I’ve got an op-ed in the Wall Street Journal this morning on the remarkably bad legislation that California passed this year ostensibly banning spam, which in fact creates a right to sue unwary businesses for $1000 per email over all sorts of communications that aren’t regarded as spam by most recipients. Fortunately, the pending federal SPAM-CON bill, whatever its other merits or demerits, would override the California law, which otherwise is due to go into effect Jan. 1. (Walter Olson, “Spamifornia”, Wall Street Journal, Dec. 3) (sub). I’ll probably be returning to this subject in print again, since the space available in the WSJ didn’t permit me to explore some of the pertinent litigation precedents that make the California bill so scary, notably the antispam law passed by Utah last year and the record of class action suits under the federal “junk fax” law (Jul. 19 and links from there).
Shoemaker Nike Inc. has settled a California activist’s lawsuit over its allegedly wrongful speech by agreeing to make a $1.5 million payment to a workplace monitoring organization (see Jul. 9 and links from there). (Bob Egelko, “Nike settles suit for $1.5 million”, San Francisco Chronicle, Sept. 13). “Any other company under attack from activists of any stripe — and there are so many of them — will have to think twice now about its efforts to tell its side of the story, at least in California.” (“Free speech loses a round” (editorial), The Oregonian, Sept. 13).
Although the California Supreme Court ruled as long ago as 1985 that the state’s civil rights law prohibits “Ladies’ Night” discounts at bars, various San Diego taverns apparently hadn’t gotten the word. That created a perfect opening for Steven Surrey and Alfred Rava to make the rounds of nightspots in the county, demanding similar discounts for themselves and taking note when they were refused. The Unruh Civil Rights Act provides $4,000 fines for each violation plus “one-way” attorneys’ fee awards (pay if you are a losing defendant, collect nothing if you win). The next step was for lawyers to swoop down and obtain $20,000 settlements from six errant bar owners and $5,000 from a seventh that was going out of business. “One of the [complainants] is a California Western School of Law classmate of the two lawyers who filed the suits on their behalf. The other is a paralegal. When asked about the social merits of these lawsuits, Erik Jenkins, one of the attorneys who filed the suits, made comparisons between ladies night discounts and the discrimination faced by African-Americans in the South.” (Alex Roth, San Diego Union-Tribune, Aug. 3).
In other news of California bounty-hunting, the Long Beach Press-Telegram (Aug. 2) has editorially cited our editor’s recent WSJ op-ed in upbraiding local Assemblywoman Martha Escutia for advancing a measure that masquerades as reform of the state’s notorious section 17200 law but in fact would give lawyers even more scope to use it for shakedowns (see Jul. 28).
Addendum: Lest anyone doubt that highly entrepreneurial applications of section 17200 remain alive and well despite the downfall of the Trevor Law Group, John Sullivan at the Civil Justice Association of California reprints a recent letter (PDF) from a Bay Area law firm demanding $6500 in legal fees in exchange for not filing a 17200 lawsuit over an allegedly erroneous advertisement; the law firm does not claim to represent any clients injured by the ad, but does state that “A substantial percentage of this firm?s practice is devoted to prosecuting UCL violations.” (“17200 Abuses don’t stop with Trevor: Shakedowns Head North”, CJAC press release, Jul. 23)
Professor Volokh, of the Volokh Conspiracy, on the Nike v. Kasky case. Under a 4-3 California Supreme Court decision, Nike is potentially liable to any California citizen if its response to political speech criticizing Nike is deemed “misleading.”
(Full disclosure: Walter Dellinger of my law firm filed a U.S. Supreme Court brief on behalf of Nike.)