Law Blog

In an interview, the great Bruce Lee once expounded upon the amazing qualities of water.  He viewed its properties as a guiding philosophy to be followed by martial artists looking to improve their fighting abilities.  And he was right, water is pretty impressive.  When it’s a torrent it can tear down a forest, as a stream it can gradually split a mountain, and at the same time we drink it to keep hydrated and stay alive.  But apparently if you drink too much of it you can die from something called water intoxication, which is exactly what happened to a woman 2 years ago.  Remember that case?

Well, the family of the deceased wife looking to win a Nintendo Wii for her kids sued.  Now after two years of litigation, the jury has finally reached a verdict in favor of the aggrieved family and levied a damage award of $16.6 million to be paid by the radio station.

In case you guys have forgotten about this one (and I don’t blame you as I can barely remember whether or not I brushed my teeth this morning) the woman’s name was Jennifer Lea Strange.  She was a 28-year-old mother of three children who entered into a radio contests in California to win the then very elusive Nintendo Wii (which, by the way, is no longer quite as elusive and cheaper to boot).  The contest required contestants to drink large amounts of water and then hold in their urine.  The contestant who could drink the most water while resisting the urge to use the bathroom the longest would win the coveted video game system.  Strange won the contest, but ultimately and unfortunately lost her life in the strange (no pun intended) process.

Now some of you may be wondering why in the hell would anyone subject themselves to this kind of suffer for what is essentially an electronic toy.  Well, regardless of whether or not you have children, I think everyone (except probably my parents) can all understand the very pressing need to get a person we love that “perfect gift.”

More importantly, however, Strange’s case serves as a reminder to corporations, businesses, and people in general everywhere of why you should think twice before committing poorly thought out acts that can lead to serious harm or death.  And that should you decide to go forward with said poorly thought out act, if you’re a radio station have enough sense to stop and heed the deluge of warnings from your listeners.

The sad truth is LegalMatch receives many wrongful death cases every year, cases that could have been easily prevented but for the negligent actions of another party.  Wrongful death cases are not just incredibly costly from an economic standpoint (i.e. lawyers fees and the potential for incredibly large jury awards for compensatory, punitive, and emotional distress damages), but from a purely human perspective, cases of negligence resulting in serious injury or wrongful death means that a person has suffered deeply and permanently.  And that the harm is not only limited to the immediately damaged party, but also that party’s family.  The toll is emotional, physical, and financial.

So what’s the lesson here?  It’s the same one that my dad has been telling me since I was born: Don’t be stupid.

It’s official – we’re now taking our legal cues on privacy from China and South Korea.  Not literally of course; though like every American court we can still look to another country’s legal statutes and cases for inspiration… though that’s going away from the point of my post today.

You remember email, right?  That thing you’ve been using as your main source of written communication since the last decade?  The major form of correspondence that has surpassed old-fashioned snail mail and which is relied upon by everyone from business titans to celebrities, the president, and your aging grandmother (who floods your inbox with those funny grammatically incorrect cat pictures)?  Yeah, that email – it’s no longer protected against searches from the police.

“No, that can’t be right!  Right?  Email?  They are no different than letters you received in the mail; how can they not be afforded the same protection?” Well, apparently if you think like that you’ve been preempted by a federal judge, my friend.

Specifically, this ruling comes down from and Oregon Federal Judge Michael Mosman (I almost typed Michael Madsen; if he gave the ruling I might’ve been less outraged).  Judge Mosman argues that unlike regular snail mail which is handled by postal employees, e-mail should not be afforded the same protection against unlawful searches and seizures under the Fourth Amendment because when an email is sent, it goes through various Internet service providers.  By traveling through these different providers, each email leaves a digital image of itself with each ISP.  And apparently this fact is enough to distinguish email from regular land mail because by leaving a digital copy of itself, emails are in essence open to the ISP to read and monitor and therefore people who send emails cannot expect to have the same level of privacy as when one sends a regular piece of mail through the post office.  Judge Mosman’s full opinion can be read here (please note that the link is to a PDF).

Sound mental?  Yeah, well it should.  Judge Mosman seems to hang his ruling on the notion that because emails aren’t sealed in envelopes like a written letters, people should expect it to be read.  Now to be fair, police would still need a warrant to search through your email.  However, they’ll just need to submit the warrant to an ISP that has your emails to get access to them, thereby completely bypassing you and giving you no notice before invading your private emails.

Now on one hand, Judge Mosman’s argument makes some sense.  Junk mail in the form of post cards and brochures are almost never sealed and the courts have generally viewed these as forms of advertisement and therefore not protected under the Fourth Amendment since it’s argued that junk mail is meant to be seen by as many people as possible.  However, this is also where Judge Mosman’s argument breaks down because private emails aren’t advertisements, but are actual private communications between parties.

“But Andrew, what about the whole issue of emails leaving digital copies of themselves on ISPs and not being sealed like normal letters?”  Well let me answer that question, too, and thank you for asking so kindly.  Though emails are not physical sealed, they are often digitally encrypted to prevent prying eyes from seeing its contents.  Therefore, an analogy can be drawn between sealing and encryption since they both show the sender’s intent to keep their communication private.  Furthermore, like postal workers who we trust not to open our mail, similarly we trust our ISPs not to read our emails.

Anyway, all my ranting is meaningless until someone challenges Judge Mosman’s ruling or the legislature passes a law that gives emails the same protection against unlawful searches and seizures that physical mail enjoys.

So get started people, write your senators and congressmen, just don’t email them – for now.

It’s a weird thing when you start studying the law.  Once your friends and family find out, they seem to come to you for every single law-related problem that comes up in their lives.

I suppose it’s true for every field of study or vocation.  Doctors probably have their cousins asking them to look at moles and pus-filled gashes.  Astrology professors probably have their aunts pestering them to find Orion’s Belt.  Taxi drivers probably can’t get their siblings to stop using them as a substitute for Google Maps.  The list goes on and on.  And the best part about all of this is that all the people who ask you these questions don’t care whether their question is within your field of specialty.  Resulting in situations like this:

“Hey Phil, what street do I take to get to the Eifel Tower?”

“I don’t know, my taxi only operates in New York.”

Okay, so maybe it’s not as drastic as that, but you get my point.

Anyway, regardless of the absurdity or irrelevance of the question, you always end up answering it to the best of your ability because, hey, what can you do?  They’re your friends and family and you like them (for the most part), which brings me to the point of today’s post.

I was talking to a friend the other day.  Let’s call him Norman because I don’t him to get pissed off at me using his suffering for my work.  Norman is a really nice honest guy.  He’s the type of person to go through his whole life never trying to cause a scene, which is good in some ways, but bad in a lot of others because maintaining that kind of lifestyle often leads to his inability to defend himself.

Anyway, about a couple years ago Norman opened up a small convenience store.  His store was located within a mini-mall in his hometown.  It was a good fit for him because on top of being really nice, Norman is also really laid back and doesn’t like doing strenuous and stressful work.  Before renting out his location, Norman was able to secure the right to be the only purveyor and seller of food in the mini-mall.  The agreement was promised in Norman’s contract with the mini-malls owner.

But last month, Norman neighbor, a Laundromat, put out a soda vending machine in front of his store.  Norman saw this as a violation of the non-compete clause he had in his contract, but when he went to the mini-mall’s owner to tell his neighbor to take the soda machine down, the owner refused.  He claimed that soda is a drink and therefore didn’t count as a type of food so it was perfectly in line with Norman’s contract.  Norman then came to me to see what his chances were to get the soda machine put away.

This situation happens a lot.  Just taking a look at the number of unfair competition cases LegalMatch gets every year is good evidence of the popularity of these types of disputes.  My advice to Norman was the same that anyone knowledgeable in the law would give: it depends.

Basically in most jurisdictions, for non compete clauses to be invalid they have to be overly broad as to be considered unreasonable.  In Norman’s situation, it would seem like his non-compete clause was pretty clear since it outlined a specific limitation that could be reasonably followed (that he’d be the only food store).  And that in my opinion I’d think that he’d have a fairly easy time convincing a judge that drinks can be considered food because it’s something that’s consumed.

But like everything in the law, nothing can be certain.  Because even when all the cards seemed stacked in one direction, a good lawyer can easily make them fall in the other.

Rush Limbaugh is in the news again and this time it’s not because he said something horribly insensitive, stupid, narrow-minded, and/or racist.  It’s because someone else made up an insensitive, stupid, narrow-minded, and/or racist quote and attributed it to him.

Specifically, that someone was CNN’s Rick Sanchez, who claimed on air that Limbaugh said:

“I mean, let’s face it, we didn’t have slavery in this country for over 100 years because it was a bad thing. Quite the opposite: slavery built the South. I’m not saying we should bring it back; I’m just saying it had its merits. For one thing, the streets were safer after dark.”

Ouch.  Harsh words, whether Limbaugh said it or not.  Check out the video here (the bogus Limbaugh quote comes up about 1 minute and 14 seconds in).

Limbaugh was understandably steamed at the fraudulent attribution.  No one wants to be called a racist, unless of course they actually are one, then they’re probably okay with it.

So now the inevitable question being asked by political pundits around the country, “Will Rush Limbaugh sue for slander?”

The answer (in my opinion anyway): probably not.  Rush will probably just want some sort of apology from Sanchez and CNN, which he already received via Twitter, though he’d probably would want more of a formal one.  If anything, he’ll just use it to further push his far-right republican conservative agenda.  “More evidence of liberal bias, using me as a target to demonize…blah blah,” is probably how it will go down.

Though if he did sue, he probably wouldn’t have too tough of a time convincing a jury to award him money.  Since he’s (arguably) a celebrity, he’d be considered a public figure and would have to satisfy the higher actual malice standard set out in The New York Times Co. v. Sullivan in order to prevail on a defamation lawsuit against CNN and Sanchez.  Basically he’d have to prove that the CNN and/or Sanchez knowingly or recklessly made false defamatory statements about him.  And in light of the fact that the CNN Twitter post admitted to this, it would at least appear that Rush has a good case.  Though CNN could probably throw up some defense by publicly admitting and correcting their mistake, in my opinion it looks like Limbaugh would have a strong case.

Celebrities have it tougher when it comes to proving libel and defamation – it’s one of the few times where all us little people have an edge.  All we have to do, essentially, is prove the false statement damaged our reputation.  Though it may seem like defamation wouldn’t be a huge problem for non-public figures, LegalMatch does receive its fair share of defamation lawsuits.  So don’t be afraid to press your rights.  Unless you’re Rush Limbaugh, in which case you should probably reevaluate your life and try to figure out why people would so naturally believe you’d make such an outlandish racist statement.

As the end of October nears, children everywhere are wetting their pants in anticipation for the one time of year where wearing a Spider-man costume and asking for candy won’t land you in jail.  Ahhh Halloween, how we love thee.  It’s everyone’s favorite holiday, unless its hot sister Christmas is around, in which case take a message and tell it we’re washing our hair.  Halloween is great.  It’s a time for pumpkin-carving, trick-or-treating (as long as you don’t live in New Orleans), and of course, pranks.

Sometimes a well-laid prank can be even better than all that candy.  Who doesn’t love leaving a flaming bag of dog poop in front of your cranky neighbor’s doorstep or covering said neighbor’s house in toilet paper?  Not to mention the all-time classic, “bidding on a federal auction for oil and gas leases when you don’t have the money or intention to follow through on it.”

Don’t remember that one?  It was all the rage when I was still in elementary school.  I remember how my friends and I would dress up in a suit and tie, go down to the old Bureau of Land Management, or BLM for all you youngins, and place a phony bid posing as representatives for a kooky billionaire.  Still doesn’t ring a bell, huh?  Oh well, I guess I’m just getting too old to keep up with all these new fangled pranks…

But at least there’s one person who is keeping it alive.  But Tim DeChristopher is doing it for an entirely different reason.  Making a stand for the environment??  Psshtshaw…  Whatever happened to just messing with people because it’s fun?

Seriously though, this is a very serious offense.  DeChristopher is being charged with two felony counts, carrying up to five years in prison plus fines up to $750,000.  The reason he did it was to cause disruption in protesting what he believes are governmental acts that are contributing to the rise of global warming.

But whether you believe in DeChristopher’s cause or not, you’ve gotta admire the legal defense he’s planning to use: a necessity defense.  It’s basically a choice of evil defense, where a person is forced to choose between breaking the law and preventing some evil/harm, or letting that evil/harm happen.  The article does a good job of summarizing DeChristopher’s chances of succeeding with this defense.  Though I think they missed one important aspect: standing.

Usually to employ such a necessity defense, especially against the federal government, a person would have to show that he or she was actually harmed by the actions of the government.  No actual harm usually equals no defense.  I say usually because like every good law school will teach a first-year student, it depends.

I suppose DeChristopher could make some argument that the harm to the environment hurts the planet which in turn harms his life expectancy by increasing the chances of natural disaster or depleting the ozone layer which would lead to increased exposure to harmful UV rays.  But looking at most case precedent, these types of arguments are considered too nebulous and broad to ever succeed.

Good for him for trying though.  The number of lawsuits received by LegalMatch regarding environmental issues, land-use, and toxic torts has increased by approximately 20 percent from last quarter, so it seems like they’re all the rage now.  So maybe Lady Luck will smile in DeChristopher’s favor, though if you ask me, she’s probably terminally ill from skin cancer…