“Lawsuits are occupational hazards for anti-cult blogger Rick Ross. Sued a half-dozen times during the past decade for his public pronouncements, especially on the Internet, he’s managed to win all but one case, with the help of pro bono counsel.” (Charles Toutant, “Suits Against Anti-Cult Blogger Provide Test for Online Speech”, New Jersey Law Journal, Jan. 10). In other news, a federal judge has thrown out the RICO and defamation lawsuit filed by the controversial healing-spiritualist Gentle Wind Project against former members of the group (see Aug. 30, 2004)(“Group’s Lawsuit Against Ex-Members Thrown Out”, WMTW, Jan. 9; “Court Rejects Online RICO Claims Based on Ex-Group Members’ Web Site”, Berkman Center, Jan. 11). Gentle Wind also happens to have sued Ross, unsuccessfully, according to the New Jersey Law Journal article.
Archive for the ‘Uncategorized’ Category
Chili finger duo sentenced
Fickle finger of fate, cont’d: dissatisfied Wendy’s customer Anna Ayala drew a nine-year sentence while Jaime Plascencia, her boyfriend and the procurer of the severed digit, drew twelve years. “The two pleaded guilty in September to conspiracy to file a false insurance claim and attempted grand theft with damages exceeding $2.5 million.” (“Chili Finger Couple Get Stiff Sentences”, AP/NBC San Diego, Jan. 18). Our previous coverage: Apr. 8, Apr. 9, Apr. 13, Apr. 20, Apr. 22, Apr. 27, May 16, Sept. 10.
We’re here from the government…
…and we’re not happy about your choice of cooking oil — gee, thanks a million, Mayor Bloomberg. Andrew Stuttaford explains (NRO “The Corner”, Jan. 15).
A Million Little Plaintiffs: unsurprising update
WSJ Law Blog: “As surely as day follows night, a class-action lawsuit was filed Friday against James Frey and Random House over Frey’s alleged lies in his best-selling memoir ‘A Million Little Pieces.’” Christine Hurt comments. Overlawyered readers had the story before it happened.
Newspaper circulation scandal: lawyers get $40K, clients $15K
“The Minneapolis-based Star Tribune has agreed to pay $55,000 to end a lawsuit accusing it of cheating advertisers by inflating circulation numbers, according to a lawyer for two plaintiffs. The settlement agreement says that the two plaintiffs, Masterson Personnel and Alternative Staffing, will receive $15,000 in rebates from the newspaper for advertising in 2007. The bulk of the settlement, up to $40,000, goes to attorneys representing the plaintiffs.” (Tim Huber, “Star Tribune to pay $55,000 to settle circulation lawsuit”, St. Paul Pioneer Press, Dec. 20)(via Romenesko).
Update: the flying shrimp of death
The trial in the $10 million wrongful-death lawsuit against Benihana over a hibachi chef’s tossed shrimp that allegedly killed a man ten months later has begun. (Hat-tip: H.G.) Newsday tells of plaintiffs’ attorney Andre Ferenzo depicting a chilling scene: “We’re talking about pieces of cooked food thrown directly at people who are eating dinner in the restaurant!” Ferenzo even understands the dramatic importance of the Rule of Three, as he describes two previous shrimp tosses before the particularly fatal one that he blames for Jerry Colaitis’s death. (Caolaitis actually died of sepsis ten months later, and five months after the neck surgery his family claims was caused by dodging shrimp.) (Ann Givens, “Benihana shrimp toss cited in death”, Jan. 11).
We first reported on the case Nov. 23, 2004.
“B.C. cat owner sues over deadly coyote attack”
Canada: “A Vancouver woman is suing the city and the B.C. government for allegedly failing to keep the streets safe after her pet cat was killed by two coyotes….In a statement of claim filed in B.C. Supreme Court, [Judith] Webster says she’s suffered and continues to suffer from post-traumatic stress and/or adjustment disorder, loss of enjoyment of life, and loss of past and future earnings.” (CanWest/Vancouver Province/Saskatoon Star-Phoenix, Jan. 4).
A Million Little Plaintiffs
An acquaintance—whose self-accounts have appeared in several books, radio stories, prominent magazines and web publications—published a short story in a “non-fiction” anthology. I was familiar with the underlying events and asked her about it, since, even aside from unacknowledged name-changes, it plainly had invented and exaggerated elements, and a twisted chronology meant to fit a story arc. “Of course it does. It’s creative non-fiction,” she responded in exasperation, introducing me to a new definition of “non-fiction” that I hadn’t previously been aware of.
So the James Frey scandal (or a smaller one involving the Times’ Modern Love section) doesn’t surprise me in the slightest; I’ve just come to assume that anything published under the memoir label in the twenty-first century is the modern-day equivalent of a Philip Roth novel that isn’t well-written enough to be successfully marketed as fiction.
The question is what will a court do when confronted with the inevitable free-riding class action, claiming that the publisher has committed consumer fraud, and demanding the right for every book owner to get a full refund and punitive damages (and, of course, a taste for the attorneys who took the entrepreneurial risk of typing up a summary of The Smoking Gun story and filing it in court), before settling for 50-cent coupons, a donation of remaindered books to a “Books for Addicts” program, and a multi-million-dollar attorney fee. Will there be a ruling that “non-fiction” memoirs that aren’t require labelling? If so, what are the First Amendment implications for other non-fiction books? A ruling that doesn’t provide a clear swath of protection for publishers could essentially abolish memoirs or first-person reporting, because a ruling that establishes any sort of rule calling Frey’s book consumer fraud (or even just potentially actionable consumer fraud) could encourage other attempts to sue other successful memoir-publishers for less egregious exaggerations. (This problem earlier arose with the Beardstown Ladies (Nov. 16, 1999), and the California Court of Appeal was far from sympathetic to the First Amendment issues.)
Random House appears to be attempting to pre-empt litigation by offering refunds to anyone who asks, which will surely be a smaller percentage of customers than a hired plaintiffs’ damages expert would testify to.
Prawfsblawg asks about Frey’s liability to the publisher, which seems to miss the point: what’s the publisher’s theory of damages? “You sold us a book that made us a lot of money”?
Also of interest to Overlawyered readers is the bullying letter sent by Frey’s lawyer to The Smoking Gun to try to keep them from publishing their findings. We may have our own story of bullying letters to tell shortly.
(And welcome Wall Street Journal and Malkin readers; do check out our main page and sister site.)
Indian land claims: give us Denver
We’ve covered this set of issues numerous times in the past, but here are some fresh details:
When the Indian Gaming Regulatory Act became law in 1988, no one imagined that it would become a Trojan Horse that would deliver Las Vegas-style casino gambling into communities across America. Having saturated local markets, many tribes are now seeking to acquire land near other, sometimes-distant, population centers, and converting it to “sovereign” territory, in an effort to shoehorn casinos into areas where they’re often not wanted by local populations. Once land becomes part of a reservation, it typically becomes exempt from local taxes, state labor laws, municipal ordinances, zoning restrictions and environmental review. In one of the most egregious cases, in 2004, the Cheyenne-Arapahoe Tribes of Oklahoma filed a 27 million acre land claim which included all of Denver and Colorado Springs, but offered to drop it in exchange for the approval of a Las Vegas-style casino near Denver Airport.
“These efforts are being funded by ‘shadowy’ developers who underwrite the litigation expenses, lobbyist fees and even the cost of land in exchange for a cut of the profits,” James T. Martin, the executive director of the United South and Eastern Tribes, told the Senate Committee on Indian Affairs in May 2005. “If even one of these deals is approved, the floodgates for this kind of ‘reservation shopping’ will open throughout the country.” (Mr. Martin, it should be said, is no opponent of gambling: his organization includes tribes whose main goal is to thwart new competition against their own casinos.)
(Fergus M. Bordewich, “The Least Transparent Industry in America”, Wall Street Journal, Jan. 5)(subscriber-only).
Sports-ticket options?
An Internet site has begun offering “sports-ticket options.” I’ll let Brad Humphreys’s “Sports Economist” blog explain: “For example, I could currently purchase the option to a ticket to the Final Four to see my alma mater, West Virginia University, for $27. If the Mountaineers make the final four, I would pay the face value of the ticket ($140, according to the web site), plus my $27 option.” Over the course of the season, the market for the option fluctuates, and one can sell or buy it. Here’s the catch: “If the Mountaineers didn’t make the Final Four, my option would be worthless and I would be out $27.” Tom Kirkendall and Tyler Cowen, an exceptionally intelligent lawyer and economist respectively, also comment, as does Wired Magazine.
And, yet, somehow, all three bloggers miss a large point of the exercise: to try to get around the anti-gambling laws. Despite the site’s claim to be merely a market-clearing place, there’s no option available for one to actually offer to sell one’s tickets. So where are the tickets coming from? (In case of the Rose Bowl, from the event itself.) Or going to?: the Wired story never interviews anyone who actually ends up with a ticket. Not to suggest that the site is actually ripping people off—with a 17% commission on every transaction and with the vast majority of options expiring worthless, the site makes more per ticket than any scalper does. A recent Forbes story covers a smaller competitor.
For you securities-law geeks out there, here’s the SEC’s no-action letter. I leave to others whether the site is accurately describing its activities. And, of course, the fact that one agency promises no action with respect to the securities laws is no guarantee that the aggressive Department of Justice will take no action with the gambling laws.