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Monthly Archives: May 2007
I am Man! I am Man!
Out on Philly, an Indian fella with a tad too much testosterone got his comeuppance this week. Thirumurthy Nakka Boomaiah of Chennai, India was sentenced to 69 days in jail (which he’d already served) for getting fresh with the flight attendants on a London to Philadelphia trip.
Boomaiah was arrested March 21 at Philadelphia International Airport after passengers and crew complained that he had rubbed the legs and genital areas of female passengers and thrown water in the face of a flight attendant who told him to stop. Passengers told authorities that after crew members strapped Boomaiah to his seat, he continued to shout obscenities until the plane landed.
Boomaiah was initially declared incompetent to stand trial because, during his first court appearance, he had to be wrestled to the floor after he started lurching toward a female clerk, shouting “I am Man! I am Man!”
Doctors, however, eventually ruled that he was competent to stand trial after learning that Boomaiah wasn’t crazy, he was just singing the new Burger King Double Whopper song.
Sing it, brother:
I’m Mad as Hell …
Damn — this could set a dangerous precedent. The owners of a Florida restaurant are bringing a lawsuit against the local paper for writing a negative review. The suit was filed last year, and a judge has just decided to allow it to go forward, finding merit in the allegations. The owners of the restaurant, Delmonico Grill, claim that the reviewer, Patricia Smith, presented her opinion as fact (ah — yeah, that’s what reviewers do).
Allegedly, Smith mischaracterized the interior of the restaurant, saying that it has “dimmed lights,” a “dark décor,” and “the chill of arctic air.” The restaurant owners took issue with that, suggesting that Smith insinuated that the restaurant sounded like “a cave.” Smith also wrote that one dish was previously prepared and not heated properly, though the owners claimed that the food was bought only two hours earlier and that “everything is prepared fresh.”
The owners further claim that the review wasn’t like any of the other, positive reviews of the restaurant and claim that Smith’s ed to a dramatic decrease in business, so much so that the owners now have to wait their own tables because they can’t afford a waitstaff.
Oh you poor bastards — you gotta wait your own tables.
Piss off. This lawsuit is pure bunk — unbelievable. You can’t sue a reviewer just because her review differed from everyone else’s. A bunch of idiots gave glowing reviews to The English Patient; that didn’t make it any damn good. I once suggested that the cast of the Jackass films were living out their homoerotic fantasies and I even went so far as to present that as fact. Can I expect the studio to sue me anytime soon?
This is ridiculous — reviewers are tasked with using their critical faculties. If a dish tasted like it was previously prepared and not heated properly, i.e., like shit, then it’s a reviewer’s God-given right, ne responsibility, to say as much. In fact, the very point of a review is to steer customers away from bad restaurants, necessarily decreasing business. If you want a better goddamn review, then make a better goddamn stuffed bell pepper. It’s not freakin’ rocket science, here.
Of course, the absurdity of this lawsuit is compounded by the fact that two similar lawsuits have been filed, one in Pennsylvania (still undecided) and another in Dallas that was dropped after the newspaper agreed to run a second review, which is just critical blasphemy, if you ask me.
The Daily Memo - 5/31/07
Massachusetts is considering legislation to crack down on bad food in schools - banning fatty and sugary foods not just from vending machines, but from bake sales and fund-raisers. (The Boston Herald)
A woman has been charged with battery after allegedly biting off a hunk of her son-in-law’s ear. (Local6)
“Lawsuits still not so sweet for Splenda.” (43(B)log)
Brandy and another injured driver are both suing each other over a fatal freeway accident that happened last December. (FindLaw)
Larry Birkhead is being sued by his former paternity lawyer, who claims he didn’t pay all his bills. (CNN)
Vermont’s Governor has signed a bus idling bill into law, requiring school buses to turn off their engines while parked and waiting on school grounds, to help reduce greenhouse gases. (Burlington Free Press)
Common Sense Lesson #145
Let’s say you’re a convicted burglar and a registered sex offender. And let’s also say that you’re on probation from your burglary charge. Finally, let’s posit that you’re scheduled to appear in court because you have allegedly violated that probation.
QuizLaw’s advice is that you turn up for your court appearance. And we suggest - we insist, in fact - that you do not try to get out of your court appearance by calling in a bomb threat to the county courthouse (and to two schools, just to play it safe). Sure, you may get out of your court appearance at that moment, but you’ll still have your day in court. Plus you’ll have a new day in court to face the three counts of making terrorist threats that those fascist prosecutors throw your way.
When I say MADD is mad, I’m suggesting they’re nuts, not angry
Lawrence Taylor (who’s not that Lawrence Taylor) over at the DUI Blog has posted a fascinating “insight into the thinking at the top of MADD’s” bureaucracy (MADD is, of course, Mothers Against Drunk Driving). Last week, Taylor took part in a debate with MADD’s CEO, Charles Hurley. At one point, he asked Hurley about “why the [DUI] fatality statistics have remained unchanged for 13 years.” And check this out:
The reason for the continuing fatalities, Mr. Hurley calmly explained, is that defense lawyers are more concerned with their clients’ constitutional rights than with their clients’ victims.
And a recent report MADD filed with the Feds included the following two items as hurdles to DUI reform:
A judiciary that struggles to define itself and maintain its objectivity in the face of aggressive defense attorneys.An organized DUI defense bar more concerned with “winning a case” than with the carnage on our streets and highways.”
I mean, look - I’m all for MADD’s goal to prevent drunk driving and trying to curb the “carnage on our streets.” No bones about it. But to argue that the problem here is that defense counsel is too concerned with protecting defendants’ constitutional rights is lunacy. I will never understand those who continue to argue that the best way to fix problems in this country is by taking away rights from folks, rights granted and guaranteed by our Constitution (…ahem, President Bush - I’m looking at you here, too). Seriously, MADD, maybe it’s time to update your thinking and look at meaningful ways to attack the problem.
When Lawyers Attack!
Last spring, Schwebel Baking (an Ohio bakery) was involved in contract negotiations with the Teamsters Local 365, which the bakery’s employees were members of. John Masters (the Teamsters’ attorney) and Stephen Sferra (Schwebel’s attorney) were conducting these negotiations in a hotel conference room and things apparently got a little heated while the two were arguing over pensions. Things got so hot that, according to a lawsuit filed by Masters this week, Sferra beat the crap out of Masters, choking him, punching him and knocking him to the floor.
Last August, Sferra pleaded no contest to disorderly conduct charges relating to this incident, although a former partner of his claims that he’s “a decent gentleman in every sense of the word.” Masters, meanwhile, says that Sferra’s firm has touted its image as a “tough guy” firm, adding:
Sometimes you yell and scream at somebody. But I’ve never seen anyone close to putting their hands on anybody.
I’ve also never seen any lawyer-on-lawyer fights actually get physical (though I’ve seen plenty of shouting matches, and have unfortunately been in a few myself). However, a fellow associate did get so fed up with opposing counsel once that he offered to settle the matter in a boxing ring (and having later gone up against that same opposing counsel, I understand exactly where he was coming from - those guys were insufferable, condescending, obnoxious twits).
(A grateful hat tip to the WSJ Law Blog.)
Sunlight — Now Worth $33 Million
A legal secretary for the New York City firm of Binder & Binder has sued the firm, claiming that it failed to accommodate her disability. And what, prey tell, was that disability? Seasonal affective disorder, of course, which I understand is another one of those “diseases” invented by the pharmaceutical companies to profit on SAD drugs – you know, like restless leg syndrome. According to Wikipedia, SAD causes people to suffer from depression during certain parts of the year, either summer or winter, and it’s often called the winter blues – or what I call football season. Rosie O’Donnell also suffers from SAD, which might explain a few things.
Anyway, the secretary, Caryl Dontfraid, claims that things started to go sour right after she revealed to her employers that she suffered from the disease. Soon thereafter, the “exemplary employee” was relocated to a different workstation, along with the rest of her department. However, she argued, it wasn’t close enough to a window for her liking. She demanded reasonable accommodation and when the firm refused, she refused to work. Dontfraid was fired later that day.
Naturally, she’s now suing her former employer for $33 million. $33 million! How about that?! Oh, and I should probably mention that her new workstation was three feet away from the window. I’m guessing she arrived at that $33 million figure by ascertaining that every foot away from the window warranted $11 million dollars.
Personally, I might’ve accommodated Ms. Dontfraid in a different manner – I would’ve bought a freakin’ sun lamp and stuck it over her head and grumbled, “Light enough for you, lady,” every time I passed by her desk. Either that, or set up her workstation out on the goddamn sidewalk where there’s plenty of sunlight, as long as you don’t mind sharing your coffee with the homeless folks who suffer from Seasonal Affective Disorder year round.
Stupid litigious country.
You Really Can Do Anything with Duct Tape
It looks like it’s not just parents who are buying up the latest in technology — QuizLaw’s newest parental tool. Teenagers have caught the fever, too. Kidnapping has never been easier.
Dr. Death Set Free
It’s been a long time since we’ve heard anything from Dr. Jack Kevorkian, the doctor known popularly as Dr. Death. You’ll recall that he helped at least 130 terminal patient kill themselves and, famously, he videotaped one such death which was later broadcast on “60 Minutes.” The man even invented his very own death machine to help hasten the deaths of many of his patients. Dr. Kevorkian, however, was imprisoned a little more than eight years ago after helping a Michigan man end his life.
Now, after all that time, Dr. Kevorkian is finally being released from prison (this Friday, June 1st, to be precise). Unfortunately, he’s ailing — the guy is old (79), and I don’t imagine prison has been a particularly healthy place for him to be. Still, as he leaves prison, he has to look around and wonder if it was all worth it. Eight years later, physician-assisted suicide is still only allowed in one state — Oregon — through a law that has been in effect since 1997. Since that time, only around 30 people a year have taken advantage of the law, asking doctors to prescribe medicine that would end their suffering. Most were very old to begin with, and the majority had terminal cancer.
Kevorkian, though he’s promised not to help anyone else end their lives, is going to continue to fight the good fight — he’ll speak out and try to legalize physician-assisted suicide in more states. The Supreme Court has looked at the issue and, in their 1996 decision, Washington v. Glucksberg, the Supremes held that state laws prohibiting physician assisted suicide did not violate the Constitution. The converse, of course, is that state laws allowing it are not illegal, either — the Supreme Court, in 2006’s Gonzales v. Oregon, upheld the Oregon law, over the Bush administration’s protest. So, for Kevorkian’s war to be won, it’s gotta be done on a state-by-state basis.
For the record, euthanasia is supported by 60 percent of Americans, according to a 2006 Gallup poll. California currently has a bill out there which would allow euthanasia — and though the legislation was defeated in 2006, it has since been reintroduced with broader support. Worldwide, euthanasia is still only legal in Belgium and the Netherlands.
I might also add that in Australia New Zealand, the power company has accidentally gotten in to the euthanasia game.
The Daily Memo - 5/30/07
A fat lady who was let onto a roller coaster, despite being rather too big for it, has sued the amusement park (for $16 million) over her 11-foot fall onto a cable box. (FindLaw)
A Wisconsin bar owner has been fined for pouring Coors Light out of a Miller Light tap. (Fox News)
In Utah, you can’t have a vanity license plate that reads “Merlot” or “X,” but you can have a plate holder that reads “Happiness is a Dead Child” - God bless the Mormons. (The Salt Lake Tribune)
New Jersey Governor Corzine is telling folks he “should be dead,” as part of his campaign for folks to use their seat belts, following his April carcrash. (Courier Post)
More on yesterday’s Supreme Ledbetter decision. (SCOTUSblog)
Texas lawmakers have approved random steroid testing of high school football players, although the legislation still awaits Governor Perry’s approval (or lack thereof). (FindLaw)
When Judges Attack
Last week, an Atlanta judge hit a scumbum child molester with a life imprisonment sentence. But then he unloaded on the mother of the two child victims, after she thanked Jesus, railing on her for letting it happen and putting her kids at risk: “You knew what was going on … You are an atrocious mother … You are disgusting.”
Watch for yourself:
A Florida Exacta
I’ve got two Florida stories for you this morning. Borrowing from horse racing lingo, the place horse would be the story of two Tampa-area siblings. Monika Iverson, 23, and her 18-year-old brother Jeremiah were arrested last Thursday after using their Ford Focus to cut off a school bus dropping off their 16-year-old sister. Jeremiah threatened the bus driver with a brick and, not wanting to be left out of the fun, Monika decided to beat up a cop car when the deputies finally showed up (she kicked out a window and dented a door frame). Nobody knows why they were pissed off at the school bus. My guess - it was just a case of the Florida crazies. (And it should probably go without saying that both are facing quite a few criminal charges.)
But that story was only good enough to come in second - the win, by a good four horse-lengths, goes to William R. Cohen, a Fort Lauderdale attorney. He’s suing a family for at least $15,000, and up to $1 million, after their dog bit his nipple. One million dollars for a nipple bite! Cohen was at a Boca Raton dog park back in March and he alleges that Taz, a 2-year-old terrier, bit a little girl’s puppy and then bit her. He jumped in and grabbed the dog, which is when his nipple got chomped. But the family says that this was just two dogs involved in a minor scrape, and that Cohen should’ve known better than to jump in to grab their terrier. They say that when Cohen was bit, “he was kind of like: ‘Ow. That kind of hurt,’” but that there was no blood and that Cohen didn’t seem to be in bad shape. Cohen says he’s not usually a litigious person, but he wants money for his medical treatment and loss of income, as well as for damages to cover his pain and suffering and “loss of sexual comfort and desire.”
Another Reason to Consider Voting for Barack Obama
His wife is freakin’ hilarious:
Source: Althouse.
A Political Stinkbomb
Here, folks, is the First Amendment in action: After two hours of deliberations, a jury returned last week and acquitted acquitted Kathleen Ensz of one misdemeanor count of using a noxious substance. The act? She left a brochure full of shit on the doorstep of her local congressman, U.S. Rep. Marilyn Musgrave’s Greeley (a story we told about before).
Ensz, a Democratic Party activist, never denied committing the act; she just claimed the act was part of her free speech rights, i.e., that the shit was a symbol of what she thought of Musgrave’s politics. “Her only intention of going over there was to make a political statement that Marilyn Musgrave’s politics stink,” her attorney said after the verdict.
The jury, apparently, agreed. Ensz was the first person in that county to ever be prosecuted for leaving dog poop.
Supreme Court Decision Update - Ledbetter v. Goodyear Tire & Rubber Co.
Today’s sole Supreme decision comes in Ledbetter v. Goodyear Tire & Rubber Co. (PDF of the opinion). Sadly, the case has nothing to do with the Pearl Jam track “Yellow Ledbetter” (although it does give me an excuse to embed a fantastic “Ledbetter”-related YouTube clip at the end of this post).
So Lily Ledbetter worked for Goodyear from 1979 through 1998. For most of that time, salaried employees (like Ledbetter) got raises based on performance evaluations. Ledbetter felt that she was getting shoddy reviews because she was female, and that these reviews were being used to keep her salary down, so she complained about her treatment in 1998 by filing charges with the Equal Employment Opportunity Commission (EEOC), and she then sued Goodyear after retiring in November ‘98. Ledbetter claimed, among other things, sex discrimination under Title VII of the Civil Rights Act of 1964.
During the trial, Ledbetter claimed that her supervisors gave her cruddy evaluations because she was a gal and that her raises weren’t as high as they should’ve/would’ve been if she had been given accurate evaluations. As a result, she said that her paychecks were well less than the paychecks of similarly situated males. The jury agreed, awarding her backpay and damages. However, Goodyear appealed and argued that Ledbetter brought her claims too late.
The company said she was time-barred from relying upon any claimed pay discrimination that took place before September 26, 1997, as that date was 180 days before she initially filed with the EEOC (and Title VII essentially establishes this 180-day statute of limitations). Goodyear also claimed that there was no discrimination after that date which would allow her claims to fall within that time period. The Eleventh Circuit agreed, reversing the trial verdict and ruling that a claim of pay discrimination under Title VII must be based on salary decisions that fall within the so-called “EEOC charging period” (that 180-day period before filing with the EEOC). And since the Eleventh said there was no good evidence of discrimination since that September 1997 date, Ledbetter’s claims had no legs.
The Supremes, in a 5-4 split, agreed with the Eleventh. The majority opinion was penned by Justice Alito (and joined by Chief Justice Johnny, the Scalia, and Justices Kennedy and Thomas). Alito notes that the focus must be on the “specific employment practice” at issue. Here, the practice in question is Godyear’s reviews. Ledbetter tried to argue that each time she received a paycheck (which was below what she claimed to be entitled to), this was a separate act of discrimination. She also argued that pre-1998 decisions to deny her a raise should be treated as carrying forward because it led to a buildup of salary disparity. But Alito says this is all bunk. A disparate-treatment claim like Ledbetter’s requires a showing of some employment practice which was done with discriminatory intent. And here, Ledbetter doesn’t claim that there was any intentionally discriminatory action by the company during that 180-day period. She says that any discriminatory conduct happened before, when she was given lousy reviews and lesser pay raises. While there may have been differential treatment within that 180-day period, because of the difference between her paycheck and those of men, she was not able to show any discriminatory intent behind that difference - “Ledbetter’s attempt to take the intent associated with the prior pay decisions and shift it to the 1998 pay decision is unsound.” So Alito says “kiss off.”
Justice Ginsburg dissented, joined by Justices Stevens, Souter and Breyer. Ginsburg basically disagrees with Alito because she thinks the majority’s system is unfair and lets too many potential discrimination claims fall by the wayside:
Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s views…. Pay disparities are thus significantly different from adverse actions “such as termination, failure to promote, … or refusal to hire,” all involving fully communicated discrete acts, “easy to identify” as discriminatory.
So Ginsburg thinks the unlawful practice is the “current payment” of salary based on gender discrimination, warranting relief under Title VII.
But more importantly, here’s that great YouTube video I mentioned:
On their Knees, the War Pigs Crawling
You know how the mortgage industry is totally screwing (mostly poor) people these days with their subprime mortgages and their strong-arm tactics, convincing folks with reasonable mortgages to refinance under their awesome flexible 1,089 percent interest rate?
Well, one fella in Oregon is pissed, and he wasn’t going to just lie down and take it, allowing those bastards to come and take his home without leaving them a present. So Shane Lovett, who was terribly distraught about the foreclosure on his house, decided to put three pigs in his house and leave them without food or water. The hope? That they’d trash the place.
And by the looks of the picture above, he seems to have succeeded. Even better: The pigs were rescued and, though they suffered a bit of dehydration, they seem good and ready to destroy another house. Unfortunately, Lovett — who is on the run — faces criminal charges for his actions.
The Daily Memo - 5/29/07
Blawg Review #110 is a special Memorial Day edition. (Biker Law Blog)
The British gambling company BETonSPORTS has pled guilty to racketeering charges and is going to help the Feds on its case against other defendants. (CNN)
Congressman Rodney Frelinghuysen (R-NJ), a 61-year-old, chased down and caught an 18-year-old guy who pick-pocketed him. (Yahoo! News)
Texas is on the verge of having a law banning speeding cameras, and requiring red-light cameras to have nearby warning signs. (Engadget)
Crazy Anne Heche is not a fan of her soon-to-be ex-husband (who has the glorious name Coleman Laffoon), as a recent filed declaration says he just “plays pingpong, backgammon and poker and views pornography online.” (CNN)
A judge has ruled that any religious text (such as the Koran) can be used for courtroom swearing-ins, not just the Bible. (Fox News)
Sony has been sued for patent infringement over its Blu-ray discs. (Engadget)
Wait, is this suggesting that lawyers lack creativity, or that we’re money-grubbing whores?
It’s probably a little from column A and a little from column B.
(From Monday’s “Non Sequitur,” care of GoComics.)
Wouldn’t God, Him/Herself, Count as Prior Art?
Christopher Anthony Roller, of Minnesota, has filed a rather interesting patent application. Although it was filed in July ‘05, it only just came to my attention via one of the folks over at Fark. Citing to both God and David Copperfield, Roller’s patent application seeks to give him the exclusive right to … ahem … godly powers.
The application’s abstract explains it better than I can, sort of:
Christopher Anthony Roller is a godly entity. “Granters” had been given my powers (acquired my powers) (via God probably). These “granters” have been receiving financial gain from godly powers. These “granters” may be using their powers without morals. Chris Roller wants exclusive right to the ethical use and financial gain in the use of godly powers on planet Earth. The design of godly-products have no constraints, just like any other invention, but the ethnic consideration of it’s use will likely be based on a majority vote of a group, similar to law creation. The commission I require could range from 0-100% of product price, depending on the product’s value and use.
The claims in this patent application read like … well, they read like the ramblings of a crazy man. You can check them out here.
So You Think You Can Be a QuizLaw Summer Intern?
QuizLaw could use some help in the coming summer months, and so Dustin and I decided to turn to our lovely readers. We figured that one of you just might want some of the fame and fortune (note - fortune not included) that comes along with being a QuizLaw contributor. So what’s the skinny, you ask? Read on, and all your questions shall be answered.
Is the position paid? Sadly, there’s no money involved. But that’s not to say there are no benefits. You get the snuggly feeling of doing some good work by contributing content to these Internets tubes. You get to write some posts that might just irk some folks, since we tend to cover some controversial issues now and again, and pissing people off is really its own reward. And you get the serious street cred that comes with being associated with QuizLaw.
What would I have to do? Write some QuizLaw entries, pure and simple. The only “required” writing would be to handle the update blurbs on any remaining Supreme Court decisions that come out over the next month or so. Beyond that, although we may throw a specific topic/assignment your way, you’re otherwise free to write about whatever you’d like. If you’re familiar with QuizLaw, you know the type of thing we typically focus on: humorous legal bits, stupid criminals, Florida (which is just an amalgamation of both “humorous legal bits” and “stupid criminals”), etc. And the occasional “serious substantive” post (in fact, we’d love for our intern to do a bit more on the “serious” side than we usually cover).
Who’s the prime candidate? There is no “prime” or “optimal” candidate. As for what we’re looking for, it doesn’t take much – we’re simple folk. The two main requirements are obviously that you must be a good writer and must have a good sense of humor (and by “good sense of humor” we of course mean “our type of sense of humor!”). You don’t need to be a practicing lawyer (though we welcome any attorneys looking to add a little “legal fun” to their lives) and, in fact, this gig is probably ideal for a law student looking for a little something to do with the summer, something to add to the resume and to help fill the hours between drinking binges.
How much time do you expect me to put in? There’s no set amount of time. Probably on the order of 5-10 hours a week, though it could be more or less, depending on any Supreme decisions that come out over the next month, and on any “special topics” we think need to be covered. And the gig would run through the summer, into late August (or possibly a bit longer if your schedule is accommodating).
How do I apply? Well that’s pretty easy. Just send an e-mail to intern2007(at)quizlaw.com. Include a little about yourself, and a draft blog entry along the lines of something you might see on QuizLaw. Ideally, we’d like to line someone up as soon as possible, so the quicker you get your e-mail in, the better. But there’s no real filing deadline - we’ll likely just take the first person we dig who meets the bill (and if there are enough folks interested, and enough people we like, we might even consider having more than one intern - a full-on summer program, if you will).
And what if I have other questions? Send an e-mail to intern2007(at)quizlaw.com, of course.
Will there be drink outings? Ah, what every summer intern wants to know – what about the booze? Well, if you happen to be in the Boston area, I might just be willing to take you out for drinks one night. And if you live in the Ithaca area, Dustin may consider doing the same (for the first half of the summer, at least). If you’re anywhere else, probably not so much (but you can always consider us to be drinking in spirit with you!).
Of Rosebud and Lawberdasheries
Last Thursday, Jon Stewart gave his spin on the whole debacle that is the fired U.S. attorneys scandal. As for Stewart’s metaphor for what it feels like the Department of Justice is doing to the inside of his head, I feel you Jon, I feel you:
The Daily Memo - 5/28/07
The first increase of federal minimum wage in a decade is coming, as the rate will increase (over the next two years) to $7.25 - which, of course, is still not going to be enough for most folks to make a proper living, but every little bit helps. (WEAU)
If you’re drunk driving and decide to stop for some Micky-D’s, to try to sober, probably best not to go through the drive-through. And definitely best not to fall asleep in the drive-through. (Kansas.com)
Sodomy is sodomy, apparently, whether you’re drunk or not. (Sui Generis)
A feisty 86-year-old man was tossed in the clink after allegedly shooting at two other men competing in a bass tournament, trying to keep them away from his fishing lines. (WSBTV)
Updating a previous story, Carol Burnett’s lawsuit against Fox (over “The Family Guy”) is probably going to be thrown out. (TV Squad)
A brief interview with the Regent Law School dean. (WSJ Law Blog)
Thoughts on some of the proposed amendments to the Supreme Court’s practice rules. (SCOTUSblog)
YouTube, and several other video sharing sites, have been sued by the New Jersey Turnpike Authority over video of a car crash on the turnpike. (Physorg)
Dude, Don’t Mess with my Carl’s Jr.
Everyone knows that the best fast-food burgers in Cali come from In-n-Out. But Carl’s Jr. is the clear number two in my book (their Guacamole Bacon Six Dollar Burger is an utter beast, but makes for some mighty fine drunk eats). So I’m a little ticked-off at burger also-ran Jack In The Box for taking it to my Carl’s Jr.
And as it turns out, Carl’s Jr. isn’t particularly thrilled either. Its parent company, CKE Restaurants, Inc., has filed a federal lawsuit against Jack over alleged deceptive advertising. The advertisements in question poke fun at angus beef, which is what Carl’s Jr. uses in its various Six Dollar Burgers (angus, of course, does not refer to a specific section or cut of cow, but to a particular type of cow). One commercial, which we have of course included below, suggests that angus beef comes from a cow’s “business end,” and CKE isn’t laughing:
Customers of Carpenteria-based CKE have actually asked why it charges $6 for a burger made from a cow’s bottom, Chief Executive Andy Puzder said.Puzder relished the idea of taking on Jack in the Box. “If they want to have a war we will take the gloves off,” he said.
(Hat tip to Overlawyered)
Happy Memorial Day
Section 6103 of Title V of the United States Code reads, in relevant part:
(a) The following are legal public holidays: … Memorial Day, the last Monday in May.
QuizLaw would just like to take this moment to thank all those who are out there fighting the fight. Political leanings about the war aside, there’s no arguing that we all support our troops (well, except for those nimrods who still try to argue that not supporting the war is part and parcel with not supporting our troops). They’re making the best out of an impossible situation, and we certainly hope that they can all return home safe and sound sooner rather than later.
Are they sure this isn’t Florida?
Wow, this is just f’ing stupid. In Lubbock, Texas, a sex and lingerie store (Somethin’ Sexy) was raided by four local cops. They confiscated several sex toys which state law says you can’t intend to sell in bulk, with “bulk” being more than six (while the story is unclear on what the toys actually were, references to them being “devices,” and the fact that the store owner says they are very popular, certainly suggests your run-of-the-mill vibrator).
Now if that’s all there was, this story wouldn’t be that bad, since it is a state law and everything (putting aside that this law is pretty stupid, in and of itself, of course). But Somethin’ Sexy’s owner says that Lubbock is taking a hardline approach to enforcing this law, because similar products are sold out in the open in Dallas stores without any problem. Yet his store is in trouble, and it wasn’t even selling them “out in the open” - he kept the “devices” in a closed cabinet and only sold them when folks asked for them (people would know about the products if they elected to receive mailings, but the products were otherwise unadvertised).
The Lubbock Assistant D.A. had this to say about their enforcement of obscenity laws and how the city defines obscenity:
“If they tell them this is a candle put in on the birthday cake this is a novelty if they tell you to use it to enjoy sexual gratification, its no longer a candle on the birthday cake” says Assistant D.A. John Grace.
But we’re still not to the truly bad part of this story. The truly ridiculous part of this story is that the owner of Somethin’ Sexy isn’t the one who was arrested - instead, it was the store’s clerk who was arrested. And, if she’s convicted on these charges, she’ll have to register as a sex offender.
…F’ing puritanical rubes.
(Credit for pointing this story out, as well as for the title of this entry, to reader Kris S. Thanks, Kris!)
The Daily Memo - 5/25/07
The House has approved a bill which would require lobbyists to disclose when they “bundle” campaign donations from multiple sources before handing them off to lawmakers. (Salon)
On Wednesday, the House signed off on legislation approving an investigation into gasoline prices by the FTC. (UPI)
Strange things are afoot with regard to the proposed Bar/Bri class-action settlement. (Two entries from the WSJ Law Blog: the first one and the second one)
Well look, if you don’t pull over quick enough to get some honey buns, you deserve whatever cutting you get. (The Shreveport Times)
Disorderly charges have been dropped against a student who wrote a school essay that talked about a mass murder and necrophilia. (CBS2Chicago)
The Texas Senate has approved a bill that would require strip club patrons to pay a $5 fee which would go to sexual assault-related services. (News8Austin)
Senator Kohl, chairman of the Senate’s antitrust subcommittee, doesn’t want the Sirius-XM merger to go through. (The Hollywood Reporter, Esq.)
Some lessons just don’t stick
Kelly Jean Moffitt, a 29-year-old Floridian (where else?), is a special kind of person. The kind of person who likes to drink and drive all the bloody time, continuing to do so despite racking up an unhealthy number of arrests (seven) and convictions (at least five). Actually, strike that - she’s got eight arrests now.
That most recent DUI arrest came Monday night and here’s the reason this is yet another typical only-in-Florida story: she was arrested ten minutes after leaving a court-ordered session where she a panel of DUI victims talked about how drunk driving has impacted their lives. Which of course means she was actually drunk at the panel! Good on you, Lady Moffitt, good on you.
Moffitt says she’s an alcoholic. You think?
Common Sense Lesson #144
Out in the town of Caddo, Oklahoma, Kalin Craig Richardson was bored. Well, bored and possibly on a meth bender. So he did what anyone might do to kill some time - he broke into the local movie theater (the Rex 2 - they’ve actually got a theater in Caddo with two screens!). Once inside, he gathered up $800 worth of candy and $2600 worth of tools. “But how to get all this golden loot home,” Richardson wondered to himself.
“Why, steal the theater’s wheelbarrow, natch,” he answered to himself.
Richardson’s plan was foolproof, but for one small detail - he left the wheelbarrow on his front porch. So when the owner of the theater drove by and saw the wheelbarrow, well, an arrest came shortly thereafter (and it didn’t help Richardson’s situation any that the cops found meth and pot in his home).
This should go without saying (but if it could truly go without saying, there wouldn’t be a need for these Common Sense Lessons) - when you steal shit, don’t leave it in your front yard.
Urgent! Urgent! All Points Bulletin! Condom Thieves on the Run. May be Dangerous.
Source: The Smoking Gun
The Incredible Exploding Crapper
Back in my high school days, I was a bit of a vandal (at one point, thanks to the Anarchist Cookbook, I was arrested and charged with two felonies, though — because of my honor-roll status and some influential friends at the Tobacco and Firearms Commission — I was let off fairly easy with some community service), and one of my biggest vandalistic feats was to, er, blow up a toilet bowl in a teacher’s yard. It involved a ten pound bag of fertilizer, some charcoal, a half-a-bottle of lighter fluid, and a flame that shot out of a shitter ten feet high. It was a beautiful site, and one that stank up an entire neighborhood for a full day. Fortunately, I was never caught and, now that the statute of limitations has passed, I’d just like to apologize to my senior English teacher. I was a stupid kid, and you didn’t deserve to be awakened by a flaming bowl in your front lawn. It was decidedly uncool.
Of course, reading this account, I’m hit with a new wave of retroactive guilt, in addition to a small amount of relief, knowing now that such an act potentially could’ve gotten me five years in the clink (or, at least, a year in juvie). Bruce Forest, a 50-year-old man in Connecticut, received a five-year sentence after admitting, under a plea agreement, that he blew up a portable toilet in February of last year (no one was hurt). Of course, this guy blew up several other toilets, and he detonated his explosives — not with a match like I did — with an assault rifle. He, of course, blames pain killers, while I blame simple idiocy.
The Daily Memo - 5/24/07
Two MacBook owners have filed a class-action lawsuit against Apple, claiming deceptive advertising over claims that the laptop’s LCD display can show “millions of colors.” (Business 2.0)
Congress is giving consideration to a new government database that employers would have to use to check out the immigration status of all current and potential employees. (News.com)
A cat was honored after his undercover role helped in a sting against a fake veterinarian. (CNN)
Wanna’ read all about the symposium on television Supreme Court arguments? You know you do. (Concurring Opinions)
A federal judge has blocked a Texas ordinance that would’ve banned apartment rentals, in a Dallas suburb, to most illegal immigrants. (590 KLBJ)
The New York Post’s Headline Is Better Than Anything I’ve Got: “Base Accusation”
Three years ago, wee Martin Gonzalez was enjoying himself some Little League. The 12-year-old has just gotten his first hit of the season, and went racing towards first base. As he approached, the first-base coach waved him on, telling him to take second. So Gonzalez kept going and, trying to ensure that he wouldn’t wind up getting out, he decided to slide into second. This was, it turns out, an ill-fated decision. Gonzalez wound up with a host of injuries which took surgery to correct (and his mother claims that he still has scarring and some physical impairment). So, of course, his moms filed a lawsuit earlier this month.
Jean Gonzalez filed her suit against her son’s coach, the local little league association, and its parent organization. She claims that they all - ahem - dropped the ball, by failing to teach her son proper training to avoid or minimize injuries (i.e., base running and sliding skills). Of course, others say that this is a stupid lawsuit, and that injury is just part of the game (and you can count me in that camp):
“I think it’s kind of funny,” Tricia Gregoretti said last week at New Springville’s ball field while watching her 6-year-old-son play. “It just doesn’t make sense.”
QuizLaw tried to ask famed slider Pete Rose for a comment on this story, but he only said: “Three-to-one that the case is dismissed. Come on, you know you want some action on this case.”
The Mong … in All Her Glory!
On May 4, Gregory Requa started a 40-day suspension. The senior had been suspended by Kentridge High School because of a YouTube video of one of his teachers. Said teacher, Joyce Mong, didn’t know students had snuck a video camera into her class. These students then surreptitiously filmed her, including stupid conversations between her and some students and some students fooling around behind her back. The video was then edited together and posted on YouTube, where she became known as Mongzilla.
Requa was ultimately suspended because of this video, even though he didn’t make it. Another student told the school that he made it, but claimed that Requa did participate (of course, this kid only ratted Requa out after the school put the hot light on him and said it would give him a less severe punishment). In any event, Requa took the school to court, arguing that this suspension is a violation of his First Amendment rights.
His lawyer, Jeannette Cohen, says that he can’t be held responsible for the video because he didn’t post it (he claims he simply linked to it from his MySpace page). But even if he did post it, she says it was criticizing Mong, and is therefore protected speech.
“What is at stake here is the school district message that if you post things we don’t like,” you will be punished, Cohen said.
The school district lawyer says that the suspension isn’t about the posting of the video. Rather, he claims that Requa was suspended because of the disruption in the actual classroom, a disruption caused by a video being snuck into the classroom and all the kids monkeying around. But he should be careful what he wishes for, because the judge has said that this means that Requa’s suspension can only hold up if it’s established that he was involved in the classroom portion of the shenanigans (as opposed to being involved in any production or posting of the video).
And of course, we have the video in question to share with you. But frankly, it’s quite lame (even by high school standards), although it’s got a pretty solid soundtrack:
Copyrights, and Beyoooooond!
For you copyright geeks out there (and I know there must be many of you), here’s the synopsis for the following video: “Professor Eric Faden of Bucknell University provides this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms.” I know that law school finals are over for most schools, but man alive, this video would’ve been helpful. I’ve also got the feeling that Professor Faden has a little too much time on his hands and an unhealthy obsession with Disney.
I … I … I Don’t Even Know What To Say …
I was talking to a buddy of mine the other day, and he asked me what I thought of the television show “An Eye for an Eye,” specifically, how the hell they legally get away with the crap they pull on the show. He said, for instance, that in one case the judge’s punishment was to allow the plaintiff to take a baseball bat to the defendant’s car. Wha? Apparently, it’s like Judge Judy crossed with the WWF, and it’s ample evidence that the devolution of television entertainment is taking the legal system down with it. And of course it stars Kato Kaelin. And the judge’s name is Judge Extreme Akim, who is actually a fairly well known attorney and named partner in the South Carolina law firm Anastopoulo & Clore. Check the video trailer — it’s … unspeakable. Is this on Court TV?
The Daily Memo - 5/23/07
A Congressman had his PB&J snatched by the TSA. (Congressman Tim Ryan’s Blog)
Desperate for money, the RIAA has decided to try to kill the federal exemption for radio stations, so it can get performer and record label royalties. (The LA Times)
There’s a paternity battle going on in Missouri with two identical twins each being a likely candidate to earn the title of Father. (ABC News)
Microsoft says it has no immediate plans to sue open-source vendors for allegedly infringing over 230 patents. (ZDNet Asia)
For the first time ever, a law firm (in Australia) has gone public. (Law.com)
The trial over the New York lawyer advertising rules has been canceled. (Sui Generis)
Well that’s one way to get a new trial
Let’s say you’re a criminal defendant on trial for, you know, crime stuff. And let’s further say that things don’t look to be going very well for you. How might you try to get a mistrial declared, so you can start again?
Well if you’re Richard Glawson, you punch a juror!
Glawson was on trial for allegations of a crime spree which culminated with him shooting a cop. And I guess he got angry last week, so he decided to punch a juror. His attorney immediately asked for a mistrial, but this request was denied. So Glawson’s lawyer appealed to the state Supremes. An order from one justice came back down, asking the lower court judge “to ask the remaining jurors if they felt they could remain impartial after watching Glawson hit the elderly juror.” While eleven jurors said they could stay impartial, another four said “no,” so Glawson got his mistrial.
Selection of a whole new jury started yesterday.
A Pennsylvania court loves assholes!
Back in 2004, Phillip T. Pongracz was participating in an anti-abortion protest outside of a clinic. He was arrested at one point, for allegedly walking the wrong way in a throughway outside of the clinic. So when he saw the clinic’s armed security guard sitting in her car about an hour later, Pongracz let off some steam by repeatedly calling her an “asshole.” He was then arrested and charged with harassment, and was ultimately convicted (his punishment was to do 100 hours of community service and to pay the prosecution costs).
However, Pongracz’s conviction has now been overturned, as a Pennsylvania court ruled that it violated his First Amendment rights. The court said that calling the guard an asshole three times in a 10-second period was “crude and childish,” and likely backed by an intent to harass the guard. However, he was also speaking with a purpose, to retaliate against what he saw as an injustice (his earlier arrest), which makes his speech constitutionally protected. Pongracz’s lawyer was obviously pleased with the result: “Finally, someone recognized the First Amendment. One wonders why anyone would spend any time prosecuting name-calling.”
Somebody Really Didn’t Want his Picture Taken
Compliments of The Smoking Gun, this is the mug shot of a very belligerent man who needed a little assistance posing for his mug shot. Apparently, this man — Brian Thomas McCaffrey — was arrested last week after he got drunk and threatened to kill a female acquaintance, calling one of her sons a “girl” and a “faggot” because he “acts like one.”
Well, at least he doesn’t act like a ninny when he’s posing for the camera.
Jury Duty Blooooows
I’m not sure that it bears discussing, but since this is a legal site, and since I endured the misfortune of jury duty yesterday, I thought I might briefly share my experience. Mostly what I want to say is: This is the downside to voter registration, folks. No freakin’ wonder we have such a low percentage of people registered to vote in this country.
Anyway, I’m happy to report that I didn’t make it past the voir dire stage of the proceedings (voir dire being where potential jurors are questioned so the lawyers can weed out the folks they don’t like), possibly because attorneys are unlikely to choose other lawyers to serve on their juries (while I understand this is an antiquated notion, I seriously wonder how many lawyers actually do end up serving as trial jurors). [I know quite a few lawyers who made it onto juries, actually, despite being the worst kind of obnoxious attorney. —Seth] Still, if anyone wants proof of the inefficiency of our legal system, one need look no further than the jury-selection process. In the case I was assigned to, no fewer than 100 (probably more) comprised the jury pool, of which only 14 were ultimately selected to serve as jurors. At $40 a day, the court system and employers paid at least $4,000 yesterday so that 14 people could be selected for what appeared to be a very simple possession case. That doesn’t even account for administrative fees, the resources absorbed by the prosecutor’s office, and the waste of what will eventually be a three day trial, on top of the one-day voir dire proceedings. All for a possession case, and one in which a co-defendant had already pled out. That’s more than a month’s salary for a teacher, wasted because some dude was caught with drugs in his car.
I might also add that the actual jury questioning process is brutal. Two panels of 16 were questioned for around three hours each, and from those 32 people, the 14 were chosen. This meant that the other 65 or so potential jurors had to sit in a courtroom for around seven agonizing hours, watching attorneys ask banal, exceedingly tedious questions. Is it really necessary, for instance, to question a potential juror for nearly ten minutes about the fact that she had a bicycle stolen when she was a small child? And I wonder, also, are all prosecutors now required to ask potential jurors if they are familiar with HBO’s “The Wire” if a wiretap was involved in a case? And if a cousin’s brother’s cousin twice removed once did some blow, does that really affect one’s ability to weigh the evidence and assess credibility?
The short answer, of course, is probably yes. And while the process was horribly time consuming, excruciatingly dull, and ridiculously expensive, I have to admit that the two attorneys conducting the questioning did a nice job — they managed to select the 14 people, I would guess from their line of questioning, that were the least knowledgeable, least opinionated, and most easily swayed. And you know what? I probably wouldn’t have it any other way. In fact, in the end, I was kind of bummed I wasn’t chosen — I would’ve lost three days of my life, but I would’ve left disgruntled, unhappy, and just a little proud to have been able to fulfill my civic duty.
Also, that dude was totally guilty — I could tell just looking at him.
The Daily Memo - 5/22/07
A variety of groups (including Viacom, Microsoft, the MPAA and the RIAA) have formed the “Copyright Alliance” to fight the fight against copyright pirates. (Gizmodo)
John Grisham: “Are [lawyers] really needed?” (WSJ Law Blog)
Eeegads - a 33-year-old Nevada woman has been arrested for allegedly exposing herself to a 13-year-old boy (and also making her touch him), and looking at her picture, there’s no question that this poor kid will be scarred for life. (Reno Gazette-Journal
A Texas Senate subcommittee has discovered that the vendor of speed cameras used by the police has actually been paying one police officer’s salary. (The Newspaper)
Retired Supreme, Sandra Day O’Connor, says that folks are too hard on judges, but also says that the Court needs to stick closer to its precedent. (CNN)
Preliminary approval has been given “to the settlement of a class-action lawsuit brought against Random House and author James Frey.” WSJ Law Blog)
A traveling minister is facing all sorts of bigamy charges, accused of having eight wives. (CBS46)
Don’t Bogart that Buddahfinger
In March of last year, Kenneth Affolter found himself in some trouble with the law when DEA agents raided some Northern California warehouses. They found a lot of money, a lot of weed, some weapons, and other related paraphernalia. But they also found some of the products Affolter sold as part of his “Beyond Bomb” product line - candy and soft drinks laced with pot.
Affolter eventually got himself a nice 70-month stint in the clink. But his troubles aren’t over, because he’s now been sued by the Hershey Company, which wants $100,000 from him. Seems that he gave his products “fun” names, playing off of established candy and drink products - products in his “Beyond Bomb” line included Toka-Cola, Puff-a-Mint Patties, Muncy Way and, my personal favorite, Buddafingers. He also, however, had three products playing off of Hershey products: Stoney Rancher, Rasta Reese’s and Keef Kat.
And Hershey doesn’t take kindly to the similar names and packaging, so it sued Affolter for trademark infringement, trademark dilution and unfair competition. When asked for comment, Affolter allegedly said this lawsuit was totally harshing his mellow, and then asked for someone to pass a Pot Tart.
A big old hat tip to the WSJ Law Blog, and thanks to the Smoking Gun which, as always, comes through with the photos we really care about (here’s one for you, but there are more at the Gun):
Supreme Court Decision Update - Twombly v. Bell Atlantic Corp.
Twombly v. Bell Atlantic Corp. (PDF of the Opinion) is a class-action antitrust lawsuit filed against the Baby Bells (the Incumbent Local Exchange Carriers), asserting that the telecommunications companies created a monopoly that prevented others from entering the industry by using similar business practices, such as pricing. The litigants, led by plaintiff William Twombly and including all the other subscribers of local telephone and/or high speed internet service from 1996 to the present, alleged that Bell Atlantic (which is now part of Verizon) and other telecommunication companies didn’t offer sufficient U.S. Federal Communications Commission-mandated assistance to new entrants to the industry, nor did they engage in active competition. “Their actions allegedly included making unfair agreements with the CLECs [competitive local exchange carriers] for access to ILEC networks, providing inferior connections to the networks, overcharging, and billing in ways designed to sabotage the CLECs’ relations with their own customers.” Additionally, the plaintiffs alleged, the ILECs conspired not to compete.
The Supremes disagreed, siding with the Baby Bells in another 7-2 opinion penned by Justice Souter. The central question was “whether the challenged anticompetitive conduct stem[ed] from independent decision or from an agreement, tacit or express.” The Court concluded that the plaintiffs complaint failed to show any sort of tacit or express agreement. “While a showing of parallel ‘business behavior is admissible circumstantial evidence from which’ agreement may be inferred, it falls short of ‘conclusively establish[ing] agreement or…itself constitut[ing] a Sherman Act offense.” In fact, Souter writes, the probable reason that they companies didn’t compete against each other was because they were created prior to the 1996 Telecommunications Act, when this sort of activity was permissible. And thus, “a natural explanation for the noncompetition alleged is that the former Government-sanctioned monopolists were sitting tight, expecting their neighbors to do the same thing,” as per the old rules. Accordingly, Twombly’s complaint was dismissed for failure to state a claim.
In the dissent, Justive Stevens (joined by Ginsberg) asserted that the actions of the Baby Bells was enough to imply a tacit agreement of conspiracy and, at the very least, the plaintiffs should have had a chance to go ahead to the discovery phase of the trial and investigate the issue further.
Supreme Court Decision Update - Los Angeles Count v. Rettele
Los Angeles Count v. Rettele (PDF of the Opinion) is a case more to my speed — one with exciting facts. In the case, deputies of the Los Angeles County police department obtained a warrant to search a particular house, unaware that the suspects had moved out of the residence three months prior. Nevertheless, the coppers busted in and began searching, despite finding that the two suspects — who were in the bed, sleeping at the time — were not even the same race as the suspects (they were white, the suspects were black). Still, the officers — who were briefed that the suspects might have been armed and dangerous — ordered Max Rettele and his girlfriend, at gunpoint, to get out of the bed and didn’t allow them to get dressed for several minutes, despite their vehement protests.
Of course, after a couple of minutes, the officers realized they’d made a mistake. So they apologized profusely, thanked Rettele and his girlfriend for not getting more upset than they did, and left to execute another search warrant, which resulted in the arrests of the suspects they were actually after.
As it turns out, however, Rettele and his girlfriend weren’t as accommodating as the officers had hoped — they brought a section 1983 lawsuit against the department, alleging that the officers violated their Fourth Amendment rights by obtaining a warrant in reckless fashion and conducting an unreasonable search and detention.
The Supremes, in an 8-1 per curiam opinion, concluded that there was no Fourth Amendment violation.
When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search.
Stevens and Ginsberg agreed with the court, but wrote separately. Only Justice Souter disagreed, writing that he wouldn’t have granted cert in the first place.
Supreme Court Decision Update - Winkelman v. Parma City School District
Winkelman v. Parma City School District (PDF of the Opinion) is a fairly straightforward IDEA case (Individuals with Disabilities Education Act), which provides free appropriate public education (FAPE). The case concerned an autistic kid, Jacob Winkelman, from Ohio, whose parents wanted to sue under IDEA but were effectively barred from doing so because they could not afford a lawyer — they had already spent $30,000 of their own money on legal fees, and one of the parents had even taken a stab at writing legal briefs. The parents objected to the school’s plan, which would’ve put Jacob in public schooling. They wanted to enroll him in private school and wanted the school district to shell out the $56,000 enrollment costs the private school, which specialized in autism, charged.
So, the legal issue here is whether parents are required to hire a lawyer to sue the school district over their child’s special needs. To answer that question, one needs to first decide if IDEA applies only to the child, or if it covers the parents, as well.
Writing for the 7-2 majority, Justice Kennedy said that parents could sue without hiring a lawyer. He concluded that parents do, indeed, have administrative rights under IDEA:
These provisions confirm that IDEA, through its text and structure, creates in parents an independent stake not only in the procedures and costs implicated by this process but also in the substantive decisions to be made. We therefore conclude that IDEA does not differentiate, through isolated references to various procedures and remedies, between the rights accorded to children and the rights accorded to parents.
Scalia, just to be the contrarian, wrote a separate opinion, joining in part in Kennedy’s opinion but dissenting from another part (Thomas joined him — kiss up). Basically, Scalia said that parents do have the right to proceed pro se under IDEA “when they seek reimbursement for private school expenses or redress for violations of their own procedural rights, but not when they seek a judicial determination that their child’s free appropriate public education (or FAPE) is substantively inadequate.” So, in other words, Scalia asserts that IDEA applied to both children and parents, but that FAPE only applies to the child.
Who the hell would fight over a Tommy Tutone song?
If the name Tommy Tutone brings anything to your mind at all (and you’re entirely forgiven is you see that name and simply ask “za?”), it surely brings to mind Jenny and her phone number. 1982’s hit “867-5309/Jenny” is one of the quintessential 80’s songs, still showing up on radio “flashback weekends” and the new compilation CDs that seem to come out bi-weekly. Well, that magical phone number has now found its way into a trademark lawsuit.
A Rhode Island plumbing company, Gem Plumbing & Heating, trademarked the phone number two years ago, and began using it in its various local advertisements (which included TV and radio ads spoofing the original song). However, Clockwork Home Services has also been using that 867-5309 (the toll-free version) as its national phone number, which led Gem and Clockwork into a trademark infringement lawsuit.
The first victory in that lawsuit has now come down Gem’s way, as a federal judge ruled that Clockwork could no longer use the number in the New England area. Gem’s president is obviously pleased:
People can’t get the number out of their heads. So if they ever have a plumbing problem, they think of the number, and they think of our company without having to go to the phone book - and that instant recall is a big deal for us.
Tommy Tutone himself, meanwhile, isn’t happy about any of this, and he’d rather neither company used his special little number:
“It’s ridiculous,” said [Tutone], who is working on a new album. “If I wanted to get into it, I could probably take the number away from both of them.”
Well, I’m not so sure about that Tommy. However, what I find more ridiculous is that he’s working on a new album. Seriously? Unless one of the tracks is “Son of 867-5309,” I suspect that interest will be rather, uhm, nonexistent.
Irony: It’s not Just a River in Egypt
A California State Senator ran her Toyota Highlander hybrid (good on you) SUV (well, sort of) into another woman’s car on Saturday. Senator Carole Midgen’s mistake led to a three-car smash-up after she apparently missed her exit and attempted to find another means to get back onto the freeway. However, the real reason for the accident was because the senator was speaking on her cell phone at the time.
The irony:
Migden last year voted for a new law that takes effect in July 2008 that will impose a minimum fine of $20 for anyone caught using a cell phone while driving without a headset, ear bud or other technology that frees both hands.
He Got a Bum Rap, See?
Last week, the Florida District Court of Appeals sided with the Miami Herald in a case brought against the newspaper by the owners of Funny Cide, a former winning horse of the Kentucky Derby. The case arose out of that Kentucky Derby win in 2003, after which the Herald alleged that the horse’s jockey, Jose Santos, used an electronic device to prod the horse on. The allegation was proven false, and the Herald issued a both a correction and an apology.
Nevertheless, the owners sued, claiming that the false allegation motivated Santos to “over-ride” Funny Cide in an effort to vindicate the horse. As a result, the owners claimed that the horse came in third, instead of first, at the Belmont Stakes (this, after Funny Cide won the Preakness).
Of course, the allegation was silly and proving causation was downright impossible, and justice was dutifully served. But the amusing part of this story comes from the judge’s opinion. Judge Gary Farmer decided that he’d had enough of the standard legal opinion and he wanted to write a shorter, more interesting legal opinion (ironically, he does so by using three pages to introduce why he’s decided to write the opinion as such). Farmer aims to do so, in this opinion, by introducing elements of fiction. Sounds like Judge Farmer is going for some of that shoegum fiction – a little Bogartese:
The horse won the Kentucky Derby. Decisively. Tenth fastest time in Derby history. First jewel in the Crown.Sure, there was some racket in the press afterwards. The Miami newspaper said it saw something in the jockey’s hand, some illegal electric thing, maybe to spark the horse. Turns out the paper was seeing a fantasy in a shadow and retracted the story. But the noise had already begun. Are we looking at a Triple Crown horse?
Then the horse won the Preakness Stakes. And it’s not even close. Wins by nearly ten lengths. The horse is so far out front, looks like he could make it past the wire and into the barn before they can take the photo. Hardly anyone asked if the horse ran out of gas for the Belmont. Are you kidding? Racing was all stirred up about the Crown. The feedbox noise grew hot.
Was it a dream, or did I hear stories about a guy who read in the paper the horse wins it all by a half? About another guy who said it was no bum steer, it was from a handicapper that’s real sincere? Even about a third guy who knew this is the horse’s time because his father’s jockey’s brother’s a friend?Whatever. It’s a lock. Two jewels for the Crown. Make room for the third.
Only, wait a minute. Did I hear another story about this one guy who wasn’t so sure? Said it all depends if it rained last night?
Anyway for the rest it’s money in the bank. Everyone makes the horse the winner, so why worry about the race?
The horse did not win the Belmont Stakes. Yeah, he finished in the money, best he could do was show. Third place brings some money but not like a win. And it definitely doesn’t make the Crown. The guys in the stories were wrong
Except maybe the one. It was a sloppy track. You sure it didn’t rain last night?
My suggestion to Judge Farmer: A-plus for effort, but don’t quit your day job.
Hat Tip: The WSJ Law Blog.
The Daily Memo - 5/21/07
Justice Thomas didn’t ask a single question from the bench this whole last term. (Law.com)
The Salvation Army and Greenpeace have settled their lawsuit/battle over their collective shares of a $264-million estate bequeathed to eight different charities. (LA Times)
Wherefore art thou law in fiction stories? (Professor Bainbridge)
A new proposed bill in Massachusetts would ban discrimination against folks based on weight and height (so-called appearance discrimination). (Bostonist)
DirecTV is suing Comcast over its advertising claims that its HD images are better than DirecTV’s. (Engadget)
The lady who sued Pizza Hut and a dude who held a door has been awarded over $300K. (Madison County Record)
A federal judge has ruled that NASCAR can’t stop Jeff Burton from changing the Cingular logo car on his race car to an AT&T car. (SI)
A class-action lawsuit has been filed against Netflix, claiming that its lawsuit against Blockbuster is a violation of antitrust laws because it allegedly obtained it patents via some shenanigans. (Engadget)
Supreme Court Decision Update - Hinck v. U.S.
In a unanimous opinion penned by Chief Justice Johnny, Hinck v. U.S. (PDF of the opinion) deals with everyone’s favorite federal agency - the huggable, lovable IRS. Roberts begins his opinion with a very wise statement that most people know by this point: “Bad things happen if you fail to pay federal income taxes when due.” One of those bad things is that you have to pay interest on your past-due taxes. However, the IRS has the discretion to abate interest (that is, “to forgive it, partially or in whole”) if there was some unreasonable error or delay in the IRS letting the taxpayer know about the past-due tax.
Another provision of the Internal Revenue Code says that a taxpayer can obtain judicial review of a decision not to abate the interest (i.e., a decision that the taxpayer must, in fact, pay the accrued interest). The question here is where that judicial review must take place - can it only be done in the Tax Court, or can a taxpayer go before the Court of Federal Claims?
Chief Justice Johnny and the Supremes rule that judicial review of a refusal to abate interest can only take place before the Tax Court - that is, the Tax Court is the exclusive forum. Roberts says that the Supremes’ decision is governed by a “well-established principal” which says that, generally: ” ‘a precisely drawn, detailed statue pre-empts more general remedies.’ ” Plus, the Supremes have previously said that when Congress creates a new specific remedy, where no remedy previously existed, that remedy is generally treated as exclusive. And the remedy in question here (the ability to challenge an abatement decision) “fits the bill” on both counts.
The portion of the Internal Revenue Code in question is “precisely drawn,” because it contains a nice, simple sentence outlining who can seek judicial review, where that must take place, what the standard of review is, etc. And this provision was enacted after federal courts had unanimously said that there was no way to judicially challenge an abatement decision (thus, before Congress enacted this provision, the courts had ruled that there was no such remedy). There were several arguments made in opposition to this conclusion, but Roberts says that they are all “unavailing,” so that’s that.
Supreme Court Decision Update - Office of Senator Mark Dayton v. Hanson
There are five new Supreme decisions today, which is just a joy for those of us who take time out of our busy days to read and summarize them. Luckily, Office of Senator Mark Dayton v. Hanson (PDF of the opinion) is just the kind of decision we like - short, simple and unanimous. In an 8-0 ruling (Chief Justice Johnny didn’t have anything to do with this decision), the Supremes decided that they didn’t have jurisdiction to hear the case in question, meaning they didn’t have to get to the merits of it at all.
The underlying case involved claims by Brad Hanson, a former employee of Senator Mark Dayton. Dayton was fired back around 2002, and he sued the Senator’s office, claiming violations of the Family and Medical Leave Act, the American with Disabilities Act and the Fair Labor Standards Act. Dayton argued that the District Court had jurisdiction over the case under the Congressional Accountability Act of 1995. The Senator’s Office moved to dismiss the case on the grounds that the Constitution’s Speech or Debate Clause granted it immunity from Dayton’s claims (Article I, section 6, clause 1 of the Constitution states that “for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other place”). The District Court didn’t buy this immunity argument, and denied the motion (and the D.C. Circuit affirmed the denial).
Justice Stevens, who authored the Supremes’ opinion, looks at section 412 of the Congressional Accountability Act of 1995, which says the Supremes have jurisdiction for direct review “from any interlocutory or final judgment, decree, or order of a court upon the constitutionality of any provision” of the Act. However, says Stevens, neither the District Court nor the appellate court ruled “upon the constitutionality” of anything in the Act - they simply denied a motion to dismiss, and the District Court’s denial of the motion didn’t even include any grounds for the decision. The lower “court’s determination that jurisdiction attaches despite a claim of Speech or Debate Clause immunity is best read as a ruling on the scope of the Act, not its constitutionality.” And there are no “special circumstances” that would give the Supremes a reason to exercise its discretionary certiorari jurisdiction.
In other words, the Supremes are punting on this case.
You know what they say: “It’s a ‘fraternity,’ not a ‘frat’ - I mean, after all, you wouldn’t call your ‘country’ a….”
A member of a Nevada chiropractic board has gotten himself into a touch of trouble. Doctor Donald Miner seems to have some anger issues, particularly with women. A member of the state’s chiropractic board, a position he got via appointment by the governor himself, he recently “unleashed one of the most offensive terms a man can direct at a woman.” The news story declines to be “too specific about the word,” simply saying “you all know what it is. It’s a vulgar slur, one that’s only used when a man wants to hurt a woman.”
So at this recent meeting, Doctor Stephanie Youngblood (the board’s president) raised an issue that related to Doctor Miner. He was none-too-pleased about this, and at one point muttered under his breath “what a [you-know-what].” And since there was a microphone right in front of the ever-so-classy Miner, the “[you-know-what]” was caught on tape.
Youngblood says she was “shocked, but not surprised,” because Miner has apparently lost his temper at other meetings (and in an e-mail, he once suggested that she give up her role as president of the board and instead become the “sexytery”). Miner has since submitted his resignation to the governor, so he can now go back to hating women in private, rather than at public meetings.
A Two-Faced Lawyer - Isn’t That an Oxymoron?
Here at the QL, we’ve been known to occasionally throw our support behind a legislator running in a state or federal race. And we’ve certainly made our feelings known about some of the presidential candidates who have tossed their hats into the ring for next year’s big election. But we’ve never gotten involved with any city politics.
But that’s changing now, as QuizLaw is dipping its toe into the local politics pool, throwing its weight behind a district attorney candidate.
Sure, it may not matter for much when we’re talking about a fictional election which is nothing more than a promotion for one of next year’s big movies. Nevertheless, QuizLaw is proud to support Harvey Dent for Gotham City district attorney:
Congrats, NRA - it’s a boy!
Howard David Ludwig, lovingly called “Bubba,” is a 10-month-old little boy in Illinois. He’s probably got a binky, a pacifier, some diapers, maybe some blocks, etc. But he definitely has a gun permit.
Yes, a 10-month-old has been issued a firearm owner’s identification card, after his proud father filed the application and submitted a meager $5 fee:
The card lists the baby’s height (2 feet, 3 inches), weight (20 pounds) and has a scribble where the signature should be.
And while the state police oversee the whole application process, they say their role is just to make sure felons and o