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eBay

After a shipment purchased on eBay arrived postage due without warning, a buyer posted mildly negative feedback about the seller, an Ohio outfit calling itself Med Express (there are a number of suppliers with similar names). The seller offered to cover the charge, but also demanded that buyer Amy Nicholls take down the feedback, which she declined to do. Now it’s suing her, reports Paul Levy of Public Citizen, even though its lawyer appears to concede the feedback was accurate. [Mike Masnick, TechDirt] Ken at Popehat:

This is the ugly truth of the legal system: litigants and lawyers can manipulate it to impose huge expense on defendants no matter what the merits of their complaint. Censors can abuse the system to make true speech so expensive and risky that citizens will be silenced. Regrettably, Ohio does not have an anti-SLAPP statute, so Med Express and James Amodio can behave in this matter with relative impunity. If Ms. Nicholls has to incur ruinous legal expenses to vindicate her rights, the bad guys win, whatever the ultimate outcome of the case.

Update: Med Express apologizes and blames its overzealous lawyer. Sincerely? [Paul Alan Levy; Good Morning America].

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If they were really transferable, we’d all be in trouble. [Stephanie Landsman, CNBC "NetNet"]

Related: Sunday’s New York Times has a long article asking whether law schools are adequately disclosing the high likelihood that their costly offerings will turn out to be a poor investment for many heavily indebted students. Should U.S. News law-school rankings, like cigarette packs, carry warnings? [Above the Law]

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Michael Steadman posted a negative review on eBay over a $44 clock that he didn’t think worked as advertised. He’s already spent $7,000 defending himself against the defamation suit filed by the seller, who is a Miami Beach lawyer. [Orlando Sentinel, Obscure Store]

“Nikki Foote of Henderson [Nevada] was sued over comments she allegedly posted charging that the Gucci handbag she purchased for $495 was a fake.” [Las Vegas Sun]

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May 14 roundup

by Walter Olson on May 14, 2009

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March 1 roundup

by Walter Olson on March 1, 2009

  • Somehow not shocked to hear this: “ABA Pushes for 1,000-Lawyer Legal Corps” [ABA Journal]
  • Appeals court will consider whether Roommates.com violated fair housing law by asking subscribers about sexual orientation [Heller, OnPoint News]
  • World gone mad: Bank of America has given ACORN nearly $3 million since 2005 [Capital Research Center] Group hasn’t given up its old lawbreaking ways [Michelle Malkin]
  • Gloria Allred representing injured passenger who rode with Morgan Freeman [AP, PopSquire, Janet Charlton]
  • If even they can’t comply you know it’s bad: Federal Labor Relations Authority found to have committed unfair labor practice [Workplace Prof]
  • Poor England, perhaps it’s time to retire its reputation as a place of civil liberties [Ken @ Popehat] Related: we’ve cleared you of child abuse, but it’s too late to get your children back, beastly sorry about that [Neatorama]
  • When the judge writes well, even a slip and fall verdict can make for agreeable reading [Turkewitz]
  • “Ebay Founder Tweets About An Unusual Lawsuit” [NY Times "Bits", Pierre Omidyar]

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In our previous posts about the Consumer Product Safety Improvement Act (CPSIA), the federal law passed by Congress last year in the wake of the panic over Chinese toys with lead paint, we noted that it threatened to drive out of business a lot of small makers of wooden toys and other childrens’ products who cannot afford to spend thousands of dollars per lot to confirm the absence of lead paint (or phthalates, another banned substance) in their wares. A group called Handmade Toy Alliance has formed to call attention to the law’s burden on small manufacturers, and offers further detail at its website.

As reports in the last week make clear, however, a second economic disaster is also looming: thrift and secondhand stores around the country sell a large volume of clothing, toys and other items meant for use by those under 12, and are now exposed to stringent liability under the law. “The reality is that all this stuff will be dumped in the landfill,” predicted Adele Meyer, executive director of the National Association of Resale and Thrift Shops. Among the biggest losers if stores stop selling secondhand kids’ items: poorer parents who would have trouble dressing a growing family if they had to buy, say, winter coats new for $30 rather than used for $5 or $10. The regs are scheduled to take effect Feb. 10.

On January 8, as press coverage mounted, the Consumer Product Safety Commission (CPSC) rushed out a supposed clarification of the regulations: thrift shops, eBay sellers and other second-hand retailers would not be compelled to institute testing programs on all items sold, the way manufacturers would. But the commission made clear that if the stores do wind up selling any secondhand products containing the substances — phthalates, for example, are often found in bendy plastics — they face both criminal liability and civil fines (which run up to $100,000). It isn’t required that the store know or should have known that a pre-2009 item was in violation, and of course it isn’t required that anyone be harmed by the good (the entire episode has gone on with a near-total absence of any showing that actual kids had been harmed by the products swept from American shelves).

None of which seems to faze some advocates of the new measure. At Law and More, Jane Genova quotes Sue Gunderson, executive director of an anti-lead-paint group called ClearCorps:

What thrift stores seem to be requesting [in Gunderson's view] is for the right to expose children to health and safety hazards. “Let’s get our priorities straight,” she insists. She goes on to pose this rhetorical question: “Mmmmmm, do we want cheap, second-hand toys that could damage children?” She frames this issue as a “business” one which the thrift-store industry will have to solve just as will every other business impacted by the new act.

If you think this is all too crazy to actually be happening, wait until you read the Boston Phoenix’s piece on the law’s threat to libraries:

“We are very busy trying to come up with a way to make it not apply to libraries,” said [Emily] Sheketoff [associate executive director of the American Library Association]. But unless she succeeds in lobbying Capitol Hill for an exemption, she believes libraries have two choices under the CPSIA: “Either they take all the children’s books off the shelves,” she says, “or they ban children from the library.”

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December 11 roundup

by Walter Olson on December 11, 2008

  • Nastygrams fly at Christmas time over display and festival use of “Jingle Bells”, Grinch, etc. [Elefant]
  • Claims that smoking ban led to instantaneous plunge in cardiac deaths in Scotland turns out to be as fishy as similar claims elsewhere [Siegel on tobacco via Sullum, Reason "Hit and Run"]
  • Myths about the costs and consequences of an automaker Chapter 11 filing [Andrew Grossman, Heritage; Boudreaux, WSJ] Drowning in mandates and Congress throws them an anchor [Jenkins, WSJ]
  • Mikal Watts may be the most generous of the trial lawyers bankrolling the Texas Democratic Party’s recent comeback [Texas Watchdog via Pero]
  • Disney settles ADA suit demanding Segway access at Florida theme parks “by agreeing to provide disabled guests with at least 15 newly-designed four-wheeled vehicles.” [OnPoint News, earlier]
  • Update on Scientology efforts to prevent resale of its “e-meter” devices on eBay [Coleman]
  • Scary: business-bashing lawprof Frank Pasquale wants the federal government to regulate Google’s search algorithm [Concurring Opinions, SSRN]
  • Kind of an endowment all by itself: “Princeton is providing $40 million to pay the legal fees of the Robertson family” (after charges of endowment misuse) [MindingTheCampus]

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In the U.K. (Jon Swaine, “Man sued for libel over comments on eBay”, Telegraph, Oct. 23 via Citizen Media Law). More: Citizen Media Law also has information about an unsuccessful feedback suit from California, Grace v. Neeley.

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Now it’s software makers talking about suing the auction provider for not doing more to police the sale of pirated copies. In contrast to the unsuccessful action by Tiffany ruled on earlier this month, such a suit might rely on copyright as opposed to trademark law. (Holly Jackson, “Software makers threaten to sue eBay over counterfeits”, CNet, Jul. 25).

Meanwhile, Roger Parloff at Fortune checked and found eBay was not exactly complying with that very sweeping court injunction obtained by luxury goods maker LVMH (Louis Vuitton Moët Hennessy) which required the removal of relevant auctions not only on ebay.fr but on the American site and other affiliates if persons in France are able to access those sites. (Jul. 16).

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The ruling (Slashdot) seems relatively unsurprising given the favorable posture of U.S. law toward online middlemen like eBay, but a number of readers have asked about how it relates to the ruling the other week by a French court in favor of much more sweeping claims against eBay by luxury goods maker LVMH (Louis Vuitton Moët Hennessy). The answer, unfortunately, may not be simply that the various eBay sites have to follow different local rules depending on where they are based or to whom a purchase is being shipped. Per Roger Parloff’s Fortune piece, the earlier ruling “applies to all eBay sites worldwide to the extent that they are accessible from France, and not merely to the company’s French site at ebay.fr, according to [French lawyers on both sides]“.

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The verdict in a French court, if upheld, won’t just compel the online auction site to police its listings for counterfeits of luggage, perfume and other status goods, but also will knock out “gray market” goods (product originating in authorized channels, but sold in a different market than intended). “It would even bar individuals from reselling LVMH perfumes that they had received, for instance, as unwanted Christmas presents, both lawyers say.” (Parloff, Fortune)(cross-posted from Point of Law).

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Steve Shellhorn didn’t leave negative feedback after a not entirely satisfactory transaction on the online auction site, but “neutral” feedback can harm reputation too, according to the seller’s suit. Although a judge in the plaintiff’s Buncombe County, N.C. home court threw out the action, “It cost Shellhorn $500 to hire an attorney. ‘I’m very leery. I won’t leave feedback for people anymore,’ he said.” (Jesse Jones, KING5 News (Seattle), Apr. 24).

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Mary Jo Pletz, who lives north of Allentown, Pa., made a very successful time of it accepting people’s consigned items and selling them on eBay. Now the state of Pennsylvania is proceeding against her for not taking out an auctioneer’s license, though it denies that it is seeking the $10 million in fines that her lawyer alleges. (Bob Fernandez, “Pennsylvania takes on online auctions”, Philadelphia Inquirer, Jan. 30). Earlier similarly: Feb. 26, 2006 (California); Oct. 13, 2005 (North Dakota); Mar. 21, 2005 (Ohio).

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A Labour-run municipal authority in Wales has sacked nine workers after discovering that they were spending up to two hours of their workday on eBay, but “union officials said that the employer had ‘put temptation in their way’ by allowing computer access to external internet sites. They called on all large employers to install a firewall program to prevent staff from being distracted by sites such as eBay, BBC Online and those that provide gambling.” (Simon de Bruxelles, “Office staff lose their jobs after bosses catch them trading on eBay”, Times Online, Sept. 21)(via ABA Journal).

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Although trademark law certainly has plenty of intricacies, the essence of trademarks is the protection of consumers from confusion in the marketplace. When one buys goods or services, one should be able to know the manufacturer of those goods or provider of those services. Except, of course, when lawyers get involved; then trademarks are just used by large businesses to stifle competition. Infoworld reports on how some companies are abusing trademarks to shut down smaller competitors on EBay. EBay, to avoid liability for trademark infringement by its sellers, is quick to shut down any auction when a trademark holder complains. And then makes it difficult for the seller to reverse the decision:

As she began the process of getting EBay to reinstate her account – which includes having to take a condescending online tutorial on intellectual property and swearing that you’ll never be bad again – the reader also was able to contact with other EBay sellers whose Don Ed Hardy auctions had been taken down. “Some sellers who had not yet actually sold any Don Ed Hardy goods were told by the fraud department that ‘test purchases’ had proven their goods were counterfeit,” the reader wrote. “Some were told that it didn’t matter they could prove their merchandise was authentic – Don Ed Hardy would continue to take down their listings via VeRO by citing ‘violation of a trade agreement’ between the company and its distributors. And all were threatened as I was with trademark litigation that could result in treble damages, paying their legal costs, etc.”

But the threat of running up legal fees with trademark lawsuits isn’t just felt by individual EBay sellers; even large companies — like ABC television — are afraid to fight ridiculous claims of trademark infringement:

“Sam I Am” isn’t—anymore.

The planned ABC fall comedy starring Christina Applegate has changed its name to “Samantha Be Good” after receiving a “cease-and-desist” letter from lawyers representing the rights-holder to Dr. Seuss characters, an attorney said Tuesday.

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“We asserted a trademark infringement claim,” in a May 17 letter to ABC, said Jonathan B. Sokol, an attorney representing San Diego-based Dr. Seuss Enterprises, LP.

“People worldwide associate those characters with Dr. Seuss books and … Dr. Seuss vigilantly protects its trademark rights,” Sokol said.

The TV show’s original title might have confused people as to whether the company was sponsoring or otherwise involved with the program, Sokol said.

This is just a guess, but it’s unlikely that someone watching a sitcom in which Christina Applegate has amnesia is going to confuse it with Green Eggs And Ham, a book in which a cartoon character tries to entice another cartoon character to eat unkosher food with classic lines like “Could you, would you, with a goat?”

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…is not enough contact with the buyer’s state to subject you to the jurisdiction of its courts, according to a judge on Staten Island who ruled that even New York’s “long arm” law has its limits. (Mark Fass, “Contact Held Insufficient to Sue eBay Seller”, New York Law Journal, Mar. 7). I discussed the rise of long-arm jurisdiction, and the powerful impetus it can provide to litigation in many situations, in Chapter 4 (PDF) of my book The Litigation Explosion.

P.S. As commenter Elliot points out, “even” was not the mot juste in this circumstance; New York’s long-arm statute has never been interpreted as liberally as, say, California’s.

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Now it’s California legislators: “California residents who sell goods on eBay could have to pay a $295 fee and be regulated in the same way as pawnbrokers under legislation designed to crack down on the sale of stolen property.” Opponents say the bill would drive out of business thousands of antique dealers and consignment shops, as well as eBay sellers and the dropoff shops and sellers’ agents that work with them. Pawnbrokers, who are pushing the legislation, say that state law already requires that sales of secondhand goods be reported to local law enforcement, but that the law has gone unenforced against everyone but themselves. In recent years influential Sacramento legislators, including Senate President Pro Tem John Burton (D-San Francisco), have unsuccessfully proposed measures to require secondhand sellers to report transactions to a state law enforcement database, which is the pawnbrokers’ key demand. (Greg Lucas, “Pawnbrokers try, try and try again”, San Francisco Chronicle, Feb. 25). We earlier discussed proposals for licensing of eBay sellers in Ohio (Mar. 21, 2005) and North Dakota (Oct. 13, 2005).

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