Obama's Enemies List: A Growing List of Obama's Enemies

[Guest post by Aaron Worthing; if you have tips, please send them  here .  Or by Twitter @AaronWorthing.] Update: Exclusive to Patterico (in the sense that I ripped it off from Ign ), we have video of the crime occurring: More IGN Originals Video Videos Well, it was inevitable , wasn’t it?  I present to you the Playstation Network Security breach class action suit.  Joystiq, a blog I read from regularly, reports : As expected, the first federal class action lawsuit addressing the recent PSN security breach has been drawn up and submitted to the Northern District Court of California. The complaint, which was filed by the Rothken Law Firm representing 36-year-old Alabama resident Kristopher Johns (as well as every other affected PSN user), accuses Sony of “failure to maintain adequate computer data security of consumer personal data and financial data,” and of failing to take “reasonable care to protect, encrypt, and secure the private and sensitive data of its users.” Now I have already registered my disdain for class actions generally here , so I won’t bother to repeat myself.  The class representative will get some money.  The lawyers will get rich.  Our prices will go up and we get very little to show for it. But that first paragraph raised my lawyer antenna.  Consider some of the allegations in the complaint (which I will embed below the fold): “By reason of said special and fiduciary relationship, defendant had a duty of care to use reasonable means to keep the credit card account and other nonpublic information of the Plaintiff and the Class that is in their possession private and secure, and to inform Plaintiff and the Class members forthwith when any compromise of the security of such information occurred. Defendant has unlawfully breached these duties. “defendants had a duty to use reasonable care to prevent the unauthorized access, use or dissemination of the credit card account and other nonpublic information of the Plaintiff and the Class herein. On information and belief, defendants unlawfully breached said duty.” “Pursuant to California Civil Code § 1798.81.5, defendant had a duty to implement and maintain reasonable security procedures and practices to with respect to the credit card account and other nonpublic information of consumers, including, without limitation, the Plaintiff and the Class herein, in order to protect such information from unauthorized access, use or disclosure. On information and belief, defendants unlawfully breached said duty.” Now, if you read through the complaint, they don’t allege one iota of special knowledge.  This is not an employee of Sony or anything like that.  It’s just one random guy in America, as is typical in these class actions. So how does he know Sony has done any of those things?  Over and over again, in the complaint claims that Sony failed to take reasonable security measures, but how do they know they didn’t?  Maybe they did, and the hacker beat them anyway. I have been following the story close enough to know that Sony has told us very little about it. So, they don’t know what Sony did to protect the data, and we don’t know what the hacker did to defeat that protection.  Indeed, we don’t even know if anyone’s credit card data has been stolen. And that is a serious problem because of a little thing called Rule 11 .  It’s a rule of Federal procedure that says, in relevant part: By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery So if you don’t have evidence to support your contentions, and they are not, at this stage of knowledge, likely to have evidentiary support after discovery, then you have broken this rule.  And what does this rule provide as a remedy?  Well, it can be all kinds of things.  For instance, in the case featured in A Civil Action a violation of Rule 11 resulted in the case being dismissed (by the way, in my opinion that was the right call, despite the biases of the movie—the plaintiffs had no idea what was causing their patients’ ailments).  Other sanctions include forcing the offending parties or their lawyers to pay attorneys’ fees and other costs arising from this. That doesn’t necessarily sink all of the claims.  I would have to do a detailed study of Californian law to say that.  But many of the claims rely on assertions that Sony didn’t act reasonably, when I don’t know how they can possibly pretend to know they didn’t.  If I was Sony’s lawyer, a Rule 11 sanctions hearing would be on my table. But then again, maybe California courts, even the Federal courts in California, take a different attitude about these things.  What the rules say and what actually happens in court can be significantly different.  For instance, in Virginia we have a very normal-sounding summary judgment procedure, but good luck trying to actually obtain one, leading many to assert that despite what the rules say, there is no such thing as summary judgment in Virginia state courts. But if we apply the rules as written, it is hard to understand how this rule has not been violated. Anyway, the complaint is embedded after the break. And you can read similar thoughts, here . JohnsvSony Complaint FINAL [Posted and authored by Aaron Worthing.]

Originally posted here:
How is This NOT a Violation of Rule 11? (Video Added)