Rogers & Tartaro Business Litigation Blog : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

Intellectual property law is usually not on our beat. But counseling clients who don’t want to settle their litigation is definitely up our alley.

The Wall Street Journal Law Blog featured the Minnesota woman who was ordered by a jury to pay $1.92 million for the music that she downloaded.

In pursuit of our mission to translate legal issues for a non-legal readership, here are the highlights:

• This is the only case of this kind to go to trial – all the others settled;
• This was the second trial; the verdict from the first was vacated on a technical issue;
• The verdict from the first trial had been $220,000;
• The judge from the first trial thought $220,000 was excessive;
• Despite losing to the tune (excuse the pun) of $220,000, the defendant didn’t settle and opted to re-try the case;
• The damages are “statutory damages,” meaning that they are not based on actual loss to the plaintiff, but on the provisions of a statute;
• The range of statutory damages and, therefore, the stakes in the case, were known to the defendant and her lawyers throughout.

We tend to have difficulty convincing clients that litigation is inherently uncertain and that settlement at some point is usually the best option. Here is a good horror story to illustrate our point.

The WSJ Blog post also discusses some of the avenues of appeal, mostly on constitutional grounds, and the possibility that the case may yet settle.

Incidentally, the defendant was accused not just of downloading but putting music in shared folders for others to access without charge. If you download from iTunes (or a similar service), always pay, and never, never put the music in a shared folder. You never know who’s watching!

Images:  Ipod Shuffle (above); Wildwood Flower LP, from the days before downloading. Both images courtesy of Wikimedia.

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There’s been a lot of chatter around Ridgefield lately regarding the possibility of “light and blight” ordinances. The sides of the issue seem to be split between those who believe that the government has no right to interfere with one’s private property, and those who argue that neighbors are obliged to keep their residences and outdoor lighting in respectable condition.

The catalyst for the potential blight law seems to derive from two recent cases. One involves recent reports of property owners who were ordered to serve 100 hours of community service for violation of zoning and health codes. The second case involves a reported dispute between neighbors over whether one intentionally points lights directly into the windows of the other.

According to the Ridgefield Press, Ridgefield Selectwoman Di Masters says a blight ordinance could be a trigger to get people the help they need if they are struggling to maintain their property. Also according to the Press, Town Selectman Rudy Marconi, after receiving numerous calls from residents, said the town “may need to consider a blight ordinance with very strict, specific language that would stop a homeowner from bringing down the property value of other homes.”

A Ridgefield Press editorial suggests these provocative issues, which presumably face every town, are no more than heated disputes between neighbors and can be resolved with existing legal remedies. Since this is not a political blog, we do not take positions on pending legislation. We can comment, however, on the neighborly dispute aspect - - what remedies are there for neighbors involved in disputes of this general type?

First, there is a specific statute in Connecticut which permits a land owner to sue the owner of adjacent property who “maliciously” erects a structure to annoy or injure. This statute, obviously, may apply to some types of annoyances but not to others - - for example, a vicious dog is not a structure.

Then, there is the law of private nuisance which also permits a landowner to sue a neighbor and may, in some circumstances, take into account a decline in property value when calculating damages. Despite the frequent appearance of private nuisance actions in court, the law does not uniformly describe the elements of a “nuisance.” Furthermore, the law is not one-sided. Consideration must be given to the rights of both parties in the dispute. The law recognizes that in modern society some level of neighborly “interference” is inherent.

Of course, before resorting to private lawsuits, neighbors will want to take into account the expense  of private litigation, not to mention the lingering animosity that often results. Town legislators will generally consider whether or not the public interest is involved, in which case they may determine that private remedies are not enough and government enforcement powers must be invoked.
 

I’m sure this is a discussion that will be around for some time.

Image: From Wikimedia Commons: The Hatfeld Clan of the Hatfield-McCoy Feud; taken in 1897.

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Within the “Musings” category of our Blog, I am allowed, on occasion, to go completely off-topic. It’s our way of providing the seasoning that makes for a tastier soup.

An unfortunate report of telephone troubles at the Ridgefield Library severe enough to be covered by RidgefieldPress.com reminded me of my recent adventure with a service provider that shall remain nameless. The adventure involved a much less severe problem, to be sure, but the story is amusing.

We had a technical issue. The way you resolve a technical issue is to open a “trouble ticket” with the service provider’s customer support department. Trouble tickets, I was assured, would be closed within one business day.

After the first trouble ticket, I received no feedback but my own testing told me the problem persisted.

After the second trouble ticket, I received a robotic telephone message that the ticket had been closed. But, my testing revealed the problem still persisted.

After the third trouble ticket, I talked to a human who assured me that the problem could not be solved and that we would have to live with the situation.

A few weeks later, while ruminating on my own, it occurred to me that the manipulation of a parameter that we (the customers) control (a suggestion never made by the service provider) might solve the problem. And, it did.

The measure of customer service according to the service provider (closed trouble tickets within one business day): 100%. Customer service according to the customer (me): 0%.

 Image: Wikimedia Commons: “At the Telephone” 1906 sheet music cover of “Blanche Ring’s Telephone Song.”

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The Ridgefield Press recently reported about the Land Conservancy of Ridgefield’s new “Good Neighbor” policy. In general, the program asks neighbors who abut preserved lands to keep track of encroachments, such as dumping leaves or paving driveways. Encroachments hinder the Conservancy’s mission to keep land in its natural state.

This gives me the opportunity to discuss one of my favorite topics, adverse possession.

Many of our clients have mistakenly believed that adverse possession is an ancient and arcane concept, when in fact it comes up all the time, both in Connecticut and New York. Town governments using land for governmental purposes are basically immune but private landowners are not. For private landowners, encroachments could mean the risk of losing part of their land through adverse possession. Over time, 15 years in Connecticut (10 in New York), encroachments can ripen into ownership rights and the original private landowner can lose a portion (or all) of his land.   

All landowners should take a tip from the Conservancy and follow their own good neighbor policy: be aware of property lines, observe any encroachments, and deal with them appropriately but promptly.

We would like to express our thanks to the Conservancy for performing an important, valuable and essential service. We all benefit from the preservation of land in its natural state.

Need more information about adverse possession? Click here:

 Image: Pierrepont Pond, Ridgefield, CT..

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