Paradoxically or otherwise, makers of products like perfume cannot trademark their scents, because the fragrance needs to be “nonfunctional.” The Play-Doh scent is “one of only about a dozen scent trademarks that the [U.S. Patent and Trademark Office] has recognized to date, including Verizon’s ‘flowery musk’ store scent, the bubble-gum smell of Grendene jelly sandals, and the scent of strawberries with which Lactona toothbrushes are ‘impregnated.'” [Lowering the Bar]
“They like a Quarter Pounder without cheese. So they’re suing McDonald’s for $5 million”
Some McDonald’s stores used to charge separate prices for Quarter Pounders depending on whether they did or did not include cheese, but then moved to a policy of charging the same price either way. Lawyers have now filed an intended class action claiming that two South Florida clients “have suffered injury” because under the new pricing scheme they “were required to pay for cheese… that they did not want and did not receive.”” [Howard Cohen, Miami Herald]
HBO sued over three-second shot of graffiti
HBO has prevailed in a copyright and trademark lawsuit brought by the creator of a piece of graffiti on a dumpster that was briefly glimpsed (for two or three seconds) in a show. [Timothy Geigner, Techdirt]
Opioids roundup
- Prisoners die of drug overdoses at a high rate in their first week after release. That’s in part a prohibition-related problem [Jeffrey Miron, Cato]
- “Drug testing kits can detect the presence of fentanyl and other contaminants — but in many places, including Illinois, they are classified as illegal drug paraphernalia.” [Steve Chapman]
- “Hospitalized Patients Are Civilian Casualties in the Government’s War on Opioids” [Jeffrey A. Singer, Cato, more]
- Texas: “Opioid lawyers pumped $110K into LaHood’s campaign after Bexar County DA hired them” [David Yates, Southeast Texas Record] “State senator working with Watts on home turf opioid lawsuit, lawyers billing Hidalgo County $3,800 an hour” [SE Texas Record]
- “Cities Vs. States: A Looming Battle For Control Of High-Stakes Opioid Litigation” [Daniel Fisher on Tennessee AG’s intervention]
- All 50 states have now adopted prescription drug monitoring programs, but do they work as intended? [Jeffrey Singer, Jacob Sullum]
Shutting down campaign criticism of an Arkansas judge
An injunction that is “almost certainly unconstitutional” as prior restraint orders attack ads critical of Arkansas Supreme Court Justice Courtney Goodson taken off the air, and further legal wrangling follows [Eugene Volokh, followups one and two, Marc Kilmer/Arkansas Project]
Pickup crosses interstate median, strikes oncoming vehicle. Guess who pays $89.6 million?
Driver of pickup truck loses control on Texas interstate, crosses median and strikes oncoming semi-trailer truck. Among passengers in pickup truck are two kids, one killed and one horribly injured. Driver of oncoming semi was in own lane, did not lose control, and was driving under speed limit. Plaintiff’s creative theory: there might have been ice on the road, the Werner Enterprises manual tells drivers not to drive during icy conditions; so the driver should not have been on the road at all, and if he hadn’t it would have averted that particular collision. Werner, in its defense: not only was evidence contradictory as to whether conditions were icy or just damp, but driver guidelines do not somehow create legally binding obligations to third parties or prove negligence that could not be shown otherwise. Jury to Werner Enterprises: pay $89.6 million. [Michael O’Connor, Omaha World-Herald]
Cuomo to regulated banks, insurers: it might be risky for you to go on dealing with the NRA
As we mentioned in a brief earlier item, New York Gov. Andrew Cuomo has “directed the Department of Financial Services to urge insurance companies, New York State-chartered banks, and other financial services companies licensed in New York to review any relationships they may have with the National Rifle Association and other similar organizations. Upon this review, the companies are encouraged to consider whether such ties harm their corporate reputations and jeopardize public safety.” [Cuomo press release] Maria T. Vullo, Superintendent of Financial Services for the state of New York, issued a guidance memorandum. In language not altogether typical of safety-and-soundness financial regulation, Vullo wrote:
While the social backlash against the National Rifle Association (the “NRA”) and similar organizations that promote guns that lead to senseless violence has in the past been strong, the nature and the intensity of the voices now speaking out, including the voices of the passionate, courageous, and articulate young people who have experienced this recent horror first hand, is a strong reminder that such voices can no longer be ignored and that society, as a whole, has a responsibility to act and is no longer willing to stand by and wait and witness more tragedies caused by gun violence, but instead is demanding change now.
Brian Knight writes at FinRegRag:
This request could easily be construed is a thinly veiled threat. While the NYDFS statement does not explicitly say that NY FIs (financial institutions) that may face regulatory sanction for failing to cut ties with the NRA, it doesn’t rule out the possibility either. If the NYDFS had no intention of threatening regulatory sanctions, they could clearly have added language taking the threat of enforcement off of the table. They didn’t, which indicates they want NY FIs to think there is a potential the government will come after them if they don’t end their relationships with groups like the NRA.
These instructions to NY FIs could also be seen as an attempt to suppress political speech that some New York policy makers disagree with. Whatever one thinks of the NRA, it is an organization engaged in legal political speech and advocacy. Cutting off the NRA’s access to financial services could change the political debate by reducing opposition to political efforts to tighten gun laws. The NYDFS release says, “This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all.” Given that the NRA does not make a product that could pose a direct risk to public safety, this release is clearly referencing the NRA’s political advocacy.
Knight compares the initiative to the Operation Choke Point episode, in which federal regulators steered banks away from dealing with various controversial but lawful lines of business, including some that were politically fraught. But in that episode, at least, the target enterprises were primarily engaged in the sale of goods and services and thus might in principle have faced financial risks related by fraud or unfulfillable obligations to customers.
The NYDFS order appears to be inherently about political speech. After all, there is no allegation that the NRA is committing fraud against its members. Rather, the argument is that the NRA’s positions are so dangerous that they are harmful to the community and pose a risk to the reputation of any FI that works with them. This could fairly be seen as an attempt to restrict the NRA’s ability to operate in the political arena and marketplace of ideals.
The guidance memorandum might thus accomplish by indirection what it would be plainly improper for the state to attempt directly:
There is no law that says a FI (financial institution) cannot do business with a gun rights group and such a law would almost assuredly be unconstitutional. However if the regulator declares that such an affiliation poses a reputational risk to the FI (that the regulator, not the market, determined existed), it has leverage to force the FI to comply.
The NRA has filed a suit against the governor and New York officials saying the program amounts to “coercion” aimed at depriving the association and its constituents of First Amendment rights. More: Scott Greenfield.
Meanwhile, in other news of regulatory retaliation — see also our tag on that — U.S. President Donald Trump reportedly urged the U.S. Postal Service to double its rates for handling packages shipped by Amazon.com, linked in his mind through founder Jeff Bezos with his journalistic nemesis the Washington Post. Postmaster General Megan Brennan is said to have “resisted Trump’s suggestion in private conversations in 2017 and 2018, telling him that package delivery rates are set by contract and reviewed by an independent commission” and that the Postal Service does not get a bad deal from its arrangements with Amazon and other e-commerce firms. [Reuters]
“The incredibly frustrating reason there’s no Lyme disease vaccine”
Your dog can get vaccinated against Lyme disease, but you can’t. Thanks for nothing, anti-vaxxers and trial lawyers! [Brian Resnick, Vox; earlier] The article touches only briefly on the role of lawyers and litigation in this episode, but it’s been documented at more length by, among others, Paul Offit in his book The Cutter Incident.
May 23 roundup
- Judge denies motion to dismiss Title IX suit against Laura Kipnis [Maddie Burakoff, Daily Northwestern, KC Johnson thread on Twitter] First Circuit appeal considers whether persons unconnected with a university can initiate Title IX complaints against it [District of Rhode Island decision in Doe v. Brown via Nicholas Wolfinger thread on Twitter]
- “Do we really need to tell you how a rent control regulatory takings claim fared in the Ninth Circuit? We didn’t think so.” [Robert Thomas, Inverse Condemnation, on Colony Cove Properties, LLC v. City of Carson]
- Judge boots 30-year-old who refused to move out of parents’ house [Douglass Dowty, Syracuse Post-Standard] More: Lowering the Bar.
- As the Supreme Court narrows the gate for Alien Tort claims, here come the inevitable proposals to widen it again by statute, as by FCPA-izing ATS [Pierre-Hugues Verdier and Paul Stephan, Lawfare]
- “Theatre Must Provide Captioning For All Live Performances Says Federal Judge” [Minh Vu, Seyfarth Shaw; Fabulous Fox Theatre in St. Louis]
- Still relevant, alas: what I wrote on the ADA and golf competition 20 years ago [Reason “From the Archives”]
Supreme Court upholds workplace arbitration, and it’s Epic
My latest at Cato on this week’s decision upholding agreements to individually arbitrate wage and hour claims, in Epic Systems Corp. v. Lewis:
Yesterday’s 5-4 Supreme Court decision upholding agreements to individually arbitrate wage-and-hour claims was neither surprising nor novel as a legal matter. Nor – notwithstanding the variously breathless, furious, and apocalyptic reactions it has drawn from stage Left – is it objectionable as a matter of policy, or “anti-worker.” It is pro-liberty, pro-contract, and pro-respect for private ordering….
NPR, which really should know better, misreported on Twitter that “The Supreme Court in a 5-4 vote has delivered a major blow to workers, ruling for the first time that workers may not band together to challenge violations of federal labor laws,” of which the first eight words count as accurate reporting, the next half-dozen as erroneous opinion, and the remainder as merely false in fact….
…an oft-heard argument is that a contract presented as a take-it-or-leave-it matter, as is typical of employer handbook policies, credit card terms and the like, doesn’t count as a “real” contract and is entitled to no respect as a matter or law or, presumably, from libertarians. … Properly evaluating that claim is a task for another occasion, but my colleague Andrew Grossman is surely right when he points out that every hour of the day workers choose to accept overall employment packages including some terms they welcome (health insurance coverage, paid vacations) along with others they may not (some weekend hours required, don’t take staplers home) and that the lack of dickering over individual terms does not mean that they are not voluntary or have somehow been imposed by force.
Whole thing here. As I wrote after Italian Colors, millions of people “sign away their class action rights not because they are all hoodwinked or coerced, but because at some level they have rational grounds to recognize that” those rights are mostly of value to the class action industry.
Speaking of Italian Colors, the outcome in Epic Systems would surely have been no different had Scalia lived, since he led the way on the Court toward respecting contractual arbitration clauses and upholding the broad scope of the Federal Arbitration Act. More from Archis Parasharami and Dan Jones at SCOTUSBlog: “The best available empirical evidence shows that employees who arbitrate their claims are more likely to prevail than those who go to court, and to obtain awards that are the same as or larger than court awards in a shorter amount of time.” More: James Copland.