May It Please The Court
Quote of the Day - Women need a reason to have sex. Men just need a place.
Mile-High Club Violators May Be Banned From Membership
You've probably heard of the mile-high club. Heck, maybe you even have a commemorative pin. If you wait until the plane has reached maximum altitude, however, it's more like the six-mile high club, but let's not be picky here. It's a club, not a law-school exam.
Besides, there are some interesting tales of ah ... how should I put it ... the membership requirements to join.
And there are other ways you might want to avoid when you to try to join.
Take, for example, the facts in this indictment of Carl Warren Persing, of Lakewood, California, and Dawn Elizabeth Sewell, of Huntington Beach, California, who were on a cross-country flight and landed in hot water despite their hot time in the air. According to the affidavit detailing the Federal Bureau of Investigation's investigation, things were getting hot and heavy on the ground during the layover in Phoenix and then continued after takeoff.
But a heavy-handed FA-1 (that's FBI talk for Flight Attendant Number One) tried to put an end to it, and finally alerted the Captain, who alerted authorities on the receiving end of the flight (no pun intended). Mr. Persing and Ms. Sewell were flying on Southwest Airlines from LA to Raleigh, North Carolina, and allegedly tried to make a go of it in the cabin, which apparently offended other passengers. You can read the affidavit for the titillating details, but suffice it to say that FA-1 alleges that Mr. Persing's head was in Ms. Sewell's lap, and she was smiling.
FA-1 and the other passengers were not.
From what I can tell, the couple violated the most basic requirement for membership: discretion. The idea behind joining, apparently, is not to get caught, let alone indicted for the behavior. Perhaps there's a permanent ban from membership for the violators of these tenets. MIPTC will wait for a ruling from its readers. Beyond the exclusion, that indictment might turn into a one-year layover in the slammer. Perhaps they should have taken a flight on Virgin Shaglantic.
If you really want to join the club without running the risk of getting caught, here's one way to do it with the ultimate discretion: be the only passengers on the plane other than the pilot, who's locked on the forward flight deck.
Just a thought.
Coast to Coast Internet Radio Gets Out the Yardstick
Many believe that the economy has been bad for business, but not so for the top law firms. In this Coast to Coast show, we explore the trends behind the growth in partners, associates and the new firms who have joined the National Law Journal 250. We take a look at the fields of practice that are causing this growth and the rise in law firm size. Join me and my fellow Law.com blogger and co-host Robert Ambrogi, with our three great guests, who each have different perspectives.
This week's Coast to Coast welcomes Leigh Jones, reporter for the National Law Journal, Attorney Daniel L. Goldberg partner at Bingham McCutchen (who's involved in new business unit, Bingham Sports Consulting LLC) and Attorney Eric L. Garner, managing partner of Best, Best & Krieger. Don’t miss our show this week, because we're taking next week off for the Thanksgiving holiday.
CraigsList Wins Battle Against Newspapers (Chicago Lawyers Committee For Civil Rights, Really)
Here's the analysis from one of MIPTC's readers, who I've been corresponding with since this case was filed. MIPTC tips its hat to one of its friends, Michael H. Erdman, who has been monitoring Chicago Lawyers' Committee for Civil Rights Under the Law, Inc. v. Craigslist, Inc., which was filed earlier this year in the Northern District of Illinois (06 C 0657) and assigned to Judge Amy J. St. Eve.
Here's Michael's take on the ruling (slightly edited, with his permission): "Plaintiff’s (“CLC”) complaint alleges that Craigslist (which claims to post more than 10 million items of ‘user-supplied information’ per month) violates the U.S. Fair Housing Act provisions prohibiting discriminatory housing advertisements. In its defense, Craigslist argues that as a ‘provider of interactive computer services’ (“ICS”), it is immune to this kind of suit under section 230 of Title 47 (part of what is referred to as the Communications Decency Act (“CDA”)). A joint amicus brief was filed by a number of Internet big shots including Amazon.com, AOL, eBay, Google, Yahoo and the Electronic Frontier Foundation.
"Yesterday, the Court granted Craigslist’s Motion for Judgment on the pleadings, putting an end, for now, to the district court proceedings. Citing over a dozen cases, the Court noted that '[n]ear-unanimous case law holds that section 230(c) affords immunity to ICSs against suits that seek to hold an ICS liable for third-party content.' While awarding judgment in favor of Craigslist, Judge St. Eve declined to follow the herd’s analysis. She ruled that 'Congress did not intend to grant a vast, limitless immunity,' and noted that 'that Section 230(c)(1) does not bar ‘any cause of action’ . . . but instead is more limited – it bars those causes of action that would require treating an ICS as a publisher of third-party content.'"
More of Michael's analysis of the Court's decision follows (his selections of relevant excerpts):
Section 230(c)(1) provides that “[n]o provider . . . of an interactive computer service shall be treated as a publisher” – a term the CDA does not define – “for information provided by another information content provider.” While this language does not grant immunity per se . . . it does prohibit treatment as a publisher, which, quite plainly, would bar any cause of action that requires, to establish liability, a finding that an ICS published third-party content. As the Seventh Circuit already has suggested, “defamation law would be a good example of such liability,” . . . ; so too, as it turns out, are causes of action under section 3604(c). 42 U.S.C. section 3604(c) (rendering it illegal “[t]o make, print, or publish, or cause to be made, printed, or published any [discriminatory] notice, statement, or advertisement . . .”(emphasis added)).
"Even though Congress [in enacting Section 230] specifically aimed to overrule Stratton Oakmont, a defamation case, it did so by using language – a prohibition against ‘treat[ing] [an ICS] as a publisher’ – that plainly bars any claim that requires ‘publishing’ as an element."
"For all these reasons, the Court here holds that, at a minimum, Section 230(c)(1) bars claims, like the CLC’s claim, that requires publishing as a critical element."
"Because to hold Craigslist liable under Section 3604(c) would be to treat Craigslist as if it were the publisher of third-party content, the plain language of Section 230(c)(1) forecloses CLC’s cause of action."
So, with that, Craigslist wins, and the Chicago Lawyers lose. With the Seventh Circuit just down the street from Michael, he plans to keep an eye out for any appeals that may follow. The plaintiffs are, after all, lawyers.
In case you're wondering, here's how to contact Michael Erdman, today's guest blogger: Teeple & Leonard, 175 W. Jackson Blvd., Suite 240, Chicago, Illinois 60604, 312-986-3226 and 312-986-3981 (fax). Here's his email: email@example.com and law firm website: www.teeplelaw.com.
Hey Lexis: Hire A Web Designer, Please
Lexis owns Martindale-Hubbell, that bastion of book publishing featuring lawyer biographies all over the country. The books have been in print forever, and beyond the occasional typo, they're very reliable (and for lawyers featured in them, very expensive).
But that's where reliability stops, despite the expense.
Lexis also owns Lawyers.com, the online version of the venerable Martindale-Hubbell books. And it's that time of year again when it's time to update the biographies.
Great, I thought at first. Rather than editing them on paper (which is the way it was done in the past, for those of you who stare at a computer screen all day), they sent me a link, a username and a password to use.
As you read further, don't think MIPTC is an electronic curmudgeon. Although I started working on what you may consider your father's computer, I am not that Old that I don't know how to use a computer. I can, after all, program websites in Dreamweaver as well as (ugh) Microsoft FrontPage.
I was able to edit the biographies and make some changes on the rather fundamental web interface, but it sure needs a lot of improvement. But that's not my main complaint. It's the web pages that consumers see.
Take, for example, an Of Counsel attorney to MIPTC's law firm, WLF | The Williams Law Firm, PC. His name is Charles J. Bennett. That last link will take you to his listing on Lexis' website. Look at the header on the top of the page (for many of you IE users, it will be the blue bar). He's not Charles (Dutch) Bennett.
Just so you think I'm not picking on Lexis, I did a search for each of the attorneys in our firm. You can compare the page headers for each of the following attorneys in our firm. You may be surprised to learn that while Greg Granger from our firm practices in Newport Beach, California, Lexis thinks he's in Evansville, Indiana (Greg D. is not licensed to practice there, but Greg A. Granger [not with our firm] may be). And there's no page header for either me or my other partners, Craig and Joe.
Go ahead, check it out:
Now I know that these mistakes aren't going to bring an end to the world and there are things much more important. But when our firm is paying dearly for Lexis' web designers, we expect that they'll get it right.
By the way, Lexis, if you're reading this post, then how about making your web interface so we can redesign your version of our web page, http://www.wlf-law.net so that it's something closer to the web page we designed for ourselves: http://www.wlf-law.com.
After all, you've got a lot more money to throw at web design than we do, and look at the comparison between our page (the .com version) and your page (the .net version).
Update, thanks to Lexis: All of the mistakes detailed here have been fixed, and were fixed the day after this original post.
Coast to Coast Internet Radio Reports on Reporters
From print journalists and blawggers to television reporters and radio personalities, the law is constantly changing and we are kept informed by the individuals who bring us the news. On this Coast to Coast show we will hear from those who report on the law-a producer and a reporter. Join me and my fellow co-host and Law.com blogger Bob Ambrogi as they turn to those who report the law.
At Least He Didn't Change His Name To Barney
Somewhere out there in rural Wisconsin, Andy Griffith regrets that he lost the election for Sheriff. He may also soon regret that he changed his name from William Harold Fenrick to Andrew Jackson Griffith, a.k.a. Andy Griffith for short. That's right, during the election campaign for Sheriff in Grant County, Wisconsin, Mr. (f.k.a.) Fenrick changed his name as a publicity stunt to garner attention.
It didn't work.
He got only 13% of the votes cast and came in third, behind the 10-year incumbent who will remain in office. The real Andy Griffith, who played Sheriff Andy Taylor on the Andy Griffith Show in the fictional town of Mayberry, North Carolina, isn't too happy that the man formerly known as Bill Fenrick changed his name to Andy Griffith. The real Andy Griffith, formally known as Andrew Samuel Griffith, is doing something about it.
That's right. Andy Griffith is suing Andy Griffith.
The real Andy wants the new Andy to change his name back and apologize. The new Andy claims he hasn't done anything to profit on the real Andy's name, but the real Andy is having none of it. There are other solutions, however.
Think about it. Perhaps he would have done better in the election as Barney Fife.
Update: For another take on naming conventions: see Justice Bedsworth's commentary.
Freezing Your California Credit Report May No Longer Be An Option: Stay Tuned
The Courts Freeze The *Security Freeze* Statute
You may think you can freeze your credit report from distribution, but according to the Second Appellate District in California, the legislature's attempt to protect you is mostly unconstitutional. Not even an appeal by California Attorney General Bill Lockyer could stop the court from overturning California Civil Code section 1785.11.2 that relates to public records and prevent identity theft. The plaintiff, U.D. Registry, Inc. collected consumer information and resold it to landlords and lenders.
The statute preventing dissemination of credit reports cost the credit reporting agencies business, and they were happy to have the chance to challenge it. The agencies looked at the problem this way: the information they gathered about you and me came from public records such as court files and was both truthful and legally obtained. It included information including foreclosures, unlawful detainers, bankruptcies, criminal matters, tax liens and even out-of-state records.
The credit agencies argued that they have a First Amendment right to free speech to sell the information gathered. There's a difference here from what you may consider the "typical" purpose of the First Amendment - to be able to say what you want. Here we're dealing with commercial speech (a credit report), so the "freedom" in the freedom of speech right in the First Amendment isn't as broad as it is for political speech.
The U.S. Supreme Court established a four-part test to determine whether commercial speech is abridged by the government in this statute. In passing the "security freeze statute," the legislature met the first three prongs of the test. In the minds of the court, it didn't, however, pass the fourth one: whether the restriction placed on the commercial speech was "excessive." The court thought that since the statute prevents dissemination of truthful information in the public record, it excessively restricted the credit agencies' "commercial free speech."
In such situations, courts can excise from the statute the offending portions, but here in the case entitled: U.D. Registry v. State of California, the Second District of the Court of Appeal refused to do so and instead invalidated the entire statute as it relates to this particular plaintiff, but allowed the statute to be enforced against other credit agencies. Frankly, this portion of the decision doesn't make sense to me. Either it is or it isn't unconstitutional, and if it's invalid against one credit agency, it's invalid against all. The Court tried to hang its hat on the fact that the trial court hadn't received any evidence on how other credit agencies handled reporting of credit information, but it seems to me that we're dealing with an issue of law here, not facts. But that's just me. I don't sit on the Court of Appeals.
On the other hand, the Court could have just invalidated the portion that related to public information and still allow us to freeze our private information, but they didn't. The California Legislature now gets a "do-over" and the opportunity to draft a statute that isn't unconstitutional.
If the matter isn't taken up by the California Supreme Court to straighten out the confusion at the end of the opinion, then we'll see if the Legislature can get it right this time. Many Californians want to protect what they consider to be their private information, even if it is from public records.
Complain? Who Complained? Not Me, But Hear My Case Anyway.
In the military, it's known as the chain of command. If you're a Seaman who's got a beef with a Petty Officer, then before you talk about it to your Warrant Officer (or heaven help you an Ensign), you first talk to the Petty Officer. You'll have to forgive me for not using Private, Corporal, Sergeant, Lieutenant. I was in the Coast Guard, not the Army like my Dad.
There's a somewhat similar doctrine in the law. It's called the exhaustion of administrative remedies. Take, for example a zoning problem. First you have to go to the Planning Commission, then the City Council or County Board of Supervisors (here in California - in Massachusetts they call the second level "selectmen") with your complaints about the zoning problem. If you don't like the decisions from those two bodies, then you can go to court by filing what's known as a writ of mandate.
You remember your high school civics class? That's the whole purpose behind the checks and balances and the separation of powers. One "co-equal" branch of government is not supposed to be able to tell the other what to do. When the judiciary gets involved with either of the other two branches, however, the courts want to make sure you've first followed the chain of command and made your complaints to the Planning Commission and City Council. By filing a writ of mandate, you empower the court (judicial branch) to evaluate the City's (legislative branch) decision and perhaps overturn it. The court can't tell the City what to do, it can just overturn the City Council's decision and force reconsideration of the original decision, perhaps now considering your complaints.
If you haven't first complained to the legislative branch, then you're likely to get tossed out of court on your ear.
But what if you've filed a writ of mandate with the court complaining about a City decision based on complaints made to the City by someone else (not you)? Do you automatically get tossed out on your ear because you didn't appeal the Planning Commission decision to the City Council (the party appealing to the court was not the same party who appealed the original decision from the Planning Commission to the City Council)?
Not in California, apparently. You can ride someone else's coattails. According to the Third District Court of Appeal in beautiful San Joaquin, you can appeal a City Council decision based on someone else's appeal of the Planning Commission decision. All that matters is whether you appeared and complained in the original hearing before the Planning Commission, according to the case of Citizens for Open Government v. City of Lodi.
What will they think of next?
Pretty soon you won't even have to complain at all, as long as someone else did. Then we can appeal just about everything.