Category Archives: Clients

Facebook Beacon Litigation Finally Ends? Maybe.

The Ninth Circuit Court of Appeals recently affirmed the Northern District of California’s approval of the $9.5 million settlement in the Lane, et al. v. Facebook, Inc., et al. litigation. For those who are unfamiliar with the case, the plaintiffs filed a putative class action claiming that Facebook’s Beacon program was causing the publication of private, “outside” web activities on the class members’ personal Facebook pages. As described by Wikipedia:

Beacon was a part of Facebook‘s advertisement system that sent data from external websites to Facebook, for the purpose of allowing targeted advertisements and allowing users to share their activities with their friends. Certain activities on partner sites were published to a user’s News Feed. Beacon was launched on November 6, 2007 with 44 partner websites. The controversial service, which became the target of a class action lawsuit, was shut down in September 2009. Mark Zuckerberg, CEO of Facebook, said on the Facebook Blog in November 2011 that Beacon was a “mistake”.

On appeal, the issue was “whether the district court abused its discretion in approving the parties’ $9.5 million settlement agreement as “fair, reasonable, and adequate,” either because a Facebook employee sits on the board of the organization distributing cy pres funds or because the settlement amount was too low. In a 2-1 decision, the Court of Appeals concluded:

Ultimately, we find little in Objectors’ opposition to the settlement agreement beyond general dissatisfaction with the outcome. That dissatisfaction may very well be legitimate insofar as Objectors would have acted differently had they assumed the role of class representatives. But while Objectors may vigorously disagree with the class representatives’ decision not to hold out for more than $9.5 million or insist on a particular recipient of cy pres funds, that disagreement does not require a reviewing court to undo the settling parties’ private agreement. The district court properly limited its substantive review of that agreement as necessary to determine that it was “fair, adequate, and free from collusion.”

The trial court’s approval of the settlement was quite controversial. The lawyers took home more than $2 million in fees and the named class plaintiffs received between $1,000 and $10,000 (the total amount paid to the named class plaintiffs was $39,000). The remaining funds from the $9.5 million was earmarked for a new privacy foundation that would be chaired by three individuals chosen by Facebook and class counsel. Although more than 50,000 complained about Beacon, the “class” received nothing from the settlement.

In what could be characterized as a scathing dissent, Judge Kleinfeld concluded:

The majority approves ratification of a class action settlement in which class members get no compensation at all. They do not get one cent. They do not get even an injunction against Facebook doing exactly the same thing to them again. Their purported lawyers get millions of dollars. Facebook gets a bar against any claims any of them might make for breach of their privacy rights. The most we could say for the cy pres award is that in exchange for giving up any claims they may have, the exposed Facebook users get the satisfaction of contributing to a charity to be funded by Facebook, partially controlled by Facebook, and advised by a legal team consisting of Facebook’s counsel and their own purported counsel whom they did not hire and have never met.

Facebook deprived its users of their privacy. And now they are deprived of a remedy.

So, does this end the Beacon litigation? I haven’t heard any comments from appellate counsel but, given the comments–bordering on outrage–in the dissent, I would not be surprised if appellate counsel seeks en banc review. Time will tell (the case was originally filed in August 2008 and it is possible that we will see it continue well into 2013 and possibly beyond).

Can a Facebook Account Establish Personal Jurisdiction?

I recently came across an interesting case where a Facebook account, “admittedly accessible to that site’s users in New York” was ruled insufficient to establish personal jurisdiction (under a general jurisdiction rather than specific jurisdiction analysis). The ruling is reasonable and borders on obvious:

All of [Defendant's] design work is carried out at its Italian design center, where the company has a single mailing address. Its telephone and fax numbers allow it to be contacted only in Italy. The company’s website was created in Italy and is updated there; consumers cannot purchase or request the provision of services through the website. Nuvolari has not sought authorization to do business in—and is not registered to do business in—any state in the United States. The company does not retain bank accounts or agents in this country. The company does maintain, however, a Facebook page; it can be accessed by United States users of the site.

Lyons v. Rienzi & Sons, Inc., 2012 WL 1203688, at *1 (E.D.N.Y. Apr. 11, 2012). The facts of the case are not really necessary for this discussion. I simply want to point out that the court correctly noted that “[Defendnat] does not engage in systematic and continuous activity in New York. The company’s Facebook page—admittedly accessible to that site’s users in New York—does not compel a different conclusion with respect to general jurisdiction.”  Id. at *5.

The court got it right. It would be absurd to conclude that a court could claim personal jurisdiction under a general jurisdiction analysis (which requires continuous and systematic contacts with the forum) simply because the defendant has a Facebook account. Other courts have (thankfully) reached similar conclusions:

The mere creation of the article and the posting of it on the Internet, without more, does not meet the requirements for personal jurisdiction in this circuit. The activities undertaken by Michalski and/or Zmirak with the names “Waygood” or “Waygood Ellis” on the websites of Amazon, Facebook, and Myspace also do not constitute sufficient electronic contacts with Virginia to support personal jurisdiction over Michalski.

Jackson v. Michalski, 2011 WL 3679143, (W.D.Va.  Aug. 22, 2011).

With all of that said, your social media activities may be sufficient to establish specific rather than general jurisdiction depending on the facts of your case. For example, in Spectra Chrome, LLC v. Happy Jack’s Reflections in Chrome, Inc., 2011 WL 1337508 (M.D. Fla. Apr. 7, 2011), the court maintained personal jurisdiction because the defendant had purposefully and “improperly interfere[d] with [the] [p]laintiff’s existing relationships through billboard and social media communications.”  Id. at *1 (recognizing that in Florida, “A defendant’s ‘telephonic, electronic, or written communications into Florida may form the basis for personal jurisdiction … if the alleged cause of action arises from the communications.’”) (citation omitted).

Likewise, in Juniper Networks, Inc. v. Juniper Media, LLC, 2012 WL 160248 (N.D. Cal. Jan. 17 2012), a trademark infringement case, the court noted that:

Defendant’s semantics lack substance. A finding of personal jurisdiction does not require defendant’s having actually posted to Twitter from Los Angeles, or maintained a physical headquarters in California—only that defendant represented itself as having done so for its own commercial gain.

Id. at *3. Significant to this result is the rule that, in “trademark infringement cases, our court of appeals typically inquires whether the defendant ‘purposefully directs’ activities at the forum state by . . . (1) committ[ing] an intentional act, (2) expressly aim[ing] [it] at the forum state, and (3) causing harm that the defendant knows is likely to be suffered in the forum state.”  Id. at *2. Ultimately, the court concluded that specific jurisdiction existed because, although the defendant claimed it “has not conducted any activities in California or purposely directed its activities toward California,” and “has never had any employees in California,” its infringing activities, including its social media activity were aimed at California and therefore the “expressly aimed” requirement was met.

Take Away: So what does this mean to you? Two things. First, courts should never (well, almost never) find that general jurisdiction exists simply because someone has a Facebook account accessible in that jurisdiction. Second, specific acts and statements on social media platforms that are directed at a particular forum may give rise to specific jurisdiction.

Your social media accounts–Facebook, Twitter, and LinkedIn–are not going to be sufficient to establish that you have systematic and continuous contacts with a particular state. If, however, you use those accounts to direct actions, activities, or even mere communications to a particular jurisdiction, you may subject yourself to specific jurisdiction in cases where the claims arise from those acts, activities, and communications.

This is yet another area of the law that will likely continue to be tested by plaintiffs seeking to haul defendants into court in the plaintiff’s “home court.” I expect that lawyers will develop more creative arguments for establishing jurisdiction based on social media activities (how about an argument showing how many Facebook Friends a defendant has in a particular state). But for now, these cases should give you a good idea of what you can expect when someone tries to use your Facebook account as a basis for personal jurisdiction in their backyard.

Marketing Your New Firm Without a Firm Website

A while back, I wrote an article about marketing my new firm, Mumford West & Snow LLC, despite the fact that we didn’t have a “real” website. (I’m not sure Mumford West & Snow LLC has a real website at this point–but that is nothing more than an aside.)

Just recently, my partners and I got together with the partners of two other firms in Salt Lake City. After several discussions, we reached a conclusion: merger. In an anouncement of sorts, Rawson & Goff and Wasatch Advocates have merged with Mumford West & Snow to form: Mumford Rawson & Bates LLC. (And don’t worry, I’m still a partner–and I founding one at that–I just don’t get my name on the letterhead.)

But suddenly I face the same dilemma that confronted me when we started up Mumford West & Snow LLC. We are in the process of getting a website up and running but, in the meantime, how should I start marketing the new/merged firm? This question reminded me of a post I made back when Mumford West was just out of the incubator. Here are some refresher tips that I plan on implementing over the next few days (while we wait for our awesome new site to hit the Interwebs).

Beginning in January (more or less), we started Mumford West & Snow, LLC. Now, if you visit the link to our website, you’ll quickly notice that we really don’t have one. On the priority list of starting a new firm, I guess the firm website ended up fairly low.

Side Note: This was probably a poor decision.

But the past is the past. The point of this post is to discuss how I have been able to market the new firm without a website. Initially, a good firm website is essential to all firms. It provides clients and potential clients with information they need to evaluate whether your background and experience fits their needs and whether it is worth contacting you. This is particularly true when it comes to referrals, and even more true when referrals are given multiple firms / lawyers to evaluate.

While my new firm has been “settling in” (finalizing the firm name, marketing materials, logos, looking at bringing in some other attorneys, etc.), we have been waiting on creating a website. A lot goes into making a quality site and it isn’t something you want to have to repeat several times.

But we’re not completely in the dark. First of all, the firms that merged with us still have their websites up and running (as do we) and with phone numbers ported over, we (hopefully) are not missing many calls / inquiries. More important, at least for my practice, is my presence on Avvo.comLinkedIn and Twitter (as well as Martindale and Facebook). Those “social” sites have picked up a lot of the marketing slack that normally would result from starting a firm without any place to send potential clients. For example, I can still point potential clients to publications and areas of expertise (even if they aren’t listed on my “firm” website):

http://www.socialmediaesq.com/about-2/

Ah yes, the power of the independent blog.I have been able to market myself and my firm through LinkedIn connections and a network of people that were willing to recommend both my abilities and me. I can point to my Twitter presence as an illustration of my efforts and my knowledge of the current state of the law and my ability to stay on top of the latest developments, particularly developments that may affect clients’ businesses or lawsuits.

One of my favorite sites (disclaimer: I am a guest blogger for them) is Avvo.com. As you can tell, I spend a lot of time managing my reputation on that site and contributing to the community:



I have been able to use Facebook to keep in touch with clients I consider friends. Most surprising, I have actually found several new clients through Facebook connections. All of them came through friends of friends who needed some legal advice or wanted to discuss some issues and things continued to progress from there (who knew Facebook chat could actually be productive). All of this without a website–the key component in establishing your firm in the legal marketplace.

The take-away: Have a website. Make it good. Update it frequently. That is where your potential clients are going to go first. But don’t assume that spending thousands of dollars on a killer website is the only solution. Content, connections, and a big footprint among the legal community (and the consumers associated with that community) are an important solution. This blog, my Avvo / Twitter / LinkedIn / Facebook accounts, and long-time presence in the social media world are proof of that. I have continued to successfully market and build a firm without the traditional “key” marketing component of a website. As the Washington Post recently pointed out, more and more, practitioners are seeing social media as a client development tool.

Make sure you are using all the tools that are available to you! How have you used social media as an alternative to your website marketing?

New Survey: 4 in 10 Firms Land New Clients Using Social Media

Wow. Great article over at the ALM Press Room today: 4 in 10 Law Firms Report landing New Clients by Using Social Media, According to ALM Legal Intelligence Special Report.

According to the ALM Legal Intelligence survey, 49% of U.S. law firms report that blogging and social media have resulted in lead generation and, even more surprising, 41% report that blogging and social media have helped them land actual work. That is a pretty good conversion / closing ratio if you ask me.

The survey was conducted in December 2011 and January 2012 with a sample of “180 law firm partners, marketing professionals and administrators.” Granted, the sample size could have been bigger and there may be some inherent bias in the reports from the marketing professionals, but the results are still impressive.

According to Kevin Iredell, Vice President of Research and Continuing Education at ALM:

The skepticism of a decade ago has given way to a growing appreciation for the ways that blogs and various other social media and networking tools can be deployed to help build the reputation of individual lawyers and practice groups, as well as enhance law firms’ overall marketing efforts.

Hear, hear Mr. Iredell. Hear hear! I have long been a champion of using blogs and social media to help lawyers establish credibility, hone their skills and expertise, and network with other professionals. It is great to see some objective data supporting the idea that blogging and social media engagement is netting positive results (for the record, I don’t consider blogging to be “social media” — blogging doesn’t involve interaction the same way social media does — blogging is like publishing a newsletter, only faster and easier). I always figured the results would start showing up; now they are.

If I were to guess, I would say that the “new work” is likely coming from blogs or LinkedIn. I still don’t see Twitter or Facebook as particularly good business development tools (although they are great for reputation management, keeping up on legal issues, creating a professional following, and spreading your name across the Interwebs). Many “big” firms have branched out and have practice-area specific blogs these days–by publicly displaying their expertise and knowledge, the firm essentially creates a scenario where potential clients come to the table knowing that the firm can fulfill their needs.

Another couple of interesting points:

  • Almost 85 percent of law firms now make use of social media and networking tools, such as LinkedIn, Facebook and Twitter. Just over 60 percent said their firms now maintain one or more blogs.
  • More than 40 percent said that blogs and social media networks have helped to increase the number of calls their firms receive from journalists in traditional and new media. Likewise, roughly the same number said their presence in the blogosphere and on social media networks had also increased the number of speaking invitations their lawyers receive.

Don’t underestimate the value of this last point. The value of having your name show up in the local newspaper (in a good way) or in a trade magazine cannot be measured. But trust me, it is high. Your credibility skyrockets in the community as the community begins to recognize your name and expertise in particular fields.

I recommend that all lawyers parlay their online social and blogging efforts into other arenas, whether it is the newspaper, industry blogs, seminars or webinars, or what have you. It reminds of an experience I had at my former firm. I had been interviewed for an article in Risk & Insurance about, obviously, social media risks. A week or two after the issue came out, one of the partners came down to my office and said, “How did you get quoted in Risk & Insurance–all insurance defense and insurance coverage lawyers read this.” I told him that I regularly write and tweet on the subject (he had no idea what a tweet was) and that I had done several interviews. He was impressed. Hopefully other subscribers were too.

Hopefully the ALM survey results will hit home. Legal consumers are savvier these days. They are looking up information about you, your practice, and your success. They have hundreds of options to choose from. Are you using blogs and social media to set yourself apart from the competition? If not, now is probably a good time to start.

Oh, and if you ever have an interview request, feel free to email me at tbs@mumfordwest.com. (I’m willing to risk all the spam I will receive from email address harvesters because I know that doing interviews and presentations is mutually beneficial for those involved and extends the exposure of your online presence.)

Do Rankings on Sites Like Avvo Really Matter?

I recently published a blog post over on Avvo’s Lawyernomics Blog on the topic of whether lawyer rankings on sites such as Avvo or Martindale Hubbell really matter. So that there is no confusion, I am a regular blogger on Avvo’s Lawyernomics Blog and will be presenting at Avvo’s 2012 Avvocating Conference in Seattle.

But let me get to the nuts and the bolts of it. Yes, your Avvo (or similar rating) does matter. The post describes our attempt at finding local counsel in Colorado and how one of my associates “choose” between to seemingly equally qualified lawyers based on their Avvo numbers. I found this significant because this particular associate did not know that I was a guest blogger for Avvo or that I was going to be speaking at one of their events.

I merely asked the associate to find some potential attorneys to serve as local counsel for us. He brought back several and then recommended a particular attorney because that lawyer had a much higher rating on Avvo than the others. It was enough to convince me. We retained that lawyer as local counsel and he has been great to work with.

So, returning to the ultimate question, do these types of ratings and rankings actually matter? Yes. They do. At least to some (myself and my associate included).

And, as a final note, I cannot emphasize enough the importance of having client testimonials and peer endorsements. Not only do people looking for lawyers read these, but lawyers looking for lawyers read them too. That reminds me, I need to send out some more requests to clients and peers to provide testimonials and endorsements on Avvo and LinkedIn. Any press may be good press; but good press is good press.