12/26. The U.S. Court of Appeals (2ndCir) issued its opinion [10 pages in PDF] in MacDermid v. Dieter, a case regarding personal jurisdiction over a distant defendant based upon unauthorized access to a computer system.

MacDermind, Inc. is a chemical company based in Waterbury, Connecticut. It has a subsidiary in Canada. Jackie Dieter, who worked for that subsidiary, lived and worked in Canada. Her contact with the state of Connecticut is MacDermid's allegations, in a complaint filed in the U.S. District Court (DConn), that she used a computer in Canada to access a computer server of MacDermid in Connecticut to download files, in violation of Connecticut state statutes that create a private right of action for unauthorized access to a protected computer system and theft of trade secrets.

Dieter filed a motion to dismiss for lack of personal jurisdiction. The District Court dismissed. This appeal followed.

The Court of Appeals reversed.

It first summarized some of the basic requirements for the exercise of personal jurisdiction established by the Supreme court in International Shoe v. Washington, 326 U.S. 310, World-Wide Volkswagen v. Woodson, 444 U.S. 286, and Burger King v. Rudzewicz, 471 U.S. 462. There must exist minimum contacts between the distant defendant and the forum jurisdiction. The exercise of jurisdiction must not offend traditional notions of fair play and substantial justice. And, the forum court has personal jurisdiction over a nonresident foreigner who has purposefully directed his activities at residents of the forum state.

The Court of Appeals reasoned that "Deiter purposefully availed herself of the privilege of conducting activities within Connecticut because she was aware ``of the centralization and housing of the companies' e-mail system and the storage of confidential, proprietary information and trade secrets´´ in Waterbury, Connecticut, and she used that email system and its Connecticut servers in retrieving and emailing confidential files."

The Court elaborated that "Most Internet users, perhaps, have no idea of the location of the servers through which they send their emails. Here, however, MacDermid has alleged that Deiter knew that the email servers she used and the confidential files she misappropriated were both located in Connecticut. She used those servers to send an email which itself constituted the alleged tort. And in addition to purposefully availing herself of the privilege of conducting computer activities in Connecticut, she directed her allegedly tortious conduct towards MacDermid, a Connecticut corporation."

The Court also noted that the inconvenience of defending oneself in a distant forum has decreased in recent decades because of the "conveniences of modern communication and transportation ease".

This case is MacDermid, Inc. v. Jackie Dieter, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 11-5388-cv, an appeal from the U.S. District Court for the District of Connecticut. Judge Barrington Parker wrote the opinion of the Court of Appeals, in which Judges Newman and Raggi joined.

12/26. The U.S. Court of Appeals (8thCir) issued its opinion [11 pages in PDF] in Dairy Farmers of America v. Bassett & Walker, a case involving personal jurisdiction over a distant defendant.

The Dairy Farmers of America (DFA) is based in Kansas City, Missouri. Bassett & Walker (BW) is based in Toronto, Canada. BW bought dairy products from DFA on credit.

The DFA filed a complaint in the U.S. District Court (WDMo) against BW to enforce contract debts. BW had no agent for service of process, offices, property, bank accounts, telephone listings, or employees in Missouri, and did not advertise or promote its business in Missouri. However, BW communicated by phone and email with the DFA's Missouri headquarters about delivery and billing.

BW moved to dismiss for lack of personal jurisdiction. The District Court dismissed. This appeal followed.

The Court of Appeals affirmed, both under the Missouri long arm jurisdiction statute, and the federal Constitution's due process limitation upon the exercise of personal jurisdiction. BW's phone calls and email to Missouri were insufficient to constitute a "transaction of any business within this state" as required by the state long arm statute. They were also insufficient to satisfy the due process component of the exercise of personal jurisdiction.

This case is Dairy Farmers of America, Inc. v. Bassett & Walker International, Inc., U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 12-1723, an appeal from the U.S. District Court for the Western District of Missouri, Judge Fernando Gaitan presiding. Judge Benton wrote the opinion of the Court of Appeals, in which Judges Malloy and Kristine Baker (USDC/EDArk sitting by designation) joined.

12/27. The U.S. Court of Appeals (7thCir) issued its opinion [19 pages in PDF] in In Re Sulphuric Acid Antitrust Litigation, a class action antitrust case, brought under Section 1 of the Sherman, in which the plaintiffs asserted per se liability for alleged price fixing.

The plaintiffs are chemical companies that purchase sulfuric acid as one of the inputs into their production of chemicals. The defendants own smelters that process nonferrous minerals such as nickel and copper. They also produce sulfuric acid and sell or sold it to plaintiffs.

The District Court ruled that the case could not proceed on the theory of per se liability. The plaintiffs decided to appeal, and forego the opportunity to proceed to trial on a rule of reason theory. The Court of Appeals affirmed, with antitrust authority Richard Posner writing the opinion.

The facts of this case do not involve information or communications technology. However, price fixing and per se versus the rule of reason are also applicable in analyzing certain business practices in tech sectors. Also, the precedents addressed at length in this opinion include Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979), and Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877. See, story titled "SCUS Holds That All Vertical Price Restraints Are Subject to Rule of Reason" in TLJ Daily E-Mail Alert No. 1,603, June 28, 2007.

This case is In Re Sulphuric Acid Antitrust Litigation, U.S. Court of Appeals for the 7th Circuit, App. Ct. Nos. 12-1109 and 12-1224, appeals from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 03 C 4576, Judge James Holderman presiding. Judge Posner wrote the opinion of the Court of Appeals, in which Judges Kanne and Sykes joined.

1/1. The House again passed HR 6621 [LOC | WW], an untitled bill that would make numerous changes to patent law.

The House passed this bill on December 18. See, story titled "House Passes Rep. Smith's Patent Bill" in TLJ Daily E-Mail Alert No. 4,494, December 19, 2012.

The Senate passed it on December 28, but deleted one controversial provision regarding pre-GATT patent applications. The House has now agreed to the Senate amendment. The bill is now ready for President Obama's signature.

The Senate passed a substitute amendment offered by Sen. Patrick Leahy (D-VT) and Sen. Charles Grassley (R-IA). See, "Senate Amends and Passes Rep. Smith's Patent Bill" in TLJ Daily E-Mail Alert No. 2,499, December 30, 2012.

Rep. Lamar Smith (R-TX) and Rep. Bobby Scott (D-VA) spoke in the House on December 30 in support of agreeing to the Senate amendment. However, the vote was postponed. The House approved the Senate amendment on January 1, 2013, by unanimous consent, in seconds, at 11:13 PM.

12/28. Lisa Jackson, Administrator of the Environmental Protection Agency (EPA), announced on December 27 that she will leave the EPA in January. See, EPA release.

Most of the activities of the EPA do not directly impact information and communications technology (ICT). Also, in the past four years, the EPA did not inflict the same regulatory harm upon the consumer electronics manufacturers that it did upon so many other US industry sectors. Thus, Michael Petricone of the Consumer Electronics Association (CEA) stated in a release on December 28 that the "CEA commends Administrator Jackson's public service".

The EPA, both during Jackson's tenure and before, has provided a useful point of comparison for assessing US regulatory agencies' adherence to statutory mandates, procedural fairness to affected parties, openness, and transparency, and decision making based upon empirical evidence and scientific and technological expertise. On all procedural criteria, the EPA makes other agency processes appear sound in comparison.

While some in the IT sector complain that the Federal Trade Commission (FTC) is creating out of thin air new antitrust powers to regulate the dynamic tech sector, while some complain that the Securities and Exchange Commission (SEC) fails to implement the statute passed to facilitate capital formation for start ups in the tech sector, and while many perceive all manner of procedural mischief at the Federal Communications Commission (FCC), Lisa Jackson's presence in Washington has provided a constant reminder of just how arbitrary and unfair administrative processes can become in the US.

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The story titled "Senate Passes Economic Espionage Penalties Bill" in TLJ Daily E-Mail Alert No. 2,496, December 21, 2012 stated that "The Senate passed HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012", on December 19, 2012. The House passed this bill on August 1, 2012. This bill is now ready for President Obama's signature." In fact, the Senate amended the bill. The Senate deleted from the House bill a provision that would increase the statutory maximum penalty from 15 to 20 years imprisonment. Hence, the bill was not ready for President Obama's signature.

1/1.The House again passed HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012.

The House passed this bill in August. The Senate passed it in December, but deleted one provision. The House has now agreed to the Senate amendment. The bill is now ready for President Obama's signature.

Rep. Lamar Smith (R-TX), Rep. John Conyers (D-MI), and others introduced this bill on June 27, 2012. See, story titled "Representatives Introduce Bill to Increase Penalties for Economic Espionage" in TLJ Daily E-Mail Alert No. 2,405, July 9, 2012.

The House passed this bill on August 1. See, story titled "House Passes Bill that Increases Penalties for Economic Espionage" in TLJ Daily E-Mail Alert No. 2,418, August 2, 2012.

The Senate amended and passed this bill on December 19, 2012. See, story titled "Senate Passes Economic Espionage Penalties Bill" in TLJ Daily E-Mail Alert No. 2,496, December 21, 2012.

Rep. Smith stated in the House on December 30 that the bill passed by the House in August included a provision that increased "the maximum penalty from 15 to 20 years imprisonment". He added that "Several Senators wanted to give further consideration to the proposed statutory maximum increase from 15 to 20 years imprisonment. The Senate amended H.R. 6029 by deleting this single provision." He concluded, "I urge my colleagues to support H.R. 6029 as it was amended by the Senate."

Rep. Bobby Scott (D-VA) also spoke in support of the Senate amendment in the House on December 30. He said that "Economic espionage represents a significant cost to victim companies and threatens the economic security of the United States. This crime inflicts costs on companies, such as the loss of unique intellectual property, the loss of expenditures related to research and development, and the loss of future revenues and profits. Many companies are unaware when their sensitive data is pilfered, and those that find out are often reluctant to report the losses, fearing potential damage to their reputations with investors, customers, and employees. The pace of the foreign collection of economic information and industrial espionage activities against major United States corporations is accelerating."

The House approved the Senate amendment on January 1, 2013, by unanimous consent, in seconds, at 11:13 PM.

New Year's Day. This is a federal holiday. See, OPM list of 2013 federal holidays.

The House will meet at 12:00 NOON.

The House will meet at 10:00 AM.

The Senate will meet at 12:00 NOON.

Deadline to submit oppositions to Motorola Solutions's petition for reconsideration of the FCC's Report and Order regarding certification and use of Terrestrial Trunked Radio (TETRA) technology on certain Part 90 land mobile radio frequencies. This R&O is FCC 12-114 in WT Docket No. 11-69. See also, notice in the Federal Register, Vol. 77, No. 243, December 18, 2012, at Pages 74822-74823.

? The House will meet. See, House calendar for 113th Congress, 1st Session.

? The House will meet. See, House calendar for 113th Congress, 1st Session.

8:30 AM. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its December 2012 unemployment data.

EXTENDED TO FEBRUARY 4. 5:00 PM. Deadline to submit initial comments to the Copyright Office (CO) in response to its notice of inquiry (NOI) titled "Orphan Works and Mass Digitization". See, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Pages 64555-64561. See also, story titled "Copyright Office Issues Notice of Inquiry on Orphan Works" in TLJ Daily E-Mail Alert No. 2,468, November 2, 2012. See, extension notice in the Federal Register, Vol. 77, No. 231, November 30, 2012 at Page 71452.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its December 3, 2012 Public Notice (PN) that seeks comments on the FCC Media Bureau's November 14, 2012 report [121 pages in PDF] regarding regulation of media ownership. The December 3 PN is DA 12-1946. The November 14 report is DA 12-1667. See also, notice in the Federal Register, Vol. 77, No. 237, Monday, December 10, 2012, at Pages 73461-73462, and story titled "Sen. Sanders and Others Urge FCC to Continue Ancient Newspaper Broadcast Cross Ownership Rule" in TLJ Daily E-Mail Alert No. 2,484, December 6, 2012.

5:00 PM. Deadline to submit initial comments to the Copyright Office (CO) in response to its notice in the Federal Register regarding its proposed fee schedule for filing cable and satellite statements of account. See, FR, Vol. 77, No. 235, December 6, 2012, at Pages 72788-72791.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [57 pages in PDF] regarding cable TV technical rules. The FCC adopted and released this item on August 3, 2012. It is FCC 12-86 in MB Docket No. 12-217. See, notice in the Federal Register Vol. 77, No. 195, October 9, 2012, at Pages 61351-61375. See also, TLJ story titled "FCC Adopts NPRM Regarding Cable TV Technical Rules" in TLJ Daily E-Mail Alert No. 2,421, August 5, 2012.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its proposed rules changes pertaining to voluntary self disclosures (VSD) of violations of the Export Administration Regulations (EAR). See, notice in the Federal Register, Vol. 77, No. 216, November 7, 2012, at Pages 66777-66780.

EXTENDED FROM DECEMBER 26. Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its November 1 Public Notice (PN) seeking updated information and comment on review of hearing aid compatibility regulations. This PN is DA 12-1745 in WT Docket No. 10-254. See also, November 27 extension Public Notice (DA 12-1898) and extension notice in the Federal Register, Vol. 77, No. 234, December 5, 2012, at Pages 72294-72295.

Deadline to submit comments to the Department of Health and Human Services (DHHS) in response to its December 7, 2012 notice in the Federal Register (FR) regarding health information technology. This notice contains interim final changes to the final rule published in the DHHS's September 4, 2012 notice in the FR. See, FR, Vol. 77, No. 236, December 7, 2012, at Pages 72985-72991, and FR, Vol. 77, No. 171, September 4, 2012, at Pages 54163-54292.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding implementation of Phase II of the Mobility Fund, which pertains to universal service fund subsidies for mobile broadband. The FCC released this PN on November 27, 2012. It is DA 12-1853 in WC Docket No. 10-90 and WT Docket No. 10-208.  See, notice in the Federal Register, Vol. 77, No. 238, December 11, 2012, at Pages 73586-73589.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its proposed consent agreement with Epic Marketplace, Inc. (an online behavioral advertising company) and Epic Media Group, LLC (its parent company). The complaint alleged violation of Section 5 of the FTC Act in connection with Epic's misrepresentation of the web browsing information that it collected. See, notice in the Federal Register, Vol. 77, No. 238, December 11, 2012, at Pages 73655-73657. See also, story titled "FTC Brings Action Against Behavioral Advertising Company for History Sniffing" in TLJ Daily E-Mail Alert No. 2,489, December 12, 2012.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Trademark Search Strategies in Europe, Latin America, Canada, and the U.S.". The speakers will be Matthias Berger (Harmsen Utescher), Katrin Lewertoff (Arent Fox), John McKeown (Cassels Brock & Blackwell), Mariano Municoy (Moeller IP), and Naresh Kilaru (Finnegan Henderson). Prices vary. CLE credits. See, notice.

9:30 AM. The Securities and Exchange Commission (SEC) will hold a prehearing conference in the matter of Deloitte Touche Tohmatsu Certified Public Accountants Ltd. and BDO China Dahua CPA Co., Ltd., et al., Administrative Proceeding File Nos. 3-14872 and 3-15116. See, story titled "SEC to Hold Prehearing Conference in Cases Against PRC Accounting Firms" in TLJ Daily E-Mail Alert No. 2,500, December 31, 2012. Location: SEC, Hearing Room 2, 100 F St., NE.

12:15 - 1:45 PM. The DC Bar Association's Media Law Committee will hold a brown bag lunch meeting. Free. No CLE credits. Closed to reporters. See, notice. For more information, call 202-626-3463. Location: Washington Post, 1150 15th St., NW.

6:00 - 9:15 PM. The DC Bar Association will host a program titled "Introduction to Export Controls". The speakers will be Carol Kalinoski and Thomas Scott (Ladner & Associates). The price to attend ranges from $89 to $129. CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.