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“The Naked Cowboy versus The Blue M&M”

In a 23-page opinion, Judge Denny Chin of the Southern District of New York ruled yesterday that confectioner Mars inc. did not violate the right of publicity of well-known Times Square entertainer Robert Burck, AKA the Naked Cowboy.

Mars had run a billboard video of its iconic M&M cartoon character in a variety of NY-centric contexts, including one scene in which the character was “wearing only a white cowboy hat, cowboy boots, and underpants, and carrying a guitar–Burck’s regular get-up.

New York’s publicity law (Sections 50 and 51 of the state’s Civil Rights Code) is among the most stringent in the nation, applying to “any recognizable likeness” of a person used in a commercial context, making the win an especially sweet one for Mars. An M&M in underpants and cowboy hat, said the court, was simply not a depiction of Burck.

The court, however, refused to render summary judgment on the Naked Cowboy’s Lanham Act claim of false endorsement, on the grounds that passers-by might confuse the M&M video for the Cowboy’s (somewhat dubious?) endorsement. (Earlier coverage).

Great Moments in Voir Dire

Newsweek reports on Laura Day, a $10,000-per-month psychic to the powerful, who’s gained a few clients in the legal profession:

A Manhattan attorney who serves as special counsel to several white-shoe law firms has used Day’s insights to help her select juries and anticipate the opposing team’s arguments. “Day saves me thousands of minutes on my cell phone” working a case, says the attorney, who also didn’t want to be publicly identified.

Day denies that she has psychic powers, per se; rather, she has “intuition,” a term more palatable to her clients, “red-meat-eating, Barneys-shopping, Type A personalities.” (The $10,000-a-Month Psychic, Newsweek, Jun 30.)

13 Years, 16 Lawyers, 10 Judges, No Divorce Settlement

In 2001, a Florida court awarded Marlene Forand a $240,000 divorce settlement, plus $6,000 per month in permanent alimony and attorney’s fees, from ex-husband Bob in 2001, 6 years after their marriage ended. So why is she living with her mother and taking public support? The St. Petersburg Times reports that the lawyers who botched enforcement of the claim in Alabama, Bob’s new home state, somehow ended up with only a $162,000 judgment from her ex and took more than half that in legal fees, leaving Forand, after paying off some marriage debts, with nothing at all.

But wasn’t the ex supposed to pick up the bill?

No, her lawyers said. She signed contracts with them. She owed them. If she wanted Bob to pay her legal fees, she would have to sue him. Of course, that would mean more legal fees.

Marlene was famous for her fiery e-mails. She sent one to Haas:

“Why should I suffer and have to pay attorney’s fees to make him pay for what was already ordained in the Florida court? I’m still left holding the debt from the marriage judgments for 20 years and he walks free. This I will not tolerate. What’s the next move?”

Forand kicked Haas off the case (for the second time) in 2006 and is now representing herself. “This is not the end,” she told the Times. “If I’ve learned anything about the law, I’ve learned you can always file another motion. You can always object.”

But after 13 years of litigation, the Florida judiciary has a less rosy view of Forand’s prospects. Responding to Forand’s motion to compel Bob to swear that he had no documentation of any of his assets, a Tampa judge despaired, “Even if I rule 100 percent in your favor, I’m just going to add another piece of paper [to your casefile] — the next page of Volume 13.” (“A Divorce, Unsettled,” St. Petersburg Times, Jun. 22).

Benched for Your Own Good

Is a coach liable for any injuries when he asks an injured athlete to return to the game? It’s the final scene of just about every hard-luck sports flick ever filmed.

In a recent article, Prof. Timothy Davis of Wake Forest Law observes that coach liability is a real risk in amateur and school athletics. “Coaches owe a duty of care to their students not to increase risks that are inherent in a sport.” Thus have coaches been held liable, from time to time, for their players’ injuries.

But what about in the wide world of professional sports? There’s not much precedent, but it should be possible:

The forgoing cases suggest that, where an athlete is injured as a consequence of a coach acting in a manner that is outside the realm of his or her expertise, potential liability based on recklessness might ensue. This is particularly the case where coaches have actual or constructive appreciation of the potential risks that might flow from their conduct.  Such would be the case when a coach’s decision is contrary to medical advice.  Similarly, a coach’s demand that an athlete return to play, given the coach’s absence of medical expertise, arguably provides evidence of recklessness, since it disregards an immediate and readily ascertainable risk, in contrast to an abstract possibility of risk.

Still, Davis lists a variety of bars to liability–worker’s comp, athletic “culture,” federal preemption, arbitration, etc.–and concludes that pro coaches don’t face great incentives to protect players’ health–at least, not yet.

The trial-bar-friendly New York Times has gone a bit overboard of late agitating about concussions in football. Davis, however, points to the league’s response as a model of how to make progress outside of the courtroom.

But Was He Properly Mirandized?

It’s not just the U.S. civil-justice system that often winds up serving counterproductive ends, but also our criminal and national security legal systems. And just like with, e.g., our tort system, it sometimes seems like everyone knows this except us Americans.

Consider this, from the Timesdetailed account of the interrogation of 9/11 planner Khalid Sheikh Mohammed:

Mohammed met his captors at first with cocky defiance, telling one veteran CIA officer, a former Pakistan station chief, that he would talk only when he got to New York and was assigned a lawyer–the experience of his nephew and partner in terrorism, Ramzi Yousef, after Yousef’s arrest in 1995.

Apparently, KSM was somehow privy to an advance copy of Boumediene. . .

Creatively Challenged

For something like two decades, your computer firm has been known for the cult-like devotion of its followers and its single-button mice, so when it comes time to introduce a two-button mouse, how to placate the hurt feelings of those who’ve spent 20 years arguing that the One Way is One Button? First, it helps if the new device doesn’t actually appear to have two buttons—maybe they won’t notice?—and second, you give it a slightly-deprecating-yet-somehow-still-smug name: “Mighty Mouse” is the all-too-obvious choice and the one that Apple inc., in fact, made.

Don’t assume, just because this is Overlawyered, that Apple is being sued by CBS, which owns the rights to the cartoon superhero—too obvious.

Read On…

The evils of food

Kim Severson of the New York Times has this article on the growing interest among parents of food allergies:

Record numbers of parents are heading to doctors concerned that their children are allergic to a long list of foods. States are passing laws requiring schools to have policies protecting children with food allergies. But no one knows why the number of allergies seems to be on the rise, or even if they are rising as fast as some believe.

Ms. O’Brien and leading allergy researchers agree that few reliable studies on food allergies exist. The best estimates suggest that 4 to 8 percent of young children suffer from them, though the reactions tend to grow less serious and less frequent as children grow older.

Even though the science is weak, new laws and policies are enacted under the banner of child safety. Yet as David Bernstein points out, we’ve been down this road before.

Extra-judicial punishment?

Jacob Sullum (of the often excellent Reason Magazine) makes note of a prosecutor in Arizona who places DUI offenders’ names, mug shots and BAC levels online. Sullum concludes that the prosecutor is “imposing extrajudicial punishment, based on his unilateral conclusion that the penalties prescribed by law for DUI offenses provide an inadequate deterrent.”

Publicizing records that are, by nature, public is normally fine by me. But the prosecutor seems to have created, in a sense, a DUI offender registry. Appearance on sex offender registries is a matter determined by law, not the whim of prosecutors. Also, Mothers Against Drunk Driving won’t endorse the idea:

“Some parts of the Web site are good because they are informational and trying to provide the victim’s perspective,” said Misty Moyse, the spokeswoman for the group. However, she said, “M.A.D.D. would not want to be involved in calling out offenders. We are interested in research- and science-based activities proven to stop drunk driving.”

(crossposted at

Woman Deems Starburst “Dangerously Chewy”

Next time you feel like living on the edge, there’s no need to go sky diving or ski jumping. Simply bite into a Starburst fruit chew, cross your fingers, and hang on for dear life…

Michigan Woman Claims Starburst Candies Are Dangerously Chewy in Lawsuit

Starburst Fruit Chews are exactly as their name would indicate: chewy. But one Michigan woman says the candies are so chewy, they should come with a warning label.

Victoria McArthur, of Romero, Mich., is suing Starbursts’ parent company, Mars Inc., for more than $25,000 for “permanent personal injuries” she claims she sustained after biting into one of their yellow candy in 2005.

I think we need to take whatever steps necessary to keep this woman away from jawbreakers.

KFC doesn’t owe millions for selling fast food

In June 2006 (Overlawyered), a Maryland resident named Arthur Hoyte, in conjunction with the Center for Science in the Public Interest, sued Kentucky Fried Chicken for selling food made with trans fats; he claimed that he didn’t realize (despite being a medical doctor!) that fast food might not be the healthiest option for his diet. And this, of course, was KFC’s fault.

Yesterday, a federal judge dismissed the lawsuit, pointing out that it didn’t even identify any injury suffered by Hoyte, and mocking him for pretending not to realize that fast food might contain trans fats. (“The suggestion is that, by its silence, KFC misled plaintiffs into believing that its products did not contain harmful trans fat. This is a questionable premise at best […] Especially since, as plaintiff submits, consumers have a ‘growing awareness of trans fat and the need to avoid it.’ If consumers are increasingly aware of trans fat, where do they expect to find it if not in fast food restaurants?”)

This is a big victory for restaurateurs — as KFC pointed out in its motion, under the logic espoused by Hoyte (who was seeking class action status), effectively everyone who ever ate a meal at a restaurant would have a cause of action against the restaurant, and could claim a minimum of $1500 in damages. (Although Hoyte’s claim was about trans fats, the same reasoning would apply to virtually every other ingredient in existence, since any one of them might represent a potential health risk if eaten to excess.)

But it certainly won’t end the CSPI’s attempt to achieve via litigation what it can’t through regulation; Hoyte’s claim failed only because D.C. courts have narrowly interpreted the badly-drafted D.C. Consumer Protection Act to require that plaintiffs demonstrate an injury before suing, and because he wasn’t creative enough in drafting his complaint to allege the right kind of injuries. This suit was no more frivolous than the similar suits filed against McDonalds, some of which courts have been extremely tolerant of. (See, e.g. Sep. 2006)

Update: Hans Bader comments over at CEI’s Openmarket blog, noting the irony that at one time, CSPI actually used to teach that trans fats were safer than saturated fats.