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Andrew Grossman

“The Naked Cowboy versus The Blue M&M”

by Andrew Grossman on June 24, 2008

In a 23-page opinion, Judge Denny Chin of the Southern District of New York ruled yesterday that confectioner Mars inc. did not violate the right of publicity of well-known Times Square entertainer Robert Burck, AKA the Naked Cowboy.

Mars had run a billboard video of its iconic M&M cartoon character in a variety of NY-centric contexts, including one scene in which the character was “wearing only a white cowboy hat, cowboy boots, and underpants, and carrying a guitar–Burck’s regular get-up.

New York’s publicity law (Sections 50 and 51 of the state’s Civil Rights Code) is among the most stringent in the nation, applying to “any recognizable likeness” of a person used in a commercial context, making the win an especially sweet one for Mars. An M&M in underpants and cowboy hat, said the court, was simply not a depiction of Burck.

The court, however, refused to render summary judgment on the Naked Cowboy’s Lanham Act claim of false endorsement, on the grounds that passers-by might confuse the M&M video for the Cowboy’s (somewhat dubious?) endorsement. (Earlier coverage).

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Great Moments in Voir Dire

by Andrew Grossman on June 24, 2008

Newsweek reports on Laura Day, a $10,000-per-month psychic to the powerful, who’s gained a few clients in the legal profession:

A Manhattan attorney who serves as special counsel to several white-shoe law firms has used Day’s insights to help her select juries and anticipate the opposing team’s arguments. “Day saves me thousands of minutes on my cell phone” working a case, says the attorney, who also didn’t want to be publicly identified.

Day denies that she has psychic powers, per se; rather, she has “intuition,” a term more palatable to her clients, “red-meat-eating, Barneys-shopping, Type A personalities.” (The $10,000-a-Month Psychic, Newsweek, Jun 30.)

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13 Years, 16 Lawyers, 10 Judges, No Divorce Settlement

by Andrew Grossman on June 24, 2008

In 2001, a Florida court awarded Marlene Forand a $240,000 divorce settlement, plus $6,000 per month in permanent alimony and attorney’s fees, from ex-husband Bob in 2001, 6 years after their marriage ended. So why is she living with her mother and taking public support? The St. Petersburg Times reports that the lawyers who botched enforcement of the claim in Alabama, Bob’s new home state, somehow ended up with only a $162,000 judgment from her ex and took more than half that in legal fees, leaving Forand, after paying off some marriage debts, with nothing at all.

But wasn’t the ex supposed to pick up the bill?

No, her lawyers said. She signed contracts with them. She owed them. If she wanted Bob to pay her legal fees, she would have to sue him. Of course, that would mean more legal fees.

Marlene was famous for her fiery e-mails. She sent one to Haas:

“Why should I suffer and have to pay attorney’s fees to make him pay for what was already ordained in the Florida court? I’m still left holding the debt from the marriage judgments for 20 years and he walks free. This I will not tolerate. What’s the next move?”
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Forand kicked Haas off the case (for the second time) in 2006 and is now representing herself. “This is not the end,” she told the Times. “If I’ve learned anything about the law, I’ve learned you can always file another motion. You can always object.”

But after 13 years of litigation, the Florida judiciary has a less rosy view of Forand’s prospects. Responding to Forand’s motion to compel Bob to swear that he had no documentation of any of his assets, a Tampa judge despaired, “Even if I rule 100 percent in your favor, I’m just going to add another piece of paper [to your casefile] — the next page of Volume 13.” (“A Divorce, Unsettled,” St. Petersburg Times, Jun. 22).

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Benched for Your Own Good

by Andrew Grossman on June 23, 2008

Is a coach liable for any injuries when he asks an injured athlete to return to the game? It’s the final scene of just about every hard-luck sports flick ever filmed.

In a recent article, Prof. Timothy Davis of Wake Forest Law observes that coach liability is a real risk in amateur and school athletics. “Coaches owe a duty of care to their students not to increase risks that are inherent in a sport.” Thus have coaches been held liable, from time to time, for their players’ injuries.

But what about in the wide world of professional sports? There’s not much precedent, but it should be possible:

The forgoing cases suggest that, where an athlete is injured as a consequence of a coach acting in a manner that is outside the realm of his or her expertise, potential liability based on recklessness might ensue. This is particularly the case where coaches have actual or constructive appreciation of the potential risks that might flow from their conduct.  Such would be the case when a coach’s decision is contrary to medical advice.  Similarly, a coach’s demand that an athlete return to play, given the coach’s absence of medical expertise, arguably provides evidence of recklessness, since it disregards an immediate and readily ascertainable risk, in contrast to an abstract possibility of risk.

Still, Davis lists a variety of bars to liability–worker’s comp, athletic “culture,” federal preemption, arbitration, etc.–and concludes that pro coaches don’t face great incentives to protect players’ health–at least, not yet.

The trial-bar-friendly New York Times has gone a bit overboard of late agitating about concussions in football. Davis, however, points to the league’s response as a model of how to make progress outside of the courtroom.

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But Was He Properly Mirandized?

by Andrew Grossman on June 23, 2008

It’s not just the U.S. civil-justice system that often winds up serving counterproductive ends, but also our criminal and national security legal systems. And just like with, e.g., our tort system, it sometimes seems like everyone knows this except us Americans.

Consider this, from the Times‘ detailed account of the interrogation of 9/11 planner Khalid Sheikh Mohammed:

Mohammed met his captors at first with cocky defiance, telling one veteran CIA officer, a former Pakistan station chief, that he would talk only when he got to New York and was assigned a lawyer–the experience of his nephew and partner in terrorism, Ramzi Yousef, after Yousef’s arrest in 1995.

Apparently, KSM was somehow privy to an advance copy of Boumediene. . .

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Creatively Challenged

by Andrew Grossman on June 23, 2008

For something like two decades, your computer firm has been known for the cult-like devotion of its followers and its single-button mice, so when it comes time to introduce a two-button mouse, how to placate the hurt feelings of those who’ve spent 20 years arguing that the One Way is One Button? First, it helps if the new device doesn’t actually appear to have two buttons—maybe they won’t notice?—and second, you give it a slightly-deprecating-yet-somehow-still-smug name: “Mighty Mouse” is the all-too-obvious choice and the one that Apple inc., in fact, made.

Don’t assume, just because this is Overlawyered, that Apple is being sued by CBS, which owns the rights to the cartoon superhero—too obvious.

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The evils of food

by Andrew Grossman on January 10, 2008

Kim Severson of the New York Times has this article on the growing interest among parents of food allergies:

Record numbers of parents are heading to doctors concerned that their children are allergic to a long list of foods. States are passing laws requiring schools to have policies protecting children with food allergies. But no one knows why the number of allergies seems to be on the rise, or even if they are rising as fast as some believe.

Ms. O’Brien and leading allergy researchers agree that few reliable studies on food allergies exist. The best estimates suggest that 4 to 8 percent of young children suffer from them, though the reactions tend to grow less serious and less frequent as children grow older.

Even though the science is weak, new laws and policies are enacted under the banner of child safety. Yet as David Bernstein points out, we’ve been down this road before.

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Extra-judicial punishment?

by Andrew Grossman on December 31, 2007

Jacob Sullum (of the often excellent Reason Magazine) makes note of a prosecutor in Arizona who places DUI offenders’ names, mug shots and BAC levels online. Sullum concludes that the prosecutor is “imposing extrajudicial punishment, based on his unilateral conclusion that the penalties prescribed by law for DUI offenses provide an inadequate deterrent.”

Publicizing records that are, by nature, public is normally fine by me. But the prosecutor seems to have created, in a sense, a DUI offender registry. Appearance on sex offender registries is a matter determined by law, not the whim of prosecutors. Also, Mothers Against Drunk Driving won’t endorse the idea:

“Some parts of the Web site are good because they are informational and trying to provide the victim’s perspective,” said Misty Moyse, the spokeswoman for the group. However, she said, “M.A.D.D. would not want to be involved in calling out offenders. We are interested in research- and science-based activities proven to stop drunk driving.”

(crossposted at catallaxy.net)

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Woman Deems Starburst “Dangerously Chewy”

by Andrew Grossman on June 28, 2007

Next time you feel like living on the edge, there’s no need to go sky diving or ski jumping. Simply bite into a Starburst fruit chew, cross your fingers, and hang on for dear life…

Michigan Woman Claims Starburst Candies Are Dangerously Chewy in Lawsuit

Starburst Fruit Chews are exactly as their name would indicate: chewy. But one Michigan woman says the candies are so chewy, they should come with a warning label.

Victoria McArthur, of Romero, Mich., is suing Starbursts’ parent company, Mars Inc., for more than $25,000 for “permanent personal injuries” she claims she sustained after biting into one of their yellow candy in 2005.
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I think we need to take whatever steps necessary to keep this woman away from jawbreakers.

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KFC doesn’t owe millions for selling fast food

by Andrew Grossman on May 3, 2007

In June 2006 (Overlawyered), a Maryland resident named Arthur Hoyte, in conjunction with the Center for Science in the Public Interest, sued Kentucky Fried Chicken for selling food made with trans fats; he claimed that he didn’t realize (despite being a medical doctor!) that fast food might not be the healthiest option for his diet. And this, of course, was KFC’s fault.

Yesterday, a federal judge dismissed the lawsuit, pointing out that it didn’t even identify any injury suffered by Hoyte, and mocking him for pretending not to realize that fast food might contain trans fats. (“The suggestion is that, by its silence, KFC misled plaintiffs into believing that its products did not contain harmful trans fat. This is a questionable premise at best [...] Especially since, as plaintiff submits, consumers have a ‘growing awareness of trans fat and the need to avoid it.’ If consumers are increasingly aware of trans fat, where do they expect to find it if not in fast food restaurants?”)

This is a big victory for restaurateurs — as KFC pointed out in its motion, under the logic espoused by Hoyte (who was seeking class action status), effectively everyone who ever ate a meal at a restaurant would have a cause of action against the restaurant, and could claim a minimum of $1500 in damages. (Although Hoyte’s claim was about trans fats, the same reasoning would apply to virtually every other ingredient in existence, since any one of them might represent a potential health risk if eaten to excess.)

But it certainly won’t end the CSPI’s attempt to achieve via litigation what it can’t through regulation; Hoyte’s claim failed only because D.C. courts have narrowly interpreted the badly-drafted D.C. Consumer Protection Act to require that plaintiffs demonstrate an injury before suing, and because he wasn’t creative enough in drafting his complaint to allege the right kind of injuries. This suit was no more frivolous than the similar suits filed against McDonalds, some of which courts have been extremely tolerant of. (See, e.g. Sep. 2006)

Update: Hans Bader comments over at CEI’s Openmarket blog, noting the irony that at one time, CSPI actually used to teach that trans fats were safer than saturated fats.

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Keep the public informed, get sued

by Andrew Grossman on March 26, 2007

Back in November and December of 2006, there was an E. Coli outbreak involving Taco Bell restaurants; dozens of customers were sickened. (It goes without saying that this led to lawsuits against the restaurant chain by those who got sick.) By early December, health officials had linked the outbreak to the chain; Taco Bell immediately went into action to locate the source of the problem.

Initial testing indicated that green onions used by Taco Bell were contaminated; moreover, in previous outbreaks, green onions had been the problem. So Taco Bell, in an effort to reassure the public, announced its findings and assured the public, via a series of press releases over the next few days, that “in an abundance of caution” it was removing green onions from its restaurants and would no longer sell them.

A few days later, Taco Bell announced that in fact green onions were not the culprit, but that to be extra-cautious, it would switch produce suppliers. (As we know, it turned out that lettuce was probably the source of the problem, and this was announced.) Everything that Taco Bell said was accurate; moreover, it correctly informed the public that green onions were not to blame once the CDC had confirmed this. Additionally, Taco Bell never mentioned the identity of its green onion supplier. Nonetheless, that supplier, Boskovich Farms, filed a lawsuit against the chain this past Friday, accusing Taco Bell of defamation and a series of related claims.

In short, Taco Bell is being blamed for being too open with the public in revealing information as the investigation developed. Of course, to the extent that Taco Bell failed to provide this information, the lawyers for the people who were sickened would be screaming “cover up.”

By the way, you may wonder why Boskovich Farms is claiming it was defamed even though Taco Bell never mentioned its name. Well, the company claims that those in the produce industry knew its identity as Taco Bell’s green onion supplier, so even though Taco Bell never mentioned it by name, its reputation was harmed. A reasonable claim, in the abstract. Presumably, though, those knowledgeable and sophisticated enough to possess this information are probably sophisticated enough not to be swayed by a Jay Leno monologue (!) almost three months after the incident — one of the two pieces of evidence cited by Boskovich in its complaint.

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But still no rat disclosure requirements?

by Andrew Grossman on March 4, 2007

Not to pile on, but Walter’s post yesterday about the follies of NYC Health Commissioner Thomas Frieden omitted a lesser-known regulatory change enacted by the Board of Health at the same time as the trans-fat rule: a rule requiring chain and fast food restaurants to put calorie counts on their menus or menu boards. (Because many people who buy Big Macs are counting calories.) A rule which managed to annoy the regulation-friendly New York City Council because Frieden did it without bothering to ask the city or state legislature first. A rule which had the added virtue of being completely counterproductive.

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California’s Prop 65: Protecting Us From the Evils of Cooked Chicken

by Andrew Grossman on December 26, 2006

Many of you may be aware of California’s “Proposition 65,” passed in 1986 and intended to help consumers by requiring warnings of any known exposure to a variety of chemicals, many of them carcinogens, that the state identifies on its Prop 65 list. In practice, many would argue, the law has done more to help plaintiffs’ attorneys than consumers, by creating an enormous list of allegedly dangerous substances and permitting a lawsuit whenever warnings of those substances are not posted — whether or not there is any realistic risk of harm under the particular circumstances.

Here’s a good example. Those listed chemicals include “heterocyclic amines” (HCAs) which are formed by cooking meat, the highest concentration occurring in cooked chicken. And so a group called the Physicians’ Committee for Responsible Medicine recently sued several restaurant chains, including McDonald’s, Burger King, and Outback Steakhouse, charging them with failure to warn customers that they cook meat. That is, failure to warn customers about the activity that is the precise reason that those customers are going there in the first place.

According to the National Cancer Institute, while HCAs may have some association with increased risks of cancer, there is currently “no good measure of how much HCAs would have to be eaten to increase cancer risk” — more research is needed. In fact, the NCI cited to one study that specifically covered fast-food restaurants and concluded that those companies’ products had low levels of HCAs. According to that study, home cooking was a greater danger. But that’s the beauty of laws like Prop 65 — evidence tends to be optional.

American Council on Science and Health
Prop 65 News Online

Previous coverage of the animal-rights group “Physicians’ Committee for Responsible Medicine” on Overlawyered: Sep. 6 and links therein.

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Don’t Mess with Texas Morals Police: Tavern Patrons Arrested for Intoxication

by Andrew Grossman on March 23, 2006

“Texas has begun sending undercover agents into bars to arrest drinkers for being drunk, a spokeswoman for the Texas Alcoholic Beverage Commission said,” according to Reuters. Public intoxication is illegal in Texas, and the authorities contend that their preemptive arrests will prevent people from driving drunk or committing other offenses. HT Peaktalk. More: Mar. 31.

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New Class Action Against McDonalds

by Andrew Grossman on February 20, 2006

On Friday, a new class action lawsuit was filed against McDonald’s for not fully disclosing the presence of dairy products and wheat glutens in their french fries. The suit was prompted by McDonald’s admission two days earlier that their fries do include milk and wheat, at least in small amounts. The suit does not appear to list any specific instances of people being harmed by trace milk and wheat in french fries, though a separate suit filed in Miami by the parents of a 5-year old girl alleged the fries caused their daughter to get very ill (though according to the article the parents continued to feed the girl McDonalds fries for two years).

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Guest Blogger Emerges

by Andrew Grossman on July 20, 2004

Hello folks, my name is Jim Leitzel and I generally hang out at Vice Squad. But the Overlawyered denizens have been kind enough to share their pixels with me this week, so here I am. I’ll probably talk mostly about vice, but I am an economist, not a lawyer, so I won’t be able to hold up my end of the lawyerly dialogue.

I’ll start with a quiz (though I won’t vouch for the correctness of my suggested answer). Imagine that you are concerned about three U.S. health-related problems: suicide, cancer, and sexually-transmitted diseases. Alas, you are limited to implementing only one policy reform. What should you do? To build suspense (is it working?), I’ll put my suggestion after the break…

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Federal bills seek to curb abusive fast-food lawsuits

by Andrew Grossman on August 6, 2003

Sen. Mitch McConnell and Rep. Ric Keller have introduced legislation to bar obesity-related lawsuits against food manufacturers and sellers. (See “US Senator in bid to fry fast-food lawsuits,” ABC News Online, July 18). “Many Americans need to take greater care in what–and how much–they eat. But it is also time to curb the voracious appetite of the personal injury lawyers and put an end to this ridiculous and costly litigation before it gets out of hand,” said McConnell, who managed to work in references to The Onion and diet guru Richard Simmons during his remarks on the Senate floor. For the text of the bills, see S. 1428 and H.R. 339. Apparently undaunted, humorist and Cheez-Its addict Dave Barry says he has decided to “summon up my willpower and accept personal responsibility for filing a huge lawsuit against Big Food.” (“Fatal Attraction,” Washington Post, Aug. 3). See our archives for earlier commentary on fast-food suits – real and satirical.

In other obesity lawsuit-related news, The New York Times has a round-up of employment-discrimination lawsuits brought by obese workers. The newspaper reports that plaintiffs take two different approaches under the Americans With Disabilities Act: “Some claim that their employers should not discriminate against them because they are disabled. Others, using an argument that has had more success in the courts, insist that they are not disabled, and that employers unfairly assumed they could not do the job.” Washington defense lawyer Peter Petesch said: “There’s no magical mathematical formula to say this obese person has a disability and this other person doesn’t. … It’s an individualized assessment. Generally, to be fat or dumpy-looking or not as good-looking as the other applicant isn’t enough to prevail under the Americans With Disabilities Act.” (Steven Greenhouse, “Obese People Are Taking Their Bias Claims to Court,” N.Y. Times, Aug. 4).

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