3 - Moderate Impact
Action: Corporate policies should be reviewed for possible adjustment 

Details: Brain Research Labs, LLC, et al. v. Tom Clarke, et al.,  491932 (2010) is a case arising from the San Francisco Superior Court and presents an interesting judicial analysis of the use of social media within the confines of a class action suit.  The court ruled that that a Ropers, Majeski, Kohn & Bentley partner who uploaded a YouTube video reaching out to potential class action members cannot use California's anti-SLAPP law to fend off a defamation suit. In denying the anti-SLAPP motions by partner Thomas Clarke Jr. and Ropers Majeski, Superior Court Judge Harold E. Kahn reasoned that Clarke's allegedly defamatory YouTube comments against the maker of a dietary supplement amounted to an advertisement and thus fall short of being protected.

Of note, Judge Kahn reviewed the case law submitted by counsel for Ropers Majeski and Clarke in support of their Anti-SLAPP motions (i.e., Rubin v. Green, 4 Cal.4th 1187, a 1993 California Supreme Court decision that held that the solicitation of clients is protected by litigation privilege) and distinguished that case from the case at hand. Namely,  the attorneys in the Rubin case had directly reached out to potential clients with a known connection to the potential litigation. While in the Brain Research Labs case, “.. the YouTube video is potentially available to every English speaking individual in the world with an Internet connection."

How Does This Affect My Enterprise?

This case is interesting for several reasons, but most notably the case is consistent with the warnings that Recommind and others have been making for many months about the information risks associated with social media. 

• Companies (including law firms and professional services firms) should review their internal policies regarding the business uses of Web 2.0 tools such as Twitter, Facebook, LinkedIn and YouTube.
• Using mass-communication vehicles like YouTube, Facebook, Twitter and LinkedIn entails significant risks, including legal, compliance and reputational.  Companies must evaluate these risks versus the benefits to be gained.
• Companies must determine whether employees are permitted to use these mass communication vehicles and to what extent.  For example, should all uses be prohibited or should they be evaluated and pre-approved by certain executives such as  a corporate communications executive, the chief risk officer, the chief operating officer, general counsel and/or the managing partner?
• If your company permits the use of these Web 2.0 tools – are there the proper disclaimers and protections in place?
• Has your company conducted adequate training to enlighten employees about the risks and permitted uses of Web 2.0 tools?
• Finally, this will likely be one of many legal cases in 2010 and beyond where the use of Web 2.0 tools are judicially examined.