NYU student Avram Wisnia was “horsing around a kiddie pool filled with gelatin” at a dorm party in 2004 when he was pushed and broke his hip. A judge has now ruled he cannot sue the university for allowing the event and having the school food service furnish the gelatin, the risks of such a recreation being obvious enough to put him on notice. (“No Go In Jell-o Wrestling Lawsuit Against NYU”, AP/WNBC, Jan. 29).
Archive for 2008
Sued for encouraging user-generated content
Suits by businesses over their competitors’ advertising are a staple for us, but this one has a somewhat new wrinkle:
Quiznos, the toasted-sandwich chain, [invited] the public to submit homemade commercials in a contest intended to attack a top rival, Subway. The contest rules made it clear that the videos should depict Quiznos sandwiches as “superior” to Subway’s.
Subway promptly sued Quiznos and iFilm, the Web site owned by Viacom that ran the contest, saying that many of the homemade videos made false claims and depicted its brand in a derogatory way. Subway is also objecting to ads that Quiznos itself created, showing people on the street choosing Quiznos over Subway.
The dispute over an ad is fairly standard — companies often sue one another over advertising claims — but the video contest raises a novel legal question: Quiznos did not make the insulting submissions, so should it be held liable for user-generated content created at its behest? …
If Subway wins, advertisers and media companies may find themselves liable for false advertising claims made by consumers who participate in their contests.
(Louise Story, “Can a Sandwich Be Slandered?”, New York Times, Jan. 29).
Neuborne dispute not over after all
Professor Burt Neuborne finally received the $3.1 million he requested for achieving a $1.25 billion tax-free settlement of claims brought by Holocaust survivors against Swiss banks. The controversy isn’t over, however; Neuborne has made a standard request for interest (another $300,000), and there is much wailing and gnashing of teeth. [Law Blog; NY Sun; earlier on Overlawyered]
Professor Neuborne’s fee request is based on the hours actually spent on seven years of complex international litigation (29 formal proceedings and 16 successful Second Circuit appeals), and amounts to less than 1% of the amount recovered. There is no evidence that Professor Neuborne inflated his hours. If all contingent-fee requests were as reasonable as Professor Neuborne’s, reformers would have a lot less to complain about.
Milberg Weiss scandal: plaintiff-for-pay sentenced
Elderly (80) and ailing, retired entertainment lawyer Seymour Lazar drew an unusually light sentence of six months home detention after having “pled guilty to taking secret payments from Milberg Weiss for helping to bring dozens of securities lawsuits by serving as a plaintiff or arranging for his relatives to do so. Three former Milberg partners, William Lerach, David Bershad, and Steven Schulman, have also pled guilty in the scheme,” while the law firm itself and founder Mel Weiss continue to fight the charges and are expected to face trial later this year. “According to a statement from the prosecution, [federal judge John] Walter said he would have sentenced Lazar to a substantial prison term if he were younger and healthier.” (Josh Gerstein, New York Sun, Jan. 29).
Walter Dellinger as Hillary’s AG?
That’s the most favorable thing I’ve heard about Hillary Clinton in quite a while; naturally, it’s provoking heartburn in some quarters where Dellinger is viewed as neither leftist enough nor pro-litigation enough. (Stephanie Mencimer, Mother Jones blog, Jan. 28).
Mississippi: “Feds expand bribery investigation”
* “The FBI is expanding its probe into Mississippi’s judicial bribery scandal to examine other cases involving Hinds County Circuit Judge Bobby DeLaughter and his former boss, longtime District Attorney Ed Peters.” The pair surfaced in the Scruggs annals not long ago when Joey Langston pleaded guilty to involvement in a 2006 scheme to get DeLaughter to rule in Scruggs’s favor in a fee lawsuit, which allegedly included the funneling of $1 million of Scruggs’s money to Peters, who was viewed as close to the judge. (Jerry Mitchell, Jackson Clarion Ledger, Jan. 28). Rumors have been rife that Peters, DeLaughter or both may be cooperating with authorities, which might strengthen prosecutors’ hand in securing further evidence of the scheme.
* Perhaps relatedly, to quote Folo’s contributor NMC, “In the case against Dickie Scruggs over allegations of bribing Judge Lackey, the prosecution has filed a Notice of Intent to Introduce ‘similar acts evidence pursuant to Rule 404(b), Fed. R. Evid., at the trial’”. See Patsy R. Brumfield, “Prosecutors ready to say bribery attempts aren’t anything new”, Northeast Mississippi Daily Journal, Jan. 28.
* With what might seem like startlingly bad timing, Scruggs chum/novelist (and campaign donation co-bundler, if that’s the right term) John Grisham is just out with a new fiction entitled The Appeal, whose thesis, to judge by Janet Maslin’s oddly favorable review in the Times, is that the real problem with the Mississippi judicial system is that salt-of-the-earth plaintiff’s lawyers are hopelessly outgunned in the task of trying to get friendly figures elected to judgeships to sustain the large jury verdicts they win. One wonders whether any of Maslin’s editors warned her about recent news events — she doesn’t seem aware of them — that suggest that the direst immediate problems of the Mississippi judiciary might not relate to populist plaintiff’s lawyers’ being unfairly shut out of influence. Of course it’s possible she’s not accurately conveying the moral of Grisham’s book, and if so I’m not likely to be the first to find out about it, since I’ve never succeeded in reading more than a few pages of that popular author’s work. By the way, if you’re wondering which character in the novel Grisham presents as the “hothead with a massive ego who hated to lose,” yep, it’s the out-of-state defendant.
The battle for Edwards’s funders
Aides to candidates Clinton and Obama feverishly work an AAJ/ATLA trial lawyers’ conclave down Puerto Rico way, sensing that the money behind the flagging John Edwards candidacy may be “looking for a new candidate to get behind”. It’s “a testament to the crucial role played by the legal profession in Democratic fundraising. Trial lawyers have proved to be the financial mainstay for Edwards’s two presidential bids, as well as for the Democratic Party in general.” Quotes longtime Overlawyered favorites Fred Baron, Thomas Girardi and Robert Montgomery (Matthew Mosk, “Top Candidates’ Teams Look to the Lawyers”, Washington Post, Jan. 28).
Mustang club calendars
Initial reports had it that the car company’s lawyers were objecting to fans’ putting out a calendar adorned with pictures they’d taken themselves of their beloved Mustangs. Later, the company said it was fine with the fans’ publishing the photos and calendars so long as they didn’t use the Ford logo. (AdRants, Jan. 14; Culture Garage, Jan. 11).
“Court Says You Can Copyright A Cease-And-Desist Letter”
We and many others criticized a law firm in October for taking the position that its cease and desist letters, also known as nastygrams, were copyrighted and thus could not be posted intact on the web by its targets. However, if a press release from that law firm is correct, a federal court in Idaho has just indeed taken the position that cease and desist letters may be covered by copyright law. Such a ruling, if upheld, would make it more difficult for the targets of bullying tactics by lawyers to rally online support for their cause. (TechDirt, Jan. 25; Slashdot, Jan. 26; Dozier Internet Law press release, PRWeb, Jan. 24).
More: “if a press release from the law firm is correct” turns out to be a big if: according to Ron Coleman at Likelihood of Confusion, as well as our own commenters, the Idaho federal court ruling falls far short of establishing any such proposition about these letters’ being copyrightable. See also: Victoria Pynchon, IP ADR blog, TechDirt later post, Paul Alan Levy @ CL&P. And yet more: Marc Randazza, Eugene Volokh.
Why are so many politicians lawyers?
Tyler Cowen wonders, and his readers chime in with many of the obvious theories, as well as some not so obvious (Marginal Revolution and Volokh).