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Taking up a much-awaited case in which a disgruntled former employee bombarded Intel Corp. workers with tens of thousands of anti-company e-mails, the California Supreme Court during oral arguments Wednesday appeared to be headed for a 4-3 split. Whether that means a victory for Intel or for former employee Kourosh Hamidi, however, wasn’t clear. While three justices, including Chief Justice Ronald George, appeared to side with Intel, three others were apparently leaning toward Hamidi. The swing vote, who didn’t tip his hand, was Justice Carlos Moreno. Intel Corp. v. Hamidi, S103781, has generated widespread interest, with eight amici curiae — including the U.S. Chamber of Commerce and eBay Inc. — lining up alongside Intel, and the American Civil Liberties Union and the Service Employees International Union supporting Hamidi. The facts of the case are simple. Intel sued for trespass to chattel — company computers in this instance — when Hamidi, fired in 1995, flooded the company’s employees’ computers with as many as 100,000 anti-Intel e-mail messages in a two-year period. A Sacramento County Superior Court trial judge eventually issued an injunction against Hamidi, prohibiting him from e-mailing Intel employees. In 2001, Sacramento, Calif.’s 3rd District Court of Appeal affirmed, stating that while trespass to chattel requires some harm to the computers, that standard was met by the loss of productivity Intel suffered as its employees dealt with Hamidi’s messages. “Nothing in the statute,” the court held in a 2-1 ruling, “suggests any intent to eliminate the application of common law remedies, such as trespass to chattels, to electronic communications.” Attorneys for Hamidi argued in court papers that the ruling “threatens to stifle” e-mail and eliminates the age-old distinction between trespass to real property and trespass to chattel. “In order to maintain a trespass to chattel action,” they wrote, “a plaintiff must prove either actual harm to the chattel itself, or that he has been dispossessed of his chattel for a period of time.” Those arguments got tough questions from George, Justice Janice Rogers Brown and 2nd District Court of Appeal Justice Richard Mosk, who was sitting in for Justice Ming Chin, who recused himself. George asked Hamidi’s lawyer, William McSwain, a partner at Philadelphia’s Dechert, why 30,000 to 100,000 “vitriol”-filled e-mails intentionally targeting a company’s computers couldn’t be viewed as harm? “Why,” he asked, “doesn’t that interfere with the quality or value of the chattel?” Mosk noted that Hamidi’s e-mails were, in a way, an unauthorized use of Intel’s computers, and, therefore, could be construed as damage. Intel, he noted, had asked Hamidi to desist. On the other side of the coin, Justices Joyce Kennard, Kathryn Mickle Werdegar and 2nd District Justice Steven Perren, sitting in for recused Justice Marvin Baxter, seemed bothered by the concept that Intel — and other companies — could consider e-mail a trespass equal to that of trespassing on property. Kennard noted that Hamidi had offered to remove any Intel employees who so desired from his mail list, and about 450 took him up on that offer. The rest didn’t. “So where is the damage to productivity?” she asked Morrison & Foerster partner Michael Jacobs, who represented Intel. “My problem is that Intel has not shown actual injury to its ability to use its computers. There’s nothing in the record.” When Kennard later tried to compare Hamidi’s e-mails to those that theoretically could be sent to the governor and legislators by thousands of residents angry over the state budget, the chief justice weighed in by noting that the government invites citizens to express their opinions, while Intel did not invite Hamidi’s diatribes. That concept disturbed Werdegar, who said she saw no way around the fact that Intel was obviously upset about the content of Hamidi’s messages. If Hamidi had bombarded Intel with invitations to a birthday party or a reunion, she said, “I seriously doubt Intel would have tried to enjoin him.” That, however, prompted Brown to speculate that content had nothing to do with a situation where the e-mailer has no right to use the computer system if he’s been asked to stop. “It seems to me,” she said, “that no matter what your message, you don’t have a right to deliver that message to me if I don’t want it.” The only hint that Moreno gave about his position was a question to Intel’s lawyer, Jacobs, about the availability of Intel employees’ e-mail addresses to the world via the Internet. He said he assumed that in an 18-month period, Intel employees got “millions” of messages. Jacobs said Intel provided “no overt indication of consent to receiving e-mails willy-nilly from everybody.” In a second argument, the justices gave little sense about where they’ll come down in a case that examines what proof disgruntled clients must show in order to sue attorneys for malpractice over botched negotiations. In Viner v. Sweet, S101964, Los Angeles’ 2nd District ruled in 2001 that plaintiffs Michael and Deborah Raffin Viner need not prove that Charles Sweet, then a lawyer for Washington, D.C.’s Williams & Connolly, could have obtained a better outcome for them. The Viners, who were selling off their audio book business, had set certain conditions that had to be met before they would go through with the deal. Sweet didn’t meet the terms, though he claimed he had, and he eventually was hit with a $13 million judgment, reduced by $5 million by the appeal court. Mark Helm, a partner at L.A.’s Munger, Tolles & Olson who represents Sweet and his former law firm, argued that the appeal court ruling exposes transactional lawyers to extreme liability. Transactional lawyers, he said, should have been held to the same standard as litigators, whose clients in a malpractice action must prove that “but for” their lawyer’s negligence, they would have gotten a better outcome. The appeal court’s ruling, he said Wednesday, puts California “way outside the mainstream” of the national norm. “What [the Viners] are really looking for,” he said, “are expectation damages.” The Viners’ case was argued by Patricia Glaser, a partner at Los Angeles’ Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro. Decisions in both cases are expected within 90 days.

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