May It Please The Court
Quote of the Day - I realize that there are certain limitations placed upon the right of free speech. I may not be able to say all I think, but I am not going to say anything I do not think.
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.
Lawyer 2 Lawyer Internet Radio Discusses Blackwater Worldwide
Blackwater Worldwide is the largest private security firm protecting U.S. diplomats in Iraq and they face a number of allegations including the shooting deaths of 17 Iraqi civilians. Please join me as we take a closer look along with the experts: Professor Jordan Paust, law professor from the University of Houston Law Center and Professor Paul R. Verkuil, Professor of Law at Cardozo Law School, Yeshiva University.
On Lawyer2Lawyer, we discuss the investigation of Blackwater, the legal issues, the effect the use of private contractors is having on the US, and what the future holds for Blackwater and contractors like them.
Employee Can't Recover Attorneys Fees In Employment Dispute For Tort Claims
In England, life for litigants is a bit tough: the loser pays the winner's attorneys fees. In contrast, here across the big pond, we split the baby: if you sue based on a contract that contains an attorneys fees provision, then the loser pays, just like in England. Where we part company, however, is in tort claims - those claims based not on contracts, but instead on a civil wrong or breach of duty to another person.
So what happens when someone sues you for both? Well, it depends on a lot of things. Typically you don't get both tort and contract relief in a judgment, but there are some circumstances where it can happen. Check your local listings for more information.
Here in California, an employee can do just that - win or lose on both tort and contract claims. When the employee sues the employer on a breach of contract claim, the employee will end up paying the employer's attorneys fees and costs when the employer wins. The opposite is equally true.
But a recent case, Casella v. SouthWest Dealer Services, Inc., gave us the answer to the question posed above. Zachary Casella sued his former employer, SouthWest Dealer Services Inc., for wrongful termination, fraud, and fraudulent inducement of employment. SouthWest filed a cross-complaint against Casella for breach of employment agreement.
Now here's where it gets a bit tricky. Take a look again at Casella's claims. They're all based in tort. He didn't sue for breach of contract. His employer, however, did. So now we get to add one more consideration into the mix.
Under California Civil Code section 1717, once one party invokes a contract claim for attorney fees in a lawsuit, the loser pays - virtually no matter what (absent some other considerations not in play in this case).
But hold on a minute here, I can hear you saying. Didn't I say before that where there are tort claims alleged there are no attorneys fees paid at the end of the suit?
Yes, I said that, and it's still true. Don't you just love the conundrums the law presents?
That conundrum was exactly the problem that led to the appeal between Casella and Southwest. Before the appeal, however, let's go over what happened. Casella won on his Complaint. He got $480,000 in tort damages against Southwest for wrongful termination and fraud, both torts. He also defeated Southwest's breach of contract claim in the company's Cross-complaint.
So the trial judge did what I pointed out above. The judge didn't award any attorneys fees or costs to Casella for winning the tort claims, but parceled out his fees and costs attributable to successfully defending the contract claim, and awarded those attorney fees and cost to him. The judge gave him $12,500 - nowhere near the attorneys fees and costs he actually incurred in the entire lawsuit, but those that related to the contract claim.
So even though the headline made it appear the business won, it essentially lost.
Apart from this scenario allocating attorneys fees between the parties, if you've ever wondered about how car dealerships sell cars and the markups, profit margins and the "leg" or "payment packing" techniques, then the beginning of this opinion is a tell-all that may change your next car-buying experience. The opinion's Introduction and Summary of Facts are all you need to read to gain an understanding, and they're a quick read at that.
Law Enforcement Tracks Down Arsonists
Regular readers know the recent California wildfires came within a block or so of my house, just across the street from the Santiago Fire, which burned nearly 30,000 acres. Arson caused the fire, according to fire investigators. No one died in the fire, but 15 homes were burned.
Our firefighters did a great job.
So when the Los Angeles County Sheriff obtained warrants for the arrest of five men who allegedly started the Malibu fire, it was good news. Fourteen people died in that fire. The men, who had a campfire, will be charged with felonies.
Let's just hope they catch the arsonists in Orange County, too.
Who's Face Is On The Side Of That