toronto computer lawyers’ group - mccarthy tétrault...barry b. sookman [email protected]...

McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca

McCarthy Tétrault Advance™

Building Capabilities for Growth

Barry B. Sookman

[email protected]

416-601-7949 June 5, 2014

Toronto Computer Lawyers’ Group:

The Year in Review: (2013-2014)

13440957

McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 13440957

2


Google v AEPD, Case C-131/12, CJEU

13 May 2014 “As regards a situation such as that at issue in the main proceedings, which

concerns the display, in the list of results that the internet user obtains by

making a search by means of Google Search on the basis of the data subject’s

name, of links to pages of the on-line archives of a daily newspaper that

contain announcements mentioning the data subject’s name and relating to a

real-estate auction connected with attachment proceedings for the recovery of

social security debts, it should be held that, having regard to the sensitivity for

the data subject’s private life of the information contained in those

announcements and to the fact that its initial publication had taken place 16

years earlier, the data subject establishes a right that that information should

no longer be linked to his name by means of such a list. Accordingly, since in

the case in point there do not appear to be particular reasons substantiating a

preponderant interest of the public in having, in the context of such a search,

access to that information, a matter which is, however, for the referring court to

establish, the data subject may, by virtue of Article 12(b) and subparagraph (a)

of the first paragraph of Article 14 of Directive 95/46, require those links to be

removed from the list of results.”

3

http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9560


Google v AEPD, Case C-131/12, CJEU 13 May 2014

“It follows from all the foregoing

considerations that the answer to Question

2(a) and (b) is that Article 2(b) and (d) of

Directive 95/46 are to be interpreted as

meaning that, first, the activity of a search

engine consisting in finding information

published or placed on the internet by third

parties, indexing it automatically, storing it

temporarily and, finally, making it available

to internet users according to a particular

order of preference must be classified as

‘processing of personal data’ within the

meaning of Article 2(b) when that

information contains personal data and,

second, the operator of the search engine

must be regarded as the ‘controller’ in

respect of that processing, within the

meaning of Article 2(d).”

4




13 May 2014

Therefore, if it is found, following a request by the data subject

pursuant to Article 12(b) of Directive 95/46, that the inclusion in the list

of results displayed following a search made on the basis of his name

of the links to web pages published lawfully by third parties and

containing true information relating to him personally is, at this point in

time, incompatible with Article 6(1)(c) to (e) of the directive because

that information appears, having regard to all the circumstances of the

case, to be inadequate, irrelevant or no longer relevant, or excessive in

relation to the purposes of the processing at issue carried out by the

operator of the search engine, the information and links concerned in

the list of results must be erased.”

5



Google v AEPD, Case C-131/12, CJEU 13 May 2014

“Following the appraisal of the conditions for the

application of Article 12(b) and subparagraph (a) of

the first paragraph of Article 14 of Directive 95/46

which is to be carried out when a request such as

that at issue in the main proceedings is lodged with

it, the supervisory authority or judicial authority may

order the operator of the search engine to remove

from the list of results displayed following a search

made on the basis of a person’s name links to web

pages published by third parties containing

information relating to that person, without an order

to that effect presupposing the previous or

simultaneous removal of that name and information

— of the publisher’s own accord or following an

order of one of those authorities — from the web

page on which they were published.”

6




13 May 2014 ¬ Google Removal Process:

¬ “A recent ruling by the Court of Justice of the European Union found that certain

users can ask search engines to remove results for queries that include their

name where those results are inadequate, irrelevant or no longer relevant, or

excessive in relation to the purposes for which they were processed.

¬ In implementing this decision, we will assess each individual request and attempt

to balance the privacy rights of the individual with the public’s right to know and

distribute information. When evaluating your request, we will look at whether the

results include outdated information about you, as well as whether there’s a

public interest in the information—for example, information about financial scams,

professional malpractice, criminal convictions, or public conduct of government

officials.

¬ If you have a removal request, please fill out the form below. Please note that

this form is an initial effort. We look forward to working closely with data

protection authorities and others over the coming months as we refine our

approach.”

7

http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9560https://support.google.com/legal/contact/lr_eudpa?product=websearch


Zhang v. Baidu.com Inc. 2014 WL 1282730

(S.D.N.Y Mar. 28, 2014)

¬ Whether the search engine baidu.com can be forced to display search results

concerning the democracy movement in China or has First Amendment protection for

its search results.

¬ “The central purpose of a search engine is to retrieve relevant information from the

vast universe of data on the Internet and to organize it in a way that would be most

helpful to the searcher. In doing so, search engines inevitably make editorial

judgments about what information (or kinds of information) to include in the results

and how and where to display that information (for example, on the first page of the

search results or later).”

¬ “Nor does the fact that search-engine results may be produced algorithmically matter

for the analysis. After all, the algorithms themselves were written by human beings,

and they "inherently incorporate the search engine company engineers' judgments

about what material users are most likely to find responsive to their queries.””

¬ “…it is debatable whether any search engine is a mere "conduit" given the judgments

involved in designing algorithms to choose, rank, and sort search results.”

¬ “Plaintiffs' efforts to hold Baidu accountable in a court of law for its editorial judgments about

what political ideas to promote cannot be squared with the First Amendment.”

8

http://scholar.google.ca/scholar_case?case=496194286290910310&q=Zhang+v.+Baidu.com+&hl=en&as_sdt=2006


Alberta (Information and Privacy Commissioner) v.

United Food and Commercial Workers, Local 401

2013 SCC 62

¬ “PIPA imposes restrictions on a union’s ability to communicate and persuade

the public of its cause, impairing its ability to use one of its most effective

bargaining strategies in the course of a lawful strike. In our view, this

infringement of the right to freedom of expression is disproportionate to the

government’s objective of providing individuals with control over personal

information that they expose by crossing a picketline.

¬ This conclusion does not require that we condone all of the Union’s

activities. The breadth of PIPA’s restrictions makes it unnecessary to

examine the precise expressive activity at issue in this case. It is enough to

note that, like privacy, freedom of expression is not an absolute value and

both the nature of the privacy interests implicated and the nature of the

expression must be considered in striking an appropriate balance. To the

extent that PIPA restricted the Union’s collection, use and disclosure of

personal information for legitimate labour relations purposes, the Act violates

s. 2(b) of the Charter and cannot be justified under s. 1.”

9

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13334/index.dohttp://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13334/index.do


Oracle America, Inc. v Google Inc. 2014 WL

1855277 (CAFC May 9, 2014)

“Because we conclude that the declaring

code and the structure, sequence, and

organization of the API packages are

entitled to copyright protection, we

reverse the district court’s copyrightability

determination with instructions to

reinstate the jury’s infringement finding as

to the 37 Java packages. Because the

jury deadlocked on fair use, we remand

for further consideration of Google’s fair

use defense in light of this decision.”

10

http://www.cafc.uscourts.gov/images/stories/opinions-orders/13-1021.Opinion.5-7-2014.1.PDF


SAS Institute Inc v World Programming Ltd

[2013] EWCA Civ 1482 (21 November 2013)

¬ “The court did not itself define what it meant by "functionality"; and in those

circumstances there is no reason to suppose that it meant anything different

from the way in which the Advocate-General defined the word. Moreover, at

[40] it specifically approved what the Advocate-General had said at [57] of

his opinion:

¬ "… to accept that the functionality of a computer program can be

protected by copyright would amount to making it possible to

monopolises ideas, to the detriment of technological progress and

industrial development.“

¬ It will be recalled that in [39] the court had discussed (a) the functionality of a

computer program, (b) the programming language and (c) the format of data

files used in a computer program. By contrast in it considered only (b) and

(c). One must infer, therefore, that the court considered that the functionality

of a computer program could not be protected under the Information Society

Directive. So I do not think that this carries SAS Institute's argument further.”

11

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2013/1482.html&query=%22SAS+and+Institute%22+and+%22copyright+and+infringement%22&method=boolean


CASL Order in Council 81000-2-1795 (SI/TR)

¬ “His Excellency the Governor General in Council, on the recommendation of the

Minister of Industry, pursuant to section 91 of An Act to promote the efficiency

and adaptability of the Canadian economy by regulating certain activities that

discourage reliance on electronic means of carrying out commercial activities,

and to amend the Canadian Radio-television and Telecommunications

Commission Act, the Competition Act, the Personal Information Protection and

Electronic Documents Act and the Telecommunications Act ("the Act"),

chapter 23 of the Statues of Canada, 2010, fixes

¬ July 1, 2014 as the day on which sections 1 to 7, 9 to 46, 52 to 54, 56 to 67 and

69 to 82 of the Act, subsections 12(2) and 12.2(2) of the Personal Information

Protection and Electronic Documents Act, as enacted by section 83 of the Act,

subsection 86(2), section 88 and subsection 89(1) of the Act come into force;

¬ January 15, 2015 as the day on which section 8 of the Act comes into force; and

¬ July 1, 2017 as the day on which sections 47 to 51 and 55 of the Act come into

force.”

12

http://fightspam.gc.ca/eic/site/030.nsf/eng/00272.htmlhttp://fightspam.gc.ca/eic/site/030.nsf/eng/00272.htmlhttp://fightspam.gc.ca/eic/site/030.nsf/eng/00272.htmlhttp://fightspam.gc.ca/eic/site/030.nsf/eng/00272.htmlhttp://fightspam.gc.ca/eic/site/030.nsf/eng/00272.html


BILL S-4 – An Act to amend PIPEDA

¬ “6.1 For the purposes of clause 4.3 of Schedule 1,

the consent of an individual is only valid if it is

reasonable to expect that an individual to whom the

organization’s activities are directed would

understand the nature, purpose and consequences

of the collection, use or disclosure of the personal

information to which they are consenting.”

¬ Data breach notification obligations and penalties.

13

http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6524312&File=4http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6524312&File=4http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6524312&File=4http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6524312&File=4http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6524312&File=4http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6524312&File=4


14


State of Indiana v. IBM 2014 WL 561658 (Ind.

Ct. App. Feb 13, 2014)

¬ Was the State entitled to terminate a 10 year $1.3 billion MSA for material breach?

¬ MSA § 1.4, entitled Construction and Interpretation, provided that the agreement

"shall be" construed in a manner consistent with the Policy Objectives:

¬ (5) In the event of any uncertainties regarding the interpretation of any

particular provision or term used in this Agreement, or in the event of any

ambiguity, vagueness or inconsistency therein or thereof, such provisions and

terms shall be read in a manner consistent with the Policy Objectives. In all

events, the provisions and terms of this Agreement shall be interpreted with a

view toward achieving those objectives. Notwithstanding the foregoing, in no

event shall the Policy Objectives change or expand Vendor's obligations

hereunder unless expressly agreed to by the Parties pursuant to a Change.

¬ “The State may terminate this Agreement, in whole or in part, for cause in any of

the following circumstances… a breach by Vendor of this Agreement which is

material considering this Agreement as a whole occurs which cannot reasonably

be cured by Vendor within thirty (30) days after delivery of the Termination Notice”.

15

http://scholar.google.ca/scholar_case?case=5587386388405962571&q=%22State+of+Indiana%22+and+IBM+%22welfare+system%22&hl=en&as_sdt=2006&scilh=0



Ct. App. Feb 13, 2014)

¬ “In determining whether any breach went to the heart of the contract, we find that

the core of the contract is identified in the following "Policy Objectives" in the

MSA:

¬ The overarching policy objectives of the Modernization Project and this

Agreement are (i) to provide efficient, accurate and timely eligibility

determinations for individuals and families who qualify for public assistance,

(ii) to improve the availability, quality and reliability of the services being

provided to Clients by expanding access to such services, decreasing

inconvenience and improving response times, among other improvements,

(iii) to assist and support Clients through programs that foster personal

responsibility, independence and social and economic self-sufficiency, (iv) to

assure compliance with all relevant Laws, (v) to assure the protection and

integrity of Personal Information gathered in connection with eligibility

determination, and (vi) to foster the development of policies and procedures

that underscore the importance of accuracy in eligibility determinations,

caseload integrity across all areas of public assistance and work and work-

related experience for Clients in the Programs…”

16




Ct. App. Feb 13, 2014)

¬ “…the essence of the Modernization Project was to provide and expand

access to services for welfare recipients in a timely, reliable, and efficient

manner within federal guidelines, to discourage fraud, and to increase work-

participation rates—all of which were problems that plagued the earlier

system. Contrary to the trial court's implication in Conclusion No. 100, whether

IBM materially breached the contract does not require balancing the number

of benefits the State received versus the number of performance standards

that IBM failed. Rather, the issue is whether any breach went to the essence

of the contract—to provide and expand access to services for welfare

recipients in a timely, reliable, and efficient manner within federal guidelines,

to discourage fraud, and to increase work-participation rates…

¬ We find that the heart of this contract was to provide services to the poor in a

way that complied with federal law. In this respect IBM's performance, as the

trial court explained, "consistently missed the mark." This substandard

performance by IBM, $437 million and 36 months later, went to the essence of

this contract.”

17




Ct. App. Feb 13, 2014)

¬ Friedlander J, (in dissent) “I believe the trial court applied the correct standard in determining that IBM did not materially breach the Master Services Agreement

(MSA)…

¬ The MSA itself requires evaluating a breach for materiality by considering it vis-à-

vis the MSA "as a whole.“… Indeed, it seems to me that performance under a

contract of this breadth and complexity, whose goals and desired outcomes

include some that are not susceptible to quantitative measurement, can be

measured only in this manner, i.e., by considering the nature and extent of the

nonconforming performance in the context of the entirety of what is required under

the contract. The Majority's approach, on the other hand, permits a finding of

material breach, with the attendant harsh results to the breaching party, upon the

finding of "any breach [that] went to the essence of the contract", which is to say in

the present case any breach that affects the provision and expansion of access to

services for welfare recipients in a timely, reliable, and efficient manner. It seems

to me that, in view of the scope and breadth of the services IBM was required to

perform under the contract, such a vigorous definition of "material breach" doomed

from the beginning IBM's effort to avoid committing a material breach.”

18




Ct. App. Feb 13, 2014)

¬ Was IBM entitled to $40 million in assignment fees or were they a penalty?

¬ “We agree with the trial court and IBM that these assignment fees were the

price to which the State agreed to purchase IBM's interest in the

subcontracts. The State paid the $40 million assignment fee to IBM in

consideration for the State accruing the legal right to assume IBM's

subcontracts…

¬ Based on the benefits the State received in assuming IBM's subcontracts

and the conduct of the State both during the negotiations of the MSA and

after, we agree with the trial court that the assignment fees represent value

to the State in the ability to assume these subcontracts. Because there was

a measurable benefit conferred upon the State under such circumstances,

the State's retention of the benefit would be unjust. IBM is therefore entitled

to $40 million in assignment fees notwithstanding a finding of material

breach.”

19




Ct. App. Feb 13, 2014)

¬ Was IBM entitled to payment of $43.4 million in deferred fees?

¬ (1) In the event of a Termination of this Agreement for any reason (other than

a Termination by expiration), the State shall pay Vendor, to the extent

applicable, the charges set forth in Sections 16.6.6(2) and 16.6.6(3)(F)

below. In the event of a Termination of this Agreement for any reason (other

than on expiration or upon a Termination as set forth in Sections 16.3.1

[Termination for Cause]… in any of which events, Vendor shall not be

entitled to Early Termination Close Out Payments), the State shall pay

the Early Termination Close Out Payments set forth in Section 16.6.6(3),

16.6.6(4) and 16.6.6(5) and subject to Section 16.6.6(6) if applicable.

¬ MSA § 16.6.6(3) then provided: “Vendor's and its Subcontractors' Early

Termination Close Out Payments (as applicable and without duplication)

shall be as follows: (F) Vendors and its Subcontractors' unamortized balance

of the Deferred Fees, as set forth in Schedule 24 [Deferred Fees].”

20



State of Indiana v. IBM 2014 WL 561658

(Ind. Ct. App. Feb 13, 2014)

¬ “We agree with the trial court's interpretation of Section 16.6.6(1) that Deferred Fees are

not payable to IBM in the event that the MSA was terminated for cause. The contract is

ambiguous because the first sentence of Section 16.6.6(1) required the State to pay

IBM the fees in Section 16.6.6(3)(F), which are Deferred Fees. Id. at 702. However, in

the second sentence, the contract stated that if the State terminated for cause..., it

would not be required to pay any of the payments in Section 16.6.6(3), which included

Deferred Fees.

¬ We read the first sentence's qualifying phrase "to the extent applicable" to refer to

termination situations in which IBM was not entitled to Deferred Fees. The second

sentence clarified situations when the specified Deferred Fees were applicable—

namely, that such fees were payable unless there was a termination for cause, an

insolvency event, wrongful conduct, or a termination by mutual agreement. In other

words, the first sentence of this section applied to situations not listed in the second

sentence, such as termination for convenience…Because we have concluded that there

was a material breach, the State terminated for cause, and the contract does not require

payment of Deferred Fees upon termination for cause, IBM is not entitled to Deferred

Fees.”

21



Fujitsu Services Ltd v IBM United Kingdom

Ltd [2014] EWHC 752 (TCC) (21 March 2014)

¬ "Neither Party shall be liable to the other under this Sub-Contract for loss of profits, revenue,

business, goodwill, indirect or consequential loss or damage…." ("the basic exclusion").

¬ The workshare arrangements under the Sub-Contract may have been a very important part

of the agreement and the Sub-Contract may have been a significant one in terms of prospect

and length. But there may have been very good commercial reasons for deciding to exclude

liability on both sides from a loss of profits claim for breach of the workshare arrangements

as well as for breach of the other significant arrangements in the Sub-Contract…

¬ Commercial parties are entitled to and do rely on commercial "mores"; they can choose to

rely on trust and to prefer not to expose themselves or each other to litigation in due course -

for sound commercial and professional reasons.

¬ Here, each party chose consciously to release the other from potentially very significant

liabilities in the event of a breach of contract (or any other breach), subject to certain agreed

exceptions.

¬ “I conclude that… any liability on the part of IBM for damages (or equitable compensation) on

the workshare, change control and money value claims is excluded by virtue of clause 20.7.

Those claims are claims for loss of profits and/or loss of revenue and/or loss of business

within the meaning of clause 20.7 and do not fall within any of the specific exceptions

provided for”…

22

http://www.bailii.org/ew/cases/EWHC/TCC/2014/752.htmlhttp://www.bailii.org/ew/cases/EWHC/TCC/2014/752.html




¬ "20.4 Subject to Clauses 20.6 and 20.8, PwC's liability to Fujitsu arising

under any indemnity or otherwise under or in relation to this Sub-Contract,

whether in contract, tort, by statute or otherwise and whether or not arising

from any negligence on the part of PwC or any of their agents or employees

shall be subject to the following limits:…

¬ c) subject to Clauses 20 4(d) and 20.8, in respect of any Claims or

losses arising PwC's aggregate liability to Fujitsu arising under this Sub-

Contract in each Contract Year shall be limited to £5 million for all events

or failures giving rise to such Claims or losses;

¬ d) notwithstanding the cap set out in Clause 20.4(c), PwC's overall

aggregate liability for all Claims or losses arising under this Sub-Contract

shall be limited, subject to Clause 20.8, to £10 million for all events or

failures giving rise to such Claims or losses."

23





“I conclude that :

¬ a) any liability on the part of IBM for damages (or equitable

compensation) on the workshop, control change and money value

claims would be subject to the limitations of liability set out in clause

20.4 (c) and (d);

¬ b) any liability on the part of IBM on the account claims is subject to the

limitations of liability set out in clause 20.4(c) and (d).

¬ This construction is what a reasonable person, being someone with all

the background knowledge which would reasonably have been

available to the parties in the situation in which they were at the time in

2002 (and for the avoidance of doubt in 2008) would have understood

the parties to have meant.”

24



AB v CD [2014] EWCA Civ 229 (06 March

2014)

¬ In granting injunctions should the presence of a limitation of liability clause be

disregarded assuming that those damages would be an adequate remedy as they had

been agreed to by the parties?

¬ Lord Justice Underhill “The primary obligation of a party is to perform the contract. The

requirement to pay damages in the event of a breach is a secondary obligation, and an

agreement to restrict the recoverability of damages in the event of a breach cannot be

treated as an agreement to excuse performance of that primary obligation. I share…the

position…that, even where a provision limited the victim of a breach to damages which

bore no relation to its loss, those damages had nevertheless to be regarded an adequate

remedy: …The rule – if "rule" is the right word – that an injunction should not be granted

where damages would be an adequate remedy should be applied in a way which reflects

the substantial justice of the situation…

¬ the fact that the restriction in question was agreed may, depending on the circumstances

of the case, be a relevant consideration – as may the scale of any shortfall and the

degree of risk of it occurring.”

25

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2014/229.html&query=AB+and+CD+and+Stuart-Smith&method=boolean


AB v CD [2014] EWCA Civ 229 (06 March

2014)

¬ Lord Justice Ryder: “Injunctive relief is a remedy available to the court to give

effect to commercial expectations where it is in the interests of justice that

agreed obligations should continue to be binding on the parties, whether that

be for an interim period or the term of the contract. The construction of the

contract clause in the context of the description of legal principle set out by my

Lord has the effect of tending to support rather than undermine parties who

have entered or seek to enter into a contract which contains their commercial

expectations... For that reason, I favour re-casting the question to be asked on

an application for injunctive relief, which is: "Is it just in all the circumstances

that a [claimant] be confined to his remedy in damages?"

¬ Lord Justice Laws: “Where a party to a contract stipulates that if he breaches

his obligations his liability will be limited or the damages he must pay will be

capped, that is a circumstance which in justice tends to favour the grant of an

injunction to prohibit the breach in the first place.”

26

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2014/229.html&query=AB+and+CD+and+Stuart-Smith&method=boolean


Peracomo Inc. v. TELUS Communications

Co., 2014 SCC 29

¬ Meaning of “wilful misconduct” in an exclusion of liability.

¬ “In short, wilful misconduct includes not only intentional wrongdoing but also

other misconduct committed with reckless indifference in the face of a duty to

know.”

¬ “While the threshold to break liability under the Convention requires intention or

recklessness with knowledge that the loss will probably occur, wilful misconduct

under the Marine Insurance Act does not require either intention to cause the

loss or subjective knowledge that the loss will probably occur. It requires, in the

context of this case, simply misconduct with reckless indifference to the known

risk despite a duty to know. The trial judge’s reasons, read in light of the record,

show that at the time he cut the cable Mr. Vallée, who had a duty to know better,

subjectively adverted to the risk that the cable might be live and decided to cut it

anyway on the sole basis of some handwriting that he had seen for a few

seconds on a map on a museum wall — a map which was not a marine chart

and was of unknown origin or authenticity. Cutting the cable in those

circumstances constitutes wilful misconduct as that term is defined in all of the

authorities to which I have referred.”

27

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Peracomo Inc. v. TELUS Communications

Co., 2014 SCC 29

¬ Personal liability of officers and directors.

¬ “The trial judge, upheld by the Federal Court of Appeal, found that Mr. Vallée was

personally liable for breaching his duty of care to the Telus respondents: para. 49. He

held that Peracomo was also liable for the losses both vicariously and personally. Mr.

Vallée was the directing mind and alter ego of Peracomo: para. 50. The court of

appeal cited ADGA Systems International Ltd. v. Valcom Ltd. 1999 CanLII 1527 (ON

CA), (1999), 43 O.R. (3d) 101 (C.A.), leave to appeal refused, [2000] 1 S.C.R. xv, for

the proposition that corporate officers and directors may be held liable in their personal

capacity where they negligently cause property damage in the course of their

corporate duties: para. 43.

¬ I agree with these conclusions. As the Telus respondents point out, corporate

personality is not a relevant consideration in this case since Mr. Vallée was personally

negligent in cutting the cable. The company is liable as a result of his acts, not the

other way around. I would dismiss this ground of appeal.”

28

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XY, LLC v. Zhu, 2013 BCCA 352

¬ Are licensee employees liable to the licensor for their tortious acts?

¬ “it appears to be the law in Canada that as long as tortious conduct on the

part of an employee or agent of a corporation (or any other employer) is

properly pleaded and proven as an “independent” tort by the employee or

agent, the wrongdoer can be held personally liable notwithstanding that he or

she may have been acting in the best interests of (and at the behest of) the

employer or principal. I see no reason in principle or policy why such liability

should be restricted to cases involving physical damage (as Said v. Butt may

have suggested in 1920), or to claims in negligence (as referred to in London

Drugs, Hildebrand and Neilson.) Certainly the Ontario Court of Appeal did

not so restrict it in ADGA…”

¬ In any event it is clear that fraud or fraudulent conduct has historically fallen

into an established category in which personal liability has been imposed on

agents and employees. It is sufficient in the case at bar to rely on this

exception, although the acts of the Personal Defendants were properly

pleaded as amounting to civil conspiracy and in this sense constituted a tort

that was independent of that alleged against JingJing.”

29

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Innovate Technology Solutions, L.P. v

Youngsoft, Inc. 418 SW 3d 148 (Ct.App.Tex.2013)

¬ Enforceability of following disclaimer:

¬ Notwithstanding anything contained elsewhere in this Agreement and

under any circumstance, for any reason whatsoever, YS shall not be

liable for any incidental, ancillary, direct, indirect, special or

consequential damages, including but not limited to lost profits, whether

in tort or contract, and based on any theory of liability.

¬ “…interpreting the Agreement to mean (in Youngsoft's words) that "Innovate

is not entitled to recover any damages from Youngsoft under any

circumstances, notwithstanding anything to the contrary..." renders the

Agreement illusory, void, and unenforceable”…If Youngsoft is completely

insulated from any damage claims from Innovate, it effectively retains the

option of discontinuing performance at any time.”

30

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IN RE IPHONE 4S CONSUMER LITIGATION,

2013 WL 3829653 (N.D.Cal. Jul. 23, 2013)

¬ Is Apple liable for implied warranty of merchantability for Siri features in

Iphone?

¬ “Apple argues that this claim is barred because it disclaimed the implied

warranty of merchantability in the iPhone 4S's one-year hardware warranty

and in the iPhone software license agreement….

¬ Apple argues that a disclaimer was provided to customers within the

packaging of the iPhone 4S and that Plaintiffs could have returned their

iPhones within its thirty day return period after they had discovered and

reviewed the warranty, if they did not want to consent to its limitations.

There is some authority within this district that supports that the disclaimer

need not be provided prior to purchase, if the purchasers “were able to

review the warranty upon purchase and to return the product if they were

dissatisfied with the warranty's limitations.”

31

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IN RE IPHONE 4S CONSUMER LITIGATION,

2013 WL 3829653 (N.D.Cal. Jul. 23, 2013)

¬ “Unlike express warranties, which are basically contractual in nature, the

implied warranty of merchantability arises by operation of law.... [I]t provides

for a minimum level of quality.” A plaintiff must demonstrate that the product

“did not possess even the most basic degree of fitness for ordinary use.”

This means that Plaintiffs must show “more than that the alleged defect was

‘inconvenient’ ” but rather that the products were unfit for their ordinary

purpose. Given the acknowledgment that Siri could be used as an assistant

for at least basic purposes, Plaintiffs have not alleged sufficiently that the

function was unusable or that it did not have the most basic degree of

fitness.

¬ See also, IN RE IPHONE 4S CONSUMER LITIGATION, (N.D.Cal. Feb 14,

2014) (express warranty claims dismissed)

32

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IN RE SONY GAMING NETWORKS AND CUSTOMER DATA

SECURITY BREACH LITIGATION, 2014 WL 223677 (S.D.Cal.

2014)

¬ Enforceability of express and implied warranty claims that Sony would provide

adequate network security to protect personal information.

¬ “…the PSN User Agreement states: "Except as otherwise required by

applicable law, this Agreement shall be construed and interpreted in

accordance with the laws of the State of California applying to contracts fully

executed and performed within the State of California." Similarly, the SOE

User Agreement states: "This Agreement is governed in all respects by the

substantive laws of the State of California and of the United States of America."

Therefore, based on the unambiguous language set forth above, the Court

finds each of Plaintiffs' breach of warranty claims is potentially subject to

dismissal under the choice-of-law clauses, subject only to the enforceability of

the provisions under applicable law…

¬ Therefore, based on the above, the Court finds the choice-of-law clauses in the

PSN and SOE User Agreements enforceable and each of the warranty claims

not alleged under California law should be dismissed.”

33

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IN RE SONY GAMING NETWORKS AND CUSTOMER DATA

SECURITY BREACH LITIGATION, 2014 WL 223677 (S.D.Cal.

2014)

“Therefore, based on the disclaimer and admonitory language in the

PSN User Agreement and the PSN Privacy Policy, the Court finds the

language clear and conspicuous. Read in conjunction, both documents

explicitly disclaimed any and all claims arising under the implied

warranty of merchantability, disclaimed any and all claims arising under

the implied warranty of fitness for a particular purpose, stated in all caps

that Sony Online Services would be provided "AS IS" and "AS

AVAILABLE," and informed consumers that Sony was not warranting

the security of consumer personal information transmitted to Sony via

the network.”

34

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Convolve, Inc v Compaq Computer Corp, 527

Fed.Appx. 910 (CAFC. 2013), cert. denied 134 S.Ct. 801

¬ Could plaintiffs pursue a trade secret misappropriation claim where

disclosure process in NDA not followed.

¬ “The plain language of the Convolve-Seagate NDA unambiguously requires

that, for any oral or visual disclosures, Convolve was required to confirm in

writing, within twenty (20) days of the disclosure, that the information was

confidential. Paragraph 7 of the Convolve-Seagate NDA provides that, for

"any oral or visual disclosures," the disclosing party must (1) designate the

information as confidential at the time of disclosure and (2) confirm "in a

writing delivered within twenty (20) days to the Recipient which provides

clear notice of the claim of confidentiality and describes the specific

information disclosed." The intent of the parties, based on this language, is

clear: for an oral or visual disclosure of information to be protected under the

NDA, the disclosing party must provide a follow-up memorandum. And, we

see no error in the district court's conclusion that Convolve failed to provide

this written follow-up memorandum with respect to each of these ASTIs.”

35

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Convolve, Inc v Compaq Computer Corp, 527

Fed.Appx. 910 (CAFC. 2013), cert. denied 134 S.Ct. 801

¬ “If the parties have contracted the limits of their confidential relationship

regarding a particular subject matter, one party should not be able to

circumvent its contractual obligations or impose new ones over the other via

some implied duty of confidentiality.

¬ Indeed, the CUTSA itself compels such a result. The CUTSA states that

misappropriation occurs when a trade secret is acquired under

circumstances giving rise to a duty to maintain its secrecy. Cal. Civ. Code §

3426.1(b). Convolve disclosed its alleged trade secrets to Seagate pursuant

to the provisions of the NDA. Therefore, the "circumstances" giving rise to a

duty to maintain the secrecy of the disclosed information is dictated by the

terms of the NDA. Convolve did not follow the procedures set forth in the

NDA to protect the shared information, so no duty ever arose to maintain

secrecy of that information. As such, Convolve's argument must fail.”

¬ See also, BE, IN, Inc v Google Inc 2013 U.S.Dist. LEXIS 147047 (N.D.Cal.

Oct. 13, 2013) (Common law trade secret claim against Google denied

where there was an NDA.)

36

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Aderhold v. Car2go NA, LLC, 2014 WL

794802 (W.D. Wash. 2014)

¬ Alleged violation of the Telephone Consumer Protection Act (TCPA) which

prohibits sending SMS messages made with the prior express consent of the

called party using any automated telephone dialing system. The message

asked the consumer to enter an activation code to complete the registration

process.

¬ “Mr. Aderhold urges…that "[e]xpress consent is `consent that is clearly and

unmistakably stated.'" (quoting Black's Law Dictionary 323 (8th ed. 2004)).

He argues that because the consumer in Satterfield had to take the

affirmative step of checking a box to request promotional material, a similar

affirmative step is required in every case. As he puts it, express consent

must not only be clear and unmistakable, it must be affirmatively "stated.”

37

http://scholar.google.ca/scholar_case?case=9087916032267078834&q=car2go+aderhold&hl=en&as_sdt=2006



794802 (W.D. Wash. 2014)

¬ “Some district courts take a broad view of "prior express consent,"

suggesting that anyone who provides a cellular phone number to a

business consents to the business's use of the number to contact him

or her…

¬ Several courts have found that sending a text message to an entity for

the purpose of opting out of receiving future text messages is

nonetheless consent to receive a final text message confirming the

optout request…

¬ The court in Emanuel v. Los Angeles Lakers, Inc. found that when a

consumer sends a text message requesting a service, she consents

to receipt of a text message confirming receipt of the request…

38




794802 (W.D. Wash. 2014)

“Even if car2go had made no disclosures at all about the purposes for which it would use Mr. Aderhold's cellular number, it defies logic to contend that he did

not consent to be contacted regarding his membership application. When

people provide their telephone numbers in commercial transactions, it would be

odd to imagine that they do not consent to being contacted for purposes of

completing that transaction. Could a person who provided a telephone number

to a delivery service seriously contend that she had not consented to be

telephoned by the service to inform her that her package was en route? Could a

person who provided a telephone number to a mechanic claim that she did not

consent to be called (or texted) when her car was repaired? According to Mr.

Aderhold, if the delivery service and mechanic used an autodialer to make those

calls, then they broke the law. The court is confident that Congress did not

intend that result when it passed the TCPA. And although Mr. Aderhold is

apparently an exception, the court doubts that most customers would feel that

their privacy had been invaded by such calls. All of these considerations

strengthen the court's conclusion that Mr. Aderhold consented to the text

message he received.”

39



Apple Inc. v Motorola, Inc. 2014 WL 1646435

(CAFC, 2014)

Per Reyna J., “To the extent that the district court applied a per se rule that

injunctions are unavailable for SEPs, it erred. While Motorola's FRAND commitments

are certainly criteria relevant to its entitlement to an injunction, we see no reason to

create, as some amici urge, a separate rule or analytical framework for addressing

injunctions for FRAND-committed patents. The framework laid out by the Supreme

Court in eBay, as interpreted by subsequent decisions of this court, provides ample

strength and flexibility for addressing the unique aspects of FRAND committed

patents and industry standards in general. A patentee subject to FRAND

commitments may have difficulty establishing irreparable harm. On the other hand,

an injunction may be justified where an infringer unilaterally refuses a FRAND royalty

or unreasonably delays negotiations to the same effect... To be clear, this does not

mean that an alleged infringer's refusal to accept any license offer necessarily

justifies issuing an injunction. For example, the license offered may not be on

FRAND terms. In addition, the public has an interest in encouraging participation in

standard-setting organizations but also in ensuring that SEPs are not overvalued.

While these are important concerns, the district courts are more than capable of

considering these factual issues when deciding whether to issue an injunction under

the principles in eBay.”

40

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Apple Inc. v Motorola, Inc. 2014 WL 1646435

(CAFC, 2014)

“Applying those principles here, we agree with the district court that Motorola is not

entitled to an injunction for infringement of the '898 patent. Motorola's FRAND

commitments, which have yielded many license agreements encompassing the

'898 patent, strongly suggest that money damages are adequate to fully

compensate Motorola for any infringement. Similarly, Motorola has not

demonstrated that Apple's infringement has caused it irreparable harm.

Considering the large number of industry participants that are already using the

system claimed in the '898 patent, including competitors, Motorola has not provided

any evidence that adding one more user would create such harm. Again, Motorola

has agreed to add as many market participants as are willing to pay a FRAND

royalty. Motorola argues that Apple has refused to accept its initial licensing offer

and stalled negotiations. However, the record reflects that negotiations have been

ongoing, and there is no evidence that Apple has been, for example, unilaterally

refusing to agree to a deal. Consequently, we affirm the district court's grant of

summary judgment that Motorola is not entitled to an injunction for infringement of

the '898 patent.”

41

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42


Oracle USA, Inc. v Rimini Street, Inc., 2014

WL 576097 (D.Nev. Feb 13, 2014)

¬ Was Rimini entitled to copy Oracle software onto its own computer systems

to provide software support services to its customers by relying on their

EULAs?

¬ ”Oracle's initial argument is premised on the flawed assumption that the

rights to use and install the licensed software are restricted and tied solely to

the specific software installation media delivered by Oracle, and is in direct

contention with the express language of the City of Flint's license as well as

federal copyright law. In the City of Flint's license, Oracle granted the City of

Flint "a perpetual, non-exclusive, non-transferable license to use the licensed

Software.“…"Software" is defined as "all or any portion of the then

commercially available global version(s) of the binary computer software

programs." Nowhere does the licensing agreement require the City of Flint to

install the licensed software from the specific installation media provided by

Oracle. Rather, the license grants the City of Flint the right to install and use

"version(s)" of the licensed software. This is separate from, and in contrast

to, a right to install and use only the provided software installation media.”

43

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WL 576097 (D.Nev. Feb 13, 2014)

¬ “The court has reviewed the documents and pleadings on file in this matter

and finds that the plain, unambiguous language of Section 1.2(b) does not

expressly authorize Rimini to make copies of the licensed software. First, the

plain language of Section 1.2(b) provides that only the City of Flint may make

copies of the software. ("[the City of Flint] may [] make a reasonable number

of copies . . ."). Nowhere does this provision authorize Rimini, as a third-

party, to make a copy of the licensed software.

¬ Second, Section 1.2(b) authorizes copying of the software only for three very

limited bases: (1) a use in accordance with the terms of the license; (2)

archival and back-up purposes; and (3) disaster recovery testing

purposes. Upon review of Rimini's use of the development environments

associated with the City of Flint, the court finds that none of the

environments were created for archival, emergency back-up, and/or disaster

recovery purposes. Rather, the undisputed evidence establishes that these

development environments were used to develop and test software updates

for the City of Flint and other Rimini customers with similar software

licenses.”

44




WL 576097 (D.Nev. Feb 13, 2014)

¬ Section 1.2(c) states that "[the City of Flint] may [] modify or merge the

Software with other software." Rimini argues that because Section 1.2(c)

allows for the City of Flint to modify the software, this provision necessarily

authorizes Rimini to make a number of copies of the software to facilitate

such modifications as a "use in accordance with the terms" of the license

under Section 1.2(b)(i).

¬ However, the court finds that the right to modify the software pursuant to

Section 1.2(c) does not authorize Rimini to make copies of the software.

First, the court notes, once again, that the right to modify the software is

granted solely to the City of Flint, and not to any third-party. Id. ("[the City of

Flint] may [] modify . . . the software . . ."). Second, the right to modify the

software is a separate and distinct right from from the right to reproduce the

software…Thus, a grant of the right to modify the software does not

automatically grant a right to reproduce that software.”

45




WL 576097 (D.Nev. Feb 13, 2014)

¬ “Rimini argues that Section 14.2 expressly authorizes third-party software

support service providers, like itself, to make copies of the licensed software

on its systems in order to carry out contracted support services with the City

of Flint. The court disagrees.

¬ …the plain, unambiguous language of Section 14.2 only allows for the City of

Flint to provide "access to and use of the Software." The right to access and

use the licensed software is separate from a right to reproduce or copy the

software, and there is no evidence before the court that Rimini, as a third

party service provider, cannot perform its contracted services without having

its own copy of the software on its own systems. Further, unlike other license

provisions, the word "copy" is not found anywhere in Section 14.2. Therefore,

the court finds that the plain language of Section 14.2 does not authorize

copying of the licensed software.”

46



Taxes of Puerto Rico, Inc v Taxworks, Inc.

2014 U.S.Dist. LEXIS 37765 (D.P.Rico. 2014)

¬ Enforceability of install wrap license.

¬ YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY

WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.LICENSOR IS

WILLING TO LICENSE THE SOFTWARE TO YOU ONLY ON THE

CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS

AGREEMENT. YOU PROVIDE YOUR CONSENT TO THE TERMS AND

CONDITIONS OF THIS AGREEMENT BY INSTALLING, LOADING OR

OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE TO ALL

OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE

THE SOFTWARE.

¬ “If a "shrinkwrap" license agreement, where any assent on the part of the

consumer is implicit, is valid, then it must logically follow that a "clickwrap" license

agreement, where the assent is explicit, is valid..Here, the plaintiffs explicitly

accepted the "clickwrap", or user agreement, when they clicked on the prompt

stating "Accept & Install.“”

47

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Tremblay c. Canada (Orio Canada Inc).,

2013 CAF 225

¬ “Any development done for Orio Canada Inc. shall become the exclusive property thereof

and may not therefore be marketed or reused by Service Informatique Professionnel or any

other party.”

¬ “Thus, the case law provides unanimously that we can not oppose the holder of a copyright

assignment or exclusive licensee who is not evidenced by a writing signed by the holder of

the right in question …

¬ However, these decisions do not deal with a case where the owner of the copyright

recognized in court to have consented to the transfer of ownership of the right in question. It

seems to me an exaggerated formalism that make ineffective against a transferor a transfer

clause of copyright that he has written himself and recognizes court as governing its

relations with the transferee, and this for the simple reason that it is not signed. As I

mentioned earlier, the purpose of subsection 13 (4) and (7) of the Act, copyright is to protect

the owner of the copyright assignment against a law that is not granted clearly. Where the

transferee recognizes himself in court the assignment clause which governs its reports, the

purpose of the Act is about me filled.”

¬ Orio, however, has not made a cross-appeal against the decision of the judge trying the

assignment of copyright is unenforceable to the caller. In these circumstances, it is not for

this Court to reform this aspect of the judge's decision.” (Google translate)

48

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Tremblay c. Canada (Orio Canada Inc).,

2013 CAF 225

¬ ”As to the implied license to use, I see no error in the judge's decision

wanting that, given the circumstances, the appellant consented not only an

implied license marketing SAM modified, but also to that can be changed by

software Orio to improve marketing. In this regard, the decision of the

Supreme Court of Canada in Netupsky c. Dominion Bridge , [1972] SCR 368

appears to me analogous to the present case…

¬ There is no doubt in my opinion that the parties had in mind that the modified

SAM could not only be marketed, but that this program could also be future

improvements at the request of Orio, and that these improvements could be

made either by calling or by a third party designated by Orio. Explicitly

recognizing that "[a] ny development is Orio Canada inc. become the

exclusive property "thereof, the appellant was in fact waived exclusivity on

the development of all future enhancements audit program. The implied

license arising from all relationships between the parties therefore allows

Orio to copy the source code of SAM modified to do rework by third

parties. The trial judge therefore did not err in so ruling.” (Google translate)

49

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Your Response Ltd v Datateam Business Media

Ltd [2014] EWCA Civ 281 (14 March 2014)

¬ Must a database manager return data on contract termination and can it exercise a common

law possessory lien over the database?

¬ “I would hold that the data manager was not entitled to exercise a common law lien on the

database…it must have been implicit in the contract that when it came to an end the data

manager was under an obligation to send the publisher by electronic means a copy of the

database in its latest form…It was therefore in breach of contract in refusing to do so, unless

the contract impliedly gave it a right to withhold that information from the publisher and to

exclude the publisher from its systems until it had received payment of any outstanding fees.

For my part I do not think that there is a sufficient basis for implying a term of that kind…

¬ Although in former times the law may have looked with favour on possessory liens as

reflecting a form of natural equity, the parties to a contract of the kind under consideration in

this case are free to make express provision for their rights and obligations on termination of

their relationship and an extension of the right of self-help is to that extent less justifiable. In

any event, for the reasons I have given I do not think it is open to us to take that course,

even if we wished to.”

¬ Information cannot be property. See also, Fairstar Heavy Transport NV v Adkins & Anor

[2013] EWCA Civ 886 (19 July 2013)

50

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51


Magill v. Expedia Inc., 2014 ONSC 2073

¬ Did Expedia breach a contract by failing to disclose the details of its Tax recovery Charges

and Service Fees.

¬ The Website Terms of Use state: “By accessing or using this Website in any manner, you

agree to be bound by the [Website Terms of Use]. Please read the Agreement carefully.”

¬ “While completing the booking process, a customer wanting more information may choose

to click on “Terms of Use” hyperlinks to open new windows containing the Website Terms

of Use. If the customer accesses the link, he or she will find the following description or

explanation of the Tax Recovery Charge and the Service Fees:

¬ The tax recovery charge on hotel accommodations is a recovery of the estimated transaction taxes

(e.g. sales and use, occupancy, room tax, excise tax, value added tax, etc.) that Expedia pays to

the hotel supplier in connection with your hotel reservations. … The actual tax amounts paid

by Expedia to the hotel suppliers may vary from the tax recovery charge amounts, depending upon

the rates, taxability, etc. in effect at the time of the actual use of the hotel by our customers.

¬ The service fees compensate Expedia for its costs in servicing your travel reservation. Our service

fees vary based on the amount and type of hotel reservation.

¬ Expedia has no way of knowing whether a particular customer actually accessed the

Website Terms of Use. Although the booking path specifies that by completing the

booking, the customer has agreed to having read and accepted the Website Terms of Use,

it is possible for customers to complete bookings and enter into Reservation Contracts

without ever actually viewing the Website Terms of Use.”

52

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¬ Did customers agree to Expedia’s Terms of Use by entering into reservation

contract?

¬ “Expedia’s first argument is that the language from the Terms of Use that explain the

Tax Recovery Charge and the Service Fees do not part of the contract, the

Reservation Contract, in which Expedia actually charges for “Taxes & Service Fees.”

¬ Expedia submits that the words from the Terms of Use are part of another contract;

i.e. the contract that governs the use of its website.

¬ With respect, Expedia’s first argument makes no sense. Taxes & Service Fees are

what Expedia charges as part of making hotel reservations and the question and

answer language explaining what are those charges is an obvious part of the

contract that makes those hotel reservations. Equally, the Terms of Use that are

referred to in the Question and Answer are an obvious part of the Reservation

Contract.

¬ I agree that the Terms of Use, standing alone, are a separate or discrete contract.

The Terms of Use standing alone provide a contract for customers who use the

website but who do not go on to make a hotel reservation. However, the Terms of

Use in that separate contract become terms of the Reservation Contract for those

customers that so make a Reservation Contract.”

53




¬ “The questions upon which this class action are based turn on the language of

the Terms of Use. More precisely, did Expedia breach the Reservation Contract

by: (1) not disclosing whether the Taxes Fee was charged on the Retail Rate or

the Wholesale Rate? (2) charging the Taxes Fee based on the Wholesale Rate?

(3) not breaking out the Taxes and Service Fee into its components; or (4) not

disclosing and by infusing a profit element into the Service Fee? The answer to

all these questions are matters of contract interpretation…

¬ In my opinion, as a matter of contract interpretation the answer to all of the four

questions set out above is “no”…

¬ The most straightforward explanation for why I agree with Expedia’s third and

fourth arguments is that there is no words in the Reservation Contract

expressing a promise by Expedia: (1) to disclose that the tax fee is charged on

the Retail Rate or Wholesale Rate; (2) to charge the tax fee of the Wholesale

Rate; (3) to disclose the tax charge and the service charge separately; and (4) to

not include a profit element in the services charge.”

54



Block v ebay, Inc 14 Cal. Daily Op. Serv.

3590 (9th.Cir.2014)

¬ Enforceability of term in user Agreement that stated "We are not involved in

the actual transaction between buyers and sellers“.

¬ The first statement — "We are not involved in the actual transaction between

buyers and sellers" — contains no promissory language… Rather, the

statement is simply a general description of how eBay's auction system

works. Although Block cites Lavi v. Pelican Investment Corp., 36 F. App'x

923 (9th Cir. 2002), and Multimatic, Inc. v. Faurecia Interior Systems USA,

Inc., 358 F. App'x 643 (6th Cir. 2009), in arguing that legal obligations can be

created through present-tense statements, these cases are

distinguishable. See Lavi, 36 F. App'x at 924 (holding, in a context in which it

was clear that the pertinent statements conveyed promises, a contract

describing the sale of land in the present tense intended the property to be

transferred in the future); Multimatic,358 F. App'x at 647-48 (interpreting a

confidentiality agreement protecting trade secrets each side "possesses" to

cover both pre-existing and future trade secrets).”

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In re Zappos.com, Inc Customer Data Security Breach Litigation 2013 WL 4830497(D.Nev. Sep. 9, 2013)

“The Court also dismisses the contractual claims. Plaintiffs allege that

Zappos breached a contract to safeguard their data. But there is no

allegation of any express or implied contract. The only allegations

alleged to give rise to any contract are that customers agreed to pay

money for goods and that statements on Zappos's website indicated that

its servers were protected by a secure firewall and that customers' data

was safe. The first type of contract for the sale of goods is not alleged to

have been breached, and the unilateral statements of fact alleged as to

the safety of customers' data do not create any contractual obligations,

although if negligently or intentionally false, such statements can be the

basis of misrepresentation claims in tort. The Court dismisses the

contractual claims.”

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In re: ONLINE TRAVEL COMPANY (OTC) HOTEL BOOKING

ANTITRUST LITIGATION 953 F.Supp.2d 713 (N.D.Tex. 2013)

¬ “In the case at bar, it was impossible to complete a transaction on the Travelocity

website in the absence of affirmative assent to the User Agreement. It is not, as

Plaintiffs argue, necessary for the User Agreement to have a "scroll through"

feature; the central issue is whether or not the users were "conspicuously

presented with the agreement prior to entering into a contract." In

the RealPage case, users attempting to install software updates were not

required to scroll through the clickwrap license agreement. The RealPage court

reasoned that the Barnett holding, which found a forum selection clause in a

clickwrap agreement enforceable, did not require a "scrollthrough" feature for the

contract to be valid, stating that "[i]t was [the user's] responsibility to read the

electronically-presented contract, and he cannot complain if he did not do

so." Id. (quoting Barnett, 38 S.W.3d at 204). Such reasoning is equally applicable

here. Since the User Agreement was conspicuously presented and Plaintiffs

assented to the User Agreement by clicking the "Accept" button to complete each

online transaction, it is a valid clickwrap agreement.”

¬ See also, Starke v Gilt Groupe, Inc (S.D.N.Y. Apr. 24, 2014) (enforcing clickwrap

where terms at link not read).

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In re: ONLINE TRAVEL COMPANY (OTC) HOTEL BOOKING

ANTITRUST LITIGATION 953 F.Supp.2d 713 (N.D.Tex. 2013)

“Plaintiffs also argue that since Travelocity could at any time unilaterally

modify the User Agreement and substantially change or revoke the arbitration

clause, that clause, including its class action waiver, is illusory and

unenforceable. The Court disagrees. While it is true that "an arbitration

clause is illusory if one party can avoid its promise to arbitrate by amending

the provision or terminating it altogether," Carey v. 24 Hour Fitness, 669 F.3d

202, 205 (5th Cir. 2012) (quoting In re 24R, Inc., 324 S.W.3d 564, 567 (Tex.

2010)) "[t]he crux of this issue is whether [the promisor] has the power to

make changes to its arbitration policy that have retroactive

effect."Id. Travelocity's User Agreement states that "Travelocity may at any

time modify this User Agreement and your continued use of this site or

Travelocity's services will be conditioned upon the terms and conditions in

force at the time of your use." Unlike the clause in Carey, which was silent on

the issue of retroactivity, see Travelocity's clause explicitly precludes

retroactive application of any changes.”

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5381 Partners LLC v Sharesale.com, Inc. 2013 WL

5328324, (E.D.N.Y., Sept. 23, 2013)

¬ “Plaintiff argues that it is not bound by the forum selection clause because the

Merchant Agreement never appeared on the screen during sign up and

activation. As to the fact that plaintiff had to click on a hyperlink to view the

Merchant Agreement (rather than view the agreement on the same page

where it had to indicate its assent to the terms), the Court agrees with the

Fteja court's analogizing of this situation to cruise tickets — plaintiff was

shown precisely where to access the Merchant Agreement before it agreed to

them, and it should have clicked on them in the same way that one is

expected to turn over a ticket to learn of its terms. Moreover, plaintiff was

required to click to activate its account, and the button plaintiff was required to

click appeared next to the statement, "By clicking and making a request to

Activate, you agree to the terms and conditions in the Merchant Agreement."

Thus, plaintiff had to click to denote its acceptance of the Merchant

Agreement, which contained the forum selection clause. In such

circumstances, "`[a] reasonably prudent offeree would have noticed the link

and reviewed the terms before clicking on the acknowledgement icon.'“

¬ See also, Zaltz v Jdate 952 F.Supp.2d 439 (E.D.N.Y.2013).

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Rudgayzer V Google Inc. 2013 WL 6057988

(E.D.N.Y. NOV 15, 2013)

¬ Enforcement of Google’s forum selection clause in clickwrap for Gmail

related to Google’s alleged use of Gmail users’ public profiles in Buzz.

¬ ‘The forum-selection clause is enforceable. First, the forum-selection

clause was reasonably communicated to the plaintiffs. Google requires

all users, after seeing a screen listing the terms or a link to the terms,

to agree to the terms of use before creating an email account.

Agreements such as this — that require a user's assent as a

prerequisite for using the services and are known as "clickwrap"

agreements — are considered reasonably communicated.”

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NEWELL RUBBERMAID INC. v. Storm,

(Del. Ct. Ch. Mar. 27, 2014)

“The Court concludes that Newell's method of seeking Storm's agreement to the

post-employment restrictive covenants, although certainly not the model of

transparency and openness with its employees, was not an improper form of

contract formation. Storm, to accept her RSUs, was directed to a screen which

informed her in several places that she was agreeing to the 2013 Agreements.

Storm admits that she clicked the checkbox next to which were the words "I have

read and agree to the terms of the Grant Agreement." This functions as an

admission that she had the opportunity to review the agreement (even if she now

states she did not read it despite her representation that she did) upon which

Newell was entitled to rely. Her actions of clicking the checkbox and "Accept"

button were manifestations of assent. She even admits that she clicked on the

hyperlink which contained the restrictive covenants when she states that the

procedures for accepting the 2013 Agreements were the same as the earlier RSU

awards she accepted which included a pop-up screen with a "lengthy scrolling

message which discussed [her] RSU award.“ Storm thus assented after being

provided with, and after acknowledging, actual notice.”

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