Overlawyered: Chronicling The High Cost Of Our Legal System

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Devil is in the details

For years, an urban legend has floated around which claimed that Procter & Gamble has links to Satanism. P&G’s aggressive campaign to stamp out these rumors included filing numerous lawsuits against those who spread the story. On Friday, at least one of those efforts paid off. A jury in Salt Lake City awarded Procter & Gamble $19.25 million against four Amway distributors who had briefly passed the rumors throughout an Amway voice mail system, and then passed around a retraction soon afterwards. P&G had sued Amway and the distributors, but Amway was ultimately dismissed from the case after many years of litigation.

Observations:

  • For a payment of only $18 million, anybody should feel free to call me a Satan-worshipper.
  • While I have not yet seen all the pleadings, it seems hard to believe that a rumor such as this could possibly have damaged P&G to the tune of $19.25 million.
  • This lawsuit was filed in 1995. For those of you scoring at home, that means it took twelve years to resolve a lawsuit which was, essentially, about gossip. The case featured several trips to the Tenth Circuit Court of Appeals, an unsuccessful petition for Supreme Court review, and related litigation filed in Texas and Michigan as well. Not to defend the conduct of the defendants, but the litigation seems drastically out of proportion to the offense, no?

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No such thing as bad publicity?

Apparently Carol Burnett doesn’t hold to that maxim; she’s suing the producers of the Fox cartoon Family Guy for $2 million for copyright infringement and violations of her right of publicity over an 18-second cartoon clip parodying her. Ron Coleman of Likelihood of Confusion has details.

Fox could have some trouble, particularly with the second claim; California’s right of publicity law, as interpreted by the Ninth Circuit, is extremely broad. Judge Alex Kozinski’s famous dissenting opinion explained the problem in a case filed by Vanna White against Samsung about an advertisement featuring a robot wearing a blond wig. Although this case doesn’t present the exact same issues as the Vanna White case — the Family Guy cartoon actually used Burnett’s name — it does point out the flaws in the Ninth Circuit’s approach, and illustrates how their interpretation is an invitation to celebrities to litigate.

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Protest a group home, get investigated for housing bias

They’re doing it again in California: “State and federal authorities have opened an investigation into a Norco housewife, alleging that her vitriolic protests against a high-risk group home in her neighborhood may constitute housing discrimination.” Federal officials asked state fair housing regulators to investigate Julie Waltz, 61, who had protested plans to open a group house next to her home for developmentally disabled residents; among those eligible to reside there under state law would be persons deemed not competent to stand trial on sex crime charges. In 2000, the Ninth Circuit ruled that three Berkeley, Calif. neighbors’ rights had been violated by an “extraordinarily intrusive and chilling” investigation of whether their protests had been contrary to housing discrimination law. In that episode, as in the latest one, housing advocates had set the investigation in motion by filing complaints against the neighbors.

A spokesman for the federal Department of Housing and Urban Development acknowledged that in order to recommend the inquiry, it had to push aside internal guidelines that prohibit such an investigation because it infringes on the 1st Amendment.

The rules require that complaints of housing discrimination be investigated only in cases in which the alleged victim’s safety has been threatened.

No such allegation has been made against Waltz, but HUD opened an investigation into her and state investigators ordered her to respond to the complaint in detail because a preliminary review showed that someone else in the neighborhood may have made a violent threat, said HUD spokesman Larry Bush.

(Garrett Therolf, “Protester of group home is targeted”, Los Angeles Times, Mar. 20).

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Annals of incivility

It may not quite reach Jamail-esque depths — almost nothing can survive that far down other than those curious tube worms that live on volcanic sulfide fumes — but the lawyerly unpleasantness in the case of Redwood v. Dobson (PDF) was plenty bad enough, as recounted in Judge Easterbrook’s entertaining opinion. Discussion: Evan Schaeffer’s Illinois Trial Practice, Prof. Bainbridge, Legal Ethics Forum.

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YouTube users at legal risk?

Needless alarmism, or logical extrapolation from RIAA’s willingness to sue small-fry individual music-sharers along with the grandparents whose computers they had borrowed?

According to some legal experts, YouTube’s uploading community could find itself in the line of fire. … Centralized source or no, Christopher Norgaard, intellectual property attorney and partner in the Los Angeles office of Ropers Majeski Kohn & Bentley, said he believes YouTube and its users face a significant risk of exposure to secondary liability for copyright infringement. Secondary liability can be either contributory, meaning inducement of infringement, or vicarious, meaning profiting from infringement while failing to exercise a right to stop it.

(Jennifer LeClaire, “Are YouTube Users at Risk in Viacom Suit?”, NewsFactor, Mar. 16).

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“Litigation is coercive”

Many commentators over the years have compared litigation to extortion. In Texas, it turns out that there’s at least some line between the two. Last week, San Antonio attorney Ted Roberts was convicted on three of five counts of theft for his role in a blackmail scheme. The scheme — previously discussed on Overlawyered in Jun. 2004 , Sep. 2005, and Feb. 2007 — involved having his wife, Mary, pick up married men on the internet, have sex with them, and then threaten to sue them (and reveal their sexual activities) for ruining his marriage unless they paid him big sums of money.

If you think that’s low, consider that Roberts falsely told his victims that the money they paid would go to a charity; he instead spent almost all of the money on a new $635,000 home. It was that fact that apparently convinced the jury, which didn’t have much sympathy for the adulterous men, to vote to convict.

It might sound unconscionable to normal people, but Roberts had found someone to defend him:

Support for the accused Ted H. Roberts and for his creative response to his wife Mary’s adultery came from an accomplished fellow attorney with more than 44 years’ experience, including a term as president of the State Bar of Texas.

Testifying for the defense, Broadus A. Spivey voiced no qualms about the way Roberts extracted $155,000 from four of his wife’s lovers by threatening to file litigation that would embarrass them and alert their wives and employers to their infidelities.

“Litigation is coercive,” Spivey explained to jurors. “That’s part of the nature of the beast.”

The seasoned lawyer offered a voice of experience, and the defense took care to note for jurors his multiple board certifications, awards and various distinctions.

Spivey might not quite be an impartial witness, though; he represents the Roberts duo in their civil lawsuit against the newspaper that first reported their scheme.

Still to come: the trial of Roberts’ wife on the same charges.

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Worst new idea of the day

Title says it all: “Let presidential candidates sue one another for libel”. Oh, great, then White House races will start depending on who’s more skilled at manipulating the judicial process (although now that you mention it Bush v. Gore has already gone far to advance that proposition). (Joseph H. Cooper, Christian Science Monitor, Mar. 16).

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