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An online PhD in fine arts is a path to the mastery of art expertise and comprehension of the most advanced forms of art scholarship. Programs often combine courses in visual art, music, and theatre to create a comprehensive exploration into all elements of art. Others focus mainly on fine art and visual art. Students may specialize in particular areas, or they may choose to create an interdisciplinary degree program.
Students in online fine arts Ph.D. programs will learn about the history of art. They will become savvy critics and experts on the arts’ current impact on modern culture. Students will also gain an astute understanding of the business behind the art industry. Graduates will finish an online fine arts Ph.D. program with the ability to interpret all forms of art, serve as consultants in the art industry, and teach art in an academic institution.
Cultural History of Art. Students will examine the social, religious, political, and economic influences on art throughout history.
Critical Terminology for Art History and Cultural Art History.This course will explore the terminology used to discuss and critique art and how it has developed through time and also shaped the art industry.
The Art of the Ancient Near East and Prehistoric Europe . This course focuses on art from the sixth to the second millennium B.C.E. in Mesopotamia, Egypt, the Aegean, and prehistoric Europe.
Modern Art. This course covers the change in art culture from 1890-1945 and examines movements like Neo-Impressionism, Symbolism, Fauvism, Cubism, Futurism, Expressionism, Constructivism, Metaphysical painting, De Stijl, Dada, Surrealism, Social Realism, Abstract Expressionism, and Pop art.
The History of Graphic Arts. Students will study graphic art techniques, such as printmaking, photography, original print, and 20th century mixed media.
Women in American Art. This course will cover the role of women in American art from the colonial period to present day.
An online Ph.D. degree in fine art will usually include a dissertation. The dissertation period will take up roughly one semester, but students will most likely need to use quite a bit of free time to research and will need to start preparing their dissertations well before the designated work period. Programs that do not require dissertations typically require some form of final project.
The value of a Ph.D. in fine arts depends largely on how the degree is intended to be used. If students prefer to create art and become working artists, such a high-level degree is not necessary or a predictor of industry success. Most students in online Ph.D. programs in fine art aim to become researchers and teachers of art at the university level. Other students plan to become curators, to open galleries, or to serve as executive art consultants to businesses and arts organizations.
The downside of a Ph.D. program in fine art is the time it takes to complete. The level of employment gained may not compensate for the time such a degree will take out of one’s career. There is also high tuition that will need to be paid off with no guarantee of a lucrative position waiting upon graduation. However, graduates with Ph.D.s in the arts are much more qualified to take on leadership roles in any area in the art industry, so in that sense the degree could be very worthwhile.
All Ph.D. programs receive many applications every term and only select a small number of students, so the competition can be fierce. Students should work to go above and beyond admission requirements to get noticed. Application requirements will include a bachelor’s or master’s degree in a related field, transcripts with a strong GPA, several recommendations, GRE scores, and a personal essay. Students may also be required to include samples of previous work, such as art projects or academic papers.
There are many career options for those with Ph.D.s in fine arts. Students often become professors at colleges or universities, curators, gallery owners, archivists, or critics. The Bureau of Labor Statistics reports a 2010 median salary of $62,050 for professors, one of the most common professions for art Ph.D.s. The job outlook was reported to increase by 17%, about the same as average job growth.
Americans for the Arts This is the leading nonprofit organization in the U.S. dedicated to advancement of the arts and arts education. There are possibilities to join as a member and network with others in the industry.
Americans for the Arts Job BankThis is a comprehensive database of currently available jobs in the arts.
International Foundation for Art Research This is a nonprofit research organization dedicated to integrity in the visual arts.
Most students will be eligible for federal Stafford or Perkins loans, private loans, or federal grants. They can apply for this funding by filling out a FAFSA. Students can also apply for outside scholarships. Students should contact the financial aid offices of their universities and inquire about institutional scholarships or lists of outside organizational scholarships for art students.
Federal Direct Stafford Loan. The Stafford Loan program offers an interest rate fixed at 6.80% and a maximum loan amount of $12,500 per academic year. These funding amounts are offered to students studying above the bachelor’s level.
Federal Perkins Loan. The Federal Perkins Loan is based on need. Students are awarded low-interest loans, typically at around 5.0%, and are offered an average of $3,500 per year.
Campus-Based Aid. Look into campus-based programs by inquiring with the financial aid office. Many universities offer scholarships and grants to deserving students.
Is an online Ph.D. in fine art right for you? This is a very important decision due to the time and money involved in completing a program. It’s vital to make sure that this is the right move in the long run and be sure that your career will benefit from this degree.
Get your application in as soon as possible. There will be many steps involved in the application process, so it’s important to start early, especially when it comes to contacting references and taking the GRE.
Consider an art internship. Students who take a year or two off and work in the art world for a while before committing to Ph.D. programs often have higher success rates and less potential for burnout. Chances of being accepted into prestigious schools also increase with more experience.
Be aware of costs. Know exactly how much this degree will cost you and do everything you can do to get the most out of your financial aid. Applying to outside scholarships is time consuming but well worth the effort.

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Plaintiffs' lawyers and privacy advocates are spurring rapid growth in the area of "privacy" litigation. Plaintiffs' lawyers apparently see privacy litigation as a new source of revenue, while privacy advocates see it as a way of answering the need for perceived privacy protections. Whether brought for financial gain or policy reasons, such litigation represents a drain on company resources and the possibility of significant financial loss. Therefore, companies need to be aware of the emerging trends in this area, especially since privacy concerns and security lapses are becoming one of the fastest-growing sources of litigation in the U.S.
Privacy litigation has arisen in two primary ways: (1) as the result of a data breach arising from the unauthorized disclosure of personal information found in an organization's records, or (2) from the alleged invasion of an individual's privacy as the result of the collection, use, and disclosure of personal information by companies with whom the affected individual has had contact. Data breaches can take many forms, including unintended disclosure, theft by employees or contractors, physical loss of the information, and theft by hacking. Alleged invasions of privacy can also arise in a variety of contexts, such as circumventing users' privacy settings, collecting users' personal information through mobile applications ("apps"), flash cookies, or social networking sites without permission, or using personal information or internet browsing history to provide online behavioral advertising ("OBA").
Issues common to all privacy litigation include whether plaintiffs can establish injury to themselves and, if so, whether they can also establish damages. These are factors in all civil litigation matters with which Keller and Heckman lawyers are very familiar. Plaintiffs have generally had problems establishing these issues. Yet, this has not stopped plaintiffs' attorneys and privacy advocates from continuing to file suit.
This paper provides an overview of the current legal landscape in privacy and data security litigation and discusses emerging trends in this area. Although these current trends are discussed herein, the law can, and may, change either through judicial intervention or legislative or regulatory action.
The world of information technology has vastly expanded in just the past few decades. Consumers can go online to shop, pay bills, check financial records, view medical records, or store information in the "cloud," all with just the "click" of a button. Consumers trust their personal information to many types of businesses and expect companies to safeguard their information during collection, retention, and disposal.
The number of data breaches, however, seems to be ever increasing. The Privacy Rights Clearinghouse estimates that for the first eight months of 2012 alone, there have been a total of 494 breaches publicly identified, involving more than 19 million records. This is compared to a total of 592 breaches publicly identified in 2011, which involved more than 31 million records, reports that may not represent the full universe of breaches. Negligent employees and malicious attacks are most often the cause of a breach, and hackers nowadays are becoming more sophisticated. Not only are hackers obtaining personal information, such as names, user logins, passwords, and Social Security, debit or credit card information, but some hackers are posting this information on Internet websites for others to see.
Major data breaches in 2012 involving companies like Global Payments, Inc., LinkedIn Corporation, Yahoo! Inc., and Zappos, have triggered multi-million dollar, class action lawsuits alleging a failure to safeguard personal information and/or a delay in the notification of a breach. The Global Payments data breach alone compromised an estimated 1.5 million credit card numbers, and resulted in a proposed class action lawsuit against the company, alleging that it did not adequately safeguard its computer systems, allowing hackers to steal cardholders' personal and financial information. Global Payments has estimated that the breach alone will cost the company more than $120 million, not factoring in the cost of litigation. The bulk of the costs involve fines from credit card companies.
Claims arising from data breaches have included common law actions of breach of contract, negligence, breach of fiduciary duty, breach of implied covenant of good faith and fair dealing, invasion of privacy, and fraud, as well as statutory claims under state consumer protection acts, state unfair trade practices acts, and state data breach notification laws. In many data breach lawsuits, plaintiffs are seeking relief for alleged harms, such as actual financial loss as a result of identity theft, emotional distress, costs of credit monitoring, or anticipated future losses.
The growth of the Internet and social media, and expansion onto mobile platforms, has also sparked increased concerns over consumer privacy as technology drives more information sharing between companies. Virtually all companies in diverse lines of business are now collecting information about consumers, including, at times, personal information, through a variety of avenues and for a number of different reasons. As a result, it is vitally important for all businesses to understand what privacy concerns are being raised by consumers through litigation.
Consumer "privacy" class action lawsuits have typically arisen in the context of targeted advertising or OBA, social networking, mobile apps, mobile tracking or use of geolocation, flash cookies or other "tracking" cookies, history sniffing, children's privacy, circumventing users' privacy settings, collecting personal information without the users' knowledge or consent, and disclosing personal information to third parties. These lawsuits involve similar state law claims as those being brought in data breach cases. In addition, plaintiffs have alleged unjust enrichment, trespass to personal property/chattel, and violations of federal statutes, such as the Computer Fraud and Abuse Act ("CFAA"), the Wiretap Act, and the Stored Communications Act ("SCA"). Of course, plaintiffs need only hit on one such cause of action to move forward. In many privacy related lawsuits, plaintiffs are seeking relief for alleged harms, such as tracking their online activities or collecting personal information without express consent, the lack of reasonable notice and choice to consumers of tracking or collection of personal information, restitution of monies allegedly unjustly obtained by the defendants through the sale of personal information, compensation for emotional distress, costs of cleaning hard drives to remove cookies, and statutory damages.
Every plaintiff has to demonstrate his/her standing to bring a suit. Generally speaking, standing requires that the plaintiff have a personal stake in the litigation. One aspect of standing is that the plaintiff has "suffered an ‘injury in fact' – an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not ‘conjectural' or ‘hypothetical.'" Allegations of identity theft or an actual loss of economic value of the plaintiff's personal information have been found to demonstrate sufficient personal "injury in fact" to establish standing. Absent such allegations, the courts have been generally unreceptive to plaintiffs' claims that they suffered an injury in fact in a privacy-based suit.
In data breach lawsuits, plaintiffs must generally show that there is something more than the mere exposure of personal information in order for there to be sufficient harm to establish standing. The plaintiff must either allege facts demonstrating an actual injury or "a threatened injury must be ‘certainly impending.'" An indefinite risk of future harm is not sufficient. For example, claims that a class of former employees of customers of payroll processing company Ceridian Corporation were harmed when a hacker infiltrated Ceridian's payroll processing system and potentially gained access to their personal information were rejected. The suit, Reilly v. Ceridian Corporation, involved the alleged compromise of such personal data as first and last names, social security numbers, birth dates, and bank account numbers of approximately 27,000 employees at 1,900 companies. It was not known, however, whether the hacker read, copied, or understood the data accessed.
Ceridian notified the people it thought were affected by the data breach and provided them with one year of free credit monitoring and identity theft protection prior to the suit. The complaint filed against Ceridian, however, alleged that the plaintiffs had suffered: (1) an increased risk of identity theft; (2) costs to monitor their credit; and (3) emotional harm. The trial court dismissed the case and the United States Court of Appeals for the Third Circuit affirmed. The case was dismissed because the plaintiffs had only alleged hypothetical, future injury. According to the Court of Appeals, plaintiffs were conjecturing that the hacker had read, copied, and understood their personal information, intended to commit future criminal acts using the information, and would be able to use the information to the detriment of the plaintiffs. The Court held that until those conjectures came true, there had been no misuse of the information and, thus, no harm and dismissal of the suit was appropriate.
Other plaintiffs have run into problems similar to those that defeated the Reilly class. Generally, mere allegations of an increased risk of future identity theft has not been found to be a harm that the law is prepared to remedy. However, a few cases have found that based on the specific facts of the case there was sufficient likelihood of identity theft to establish standing. The difference appears to rest on the type and clarity of the personal information involved and the circumstances under which the data breach arose. Indeed, the Reilly court provided some usable guidance on this question. The court cited cases where the data breach was the result of sophisticated, intentional, and malicious hacking and where someone attempted to open a bank account with a plaintiff's information following the physical theft of a laptop as examples of situations where sufficient harm was alleged.
Plaintiffs in privacy lawsuits have claimed that they suffered the invasion of a protected right or the loss of an economic benefit as a result of the defendant's conduct. Generally, plaintiffs have not succeeded in making sufficient allegations to demonstrate standing.
For example, in a flash cookies/OBA case, LaCourt v. Specific Media, plaintiffs claimed that Specific Media, a leading online third party ad network, used Adobe Flash Local Shared Objects ("LSOs" or "flash cookies") either to circumvent the privacy and security controls of users who had set their browsers to block third party http cookies, or to re-spawn deleted http browser cookies in connection with OBA. Flash cookies are used to assist in storing user preferences, game play, and other activities. They are said to be "super cookies" that never expire and are protected against deletion by the user, and allegedly were used to track users across websites to provide targeted advertising. A federal district court in California found that plaintiffs had failed to allege harm or economic injury sufficient to demonstrate standing.
In particular, plaintiffs did not actually allege that Specific Media tracked the online activity of any named plaintiff, that plaintiffs ever deleted any Specific Media browser cookies, or that plaintiffs' browser cookies were ever "re-spawned" by Specific Media. Rather, the complaint simply alleged that Specific Media installed flash cookies on plaintiffs' computers and plaintiffs believed that the LSOs would be used as substitutes for http cookies and would re-spawn previously deleted cookies. The court found that such subjective allegations did not allege the fact of injury. Additionally, the court rejected plaintiffs' claims that they had suffered economic loss. The court noted that plaintiffs did not identify a single individual who was foreclosed from entering into a "value-for-value exchange" as a result of the defendant's conduct, nor did they explain how they were "deprived" of the economic value of their personal information. In essence, nothing indicated that the plaintiffs ascribed an economic value to their personal information and the plaintiffs failed to explain how they were deprived of any economic value of their personal information.
Similarly, in the social networking context, a putative class action against Facebook, Inc. arising from the site's use of their names and likenesses in its "Friend Finder" service was dismissed for failure to allege harm. Rather than claiming any emotional distress or other damages, plaintiffs argued that Facebook was using their names and likenesses without permission to turn a profit by selling advertisements. In dismissing the case in its entirety, the court found that the use of the names and likenesses of non-celebrity private individuals without compensation or consent did not cause injury sufficient to establish standing. The names and likenesses were merely displayed on the pages of other users who were already the plaintiffs' Facebook friends and who would regularly see, or at least have access to, those names and likenesses in the ordinary course of using their own Facebook account. The situation might have been different if the complaint alleged violation of a specific statute regulating the use of a personal likeness in advertising, as exists in several states.
Plaintiffs have had similar problems in the context of alleged disclosure of personal information to third party advertisers. The disclosure of a users' personal information to third party advertisers can be done for a number of reasons, including providing targeted advertisements to the user. A class action lawsuit was filed against LinkedIn involving its alleged data sharing with third party advertising and marketing companies through the use of "cookies" or "beacons." The plaintiff alleged that he was harmed after suffering embarrassment and humiliation caused by the disclosure of his personally identifiable browsing history, and that his browsing history is valuable personal property with a market value, which was taken without compensation. The court, however, found that plaintiff failed to: (a) allege that LinkedIn linked plaintiff's identity to his browsing history; (b) establish how the third parties would be able to infer plaintiff's identity; and (c) allege facts to demonstrate economic harm by LinkedIn's practices or loss of the value of personal data.
In contrast, plaintiffs have been able to make specific allegations of harm and economic damages sufficient to establish standing in the mobile tracking context. Mobile tracking and use of geolocation technology essentially uses data acquired from an individual's computer or mobile device to identify or describe the user's actual physical location. Geolocation technology has become a foundation for location positioning services, social networking services, and location-aware apps running on smartphones. In a multi-district litigation filed against Apple, Inc., Google, Inc., and other "mobile industry defendants," plaintiffs claimed that the defendants violated their privacy rights by unlawfully allowing third party apps that run on Apple's' iPhone, iPad, and iPod Touch to collect and make use of, for commercial purposes, personal information stored on the device without the user's consent or knowledge. Plaintiffs alleged that at least three types of "injury-in-fact" occurred: (1) misappropriation or misuse of personal information; (2) diminution in value of the personal information, which is an "asset of economic value" due to its scarcity; and (3) "lost opportunity costs" in having installed the apps, and diminution in value of the iDevices because they are "less secure" and "less valuable" in light of the privacy concerns.
In their Amended Consolidated Complaint, plaintiffs identified the devices plaintiffs used, which defendants accessed or tracked their personal information, which apps plaintiffs downloaded that accessed or tracked their personal information, what harm resulted from the access or tracking of their personal information, and the specific type of personal information collected, which the court found were sufficiently concrete to support standing. Moreover, the court found that plaintiffs alleged additional theories of harm, including "diminished and consumed iDevice resources, such as storage, battery life, and bandwidth," "increased, unexpected, and unreasonable risk to the security of sensitive personal information," and "detrimental reliance on Apple's representations regarding the privacy protection afforded to users of iDevice apps."
In part because of the standing issues they have confronted, plaintiffs have been including claims based on alleged statutory violations in an attempt to establish standing. To determine standing in such cases, courts generally look to whether the statute can be "understood as granting persons in the plaintiff's position a right to judicial relief." This standing question is independent of the merits of the case.
In the mobile tracking case, In re iPhone/iPad Application Consumer Privacy Litigation, plaintiffs alleged a violation of their statutory rights under the Wiretap Act and SCA in the First Amended Consolidated Complaint. Specifically, the plaintiffs claimed violations of the Wiretap Act because Apple allegedly intercepted wire electronic communications, including geolocation data, from the plaintiffs' iPhones and used such data to develop a database about the locations of cellular towers and wireless networks; and violations of the SCA because defendants allegedly intentionally accessed and collected temporarily stored location data from iPhones. Recognizing that violation of the Wiretap Act or the SCA have been found by other courts to serve as a concrete injury for purposes of standing, the court found standing under these statutory claims, noting that the injury necessary to support standing may exist by virtue of "statutes creating legal rights, the invasion of which creates standing."
Nevertheless, claims in cases involving allegations of statutory violations must allege violations of each of the statutory elements, or such a claim will be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to allege a claim upon which relief can be granted. See infra, Section II(D).
In attempting to avoid standing problems by alleging statutory violations, plaintiffs in invasion of privacy cases have relied on the CFAA, among others. The CFAA is known as the "anti-hacking statute" and is primarily a criminal statute. It prohibits accessing and obtaining information from a computer without authorization, and it permits anyone who has suffered at least $5,000 in damages in any 1-year period, or under certain circumstances, a group of people who collectively have suffered such damages, to sue for compensatory damages and injunctive or other equitable relief. Plaintiffs, however, have had difficulty meeting the CFAA's statutory damage requirement.
Similar rulings have arisen in the context of "history sniffing." Like flash cookies that are used for OBA, history sniffing involves companies "peeking" into a user's Internet visitation history to create a profile of the user, which is then used to advertise or market across websites. In Bose v. Interclick, Inc., the plaintiff alleged that the placement of "flash cookies" and use of "history sniffing" code on websites to target advertising violated the CFAA. The court dismissed advertisers McDonald's, CBS, Mazda, and Microsoft from the case based on the plaintiff's failure to quantify any damage, including any costs associated with either repairing or investigating the alleged damage caused to the computer. The court found that Bose's claimed damages due to the impairment of her computer, the collection of her personal information, and interruption of Internet service were insufficient.
Litigating any case is expensive and involves risk. Since almost every privacy case today is being brought as a class action lawsuit, the risk is even greater. Given the size of the data breaches and the breadth of data collection, the class sizes can be very large. For instance, Fraley v. Facebook, Inc., a case involving claims over Facebook's use of users' names and likenesses in its "Sponsored Stories" service, allegedly involved approximately 71.1 million users who fit the plaintiff class definition. Even a small recovery to each of the class members represents a significant amount of money. In these circumstances, a defensive settlement may make sense. However, not just any settlement will do.
Settling a class action requires court approval. Settlements can be challenged by any member of the class and, in certain circumstances, by non-class members as well. In Fraley v. Facebook, Inc., the court recently rejected a proposed $20 million class settlement into which the parties had entered, that provided for the payment of $10 million to certain organizations involved in internet privacy issues, and allowed plaintiffs to apply for an attorney fee award of up to $10 million. The court's rejection was based on the fact that: (1) the settlement provided no monetary relief directly to class members, even though the statute under which plaintiffs' claims were brought provided for statutory damages of $750 for each violation; (2) even if settlement involving a payment to charity (cy pres) is appropriate in lieu of payments to class members, the court questioned whether $10 million in cy pres recovery was fair, adequate, and reasonable based on the nature of the complaint; (3) the proposed settlement did not specifically require Facebook to allow users to opt-out of the Sponsored Stories; and (4) the ratio of the $10 million in attorneys' fees, compared with the $10 million in cy pres payment, raised serious concern. In fact, the total settlement in Fraley was valued at $123,537,500, which included an estimated value of $103.2 million for future "Sponsored Stories."
Privacy and data security lawsuits are on the rise, but despite the increase, the track record suggests that it can be extraordinarily difficult for plaintiffs to prevail, often because they simply cannot establish damages. That may be one reason privacy advocates are increasing efforts to promote federal privacy legislation and advocating for laws that recognize private rights of action and allow for allegations of emotional distress and other harms to support a cause of action.
The Electronic Privacy Information Center, for example, is urging Congress to "update" the ECPA to permit individuals to be compensated for provable, non-pecuniary harms. Other consumer groups have embraced the recent White House privacy report calling for a "Consumer Privacy Bill of Rights," and continue to call for federal baseline privacy legislation that nevertheless allows states to adopt still more stringent laws. Even at the National Telecommunication and Information Administration's (NTIA) first "multistakeholder" meeting on the topic of developing privacy codes of conduct, numerous consumer groups called for the process to result in an agreement on legislative standards.
The prospects for privacy legislation seem somewhat dim in this election season, and there is another side to the debate about privacy: free content needs to be subsidized in whole, or in part. Newspapers, magazines, radio, television, and now the Internet and mobile offerings have been fueled by the engine of advertising. In a digital world where targeted advertising is king, data collection and use will remain a fact of life. There is no question, however, that those who are careless with data or fail to disclose privacy practices, especially the collection and use of data that may not be consistent with a reasonable consumer's understanding, are at risk not only in terms of litigation, but new legislation that may be more favorable to plaintiffs should the political winds shift. Strong self-regulatory standards remain an important bulwark against ill-conceived legislation that might hamper what has become an area of growth in an otherwise bleak economy.
In light of these trends, companies should be proactive in embracing best practices to not only ensure compliance with privacy laws and regulations, but to consider whether privacy practices are transparent and clear, and consistent with consumer expectations. Doing so may offer the best chance of avoiding potential litigation.
Implementing best practices in privacy and data security should begin with three fundamental principles: Know; Say; and Do. Know what data you are collecting and how it is protected. Say what you do – be transparent about practices in your privacy notices. Do what you say – periodically confirm compliance, update policies, and representations as appropriate, and stay abreast of evolving technology and evolving expectations of consumers and regulators. Privacy and data security is a value that we all share. Mistakes and lapses may always occur, but those who make privacy a priority, communicate the value of data collection to consumers, and take action to adhere to the standards they adopt, may find that they can win commercially and avoid litigation.
 See Privacy Rights Clearinghouse, Chronology of Data Breaches; available at: https://www.privacyrights.org/data-breach-how-to (last accessed Sept. 10, 2012).
 Ponemon Institute, Inc., "2011 Cost of a Data Breach Study: United States" (March 2012).
 Willingham v. Global Payments, Inc., No. 12-cv-01157 (N.D. Ga. Apr. 4, 2012).
 See Global Payments, Inc. "Form 10-K Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, For the fiscal year ended May 31, 2012" (filed July 27, 2012).
 The CFAA is generally intended to reduce the hacking of computer systems, and provides criminal offenses for "knowingly" or "intentionally" accessing a computer without the user's authorization. 18 U.S.C. §§ 1030, et seq.
 Title I of Electronic Communications Privacy Act ("ECPA"), also known as the Wiretap Act, protects wire, oral, and electronic communications while in transit, and provides civil recovery if an electronic communication is "intercepted, disclosed, or intentionally used" in violation of the Act. 18 U.S.C. §§ 2510, et seq.
 Title II of the ECPA, also known as the SCA, generally protects wire or electronic communications that are held in electronic storage, which includes messages stored on a computer, and prohibits: (1) intentionally accessing without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeding authorization to access that facility; and obtaining, altering, or preventing authorized access to a wire or electronic communication while it is in electronic storage. 18 U.S.C. §§ 2701, et seq.
 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (citations omitted).
 Reilly v. Ceridian Corporation, 664 F.3d 38 (3d Cir. 2011), cert. denied, 132 S. Ct. 2395 (2012).
 See, e.g., Whitaker v. Health Net of Cal., Inc., No. 11-cv-0910, 2012 WL 174961 (E.D. Cal. Jan. 20, 2012) (plaintiffs alleged the defendants lost certain server drives consisting of more than 800,000 California residents' personal and medical information. The court dismissed the case for lack of standing, finding that a mere loss of information, without more, is too conjectural and hypothetical); Low v. LinkedIn Corp., No. 11-cv-01468, 2011 WL 5509848 (N.D. Cal. Nov. 11, 2011) (plaintiffs alleged that LinkedIn disclosed its members' private information to third parties for advertising purposes; however, the plaintiff did not allege: (1) what information was actually disclosed to third parties that caused the plaintiff's alleged harm; (2) that his private information was actually transmitted to any third parties; (3) how third parties would be able to infer his personal identity from the information allegedly transmitted; (4) how the information was transmitted to third parties; or (5) how the defendant actually caused him harm. The court found that the plaintiff lacked standing because he failed to allege any present harm and his allegations of possible future harm were "too theoretical to support injury-in-fact for the purposes of Article III standing."); Amburgy v. Express Scripts, Inc., 671 F.Supp.2d 1046 (E.D. Mo. 2009) (plaintiffs alleged that the defendant's inadequate security measures in relation to its computerized database system allowed unauthorized persons to gain access to confidential personal information, placing the plaintiff at an increased risk of becoming a victim of identity theft crimes, fraud, abuse, and extortion. The court found that the increased risk of harm from possibly having plaintiffs' personal information compromised was insufficient to state an injury in fact); Key v. DSW Inc., 454 F.Supp.2d 684 (S.D. Ohio 2006) (plaintiff alleged that the improper retention and failure to secure personal financial information allowed unauthorized persons to access and acquire the information of approximately 96,000 customers, and subjected them to a substantial increased risk of identity theft or other related financial crimes. The court found that plaintiff did not sufficiently allege that she personally experienced any injury and dismissed for lack of standing).
 See, e.g., Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629 (7th Cir. 2007) (the court reasoned that "the injury-in-fact requirement can be satisfied by a threat of future harm or by an act which harms the plaintiff only by increasing the risk of future harm that the plaintiff would have otherwise faced, absent the defendant's actions." Ultimately, however, the court rejected plaintiffs' request for compensation of past and future credit monitoring services, finding that the type of damages the plaintiffs seek are not compensable as a matter of Indiana law); Krottner v. Starbucks Corp., 628 F.3d 1139 (9th Cir. 2010) (court found that the plaintiffs alleged a credible threat of real and immediate harm stemming from the theft of a laptop containing their unencrypted personal data); Ruiz v. Gap, Inc., No. 09-15971, 380 F. Appx. 689 (9th Cir. May 28, 2010) (the court found that the plaintiff had standing where he alleged that he was at a great risk of identity theft based on the theft of a laptop computer containing his Social Security Number).
 LaCourt v. Specific Media Inc. (aka In Re Specific Media Flash Cookie Litig.), No. 10-cv-01256, 2011 WL 1661532 (C.D. Cal. Apr. 28, 2011) (Tentative Ruling on Motion to Dismiss) (amended complaint filed May 17, 2011; but case dismissed without prejudice on August 29, 2011).
 Robyn Cohen v. Facebook, Inc., No. 10-cv-05282, 2011 WL 5117164 (N.D. Cal. Oct. 27, 2011) (Order Granting 12(b)(6) Motion to Dismiss First Amended Complaint Without Leave to Amend).
 Low v. LinkedIn Corporation, No. 11-cv-01468, 2011 WL 5509848 (N.D. Cal. Nov. 11, 2011) (Order Granting Defendant's Motion to Dismiss) (amended complaint filed on Dec. 2, 2011, but case dismissed with prejudice on July 12, 2012).
 In re: iPhone/iPad Application Consumer Privacy Litigation, No. 11-MD-02250, 2011 WL 4403963 (N.D. Cal. Sept. 20, 2011) (Order Granting Defendants' Motions to Dismiss for Lack of Article III Standing with Leave to Amend) (Amended Consolidated Complaint filed Nov. 22, 2011).
 See In re: iPhone/iPad Application Consumer Privacy Litigation, No. 11-MD-02250, 844 F.Supp.2d 1040 (N.D. Cal. June 12, 2012).
 See In re Facebook Privacy Litigation, 791 F.Supp.2d 705, 712-713 (N.D. Cal. 2011) (finding plaintiffs established standing when they alleged violation of the Wiretap Act, 18 U.S.C. §§ 2510, et seq.); In re Zynga Privacy Litigation, No. 10-cv-04680-JW, 2011 WL 7479170 (N.D. Cal. June 15, 2011); but see Tyler v. Michaels Stores, Inc., 840 F.Supp.2d 438, FN 8 (D. Mass. 2012) (holding that plaintiff did not have standing because of her failure to sufficiently plead injury and distinguishing In re Facebook Privacy Litigation, 791 F.Supp.2d at 712, because the "Wiretap Act creates a private right of action for any person whose electronic communication is ‘intercepted, disclosed, or intentionally used,' and does not require any further injury," while the statute at issue in Tyler explicitly required injury to the plaintiff).
 Edwards v. First Am. Corp., 610 F.3d 514, 517 (9th Cir. 2010) (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
 Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (quoting Equity Lifestyle Props., Inc. v. Cnty. Of San Luis Obispo, 548 F.3d 1184, 1189 n.10 (9th Cir. 2008)).
 See In re: iPhone/iPad Application Consumer Privacy Litigation, No. 11-MD-02250, 844 F.Supp.2d 1040 (N.D. Cal. June 12, 2012) (citing Edwards v. First Am. Corp., 610 F.3d 514, 517 (9th Cir. 2010)); see also Low v. LinkedIn Corporation, No. 11-cv-01468, at 8 (N.D. Cal. July 12, 2012) (Order Denying in Part and Granting in Part Defendant's Motion to Dismiss).
 See Bose v. Interclick, Inc., No. 10-cv-09183, 2011 WL 4343517 (S.D.N.Y. Aug. 17, 2011) (Order in part granting motion to dismiss CFAA claim for failure to allege cognizable injury or meet the $5,000 threshold to state a claim under the CFAA); Del Vecchio v. Amazon.com, Inc., No. 11-cv-00366, 2012 WL 1997697 (W.D. Wash. June 1, 2012) (finding plaintiffs failed to allege sufficient facts to meet the necessary threshold loss amount required by the CFAA).
 Del Vecchio v. Amazon.com, Inc., No. 11-cv-00366, 2012 WL 1997697 (W.D. Wash. June 1, 2012) (Order Granting in Part Defendant's Third Motion to Dismiss) (finding that "Plaintiffs alleged sufficient injury to have standing" but nevertheless dismissing CFAA claim for failure to allege sufficient facts to infer that plaintiffs suffered loss in the amount required by the CFAA).
 Bose v. Interclick, Inc., No. 10-cv-09183, 2011 WL 4343517 (S.D.N.Y. Aug. 17, 2011) (Memorandum and Order).
 See Fraley v. Facebook, Inc., No. 11-cv-01726, Docket No. 181, 2012 WL 2354653 (N.D. Cal. June 20, 2012) (Plaintiffs' Motion for Preliminary Approval of Class Action Settlement).
 See Fraley v. Facebook, Inc., No. 11-cv-01726, Docket No. 163 (N.D. Cal. Aug. 17, 2012) (Order Denying Motion for Preliminary Approval of Settlement Agreement, Without Prejudice).

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Krupenina N. A.. Bulychev A. A. Effect of action potential on photosynthesis and proton transport in the plant cell In: Photosynthesis. Energy from the Sun: 14th International Congress on Photosynthesis, J.F. Allen, E. Gantt, J.H. Golbeck & B. Osmond (eds.), Springer, Dordrecht, 2008, pp. 1299-1302.
Krupenina N. A.. Bulychev A. A.. Rob M.. Roelfsema G.. Schreiber U. Action potential in Chara cell intensifies spatial patterns of photosynthetic electron flow and non-photochemical quenching in parallel with inhibition of pH banding Photochemical & Photobiological Sciences 2008, 7, 681-688.
Kudryashov Yu.B. Radiation Biophysics (Ionizing Radiations) New York: Nova Science Publishers, Inc. 2008. – 327 p.
P. V. Fursova. Mil’ko E. S.. Levich A. P. Cultivation of Pseudomonas aeruginosa Dissociants under Specified Limitation Conditions // Microbiology, 2008, Vol. 77, No. 2, pp. 192–197.
The possibility of controlling the development of microbial communities was investigated on the basis of experimentally determined requirements for basic nutrients in R, S, and M dissociants of Pseudomonas aeruginosa. On media with the limitation conditions preset on the basis of the predictions of a mathematical model, exhaustion of glucose was experimentally confirmed for all monocultures and mixed cultures, as well as balanced consumption of glucose, nitrogen, and phosphorus by the R dissociant at the corresponding initial medium composition. The experimentally determined composition of mixed cultures was found to conform to the ones calculated using the mathematical model. The data obtained suggest the possibility of cyclic consumption of phosphorus by P. aeruginosa.
Plusnina T. Yu.. Lavrova A. I.. Price C. B.. Riznichenko G. Yu.. Rubin A. B. Nonlinear Dynamics near the cell membrane of Chara corallina // J. Biological Systems, 2008, 16 (2), 197-217.
Rosenkranz A. A.. Vaidyanathan G.. Pozzi O. R.. Lunin V. G.. Zalutsky M. R.. Sobolev A. S. Engineered modular recombinant transporters: application of new platform for targeted radiotherapeutic agents to alpha-particle emitting 211 At // Int J Radiat Oncol Biol Phys. 2008, 72(1):193-200.
Sobolev A. S. Modular transporters / In: Encyclopedia of Cancer 2nd edition in 4 volumes. Schwab M, ed. Berlin-Heidelberg-New York-Tokyo, Springer-Verlag, 2008, pp. 1932-1933.
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работа опубликована в трудах научной конференции.
работа опубликована в тезисах научной конференции.

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"The jury found Stewart and Michael guilty of several counts of fraudulently introducing misbranded food into interstate commerce, interstate shipment and wire fraud, and conspiring to commit these offenses. The jury also found Stewart guilty of fraudulently introducing adulterated food into interstate commerce. The jury found Stewart and Wilkerson guilty of obstruction of justice. The district court sentenced Stewart to 336 months [28 years] in prison, to be followed by three years of supervised release; sentenced Michael to 240 months [20 years] in prison, to be followed by three years of supervised release; and sentenced Wilkerson to 60 months [5 years] in prison, to be followed by two years of supervised release."
The convictions were based on conduct related to food safety and conduct during the investigation. The appellants were found to have "not [been] forthcoming with the FDA during its investigation."
"The court rejected arguments related to "juror exposure to extrinsic evidence." The court also rejected a discovery argument made by one of the defendants. This defendant objected to the government "producing a large hard drive of documents in late June 2014 when the trial was set to begin on July 14th." The defendant argued that this was "one of many untimely data dumps, where the Government produced hard drives containing hundreds of thousands of documents..." The court found that the district court had made a finding that the documents were searchable and that the government had provided a Bates index seven months prior to trial, and that "an IT consultant helped" the defendant and counsel "search and review the documents." The Court stated that "[g]iven that [the defendant] was able to search the documents, they were not suppressed for purposes of Brady."
R. Robin McDonald, 11th Circuit Upholds Convictions in One of Nation's Largest Criminal Food Safety Prosecutions, Daily Report, Jan. 26, 2018.
The Supreme Court denied cert this morning in Farha v. United States leaving the 11th Circuit decision (Clay) on mens rea standing. For prior discussion of this case see here.
It is always difficult to predict how someone will opine if they are on the Supreme Court. This is especially true if the prior judicial opinions do not cover a wide span on issues. In the case of the nominee, Judge Gorsuch, we do have some opinions to examine.
But looking solely at Judge Gorsuch, and not the unfortunate circumstance of the failure of Judge Garland to have the hearing that Judge Gorsuch will now receive, where does Judge Gorsuch stand on white collar matters is the question.
Typically, those on the right tend to be pro-prosecution on Fourth Amendment and drug crimes. In contrast, the same position is not taken in a white collar case. Professor Kelly Strader in his article The Judicial Politics of White Collar Crime, documents this paradox. Judge Gorsuch has a strong record of supporting the prosecution. (See, e.g., United States v. Mendivil, 208 F. App'x 647 (10th Cir. 2006)(affirming drug related conspiracy). And some of these cases might be considered white collar cases (See, e.g., United States v. Carnagie, 426 F. App'x 640 (10th Cir. 2011)(affirming a sec. 1001 HUD related case).
But if one looks at cases beyond the Fourth Amendment, like a gun-related case - we see him emphasizing a strict statutory interpretation. (See United States v. Games-Perez (dissenting)). Justice Scalia was particularly strong in enforcing strict statutory interpretation in white collar cases (e.g., Skilling (concurring opinion), Sun-Diamond Growers, McCormick (concurring), Santos). Justice Scalia was not shy to use vagueness and the Rule of Lenity to accomplish having a white collar statute strictly construed. And in this regard there is a strong similarity seen with Judge Gorsuch. Judge Gorsuch's opinion in United States v. Renz, 777 F.3d 1105 (10th Cir. 2015) provides a glimpse of his statutory interpretation analysis. He includes in the decision a diagram as he takes apart the elements of the statute in a methodical manner. The opinion itself is well-organized, references precedent, and resorts to the Rule of Lenity when clarity is an issue. He was unwilling to accept the government's interpretation of this firearm statute.
So what can we expect if he joins the Supreme Court? It is somewhat uncertain when examining the white collar area. But it does appear that the government may have some problems if it tries to stretch statutes or if the statutes are not clear.
This week in U.S. v. Free, the Third Circuit sent a sentencing case back to the district court for further proceedings, because the sentencing judge appeared to have based his loss calculations on defendant's harm to "the integrity of the judicial process." Free was convicted after a jury trial on bankruptcy fraud charges. The sentencing court found that Free lied and obstructed justice throughout the bankruptcy court proceedings and hid assets totaling over $1 million. But in the end all creditors were paid in full and it appears that Free filed for bankruptcy for reasons unrelated to defrauding his creditors of the funds he owed them. The Third Circuit held that it is improper to base loss calculations on harm to the integrity of the judicial process, as opposed to real harm inflicted on the actual victims of a bankruptcy fraud. The Third Circuit, however, virtually invited the district court to upwardly vary on remand, based on Free's obstructive conduct.

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134.87(1)(g) (g) “Motorized wheelchair" means any motor-driven wheelchair, including a demonstrator, that a consumer purchases or accepts transfer of in this state.
134.87(1)(h) (h) “Motorized wheelchair dealer" means a person who is in the business of selling motorized wheelchairs.
134.87(1)(i) (i) “Motorized wheelchair lessor" means a person who leases a motorized wheelchair to a consumer, or who holds the lessor's rights, under a written lease.
134.87(1)(j) (j) “Nonconformity" means a condition or defect that substantially impairs the use, value or safety of a motorized wheelchair, and that is covered by an express warranty applicable to the motorized wheelchair or to a component of the motorized wheelchair, but does not include a condition or defect that is the result of abuse, neglect or unauthorized modification or alteration of the motorized wheelchair by a consumer.
134.87(1)(k)1. 1. The same nonconformity with the warranty is subject to repair by the manufacturer, motorized wheelchair lessor or any of the manufacturer's authorized motorized wheelchair dealers at least 4 times and the nonconformity continues.
134.87(1)(k)2. 2. The motorized wheelchair is out of service for an aggregate of at least 30 days because of warranty nonconformities.
134.87(2) (2) A manufacturer who sells a motorized wheelchair to a consumer, either directly or through a motorized wheelchair dealer, shall furnish the consumer with an express warranty for the motorized wheelchair. The duration of the express warranty shall be not less than one year after first delivery of the motorized wheelchair to the consumer. If a manufacturer fails to furnish an express warranty as required by this subsection, the motorized wheelchair shall be covered by an express warranty as if the manufacturer had furnished an express warranty to the consumer as required by this subsection.
134.87(3)(a)(a) If a new motorized wheelchair does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the motorized wheelchair lessor or any of the manufacturer's authorized motorized wheelchair dealers and makes the motorized wheelchair available for repair before one year after first delivery of the motorized wheelchair to a consumer, the nonconformity shall be repaired.
134.87(3)(b)1.1. If, after a reasonable attempt to repair, the nonconformity is not repaired, the manufacturer shall carry out the requirement under subd. 2. or 3., whichever is appropriate.
134.87(3)(b)2.a. a. Accept return of the motorized wheelchair and replace the motorized wheelchair with a comparable new motorized wheelchair and refund any collateral costs.
134.87(3)(b)2.b. b. Accept return of the motorized wheelchair and refund to the consumer and to any holder of a perfected security interest in the consumer's motorized wheelchair, as their interest may appear, the full purchase price plus any finance charge, amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use. Under this subd. 2. b., a reasonable allowance for use may not exceed the amount obtained by multiplying the full purchase price of the motorized wheelchair by a fraction, the denominator of which is 1,825 and the numerator of which is the number of days that the motorized wheelchair was driven before the consumer first reported the nonconformity to the motorized wheelchair dealer.
134.87(3)(b)3.a.a. With respect to a consumer described in sub. (1) (b) 4., accept return of the motorized wheelchair, refund to the motorized wheelchair lessor and to any holder of a perfected security interest in the motorized wheelchair, as their interest may appear, the current value of the written lease and refund to the consumer the amount that the consumer paid under the written lease plus any collateral costs, less a reasonable allowance for use.
134.87(3)(b)3.b. b. Under this subdivision, the current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the motorized wheelchair dealer's early termination costs and the value of the motorized wheelchair at the lease expiration date if the lease sets forth that value, less the motorized wheelchair lessor's early termination savings.
134.87(3)(b)3.c. c. Under this subdivision, a reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is 1,825 and the numerator of which is the number of days that the consumer drove the motorized wheelchair before first reporting the nonconformity to the manufacturer, motorized wheelchair lessor or motorized wheelchair dealer.
134.87(3)(c) (c) To receive a comparable new motorized wheelchair or a refund due under par. (b) 1. or 2., a consumer described under sub. (1) (b) 1., 2. or 3. shall offer to the manufacturer of the motorized wheelchair having the nonconformity to transfer possession of that motorized wheelchair to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new motorized wheelchair or refund. When the manufacturer provides the new motorized wheelchair or refund, the consumer shall return the motorized wheelchair having the nonconformity to the manufacturer, along with any endorsements necessary to transfer real possession to the manufacturer.
134.87(3)(d)1.1. To receive a refund due under par. (b) 3., a consumer described under sub. (1) (b) 4. shall offer to return the motorized wheelchair having the nonconformity to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the consumer. When the manufacturer provides the refund, the consumer shall return to the manufacturer the motorized wheelchair having the nonconformity.
134.87(3)(d)2. 2. To receive a refund due under par. (b) 3., a motorized wheelchair lessor shall offer to transfer possession of the motorized wheelchair having the nonconformity to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the motorized wheelchair lessor. When the manufacturer provides the refund, the motorized wheelchair lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer.
134.87(3)(d)3. 3. No person may enforce the lease against the consumer after the consumer receives a refund due under par. (b) 3.
134.87(3)(e) (e) No motorized wheelchair returned by a consumer or motorized wheelchair lessor in this state under par. (b), or by a consumer or motorized wheelchair lessor in another state under a similar law of that state, may be sold or leased again in this state unless full disclosure of the reasons for return is made to any prospective buyer or lessee.
134.87(4) (4) This section does not limit rights or remedies available to a consumer under any other law.
134.87(5) (5) Any waiver by a consumer of rights under this section is void.
134.87(6) (6) In addition to pursuing any other remedy, a consumer may bring an action to recover for any damages caused by a violation of this section. The court shall award a consumer who prevails in such an action twice the amount of any pecuniary loss, together with costs, disbursements and reasonable attorney fees, and any equitable relief that the court determines is appropriate.
134.87 History History: 1991 a. 222.
134.90 134.90 Uniform trade secrets act.
134.90(1)(a) (a) “Improper means" includes espionage, theft, bribery, misrepresentation and breach or inducement of a breach of duty to maintain secrecy.
134.90(1)(b) (b) “Readily ascertainable" information does not include information accessible through a license agreement or by an employee under a confidentiality agreement with his or her employer.
134.90(1)(c)1. 1. The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.
134.90(1)(c)2. 2. The information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances.
134.90(2)(a) (a) Acquiring the trade secret of another by means which the person knows or has reason to know constitute improper means.
134.90(2)(b)1. 1. Used improper means to acquire knowledge of the trade secret.
134.90(2)(b)2.a. a. Deriving it from or through a person who utilized improper means to acquire it.
134.90(2)(b)2.b. b. Acquiring it under circumstances giving rise to a duty to maintain its secrecy or limit its use.
134.90(2)(b)2.c. c. Deriving it from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use.
134.90(2)(b)2.d. d. Acquiring it by accident or mistake.
134.90(3)(a)1.1. A court may grant an injunction against a person who violates sub. (2). Chapter 813 governs any temporary or interlocutory injunction or ex parte restraining order in an action under this section, except that no court may issue such an injunction or restraining order unless the complainant makes an application which includes a description of each alleged trade secret in sufficient detail to inform the party to be enjoined or restrained of the nature of the complaint against that party or, if the court so orders, includes written disclosure of the trade secret. The complainant shall serve this application upon the party to be enjoined or restrained at the time the motion for the injunction is made or the restraining order is served, whichever is earlier.
134.90(3)(a)2. 2. Except as provided in subd. 3., upon application to the court, the court shall terminate an injunction when a trade secret ceases to exist.
134.90(3)(a)3. 3. The court may continue an injunction for a reasonable period of time to eliminate commercial advantage which the person who violated sub. (2) otherwise would derive from the violation.
134.90(3)(b) (b) In exceptional circumstances, an injunction granted under par. (a) may condition future use of a trade secret by the person who violated sub. (2) upon payment of a reasonable royalty by that person to the owner of the trade secret for no longer than the period of time for which the court may enjoin or restrain the use of the trade secret under par. (a). Exceptional circumstances include a material and prejudicial change of position, prior to acquiring knowledge or reason to know of a violation of sub. (2), that renders an injunction inequitable.
134.90(3)(c) (c) In appropriate circumstances, the court may order affirmative acts to protect a trade secret.
134.90(4)(a) (a) Except to the extent that a material and prejudicial change of position prior to acquiring knowledge or reason to know of a violation of sub. (2) renders a monetary recovery inequitable, a court may award damages to the complainant for a violation of sub. (2). A court may award damages in addition to, or in lieu of, injunctive relief under sub. (3). Damages may include both the actual loss caused by the violation and unjust enrichment caused by the violation that is not taken into account in computing actual loss. Damages may be measured exclusively by the imposition of liability for a reasonable royalty for a violation of sub. (2) if the complainant cannot by any other method of measurement prove an amount of damages which exceeds the reasonable royalty.
134.90(4)(b) (b) If a violation of sub. (2) is willful and malicious, the court may award punitive damages in an amount not exceeding twice any award under par. (a).
134.90(4)(c) (c) If a claim that sub. (2) has been violated is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or a violation of sub. (2) is willful and deliberate, the court may award reasonable attorney fees to the prevailing party.
134.90(5) (5) Preservation of secrecy. In an action under this section, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting a protective order in a discovery proceeding, holding an in-camera hearing, sealing the record of the action and ordering any person involved in the action not to disclose an alleged trade secret without prior court approval.
134.90(6) (6) Effect on other laws.
134.90(6)(a) (a) Except as provided in par. (b), this section displaces conflicting tort law, restitutionary law and any other law of this state providing a civil remedy for misappropriation of a trade secret.
134.90(6)(b)1. 1. Any contractual remedy, whether or not based upon misappropriation of a trade secret.
134.90(6)(b)2. 2. Any civil remedy not based upon misappropriation of a trade secret.
134.90(6)(b)3. 3. Any criminal remedy, whether or not based upon misappropriation of a trade secret.
134.90(7) (7) Uniformity of application and construction. This section shall be applied and construed to make uniform the law relating to misappropriation of trade secrets among states enacting substantially identical laws.
134.90 History History: 1985 a. 236.
134.90 Note NOTE: 1985 Wis. Act 236, which created this section, contains extensive notes describing this section and other sections affected by Act 236.
134.90 Annotation Some factors to be considered in determining whether given information is one's trade secret are: 1) the extent to which the information is known outside of his or her business; 2) the extent to which it is known by employees and others involved in his or her business; 3) the extent of measures taken by him or her to guard the secrecy of the information; 4) the value of the information to him or her and to his competitors; 5) the amount of effort or money expended by him or her in developing the information; 6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 434 N.W.2d 773 (1989).
134.90 Annotation A party asserting a trade secret need not spell out details that would destroy what the party seeks to protect, but the party must include with some specificity the nature of the trade secret that is more than a generalized allegation that there is a trade secret. ECT International, Inc. v. Zwerlein, 228 Wis. 2d 343, 597 N.W.2d 479 (Ct. App. 1999), 98-2041.
134.90 Annotation By limiting the period in which an employee agrees not to divulge trade secrets, an employer manifests its intent that there is no need to maintain the secrecy after the specified period. ECT International, Inc. v. Zwerlein, 228 Wis. 2d 343, 597 N.W.2d 479 (Ct. App. 1999), 98-2041.
134.90 Annotation Under sub. (4), “actual loss caused by the violation" may include losses that result when a misappropriator uses a trade secret unsuccessfully and produces and sells a defective product that causes the plaintiff's business to suffer. World Wide Prosthetic Supply, Inc. v. Mikulsky, 2002 WI 26, 251 Wis. 2d 45, 640 N.W.2d 764, 00-1751.
134.90 Annotation Subs. (6) (a) and (b) 2. together do the following: 1) replace all pre-existing definitions of trade secret and remedies for tort claims dependent solely on the existence of a specific class of information statutorily defined as trade secrets; and 2) leave available all other types of civil actions that do not depend on information that meets the statutory definition of a trade secret. Therefore, any civil tort claim not grounded in a trade secret, as defined in the statute, remains available. Burbank Grease Services, LLC v. Sokolowski, 2006 WI 103, 294 Wis. 2d 274, 717 N.W.2d 781, 04-0468.
134.90 Annotation Although a court may grant injunctive relief against a person who misappropriated a trade secret, the injunction should only be for a period reasonable to eliminate commercial advantage that the person who misappropriated the secret would otherwise derive from the violation. Once the defendant would have discovered the trade secret without the misappropriation, any lost profits from that time forward are not caused by the defendant's wrongful act. Minnesota Mining and Manufacturing Company v. Pribyl, 259 F.3d 587 (2001).
134.90 Annotation Nondisclosure agreements under sub. (6) between suppliers and users of intellectual property are not subject to rules that govern noncompete agreements between employers and employees. A much greater scope of restraint is allowed in contracts between vendors and vendees than between employers and employees. IDX Systems Corp. v. Epic Systems Corp. 285 F.3d 581 (2002).
134.90 Annotation An independent contractor presumptively owns his or her work product. In the absence of an agreement, non-exclusivity is the norm. The law of trade secrets follows the same approach to ownership. Wisconsin does not require an express, written contract of confidentiality. An independent contractor does not acquire any rights in his or client's trade-secret data just because he or she used those data in the performance of his or her duties. Breach of an implicit promise to hold information for the client's sole benefit in turn violates sub. (2) (a). Hicklin Engineering, L.C. v. Bartell, 439 F.3d 346 (2006).
134.90 Annotation This section does not require absolute secrecy, but one who claims a trade secret must exercise eternal vigilance in protecting its confidentiality. In determining whether companies have fulfilled this requirement, Wisconsin courts consider whether the company negotiated confidentiality agreements, kept documents locked up, limited access to information, restricted building access, denoted documents as confidential, informed individuals that information was confidential, and allowed individuals to keep information after the business relationship had ended. Starsurgical Inc. v. Aperta, LLC, 40 F. Supp. 3d 1069 (2014).
134.90 Annotation Revisions to the law of trade secrets. Whitesel and Sklansky. WBB Aug. 1986.
134.91 134.91 Sale of dextromethorphan to a minor without prescription prohibited.
134.91(1)(a) (a) “Drug” has the meaning given in s. 450.01 (10).
134.91(1)(b) (b) “Prescription order” has the meaning given in s. 450.01 (21).
134.91(2)(a) (a) No person may sell at retail a drug containing dextromethorphan to a person who is under 18 years of age, unless the sale is pursuant to a prescription order.
134.91(2)(b) (b) No person may sell at retail a drug containing dextromethorphan unless the person making the sale receives from the purchaser, at the time of purchase, a form of identification from which the age of the purchaser can be determined, or unless based upon the outward appearance of the purchaser the person making the sale reasonably presumes that the purchaser is 25 years of age or older.
134.91(2)(c) (c) A person who is under 18 years of age may not purchase a drug containing dextromethorphan unless pursuant to a prescription order.
134.91(3)(a) (a) A person who violates sub. (2) (a) or (b) is subject to a civil forfeiture of not more than $250 for each violation.
134.91(3)(b) (b) A person who violates sub. (2) (c) is subject to a civil forfeiture of $50 for each violation.
134.91 History History: 2017 a. 160; s. 35.17 correction in (2) (b).
134.93 134.93 Payment of commissions to independent sales representatives.

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