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Wednesday, August 12, 2015

FIGHTING BACK: The Sex Slander Case of Chantay Sewell v Middle School Dean Philippe Bernardin Will Continue, Says 2nd Circuit Judge Robert Sack

The 2nd Circuit rules that the case should continue as a case of "first impression" on the two-year statute of limitations in a hacking/cyber-bullying case.

Circuit Revives Lawsuit Over Hacked Facebook Account

NY Law Journal

A woman who claims her ex-boyfriend altered her Facebook account and then posted malicious statements about her sexual activities has had her lawsuit revived by a federal appeals court.
Chantay Sewell's case against former boyfriend Phil Bernardin had been thrown out on statute of limitations grounds by Eastern District Judge Arthur Spatt.

School dean spread sex slander against ex-mistress: lawsuit

The married dean of a Queens public school is being accused in a lawsuit of stealing a female colleague’s online identity after she dumped him — using it to sexually shame her on the Internet.
Chantay Sewell, 39, filed the $350,000 federal suit against Robert Van Wyck Middle School Dean Philippe Bernardin — who once appeared on “Sesame Street” — for allegedly sending the ugly messages from her accounts.
“It was horrific,” Sewell said. “He’s a bully. No one should have to go through what I went through and I just feel like I had to stand up for myself.”
The suave part-time actor — whose page also lists the soap opera “One Life to Live” as a credit — allegedly began a relationship with Sewell at the Jamaica school after telling her his marriage was broken, the suit claims.
But shortly after Sewell severed the relationship, the educator began a campaign of cyber-defamation, according to the suit filed by her attorney, Harvey Mars.
“Bernardin used Sewell’s Internet accounts to publicly post private information about her and to communicate with third parties while posing as Sewell,” the suit states.
In August 2011, Bernardin, 42, sent an e-mail message to her contacts list that “contained malicious statements toward Sewell regarding certain sexually transmitted diseases and sexual activities,” the suit states.
In March 2012, he used Sewell’s Facebook account to broadcast a message to her circle of friends and family that also contained sexual smears, according to court papers.
Sewell obtained the IP addresses linked to the defamatory posts — and found that they were allegedly coming from a computer belonging to Bernardin’s wife, according to the suit.
Bernardin, of Floral Park, declined to comment on the suit.
Facebook Hijacking Case Revived by 2nd Circuit
  MANHATTAN (CN) - In a case involving sex, cyberbullying and the statute of limitations, a schoolteacher filed her lawsuit just in time to accuse of her ex-boyfriend of taking over her Facebook account to post obscene messages, the Second Circuit ruled on Tuesday.
     The court warned in its opinion that the case demonstrates the "troubling" predicament of victims of hacking who are unable to learn the identity of their attackers within two years.
     Last year, schoolteacher Chantay Sewell filed a $350,000 lawsuit accusing her ex-boyfriend Phil Bernardin of hacking into her AOL and Facebook accounts to barrage her friends and family with sexually explicit slander.
     The Brooklyn Federal Court case bore all the hallmarks of salacious tabloid fodder.
     The New York Post reported that the defendant, Phil Bernardin, was a dean of a Queens public school with a lengthy acting career that boasted a credit on "Sesame Street," and court papers accused him of sending "malicious statements" to Sewell's loved ones about her supposed "sexually transmitted diseases and sexual activities."
     Beneath the surface, a more arcane legal dispute brewed that would create a new precedent of interpreting the Computer Fraud and Abuse Act and Stored Communications Act.
     Both laws have a two-year statute of limitations.
     Sewell said she tried to trace the electronic fingerprints of her intruder after finding she was locked out of her AOL account on Aug. 1, 2011, and again when she noticed a password change on her Facebook account on Feb. 24, 2012.
     Her lawyer Harvey Mars said in a phone interview that she sought the identities through a subpoena of Verizon Internet records.
     Sewell easily met the two-year window in her lawsuit against her ex-boyfriend's wife Tara Bernardin in early 2013.
     While that case ended in a settlement, Sewell's separate lawsuit against Phil Bernardin hit a bump with U.S. District Judge Arthur Spatt, who ruled last year that she filed the case too late.
     On Tuesday, the Second Circuit agreed this was true as to the AOL accounts, but not the later Facebook intrusion.
     Writing for a unanimous three-judge panel, Circuit Judge Robert Sack acknowledged that the laws' speedy statute of limitations could present "troubling consequences in some situations."
     "Even after a prospective plaintiff discovers that an account has been hacked, the investigation necessary to uncover the hacker's identity may be substantial," the opinion stated. "In many cases, we suspect that it might take more than two years. But it would appear that if a plaintiff cannot discover the hacker's identity within two years of the date she discovers the damage or violation, her claims under the CFAA and SCA will be untimely."
     Sewell's lawyer Mars called this window a "very draconian time frame" in a phone interview.
     "Two years is a very, very short amount of time," he said. "If they are unaware of who the hacker is, they still have to initiate a lawsuit."
     Still, Mars said that he and his client were "ecstatic" that the appellate court treated the intrusions separately.
     "What I'm happy about is that the Second Circuit, within those constraints, applied it in a liberal way," he said.
     In his ruling, Sack called the statute of limitation issues involved in the case a "matter of first impression in this circuit."
     Echoing this, Mars noted that his client's lawsuit is "a leading case now."
     Bernardin's attorney did not immediately respond to a request for comment. 

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