguishing role a woman serves as a driver other than mere driving.  At this stage, I have no idea what SheRides will argue.  The company may argue that, by employing only women, they are remedying past discrimination against women drivers. It is unlikely this argument will work.

Although I love this idea, I simply do not see how this hiring practice is permissible under Title VII.

Friday, September 5, 2014

Dubose v. North: A Case for "Maternal" Rights

In Dubose v. North, the Oklahoma Court of Civil Appeals confirmed a trial court’s order dismissing an application of an order concerning support, custody and visitation of a minor child. 2014 OK CIV APP 68.

Dubose and North, once a same-sex couple, began living together in 2001. North became pregnant through artificial insemination and gave birth in October of 2007. Dubose and North co-parented the child from October 2007 through December 2012.  At some point in December 2012, the couple separated.

After the separation, North stopped all contact between Dubrose and the child.  Dubose filed an Application for Temporary Order for Support, Custody and Visitation. At the district court level, the trial court dismissed her application based on a lack of standing.

In order to commence legal action, a party must have “standing”. The heart of this requirement demands that the party bringing the suit has or will suffer an injury and the harm is capable of being remedied by the court. 

In this case, North argued that Dubose lacked standing because, under the Uniform Parentage Act, Dubose could not bring a proceeding to address parentage. 

Importantly, the Uniform Parentage Act narrowly defines who can bring a suit of this kind. A proceeding of this kind may be brought by “(1) the child, (2) the mother of the child, (3) a man whose paternity of the child is to be adjudicated, (4) the Department of Human Services, or (5) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a minor.” See 10 O.S. 2011, § 7700-602.

Because Dubrose is a woman who is not considered “the mother” of the child under this Act, the Court of Civil Appeals affirmed the trial court’s determination that Dubrose lacked standing to sue.

Although Dubrose argued that the statute should be read with a gender neutral interpretation, the argument failed.  In law, “words used in any statute are to be understood in their ordinary sense.” 25 O.S. 2011, § 1.  Because “man” clearly does not mean “woman”, Dubrose cannot qualify as a person seeking “paternity”.  Thus, maternity rights are simply nonexistent.  Additionally, because Dubrose did not carry the child, she is not considered “the mother” under the statute.

This situation is simply heartbreaking. Dubrose co-parented the child for 5-6 years, and now has no legal rights to gain visitation. In a world where “grandparent visitation” is a thing, it shocks me that a woman who has played an active role in this child’s life is unable to even gain an order granting her visitation rights based on a law that lacks gender neutrality.

Thursday, September 4, 2014

That Instant Message Just Cost You Your Job: The Right to Privacy in a Digital Age

It’s Sunday morning, just after 10 a.m., and your boss is scrolling through her Facebook feed. Oh! That’s interesting… Katie wasn’t working all weekend like she implied—she was at the beach! In a bikini! Not at the office! What? She has a tattoo? That’s against work policy. And who is she with?

That’s a tame example. If employers were able to demand account information of employee’s social media outlets, employee privacy rights would be greatly diminished and the implications could be disastrous. As work and private lives continue to merge, where does it end?

A new law in Oklahoma, taking effect November 1, 2014 seeks to clarify the rights of employees to protect private information and the rights of employers to protect confidential information, trade secrets, client files, and the like.

Significantly, Title 40, Section 173.2 of the Oklahoma Statutes prohibits an employer from requiring an employee or prospective employee to disclose his or her username and password (or providing other access) to personal online social media accounts. Not only is the employer prohibited from requiring disclosure of access information, the employer is also prohibited from instructing an employee or prospective employee to log-on to his or her online social media account in the employer’s presence for the purpose of gathering information.

Of course, there are exceptions. An individual’s right to privacy (based in common law and the Constitution) is not absolute. Employers must be allowed to protect trade secrets, proprietary information, and financial data in order to further the interests of both the business and its clients. Oklahoma’s new law allows employers to gain access to personal media accounts in several scenarios. The broadest exception provides that an employer may require an employee to disclose a username or password for accessing private social media accounts on:

“any computer system, information technology network, or electronic communications device provided or subsidized by the employer.”

Laws 2014, HB 2372, c. 315, Section 1, eff. November 1, 2014.

Accordingly, an employer would seemingly be able to gain access to personal social media accounts if used on a company computer, accessed on a company Wi-Fi signal, or accessed on a phone or tablet provided by or subsidized by the employer. Under this law, other exceptions exist to allow the employer to perform investigations to ensure compliance with the requirements of state and federal statutes and other rules and regulations.

What does this mean? Why should we care?

In an age where most employees are expected to be available outside of the typical 9 to 5, technology enables constant contact. Although this ability to exchange information quickly and effectively furthers a career, it simultaneously conflates any notion of separation of private and public life. Of course, while most of us understand that we do not have an expectation of privacy in emails exchanged on a work email account, it might startle some to know that an employer legally has the right to require social media account information in order to protect its interests.

Due to the newness of this legislation, only time will clarify its application in Oklahoma.

See the full text of the new law:


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