Legal Blog Watch

1) Question: I'm at a Major League Baseball game with my family. Hey, there's the team mascot firing hot dogs into the stands with a rocket launcher. Now he's throwing them into the stands right near me. Cool, hey, maybe I'll get one!

Answer: Head's up!!! And get some goggles on pronto. (Lowering the Bar, Dog-Flinging Mascot Blamed for Eye Injury)

2) Question: I've boarded my flight and we're ready to depart, but a fist-fight just broke out between two of the female flight attendants. Now the pilot is kicking everyone off the plane and has canceled the flight. Can he do that, the way my dad used to pull the car over when my brother and I were fighting in the backseat?

3) Question: My dogs got lost and I just got a call from someone saying he found them and will only return them if I pay him a reward. What am I supposed to do here?

Today I kick off what could turn into an ongoing series of posts here at Legal Blog Watch, assuming the continued future clueless-ness of litigants: "Judge Carton Rules."

No, Judge Carton is not a real judge and, like Judge Wapner, my rulings are not "technically" binding on the parties. But that has never stopped me from ruling before, see, e.g., MacStupid, aka MacGyver v. MacGruber, and it certainly won't stop me here. Moving on.

My mission? To spare the parties to cases in which the outcome is obvious the time and expense of further litigation. Here is today's docket:

Case 1: British tennis pro Robert Dee has sued the UK's Daily Telegraph for describing him as "the world's worst tennis pro." He says the slam has ruined his professional reputation. The newspaper is ready to call Boris Becker and John Lloyd, the former British great, in its defense.

Judge Carton's ruling: Dee reportedly admits he indeed lost 54 successive matches in international contests, including 108 sets in a row. Tell Becker and Lloyd to stay home. The Daily Telegraph's future motion to dismiss is hereby GRANTED.

Case 2: Record company EMI has appealed a recent court ruling that the Australian band Men at Work copied a flute riff from the children's song "Kookaburra Sits in the Old Gum Tree" in their 1980s song, "Down Under." EMI claims that similarities to two bars of the Kookaburra song might be noticed by "the highly sensitized or educated musical ear" but were unlikely to be noticed by the ordinary listener.

Judge Carton's ruling: Wrong! As I wrote here after listening to the two songs, the key bars from those songs sound just alike. And while I am a fake judge and many other things, I most assuredly do not have a "highly sensitized or educated musical ear." The appeal is hereby DISMISSED, and the verdict in favor of "The Kookaburra Who Sits in the Old Gum Tree" is AFFIRMED.

Disclaimer Link Could Solve Compliance Dilemma for Public Companies Using Twitter

Twitter is increasingly becoming a channel for public companies to communicate with investors but, as Dominic Jones of IR Web Report observes in this post, some of Twitter's inherent limitations create compliance challenges. As Jones notes, public companies' communications to the world are in many instances regulated by the SEC and subject to the federal securities laws. Some communications may require disclaimers or warnings that can't possibly fit within Twitter's 140-character limit, creating a conundrum for companies that want to communicate with investors via Twitter.

Jones suggests that this problem could be resolved if Twitter would tweak its interface to allow for a disclaimer link in the metadata that accompanies each tweet on the Web and the API. He argues that the availability of such a link might encourage many more companies to begin using Twitter to help spread information about themselves, and could also be an easy way for Twitter to raise revenue by requiring these corporate accounts to be paid accounts.

Presently, Jones writes, public companies on Twitter tend to use one of the following ineffective methods to add disclaimers to their tweets:

1. Twitter backgrounds: While companies can add disclaimer text to their Twitter account background images, many users will never see this text because they don't visit the Twitter Web site. Instead, they may use a Twitter client such as TweetDeck or Twitter’s mobile site where this text would not appear.

2. Twitter bios: While placing a disclaimer in the one-line Twitter "bio" field may be slightly more effective than putting disclaimers on Twitter backgrounds because bios are typically included in the profile information on Twitter clients such as TweetDeck, many TweetDeck and other client users will never choose to view the bio information. In addition, Twitter bios are limited to 160 characters, which is barely enough room for the typical securities lawyer to clear his or her throat.

As discussed above, however, Jones has devised a solution to this problem -- "a new 'disclaimer' parameter that could appear below each tweet and link to a page containing a comprehensive disclaimer." I think this is an excellent idea that could provide companies with a way around their current Twitter compliance dilemma. Here is Jones' mock-up of what a disclaimer link might look like:

When you gotta go, you gotta go ... unless you are a New York street vendor, in which case you gotta NOT go or else the New York Department of Health will swoop in and promptly scratch the permit off of your hot nut cart in the 20 minutes that you are away from your stand.

The New York Times City Room blog reports that a new DOH policy that took effect on Jan. 1 bans vendors from leaving their food carts unattended, even for bathroom breaks. Unattended carts are subject to "on-the-spot seizure of the vendor's permit." The policy requires vendors who need to use the bathroom to have another licensed vendor step in to keep an eye on the cart during their absence, or -- less likely given the economics of running hot nut carts -- hire someone to watch their cart.

Gothamist reports that Sean Basinski of the Urban Justice Center's Street Vendor Project thinks the DOH is being inconsiderate of vendors' basic human needs. "As far as we know, there has never been a case of a vendor's food being contaminated while they've left to go to the toilet. I'm sure if some bad person wanted to poison the people of New York City, there'd be easier ways to do it, like going to a salad bar."

But as commenter "lizbeth" notes on a Consumerist post on the subject, perhaps the new policy presents an opportunity for some entrepreneurial unemployed/underemployed person to "provide a service where for a small fee vendors can call in and get someone to relieve them so they can relieve themselves. You could probably offer breaks in 5 minute increments."

February 25, 2010

Wiki-What? Reflections of a Cyberlaw Professor on an Alternative to the 'Final Exam Only' Grading System

Eric Goldman, of the Santa Clara University law school faculty, who blogs over at Goldman's Observations, has a lengthy post detailing his experiment with offering students in his Cyberspace Law class (yes, that's really what it's called) the option to have a portion of their grade based on something other than the final exam. Thank god Professor Kingsfield didn't live to see this.

Goldman gave his students the option to have 20 percent of their grades determined by drafting wiki entries on appropriate cyberspace law topics. Twelve of his 45 students chose to do so; none of them took him up on the offer to collaborate with each other in the process.

Goldman details the logistics of getting the entries (all of which are linked in his post) publication-ready, including word counts, time spent on edits, etc., and winds up on the fence about whether he will offer students the option in the future. The "gory redlines" he gave back to the participants may be a good introduction to partner markups of briefs for those firm-bound, but what do you think, readers? Is the wiki exercise appreciably different than having a student write a research paper, other than the fact that, as Goldman points out, the final work product isn't relegated to a file drawer somewhere? Will soon-to-be lawyers be able to live with the fact that mere mortals might try to add to or change their entries? When will Legal Blog Watch be worthy of a Wikipedia page like Above the Law?

Howard Bashman over at How Appealing picked up on an 8th Circuit case decided yesterday, ruling in favor of seven people who had been arrested in Minneapolis for protesting "consumerism" by dressing up like zombies and plodding around during the 2006 Aquatennial.

The court ruled (PDF) that the police had no probable cause to arrest the undead for disorderly conduct. The fact that those arrested were, at the time, engaged in First Amendment-protected expressive activities matters in applying the disorderly conduct statute, the court said. Yes, these people might have been painted white, covered in fake blood, dragging their feet and moaning over a portable sound system, but "the likelihood was great that the plaintiffs’ artistic and symbolic message would be understood by those who viewed the protest."

The police could not even fall back on qualified immunity; they should damn well have known that there was no probable cause to arrest the defendants, said the 8th Circuit. How could they have been so sure? Because who hasn't read the case where the Minnesota Supreme Court decided that even "protesting homosexuality by riding [a] horse through a crowd gathered to celebrate National Coming Out Day, shouting anti-homosexual statements, swinging a rope, and knocking over signs advertising the event" is constitutionally protected?

Apparently, the cops trumped up some other charges against the group as well, like "display of simulated weapons of mass destruction." You know, an iPod and some speakers. Oh, and did we mention they confiscated the prosthetic leg of one of the zombies, for fear he might use it as a weapon, presumably to crack the skull of one of his jailers in order to more easily get at his brain?

The opinion is good stuff, even though the judges in the majority somehow managed to resist any urge to use zombie puns. Fortunately, James Walsh of the Minneapolis Star Tribune doesn't take himself as seriously in his headline relating the story.

The highest court in the European Union ruled today (PDF) that goods manufactured in the Israeli occupied territories of the West Bank and the Gaza Strip are not covered by the trade agreement between the European Community and Israel, and thus may be subject to import duties when shipped into a member state.

The case originated in Germany, where Brita had imported some equipment manufactured by Israeli company Soda-Club Ltd. Brita claimed the goods were eligible for preferential tax treatment under the EC-Israel agreement. German customs officials investigated and, when Israeli authorities refused to answer the question whether the goods were made in the occupied territories, Germany refused to grant that treatment.

According to the Court, the EC has two independent trade agreements -- one with Israel and one with the PLO. Each of those is geographically limited, and "products obtained in locations which have been placed under Israeli administration since 1967 do not qualify for the preferential treatment provided for under" the agreement with Israel. Rather, all goods manufactured in the West Bank and Gaza would be covered by the EC-PLO agreement and apparently would qualify for tax breaks if their origin was certified by the Palestinian Authority. When we're talking about stuff produced by an Israeli company, not bloody likely.

Since the EU is the main export market for Israeli goods, it will be interesting to see how all interested parties react to the ruling.

The federal investigation into corruption in the tomato industry, which has been ongoing since 2008, took a new turn recently, with revelations that some of the tomatoes that were sold to food industry heavyweights such as Kraft were contaminated with mold and other non-delicious additives.

The central figure in the scandal is Randall Lee Rahal, a New Jersey man who acted as a broker for SK foods, the now-bankrupt tomato supplier that was bribing food producers to purchase tomatoes from SK, rather than competing suppliers. Rahal pleaded guilty to racketeering, money laundering and antitrust violations in December 2008, and agreed to cooperate with the government's investigation. Rahal was the guy who made the payments to purchasing executives to ensure that they would buy SK tomatoes, even if it meant paying inflated prices. According to the article in The New York Times, Rahal was captured on a wiretap promising to help out a Kraft executive who was in dire need of some cash to pay his taxes.

Even more incredibly, a witness apparently described Rahal's scientific method for figuring out which buyers would be receptive to bribes:

Seriously? Sounds a bit amateurish to me. The former CEO of SK, Frederick Scott Salyer, who had been on the lam, was arrested earlier this month as he deplaned at JFK, and charged with RICO violations and obstruction of justice. Salyer was allegedly involved in the sale of tainted tomatoes and the falsification of test results, which was a much more widespread problem than the bribery.

Our friends over at Food Safety News were, of course, on the story, though both Kraft and the government insist there was no health risk from the "moldy paste," which, incidentally, would be a great name for a band.

February 24, 2010

1) Question: I'm a mother. Another child spit on my child at school. What is the proper response? I'm contemplating maybe throwing back a 40-ounce malt liquor and heading into the elementary school with a sword. Too much?

Answer: Do you really even need to ask? Way too much. Geez. (CBS News, Cops: Boozed-Up Mom Waves Sword at School)

2) Question: I'm a 39-year-old law student who went back to school after a prior career. I'm worried that law firms will view me as too old and not want to hire me. Thoughts?

3) Question: I'm a photographer. This German guy just won an Olympic silver medal in the luge, and I asked him if we could get a photo of him biting into his medal at the presentation ceremony. He did it and, wouldn't you know it, he broke his front tooth biting the medal. Do I have any exposure here? How was I supposed to know?

Just when you thought you had a handle on the various places that were potential risks to your kids online, here is a new one: their PlayStation.

Video game blog Kotaku reports (via Consumerist) that police in Oklahoma City are looking for Annamay Alexander, a 43-year-old woman they believed seduced a 14-year-old boy whom she met via "PlayStation Home."

The details are creepy. Alexander allegedly sent the boy a photo of herself in her underwear, and e-mailed him messages such as "My body is yours to do whatever you want with," and "I love you and we are going to get married." In early January she allegedly drove from her home in Deltona, Fla., to Oklahoma City to seduce him. Alexander is a married mother of three.

For those of you who, like me, have PlayStation-playing kids but no clue what PlayStation Home is, it is a community-based social gaming networking service developed by Sony. It provides a place for PlayStation 3 owners to make friends and socialize using avatars (see the image to the left) and such. So parents may want to add PlayStation Home to the list of places that their kids need to be aware can, in unusual cases, lead to trouble.

I wrote about this topic in passing back in December when I noted the plight of an Italian art student visiting London who, after filming certain "iconic" landmarks in the City, was tossed in prison for being a potential terrorist. There seems to be no shortage of such cases, unfortunately.

The Nobody's Business blog writes in this post that, in the United Kingdom, "anti-social-behavior statutes" are allowing police to arrest citizens who are guilty of nothing more than taking photos. In the video below, amateur photographer Bob Patefield used his video camera to record his run-in with police who stopped him from taking photographs of "Accrington town centre."

Carlos Miller has created an entire blog on the subject called,"Photography Is Not a Crime." On this blog, which has the tagline, "Shining a Light on First Amendment, Media and Police Issues," Miller explains that he is a Miami multimedia journalist with more than 10 years of professional experience, who was himself arrested by Miami police after photographing them against their wishes. He collects numerous examples of photographers who, like him, have had their First Amendment rights violated. As Miller states on his blog, this seems to occur on a "shockingly regular basis."

You've been scared straight by the fear-mongers by now: users of geolocation services such as Foursquare and Brightkite will surely be robbed, they say, by evil-doers who use the "I am here" information to then go where you are not -- home. Oh, and your insurance premiums may go up because you are such a crazy risk-taker in announcing your geolocation daily.

But as Andy Baio notes in this post on his Waxy blog, these are not new issues. Baio notes that as far back as 1977, people have been warning the public that if they do things like list a funeral or wedding in the newspaper, you are also saying, "Please Rob Me." That is because a "good robber" reads the newspaper and hits your house while you are mourning at the funeral or living it up at the wedding reception:

That's not all. Baio also provides a great warning from 1983 from the do-gooders at Family Circle magazine who identified another old-school "geolocation" issue -- answering machines:

When you think about it, almost anything you do that indicates you will be out in public and not planted at home is, to some tiny degree, a request to "Please rob me."

Coach a Little League team whose game times are posted on a Web site? Please rob me!

I still haven't heard a single "benefit" of using Foursquare yet from fans of the service in response to my request, but I have to say that it doesn't look any more dangerous than most of things we do in life. So to people like @ryansholin, who "tweeted" last night that he'd just become "the mayor of Route 7 Eastbound left turn lane at Potomac View Road on @foursquare! http://4sq.com/c4VlAP," I say keep Livin' La Vida Loca!

February 23, 2010

It likely doesn't qualify as an epic fail, but humbled banking giant Citibank recently lost a battle before the Trademark Trial and Appeal Board. As reported by the TTABlog, Citi opposed the registration of four marks by Capital City Bank, a relatively minor player with 73 branches in Florida, Georgia and Alabama (not to be confused with Capitol City Bank & Trust, an even smaller outfit with a grand total of eight branches), for banking and financial services. The TTAB found no likelihood of confusion or dilution between the "standard character" (i.e., words alone with no logo) marks of the two firms, in part because the Capital City Bank marks give the primary impression of the "geographic designation CAPITAL CITY" (the bank was founded in Tallahassee, Fla.) added to the element "BANK."

As part of its decision, found here, in all its 68-page glory (PDF), the Board found that the "CITIBANK" trademark became famous in 1983, eight years after Capital City Bank began using its mark. Moreover, the Board identified many third parties using the term "City Bank" in the course of providing similar services, and cited a lack of evidence of actual confusion.

There was also no indication that Capital City Bank "intended to create an association with" the Citi mark. Because who in his right mind would want to create such an association these days?

Anyone with even a passing familiarity with Boston, construction, graft or incompetence, knows something about the "Big Dig," the infamous tunnel project that took forever, cost about 10 times as much as projected, and didn't really do a great job of addressing the traffic problems that it was designed to alleviate.

You can't have a project like this without lawsuits, of course. There were the disputes between the government and the contractors. There was the suit by the family of the woman killed by a falling chunk of concrete, which led to the closing of a section of the tunnel for a year and a criminal investigation. Now, another wrongful death action has been filed by the family of a State Trooper who was killed in a motorcycle accident in 2005. The plaintiff, and several state lawmakers, believe the handrails in the tunnel are dangerously shaped and/or placed. In the wake of the Trooper's death and six other fatal crashes, there are calls to do something about the railings, which have apparently earned the nickname "Ginsu guardrails," a morbid shout-out to everyone's favorite infomercial fare.

Defendants in the new suit include both the state agency that supervises the tunnel and Bechtel/Parsons Brinckerhoff, the contractor that has already paid the state and the family in the collapse suit. A section of the project was named after legendary Red Sox slugger Ted Williams. I'd suggest that, given the plague of problems affecting the Big Dig, the late Williams might be rolling over in his grave, but, well, you know.

D.A. Confidential, a refreshingly candid, well-written and insightful blog by Travis County Assistant District Attorney Mark Pryor (that should cover me if I ever get a ticket for jaywalking, the worst offense I'd ever even consider committing here in my adopted hometown), has a good post this morning attempting to explain why so few cases, particularly misdemeanor cases, get to the "The people may call their first witness" stage. Unlike on TV, where a trial is not only a foregone conclusion, but also usually happens within two Pepsi commercials of arrest.

The percentage is shockingly low, at least based on Pryor's own experience. Of the 500 to 600 cases he estimates he's resolved as a prosecutor, he can count the number of trials on one hand (assuming he has five fingers, which I have no reason to doubt). The reasons for the low number, though, are the real meat of the post, and worth thinking about. Among them, prosecutorial discretion intelligently exercised. Pryor says that he's not shy about dismissing cases where the evidence just doesn't seem convincing. The cynical might attribute this to a desire to keep that conviction rate up, but this ADA certainly doesn't have a problem discussing his record and admitting to screw-ups, including getting a case dismissed for failure to prove venue. Pryor also asserts that "guilty people generally plead guilty," often even before negotiating with the prosecution. Finally, many defendants' misdemeanor charges get rolled up into some serious felony cases they're also facing.

Defendants that do go to trial mostly fall into two categories, Pryor says. Those who are "obstinate," some of whom he concedes may be innocent, and those who have too much at stake to not roll the dice. These are the defendants who, because of their prior criminal history, would face consequences much more serious than just the misdemeanor penalty should they be convicted or plead guilty. A sort of "three strikes" effect.

D.A. Confidential, which was welcomed to the legal blog community in grand fashion by Above the Law in December, is a consistently good read, and, as ATL noted, there are not a lot of open Internet windows into the minds of prosecutors. So please keep up the good work, counselor. It's public service on top of your public service, and we appreciate it.

UPDATE: ADA Pryor just emailed me to clarify that today's post -- as with all posts on Tuesdays -- is actually the product of an Assistant County Attorney from a different jurisdiction. So the words, the stats, etc. that I attributed to Pryor are in fact those of "The Assistant," who is truly anonymous. I sincerely apologize for my error (and still hope to avoid a jaywalking citation in Austin). My goof doesn't change my enthusiastic recommendation of the blog to all of you, Tuesdays and every other day of the week.

Yesterday, the American Academy of Pediatrics released a policy statement on Prevention of Choking Among Children (PDF). A laudable goal, no doubt. One particular recommendation found in the report, though, has got the American public's hackles up. The kiddie docs identified the hot dog as the food on which little Billy is most likely to choke and die. This is because of their "cylindrical, airway sized, and compressible" nature. And you thought Dan Aykroyd made them sound unappealing.

Some manufacturers already include warnings about the choking risk on their packaging, urging parents to cut the hot dogs into kid-sized pieces, though it is not mandated by the FDA. Enforcing a labeling change, however, isn't the end of the pediatricians' suggestion as regards the nation's frankfurter supply. They have actually called for the hot dog, and other similarly shaped meat products, to be redesigned. Gentlemen, we can rebuild the wiener. We have the technology.

Overkill, say those New Yorkers who spoke with CNN's Jeannie Moos. Even the guy who claims to have once choked on a hot dog himself:

If this redesign movement gains traction, we can only hope that whoever is selected to draft the new blueprints is a true visionary. Maybe start with the inventor on this patent since he apparently came up with the novel idea for the "hot dog bun" way back in 2008. I'm sure Oscar Mayer and Mr. Nathan's respective attorneys have advised not to let the threat of lawsuits deter them from the redesign process, since, of course, subsequent remedial measures are not generally admissible. Now if the redesign can also eliminate the risk of cancer, plaintiffs lawyers may need to start looking for other appetizing defendants.

February 22, 2010

1) Question: Yes, I am one of seven people on this planet that know all three secrets as to how to make English muffins that have "nooks and crannies." So what? Does that mean I can't go work for some other English muffin company? I'm sick of this place!

Answer: Looks that way, sorry Muffin Man! (The Legal Intelligencer, Secret Muffin Recipe Prevents Executive From Switching Jobs)

2) Question: The guy next to me on this plane is STINKING! I mean over-the-top, flat-out brutal body odor. Is there anything I can do? I may not survive this!

Answer: Are you on Jazz Air? If so, you may be in luck, as they will not hesitate to "deplane" an extremely smelly passenger. (CNN, Smelly Passenger Kicked Off Flight (via Consumerist)

3) Question: I just won thousands of dollars' worth of chips playing slots at the casino. The only complication is that I was previously banned for life from this casino, so they won't let me cash out. How can I get paid here?

Answer: You can try to sue the casino, but at least one guy already lost on a similar "conversion/contract" claim. Maybe unjust enrichment? (Meeting the Sin Laws, Ding Ding Ding: We Have a Loser)

Even if robbers don't hit your house as a result of your desire to repeatedly announce your location to the world using Foursquare or Brightkite, insurance companies may soon hit your wallet. A post on Slaw.ca yesterday notes that, according to an article in the Telegraph, homeowners who use such gelolocation services may see their insurance premiums rise by up to 10 percent to reflect the supposed "inherent risk" in such conduct.

Darren Black, the head of home insurance at a price comparison service called Confused.com told the Telegraph that he wouldn’t be surprised if the growth of social media and geolocation services led to premium increases of up to 10 percent for people who use these sites. "Criminals are becoming increasingly sophisticated in their information gathering, even using Google Earth and Streetview to plan their burglaries with military precision. Insurance providers are starting to take this into account when they are assessing claims and we may in future see insurers declining claims if they believe the customer was negligent,” he stated.

Confused.com suggests that users of social networking Web sites should "turn off location-based services on Twitter and Facebook unless you absolutely need to use them." I don't know that this is necessary, but I do have a question for users of services like Foursquare: Why? What value/joy/benefit do you get out of announcing your location? Could a Foursquare fan please explain to the uninitiated what you like about it?

To the woman with the short blond hair and "one tooth," who was wearing a black jacket and red gloves with her "stomach hanging out:" Girl Scout Troop 1204 knows what you did.

According to the girls of Troop 1204, a woman matching this description bought five boxes of cookies from them at the Albertsons grocery store in Victorville, Calif., using a fake $100 bill. Troop leader Denielle Knight is understandably troubled by the incident and the troop's victimization, but CBS reports that the Troop remains optimistic, with their "heads up and confident."

"Detectives" are reportedly now on the case, as well, and there is the possibility that surveillance video at the grocery store may help detectives apprehend the one-toothed, out-of-shape counterfeiter. If police sketch artists ever release a portrait of the alleged perpetrator, I will surely update this post with the sketch to aid in their effort. In the meantime, here is a video report:

February 19, 2010

Meet "Law School Wife." Since before classes started last August, she's been doing young ladies the world over a favor, and letting them know how trying and emotionally draining it can be to be married to a first-year law student. Uh, does somebody want to tell her that, if all goes according to plan, she will, in a matter of years, find herself married to an actual lawyer?

It's a marginally interesting read, though I could have lived without the detailed view of her endometrial polyps. And, for a blog that was supposed to be anonymous, there sure are a lot of pictures, some of which are even a bit naughty. (OK, I must give LSW credit for realizing last month that anonymity has essentially gone out the window.) As the blog has continued over the course of the academic year, it seems to have gone off on a few tangents, and become less and less about the law school-related aspects of LSW's life, but, man, can you blame her?

I'll be adding LSW to my ever-growing list of blogs to check out at least every once-in-a-while. Hoping she'll keep us posted on her husband's firm recruiting adventures, and other law-related hilarity. And on a personal note, LSW, since you've outed yourself as an Austinite, if you get really lonely during finals ... Kidding. Have a great weekend everyone.

The French take their wine snobbery very seriously. Twelve people were convicted by a French court for participation in a scheme to pass off some sort of fermented, grape-derived liquid as Pinot Noir from the Languedoc-Rousillon region of France. One victim of the crime was wine giant E.&J. Gallo, and thus, by extension, U.S. wine drinkers as a whole. Gallo purchased a bunch of this wine for its 2006 Red Bicyclette brand Pinot, but, as it turns out, it was made from less expensive grapes. Specifically, Syrah and Merlot. Wonder if Paul Giamatti would have been fooled?

The alleged kingpin of the fraud seems to have taken offense, in a very European, and very lawyer-like fashion. Claude Courset, of the Ducasse wine trading firm, says his wines are "irreproachable," his company tried real hard to comply with the Gallo contract and confusing regulations and he reserves the right to appeal. Apparently, the defendants argued that Pinot Noir was not really a varietal, but rather a combination of taste characteristics. They also tried the "no harm, no foul" defense, contending that since no U.S. consumers complained, it was no big deal. I mean, come on, Votre Honneur, these people drink wine that comes in boxes, fer chrissakes. And they've been drinking antifreeze for years.

Wine fraud allegations certainly are nothing new. Some poor sap allegedly bought counterfeit bottles at $100,000 a pop a few years back, convinced they once belonged to Thomas Jefferson. But when we're talking about large-scale, low-value per bottle, rather than claims on individual bottles of obscenely expensive old stuff, zapping the wine with particle accelerator beams isn't going to be of any aid in uncovering further hijinks. Rather, we will have to rely on the real-life Hercule Poirots of the DGCCRF and its counterparts in other vino-producing nations to protect our palates from unwitting exposure to the classic Boone's Farm hangover.

Proving once again that stupidity is not a crime, police and prosecutors in Breckenridge, Colo., have decided not to file charges against any of the esteemed members of the Texas Christian University Kappa Sigma chapter who, while on an obviously successful bonding trip to the mountains, decided to brand the buttocks of one of their brothers with a red hot coat hanger.

The student, Chance Carter, the great-grandson of publishing magnate Amon G. Carter, had hired attorney Jerry Loftin, who went spouting off about charging many people for their roles in the alleged assault and cover-up, despite the fact that Carter admitted asking to be branded. But authorities have determined that Carter was a "willing participant" in the branding incident. Perhaps not the best decision, considering that it ended with third degree burns requiring plastic surgery to repair.

Maybe Loftin can concoct some civil claim based on failure to deliver the promised results, because I can't make out a Kappa or a Sigma anywhere. Can you?

One of the great things about this new job of mine here at Legal Blog Watch is that it has turned me into the poster child for the old saying, "You learn something new every day." Or at least the days Bruce isn't the one doing the learning.

I came across this post on Bob Battle's Virginia DUI Lawyer blog, describing and embedding a "hilarious video showing Hitler establishing DUI roadblocks," and giving credit for the video to Seattle DUI defense attorneys at the Cowan Kirk Gaston firm. Here's the video:

Watching the video, I had a few thoughts. Was it really "hilarious?" Is it crossing a line of some kind for a law firm to analogize the police setting up DUI roadblocks to Nazism? Could the video be effective in generating business (like the "My name is David. I'm here to help you" videos)? And, yes, did these lawyers really go out and spend money to hire actors to film this thing?

See, I don't speak a lick of German and have apparently been living under a rock for the past several years. The video begins with opening credits naming one of the DUI attorneys as producer and another as director. But the footage is actually a scene from "Der Untergang (The Downfall)," a 2004 German movie that was nominated for a Best Foreign Film Oscar. Taking this scene, or others from the movie, and adding funny subtitles is something the cool kids have been doing for years. How did I miss this? Even The New York Times knew about it. The topics to which the Hitler rant has been adapted run the gamut from college football to inability to find Waldo to being banned from playing Xbox Live. There's even a Hitler rant video about the popularity of Hitler rant videos.

So, the answer to my question about the lawyers going out and hiring actors to make their video is "No, you moron." This still leaves the issue of whether it's an appropriate lawyer advertisement. It doesn't seem to violate any of the Washington rules on lawyer advertising, but as we all know, just because something may not be illegal does not make it a good idea.

What about copyright issues? Though it has been reported that some of the videos have been taken down because of infringement claims, the director of the original film thinks its use as an Internet meme is not only fair, but fitting.

My lesson for the day: I need to spend more time playing around on the Internet.

February 18, 2010

1) Question: I was at a parade and bummed a light from somebody to light up my cigarette. Now the police are trying to arrest me. What's up with that?

Answer: Sounds unreasonable, but wait a minute ... is that you in the black jacket in the video below? (Jonathan Turley, Video: Man Arrested For Lighting Cigarette on Olympic Torch)

2) Question: The coffee at this restaurant is terrible! I'm going to complain to the store manager, the corporate office and even the owner. They'll want to know this, right?

3) Question: I'm going nuts in this prison. What can I do to reduce my sentence?

Tablet Legal: On Wednesday, Jan. 27, Apple launched its new iPad. Just three days later, Portland, Oregon, business attorney Josh Barrett followed by launching Tablet Legal. The site, he wrote, will "discuss lawyers using the iPad, applications for the iPad and other developments specific to the iPad in the legal profession. In the next few months until the iPad is released, I’ll discuss how existing legal apps might change for the iPad platform and what new apps may develop." Already, Barrett has written about topics such as "Bar Review on your iPad: BarMax" and "iPad and Storytelling for Lawyers" (at trial, in client pitches, and so on). Good stuff.

Legal Crisis Strategies: Via a post on Bob Ambrogi's LawSites, I learned of this intriguing new blog that launched earlier this week. LCS is written by a group of lawyers from McDermott Will & Emery’s Legal Crisis Management group and will provide "advice on preventing, managing and ending a crisis while protecting a company’s reputation and limiting its legal liability." Its first post, entitled "The Dreaded Phone Call...", addresses the following interesting scenario:

I'll be following both of these blogs going forward. Welcome to the blawgosphere!

The Tactical IP Blog observes in this post that the tragic death of 21-year-old Georgian luger, Nodar Kumaritashvili, in a crash that occurred on the opening day of the 2010 Winter Olympics has oddly spawned an intellectual property issue.

Jason Fischer writes that, following the crash, the International Olympic Committee took numerous actions including modifying the luge track and conducting an investigation. It also decided to try to shut down the video clips of Kumaritashvili's crash that were spreading quickly on the Internet by asserting that people were violating the IOC's copyright in that clip. Fischer says the IOC has invoked the Digital Millennium Copyright Act in an effort to have this video removed from the Web.

Fischer explains that while it may not have been the IOC's intention, its demand letters are "deplorable" stating, as a legal matter, that “you have to pay if you want to show our Faces of Death video.”

Most homeowners are familiar with the practice of putting certain lights in their home on a timer. The idea is that when they are on vacation or out of town, the lights will go on and off per the timer, hopefully giving any would-be robbers the impression that the house is still occupied rather than temporarily vacant.

That makes sense. But would you ever do the opposite? Would you intentionally send a message out to the burglars of the world that you are not home and, further, tell them exactly where you were and when (i.e., "Attention criminal underworld: I'm at the beach right now, 1,000 miles from my house.")?

You may not think you would do such a thing, but a new Web site that became a hot topic in the blogosphere yesterday has set out to demonstrate that hundreds of thousands of people are doing this everyday. As discussed in this post on TechCrunch, the provocatively named "Please Rob Me" has launched with the mission of raising awareness of a possible downside of using the new geolocation services such as Foursquare, Brightkite, Google Buzz, etc. Those of you on Twitter have no doubt seen people using these services to announce things like, "I'm at the Grand Canyon" or "I'm the new mayor of the Reston Sport and Health Club."

Please Rob Me highlights the flip-side of these services: If you are at the Grand Canyon then you aren't at home. Its homepage states the site is "Listing all those empty homes out there," and features a real-time feed of "opportunities" (for robbers) in the form of people who have announced their locations through one of the geolocation services. See a screenshot below:

In a section of the Please Rob Me site called "Why," PRM explains that the site was launched to highlight the danger of "publicly telling people where you are. This is because it leaves one place you're definitely not... home."

So the next time you feel compelled to tweet that you are at the top of Mount Rainier, remember that, as
Please Rob Me reminds us, you are also telling the world where you are not.

February 17, 2010

The body that decides just how many free fancy dinners 2Ls at elite schools are entitled to each week is under attack. Peter Kalis, chair of K&L Gates, penned an op-ed in The National Law Journal denouncing the National Association for Law Placement as perpetuating a recruiting system that is not in the interests of students, firms or schools. Other than that, it's great.

Kalis one-ups his colleagues who came out against the recent proposal to rejigger the rules a bit, instead advocating a Vegas-style demolition. From the artifice of 20-minute on-campus interviews to the planning nightmares for firms that resulted when work dried up as a result of the Great Recession, Kalis has had enough, and points a finger squarely at the newly rebranded "Association for Legal Career Professionals" (Raise your hand if you still miss the Association of Trial Lawyers of America!).

Adam Smith, Esq. seems to be on board as well. Could a free-market approach to hiring lawyers work? Would it be utter chaos if some firms continued to abide by NALP guidelines while others made offers when and where they saw fit? Does any BigLaw firm want to take me out for steaks and a $450 bottle of Cabernet? Thoughts?

When will celebrities learn that their actions have consequences that extend far beyond their own personal well-being? The Los Angeles Times is reporting today that the felony menacing charges brought last week against Charlie Sheen -- who apparently is not a member of the Brat Pack -- might impact the continued viability of the inexplicably highest rated sitcom on TV, "Two and A Half Men."

Because, you know, it's hard to keep cranking out episodes when your star is serving three years for attacking his wife. A laugh track only goes so far. The show is apparently slated to continue through at least the 2011-2012 season, and with Sheen's potential placement on the I.L. (Incarcerated List) looming, CBS and Warner Brothers might not be able to sell enough ads to cover his $825,000 per episode salary.

Sheen's wife, Brooke Mueller, has said she wants the charges dropped, because what's a knife to the throat when you're so in love? Nothing that checking into rehab can't cure, right? Still, the Times quotes Loyola Law Professor Laurie Levenson as saying lack of victim cooperation might not matter in the "Post-OJ world," especially when the prosecution has a 911 tape on which Mueller stated that she fears for her life. Time to start gauging interest in that Monday night knitting club you've been thinking about for so long.

In other unstable celebrity criminal news, Rip Torn's court date on burglary and weapons charges resulting from his drunken Connecticut bank break-in was pushed back from today until March 9.

Doctors, Dentists and Vets Announce Intent to Free-Ride on the Hard Work of Lawyers

Thus, it comes as no surprise that the American Medical Association, along with its Dental, Veterinary and Osteopathic counterparts, sent a "me too" letter to the Federal Trade Commission, after the U.S. District Court for the District of Columbia held the Commission's "Red Flag Rules," requiring businesses that accept deferred payment on behalf of clients to adopt procedures to prevent identity theft, inapplicable to those engaged in the business practice of law. The decision (PDF), in a case brought by the American Bar Association -- which I'm sure has been receiving thank-you notes from grateful solo practitioners who now need not spend a lot of time drafting identity theft detection protocols -- is worded fairly strongly in favor of the plaintiffs. Congress just plain didn't grant the FTC the authority to regulate lawyers as "creditors," says the court.

For purposes of billing, the LHCPs (Licensed Health Care Professionals; only where it's about cost-sharing can you get the neurosurgeons to admit that the guys who clip Fido's toenails are in the same league) say they're a lot like lawyers, and urge the FTC to come right out and say it doesn't believe the Red Flag Rules should be applied to them. Of course, if the Commission wishes to discuss the issue further, it is encouraged to contact this guy, who, as far as I can tell from his Sidley bio, has never performed open heart surgery, or even assisted in the birth of a breached calf.

Well this isn't your average race to the courthouse. Judge Craig Estlinbaum, on the Adjunct Law Prof Blog, brings us the news that the state of Louisiana decided to go on the offensive in response to a challenge to its lethal injection procedures. A serious offensive. The state sued each and every one of the 84 inmates currently on death row, seeking a declaratory judgment that its method of executing the condemned is just dandy, thank you very much.

The suit is described in greater detail on Solitary Watch, and, like most things you read about on the Internet, raises a few questions. Apparently, the state named the 84 inmates in "counterclaims," as part of a suit instituted by one of them, Nathaniel Code, who challenged the lethal injection protocol as a violation of Louisiana's Administrative Procedure Act. By casting the net wide enough to capture 83 prisoners who presumably were just minding their own business training for the upcoming Spring prison rodeo (I have been to the October version, and, think what you will about the concept, I must say Warden Cain puts on a hell of a show), the state seeks to have the court "formally declare, once and for all" that the lethal injection procedure is not subject to the state APA. The Corrections Department's attorney referred to it as "sort of an internal management decision." Yes, the Corrections Department manages the internal organs of its inmates in such a manner as to ensure they stop working.

Not surprisingly, the Louisiana District Attorneys Association thinks this suit is a great idea, and even gives the media a little nudge, linking to a Huffington Post story (which essentially does no more than link to the Solitary Watch post) it refers to as "predictably negative."

The comments are open for the larger capital punishment debate, without question. But, Louisiana lawyers, can y'all help me out now, y'hear, with a couple of fundamental civil procedure questions? Is it a foregone conclusion that it's proper to name all 84 inmates as counterclaim defendants in this suit? Especially in light of the fact that the plaintiff's claims were dismissed over a month before the counterclaims were filed? I understand the governor's instinct to strike first so as to prevent all those anti-death penalty lawyers and activists from clogging up the phone lines Callin' Baton Rouge, but it seems a bit strange to someone who's filed most of his papers in county courts, rather than parish courts.

February 16, 2010

1) Question: So I'm in the maternity ward nursing my newborn baby when the nurse pops in and says sorry, they'd given me the wrong newborn baby to nurse! Everything is straight now but, hey, I didn't sign up to nurse somebody else's baby. Do I have a case here?

Answer: Keep an eye on the Spiegel case in Chicago. Damages could be pretty tough, though. (Blogher, Damaged by Accidentally Breastfeeding Someone Else's Baby? Seriously??)

2) Question: The mint that I manage for my country just cranked out thousands of coins that misspell the name of our country. Is this going to be a problem?

Answer: It could very well be -- for you. When this happened in Chile (which is reportedly not supposed to be spelled "C-H-I-I-E"), the manager of the mint was dismissed. On the bright side, if you can grab a few of the misspelled coins on your way out, they may turn out to be collectors' items.(Clusterstock, Now This Is the Worst Currency Error Ever)

3) Question: I see a huge bronze bust of Colonel Sanders in this pawn shop. They want $200 for it. Should I go for it?

Answer: Are you a KFC fan? If so, it may be worth the investment because the KFC in Berea, Ky., has offered $500 in free chicken to the person who returns the Colonel's stolen bust to the restaurant. (UPI, Col. Sanders Statue Stolen From KFC)

The Consumerist had an interesting post last week on the laws and ethics that govern the sale of houses that have had a murder or suicide occur in them. The post discusses "Sue from Massachusetts," a woman who closed on the purchase of a house, and learned two days later from a neighbor that the previous owner had committed suicide in the house. Sue said she would not have bought the house had she known this. The real estate agents claimed that they weren't aware of the suicide, and refused to "rectify" the situation.

Consumerist notes that Massachusetts law does not appear to require the disclosure of such information. Chapter 93, Section 114 of the Mass General Laws states:

This brings up a couple of questions for me. First, does anyone know if other states have laws requiring disclosure of such information? I bet there are some laws out there that do require disclosure.

Second, what do you think of this? As the Consumerist put it, "would you buy a house if you knew a murder or suicide had taken place there?" Please weigh in.

P.S. -- I'm usually a pretty rational person but I think I'd still say, "No thanks!"

The latest proof that I do not get out enough comes via this post yesterday on the Against Monopoly blog, which discusses an entire movement within the law that I did not know existed: the "copyright abolitionists."

The Against Monopoly post links to the work of Nina Paley, an animator who is also the "artist-in-residence" at QuestionCopyright.org and a self-professed copyright abolitionist. In this post on QuestionCopyright.org, Paley argues that while all creative work is derivative, copyright control nonetheless extends not just to verbatim copies, but to "derivative works." She says that this has led to censorship on a grand scale, such as when "the seminal German silent film 'Nosferatu' was deemed a derivative work of 'Dracula' and courts ordered all copies destroyed."

Paley argues that "the whole history of human culture evolves through copying, making tiny transformations (sometimes called 'errors') with each replication. Copying is the engine of cultural progress. It is not 'stealing.'" To demonstrate this point, Paley has created the interesting video below (and the "Jesus Loop" to the right) showing how sculptures have evolved through the years by building on what came before:

Paley adds that "copyright maximalists" (the group that I now understand to be the arch-enemy of the copyright abolitionists) are "working for the day when all works are copyrighted, and all culture is property. No longer shall anyone be able to build on works from the past, be it 5 minutes or 5 millennia ago."

For those who are interested in learning more about the arguments against copyright restrictions, QuestionCopyright.org published another excellent post this week by Danny Colligan entitled "What We Lose When We Embrace Copyright," which analyzes and explains the basic issues very well.

February 12, 2010

As you are all no doubt aware, Sunday is Valentine's Day. Bitter Lawyer beat us to the interview with playmate/divorce lawyer Corri Fetman, who recently became embroiled in a trademark suit with Hef et al. over the title of an advice column she used to write for Playboy magazine. So, the next best thing, I figured, would be to have a little fun with the Supreme Court. I've already sent out my cards to the Justices, so let's take a look back at some of the cases decided by the Court with holiday-themed captions. Vote for your favorite of the following five, or nominate your own in the comments.

Don't forget to vote in comments, below. Have a great weekend, and a happy Valentine's Day. I'll leave the Presidents' Day commentary for Bruce next week!

Jay Dalton, former general counsel of oil and gas contractor Wilbros Group, was recognized by the SEC as a key figure in the events that led up to the sentencing late last month of two former Wilbros executives to prison time for violations of the Foreign Corrupt Practices Act. No, the good kind of key figure.

According to this article by Amy Miller in Corporate Counsel, Dalton became suspicious of certain payments being made to an alleged consultant in connection with bids for a $400 million Nigerian pipeline project. He ordered that no further payments be made to this "consultant" and, when a questionable consulting contract was entered into with a new entity, he prohibited payments under that contract and started a thorough FCPA review, which exposed the scheme to bribe Nigerian officials.

Good on you, Jay Dalton! Whether Hollywood would be as interested in a story about a do-gooder GC as they apparently were in one focused on a GC prone to profusely sweating in public restrooms remains to be seen. But it's got to be nice to have the SEC pat you on the back while they're tossing your former colleagues in jail.

For those of you interested in owning your own "Super Lawyer" sculpture, as pictured above, they are available for sale here and can be personalized! The sample seems to have been crafted for Michael Steele before he grew out the mustache.

The list of lawsuits being filed in the wake of a massive cured meats recall continues to get longer thanks to Marler Clark, a seven-lawyer Seattle firm dedicated exclusively to the niche practice of food poisoning law. The firm's managing partner, Bill Marler, has achieved undisputed media darling status over the years, appearing frequently on CNN and in the editorial pages, becoming part of the regular rotation on the Wall Street Journal Law Blog, and, yes, even getting a little face time here on Legal Blog Watch.

Marler and the firm make for a good story, though probably one you wouldn't want to discuss in detail at the dinner table. Marler's blog, not to be confused with his firm's Food Poison Journal -- "Dear Diary: Today I made some real progress with the green beans. If all goes well, I'm thinking I can get up in that can by the weekend. Keeping my spores crossed! Love, Botulism" -- is a real wealth of information, and opinion, about food-related issues. It's nice to see an attorney who has successfully built a career around issues he so clearly is passionate about.

February 11, 2010

1) Question: I'm supposed to come up with a new logo for my high school's sports teams. We are the Rams. I found a cool-looking ram on the Internet. Do you think anyone would care if I just removed the border around it and used it for our high school?

2) Question: I got my girlfriend a dozen roses. She loved them, thought they smelled great and was just euphoric. I mean really, really euphoric. Can roses have this kind of effect on a woman?

Answer: Are you in Holland? Because Dutch customs officials just intercepted a shipment of cocaine hidden among 20,000 long-stem roses. Maybe there were some strays? (AP, Just for Valentine's Day: Cocaine Roses)

3) Question: There is some kind of plea bargaining session going on at the table next to me in the courthouse. I'm pretty sure the parties just agreed that the petit assault case against the defendant would be dismissed if the victim could slap him once in the face. Is this "slap-it-out"-type of agreement legit?

Last week, Scott Greenfield wrote on his Simple Justice blog about a panel discussion that almost occurred at the Avvocating conference, put on by lawyer listings site Avvo, but never did. Greenfield said the panel, which was to be comprised of Mark Bennett, Brian Tannebaum, Jonathan Stein and himself, was called "4 Angry Lawyers" and it was going to "expose the ugly, unethical and immoral underbelly of online marketing and social media." Specifically, these four were slated to "sound off on misinformed SEO consultants, astroturfing, blog aggregators, Twitter abusers, vendors who overcharge for blogs and more."

Greenfield said the panel never happened, however, because Avvo wouldn't pay to fly the four of them to Seattle, "and there was no chance we were paying our own way." So the idea died. Until now.

This proposed panel discussion seemed interesting to me, so I rounded up as many of the Angry Lawyers as I could for an online version of the panel. I was able to get three of the four -- Greenfield, Bennett and Tannebaum -- to meet up online today, and carry on the conversation they didn't have in Seattle. You can watch and listen to our discussion in the video below:

In the D.C.-area where I'm located, everything -- politics; the suckitude of the Redskins, Wizards and Nationals; you name it -- has taken a back seat to the record three feet of snow that the Snowpocalypse of 2010 has inflicted upon our city this week. As such, an article on Tuesday in The Washington Post did a great job of highlighting perhaps the most contentious issue of the week:

"If you dig your car out from its frozen tomb, do you then own that parking spot until the sun melts open the rest of the curbside space?"

The short answer is that here in D.C., where the winters are usually mild, we don't really have a definitive law, practice or "snow etiquette" to govern the situation. Cold-weather cities like Boston, however, have gone so far as to enact laws on the subject. The Post reports that in Boston, "a city law says that if you dig out your car in a snow emergency, a lawn chair or trash can renders the spot yours for at least two days while you're away at work."

In Chicago, the article adds, citizens cannot legally block a parking spot but even city officials acknowledge an "informal rule of dibs" in favor of the person who has dug out the spot. According to the Post, the "dibs" system appears to have prevailed this week in D.C., with some Boston-style markers such as "lawn chairs, recycling bins, orange cones, a mattress, even two bar stools with a Swiffer on top" being used to try to save cleared spots.

As anyone who has ever dug a car out of three feet of snow will attest, the stakes are high when it comes to protecting a spot. The Post reports that after huge storms in 1996 and 2000, people were killed in New York and Philadelphia, respectively, following disputes over cleared spots. And in South Boston, assaults, slashed tires and other cases of vandalism have resulted after people were perceived to have broken the parking spot code.

As the rock band The White Stripes once observed, "I said it once before but it bears repeating now:" Don't rip off other people's music.

I challenge anyone who has listened to rock music in the past decade to listen to the guitar riff and drums in the Air Force Reserve Super Bowl ad below and not instantly recognize it as having originated elsewhere.

Sound familiar? The White Stripes thinks so, too. On Monday, the band wrote on its Web site that:

For the three of you out there who did not recognize the famous guitar riff in The White Stripes' "Fell in Love With a Girl," listen to the song below:

In response, the Air Force Reserve said that, via its advertising agency, it "hired Fast Forward Music of Salt Lake City to score original music for its commercial. There was never any intention to utilize any existing music or to sound like any music by the band White Stripes or any other musical performer. Any similarity or likeness to any other music is completely unintentional."

So the finger was now pointed at Fast Forward Music, which in turn pointed to a composer named Kem Kraft whom it hired to create the music. Kraft told The New York Times that the similarities between his composition and the band's song were "coincidental. I'm sorry it sounds the same. It wasn't my intention, truly, truly, truly.”

Mike Lee, the owner of Fast Forward Productions, said that he and Kraft went back and forth on the song several times, changing things. He told the Times that “I wasn't familiar with the White Stripes song. I've heard of the White Stripes but I'm not a listener of theirs. I had no idea there was similarity until after the fact.”

February 10, 2010

A friend wondered aloud last night over a beer whether Judge Wapner, of "People's Court" (and, as such, "Rain Man") fame, was still alive, and if so, what he was up to. I thought it a question worthy of investigation. So, yes, according to Wikipedia, Judge Wapner is still kicking at age 90. He has a star on the Hollywood Walk of Fame and, wait for it . . .

... his own root beer. With the weather being what it is today, I heartily endorse the idea of sitting back on your couch, lighting a fire and enjoying an icy cold Wapner, something that, unlike the law, you can safely "take into your own hands."

Professor James Levy reports on the Legal Writing Prof Blog that he's still waiting for a promised password granting him free access to the new and improved Westlaw, officially known as WestlawNext, but still called "Project Cobalt" by some who presumably miss the halcyon days of double secret multi-billion dollar M&A due diligence. My predecessor Bob Ambrogi thoroughly reviewed Next on his Law Sites blog, pre-launch.

Levy's colleague Joe Hodnicki, on the Law Librarian Blog, raises the possibility that this could be, at least in part, the result of fears that the non-paying users will go sharing their passwords willy-nilly with people who should be paying for access. Hodnicki, the director of the Butler County Law Library in Hamilton, Ohio, for one, seems willing to promise not to do so. One would think that West would have the technology in place to detect suspected password sharing and Hodnicki's point, echoed by Betsy McKenzie, director of the Suffolk University Law School Library, is that library and academic users are a key "market" for this kind of technology. Free licenses might not bring in revenue directly, but getting the product in circulation, getting the broader legal community familiar with it, and starting to generate buzz based on actual use, rather than beta tests and rumors, is crucial to Next's success. What's up Westlaw? Was there a delay in delivery of the next batch of engraved iPods?

Hodnicki also opines that LexisNexis for Microsoft Office, also recently debuted, is a pretty bland amuse bouche for the "New Lexis" now apparently pushed back until 2011. Since I'm on the subject of new legal research tools, I should disclose that, until last September, I was employed by Bloomberg, and was involved in the development of their Bloomberg Law product, which Bob Ambrogi recently reviewed in Law Technology News (registration required).

Over at Solo Practice University, Susan Cartier Liebel says "too little, too late" to the American Bar Association with respect to its decision to reduce annual dues for solos and other not-so-highly-compensated attorneys. Simply put, Liebel says, the organization doesn't offer benefits to the stand-alone lawyer that would justify even the half-dues agreed to at the midyear meeting. According to Liebel, and commenters on her post, the ABA, for many years, has been consciously ignoring the needs of solos and small firms, to focus instead on such things as law school accreditation. And, apparently, the new U.S. News plan to rank law firms.

Suggestions from the comments include allowing attorneys to join one of the organization's sections, without membership in the larger ABA. The reduced dues seem to reflect a desire on the ABA's part to be more inclusive. Will it work? What value can bar associations and other professional organizations provide to lawyers in various practice settings?

Disclosure: I have been a member of the ABA at various points in my legal career. Namely, when my firm was paying for it. Res ipsa loquitur.

We can only hope that "COPS: Naughty Grannies 4" was filming when 86-year-old Jeanne Marie Owens-Libby was arrested at her home in Ft. Myers, Fla., for failure to appear on a traffic warrant after leaving the scene of an accident. Grandma Jeanne apparently wasn't feeling well, and got tangled in recorded messages and automated systems when she tried to call the courthouse to say she couldn't make her court date. Who could blame her for getting fed up and just saying, "F*@k it, I'm 86, I don't have time for this crap?"

While nobody loves old lady mugshots more than me, the real kicker here is the use of this story by the Florida DUI Traffic Ticket Lawyer Blog, maintained by Ft. Myers firm Finebloom & Haenel. Click on some of those links in the blog posting. Fantastic use of the Web by lawyers. My favorite: the link to fightyourftmyersarrest.com. That pop-up lawyer will haunt my dreams, man.

Exploring the firm's Web site further is, well, fun. David Haenel (his name is David, and he's here to help you) seems to have recorded a three-minute video discussing just about every vehicle-related offense, giving a fair bit of information on the potential penalties under Florida law and, of course, suggesting that viewers retain his firm if charged. I've gotta say, he seems to know a lot about the Doppler principle and tuning forks:

If Ms. Owens-Libby had just hired Finebloom and Haenel, she probably wouldn't have had to show up in court at all. You're never too old to learn a valuable lesson, and I'm sure Jeanne will call Mr. Haenel when, after her license is suspended, she gets caught driving anyway, because, f*@k it, she's 86.

Both Above the Law and the Wall Street Journal Law Blog reported yesterday on the long awaited details of the so-called "hybrid" compensation system announced by BigLaw powerhouse Bingham McCutchen (which apparently lost the crossbar from its "A" in a post-announcement celebration). Elie Mystal's post on ATL reprints the Bingham memo in its entirety, so I don't have to. The firm has established two tracks for base pay, which is the lockstep aspect of the hybrid, one for associates billing 1,900 hours, and another for those who billed between 1,500 and 1,900.

All fine and good. But what of the fact that the difference in salary between an associate who hit the higher number and one who didn't is relatively minor, all things considered? Let's take a "Class IV" associate (presumably referring to a fourth-year) as an example, because the difference in salary is greatest at that level. A fourth-year who billed 1,500 hours gets a base salary of $185,000, whereas one who billed 1,900 starts at $210,000. Doing a little quick math (and triple-checking myself using two different calculators), our 1,500-hour associate comes out with 88 percent of the 1,900-hour associate's salary for doing 79 percent of the "work." "Work" in quotes, because far be it from me to suggest that billable hours is a perfect proxy for amount of actual work done.

Mathematically speaking, this doesn't seem unreasonable. But any BigLaw veteran will tell you that the difference between a 1,900-hour year and a 1,500-hour year -- or, taking a more realistic example, a 2,200-hour year and an 1,800-hour year -- is night and day. Associate commiseration sessions are often peppered with statements to the effect that, "I'd gladly take a pay cut if I could only wear jeans to work work semi-human hours." Traditionally, this wasn't an option. Now, it seems it might be.

The Bingham memo addresses only 2010 compensation, and, of course, the "merit-based" bonus calculation is still sort of a black box, though hours are listed as one factor. When the new system was announced back in October, though, it sounded like it was here to stay. Though the target numbers may change, is it a good idea for BigLaw to sanction a path for those who don't necessarily aspire to being the highest billers in their classes?

February 09, 2010

1) Question: Please settle this quickly-escalating dispute between me and my fiancée. She calls it a "sleazy lap dance at a strip club." I call it "humanitarian aid." Who is right?

Answer: Did the event in question occur at "Marilyn's on Monroe" in Toledo, Ohio? Then it could well have been part of "Lap Dances for Haiti," and you are correct. If it was anywhere else in the world, she's probably right. (CBS News, "Lap Dances for Haiti" Raises $1K in Ohio)

2) Question: The police pulled me over because they thought my car was stolen (it wasn't). An officer made me exit the vehicle while he pointed his gun at me. Does this mean I cannot finish drinking my beer?

3) Question: Just as the opening bars of Frank Sinatra's "My Way" started to play and I was preparing to rock the house with some fine karaoke, the club owner tackled me and turned off the music. What the...?! Do I have a case against him?

Here's one more reason for law bloggers to keep the faith: If you can crank out great content for over half a decade and grow your readership to a massive number of subscribers, you might be acquired by a public company. And that is exactly what just happened to Michelle Leder and her consistently excellent footnoted.org blog.

She might not be a lawyer, but her fondness for fine print certainly qualifies her as an honorary blawger. As Michelle notes in this post , she has been writing about SEC filings on her blog for the past 6 1/2 years. In that time, subscribers to her blog's feed have risen to over 10,800 according to her homepage. Today, she announced that Morningstar has acquired footnoted.org. Michelle explained that it takes a lot of effort to find some of the pearls in SEC filings that she and her team have uncovered over the years -- "things like Freddie Mac’s lush employment agreement with its new CFO or Chesapeake Energy’s $12.1 million map collection" -- and that Morningstar’s global reach and the resources that they’ve committed to growing footnoted will mean that she can hire additional staff to grow the publication.

Michelle also reassured her readers that content-wise, few things will change and she'll continue to run things from "footnoted world headquarters in Peekskill, N.Y."

From my "about damn time" file comes this report from the Huffington Post about a new lawsuit filed against credit-reporting agency Experian over advertisements for its FreeCreditReport.com service.

The plaintiff, a college student named Erica Possin, had seen the catchy ads for FreeCreditReport.com and used it to check her credit before buying a new car. She received her "free" credit report but, just like me, also failed to notice that this "free" report came with a $14.95 monthly credit monitoring service. Also just like me, Possin noticed a few months later that she was being charged a monthly fee that she did not realize she had agreed to. When I complained, Experian refunded my money and canceled my "membership" in the monitoring service.

Possin is now leading a putative class of "tens of thousands of consumers deceived by Experian's FreeCreditReport.com to the tune of millions of fraudulently obtained profits." Her attorney, John Balestriere, says that "FreeCreditReport.com tells people they will get something for free, and you do, but you have to pay for something else, and there's not sufficient notice." The complaint alleges that nobody goes to FreeCreditReport.com for anything but a free credit report. In other words, the HuffPo reports, "nobody goes there looking for the 'Triple Advantage' credit monitoring service, which is mentioned in a hushed, rushed tone at the end of the ads as a condition of a previous FTC settlement."

Last week, an Experian spokeswoman defended the ads, stating that "FreeCreditReport.com is a trusted partner for millions of Americans who want more than a free credit report." We make it very clear to consumers visiting the site that the free credit report and score is part of enrollment in the Triple Advantage Credit Monitoring and that if they don't cancel their membership within the seven-day trial period, they will be billed monthly."

After fifty 'leven recent examples of trials being upended by jurors improperly using their cell phones, computers, Twitter or other communications technologies during jury service, a committee of the Judicial Conference of the United States has had enough. The Blog of the Legal Times' Marcia Coyle reports in this post that the Committee on Court Administration and Case Management has endorsed a set of model jury instructions for district judges to help deter jurors from engaging in such mischief.

In a memorandum to district court judges, Judge Julie Robinson, the committee chair, wrote that the model instructions were developed to address the increasing incidence of jurors using such technology to conduct research on the Internet or communicate with others about cases, which has "resulted in mistrials, exclusion of jurors, and imposition of fines.” There is still no uniform standard for jurors in state trials, the BLT reports.

The model instructions include the following key points:

I think that a big part of the "Twittering Juror" problem (and its various sister problems) is that social media is so new that jurors are not clear that using technology in the ways described above is off-limits. This model instruction is direct enough that it should ease that problem considerably.

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February 26, 2010