New York litigators are familiar with CPLR § 2104, which requires all stipulations, including stipulations of settlement, to be “in a writing subscribed” by a party or the party’s attorney.  Thus, to ensure that the settlement of a dispute is binding, an attorney should obtain the settlement terms in writing and have them “subscribed” by the opposing party or that party’s attorney.   Under New York law, however, this requirement does not necessarily require a physically signed formal settlement agreement.  In the world of electronic communication, New York courts have generally expanded the scope of what constitutes a "writing subscribed by him or his attorney" pursuant to CPLR §2104 to include certain electronic communications, such as email. 
 
For example, in Forcelli v. Gelco, 109 A.D.3d 244, 251 (2d Dept. 2013), the Court stated that "it would be unreasonable to conclude that email messages are incapable of conforming to the criteria of CPLR § 2104 simply because they cannot be physically signed in the traditional fashion.”  As a result, the Court held that an email message containing the material terms of a settlement and the typed name of the sender (as opposed to an automatically generated signature line) constituted a subscribed writing within the meaning of CPLR §2104.
 
The writing and subscription requirement, however, does not apply if the parties’ dispute has not resulted in the filing of “an action.”  If a dispute between parties has not yet proceeded to actual litigation, the traditional rules governing contract formation apply.  A settlement agreement is enforceable where there is an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound.  See 22 N.Y. Jur. 2d, Contracts § 9; Kowalchuk v. Stroup, 61 A.D.3d 118, 121 (1st Dep’t 2009).  To determine whether there has been a meeting of the minds demonstrating mutual assent and intent to be bound, a court should examine the words and deeds that constitute objective signs in a given set of circumstances. See 22 N.Y. Jur. 2d, Contracts § 28; Kowalchuk, 61 A.D.3d at 121.
 
Significantly, provided there is objective evidence establishing that the parties agreed on the terms and intended to be bound, a settlement occurring before a lawsuit is filed need not be signed in order to be an enforceable agreement, whether oral or written.  See, e.g., Mun. Consultants & Publishers, Inc. v. Town of Ramapo, 47 N.Y.2d 144, 148-49 (1979); Kowalchuk, 61 A.D.3d at 118.  Once formed, a settlement agreement is binding and enforceable even when one party later refuses to execute a formal written agreement.  Forcelli, 109 A.D.3d at 247-48 (finding binding e-mail agreement, where defendant sent e-mail stating in pertinent part “Per our phone conversation today, May 3, 2011, you accepted my offer of $230,000 to settle this case. . . . You also agreed to prepare the release . . .  Please forward the release and dismissal for my review. Thanks Brenda Greene.”); Kowalchuk, 61 A.D.3d at 121-22, 124 (holding that settlement agreement was formed by initial e-mail communications between the parties’ counsel even though parties were subsequently negotiating formal settlement agreement).
 
In the event that a party does not want to be bound until a formal settlement agreement and release is executed, the party’s attorney should make it clear that the contract is not binding until a formal document is completed and executed.  See, e.g., Kowalchuk, 61 A.D.3d at 123. 

Seeking Alpha (SA), an online news and opinion forum primarily focused on financial markets, made the news itself about six months ago when an anonymous post incurred the legal wrath of biopharmaceutical company NanoViricides (NNVC).  On February 11, 2014, a contributor using the pen name “Pump Terminator” published a rather scathing review of the drug company, including discussion of suspected questionable trading and management activity and shareholder violations, ultimately recommending the stock as a “strong sell.”  According to a March press release announcing their decision to take action against SA, NNVC alleges that the post was “defamatory, malicious and libelous,” contained “factual inconsistencies,” and directly contributed to a 23% drop in their stock price on the day that the piece was published.  NNVC, which focuses primarily on research and development of antiviral drugs, filed a pre-action disclosure petition against SA, demanding that they disclose the identity of the anonymous poster so that they could pursue a libel case against him or her.  The author of the post self-identified as a short-seller of the stock, further arousing NNVC’s suspicions that the negative coverage was a premeditated attempt to manipulate the market and ultimately profit from the sharp decline in share price.  When SA chose not to remove the offending post from their virtual bulletin board, NNVC denounced the investment analysis website as being a “complicit agent in the criminal act(s) perpetrated by the article author and collaborators-in-action.”

At the end of June, New York Judge Cynthia S. Kern dismissed NNVC’s suit against SA, releasing them from any obligation to divulge the identity of “Pump Terminator,” as the court had determined that the post was not defamatory and was considered “protected opinion and not actionable as a matter of law."  The court found that NNVC did not sufficiently demonstrate that that article in question could be constituted as defamation.  The post contained clear disclosure that its content reflected the author’s own opinions, and any facts that were presented were accompanied by links to sources which readers were encouraged to review in order to reach their own conclusions.  Furthermore, as the courtnoted, the fact that the author’s opinions were published in the “unique context of the Internet,” and considering such fora are often rife with hyperbole and “the repository of a wide range of casual, emotive, and imprecise speech,” the greater context of the statements signals to the reader that the article must consist of the author’s personal opinion.  The author’s repeated use of phrases such as “we believe” and “it seems to us” clearly reinforces this point, even without the court’s having to figure out a way to apply foundational constitutional principles to this contemporary situation.

Presumably, investors take anonymous opinion pieces like this with a grain of salt, and do not rely on  recommendation to make any drastic trading decisions.  The nature of Seeking Alpha’s crowdsourcing platform is summed up by the website’s tagline: "Read. Decide. Invest."  It is a forum based on what the site’s editor-in-chief describes as a Socratic approach that encourages independent (and sometimes anonymous) investors to freely express their opinions, debate ideas, and make informed choices based on their own due diligence.  Clearly expressing the court’s support for the rights of a free press, Justice Kern concluded her decision by emphasizing that “[I]t is paramount in an open and free society that we protect the anonymity of those whose ‘publication is prompted by the desire to question, challenge and criticize the practices of those in power without incurring adverse consequences.’”  In addition to being an important and precedent-strengthening ruling for Seeking Alpha, this decision allowing pseudonymous posts is an important free speech victory.

After more than a year of litigation and battling it out on social media, comedian and famed podcaster Adam Carolla has settled his case with Personal Audio LLC, the company that sued him in January 2013 for allegedly infringing on their patent for a “system for disseminating media content representing episodes in a serialized sequence.”  Personal Audio considers itself to be a holding company, with their main activities being asserting and licensing the patents which they own.  This very activity, coupled with the fact that they do not currently manufacture any products or services, leads many people to consider them a “patent troll.”  The nonpracticing entity had initiated lawsuits against several podcasters, claiming that their patent covers all “episodic content” and therefore, others’ online distribution and queuing-up of podcast content is in direct violation of it.  (Interestingly, the patent originated with Personal Audio founder Jim Logan’s decidedly less-modern mail-order cassette tape distribution model.)

The Electronic Frontier Foundation (EFF), also calling foul, filed an inter partes review back in October 2013, petitioning the US Patent and Trademark Office to invalidate the patent, pointing out, among other things, the existence of prior art which should have barred the patent from being granted in the first place.  Over the last few months, Personal Audio dropped the claim against the podcasting defendants named in their lawsuit, once they understood that even Carolla, holder of the Guinness World Record for most downloaded podcast, was not making enough money off of their patent to warrant pursuing litigation in this case.  At least…they tried to drop the case.  In what some might perceive to be a “man bites dog” scenario, Carolla refused the offer to dismiss the suit against him, and even spearheaded an effort to take down Personal Audio, enlisting the aid of his international fan base and raising over $475,000 to help offset the legal fees involved.  His stance was centered on the assumption that Personal Audio would not truly let go of this claim, but would eventually circle back if and when podcasting matures to a point of profitability. 

Fearing that this posed a looming threat to the development and future business model of this growing field, Carolla—together with the parallel efforts of the EFF—decided not to go down without a fight.  Brad Liddle, Personal Audio’s CEO, called Carolla’s campaign “ludicrous” and “a cynical exploitation of the publicity power he enjoys as an entertainer,” considering that he was fundraising for a lawsuit that he didn’t need to defend anymore; Liddle wondered whether Carolla was hanging on to the case just to have more fodder for his podcasts, generate sympathy and ratings, or simply to “get his fans to fund his future.” 

The parties reached an agreement over the last week, and though the terms of their settlement are confidential and will likely remain under wraps until their agreed-upon “quiet period” concludes at the end of September, a number of things may be safe to assume.  First, Carolla’s counterattack might just be enough to keep Personal Audio at bay (for now), and make them think twice before bullying podcasters in the future.  Their very own press release specifically states that their discovery found podcasters’ profits to be so insignificant as to make it not worth litigating “over the smaller amounts of money at issue.”  The existence of that documented evidence alone might be enough deterrence against would-be lawsuits targeting podcasters.  Not all parties on the receiving end of a patent troll’s attention may have the fame and resources that Carolla does, but his tenacity still provides an effective lesson to those who might face similar lawsuits in the future. 

 Second, and perhaps more importantly, the fact that this was settled out of court deprived Carolla of the chance to actually invalidate the patent in question.  Furthermore, unlike the EFF’s challenge of the patent—which, according to the USPTO, is limited to presenting evidence “based on prior art patents or printed publications”—Carolla would have had the opportunity to present a wider array of evidence to prove prior art.  All this now leaves an opening for Personal Audio to try asserting this particular (and broadly-written) patent again against other parties for the remainder of their approximately two-decade hold on the intellectual property.  A Carolla victory would essentially have meant a victory for the general public, who would then be able to freely use (or continue using) the technology without fear of litigation. 

In the meantime, EFF’s petition is being actively reviewed by the Patent Trial and Appeal Board, which has preliminarily found that there is a “reasonable likelihood” that they will “prevail in showing unpatentability” of the claims they are challenging in Personal Audio’s so-called “podcasting patent.”  Nevertheless, Personal Audio is not letting its latest dead-end with podcasters deter them from continuing their licensing efforts elsewhere. They are still targeting the big three television networks, ABC, CBS, and NBC, over their release of “episodic [video] content” on the internet.  Podcasters may not have been worth their time, but in light of their past victory over Apple and other technology giants (including Samsung, Motorola and SanDisk) who are now licensees to some of the company’s patents, it is clear that Personal Audio is not afraid of pursuing “bigger fish,” particularly when their previous results have been so lucrative.

In late January of this year, one of the leading interactive mobile entertainment companies in the world published an open letter on its website, addressing the debate that has been brewing about its intellectual property protection practices.  In this press release, King’s cofounder and CEO, Riccardo Zacconi, discussed his company’s belief that developers “have every right to protect the hard work they do and the games they create,” and pledged that King would continue to take “right and reasonable” action to defend themselves against those they believe are ripping off their IP.  One of the company’s most valuable assets is their immensely popular “Candy Crush Saga.”  Though the game itself is free to download and play, with millions of people playing it on their mobile devices every day, the virtual items available for purchase within the game reportedly helped the company earn over $450 million in revenue in last year’s December quarter.  Those figures are pretty remarkable, especially considering that the game launched less than two years ago.  An independent developer named Albert Ransom, however, is not impressed. Two years before Candy Crush Saga entered the marketplace, Ransom’s company, Runsome Apps, released a mobile game entitled “CandySwipe” in memory of his late mother.  According to Ransom, King’s flagship game is causing much consumer confusion and significant harm to his business.  Though many others have made the accusation, Ransom stops short of calling Candy Crush Saga a blatant copy of his work, for which he filed for trademark in 2010.  After King tried to register the Candy Crush Saga mark two years later, Ransom opposed their application and had been fighting it since.   King retaliated this February by adding a counterclaim for cancellation of Runsome’s CandySwipe trademark registration.  Their case was further strengthened by the fact that, earlier that month, they had officially acquired the rights to the “Candy Crusher,” a game that predated Runsome’s CandySwipe by two years.  As it takes five years of commercial use before the USPTO will consider a term “incontestable,” King’s ownership of the Candy Crusher mark—which was established in 2008—essentially outweighs their need to continue pursuing their US application for the “Candy” trademark, which Runsome had been opposing.  (King has no plans of abandoning their trademark of the term in the EU, however.)  Now that it has legal claim to the precedential Candy Crusher title, King can use it as ammunition in any future cases against companies trying to capitalize on a candy-related mark.

In his own open letter to King in response to this latest development, Ransom begrudgingly concedes defeat, saying “you win…I hope you’re happy taking the food out of my family’s mouth… your move to buy a trademark for the sole purpose of getting away with infringing on the CandySwipe trademark and goodwill just sickens me.”  (The original letter has since been taken down, leaving only a message thanking the public for their outpouring of support.)  Even the International Game Developers Association has issued a statement qualifying King’s recent conduct as “overreaching,” “predatory,” and contradictory to Zacconi’s own January statement, and vows to look into the matter more comprehensively.  Presumably, the folks at King are hoping that they can put all of these concerns to rest before their IPO, which is expected to debut later this year.  However, the disputes above—together with a separate case that they’ve brought against another developer over its use of the word “saga”—have been garnering the mobile entertainment giant a lot of bad press, particularly amongst the extremely vocal gaming community.  Social media channels and comment sections on articles about the ongoing trademark clashes have been flooded with people saying that they are uninstalling the Candy Crush game and pledging never to buy a King app again.  This does not bode well for King’s investment prospects if they are drawing the ire of the very demographic they claim to serve.

It’s been nearly two years since the Obama Administration announced its Big Data Research and Development Initiative in March 2012, committing to improve the ways and means that the Federal government accesses, organizes and analyzes huge quantities of data.  The initiative promised to develop and harness state-of-the-art technologies to accelerate and “transform our ability to use Big Data for scientific discovery, environmental and biomedical research, education, and national security.”  Now, after the maelstrom of the Snowden revelations, and the ensuing (and ever-brewing) debate about NSA surveillance policies, the White House has launched a new program to review how the public and private sectors are gathering and utilizing “big data,” and the implications of such analysis when it comes up against privacy issues.President Obama announced in a January 17th speech that he had appointed his counselor, John Podesta, to spearhead this review.   Less than a week later, Podesta posted an overview of his 90-day plan to tackle his daunting task: Audit current procedures, anticipate technological trends, and determine whether additional protections need to be implemented in order to balance the benefits of potential innovation and knowledge gleaned from massive consumer data–collection with the potential concerns that inevitably result from it, whether they are a matter of privacy, public policy, economy, or national security.  As this may involve further government research, funding, and/or policy changes, Podesta’s team will be collaborating with numerous industry experts, government officials, academic institutions, think tanks, civil liberties groups, and other organizations here and around the world to develop the most comprehensive and robust plan of action.

This initiative was introduced at the tail end of the President’s outlining of numerous sweeping reforms to US intelligence programs, including the NSA.  Considering the timing, some people question whether this program is a long-awaited Executive acknowledgment of the privacy risks of big data, or simply a ploy to distract the nation from the NSA controversy.  Others welcome the attention and believe that, in addition to the anticipated improvement of consumer privacy, these expanded efforts to deal with big data will contribute to the creation of millions of IT jobs globally.  Meanwhile, various groups have been petitioning to encourage the “meaningful public participation in the development of this important policy,” insisting that the public “should be given the opportunity to contribute to the…review of ‘Big Data and the Future of Privacy’ since it is their information that is being collected and their privacy and their future that is at stake.”  With about 60 days remaining to Podesta’s timeline, it will be interesting to see if and how this review will take into account the input of all stakeholders.