May It Please The Court
Quote of the Day - There is good sex and there is bad sex but chocolate is always chocolate.
The Chocolate Wars Erupt: Allegations Of A Chocolate Cartel Fixing Prices
Say it ain't so. Now that Christmas and the rest of the holiday season is over, we learn that Big Chocolate is under siege. Mars, Nestle, Hershey and Cadbury are all on the Defendants' side of the "v.", named in a class action suit for price-fixing chocolate.
Prices are one thing, but the worst allegation lays out an anathema for chocolate lovers: "Chocolate is a commodity product that is uniform. It does not vary materially depending on manufacturer. The Chocolate produced by any Defendant is fungible with any other Defendant's Chocolate."
Blasphemy. If the Plaintiffs expect to prove that claim, they'll lose. It just can't be.
To make matters worse, the Complaint gives away The Recipe: "Chocolate is a confectionary product created by processing cocoa beans and other beans with milk, sugar and other ingredients," right there in paragraph 2.
Haven't they ever seen Charlie and the Chocolate Factory? Don't they know there are as many different kinds of chocolate as there are days in the year?
Come on. Even where the Complaint was filed in New Jersey there are See's Candies, which proves my point. That store even makes special chocolates in the summer. Chocolate, as anybody knows, is far from fungible.
Judges can take judicial notice of that fact.
Now that we've won the case for differences in chocolate, let's talk about the price-fixing allegations. The Plaintiffs may have a point there, as anyone who's tried to buy the stuff lately knows. According to the Complaint, the alleged conspirators control more than 80 percent of the $16 billion U.S. chocolate market, and half of the world market. Supposedly, they also raised prices in concert with one another this year.
$16 billion? That's a lot of chocolate.
But don't get your Snickers in a twist just yet. The case was just filed December 21, 2007, and there's a long way to go before class certification. We haven't heard the last of the chocolate wars.
2007 Legal News: The Third Annual Legal Louie Awards
Looking back on this past year in legal news, there's been a lot of ups and downs. MIPTC once again jumps into the fray of those with 20/20 hindsight vision with its Third Annual Legal Louie Awards, a tongue-in-cheek look at this year's legal news.
Why a "Legal Louie?" Louie was my grandfather's barber, who always had an opinion about legal shenanigans. Grandpa Walker called him "three-spin Louie," because once you sat in the barber chair, just three spins later you were out. Here's a round-up review of the legal news for 2007 and the resulting awards for the best and worst, in multiple categories:
Worst TV Legal Show: Nancy Grace. Sure she should get the permanent award for this category, but this year, we have a runner-up who may just knock her out of consideration for being the category-killer. That's right, Dominic Dunne's Power, Privilege and Justice on CourtTV, soon to be truTV. He's the self-described "consummate insider as well as ... indefatigable crusader, Dunne is the most penetrating chronicler today of the arrogance that leads the rich to believe they are above the law." That just about says it all.
Best TV Legal Show: Boston Legal. This show is worth tuning in weekly just for the one-liners from co-star William Shatner. Most recent best line? On the balcony, in the dénouement of the show: Denny Crane to Alan Shore, "You're a Democrat. You're supposed to be a complainer."
Worst Legal Decision: Every 5-4 decision from the Supreme Court with a plurality set of opinions. Take the wake from the 2006 decision in Rapanos, for example, that still reverberates today. The academic consensus places the best-reasoned opinion as Justice Kennedy's concurrence, not the majority decision. Did you ever think we'd see a majority opinion overruled by a concurring opinion?
Best Legal Decision: Oregon Justice Jeffrey M. Wallace's decision that named a baby when the parents couldn't agree. OK, technically the decision was filed last year, but it was in the waning days of the year, so it counts under my rules. Besides, when you're reading all those end-of-the-year stories about which baby was born first in 2008, you'll be glad to know this trivia. It's cocktail conversation for your favorite New Year's party. How many kids have a name chosen from the Battle of Hastings in 1066?
Runner-up? Judge Alex Kozinski's scathing dissent in Perfect 10 v. Visa International. Thanks to both sides for keeping my partner's seminal contributory copyright case, Fonovisa v. Cherry Auction, in the news.
Worst Jail Sentence: Well, not actually a jail sentence, but almost as bad. It's an asterisk.* We know all about copyright © symbols, registered trademark ® symbols and thanks to email, even the ubiquitous @ symbol. But thanks to an alleged-steroid-using Barry Bonds, we now have the * symbol attached to a baseball. Not even OJ can top that.
Best Jail Sentence: Yet-to-be-announced sentences for Brocade Communications CEO Greg Reyes and Stephanie Jensen. Yes, we feel sorry for them, but secretly hope in that I-should-feel-guilty-way that the option backdating scare is like the accident blocking traffic for miles and miles on the freeway. We don't know what's going on until we rubber-neck to look at the accident for just a few seconds, momentarily feeling sorry for those involved and then once we get back up to 65 mph (ok, 80), then we're grateful to be past that mess. Like I said, do you remember Charles Keating?
And for the runner-up, consider Warren Jeffs, the Utah polygamist who got two terms of five-to-life for his role in marrying off young women to old men. There's one man we're happy to see no longer on the FBI's 10 most wanted list.
Worst Will Contest: Trouble the dog gets a $12 million bequest. Forgive me for a moment here. It's not that the dog got the money. It's the worst because no one fought over it. Can you imagine the column inches that would have been devoted to that mess?
Best Will Contest: Larry Birkhead's the dad. Zsa Zsa Gabor's husband is out of the running, thank God. And MIPTC thanks God the whole thing's over.
Worst Insurance Claim: The more than 19 Southern California fires fueled by arson and Santa Ana winds this fall. The claims are pending, and we're sure to hear more as time ticks on, but here's what we have to look forward to: insurance companies who still have not paid all the claims from the 2003 fires that destroyed some 300 homes in Oak Glen, near Lake Arrowhead California. Four years ago! The claims for this years' fires won't be resolved until sometime after 2012.
Best Insurance Claim: Hurricane Katrina claims denied by insurers and Dickie Scruggs accused of bribery. Toss in New Orleans, and you've got all the makings of a novel.
Worst New Legal Trend: Legal advertisements on YouTube. It's not that advertising for lawyers is bad - it's that the legal advertisements are bad. Take, for example, LA's Dopest Attorney. I rest my case. Runner-up? The Boston Legal Syndrome. Run your own Google search for that one. You might be surprised.
Best New Legal Trend: The City of El Cajon's ordinance that prevents a smoker from standing within 20 feet of a person not smoking. No kidding. This very occasional cigar smoker doesn't mind. I've got a club to go to.
Saddest Legal-related Event: OJ's back in Court, this time to get punished no matter what. You don't think this jury's going to let him go, do you?
Most Hopeful Legal Event: Lawyers.com offers these five legal resolutions for 2008, all focused on getting your legal life in order. Here's MIPTC's recommendations: 1. Get a Will. 2. Form a Trust. 3. Complete a Health Care Power of Attorney. 4. Complete a Financial Power of Attorney. 5. Hire a lawyer to do the work. This is not a do-it-yourself list.
Worst Government Moment: Pick one: Treatment of our telephone system or the voluntary program to bring together stratified Collateral-Backed-Mortgage-Securities lenders and subprime borrowers in default. Can we say I'm about to go nuclear?
Best Government Moment: That's not an award category. That's an oxymoron.With that, we wrap up this year's awards, with three spins of the barber's chair. To relive those old barbershop times, if you'd like to share your comments, the comment feature below is open. Audio comments can be left at 206-338-3088, and will be posted below, as well. Finally, if the winners contact MIPTC, they can once again claim a parting gift.
As The Year Turns, Another Newspaper Folds
The photo shows a balding, bespectacled and grey-mustachioed man in a white, button-down shirt with too-short long sleeves, a knotted blue-red rep tie and khaki pants. He sits with shoulders slumped, hand on chin, staring off into space. Affixed to his belt rests some type of cell phone in a leather pouch, with a an honest-to-God land line immediately behind him. His wood office desk lays cluttered with paper and his credenza is stacked with a printer alongside a beige, old-model IBM PC.
His computer screen displays the makings of one of the newspaper's final articles, in Word.
Downstairs, the printing presses are fed by almost-exhausted newsprint rolls. There are no spares on the empty pallets strewn about the warehouse. Paperboys have been laid off and are now shoveling snow to make money. Truckers look for other loads to haul. Newspapermen lament the "old days" and lay blame for the closure at the publisher's feet.
"They didn't do enough to promote the daily," many complain. Perhaps more tellingly, the COO said, "[The paper] was set on a course where it was unable to make the strategic changes to survive."
In stark contrast, the New York Times Business Section "below the fold" (you have to scroll down) website featuring the article includes an advertisement that reads, "How To Promote Your Company Business With A Blog."
The NYT article describes the death of 126-year old Cincinnati Post. The paper dropped its circulation 90%, from over 270,000 to just above 27,000 per day. It's owners, E.W. Scripps publishing, laid off 52 of its newsroom employees, offering only one another job - with a website. the KY Post, covering Northern Kentucky.
Still missing the point, the KY Post lead-in website has a poll asking its readers when the Cincinnati Post shuts down, where you are planning get your news, with four choices: TV, Radio, Internet, Other papers and (perhaps with a bit of "I-told-you-so" for the poll-writer) Nowhere.
While the Internet is an option, may I suggest another painfully obvious outlet for news sources apparently not considered by the Cincinnati Post, Scripps , the KY Post, or the poll-writer?
Blogs. Yes, that's right: blogs. Like this one, and several hundred, if not thousands others, all readily available, for free with a newsreader or RSS aggregator like my favorite, Feed Demon. But it wasn't always like that.
As a kid, I pedaled a bike with a too-big newspaper basket (they specifically made big baskets to hold a route's worth of Sunday newspapers). When I grew up after college, I took a daily, dropped at my doorstep by a kid just like me. Gave him a tip every Christmas, and yelled at him when the paper landed in a puddle.
Now, however, my news comes to me via my morning TV in the bathroom, cell phone on the way to work, home page during the day and feed reader at night. Notice there's no newspaper in there at all. I stopped taking the Wall Street Journal because they couldn't get the addressee right, and everything I needed was online anyway.
After all, you're reading this post, aren't you? It's not in a newspaper. It's on your computer screen.
There's a bellwether moment here, in case you missed it. Newspapers are dying, if not dead-on-arrival. Blogs and the Internet are steadily killing them off, as witnessed by the death of the Cincinnati Post this December 31st. They fought it for years. Indeed, newspapers only belatedly went online, as a last-ditch effort to embrace the Internet.
Too little, too late.
The world of news has gone flat. News is no longer vertical, relying on newspapers for our diet of North East West and South. Instead, we rely on each other. As pamphleteers, just like in the Revolutionary War. We write blogs so niche-oriented, I can find anything I need in a manner of seconds. I don't have to dig around a bunch of newspapers at the bottom of my cat box.
Now, I can just look at my (flat) computer screen.
Denise Howell Hosts This Week In The LawIn her This Week In The Law podcast, Denise Howell hosted bloggers Ernie Svenson, Cathy Kirkman, Collette Vogele, and me. We discussed Avvo Answers, ABA Journal's Blawg 100, the RIAA waffles on CD ripping, and Facebook Beacon. Our talking points are online at http://del.icio.us/thisweekinlaw/11. Tune in and turn on!
Get Out That Insurance Policy: San Francisco Zoo Likely Liable For Wrongful Death, Injuries
When tigers escape, ultimately killing and injuring people, a question down the line after the police investigation finishes will be: who's liable? We may be able to shortcut the entire inquiry immediately following, but it's helpful first to go through the exercise of the analysis. You'll see the shortcut at the very end and get to cast your vote.
That initial question, however, presents a series of classic law school tort exam issues: who owes a duty of care and what is that duty? What is the cause of the accident? The Zoo owes a duty to keep zoogoers safe, here run by the San Francisco Zoological Society jointly with the City of San Francisco. That joint control exposes both the City and the Zoo to a claim for damages. The cause is an open question at this point.
But before we stray too far, let's get back to the basics of tort law - the law of civil wrongs. It's much different than contract law, which looks only to two main issues. Was there a breach of contract and was someone damaged? In contrast, tort law has five elements: duty, breach of duty, proximate cause, actual cause and damages.
The last element, damages, is fairly straightforward. One man was killed, two were injured. No real question there. For the remaining elements, the police investigation and the standards of the Association of Zoos and Aquariums come into play. Those standards set the first element: duty.
Apparently, according to news reports and the AZA itself, it recommends tiger enclosures be surrounded by 18 foot high walls. According to San Francisco Zoo Director Manuel A. Mollinedo, the wall was only 12 ½ feet high. He also said safety inspectors had examined the wall and never raised red flags about its height. That admission may expose the AZA to liability if it accredited the San Francisco Zoo in violation of its own standards.
So, we know the duty of the Zoo was to build a wall 18 feet high but despite recent renovations the wall was only 12 ½ feet high. Assuming those two facts as true, then we've established the first two elements, duty and breach of duty. With the final element (damages) already in play, we have two elements to review: proximate cause and actual cause.
Here's where things can get tricky, and the police and subsequent AZA inspections will come into play. Add into the mix the stray shoe print on the tiger enclosure railing, evidence of the tiger's prior attacks and allegations that perhaps the three men taunted the big cat, and you've got yourself a law school exam all wrapped up in one event.
Let me briefly explain the remaining concepts we have to deal with here, and throw in at least one defense, if not two. The defenses are interesting ones, because they involve the deceased and injured individuals. The primary defense, if available, may involve something called an "intervening cause." If present, then that defense may eliminate the Zoo and City's liability because the taunting intervened and actually created the very danger suffered by the individuals injured and killed. Their action intervened in the causal chain, breaking the link between the breach of duty and damage suffered.
In other words, if the individuals taunted the tiger, aggravating it to the point it was prompted to attack, then the Zoo and the City can argue that but for the taunting, the death and injuries would not have happened. The defense is a complete out because it operates to break the causal chain. All the other elements of the tort could be present, but for the behavior of the victims, the accidents would never have happened.
The other defense, "assumption of the risk," is somewhat related, but likely not a viable defense here. Assumption of the risk requires knowingly placing yourself in harm's way, like driving an Indy or NASCAR race car around a track. As a driver, you know there are going to be wrecks, and just as likely that you'll be in one. If an accident occurs, no court judge is going to listen to you complain that you got injured. As a zoo visitor, you're just not in the same position as a race car driver. It's reasonable to assume that the zoo has taken all the necessary precautions and you're not going to get mauled by a tiger.
Unless you aggravate that tiger, but then we're back to the intervening cause defense.
So, we have yet to look at proximate cause and actual cause. Proximate cause can be shorthanded to be the "legal cause" of the damages suffered. Typically it means that the escape of the tiger was "foreseeable." It ties in somewhat with duty, because you can argue that when you build a wall below recommended standards, the escape of the tiger is certainly foreseeable, and thus the low wall is the proximate cause of the damage.
The last test, the actual cause, shorthanded by lawyers as the "but for" test. But for the low wall, would the tiger have jumped the fence and killed/injured the zoo visitors? If you answer that question with a "yes," then you've got yourself a full-fledged tort, and you would hold the Zoo and the City liable and quite possibly, the AZA too.
Any plaintiff's lawyer worth her salt will throw in a claim for punitive damages (something not covered by either the City or the Zoo's insurance policies)* and attempt to prove that they were "guilty of oppression, fraud, or malice," which is the standard in California to award punitive damages. If, for example, the plaintiffs could show that the Zoo knew of the AZA 18-foot standard for walls, but simply built the wall at 12 ½ high to save money, then a jury would likely award punitive damages. If, on the other hand, the Zoo simply misinterpreted the standard or legitimately thought that an extra-wide moat lessened the wall height requirement, then a jury may not award punitive damages.
Finally, we have to throw in the mix the Zoo's prior knowledge of the tiger's propensity to attack humans. According to reports, the tiger previously attacked a zookeeper during feeding. In that case, if true, then an attorney would argue that the wall perhaps should have been much higher than 18 feet or the tiger removed from display altogether, for the public's safety.
As you can see, this situation is no easy case for either the Zoo and the City or the plaintiffs. But one thing is for sure: we will see a lawsuit out of this tiger escape and changes will be made in the zoo enclosures for dangerous animals.
Finally, just to confuse things even further, there's a doctrine called strict liability, that applies to both dangerous animals and ultrahazardous activities. If it applies, which is likely, then the Zoo, the City and the AZA would be held liable because all the doctrine requires is two elements: damages and responsibility. The only defense is an intervening cause.
If you're the jury, then how would you vote?
* Insurance policies don't cover intentional acts, only negligent acts. In order to recover punitive damages, you must prove intent, thus eliminating insurance coverage for the punitive damages, and quite possibly the underlying tort, as well.
Say What You Want, You Can Protest In A Mall Only In California
The last place you'd expect to be a hotbed of First Amendment free speech activity is a mall. You know, a shopping mall, once the bane of Main Street USA, but now the darling of many city redevelopment projects designed to bring you and your dollars back downtown.
But that's another story. Let's get to the point here.
This one features the workers in the pressroom of the San Diego Tribune and one of the paper's major advertisers. The workers and the newspaper got involved in a labor dispute, and the Graphic Communications International Union Local 432-M workers went to the mall- the Fashion Valley Mall in San Diego.
Not to shop, but to encourage others not to shop at Robinson's May stores, one of the paper's major advertisers. You know: the old hit 'em in the pocketbook approach. Boycott one of my bosses' advertisers so they'll pressure the paper to cave into my demands for a raise.
Convoluted, but then again, they're newspaper people. Journalists rarely make sense.
Nonplussed, the mall called out its security force and chased away the newspaper people with threats of litigation and arrest. The Local union had apparently not applied for a permit to protest at the mall, which they were supposed to have done five days earlier according to the Mall's rules.
Malls have rules?
In any event, the Mall rule prevented anyone from encouraging a boycott of one of the mall stores. Not surprising, but according to the California Supreme Court's ruling, illegal.
Malls can enact what are known as "reasonable time, place and manner restrictions," but they cannot prevent someone from expressing certain content or viewpoints. If you follow the Constitutional arguments at all, at this point, you're likely asking, "where's the state action?"
"State action?" you say. Yes. In this case, there is none, and to top it off, this mall is private property. In virtually every other state in the country, there are no free speech rights on private property.
You will likely not be surprised to know that California is different. But in this difference, as Justice Chin notes in his eloquent dissent, we stand alone. Practically every other state in the country has ruled that private property owners can exclude protesters from their private property.
Imagine, if you will, someone protesting on your small patch of grass otherwise known as your front lawn. You get the picture. Figuratively speaking, you can't stop someone from standing there and protesting. Well, as a matter of fact, you could, but I'm trying to make a point here. You could actually stop someone as a trespasser, but malls are different. They look more like a public forum than your front lawn because they invite people to come there and shop. You, on the other hand, likely don't, thus you can exclude others.
That's the sole difference that drives California's difference from the rest of the country. It looks more like a public forum, so we're going to treat it as one.
Look for this case to be overturned by the United States Supreme Court once Fashion Valley Mall files its appeal (aka petition for writ of certorari for you lawyer types). You heard it here first.
Lawyer Rating Service Avvo Gets Early Christmas Present; Launches New Features
Fellow entrepreneur Mark Britton at Avvo scored double victories the week before Christmas, and if you weren't watching, then you should have been, especially if you're a lawyer or you're trying to find one. Avvo launched two new features and a federal judge outrightly dismissed a nuisance case against the company in the early pleading stages. Let's look at the product news first.
Avvo introduced two new services on its website, Avvo.com, which is designed to help consumers find lawyers. The first service, Avvo track record, allows attorneys to list their victories (you don't expect us to list our losses, do you?). It has the danger of appearing a bit one-sided, but Avvo track record provides an opportunity to identify opposing counsel and allowing both sides to give their version. That ought to make for some interesting, unedited reading.
The second service, Avvo Answers, allows consumers to post "open letter" questions and then lawyers to respond to those questions. It's a great idea, but in need of some fine tuning. I spoke with Avvo President Mark Britton and identified this Q&A from a Texas consumer with a Washington attorney's response. The attorney, as far as I can tell, isn't admitted in Texas. The disclaimers at the end of the Washington lawyer's Answers may be enough, but that's a question for the Texas Bar admissions committee, not this lawyer (who's also not licensed in Texas, but is licensed in Washington, which gives me some qualification to comment here).
While the cross-jurisdictional practice is not Avvo's problem, the lawyer should know better than trying to practice in a state where he's not licensed. Given's Avvo's intent to help the consumer, Mark is considering my suggestion to police or prevent cross-jurisdictional practice on Avvo's website. As with all new things, everything takes time and Avvo has been spectacular about listening to suggestions, so be on the lookout for changes.
Last and certainly not least, Avvo succeeded in convincing a Washington federal judge to dismiss with prejudice John Henry Browne's lawsuit against Avvo claiming it violated the Washington Consumer Protection Act. Avvo countered with the defenses of the First Amendment, the Communications Decency Act and argued that the WCPA claim lacked merit. The judge agreed with Avvo on all counts.
My fellow Lawyer 2 Lawyer co-host Bob Ambrogi and I separately hosted both the Plaintiff John Henry Browne and the executives of Defendant Avvo earlier on two of our podcasts, so you can give the two shows a listen by clicking on the links immediately above, and see how the arguments fared compared to the ultimate ruling.
With All The Best, From May It Please The Court
To all my Democrat friends: Please accept with no obligation, implied or explicit, my best wishes for an environmentally conscious, socially responsible, low-stress, non-addictive, gender-neutral celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious persuasion of your choice, secular practices of your choice, or non-religious/secular belief system, with respect for the religious/secular or atheistic persuasion and/or traditions of you and/or others, or your and their choice not to practice religious or secular traditions at all.
I also wish you a fiscally successful but yet socially conscious, personally fulfilling and medically uncomplicated recognition of the onset of the generally-accepted calendar year 2008, but not without due respect for the calendars of choice of other cultures whose contributions to society have helped make America great. This expression regarding the United States of America is not to imply that America is either necessarily greater than any other country or the only America in the Western Hemisphere, but nonetheless intended as a wish well within the lowest common denominator assumptions of the typically moderate, middle-of-the-road patriotic belief in our country, without endorsing any of the actions of our President or Congress, but rather in a generalized support of the troops.
Also, this wish is made without regard to the race, creed, color, age, physical ability or physical shape (size challenged one direction or the other), religious faith, belief system or lack thereof, or sexual preference, bias or lack of sex of the wishee.
On the other hand, to all my Republican friends: Merry Christmas and a Happy New Year!
And finally, to all my Libertarian friends: Have a great vacation.
With thanks and apologies to Doctor Michael Drake and Entrepreneur Tom Tierney.