Tag Archive for 'sued'

Can I Be Sued for Writing Negative Reviews Online?

The technological advances of the last several years have made online shopping a way of life. At the heart of this new activity is the ability to broadcast consumer complaints. Sites like Yelp!, Angie’s List, and Amazon have turned the average consumer into an aficionado, giving nearly anyone the ability to publish opinions to a massive audience.

negative reviews onlineWhile buyers may be overjoyed by the wealth of consumer-driven reviews online, some sellers aren’t so happy. Some are so displeased that they have resorted to filing lawsuits against reviewers.

As a result, online shopping has added a new feature to the shopping experience: lawsuits against opinionated consumers.

How Can Sellers Sue?

One word: defamation. Defamation, specifically libel, is the communication to a third party of a false statement that damages or harms the reputation of another. The old saying about “words never hurting” is not true in the legal world.

Nonetheless, hearing about sellers initiating defamation lawsuits over bad reviews sounds outrageous, and has caused many to ask, “Why aren’t the websites hosting the comments liable?” and “What about the First Amendment?”

Well, the websites aren’t liable because federal law (specifically 47 U.S.C § 230) protects the websites from being sued for providing a medium through which defamatory statements may be published. The idea is to hold the author liable and not the website. Additionally, the First Amendment doesn’t protect speech that is defamatory. That itself sounds ironic, because the text of the First Amendment quite literally says that “no law” shall abridge free speech.

Should Shoppers Stop Reviewing?

Absolutely not. The First Amendment doesn’t protect speech that is defamatory, but even that comes with a caveat: truth is an absolute defense. So, if your review states the truth or states an unvarifyable opinion, then you won’t lose a libel suit.

Moreover, we have a pretty strong love for free speech in this country. So strong, in fact, that many states have drafted laws that protect individuals who are being sued simply for speaking their mind. An anti-SLAPP motion typically allows the defendant to collect attorney’s fees and costs for defending against a lawsuit they never should have had to answer for in the first place.

Although receiving a cease and desist letter for posting a review would be disconcerting and terrifying, to say the least, shoppers should take solace that the truth will protect them. At the same time, businesses should think twice before threatening consumers. Consider: one of the companies who recently threatened to sue a reviewer lost their Amazon seller account as a result of the ordeal.

Facebook Involved in an Unusual Lawsuit between Uncle and Nephew

Family feuds have been a common form of entertainment on television.  Many of us have tuned in to watch shows like Family Feud, Modern Family, Growing Pains, etc.  In the legal realm, family feuds have comprised of a practice termed family law.  Attorneys who practice family law are considered to have a “tough heart” by many because it is not easy watching families endure events such as divorces and custody battles.  Speaking of families and lawsuits, a recent lawsuit of a nephew sewing his uncle for harassment over Facebook pictures gives new meaning to the term “family feud.”

A man from Minnesota named Aaron Olson sued his uncle because his uncle had posted childhood pictures of him, in front of a Christmas tree, in a rabbit costume.  Rather than untagging himself from the picture, or calling his uncle and politely asking him to remove the picture, Aaron sued his uncle for harassment in a Minnesota district court.

Olson’s claim was based on the fact that the pictures were “innocuous family photographs.”  Posting such photographs on Facebook establishes a platform for mean comments to be directed towards Olson.  The court dismissed this case, and the Court of Appeals of Minnesota denied Olson’s complaint.

The Judge in the Court of Appeals of Minnesota stated that harassment occurs when words have some sort of adverse effect on the safety, security, or privacy of another person.  Therefore, mean or disrespectful comments do not constitute harm to one’s safety, privacy or security. The court ruled that the district court was correct in stating that the evidence submitted by Olson (the Facebook pictures of him in a rabbit costume, in front of a Christmas tree) did not satisfy the requirements to prove harassment.

This lawsuit is probably the most ridiculous one I have heard of to date.  The obvious lesson to take away is that if you have a minor issue with a relative, talk to them.  The power of effective communication can do wonders, keep people out of court, and put the money spent on potential litigation back into your pocket!

More importantly, when frivolous suits are brought into court, it is a misuse of the judicial system and a waste of judicial resources.  People should realize that the judicial system is there to tend to complex matters that cannot be solved in the home or office environment, not minor family feuds over embarrassing photos.

So, a few tips to people out there.  Before thinking about going to court, evaluate the basis of your lawsuit.  If your lawyer explains things to you, you will be hit with a hefty legal bill.  Rather than depending on your lawyer, think about how much merit you have in your claim.  Next, think about solutions that do not involve litigation.  Often, litigation complicates matters before reaching a resolution.  If there is a quicker way to achieve some closure out of court, go for it.  Lastly, confide in a close confidant to see if your potential claim passes the “straight face test.”  Specifically, after conveying your claim to your confidant, examine their expression.  If it is not of a straight face, and rather is one of disgust, surprise, or awkwardness, it is likely that your lawsuit is frivolous.  Avoid filing it and resolve matters in the comfort of your own home!

Are Prosecutors Getting Away With Too Much?

In a world where prosecutors are supposed to be the champions of justice, often times it is the prosecutors themselves who seem like the bad guy. It’s only a matter of time before we hear yet another story about how some innocent man was exonerated by the courts because it turns out the prosecutor had presented false evidence against him or used overly aggressive techniques in court.

In our legal system today, there are 3 main ways a prosecutor can face disciplinary action. This may seem like there are many avenues for disciplining prosecutors, but as I’ll discuss later, I think these laws are carried out in a way that actually makes it pretty easy for prosecutors to get away with a lot.

1) Being sued in courts by wronged defendants

This is probably the most obvious way to get back at a prosecutor. If you were wrongly convicted because the prosecutor used unscrupulous techniques against you, then you’re going to have your day in court and sue him. The prosecutor can be sued for malpractice in civil court, or in more serious cases, even face criminal charges for his or her actions. The remedy would probably be some amount of monetary compensation.

2) Sanctioned by the court

The court can also bring its own judgment upon a wayward prosecutor for violating court rules. If found guilty, the court can impose a number of sanctions upon the prosecutor. These include disbarment by the court, suspension by the court, monetary fines, and private admonition by the court, among others.

3) Sanctioned by the bar association

The state bar association may also impose sanctions upon prosecutors for professional misconduct. These include any form of temporary or permanent disbarment from the state bar, requirements to take continuing education classes, financial penalties, and other actions as the state bar sees fit.

How it works in reality

In reality though, prosecutors are sued far less often than you would think. While it’s true that prosecutors may be sued, the reality is that we have additional laws that prevent prosecutors from being sued in various situations. Under “absolute immunity,” prosecutors cannot be sued for advocative actions that are an essential part of their job (but they may be sued for investigative actions that are more typical of a policeman’s job). Furthermore, under “qualified immunity,” prosecutors cannot be sued unless it was clear that they were violating an established right, and that reasonable people would not have done so in their position.

There are many reasons these immunities exist, but one primary reason is that they actually help prosecutors perform their jobs better. The idea is that prosecutors, and our legal system as a whole, function best when prosecutors use aggressive techniques. Additionally, by the nature of the profession, prosecutors are an easy target for disgruntled defendants to point their fingers at, and therefore be unnecessarily sued. Since we don’t want prosecutors to be timid and afraid of being sued for every choice they make, we give them immunity in court.

But in terms of reducing prosecutorial misconduct, what about the effect of sanctions? Recent news indicates that they don’t do much to curb misconduct either. A recent study shows that in California, courts discipline less than 1% of the cases of prosecutorial misconduct.

Another study shows that since 1997, there have been 201 cases of prosecutorial misconduct in the federal Justice Department. Although the department does not release statistics on how many of these prosecutors it actually disciplines, the study found that according to state bar records, the Justice Department has only temporarily disbarred one prosecutor for misconduct in the last 12 years.

Immunity versus Sanctions

If prosecutorial misconduct is a problem, then what’s the best way to regulate it? Should we take away immunity or be stricter about enforcing sanctions?

I believe there is good reason for giving prosecutors absolute and qualified immunity in court. Because the nature of our legal system is adversarial, prosecutors need to have the leeway to proceed with as much freedom and creativity as possible. If we want that to happen, we must be willing to give them immunity in court.

Therefore, I believe sanctions are both necessary and the best way to keep prosecutorial misconduct at bay. In fact, one of the reasons courts were willing to extend absolute immunity to the degree that they did was because they thought sanctions would be around to counter-balance the effect.

Additionally, as I mentioned earlier, we give prosecutors immunity in court partly because we don’t want to subject them to an endless amount of frivolous lawsuits. But unlike a lawsuit that can be brought against a prosecutor by anyone, sanctions are imposed by courts and bar associations. These are professional legal organizations, and they wouldn’t open up an investigation unless they had good reason to.

Prosecutors in our legal system today function as much more than just advocates. In many cases, they work closely with the police and can even take over the investigation of the case. We give prosecutors an immense amount of power, more so than in any other type of law. For this reason, we should take prosecutorial misconduct seriously and enforce the appropriate punishment against them, just as we would in any other profession.

Life, Liberty, And The Right To Sue The U.S. Government

In this country full of big shots who know all the angles, it’s easy to feel like a powerless nobody struggling to make ends meet.  I mean, it’s hard enough to figure out what the hell happened at the end of Lost, let alone navigate fairly within the laws of this country without giving into anger over the fact that it can sometimes seem like the rich and powerful get to play with all the cheat codes turned on.  (Note: I’ve been dying to use a video game reference in this blog!)

Anyway, life can seem daunting in this way.  Nowhere is this feeling more impressed upon people than when one is forced to deal with the very government tasked to serve them.  The same government that was founded hundreds of years ago upon the now very ironic belief that its officials should serve and bend to the will of the people.  Lest it become the very same tyrannical and oppressive rulers that was the English monarch at the time – a form of rule whom the forefathers fled to free themselves of, probably so they could marry their cousins or something.  (Note: I’ve been dying to use a Simpsons reference, too!)

Sorry for taking so long with all my digressions.  I know you all are just dying to see where I’m going with this post (unless you read the headline first), but I assure you that this seemingly nonsensical build-up is the perfect segue into the topic of how to file a lawsuit against the government.  Go back and read the intro again.  See, doesn’t it all make sense now?

For many people, the idea of suing the government sounds not only unrealistic and crazy, but also downright unpatriotic.  However, doing this feat successfully is not only possible, but would also make our founding fathers proud to see people keeping corruption everywhere in check.  Just please be sure to have suffered an actual harm – frivolous lawsuits weren’t part of their grand vision.

Now before we begin, you should be aware of something called government immunity.  Essentially this means that the government can exempt itself from being sued for doing certain actions and the immunity extends to most state and federal agencies.  This is to prevent mental patients from suing the president for going to war or congress for passing new taxes.

So when can you sue the government?  Well, you can only sue the government in areas where the government allows itself to be sued.  For instance, the Federal Tort Claims Act allows the government to be sued for the gross negligence of its employees.

Suing the government is a similar process as suing any other person; however there are special notice requirements that you should be aware of.  Before filing a suit, generally you must first write a demand to the government department that has wronged you telling them what happened.  Whether it was that a faulty light fixture from one of their buildings fell on your head or something else, you have to give written notice to the agency before you can file a lawsuit.  This is to give them the chance to either own up and pay you for your damages, or deny your claim.  If they do the latter, you can then bring your lawsuit.  One other important note is that for most claims against the government, you have to bring them within two years or you won’t be able to sue for your alleged harm AT ALL.

The kinds of remedies you can get are also not too different from the kind you’d get for winning a lawsuit over a regular citizen.  You can get money damages to cover any physical pain and expenses you incurred as a result of your harm, as well as injunctive relief (which means the court issues an order telling the government to change the way they current do something).  What is usually much harder to get is emotional suffering damage.  It’s not impossible, but let’s just say that the burden of proof is much, much higher than what you’d see in a normal civil suit.

Both the federal and various state governments have entire divisions dedicated to litigating claims brought by people against the government.  These will be the attorneys you’ll be going up against.  And believe me, when it comes to being sued, just like ordinary citizens, the government tries to hire some of the best lawyers around.  So be ready for an uphill battle and get yourself a good attorney to help you through the process.

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Scores of Lawsuits Filed Following the Deepwater Horizon Oil Spill

The Deepwater Horizon oil spill off the Gulf Coast has been dubbed the worst oil spill in decades.  The disaster started on April 20, 2010 when a blowout caused an offshore rig to explode and sink.  Reports estimate that 1.6 million gallons of oil have already been leaked into the water since then, with approximately 210,000 gallons leaking each day.  This may be the most serious oil disaster in U.S. history, after the 11 million gallon Exxon Valdez oil spill in 1989.

Fingers are pointed everywhere as impacted citizens, businesses, and entire industries seek someone to blame for the economic losses stemming from damage caused to the environment and wildlife.  Lawsuits have been filed by the dozen and are reportedly well over 50 in number.

Private suits have been filed by families of deceased and injured rig workers.  Class action suits are numerous and have been filed by those industries which have been affected, mostly those involving maritime activities such as the fishing, boating, and shrimp industries.  Losses to the fishing industry are projected to be anywhere from $2.5 to $3 billion.  Owners of land and property near the Gulf are also bringing lawsuits for losses in the tourism and vacation industries.

Legally speaking, the United States government recently named BP as the primary party responsible for the incident.  As the main developer of the oil project, BP will be held accountable for the costs associated with cleaning up the mess.  BP currently accepts responsibility for the cleanup but denies that the accident was their fault because the rig was operated by personnel of Transocean Ltd.

Determining liability for the incident is going to be tricky.  Although Transocean was operating the Deepwater Horizon, BP has been leasing the rig for other projects dating back to 2002.  The rig has a history of spills, fires, and mishaps which occurred under BP’s watch.  A major suit was filed on April 30 on behalf of the Louisiana Environmental Action Network.

Other companies targeted for lawsuits are: Transocean Ltd., owners of the rig; Halliburton Energy Services, Inc., responsible for cementing the underwater well which is now leaking oil underwater; and Cameron International Corp., seller of equipment for the well.

The first small legal battle has already been won by fishermen, which demonstrates both how far reaching and how diverse the legal action surrounding this incident is.  Since many fisheries are closed down due to the incident, BP has been in the process of recruiting local Louisiana fishermen for paid volunteer contributions in the cleanup efforts.  A Louisiana district judge swiftly struck down BP agreements regarding pay because they were overbroad.

So does this mean that the major companies involved will be found liable?  I think that it is more than likely; it’s probably just a matter of determining the amount of damages they will have to pay.  As mentioned, the spill has been compared to the Exxon Valdez incident, and may even eclipse the Alaska incident in its severity.  The Exxon case resulted in actual damages of $287 million.  Punitive damages began at $5 billion but through several appeals were lowered to somewhere around $507 million.  In a separate settlement, Exxon also had to pay $63 million to a seafood group known as the Seattle Seven.  If the lawsuits are anything like the Exxon cases, BP and other companies may have to pay even larger amounts for damages.

Besides damages, this incident could have other legal effects as well- it could result in stricter laws governing oil spills and other environmental disasters.  This is what happened with the Exxon case; after the 1989 spill, Congress passed the Oil Pollution Act of 1990.

The Oil Pollution Act will be instrumental when the Deepwater Horizon incident is litigated.  The Act requires all oil drilling companies to have a plan to prevent spills, as well as containment and clean up plans in the event of a spill.  The Act will also limit punitive damages for BP to $75 million, although they may be required to pay more in actual damages.

I think the most tragic part of this incident is that all the lawsuits in the world and billions of dollars will not undo the damage that has already been done to the environment.  And new laws cannot really guarantee that such spills will not occur in the future, as history has proven.  Cleanup and containment for this particular one could take anywhere from 2-3 months.  Concerned readers can follow daily scientific updates with the National Oceanic and Atmospheric Administration (NOAA), and The Oil Drum has issued a very detailed report of the oil spill.