Chronicling the high cost of our legal system
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Marc Randazza (Dec. 12; source link he cites is NSFW):
A Rhode Island family filed a lawsuit in Kent Superior Court claiming that Verizon Communications caused “great pain, anxiety, nervousness and mental anguish,” by providing access to the Playboy Channel. Plaintiffs Robert Bourne, Denise Roy and daughters Elice Roy and Danielle Bourne are seeking compensation for “current and future medical bills.”
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“Here’s some food for thought: If you have nude photos of your wife on your cell phone, hang onto it. Phillip Sherman of Arkansas learned that lesson after he left his phone behind at a McDonald’s restaurant and the photos ended up online.” Sherman says restaurant employees had promised to secure the phone until he returned to pick it up; the story does not make clear (assuming it is known at all) how or by whom the pictures were posted. He and Tina Sherman are now suing the restaurant for damages that include the cost of moving to a new house, saying that she received threatening and harassing text and voice messages related to the pictures. (AP, Nov. 23; Northwest Arkansas Times).
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The flight attendant sought a whopping $405K for the alleged assault. This demand seemed unreasonable based on the description of the injuries, even if they occurred as alleged (“Jury says no assault, agrees with Osteen’s wife”, MSNBC, Aug. 14, earlier).
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We express no opinion as to exactly how badly Victoria Osteen, wife of a celebrated evangelical minister, may have behaved on that Continental Airlines flight in 2005; “The Federal Aviation Administration fined [her] $3,000 for interfering with a crew member.” Readers keep writing in, however, to call our attention to the financial demands that flight attendant Sharon Brown is making in her lawsuit, which just went to trial. It seems Brown wants compensation not only for such things as hemorrhoids and damage to her religious faith but also, by way of punishment, “10 percent of Victoria Osteen’s net worth”. Wouldn’t we all! (”Joel Osteen’s Wife on Trial in Flight Attendant Assault”, AP/FoxNews.com, Aug. 7).
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Not what you think, this is in Saudi Arabia:
“Tribes like to say, ‘We got this amount of money for a member of our tribe,’ ” he said. “People start to think the more money you can get for a member of your family, the more valuable your tribe is.”
And the defendant who doesn’t settle the case is executed. (Faiza Saleh Ambah, “Saudis Face Soaring Blood-Money Sums: Tribes, Families Are Demanding Millions”, Washington Post, Jul. 27).
An Arizona antiwar activist has been much criticized for selling a T-shirt with the slogan “Bush Lied, They Died” along with the names of the more than 4,000 U.S. servicemen killed in the war. Parents of a soldier killed in action in Iraq are suing, saying the use of their son’s name has caused them emotional distress; they want class-action status on behalf of all the parents of other soldiers killed in action, amounting to $40 billion. The suit’s Amended Complaint does little to advance the dignity of its cause with assertions like, “Most respectfully, this is a concept that even a mentally-challenged monkey could grasp.” (Howard Wasserman, Prawfsblawg, May 5; Balko, Reason “Hit and Run”, May 6; The Smoking Gun, Apr. 23).
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John L. Smith, whom the Las Vegas Review-Journal describes as its most widely read columnist, “has filed for bankruptcy after a two-year legal battle with Sheldon Adelson, owner of The Venetian resort. Adelson is suing Smith and his book publisher, Barricade Books, and alleging libel based upon Smith’s 2005 book ‘Sharks in the Desert: The Founding Fathers and Current Kings of Las Vegas.’ The Review-Journal was not named in the lawsuit.” Smith concedes the muckraking book contained inaccuracies about Adelson but takes issue with the tycoon’s claim of damages: “in the time since this book was published, Adelson has gone from 15th richest man in the world, according to the Forbes annual ratings, to sixth, so it’s hard to see how he has been harmed.” Barricade Books, associated with the late Lyle Stuart, also filed recently for bankruptcy. (A.D. Hopkins, ” Columnist pursues bankruptcy protection”, Las Vegas Review-Journal, Oct. 12) (via Romenesko).
Outrage continues to spread over Roy Pearson, Jr.’s $65 million suit against a Washington, D.C. Korean dry cleaner over a lost pair of suit pants (Apr. 26, May 1). The Washington Post editorially wonders whether Pearson should continue in his position as an administrative law judge given the “serious questions” raised by the case “about his judgment and temperament”. (”Kick in the Pants”, May 3). Associated Press coverage is circulating worldwide: Lubna Takruri, “Judge sues cleaner for $65M over pants”, AP/Kansas City Star, May 3. And Alex Spillius in London’s Daily Telegraph (”Judge sues dry cleaners over lost trousers, May 3) notes that Pearson
reached the figure of $67,292,000 as follows: Washington’s consumer protection law provides for damages of $1,500 per violation per day. Mr Pearson started multiplying: 12 violations over 1,200 days, times three defendants (the Chungs and their son)….Mr Pearson has set the Chungs and their lawyers a long list of questions, which includes: “Please identify by name, full address and telephone number, all cleaners known to you on May 1, 2005 in the District of Columbia, the United States and the world that advertise ‘SATISFACTION GUARANTEED’,” according to the Washington Post.
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In Ohio, Shannon Stovall is suing Yahoo for allegedly using her picture in an ad for its email services without permission. She wants $20 million, including “a portion of the profits that have been generated through the use of her likeness, and to cover her legal fees.” (GoogleWatch, Mar. 1). “Mitchell Yelsky, one of three attorneys handling Stovall’s case, said his client ‘has previously modeled and worked for modeling agencies.’” (Anne Broache, “Woman accuses Yahoo of stealing her image”, CNET, Mar. 2). For the $15.6 million “Taster’s Choice Guy” award in Christoff v. Nestle USA, see Feb. 2, 2005 and Nov. 16, 2006.
Kevin Underhill at Lowering the Bar, a law/humor blog, has amusing live coverage (Oct. 27) of the appeal in a California court of Christoff v. Nestle USA, the $15.6 million award for using a model’s photo on a coffee label without ensuring that the proper permissions were in place (see Feb. 2, 2005).
Some time ago, celebrity boutique and paparazzi-magnet Kitson had a legal dispute with Us Weekly magazine over payment for a book party the store threw for an Us editor. It was settled for a small chunk of change and a standard non-disparagement clause over the lawsuit. Us Weekly had the last laugh, however; it stopped covering the store in its magazine, to the point of cropping out the Kitson logo when publishing photos of celebrities shopping there. Or it thought it had the last laugh, because Kitson is now suing Us Weekly claiming a legal right to the publicity the magazine is withholding and alleging $10,000/week in damages from the loss of publicity. The Jossip blog has the complaint and somewhat more detail than the mainstream press account. (Andrew Blankstein, “Celebrity Boutique Sues Us Weekly, Saying Lack of Coverage Is Hurting Business”, LA Times, Sep. 12) (via Romenesko).
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The Wisconsin lawprof has this to say (Jul. 19) on that copyright-infringement lawsuit that we mentioned in passing yesterday, the one aimed at the hit site for hosting a video of the beating of Reginald Denny:
Robert Tur, who could have just asked YouTube to remove the video someone had uploaded, instead left it there and then sued demanding $150,000 for each of the 1,000+ viewings that occurred. YouTube took the video down when the lawsuit called attention to the problem.Well, we knew eventually someone would sue YouTube, but could it be anyone less sympathetic then a guy who once got lucky and was there with a camera when someone else was getting beaten up?
More in her comments section.
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So how exactly do you build a case for high damages when the alleged defamation (see Jun. 22) hasn’t dislodged you from the bench and it will be a good long while before your term expires? Well, your lawyer can talk about how you were thinking of stepping down to become a highly paid rainmaker at a Chicago law firm, and so maybe the defendant newspaper should have to compensate you for what your hired economist says is the value of that. Besides, you were thinking of securing an appointment as a federal judge. And what if the Illinois voters decide to throw you out down the road — isn’t the lost salary from that something the defendant should have to pay you for, too? (Eric Herman, “Justice’s libel suit figures his losses”, Chicago Sun-Times, Jun. 10)(via Lattman).
We covered the case—where a hockey player complained that a comic-book character had the same name—on July 13, 2004. Todd MacFarlane still has the chance for discretionary review by the Missouri and U.S. Supreme Courts, though the former has already ruled against him once. Eugene Volokh will be sure to have insightful commentary on the First Amendment implications; here’s his earlier take, predicting a “good chance” of Supreme Court review and reversal. Beyond the First Amendment implications, the damages are ludicrous.
We reported on the story in September 2004:
“Joe Doe”, the HIV+ plaintiff in a Texas state lawsuit, is a member of the choral group “Positive Voices”—which has produced a CD with his photo and his real name. Nevertheless, when the alternative weekly Dallas Observer also identified “Doe” as HIV+ in passing in a larger December 4 story about a gay congregation titled “Fallen Angel,” “Doe” sued. The suit doesn’t allege that the Observer got its facts wrong, but argues that the story violates a Texas law prohibiting the disclosure of “medical test results,” with a fine of up to $10,000 for each disclosure. Since the Observer has circulation of 110,000, “Doe” figures he’s entitled to over a billion dollars.
Positive Voices is a group that advertises itself as consisting of HIV+ members. A Texas state court of appeals reversed the decision of the trial court not to grant summary judgment, and entered judgment for the defendants. (John Council, “Texas Appeals Court Sides With Newspaper in $1 Billion Suit Over HIV Disclosure”, Texas Lawyer, Feb. 13; New Times Inc., et al. v. John Doe., No. 05-05-00705-CV (Tex. App. Jan. 24, 2006)).
The decision was limited to the facts of the case, however, and the state statute remains overbroad, and could easily be construed by future courts to apply to the media. Or even personal-dating websites: a strict interpretation of the statute, HSC § 81.103, would create a cause of action for a plaintiff who posts “I have tested negative for HIV” on a website that screens essays against that website. And the statute is conceivably even broader, given its definition of “test result”:
“Test result” means any statement that indicates
that an identifiable individual has or has not been tested for AIDS
or HIV infection, antibodies to HIV, or infection with any other
probable causative agent of AIDS, including a statement or
assertion that the individual is positive, negative, at risk, or
has or does not have a certain level of antigen or antibody.
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In 1986 California model Russell Christoff was paid a modest sum for doing a photo shoot with a photographer working for Nestlé but assumed nothing had come of it. Years later, Christoff happened to glance at a jar of the company’s Taster’s Choice instant coffee and realized that the tiny “satisfied coffee drinker” face on its label was his, it having appeared there for years. And now a jury in Glendale, outside Los Angeles, has ordered the Swiss-based food company to pay Christoff $15.6 million for using his picture without adequate permission. “The jurors determined that Glendale-based Nestle should have paid Christoff $330,000 for the use of his likeness. They also voted to hand Christoff damages equal to 5% of the profit from Taster’s Choice sales during the six-year period, or $15.3 million,” invoking a California law intended to protect celebrities’ image. A company lawyer says the employee who pulled the photo for use thought the requisite permissions had been obtained on it. So now if you notice Legal being really, really prickly about signing off on any proposed use of photos picturing people, you’ll know why. (Meg James, “Verdict Creates Instant Millionaire”, Los Angeles Times, Feb. 1; James Bone, “The tiny face on this jar of coffee has just cost Nestlé 15m”, The Times (UK), Feb. 2).
Point of Law Volokh