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When a Thumbs-Up Emoji Gets a Defendant a Thumbs-Down
06.08.2023 - 11:13 / tech.hindustantimes.com
Social media is all atwitter — um, all a-X-er? — about the emoji at the heart of last week's federal court ruling allowing a securities suit to proceed against billionaire investor Ryan Cohen. To be sure, litigation following a corporate collapse sprouts like weeds, but in this case, both my law professor and wordsmith sides are fascinated by the allegation that Cohen used an image of a smiling moon to boost the stock price of Bed Bath & Beyond, after which he started selling his significant stake.
The law professor in me marvels at the way judges must now struggle with the collapse of formal language. The wordsmith despairs at ... well, the collapse of formal language, the costs of which we will be some while counting.
The lawsuit arises from events in August of 2022, when Cohen still held a massive position in Bed Bath stock. CNBC tweeted a link to a negative story about Bed Bath, illustrated by an image of a shopper:
Cohen tweeted back, “At least her cart is full” — and accompanied it by an emoji of a moon with a smiley face:
Although the lawsuit includes a long list of allegations, the part that has people chattering involves the significance of that image. According to the plaintiffs, Cohen was consciously trying to pump the stock, in preparation for selling off his stake.
Now, in the first place, we should no longer be surprised to find emoji at the heart of either business communications or litigation. (According to the Unicode Consortium, the nonprofit charged with standardizing characters, emoji is the correct plural — not “emojis.”) This past spring, the Wall Street Journal reported that at the crypto exchange FTX, expenses totaling tens of millions of dollars “were submitted on Slack and were approved by emoji.”
As for the courts, last August a judge in New York ruled that under the right circumstances, a thumbs-up emoji can be sufficient to signal agreement to pay the other party some $1,475,000. In January 2023, a federal court in Kentucky had to figure out whether a “water emoji” in text messages meant sexual activity or methamphetamine. And here's a New York federal court this past February, in the litigation over whether selling NFTs can constitute sale of an investment contract:
Each Tweet promotes a recent sale or statistics of recent sales of Moments on the Marketplace. And although the literal word “profit” is not included in any of the Tweets, the “rocket ship” emoji, “stock chart” emoji, and “money bags” emoji objectively mean one thing: a financial return on investment.
But notice the source of the difficulty. Were there no rocket ship or stock chart or money bags emoji — or, in Cohen's case, no smiling moon — the cases would be simpler, because the parties would have used ordinary
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