It's a rare day that I'm unable to do some quasi-recreational reading of opinions and talk about them. But with an all-day mediation and Restaurant Week here in San Diego -- both of went swimmingly -- yesterday was such a day.
Today, by contrast, it's a lazy academic day. Which, inter alia, allowed me to read this opinion by the Ninth Circuit this morning. To which I had three thoughts.
First, as to the facts, I was glad that I'm not a member of AOL, which posted the websites searched by 650,000 of its members in 2006. Not something I'd want the world to be able to examine -- as they currently can (on mirror sites) -- at its leisure.
Second, with respect to the law, while the Ninth Circuit holds that the forum selection clause may compel the plaintiffs to file in Virginia, which won't allow a class action, just a reminder to everyone that you don't have to do that in California if you file in small claims court. So any AOL member in California who had their stuff posted online in 2006: Think about maybe filing a quick small claims court action. It could be beneficial.
Finally, you gotta love the last paragraph of Judge Nelson's concurrence, which argues that there's not going to be a new "Gold Rush" to move to California to take advantage of California's favorable laws toward residents. It's funnier in the original. I liked it.
POSTSCRIPT - A little birdy writes to excoriate me at length and note -- correctly -- that the author of the concurrence is not necessarily Judge Nelson, even though her name appears first. While authors are usually listed first, with any other judge "joining" the concurrence listed susequently, here, there's no "joining" line, so the opinion is technically written jointly by Judges Nelson and Reinhardt, with the names listed in order of seniority (e.g., with Judge Nelson first). Given the tone of the concurrence, and the disparity between how Judge Nelson tends to write and how Judge Reinhardt tends to write, I'm going to definitely backtrack on my designation of the concurrence as "Judge Nelson's". My bad.
