Chronicling the high cost of our legal system
From the monthly archives:
Following a battle of the medical experts, a jury tells the UCF Athletics Association to pay $10 million in the death of a student player who “collapsed and died following offseason conditioning drills at the UCF football complex.” [Chicago Tribune]
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I’ve got a new post up at Cato at Liberty about the convenient symbiosis between the EPA and advocacy groups it funds that sue it demanding that it regulate new things. “Sweetheart” or otherwise, the resulting legal actions help deploy taxpayers’ money in service of the relentless expansion of the regulatory state. More: Bader.
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Circus number one: The NBA.
Circus number two: A show on VH1 about the wives of NBA players called “Basketball Wives.”
The three-ring circus that encompasses all of these: A series of law suits brought by various NBA players over their depictions, or the depictions of their loves — or in some cases, their wives — by the program, including legal claims in the suit filed by Chris Bosh claiming infringement of something called “life rights.”
The latest suit, this one by Gilbert Arenas, focuses on alleged false inferences concerning a relationship between him and someone called Govan:
A significant issue Arenas raises in this lawsuit is the fact that the show uses a mix of current and ex-wives and girlfriends. In using the title Basketball Wives, it creates an inference that they’re all wives of players. Some of the promotional material mentioned below would also indicate they are still involved in the players’ lives and can comment accordingly.
However, some of these women have been through messy breakups with their respective NBA player. If Arenas were to win his lawsuit and prevent the inclusion of Govan, one has to wonder whether other players would file suit to prevent their ex’s from taking part in the show. Arenas makes the argument that the title of the show is misleading as it applies to him. In reality it’s misleading as it applies to most of the participants. As ridiculous as this whole case may seem, it could lead to the end of this show or at least a title change to accurately reflect the participants involved.
I wouldn’t count on that.
Evidently basketball players have little to do during their extremely brief off-seasons. The “Basketball Wives” claims, however, look like sloppy law but fine sport in themselves — the kind we big-boned types handle so much better than we do layups.
Yes, if God hadn’t invented the entertainment-sports industrial complex, we lawyers would have had to invent it. Or did we? Either way, what could be better summer fun? The circus is in town!
In the Strauss-Kahn affair, the New York prosecutor saw his case was bad and pulled back. You would prefer otherwise? [Dorothy Rabinowitz, WSJ] More: Scott Turow, NYT.
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Per Henry Blodget, New York City freebooters are authorized to tow your other family car to enforce unpaid camera tickets. [Business Insider]
Would you like to fly in my beautiful lawsuit?
A judge refused to issue a gag order on attorneys involved in a lawsuit by the owners of a Coachella [California] olive farm aimed at preventing hot-air balloon companies from flying over their property, and also rejected a bid to have the case moved out of Indio. . . .
JCM attorney Andrew Rauch had asked Superior Court Judge Randall D. White to issue a gag order to prevent attorneys from speaking with the media. . . .
Rauch said attorneys for the balloon companies are “using the media to publicly vilify us” and are attempting to “try the case in the press.”
Defense attorney Robert Gilliland said Rauch last month withdrew a separate request to seal the court records involving the case.
White rejected the gag order request, saying such an order should only be issued if there were extreme circumstances calling for it, and he did not consider such a situation to exist in this case.
Well, that’s one way to keep a case out of the press: File a motion seeking a virtually unheard-of gag order in a routine civil case about fairly silly issues.
It’s just not a very good way.
(Younger readers may click here if they have any interest in “getting” the clever reference in the opening sentence of this post.)
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New Michigan rules allow juries to ask questions and judges to summarize evidence for their benefit. Michigan Chief Justice (and Overlawyered favorite) Robert Young Jr. “says jurors will no longer be treated like kindergarteners” under the new rules. [ABA Journal; my take back when]
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A New York Times story criticizing natural gas fracking raises controversy. [Ira Stoll, more, Diana Furchtgott-Roth]
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If there is one universal banality about the perjury trial of Roger Clemens available on the sports pages and talk radio stations today, it’s the following, which is a composite of actual quotes and for which I am providing no link, because the sentiment is ubiquitous:
Did Clemens lie? A trial will never really answer that question. Everyone has already formed his opinion on whether Clemens is telling the truth.
Either way, we all know a huge chunk of players took PEDs in the 1990s. That era of the game is forever stained regardless of the outcome of this trial. What is this trial going to accomplish? Is this really the best use of taxpayer money?
I just hope this trial is a short one, because I’d rather focus on the games being played now.
This being Overlawyered, one might suppose the appropriate point of view here would be along those lines. Certainly, from a libertarian point of view (when in Rome…), it’s hard to be sympathetic to any investigation or prosecution whose roots are in substance abuse. If taking steroids was or is a violation of a contractual obligation running from players to Major League Baseball, that would be an entirely private matter. Evidently it wasn’t, or to the extent that it was, MLB would rather not pick at that scab. Major League Baseball keeps lawyers busy with other things.
But we all acknowledge that prosecutors do and should, to some extent anyway, concern themselves with the laws that are “on the books,” which brings us back to that Sports Guy trope: ”What difference does it make? Who cares? Why are you distracting me with those shiny objects?”
Dumb, dumb, dumb, Sports Guy!
Point One: It isn’t overlawyering to prosecute people who mislead law enforcement officials or lie under oath. Yes, people mislead police and prosecutors every day and aren’t prosecuted for it — but famous people often are, because civil disobedience by them can make for a very bad example. What better example of an example-setter is Bill Clinton, a one-man Chief Executive as sexual revolutionary, who had to turn in his law license to avoid a perjury conviction?
Clemens’s main problem was that he was put, rather unavoidably as Scott Greenfield explained at the time, in a perjury trap: [click to continue…]
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Will the law protect your right not to be fired if you shout profanities at your supervisor and throw things? Press coverage of the Americans with Disabilities Act (ADA) may ebb and flow, but the law’s protection of mental, emotional and behavioral disabilities continues to generate extreme results in workplace cases, as attorney James J. McDonald, Jr. has documented in a series of articles. I discuss at Cato at Liberty.
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Like Marc Randazza, I’m a little too close to the Righthaven litigation in Nevada — being co-counsel with him on a couple of Righthaven cases — to say much beyond what I have said about that issue here. (Overlawyered in general suffers from no such limitation, of course.) But as “Marco” notes, the following quote from a website called Righthaven Victims says plenty:
First it was a “clerical error” that caused Righthaven to sue an Ars Technica journalist for using an image that was part of a court filing, now Righthaven is blaming an undisclosed “Former In-House Counsel” for not disclosing Stephens Media as an interested party in hundreds of cases they have filed over copyright infringement.Righthaven submitted their answer to Judge Roger Hunt’s order to show cause why they should not be sanctioned for the omission. Their only answer was this unnamed rogue in-house counsel screwed up.
For the foregoing reasons, Righthaven respectfully requests that the Court find its failure to comply with Local Rule 7.1-1 through its former in house counsel does not rise to the level of sanctionable conduct given the circumstances described herein. Moreover, Righthaven has taken corrective action in response to the Court’s June 14th Order by filing amended disclosure statements in almost 120 pending cases in within this District and within the District of Colorado. Dated this 28th day of June, 2011.
Since so many lawyers have left Righthaven it is difficult to determine exactly who Righthaven is blaming which cannot go over well for any lawyer that has ever worked for Righthaven.
As Marc points out, Steve Green at Vegas Inc. has one possible answer to that question, which suggests one very big little problem with this throw-’em-under-the-bus strategy:
Ninety-eight. That’s the number of Righthaven LLC copyright infringement lawsuits in which Righthaven CEO Steven Gibson was one of the attorneys of record for his own company.
I’ve actually always said, in my professional life, that clients pay, in part, for the privilege of blaming you for no damned good reason. It’s like being a baseball manager: Can’t find a third starter or a decent third baseman? Fire the manager. Occupational hazard.
But this is a new one. Can you actually throw yourself under the bus? Now that would sure flatten you good. And — again — it would be Mr. Gibson who would be doing the throwing:
In fact, Righthaven is half owned by Gibson and half owned by investors who are part of the family of Arkansas investment banking billionaire Warren Stephens. He and his family also own Stephens Media.
If that’s all true, and I don’t recall anyone denying it, it could be a long, flat summer in Nevada for Righthaven and its, uh, counsel.
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Ronald Coleman, who comments on trademark, copyright, and free speech issues at his blog Likelihood of Confusion, has kindly agreed to join us as a guestblogger this week. You can see all his contributions here. I’ll be continuing some posting of my own as well.
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The FDA has moved to require tobacco marketers to place grotesque photos of cadavers and body parts on cigarette packs, and Barton Hinkle of the Richmond Times-Dispatch thinks there’s no reason for it to end there. More: Ann Althouse.
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“There are thousands of door-related accidents each year. The Consumer Product Safety Commission should do its bit by requiring that a professionally trained doorman open and shut all doors for door-users. That would create millions of jobs …” [Iain Murray, CEI]
What better way to pick up that slow DJ business than to hitch a press release to a preposterous trademark infringement claim? Hint: It involves an utterly phenomenal battle between intellectual property and journalism in the the New York Post, which no one but the publicity-seeking plaintiff wins.
But first, our story:
“Jersey Shore” star Paul “Pauly D” DelVecchio was slapped with a $4 million trademark infringement lawsuit Thursday from a Connecticut DJ who claimed his business has been ruined by comparisons to the MTV personality.
Paul Lis of South Windsor, Conn., said he spent 40 years building up a reputation as the region’s “DJ Paulie” before DelVecchio began calling himself “DJ Pauly D” on television. . . .
“He formally trademarked [sic] the name ‘DJ Paulie’ and then came the ‘Jersey Shore’ which basically wiped him off the face of the map,” attorney Jose M. Rojas told NewsCore.
The lawsuit alleges that MTV itself flooded the internet with so much “Jersey Shore” content that it was virtually impossible to find Lis’ information or advertise on [sic] his website.
Sounds like rough going all around here — but believe me, it gets worse. And how much worse can it get? After all, how can you “ruin” someone who starts out as a “Connecticut DJ”? What exactly is the up side on that? Oh, $4 million you say? Who knew?
Of course, if you were to run a Google search for DJ PAULIE CONNECTICUT — or go crazy and use PAULY — right now… you’d have one heck of an easy time finding him, now that he’s got, not only two turntables and a microphone, but his own lawsuit!
All of which means proving damages should be a snap, right? Because this year, what with all the search-engine saturation his court filing has got him, Paulie will demonstrate that, best-case scenario, the DJ Paulie gig is a $4M proposition. And why should MTV deprive DJ Paulie of his best case? Trademark infringement-wise.
Or is it the other way around? Because now that sounds like all that infringerating is making things better, not worse. (Someone write this down: ”File lawsuit; enhance Google search results.”) Okay, we’ll let the jury sort that one out.
Well, how about the Post’s explanation of the theory of damages in the first place here? ”[I]t was virtually impossible to find Lis’ information or advertise on his website.” That makes it sound as if MTV was even flooding Lis’s website — to the point where you couldn’t even, um, advertise “on it.”
Typo, right? Well, the fine state of intellectual property journalism in New York is finally hammered home with this beaut later in the article:
Meanwhile, DelVecchio applied for a slew of US patents attempting to copyright his own moniker.
Whoa! Trademark… copyright … patents … monikers?
If indeed the test for a trademark infringement is a likelihood of confusion — and I’ve always been partial to the argument that it was — then there is definitely a trademark infringement here. Because after reading this article I, for one, am completely confused.
What a train wreck. Here the newspaper story about the lawsuit may be even worse than what reads like one pretty bad lawsuit. Good thing professional journalism is keeping that edge and saving society from that blogging stuff.
The biggest irony? The article doesn’t even mention the right of publicity — publicity being the the only thing DJ Paulie’s lawsuit definitely got right.
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