Tag: litigation

Forced Arbitration: An Analysis of When Alabama Courts Can Issue Preliminary Injunctions in Disputes Otherwise Subject to Arbitration

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Photo Credit: NombergLaw, How Forced Arbitration Can Impact Your Alabama Lawsuit, https://nomberglaw.com/alabama-injury-compensation-guide/forced-arbitration-personal-injury-cases/ (last visited Jun. 24, 2023).

Authored By: Zach Chiepalich, Student Materials Editor

September 11, 2023

Arbitration agreements are included in nearly every commercial transaction today. Whether you are buying a car, entering into a long-term commercial agreement, or signing an employment contract, chances are that you will have to agree to some form of arbitration. Arbitration is an agreement between two parties where each party waives their right to sue the other and instead agrees to submit any disputes to a neutral third party for a final decision that is not appealable.[1] The majority of arbitration clauses in contracts include a forced arbitration clause which according the National Consumer Law Center “is a get-out-of-jail card that takes away [a party’s] day in court, forcing them into a tribunal that is often biased, secretive, and lawless.”[2] While this sounds and often is harsh, arbitration does have some benefits for both parties because it allows them to reach a relatively quick resolution without costly and drawn-out litigation.[3] Arbitration is criticized by many as unfair because the arbitrators are often corporate attorneys who are far more likely to rule in favor of a business in a dispute.[4] According to a study conducted by the Consumer Financial Protection Bureau, over 90 percent of disputes that are resolved in arbitration are decided in the business’s favor.[5]

Parties adjudicating their claims in arbitration must first determine whether the Federal Arbitration Act (FAA) applies to their claim. The FAA requires that arbitration agreements be in writing, relate to a commercial or maritime matter, and state that the parties agreed to arbitrate any dispute that arises.[6] The Alabama Arbitration Act (AAA) is codified in Ala. Code §§ 6-6-1 through 6-6-16 (1975) and mirrors much of the FAA.[7] Alabama state courts apply the federal FAA standard when determining whether to compel arbitration and must decide whether there is a valid agreement to arbitrate.[8]  To make this determination, the courts use contract law to determine whether there was a valid offer, acceptance, consideration, and mutual assent when the parties agreed to arbitration.[9] Since arbitration agreements are at every turn today, the question arises, can a plaintiff still seek injunctive relief from Alabama courts even if the contract in question compels arbitration?

This question was recently answered by the Alabama Supreme Court in Hyundai Construction Equipment Americas, Inc. v. Southern Lift Trucks, LLC.[10] This case involved a commercial sales contract between Hyundai and Southern that quickly turned ugly. Southern filed an action in Alabama State Court alleging that Hyundai had breached two dealership agreements by demanding Southern abide by stipulations not in the original agreement or lose the contracts altogether.[11] When Southern refused to comply with these new demands, Hyundai notified them that they were terminating the agreements and entering into a new sales and service agreement with one of Southern’s competitors.[12] Not surprisingly, Southern sued Hyundai for breach of contract, tort, conspiracy, declaratory judgment, and sought a preliminary injunction keeping the contract in place and precluding Hyundai from entering into the new contracts with Southern’s competitors.[13] Southern then ran into every defendant’s best friend, an arbitration agreement.

Despite the arbitration agreement, Southern aggressively sought the preliminary injunction to prevent Hyundai from continuing to give business to Southern’s competitors. Hyundai argued that the trial court did not have jurisdiction to grant a preliminary injunction in this case because the disputes were subject to arbitration.[14] Hyundai filed a motion to dismiss the complaint and compel arbitration pursuant to the terms of the sales agreement that stated “All disputes between the parties relating to or arising out of this Agreement… shall be resolved by arbitration.”[15] The trial court denied Hyundai’s motion to compel arbitration, granting Southern’s motion for a preliminary injunction.[16] Hyundai appealed both of these decisions, and the Alabama Supreme Court was left to decide whether the trial court had the authority to grant a motion for a preliminary injunction for a dispute that was subject to arbitration.

The Alabama Supreme Court explained that trial courts have the ability to issue a preliminary injunction to “maintain the status quo between the parties, even when the dispute should be sent to arbitration.”[17] A motion to compel arbitration does not serve as an adjudication on the merits or terminate the underlying action.[18] There were two contracts that Southern sought to enjoin Hyundai from violating. The court found that a preliminary injunction for the first contract, labeled the construction-equipment agreement, was improper because “Southern had not sold a single piece of construction equipment [in over a year].”[19] Therefore, a preliminary injunction “was not necessary to preserve the status quo” because Southern would not suffer any immediate harm by the court’s failure to issue an injunction. [20] However, the second contract, labeled the forklift agreement, was a different story. Southern argued that they had made significant investments to serve as a dealer of Hyundai’s lift-truck equipment. Southern argues that they were legally permitted to “bring a civil action… to enjoin further violations” of the forklift agreement with Hyundai.[21]  Hyundai responded that Southern was not entitled to the injunction because Hyundai had not “terminated” the agreement but rather they “added another dealer.”[22] The court evaluated the status quo and found that “[s]trong sales numbers are the status quo” and that Southern had suffered harm to its reputation and goodwill; consequently, the Alabama Supreme Court upheld the trial court’s grant of the preliminary injunction.[23] The court explained that an injunction is not an “indefinite” order, and it will only remain in effect until the dispute is resolved in arbitration.[24]

This case clarified that Alabama courts can issue preliminary injunctions only to “maintain the status quo between the parties, even when the dispute should be sent to arbitration.”[25] The next question that arises is at what point a party should seek a preliminary injunction instead of simply resolving the dispute in arbitration? Parties to a dispute should weigh the costs and benefits of a preliminary injunction and only petition a court for injunctive relief when they suffer economic or reputational harm. Alabama courts will issue preliminary injunctions to “maintain the status quo” between the parties while the claims are being decided in arbitration. [26] Therefore, preliminary injunctions can be a valuable tool that attorneys use to prevent ongoing damage to their clients while a dispute is pending resolution in arbitration.

[1] NombergLaw, How Forced Arbitration Can Impact Your Alabama Lawsuit, https://nomberglaw.com/alabama-injury-compensation-guide/forced-arbitration-personal-injury-cases/ (last visited Jun. 24, 2023).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Michael P. Taunton and Gregory Carl Cook, Compelling and Staying Arbitration in Alabama, Practical Law, 2017.

[7] Id.

[8] Id; see also Am. Gen. Fin., Inc. v. Branch, 793 So. 3d 738 (Ala. 2000).

[9] See Baptist Health Sys., Inc. v. Mack, 860 So. 2d 1265 (Ala. 2003).

[10] SC-2022-0675, 2023 WL 3402311, *1 (Ala. May 12, 2023).

[11] Alex Bein, Alabama Supreme Court Clarifies Courts’ Authority to Issue Preliminary Injunctions in Disputes Subject to Arbitration, JDSUPRA, Jun. 23, 2023.

[12] Hyundai Construction, 2023 WL 3402311, *2.

[13] Alex Bein, Alabama Supreme Court Clarifies Courts’ Authority to Issue Preliminary Injunctions in Disputes Subject to Arbitration, JDSUPRA, Jun. 23, 2023.

[14] Hyundai Construction, 2023 WL 3402311, *10.

[15] Hyundai Construction, 2023 WL 3402311 at *2.

[16] Id.

[17] Hyundai Construction, 2023 WL 3402311, *10; Spinks v. Automation Pers. Servs., Inc., 49 So. 3d 186, 190 (Ala. 2010); Holiday Isle, LLC v. Adkins, 12 So. 3d 1173, 1177 (Ala. 2008) (stating that the “trial court had jurisdiction to enter a preliminary injunction to order equitable relief to preserve the status quo” and reasoning that the American Arbitration Association Commercial Rules recognize such an option).

[18] Michael P. Taunton and Gregory Carl Cook, Compelling and Staying Arbitration in Alabama, Practical Law, 2017.

[19] Id.

[20] Id. (internal quotations omitted)

[21] Ala. Code § 8-21B-13 (1975).

[22] Hyundai Construction, 2023 WL 3402311 at *10.

[23] Id.

[24] Id.

[25] Id.

[26]  Id.

1 New Notification “You Have Been Served”: How the Evolving World of Social Media Will Impact Service of Process

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Photo Credit: Jetsy Beatz, How to Send a Networking DM to Instagram That Works, Entrepreneur, (Nov. 18, 2020) https://www.entrepreneur.com/starting-a-business/how-to-send-a-networking-dm-on-instagram-that-works/358968.

Authored By: Claire Tomberlin

July 31, 2023

The last thing that an individual expects when getting a text message or a notification on Instagram, Facebook, or other social media platform is to learn that they have been served with legal papers. With the use of social media being at an all-time high, courts have been faced with the question of whether service via social media is an acceptable alternative for in-person service.

Historically, a court must have personal jurisdiction over a defendant and the defendant must be personally served for service to be deemed proper.[1] But what does being personally served mean? Traditionally, an individual is personally served when a copy of the summons and complaint is given to either the individually personally, someone of suitable age at the individual’s dwelling, or to “an agent authorized by appointment or by law to receive service of process.”[2] While this may seem restrictive, the methods that have been permitted by courts to satisfy the personal service requirement have been relaxed and expanded throughout the years.[3]

In 1945, the Court in International Shoe Co. v. Washington established that in-person service of process is not necessary to satisfy the service requirement.[4] The standard was clarified to ask whether the method of service was “reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”[5] This expansion included service of process by mail and by publication in a widely read newspaper.[6] These new forms of service still presented problems though, such as when a defendant is hard to locate or perhaps misdelivery of the mail.[7] Now, with the world evolving and functioning mainly through technology, can these problems be prevented?

Service processers have begun to take advantage of the use of social media and have tried to use it to properly serve notice on individuals. While this may seem valid, some courts have been hesitant to fully accept the way that the world is virtually changing. 4.80 billion people around the world use social media and visit around 6.6 different platforms each month.[8] The average person spends 2 hours and 24 minutes per day on social media which is equivalent to 15 percent of an individual’s waking hours.[9] If the world spends such a significant amount of time on these platforms, it seems that using social media as a form of service would be “reasonably calculated to apprise interested parties of the pendency of the action.”

In 2008, Australia became the first country to allow service of process through social media, allowing service through Facebook after personal service and publication turned out to be unsuccessful.[10] Canada and New Zealand soon followed in Australia’s footsteps, again allowing service through the popular media outlet, Facebook.[11] What court in the United States would be brave enough to take this leap of faith?

In 2011, the Fourth District Family Court of Minnesota became the first court in the United States to allow service of process via social media.[12]  In Mpafe v. Mpafe, the court allowed service to the defendant through e-mail, Facebook, and Myspace.[13] Since, other courts have begun to allow this type of service as well.[14] To determine whether this form of service would be proper, the courts have analyzed if the defendant could be served by conventional means, “if the relief sought was appropriate for service by publication”, and if this form of service would violate the individual’s due process rights.”[15] Most courts have allowed alternative service to include electronic service as long as it is a reliable form of contact, especially when individuals and entities are not required to have a physical address. Despite wanting to eliminate defendants’ avoidance of service, some judges prefer to stick to the old school ways and refuse to get on board with service via social media. Recently in Florida, an attempt to serve Shaquille O’Neal via Twitter and Instagram was deemed to be “factually unsupported and legally insufficient” even after several attempts to serve him at his residences.[16] Is it more reasonable to allow service through an Instagram account or make process servers go to extremes like throwing a stack of papers in front of a speeding car?[17]

While a traditional method of service of process may be preferred, it is not always practical. The question now is whether an adoption for service via social media will bring more problems than it solves. This form solves a lot of problems such as timeliness and use of money. Documents sent by social media or by text message comes across instantaneous, so it would be an efficient means of service of process.[18] It also allows service upon individuals when their physical location is not known, saving money and time trying to track down a hard-to-find defendant. Serving legal papers via social media is also an inexpensive way to complete the process.[19] All of this seems to be seamless and secure, but what route must be taken if it cannot be guaranteed that the individual checks their social media, email, or texts?[20] A guideline giving a time frame of when the individual must have logged into their social media accounts in order to be deemed as reliable could be a reasonable solution.[21]

With the increase of judges allowing service by electronic communication, more guidance about how to effectively use these methods is needed. Currently, with the answer to a request of service via social media depending on if the demand is in front of an old school judge or not further hinders the goal of having a fair judicial system. The courts that are hesitant to transition over into the new electronic world may be less reluctant if a universal standard for analysis of when this alternative method is sufficient is developed. With the extreme use of social media and electronic communication, there will be a high demand for it in the future, and it may become a common way to locate and communicate with individuals.

[1] Pennoyer v. Neff, 95. U.S. 714, 722-27 (1877).

[2] Fed. R. Civ. P. 4(e)(2).

[3] Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

[4] Id.

[5] Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 318-19 (1950).

[6] Id. at 318-19 (establishing that where U.S. was effective, publication in a newspaper was not a sufficient way of service).

[7] See Fed. R. Civ. P. 4(c)(2)(A); Kevin W. Lewis, Comment, E-Service: Ensuring the Integrity of International E-Mail Service of Process, 13 U.L. Rev. 285, 302 (2008).

[8] Kepios, Global Social Media Statistics, Datareportal, https://datareportal.com/social-media-users (last visited July 4, 2023).

[9] Id.

[10] John G. Browning, Served Without Ever Leaving the Computer: Service of Process via Social Media, 73 Tex. B.J. 180, 181 (2010).

[11]  Keely Knapp, Comment, #serviceofprocess@socialmedia: Accepting Social Media for Service of Process in the 21st Century, 74 La. L. Rev. 547, 570-71 (2014).

[12] Mpafe v. Mpafe, No. 27-FA-11-3453 (D. Minn. May 10, 2011), available at https://www.scribd.com/document/70014426/Mpafe-v-Mpafe-order#

[13] Id.

[14] See Baidoo v. Blood-Dzraku, 5. N.Y.S. 3d 709, 712-13 (N.R. Sup. Ct. 2015) (allowing service via Facebook when defendant could not be found); St. Francis of Assist v. Kuwait Financial House, 2016 WL 5725002 (N.D. Cal. Sept. 30, 2016) (permitting service on a foreign defendant via Twitter); Seaboard Marine Ltd., Inc. v. Magnum Freight Corp., 2017 WL 7796153, at *2 (S.D. Fla. Sept. 21, 2017) (allowing service through email when the defendant evaded service); see also David Zaslowsky, Court Authorized Service of Process by Twitter on Crypto-Influencer,  Blockchain (May 8, 2023) https://blockchain.bakermckenzie.com/2023/05/08/court-authorizes-service-of-process-by-twitter-on-crypto-influencer/. (“The court said that e-mail, social media, and posting on a designated website were reasonably calculated to give notice.”)..

[15] K.A. v. J.L., 161 A.3d 154, 158 (N.J. Super. Ct. Ch. Div. 2016).

[16] David Steele, Shaq Couldn’t Be Served Via DM, But Plenty of Others Can, Law360 (May 12, 2023).

[17] Id.; see also Ryan Boysen, In Trying To Dodge Service, Shaq Is Playing A Losing Game, Law360 (May 19, 2023) (“Process servers claim to have finally served O’Neal a few weeks ago by throwing a stack of legal papers at his speeding in car in Georgia.”).

[18] See Jennifer Hord, How SMS Works, How STUFF WORKS, http://computer.howstuffworks.com/e-mail-messaging/sms.htm (last visited Oct. 29, 2012).

[19] See Angela Upchurch, “Hacking” Service of Process: Using Social Media to Provide Constitutionally Sufficient Notice of Process, 38 U. Ark. Little Rock L. Rev. 559, 560 (2016) (“Social media, by contrast, is a free medium, and the user can both receive and send information.”).

[20] See Doe v. Hyassat, 337 F.R.D. 12, 15-16 (S.D. N.Y.  2020) (denying service via Facebook without evidence demonstrating the Facebook account belonged to the defendant or that the defendant regularly used the account).

[21] See Melodie M. Dan, Social Networking Sites: A Reasonably Calculated Method to Effect Service of Process, 1 Case W. Res. J.L. Tech. & Internet 183, 216-18 (2010).

Bear Arms: Bruen and the Future of 18 U.S.C. § 922

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Photo credit: https://www.istockphoto.com/photo/united-states-constitution-and-gun-rights-gm697763612-129248465 (last visited: July 3, 2023).

Authored By: Aliah Hill

August 6th, 2023

The Second Amendment of the United States Constitution states that “the right of the people to keep and bear Arms, shall not be infringed.”[i] The right to bear arms is a fundamental right guaranteed to the people of the United States under the Second Amendment of the Constitution of the United States of America.[ii] Throughout the country, the states have differing levels of firearm regulation ranging from constitutional carry to strict regulations.[iii] The different degrees of firearm regulation throughout the states are due to the different cultural traditions of each state. In recent years, the differing approaches to firearm regulation have spilled over into public discourse in response to the increase in mass shootings.[iv] Despite the differing approaches to firearm regulation, there is a consensus that the right to bear arms is not unlimited despite being fundamental.[v]

There was a tremendous shift in Second Amendment jurisprudence when the Court decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). In Bruen, the constitutionality of a New York firearm statute that required a “special need” for obtaining a license to carry a concealed firearm was challenged.[vi] In Bruen, the Court discarded the two-step analysis for firearm regulations that federal courts developed following Heller that considers history and means-end scrutiny.[vii] Under the Bruen standard, the government has the burden of proving that the challenged regulation is aligned with the “Nation’s historical tradition of firearm regulation” when the regulation affects conduct covered under the plain text of the Second Amendment.[viii] The history given the most weight is the history that informs the tradition of gun ownership in the United States in the periods preceding and immediately after the drafting and ratification of the Second Amendment.[ix] The government has the burden of demonstrating that the regulation is rooted in the tradition of the Nation.

Soon after Bruen, district courts across the country began seeing challenges to provisions of 18 U.S.C. Section 922 on the basis that the regulations were not aligned with the historical tradition of firearm regulation at the time of the writing and ratification of the Second Amendment.[x] In response to the notable assassinations in the 1960s, the federal legislature enacted federal firearm regulations.[xi] Under 18 U.S.C. Section 922, the federal government can impose criminal penalties on a broad range of offenses relating to the transportation, purchase, possession, and sale of firearms.[xii] Firearm offenses are the “third most common” type of federal offense behind drugs and immigration.[xiii] In recent years, firearms charges comprise about 14% of federally charged crimes each year.[xiv] In the last two years, there has been an increase in the number of federal firearm offenses.[xv] The average sentence for a federal firearm conviction is about four years.[xvi]

Prior to Bruen, the constitutionality of the federal firearm regulations had been challenged, but those challenges yielded little success.[xvii] In the wake of Bruen, these challenges have had some success. These challenges arise from people appealing their convictions under the statute, people disputing indictments under the statute, and people seeking declaratory judgments by raising as-applied challenges.[xviii] The main targets of these constitutional challenges have been the provisions of Section 922 that codified the Gun Control Act of 1968.[xix] Many of the legal challenges are specifically directed at the subsections of Section 922(g), which identify who is prohibited from possessing or purchasing firearms.[xx]

When some district courts apply their interpretation of the Bruen standard to provisions of Section 922, they strike them down while other district courts uphold the constitutionality of the statute.[xxi] There is a lot of confusion in the courts about adequately applying the Bruen standard since the court now must rely heavily on the Nation’s history when determining whether a firearm statute is constitutional.[xxii] The future of § 922 is precarious. The constitutionality of certain § 922 provisions has already led to circuit splits that the Supreme Court will ultimately have to resolve.

One of the more commonly used provisions—Section 922(g)(1)—has had its constitutionality challenged in district courts across the country in the wake of Bruen. Section 922(g)(1) is the portion of the statute that forbids people with felony convictions from possessing a firearm.[xxiii] In 2021, Section 922(g)(1) violations comprised 13% of federal convictions.[xxiv] In recent years, there were at least 6,000 violations of Section 922(g)(1).[xxv] In Alabama, Section 922(g)(1) cases comprise a high proportion of all federal cases within the state.[xxvi] Over 90% of Section 922(g)(1) convictions result in prison sentences, and the average sentence is five years.[xxvii] If Section 922(g)(1) were to be ruled unconstitutional, the results would dramatically change the landscape of the federal criminal justice system.

There is a circuit split for Section 922(g)(1) on whether the statute complies with the Bruen standard. In United States v. Jackson, 69 F.4th 495 (8th Cir. 2023), the court held that Section 922(g)(1) was constitutional under the Bruen standard. When applying the Bruen standard, the court relied heavily on the firearm restrictions practiced in colonial America, where classes of dangerous people were prohibited from possessing firearms.[xxviii] In Jackson, the court also considered the federal firearm regulations enacted in the 1960s and the purpose of the statute.[xxix] In Range v. Att’y Gen. United States, 69 F.4th 96 (3d Cir. 2023) (en banc), the court held that Section 922(g)(1) was unconstitutional under Bruen.[xxx] In Range, the court relied on the colonial American practice of forfeiting weapons used to commit a crime without interfering with the offender’s right to bear arms.[xxxi] The court in Range also considered that the 1938 federal firearm statute, which the modern firearm statute is based on, only applied to violent criminals.[xxxii] In the seventh circuit, the courts are creating an analysis to evaluate firearm regulations under Bruen.[xxxiii]

The Bruen analysis leaves a lot of room for interpretation by the court. The courts are faced with the issue of evaluating history and determining whether there were analogous firearm regulations in the period preceding the writing and ratification of the Second Amendment. In Jackson and Range, the government presented the same historical arguments but received different results. The question of constitutionality for firearm regulation has turned from legal interpretation to historical analysis. This shift could have negative implications for the future of Section 922(g). The history of analogous firearm restrictions for all classes that covered persons prohibited under Section 922(g) is scant. The courts in the Fifth Circuit have been particularly active in striking down provisions of Section 922(g).

            Like Section 922(g)(1), Section 922(g)(8)’s constitutionality is contested under Bruen. Section 922(g)(8) prohibits people with protection orders related to domestic violence from purchasing or possessing a firearm.[xxxiv] A portion of the Violence Against Women Act (VAWA) clarified that the states had to identify and alert those covered Section 922(g)(8) of the obligation to surrender firearms to the state.[xxxv] In United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), the court held that Section 922(g)(8) was unconstitutional under the Bruen standard.[xxxvi] In Rahimi, the court rejected the government’s historical arguments after deeming their examples not to be “relevantly similar” to Section 922(g)(8).[xxxvii] The court’s holding in Rahimi hinged on the fact that the historical firearm regulations were focused on protecting society at large, not “identified individuals.”[xxxviii]

Section 922(g)(3) prohibits controlled substance users and addicts from possessing or purchasing firearms.[xxxix] Like other provisions of Section 922(g), Section 922(g)(3) has had its constitutionality challenged in the wake of Bruen. In United States v. Connelly, , the court held that Section 922(g)(3) was unconstitutional.[xl] In Connelly, the court rejected the government’s argument that the colonial ban on shooting guns while intoxicated was analogous to Section 922(g)(3).[xli] The court asserted that the intent behind the colonial law and Section 922(g)(3) differed too much since the colonial law was to preserve limited resources to stave off potential threats while Section 922(g)(3) was to keep order in society.[xlii] Without question, Bruen has altered Second Amendment jurisprudence. There is also the potential for Bruen to alter the criminal justice system since many of the statutes used to enforce firearm restrictions are being challenged for lack of basis in historical tradition. After Bruen, criminal defense attorneys started using Bruen motions to get indictments dismissed. While the Bruen motions may not have much success in the present, the Bruen motion serves to preserve the issue so the case may be eligible for reconsideration if the statute is later held unconstitutional. While Bruen is undoubtedly a win for gun rights and Second Amendment originalism, some negative implications are becoming apparent. Some of the protective provisions of Section 922(g) are facing Bruen challenges. Without these provisions, classes of people who are generally considered incapable of possessing and utilizing a firearm in a safe, lawful manner could have legal access to firearms.  Ultimately, the fate of these provisions rests in the courts.

[i] U.S. Const. amend. II.

[ii] McDonald v. City of Chi., 561 U.S. 742, 778 (2010) (explaining the historical basis for the right to bear arms as a fundamental right); United States v. Heller, 554 U.S. 570, 595 (2008) (holding that there is “an individual right to keep and bear arms” under the Second Amendment).

[iii] See H.R., B. 272, 2022 Leg., Reg. Sess. 2022. (Ala. 2022); see also Cal. Penal Code § 26150.

[iv] Kevin Newsome, et al., A Closer Look at the Rising Epidemic of Mass Shootings in the United States and Its Association with Gun Legislation, Laws, and Sales, 28 Journal of Surgical Research 103, 104 (2022).

[v] See Heller, 554 U.S. at 595 (stating that the right to bear arms is not unlimited).

[vi] See New York State Rifle & Pistol Ass’n., Inc. v. Bruen, 142 S. Ct. 2111, 2123 (2022) (explaining that applicants had to meet a strict standard to get a license to carry).

[vii] See id. at 2127 (explaining that the means-end scrutiny analysis was incorrect).

[viii] Id. at 2126 (2022).

[ix] See id. at 2136.

[x] See United States v. Connelly, 2023 WL 2806324, at *15 (W.D. Tex., Apr. 6, 2023) (holding that §§ 922(d)(3) and 922(g)(3) are unconstitutional since they do not align with the Nation’s historical traditions of firearm regulations); United States v. Price, 2022 WL 6968457, at *6 (S.D.W. Va., Oct. 12, 2022) (holding that § 922(k) is unconstitutional because it is not aligned with the Nation’s historical traditions of firearm regulations)

[xi] See Bureau of Alcohol, Tobacco, Firearms and Explosives, Gun Control Act, ATF (Oct. 21, 2022), https://www.atf.gov/rules-and-regulations/gun-control-act.

[xii] See 18 U.S.C. § 922.

[xiii] U.S. Sent’g Comm’n, Overview of Federal Criminal Cases, Fiscal Year 2021, at 4-5 (2021).

[xiv] See U.S. Sent’g Comm’n, 2022 Annual Report and Sourcebook of Federal Sent’g Stat., at 45 (2022); U.S. Sent’g Comm’n, 2021 Annual Report and Sourcebook of Federal Sent’g Stat., at 45 (2021).

[xv] See U.S. Sent’g Comm’n, 2022 Annual Report and Sourcebook of Federal Sent’g Stat., at 46 (2022) (the number of firearm offenses increased from 8,151 in 2021 to 9,318 in 2022).

[xvi] See id. at 217 (2022).

[xvii] See United States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010) (explaining that laws limiting the Second Amendment rights of felons did “not offend the Second Amendment”); United States v. White, 593 F.3d 1199, 1206 (11 th Cir. 2010) (holding that the Heller doctrine of upholding “longstanding prohibition[s]” on firearm possession applied to § 922(g)(9)).  

[xviii] See Range v. Atty. Gen United States, 69 F.4th 96, 99 (3d Cir. 2023) (en banc) (stating that the plaintiff brought an as applied challenge to the statute); United States v. Jackson, 69 F.4th 495, 498-501 (8th Cir. 2023) (stating that the appellee attempted to get the indictment dismissed and appeal his conviction by alleging the statute was unconstitutional).

[xix] See Bureau of Alcohol, Tobacco, Firearms and Explosives, Gun Control Act, ATF,  https://www.atf.gov/rules-and-regulations/gun-control-act (last reviewed Oct. 21, 2022).

[xx] See 18 U.S.C. § 922(g).

[xxi] See United States v. Stambaugh, 2022 WL 16936043 (W.D.Okla., 2022) at *6 (holding that § 922(n) is unconstitutional); United States v. Quiroz, 629 F. Supp. 3d 511, 527 (W.D. Tex. 2022) (holding that § 922(n) is unconstitutional); see also United States v. Bartucci, 2023 WL 2189530 at *10 (E.D.Cal., Feb. 23, 2023) (holding that § 922(n) is constitutional under the Bruen standard).

[xxii] See United States v. Bullock, 2022 WL 16649175 at *1 (S.D.Miss., Oct. 27, 2022) (explaining that courts “lack both the methodological and substantive knowledge that historians possess” and struggle with the Bruen analysis).

[xxiii] See 18 U.S.C. § 922(g)(1).

[xxiv] See U.S. Sent’g Comm’n, 2021, Felon in Possession of a Firearm (2021) (Figures showing 7,454 out of 57,287 were § 922(g)(1) convictions).

[xxv] See id.

[xxvi] See id.

[xxvii] See id.

[xxviii] See United States v. Jackson, 69 F.4th 495, 503-504 (8th Cir. 2023) (explaining that the Nation’s history of firearm regulations included disarming certain classes who pose an “unacceptable risk of danger if armed”).

[xxix] See id. at 505 (explaining that the purpose of the statute aligned with historic traditions).

[xxx] See Range v. Atty. Gen. United States, 69 F.4th 96, 98 (3d Cir. 2023) (en banc) (holding that § 922(g)(1) was unconstitutional).

[xxxi] See id. at 105 (explaining that the colonial laws did not prohibit an offender’s future right to bear arms but only took the weapon used to commit the crime).

[xxxii] See id. at 104 (explaining that the 1938 precursor to § 922(g)(1) was not intended to cover a non-violent offender).

[xxxiii] See Atkinson v. Garland, 70 F.4th 1018, 1024 (2023) (explaining the questions that the district should consider when the case is remanded).

[xxxiv] See 18 U.S.C. § 922(g)(8).

[xxxv] See Congressional Research Service, The Violence Against Women Act (VAWA): Historical Overview, Funding, and Reauthorization, at 27 (2019).

[xxxvi] See United States v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023) (holding that 922(g)(8) was unconstitutional on its face).

[xxxvii] See id. at 456.

[xxxviii] See id. at 459 (explaining that there was no analogous historical firearm statute to support § 922(g)(8)’s constitutionality).

[xxxix] See 18 U.S.C. § 922(g)(3).

[xl] See United States v. Connelly, 2023 WL 2806324 at *11 (W.D.Tex., Apr. 6, 2023).

[xli] Id. at *6.

[xlii] Id.

The Future is Now: Artificial Intelligence and the American Copyright System

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Photo Credit: https://futureoflife.org/cause-area/artificial-intelligence/ (last visited May 19, 2023).

Authored By: Ben Byard

July 7, 2023

Progress of artificial intelligence (AI) is on the rise and shows no signs of stopping. Recently this technology has exploded in popularity with the likes of ChatGPT and art that is created entirely by AI. These feats can only be achieved after the AI has been properly “trained” to achieve a desired outcome.[i] For many AI models, this training involves taking in many outside images or sources to be able to adequately “learn” what it is trying to do.[ii] This training usually requires thousands or tens of thousands of outside materials to be given to the AI for it to function correctly.[iii] Since most people or companies do not own the requisite amount of images or data themselves, they must use images or data from outside sources.[iv] Checking for copyrights and protections on all of these images would be both extremely time-consuming and expensive, so nearly all AI companies have used copyrighted images to train their AIs without worrying about the potential consequences. This has led to new developments in copyright litigation, where it is unclear whether using copyrighted images to train AI would violate the copyright.

            A very recent case that is currently undecided will provide some of the first laws directly relating to this topic.[v] Getty Images brought a complaint against Stability AI for infringing on their copyright in twelve million images that were used to train Stability’s AI.[vi] While it will take some time for this case to finish, previous case law can still provide some guidance on whether AI would infringe on other’s copyrights. While Stability AI has only responded on jurisdictional grounds to Getty Images, if these arguments fail it is most likely they will make an argument for the fair use of the copyright.[vii] The US Copyright Act allows the use of copyrighted material through the fair use doctrine.[viii] This allows a copyrighted material to be used or reproduced without punishment if the copyrighted work is used “for purposes such as criticism, comment, news reporting, teaching (including multiples copies for classroom use), scholarship, or research. . . .”[ix] Campbell v. Acuff-Rose Music, Inc. also clarifies that the more transformative a work is, the less the other factors against fair use will weigh.[x] This case states that transformative works take the original and add some new value or meaning to it, giving parodies as an example of transformative work.[xi]

This would be the most likely argument for the works produced by AI not to infringe on copyright. AI generators take in thousands upon thousands of images and use those to create a new image based on what the AI has “learned.” Since a single image cannot be used to train an AI completely, it would be hard to argue that an entirely new image created from thousands of photos was not “transformed” enough from the original photo not to be considered transformative for fair use. However, a different problem arises when most or all of the images used for training the AI come from a single source. This is one of Getty’s main complaints, as they claim that Stability used millions of Getty Image photographs while also removing the captions and metadata from those images.[xii] If Stability only used Getty Images material to train their AI, then none of the produced work may be considered transformative enough for fair use. Stability potentially using the AI produced images commercially also may weigh against them in consideration of fair use.[xiii]

Four factors are given when determining whether a copyrighted work falls under fair use. These are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used concerning the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.[xiv]

These four factors are the most heavily weighed by courts in copyright infringement decisions, so most arguments should focus on these points. There are potential arguments to be made on both sides, an example being that the work created by AI is transformative, as described earlier. Other arguments that could be made are how much of the work created by AI is currently nonprofit and is for research purposes. AI is still in its infancy, meaning many of the images made by companies using AI have no intention of commercializing these images. While this will most likely change in the future, this current fact favors heavily for fair use. An argument against fair use is that the AI-generated image could potentially not exist without using the copyrighted images. Earlier, it was stated that it would be difficult to argue that a singular image significantly affects what the AI produces. Depending on the sample size used to train the AI, a particular copyrighted image could be highly important to making the AI work properly, meaning this image would be used “substantially” to create the AI-generated image. Furthermore, if AI can take copyrighted images and create very similar facsimiles under the protection of fair use, then this would undoubtedly affect the market for the original copyrighted images, weighing against fair use.

            Another issue to consider is whether the AIs themselves can own a copyright in their work. Currently, only “human authors” can hold a copyright in a product that they themselves produce or inherit.[xv] This was decided in 2018 by the 9th Circuit when there was controversy over whether a photograph that a monkey technically took could own a copyright in that photograph.[xvi] This happened when a wildlife photographer named David Slater left his camera near a reserve of wild monkeys with a mechanism for photos to be automatically taken when a button is pressed.[xvii] A monkey named Naruto pressed the button while smiling at the camera, technically making him the “author” of the photographs.[xviii] The 9th Circuit held that since all the terms used to describe an author or inheritor of a copyright “imply humanity,” animals do not fit in any of these categories and cannot own a copyright.[xix]

            Currently, there have been no other cases or statutes directly addressing this issue, leaving Naruto v. Slater as the sole authority on non-human entities and copyright ownership. This implies that AIs would be in the same category as animals as non-human entities, meaning they cannot own or hold a copyright in something. However, the court in Naruto states explicitly that it is “animals other than humans” that cannot own a copyright or sue under the Copyright Act.[xx] AI is not an animal, meaning it does not fall under this exact definition and is still in a bit of a nebulous area in terms of copyright ownership. This makes sense, as humans did not create animals, and there is, therefore, some “separation” between what an animal creates and what a human creates. The difference with AI is that humans originally made AI, and AI then, in turn, made something else based on the information humans gave it. Is this amount of separation enough to consider an AI image an “independent creation” underserving of copyright protections provided to human creators? Is copyrightable material created by an AI any different than copyrightable material made through other technologies, such as image editing software? For example, people can copyright photos they make through Photoshop, simply editing some original image with tools provided by the program to make a new or transformed image. AI is merely a program created by humans that takes thousands of images instead of a single image to create a new or transformed image. Is the fact that a program produces the image “independently” different than a human simply using a program to modify an image themselves? Or can an AI be considered independent enough to be a separate distinction from a human program? This is a much deeper issue that goes beyond the scope of copyright but is an important question that will almost certainly have many cases pertaining to it in the future.

[i] Jonathan Tarud, AI Model: How Does It Work?, Koombea (March 23, 2023), https://www.koombea.com/blog/ai-model/.

[ii] Id.

[iii] Eugene Dorfman, How Much Data is Required for Machine Learning?, postindustria (March 25, 2022), https://postindustria.com/how-much-data-is-required-for-machine-learning/.

[iv] Id.

[v] Getty Images (US), Inc. v. Stability AI, Inc., No. 23-CV-00135, (D. Del. May 16, 2023).

[vi] Complaint at 1, Getty Images (US), Inc. v. Stability AI, Inc., No. 23-CV-00135, (D. Del. Feb. 2, 2023).

[vii] Defendant’s Motion to Dismiss or Transfer this Action, Getty Images (US), Inc. v. Stability AI, Inc., No. 23-CV-00135, (D. Del. Feb. 2, 2023).

[viii] 17 U.S.C. § 107.

[ix] Id.

[x] 510 U.S. 569, 579 (1994).

[xi] Id.

[xii] Getty Images (US), Inc., supra note 6 at 1.

[xiii] 17 U.S.C. § 107.

[xiv] Id.

[xv] Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018).

[xvi] Id. at 420.

[xvii] Id.

[xviii] Id.at 424.

[xix] Id. at 426.

[xx] Id.

The Complexity of the Discovery Rule in Medical Device Cases & the Power of a Statute of Repose:

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Photo credit: https://www.mattersoftrustlaw.com/2016/03/is-the-clock-ticking/ (last visited Sep. 23, 2020).

Written By: Alex Messmore
Senior Associate Editor, American Journal of Trial Advocacy

          Most people are familiar with the concept of a statute of limitations.  However, most people have not had experience with the statute of limitation’s scary big brother, the Statute of Repose. Continue reading “The Complexity of the Discovery Rule in Medical Device Cases & the Power of a Statute of Repose:” →

Not So Dope: Multidistrict Opioid Litigation Against Manufacturers and Distributors of Prescription Drugs in the United States

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Photo Credit: Shadrach Michaels, Treating WPC’s Opioid Addiction, Ely Times (Sept. 13, 2019), https://elynews.com/2019/09/13/treating-wpcs-opioid-addiction/.

By: Stephanie Smith
Senior Associate Editor, American Journal of Trial Advocacy

The opioid crisis is a national health crisis that has affected public health, as well as economic and social welfare.  States, cities, municipalities, and Native American tribes across the United States are sounding the alarm on the opioid crisis as one of the worst medical catastrophes in the nation’s history.[1]   Continue reading “Not So Dope: Multidistrict Opioid Litigation Against Manufacturers and Distributors of Prescription Drugs in the United States” →

Heating Up: The Rise of Climate Change Litigation

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Photo Credit: https://www.pexels.com/photo/air-air-pollution-climate-change-dawn-221012/

By: Bobby McNeill
Member, American Journal of Trial Advocacy

On October 9, 2019, the Alaska Supreme Court heard oral arguments for Sinnok v. Alaska,which involves a civil suit brought by a group of teens alleging, among other things, that the state of Alaska has failed to protect its citizens from the effects of climate change.[1] Continue reading “Heating Up: The Rise of Climate Change Litigation” →

Full Moon, Full Breakfast, and Full Costs

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Photo Credit: Mark Theoharis, How Much Are Legal Fees? – Costs of Hiring Different Types of Lawyers, Money Crashers, https://www.moneycrashers.com/legal-fees-hiring-lawyer-costs (last visited Mar. 20, 2019).

By: Gray Gilmore
Associate Editor, American Journal of Trial Advocacy

Because of the high cost of litigation, Congress allows for a party to recover costs as awards. Specifically, there are six categories of litigation expenses that qualify as costs, and parties are limited to these categories unless another federal statute provides otherwise.[1] Nowhere in the general costs statute allows for a cost award to include litigation expenses, such as jury consulting, expert witnesses, and e-discovery.[2] Continue reading “Full Moon, Full Breakfast, and Full Costs” →

Concussion Litigation Leading Insurers to Discontinue Coverage for Head Injuries in Football

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Photo Credit: Woodruff Health Sciences Center (2017). Emory physicians care for Atlanta Falcons on their journey to the Super Bowl. Available at: http://news.emory.edu/stories/2017/01/emory_docs_head_to_superbowl/ [Accessed 23 Feb. 2019].

By: Catherine Collins
Member, American Journal of Trial Advocacy

Introduction

Recently, ESPN released an article addressing an emerging issue which could potentially endanger the sport of football.[i] The article and coverage on ESPN’s Outside the Lines explains the dissolving insurance market in the contact sports realm regarding coverage for concussions and other head related injuries.[ii] The NFL no longer has general liability insurance covering traumatic head injuries, and only one insurance provider remains in the market for such coverage.[iii] Continue reading “Concussion Litigation Leading Insurers to Discontinue Coverage for Head Injuries in Football” →