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Quote of the Day - I may not have gone where I intended to go, but I think I have ended up where I needed to be.
Slapped By An Anti-Slapp MotionSLAPP and anti-SLAPP. It's enough to make your head spin.SLAPP is Strategic Lawsuit Against Public Participation. Anti-SLAPP is ... well, you can figure that out. It's the opposite of being slapped. Generally speaking, SLAPP lawsuits are those filed by someone who wants the defendant to drop a government challenge. Typically, it's a developer trying to shut down an environmental group that is opposing a housing project. Not always, but sometimes. Anti-Slapp, then, is when a defendant thinks that a plaintiff is suing because the defendant tried to exercise its First Amendment rights. With that, we're ready to delve into Northern California Carpenters v. Warmington. The City of Hercules removed contamination from an old oil refinery and turned it over to Warmington and other developers to build homes on 206 acres. The City had earlier adopted a prevailing wage policy. Warmington and the other developers didn't think it applied to them, so they sought a coverage determination from the California Department of Industrial Relations. In January. The Carpenters' lawsuit was filed in July alleging that Warmington and the other developers violated the City's prevailing wage policy. So, the defendant developers reasoned that the Carpenters' lawsuit was -- you guessed it -- an anti-SLAPP suit. When the developers filed a motion thinking they were being punished for seeking the interpretation from the State, however, they ran into a hitch. It was a recently added statute. The statute was designed to shut down the broad application that California courts have been applying to anti-SLAPP suits. Kind of like Prop 64. But, it worked the opposite way that Warmington had intended. Warmington lost the motion, the appeal, and now will be defending the Carpenters' lawsuit. 
The Ease Of Reading Index Is Off The ScaleThanks to Rob Crisell for this article in the November California Lawyer magazine. The question is: how good is your vocabulary?Did you know that you'd have to turn to the OED in order to read legal opinions? Legal jargon is bad enough, but now we're going to have to turn to another dictionary to get the full understanding of these words. The California Lawyer article cites excerpts from twelve opinions by Judge Ferdinand Francis Fernandez of the Ninth Circuit. Here's the dirty dozen (with the erudite words hyperlinked for your ease of reference): 1. Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999) (dissenting): "But let that be; at least after today's didactic exercise a district judge will be able to incant canorous phrases which will please our ears." 2. Committee to Save Mokelumne River v. East Bay Mun. Utility Dist., 13 F.3d 305 (9th Cir. 1993) (concurring): "They indicate that it takes no genius or epopt to see what the message will be." 3. United States v. Garett, 179 F.3d 1143 (9th Cir. 1999) (concurring): "To put it another way, absent a compelling reason the district court cannot have abused its discretion, but it would take a better haruspex than I to divine that from the opinion." 4. In re Daisy Sys. Corp., 97 F.3d 1171 (9th Cir. 1996) (dissenting): "The district court, with that perceptive and informed sententiousness that often characterizes the work of our district judges, said that: Merely because Bear Stearns was hired as an expert consultant to render financial services does not mean it was in a position of superiority in this relationship between two sophisticated business entities." 5. Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) (concurring and dissenting): "I will not undertake to burden, bore, or ensorcell the reader by glossing what the Montana Supreme Court actually wrote when it decided this case." 6. United States v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir. 1992) (dissenting): "Perhaps Congress should resile from its sentencing experiment." 7. Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (dissenting): "So plain it seems, it would take a marvelous act of interpretation, bordering on thaumaturgy, to read the constitution as expanding the Tribe's jurisdictional reach beyond the norm." 8. Paulson v. City of San Diego, 294 F.3d 1124 (9th Cir. 2002) (dissenting): "No matter how timorous or cautious we are about religion, the city's action cannot be seen as minatory." 9. Gentala v. City of Tucson, 244 F.3d 1065 (9th Cir. 2001) (dissenting): "If the statement did present a problem, I hardly think that the City can place a tarnkappe [a magic cap securing the invisibility of the wearer] over the policy's reification of hostility at the threshold by adding that requirement." 10. Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002) (concurring and dissenting): "My reading of the stelliscript suggests that upon Newdow's theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings." 11. Kang v. U. Lim Am. Inc., 296 F.3d 810 (9th Cir. 2002) (dissenting): "Moreover, the statute speaks with enough clarity to permit (nay require) one to stop with its own words, rather than undertaking to stravage in a wilderness of possible legislative purposes." 12. Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) (dissenting): "To say that, does not enisle this country, although it does recognize that we are a separate nation." Huh? Exactly. What ever happened to plain English for lawyers? That's why Latin is a dead language.
Insurance Companies Must Insure, And Not At The Risk of the InsuredCall me sentimental, but this one seems just right.Here's the playbill. While trying to put out a prairie fire in Nebraska started by sparks from a Union Pacific train, Dailey suffered second- and third-degree burns over a significant portion of his body. He sued UP and settled, receiving over $1.2 million, plus $10K/month for ten years. Plus, UP agreed to defend Dailey if his health insurer, Blue Cross/Blue Shield, sued to recover part of the settlement. That agreement did not necessarily mean that UP would pay more. Larry H. Parker may not have been able to do much better. Trouble is, BC/BS was left out in the cold. It had paid almost $800K of Dailey's doctor and hospital bills, but had not received anything as part of the settlement. So, it sued Dailey for equitable subrogation and for breach of contract. It wanted money. If BC/BS recovered that money from Dailey, he was out of luck. He had signed a UP settlement, releasing it from paying any more. Dailey would have to pay BC/BS out his own recovery. But, BC/BS had a contract with Dailey that allowed it to recover the money it had spent on Dailey's care if Dailey recovered in a settlement. So, it sued both UP and Dailey. UP denied the claim, and the lower court decided that if BC/BS wasn't entitled to recover from Dailey, it wouldn't be entitled to recover from UP. The initial decision was that BC/BS was entitled to contractual recovery, reducing Dailey's recovery by the nearly $800K it had paid for Dailey's injuries. Remember - Dailey had released UP. The Nebraska Supreme Court didn't like that result. Well, more than half of the Court. They decided that an insurer is precluded from any recovery unless the insured has been made completely whole by the tort-feasor. In other words, the insurer can't take any money from the injured insured until he has first been fully paid for his injuries. The root of the rationale? The court said that " these are risks of loss that the insurer is paid to bear." Hmm. Do they mean that BC/BS has to act like an insurance company? What a surprise.
Spin Doctoring The News Into Freedom of SpeechThe Fourth Estate has become _______ (you fill in the blank as you see fit).No matter how you look at it, though, journalists have faced some tough choices, with the threat of jail and sometimes actual time in the gray bar hotel. First Amendment rights have been at risk across the pond and in the cradle of civilization. And no matter how oblique the reference, the risk to a journalist is real, even if there is no legal basis to protect the "reporter-source" privilege. Certainly, there is a patchwork of statutes and case law designed to protect journalists who refuse to release their sources. There is no national framework, however, and the protection available in the several states varies greatly. As a side note here, given that blogging is in its infancy and we can't even decide whether bloggers are journalists, it will be awhile before we face this issue. Query here whether bloggers will take that risk? Just yesterday, Senator Christopher Dodd, D-CT, introduced The Free Speech Protection Act of 2004, Senate Bill 3020 (text not yet available online). It would establish a comprehensive federal law to protect journalists from revealing their sources. Dodd will have to reintroduce the bill in January when Congress reconvenes. Dodd, however, isn't the first to introduce such a bill. A student at NC State did earlier this year, although the focus was slightly different. Still, however, the point was the same: freedom of speech. One argument in favor of the journalist privilege centers on the need to protect the source in order to allow the free exchange of information between the source and the journalist. The net (desired) result is that we end up with a more informed citizenry because information that would otherwise not have come to light gets discussed in the public forum. Here's my concern. Who protects the citizenry from the spin doctors? With journalists competing for "news," and rampant leaks, how do we know that journalists aren't being used (and fed) "information" in the name of news? For that matter, how do we know the source is real? Dodd's effort is commendable, but should there be some checks and balances on the privilege? The editors who have to balance these weighty issues against the almighty dollar, may not be in the best position to evaluate the veracity of the source and the wisdom of publishing that information. But that's our system, and consequently free enterprise runs smack into the wall of freedom of speech. It looks like job security for judges won't be an issue for a long, long time. Ultimately, you and I become the final arbiters, though. We get to vote with our pocketbook and decide whether to buy the newspaper and the products advertised in that newspaper.
MIPTC Announces Its Affiliation with the Law.com Blog NetworkYou're among the first to know. You may have noticed some changes going on here lately, and today, one big change over there to the right.What's it all about? May It Please The Court is honored to announce that Law.com has chosen it as one of seven legal blogs to be regularly featured in the groundbreaking Law.com Blog Network. Law.com is the internet's leading legal news and information network and the flagship website of American Lawyer Media, which publishes more than 20 award-winning national and regional legal publications, including The National Law Journal®. The Law.com Blog Network is nationally and internationally syndicated to over 40 million readers. Formal announcements will be made to legal bloggers and mainstream press on Monday. Meanwhile, poke around the Blog Network. It may not be completely operational until later today (we're in "soft launch" mode), but it should up and running in full by Monday. Oh yes, please feel free to poke around the WLF website too, and view our brand new Introduction, flash presentation about the Firm. You can also welcome to the Network Professor Volokh, Matthew Homann, Carolyn Elefant, Bill Heinze, Michael Fox and Michael Cernovich. Plus, Law.com will be featuring a Legal Blog Watch written daily by Lisa Stone, a journalist and blogger whose work has appeared in The New York Times and the Los Angeles Times. Now you may ask, how is this change going to affect MIPTC? Not at all. Rest assured that Law.com and its parent, American Lawyer Media, have vested complete editorial control in me for writing MIPTC, and in each of the other legal blawgers on the Network. Has MIPTC sold out? Kind of. At least now I'm getting paid. To be sure, though, MIPTC will be just as tongue-in-cheek as it always has been. If you have any doubt, check out the post immediately below and today's Quote of the Day.
The Integrity Of Hooters' Intellectual Property Is Up For GrabsAdmittedly, MIPTC has been very serious lately. But here's a quote that deserves serious treatment."We believe we are defending the integrity of our intellectual property rights," spoken by Senior Vice President Michael MacNeil. Sounds perfectly legitimate. Certainly something you'd expect to hear outside a courtroom after the parties completed their first day of trial in a trade dress infringement suit. Now, consider the source: Hooters restaurant, whose motto is, "Delightfully tacky, yet unrefined." I couldn't have said it better myself. Hooters is taking on its latest rival, Ker's WingHouse (I'll leave it up to you whether to enter the site) for stealing its ideas. Ker's thought mediation might settle the case, but that apparently didn't work. Among other things, Hooters claims that Ker's stole its idea of scantily clad women selling food and beer to men. Now there's some intellectual property to protect.
Grosso Revisited: Screenwriter Sues Microsoft for Idea TheftOn Monday, Roger Avary sued Microsoft for allegedly stealing his idea for a new, yoga-based video game designed for women. Avary's case is pending in the West District (Santa Monica) Courthouse of the Los Angeles County Superior Court. A copy of his complaint is available here. If you're interested, Avary has posted a two-day-old website to monitor his litigation with Microsoft.Avary's case is of particular interest to me because it falls so closely on the heels of the Grosso v. Miramax case that I recently reported on in October. In that case, Grosso's copyright claim was barred. However, the Ninth Circuit allowed his claim for breach of an "implied contract" to survive pre-emption under the Copyright Act on the ground that there was a "bilateral expectation of compensation" that acted as an additional "element" beyond the scope of copyright law. It is, of course, interesting to note both that Avary does not claim that Microsoft infringed any copyright interest he may have in the video game, including its concept, and that his action was filed in state court, not federal court, which has exclusive jurisdiction over copyright claims. This is precisely the kind of case that one would expect following the Ninth Circuit's decision. And while one case certainly does not mean the proverbial floodgates have opened in state courts, to the extent anyone read my prior blog article, I told you so. Courts Work To Help Inexperienced LitigantsAccess to lawyers is expensive, as I've blogged about before. So it's no wonder that people end up representing themselves. In legal parlance, we call it pro se litigation.It turns out to be the bane of courts because non-lawyers rarely understand the procedure involved with litigation. Admittedly, it's frequently complicated for lawyers. So it's not surprising that courts are trying to do something about it. Nationally, pro se litigants make up nearly half of all appeals filed (subscription required to access link). Likely there's a large percentage of those who are jailhouse lawyers, but still half is a big number. The Ninth Circuit has an information packet for pro se appellants. The Circuit has also proposed some rule changes designed to make it easier on pro se appellants by not requiring filing of certain documents. (Why can't I get that same break?) Chief Judge Mary Schroeder just finished a task force report that will make additional recommendations to ease the burden on the court and pro se appellants. Those recommendations include: • Districts should coordinate with law schools and consider using law school students to help represent pro se litigants, with students possibly earning credit for their work. • Districts should make it easy for law firms to accept pro bono cases by either pitching pro se cases as good training for young lawyers, issuing success-based fee awards or reimbursing attorneys' out-of-pocket expenses. I like the idea of law students helping. I did that during law school, and ended up with a case in front of the Iowa Supreme Court, which was a very valuable experience. What's really interesting is that while the Ninth Circuit is busy helping pro se litigants, it is also doing the same for inexperienced attorneys. What does that tell you about the Court's thoughts on the quality of practice in front of it?
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