The McTexLaw Email Alert for July, 2004

Chances are, if you're reading this and you own a business, your business has a website. This Email Alert has some sobering thoughts about how that website could make your business liable to people in states where you don't even operate. Yes, California is in the lead again. And on the real estate side, we look at another type of condemnation, including some rather bizarre legal strategy employed by the state which cost you some tax dollars. Last, but certainly not least, is a report on electronic voting--oh yes, the set-up for "Kerry v. Bush" is on,--and a funny, but true, tale of the Kerry campaign's unexpected obstacle in getting a very important domain name.

New on The McTexLaw Business Owner’s Resource Center:

Where You Advertise May Increase Your Risk

Here’s an interesting case, particularly if you like horror stories. I rarely report on non-Texas cases, but this California case has implications for Texas, so here goes. If your business advertises in California, can you be sued in California, under all of its consumer-oriented laws? The answer is a definite “maybe.” Click the headline to read about this developing situation, which is right now at the California Supreme Court level. Snowney v. Harrah’s Entertainment, Case No. S124286.

New on The McTexLaw Commercial Real Estate Resource Center:

Inverse Condemnation

We all know what condemnation is; when the government shows up to “take” your land and use it for some public purpose, like a roadway. It’s pretty obvious when it happens, and it usually begins with a formal written notice from the government. Well, there is another type of condemnation, known as “inverse condemnation.” This is easier to identify than define, kind of an “I know it when I see it” type of condemnation. George and Patricia Delany found out what it meant, to the whopping tune of $497,637.80 coming their way (courtesy of your state tax dollars). When the government alters the use of an existing right of way (as in a roadway ceases to exist), and as a result, there is a “material and substantial impairment of access” to a tract of land, the owners of that tract have just felt the brunt of “inverse condemnation.” Click the headline to read about the Delany’s case and the sad humor of how in the world they won nearly a half of a million dollars in compensation. State of Texas v. Delany, Case No. 14-03-00052-CV (Tex. App.-Houston [14^th Dist.], decided March 16, 2004).

Ah, the Good Ol’ Days of Pregnant Chads

Anybody out there remember the judicial bloodshed of the last presidential election? The images I remember most were the various lawyers running–literally–back and forth between the various state courts down there in Seminole land. And then came Atlanta, with its Federal Court of Appeals. Finally, of course, it came to the U.S.’s Ultimate Supremes. Well, it may be that you “aint seen nothin’ yet.”

Hanging Chads. Pregnant Chads. Everywhere a Chad-Chad. Even Old McDonald had a Chad. Such was the terminology of 2000. As a result of the whole Florida debacle, many states have moved away from the paper ballot and all those chads. “We don’t want to be the next Florida” seems to be a common mantra spurring change. And so electronic voting machines are in vogue. Or are they?

Bev Harris, a 52 year old literary publicist, who can only be described as an “activist” (I’ll spare you the details) has supposedly investigated registrars, employees of and investors in the electronic voting machine manufacturers, and elected officials. She has unearthed what she considers to be conflicts of interest between elected officials, high-ranking executives at the manufacturers, and computer programmers who can intentionally program electronic voting machines to skew the counts of actual votes. This gal and her conspiracy theories makes Oliver Stone look normal.

But irrespective of what you may think of Ms. Harris, this is a serious business. Linda Schade and a several other Maryland voters have already filed a lawsuit in the Circuit Court for Anne Arundel County, Maryland, challenging Maryland’s use of electronic voting machines as “illegal” under both state and federal law. Oh yes, the stage is already being set for the U. S. Supremes come November.

So this election cycle, instead of the technology of chads and the accompanying human intelligence (or lack thereof) required to use a paper ballot, we’re going to hear about “Diebold Accu-Vote-TS electronic voting machines” and “Sequoia Voting Systems” and “Election Systems & Services, Inc.” Instead of alleged human stupidity or ignorance, we’re going to hear about alleged fraud, theft, and conspiracy.

So you heard it here first folks. If the election is a squeaker (and maybe even if it’s not) the ultimate determination of the tenancy of 1600 Pennsylvania Avenue may yet again be made by the Ultimate Supremes. Buckle up; it’s gonna be a wild ride. And I’ll have a follow up article on this in August’s newsletter with more details on the substance of the problems with these electronic voting machines.

Foresight on Websites

Continuing our review of technology, suppose you’re John Kerry, and you choose the freshman senator from North Carolina, namely John Edwards, to be your running mate. Wouldn’t you like to have “kerryedwards.com” as an internet domain, to use for your website?

Now suppose, instead, that you have the unfortunate fate to have been named Kerry Edwards, and you are in the bail bonds business. Further suppose that, in 2002, you had the foresight to obtain the rights to the internet domain name “kerryedwards.com”, and you set up a website with that address, to show off your toddler son to the world.

Ready for the results of all these suppositions and assumptions? Do you hear the train wreck coming? On the day John Kerry announced John Edwards as his running mate, young Master Edwards became the hottest kid on the Internet, registering more than 51,000 viewers at his “kerryedwards.com” website. Even Jessica Simpson would envy those numbers.

If you think back to our article last month on “cybersquatting” cases, you’ll know this Kerry Edwards was not in the wrong by any stretch of the imagination. And while this may be overcome in the world of politics (particularly with the right amount of money–and it was), this true story is a poignant reminder to business owners: make sure you have rights to the domain name(s) of your choice before you commit to your business’s name or trade name. This is just part of your due diligence as you set up your business. For more helpful hints for startups, watch for our new booklet coming out this fall “The McTexLaw Guide to Revving Up your Start-Up.”

My law firm has been on the Internet since 1995. To give you some idea how long ago that was, way back then we were limited to no more than 8 characters after the ISP’s domain name (as in “www.ISPdomainname/8charctrs”). So, I shortened my last name to “mc”, and then shortened “Texas” and “lawyer” to come up with “mctexlaw.” Based on the search engine technology of old, that assured my site of high placement on any search done for a “Texas lawyer.”

Once we (a/k/a “the public”) could buy our own domain names, I acquired “mctexlaw” as my firm’s domain name and we’ve been at that address ever since. Our website is in its third generation. Our first site was little more than a one-page resume on me. The second generation was a fancy-flash-entry “firm brochure” type explaining who we were and what we did. Lot of “wow” type graphics. Our third generation site was launched in May of 2002 and started with over 60 pages of original content. It has grown every month since. Yes, those original 8 chosen characters have taken on a life of their own. Sometimes they seem to run me. Our current website is designed to show “demonstrated competence,” which is what current research shows the people want. And in this election period, what could be more appropriate than reminding you that we give you what you want?

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