Category Archives: Uncategorized

Minnesota vs. National Arbitration Forum

The National Arbitration Forum and the Attorney General of Minnesota have reached an agreement under which NAF will cease accepting new arbitration cases involving consumers, including collection actions by credit card companies. The consent decree (dated July 17, 2009) does not apply to ICANN domain name disputes nor to certain other types of arbitration matters currently administered by NAF.

See also the AG’s press release, her earlier complaint against NAF, and NAF’s statement on the settlement.

The Attorney General has also asked the American Arbitration Association to exit the consumer arbitration field. (Another company, JAMS, also offers consumer arbitration services, but apparently has not been approached by the AG.)

Update, 7/22/09:  The American Arbitration Association says it will stop handling consumer debt collection cases “until some standards or safeguards are established.” Wall Street Journal, July 22, 2009, page A1 (full text of story here). See also Deepak Gupta’s take in CL&P Blog.

Gimme an “A”!

As anyone who has flown Southwest Airlines well knows, Southwest doesn’t assign seats in advance. Instead, you are assigned a boarding priority when you check in at the airport or online, up to 24 hours before the flight. At the gate, you line up with others in your boarding group, and then when your group is called, you stampede onto the plane looking for anything other than a middle seat. (And if you’re one of those rude jerks who max out the carry-on allowance rather than checking your bags like the rest of us, you spend several minutes blocking the aisle so you can stake a claim to space in the overhead compartment and then try to jam your oversized baggage there rather than placing it under the seat where it belongs. But enough on that rant.)

Since you can’t reserve a seat ahead of time, getting an “A” boarding pass turns out to be critical. If you wait until you arrive at the airport to check in, you’ll almost certainly be stuck with a “B” or even a “C”, and even if you wait more than an hour at the front of the line for your particular boarding group, you still risk getting stuck with an aisle seat. In some instances, you apparently have to check in within the first few minutes (i.e., exactly 24 hours before your flight time) in order to get an “A” boarding pass.

BoardFirst and similar services have seemingly found a way around this ridiculous situation. (Yes, I realize that some people actually like Southwest’s dysfunctional approach; I think it’s just because they’ve figured out how to beat it, kind of like how ticket brokers who have figured out how to get good concert tickets from Ticketmaster don’t think that system is broken.) If you’re willing to trust BoardFirst with your Southwest flight information, BoardFirst will log on to Southwest’s website when check-in opens and put you near the front of the line for an “A” boarding pass. BoardFirst charges $5 for this service.

Southwest sued BoardFirst last year based upon a variety of legal theories, including a claim that BoardFirst enters into a browsewrap contract with Southwest each time it accesses Southwest’s website on a customer’s behalf, and that contract prohibits third parties such as BoardFirst from checking customers in or obtaining boarding passes for them. This month the court ruled in Southwest’s favor on that claim, although from a quick look at BoardFirst’s website, it appears that BoardFirst may still be accepting “orders” from Southwest customers.

Southwest Airlines Co. v. BoardFirst, L.L.C., No. 3:06-cv-00891 (N.D. Tex. Sept. 12, 2007).


The Rev. Jerry Falwell died today. I met him once, in 1986 or so, when he came to my law school to give a talk. While I disagreed (and still do) with most of what he stood for politically, I enjoyed talking with him then and have always had a great deal of respect for him.

A few years ago I served on a dispute resolution panel that awarded the domain name to Dr. Falwell. I dissented from that decision, and later felt vindicated by the Fourth Circuit’s subsequent ruling [PDF].

E360 Insight v. The Spamhaus Project

I’m following the E360-Spamhaus dispute with great interest, and have been discussing it in my Cyberspace Law seminar at The John Marshall Law School. The case presents some fascinating issues in the areas of spam law, Internet governance, civil procedure, and international law — and it happens to have a handful of connections with John Marshall.

In the district court, the case was heard by Judge Charles P. Kocoras, who has served on the federal bench for over 25 years and has taught at John Marshall as an adjunct professor for even longer than that. Matthew Neumeier of Jenner & Block, an adjunct professor in John Marshall’s Information Technology and Privacy Law program, is representing Spamhaus in its appeal to the Seventh Circuit. Matthew Prince‘s comments about the case have been widely quoted in the media; he is CEO of Unspam Technologies and also is an adjunct professor in John Marshall’s IT law program. And a similar fact scenario (i.e., spam-related accusations as the basis for suspension of a domain name) was used as the problem for John Marshall’s annual moot court competition way back in 1996. The best briefs and the bench memorandum prepared for that competition were subsequently published in John Marshall’s Journal of Computer & Information Law.

March 2005 Archives

March 08, 2005

The King v. The King of Pop?

(Via Kings & Things)  Elvis tribute artist Matthew Tuttle last week won a seat in the public lottery to watch a day of Michael Jackson’s child molestation trial. The Sonora (Cal.) Union Democrat reports that Tuttle was a criminal defense lawyer before giving up the law to live life as Elvis.

March 02, 2005

MGM v. Grokster

Oral arguments in MGM v. Grokster are scheduled for March 29. The briefs of the parties along with numerous amicus briefs are available from EFF. (I signed onto the brief submitted by 60 Technology Law Professors and USACM.)

April 2005 Archives

April 12, 2005

Watch what you blog

If you’re planning to commit a crime, don’t brag about it in your blog. (State v. Velardi (N.C. App. Apr. 5, 2005), via

April 11, 2005

ICANN do whatever I want

The Ninth Circuit held last week (in McNeil v. Verisign, Inc.) that ICANN isn’t a state actor and therefore isn’t required to respect free speech or due process rights under the U.S. Constitution. (For general background, see these law review symposium issues: 6 J. Small & Emerging Bus. L. no. 1 (Spring 2002) and
15 J. Marshall J. Computer & Info. L. no. 3 (Spring 1997).)

UPDATE: Eric Goldman lists previous decisions declining to find state action by private Internet entities here.

eBay Accused of Shill Bidding

A class action suit filed in California last week alleges fraud and unconscionability in eBay’s bidding system. The suit focuses on the manner in which eBay handles proxy bids, and characterizes eBay’s actions as tantamount to “shill bidding.” The plaintiffs’ firm has issued a press release; Reuters [alternate link] and have more.

The plaintiffs may have a point, but the impact of eBay’s practices isn’t particularly significant (less than one bid increment) except on an aggregate level. I’m guessing this one will settle for substantial attorney’s fees for the named plaintiff’s firm, a thousand dollars or so for the lead plaintiff, worthless coupons for all of the other class members, and a promise by eBay to do a better job of explaining how proxy bids work.

EBay’s bidding system is inherently broken — a timed auction makes sense only where bids are sealed until the auction closes (hence the existence of eSnipe and similar services that exploit this designflaw) — but that problem has little to do with this case.

UPDATES: Commentary on the case from Eric Goldman and Slashdot. And a printable copy of the complaint.

February 2005 Archives

February 20, 2005

No Spam for Cows?

Karl Auerbach notes that cows infected with mad cow disease enjoy greater privacy protection than people who register domain names.

I told you we were on the wrong side of the cow.

All Your Mail Is Spam

CircleID reports that spam now represents 70%-85% of all email. That sounds very low to me — those numbers must be based upon email that is actually delivered (i.e., they don’t include spam that is blocked successfully).

February 12, 2005

Don’t Spam My Domain

Last year the FTC rejected my suggestion that it permit domain-wide opt-out in a national Do Not E-Mail Registry … but the FCC has now done precisely that in its registry of Wireless Domain Names.

October 2002 Archives

October 30, 2002

CNET Digital copyright law on trial (also see ACLU information on Edelman v. N2H2)

October 29, 2002

CNET Who owns your e-mail? (customer sues Canadian ISP that kept her account open for incoming e-mail but denied her access to the messages) (also see Privacy Commissioner of Canada ruling; Canadian privacy legislation; and the customer’s own account of the incident)

CNET Promise of P3P stalls as backers regroup (also see Platform for Privacy Preferences project overview and CPSR’s P3P FAQ)

October 26, 2002

Slashdot: First worm with a EULA? (also see McAfee virus profile and Symantec security response)

October 24, 2002

Wired News: Band can’t sell own music on eBay

October 21, 2002

CNET Judge: Disabilities Act doesn’t cover web (federal court rejects ADA suit challenging Southwest’s inaccessible web site)

CNET Direct marketers want anti-spam laws (not surprisingly, the type of law favored by the DMA would simply prohibit forged message headers; the result would be to legitimize spam, and the quantity of spam would increase dramatically, so no legislation at all would be far better)

October 19, 2002

Wired News: Privacy czar: Past haunts present (Peter Swire compares war against terrorism to 1950s anticommunism)

October 15, 2002

Wired News: Spam masquerades as admin alerts (yet another Microsoft-related security vulnerability) (also see CNET; Stop Messenger Spam; and Internet Privacy for Dummies)

October 14, 2002

Wired News: Man sues airlines for fare access (lawsuit contends that Southwest and American Airlines are violating Americans with Disabilities Act by designing their web sites to thwart access by screen reading programs)

October 11, 2002

CNET IBM flushes restroom patent (I thought this might be a joke, especially after noticing all of the bathroom humor in the article, but the patent is for real — see U.S. patent no. 6,329,919, “System and method for providing reservations for restroom use”)

October 09, 2002

Washington State U. Daily Evergreen, Oct. 3: Filipino-American history recognized (“The month of October is officially observed as Filipino-American History Month. On Oct. 18, 1587, the first Filipinos landed on the shores of Morro Bay, California on a Spanish galleon called the Nuestra Senora de Buena Esperanza, which translates to ‘The Big Ass Spanish Boat.’)

Daily Evergreen, Oct. 4: Apology and retraction (“The story ‘Filipino-American history recognized’ stated that the ‘Nuestra Senora de Buena Esperanza,’ the galleon on which the first Filipinos landed at Morro, Bay, Calif., loosely translates to ‘The Big Ass Spanish Boat.’ It actually translates to ‘Our Lady of Good Peace.’ Parts of the story, including the translation above, were plagiarized from an inaccurate Web site.”) (also see, from which the story was copied, and Seattle Times coverage)

Martin Schwimmer’s Trademark Blog: 7th Circuit Fair Use Decision re: BARGAINBEANIES.COM (also see Ty v. Perryman [alternate link] (7th Cir. Oct. 4, 2002) [PDF])

Chicago Sun-Times: I-Pass has a new role: I spy

October 01, 2002

This court decision isn’t particularly interesting if you’re not a patent type (“In order to prevent the flexible elastic ring from being dislodged from its seating by the intense compression of the parts, the ’657 patent discloses the use of an annular extension 33 on the cutting ring 14, and a corresponding annular extension 34 on the shutter mechanism 3, to hold the flexible elastic ring in place.” . . . but you gotta love the name of the case:  Schwing GmbH v. Putzmeister AG, ___ F.3d ___, 2002 WL 31109922, 2002 U.S. App. LEXIS 20205 (Fed. Cir. Sept. 24, 2002).