Full disclosure—I am a former corporate lobbyist and part of my law practice includes representing clients' needs in government affairs, government relations, and lobbying.
In my experiences, I have witnessed many of the activities that are commonly associated with "lobbyists"; namely, the kind of discretions made infamous by Jack Abramoff and others. But I believe that the public as a whole believes that such conduct is MUCH more prevalent than it actually is. Lobbying and lobbyists are a necessary evil of politics and the vast majority of lobbyists and government affairs professionals are ethical and do things "the right way".
A brief history of lobbying: the name lobbyist came into popular parlance during (though not originating from) the days of President Ulysses S. Grant. President Grant was a frequent visitor to the Willard Hotel's bar close to the White House. Even in the mid-to-late 1800s, catching the ear of the President was a difficult thing to do. So when the word got out of the President's favorite watering hole, people seeking to influence public policy followed. President Grant hated the practice because it took him away from his cigar and brandy, but lobbyists soon became a great way for lawmakers to enjoy a drink or a meal on someone else's dime, all while learning about the issue de jour of their host.
Fast forward to today and there are more lobbyists and lobbying than ever. While some bemoan the practice, I am excited and proud to see the profession's growth. Lobbying is the First Amendment at its purest—a petition of grievances to the government and an exercise in democracy. Have you ever emailed or tweeted your elected official? If so, you are a "lobbyist", at least in the academic sense of the term. If not, why not? Communication no longer is restricted to smoky back rooms in a speakeasy next to Capitol Hill. You don't need to spend weeks and months courting an elected official's staff members in order to get on their boss's calendar. Today, you can contact your elected official at any level of the government, make a cognizable argument, and be sure that the member's staff member in charge of that policy area will read it. Make a good argument, and that staff member will have your message in front of the elected official during their daily briefing sessions.
Lobbying professionals will always have the advantage of being able to develop long-term relationships with policy leaders and develop reputations of knowledge and trust for their respective issues. Many also are involved in political action committees and fundraising efforts, giving lobbyists better access to elected officials than the average citizen. But the days of lobbyists enjoying a monopoly on communication with political leaders are over.
Elected officials are, by definition, elected by their constituents. If enough voters would educate themselves on the issues, organize communications with their elected official, and actually vote for candidates who support their positions, not even the most well-heeled professional lobbyist could change the elected official's position. Self-preservation trumps a free meal every time.
There are generally two schools of thought in lobbying: use monetary influence to build relationships with members in leadership positions so that you can call in "favors" when the time comes; OR (they generally are mutually exclusive from my experience) use your superior knowledge of the issue at hand to educate elected officials and your supporters through grassroots communication predicated on the elected official's fear of not being reelected because of their opposition to your position.
Full disclosure again—I am a proponent of the second option. First off, it is much cheaper and safer to go the education route. If the party or member(s) in which you have focussed your contributions is no longer in power or in a leadership position, you have to start over. Plus, it takes A LOT of money to move the political needle. There are well-funded industries all over the political spectrum who are extremely active in political campaigns and issue framing.
It is my opinion that good advocacy will trump campaign contributions for most elected officials. So give it a try and become a "citizen lobbyist". Stay abreast of important political issues that affect your daily life, be it your pocketbook or your lifestyle. Communicate your position to elected officials. You might find that "lobbyist" becomes less of a dirty word and more of a badge of honor to be worn proudly after realizing that you, too, can influence public policy and politics.
Tuesday, March 11, 2014
Tuesday, March 4, 2014
Used Cars in Florida - Buyer Beware!
When it comes to buying a used car in Florida, the old phrase "Buyer Beware" is especially applicable. Florida DOES NOT have a "Lemon Law" for used cars, so be especially careful when selecting a pre-owned vehicle.
ALWAYS ask if there is any warranty or guarantee period during which you can return the vehicle for service. See if there is an additional add-on warranty you can add to the vehicle. See if the dealer will allow you to have the car inspected by a trusted mechanic, whether on-site or off-site.
If the bill of sale or window sticker says "AS IS", the dealer is attempting to disclaim all warranties and you will probably not be able to return the vehicle for a refund or demand repairs from the dealer if something breaks as you drive the car off of the lot.
There is an old saying: "You get what you pay for." Sometimes that "great deal" for an As-Is used car is "too good to be true"!
ALWAYS ask if there is any warranty or guarantee period during which you can return the vehicle for service. See if there is an additional add-on warranty you can add to the vehicle. See if the dealer will allow you to have the car inspected by a trusted mechanic, whether on-site or off-site.
If the bill of sale or window sticker says "AS IS", the dealer is attempting to disclaim all warranties and you will probably not be able to return the vehicle for a refund or demand repairs from the dealer if something breaks as you drive the car off of the lot.
There is an old saying: "You get what you pay for." Sometimes that "great deal" for an As-Is used car is "too good to be true"!
Wednesday, February 12, 2014
Evidence of Juggalo Tendencies Allowed in Murder Trial
Juggalos have had it tough recently. For those of you who are unaware, Juggalos are the fans of a rap group called the Insane Clown Posse (ICP). ICP's lyrics allegedly have incited violent attacks against victims. Juggalos claim that the acts of a few crazed people should not be imputed to all of them.
The government already has labeled the Juggalos as a "gang" subject to increased surveillance under the National Gang Threat Assessment. Now, it appears as though courts might treat the group differently as well.
This case involves a Tennessee man and self-professed Juggalo who was convicted of using a hatchet to murder a middle-aged woman who was hosting him in her home in 2007. On appeal, he is claiming that testimony from police explaining the alleged violent propensities of Juggalos was irrelevant and unfairly prejudicial. The State argues that the evidence was directly relevant to the motive for the killing, which was described as completing a challenge posed by the lyrics of the song which would result in achieving a spiritual goal desired by devout Juggalos.
The appeals court held that the conviction would stand irrespective of the testimony. The defendant may still appeal to the state supreme court or seek post-conviction relief.
The government already has labeled the Juggalos as a "gang" subject to increased surveillance under the National Gang Threat Assessment. Now, it appears as though courts might treat the group differently as well.
This case involves a Tennessee man and self-professed Juggalo who was convicted of using a hatchet to murder a middle-aged woman who was hosting him in her home in 2007. On appeal, he is claiming that testimony from police explaining the alleged violent propensities of Juggalos was irrelevant and unfairly prejudicial. The State argues that the evidence was directly relevant to the motive for the killing, which was described as completing a challenge posed by the lyrics of the song which would result in achieving a spiritual goal desired by devout Juggalos.
The appeals court held that the conviction would stand irrespective of the testimony. The defendant may still appeal to the state supreme court or seek post-conviction relief.
Tuesday, February 11, 2014
Minor League Baseball Class Action Filed
Spring Training is usually a happy time for baseball players as hope springs eternal for success in the upcoming season. But the life of a minor leaguer can be tough, as evidenced by this class action filed by three minor leaguers challenging the pay structure and lack of negotiations for their contracts.
As background, each major league ballclub is affiliated with several minor league clubs of varying skill levels. Major league teams acquire players either through the Amateur Draft or sign players as "free agents" without a draft process. Upon signing, the player receives a modest signing bonus and is paid their salary. Minor league salaries are nothing like the salaries for major league ballplayers and can be as low as a few thousand dollars for the entire season.
Major League Baseball implemented the Uniform Player Contract (UPC) in 2012 as part of the new collective bargaining agreement with the players' union. Under the system, the major league team has exclusive rights to the player for seven years, the team can transfer the player to other teams at will, and the player may be terminated without cause. Players, in contrast, have no freedom to sign with other teams or transfer their contract. The UPC requires salaries to be paid only during the playoffs, meaning that teams could choose not to pay regular salaries and instead pay a single lump sum during the playoffs.
Minor league players have not unionized like their major league counterparts. Additionally, like most major sports, Major League Baseball enjoys a unique antitrust exemption reinforced by Supreme Court decisions, so there is no competing league (and probably never will be absent a contrary court decision) for the players to reap the benefits of competition.
The UPC explicitly allows minor leaguers to negotiate their contract, but in reality these negotiations are allegedly sham negotiations according to the class action. The class action seeks wage increases based on the value of professional services rendered (quantum meruit) and compliance with state and federal wage & hour laws (which would require regular salary payments).
As background, each major league ballclub is affiliated with several minor league clubs of varying skill levels. Major league teams acquire players either through the Amateur Draft or sign players as "free agents" without a draft process. Upon signing, the player receives a modest signing bonus and is paid their salary. Minor league salaries are nothing like the salaries for major league ballplayers and can be as low as a few thousand dollars for the entire season.
Major League Baseball implemented the Uniform Player Contract (UPC) in 2012 as part of the new collective bargaining agreement with the players' union. Under the system, the major league team has exclusive rights to the player for seven years, the team can transfer the player to other teams at will, and the player may be terminated without cause. Players, in contrast, have no freedom to sign with other teams or transfer their contract. The UPC requires salaries to be paid only during the playoffs, meaning that teams could choose not to pay regular salaries and instead pay a single lump sum during the playoffs.
Minor league players have not unionized like their major league counterparts. Additionally, like most major sports, Major League Baseball enjoys a unique antitrust exemption reinforced by Supreme Court decisions, so there is no competing league (and probably never will be absent a contrary court decision) for the players to reap the benefits of competition.
The UPC explicitly allows minor leaguers to negotiate their contract, but in reality these negotiations are allegedly sham negotiations according to the class action. The class action seeks wage increases based on the value of professional services rendered (quantum meruit) and compliance with state and federal wage & hour laws (which would require regular salary payments).
Thursday, February 6, 2014
Racism is Alive & Well - How Respondeat Superior Might Lead to Trouble for Your Business!
People who have blessedly not been exposed to racism in some time might think the problem ended years ago, but cases like this remind all of us that racism and hate remain daily problems for some Americans.
This case has all of the tell-tale signs of a racism case from the 1960's: derogatory name-calling, physical threats and intimidation, assault and battery, threats to the victim at his home not to fight the attackers in court, et al.
While that is enough in and of itself to comment on, I must also note the response of management and his supervisor. The immediate supervisor thought that an apology was the right way to discipline a knife attack? Management everywhere should shudder at the thought.
Remember that under the doctrine of respondeat superior, employers can be liable for the torts of their employees committed within the scope of their employment. Be careful who you put in management! The wrong leader can lead to punitive damages and bad publicity that every company should seek to avoid.
This case has all of the tell-tale signs of a racism case from the 1960's: derogatory name-calling, physical threats and intimidation, assault and battery, threats to the victim at his home not to fight the attackers in court, et al.
While that is enough in and of itself to comment on, I must also note the response of management and his supervisor. The immediate supervisor thought that an apology was the right way to discipline a knife attack? Management everywhere should shudder at the thought.
Remember that under the doctrine of respondeat superior, employers can be liable for the torts of their employees committed within the scope of their employment. Be careful who you put in management! The wrong leader can lead to punitive damages and bad publicity that every company should seek to avoid.
Monday, February 3, 2014
How Do Sweepstakes Payouts Work?
You might know that sweepstakes prizes worth millions of dollars are actually paid by insurance companies, not the company that is promoting it. But you might not know why insurance companies would agree to such huge potential payoffs - policy premiums!
Insurance companies receive policy premiums from the company in exchange for taking on the risk of a huge payoff. A recent example is an alleged agreement between Yahoo! & an insurance company to pay $1 billion to anyone who submits a perfect NCAA March Madness bracket through the Yahoo! Sports website.
The insurance company alleges that Yahoo! breached by cancelling the agreement after paying only one installment of the policy premiums. If the insurance company's allegations are true, in order to cancel the agreement Yahoo! has to pay 1/2 of the agreed-upon policy premiums. Yahoo! claims that the contract allows them to cancel at any time without paying any additional premiums.
A basic tenet of contract law is that a contract is formed upon the congruence of all of the required elements of a contract: offer, acceptance, and consideration. Even if the "triggering event" (in this case the results of the basketball tournament) occurs in the future, an enforceable contract results when all three parts exist together.
This case will come down to the language of the contract itself, but I find more value in the example of a difference between a contract with duties that result upon the happening of a subsequent event (this one) and a contract with a condition precedent (I agree to pay you $10.00 if and only if the Atlanta Braves win the 2014 World Series). Contracts with conditions precedent are not breached until the triggering event occurs. The alleged contract in this case was allegedly breached by the unilateral termination by Yahoo! (I agree to pay policy premiums to you in exchange for your promise to cover me if someone submits a perfect NCAA bracket).
In order to profit from these agreements, insurance companies almost always phrase the agreement to form an enforceable agreement immediately without conditions precedent.
The distinction is a fine one; make sure to have an attorney draft contracts on your behalf.
Insurance companies receive policy premiums from the company in exchange for taking on the risk of a huge payoff. A recent example is an alleged agreement between Yahoo! & an insurance company to pay $1 billion to anyone who submits a perfect NCAA March Madness bracket through the Yahoo! Sports website.
The insurance company alleges that Yahoo! breached by cancelling the agreement after paying only one installment of the policy premiums. If the insurance company's allegations are true, in order to cancel the agreement Yahoo! has to pay 1/2 of the agreed-upon policy premiums. Yahoo! claims that the contract allows them to cancel at any time without paying any additional premiums.
A basic tenet of contract law is that a contract is formed upon the congruence of all of the required elements of a contract: offer, acceptance, and consideration. Even if the "triggering event" (in this case the results of the basketball tournament) occurs in the future, an enforceable contract results when all three parts exist together.
This case will come down to the language of the contract itself, but I find more value in the example of a difference between a contract with duties that result upon the happening of a subsequent event (this one) and a contract with a condition precedent (I agree to pay you $10.00 if and only if the Atlanta Braves win the 2014 World Series). Contracts with conditions precedent are not breached until the triggering event occurs. The alleged contract in this case was allegedly breached by the unilateral termination by Yahoo! (I agree to pay policy premiums to you in exchange for your promise to cover me if someone submits a perfect NCAA bracket).
In order to profit from these agreements, insurance companies almost always phrase the agreement to form an enforceable agreement immediately without conditions precedent.
The distinction is a fine one; make sure to have an attorney draft contracts on your behalf.
Wednesday, January 22, 2014
Chemical Carcinogen = Earthworm? Only in Property Law!
When is a carcinogenic chemical equal to earthworms? When property law is involved, of course!
Put aside for a moment the fact that there are federal Clean Water Act and Resource Conservation and Recovery Act (RCRA) claims possible here. The case here seeks damages for homeowners whose property values dropped. Homeowners argue that the property value drop is tied to publicity surrounding benzene pollution by Shell Oil. Shell Oil argues that the drop was caused by other forces, including the Great Recession.
The 7th Circuit Court of Appeals (IL and other Midwest states) substantively held that the benzene pollution is akin to other undesirable features common in the ground of everyone's homes like insects and worms. A key fact leading to this ruling is that the drinking water for the affected class comes from an unpolluted source not threatened by the benzene. Had the drinking water itself been polluted, the court opines that the connection might be strong enough to support damages.
Put aside for a moment the fact that there are federal Clean Water Act and Resource Conservation and Recovery Act (RCRA) claims possible here. The case here seeks damages for homeowners whose property values dropped. Homeowners argue that the property value drop is tied to publicity surrounding benzene pollution by Shell Oil. Shell Oil argues that the drop was caused by other forces, including the Great Recession.
The 7th Circuit Court of Appeals (IL and other Midwest states) substantively held that the benzene pollution is akin to other undesirable features common in the ground of everyone's homes like insects and worms. A key fact leading to this ruling is that the drinking water for the affected class comes from an unpolluted source not threatened by the benzene. Had the drinking water itself been polluted, the court opines that the connection might be strong enough to support damages.
Tuesday, January 21, 2014
BETAMAX Case Transported to the 21st Century in Aereo
The name BETAMAX conjures up memories of the 80's, but it should also make you think of Netflix, video rentals, your DVR or TiVo, and cloud storage. Without the BETAMAX case in the 1980's, no recording devices would have been allowed and viewers would have never have had the opportunity to enjoy time-shifting and watching programs on their own schedule. Now SCOTUS is considering a case that brings the argument into the 21st Century.
In the 1980's, Sony was sued by Universal and Disney to block production of BETAMAX recording devices. BETAMAX, for those of you under 30, was a rival technology to the VCR (which eventually became the standard) that allowed users to record shows broadcast on TV or cable or satellite so that users could watch them when they wanted.
Universal and Disney were arguing that copyright protections would be eroded forever and that Fair Use (sampling an 80's song for a new rap song, for example) would be expanded beyond recognition.
The Supreme Court (SCOTUS) ultimately held that people could record portions of a show or the entire show so long as their intent was to watch the program later. Second, people could even resell or rent recordings of programs to others for profit so long as the recording has a substantial, legitimate use (i.e. was aired on free broadcasting channels, not cable).
We are all used to the first holding, but the second holding might be new to you. Expect the second part to hit the news as SCOTUS is now considering the Aereo case, the first major case since BETAMAX to examine the boundaries of time-shifting programming.
Aereo has created technology that uses a system of small antennas in an urban area to take live programming offered over the air by local broadcasters and stream it to subscribers who pay Aereo a fee for the service. Aereo's target customers are those who have cancelled cable and satellite and who use Netflix, Hulu, iTunes, Apple TV, and the other myriad Internet-based programming solutions. With Aereo, a person could watch live sports (think the Big Game for the NFL or March Madness) without paying for cable or satellite.
Aereo argues that it is simply a super-charged "rabbit ears" (back in the dark ages, people used antennas to watch TV, kids). Broadcasters are arguing that their creative content (and copyrights) are being infringed upon. Broadcasters also want use fees from the transmissions like they receive from cable and satellite providers.
If Aereo's argument prevails, broadcasters like FOX & CBS have threatened to move to cable, so this case has far-reaching implications.
In the 1980's, Sony was sued by Universal and Disney to block production of BETAMAX recording devices. BETAMAX, for those of you under 30, was a rival technology to the VCR (which eventually became the standard) that allowed users to record shows broadcast on TV or cable or satellite so that users could watch them when they wanted.
Universal and Disney were arguing that copyright protections would be eroded forever and that Fair Use (sampling an 80's song for a new rap song, for example) would be expanded beyond recognition.
The Supreme Court (SCOTUS) ultimately held that people could record portions of a show or the entire show so long as their intent was to watch the program later. Second, people could even resell or rent recordings of programs to others for profit so long as the recording has a substantial, legitimate use (i.e. was aired on free broadcasting channels, not cable).
We are all used to the first holding, but the second holding might be new to you. Expect the second part to hit the news as SCOTUS is now considering the Aereo case, the first major case since BETAMAX to examine the boundaries of time-shifting programming.
Aereo has created technology that uses a system of small antennas in an urban area to take live programming offered over the air by local broadcasters and stream it to subscribers who pay Aereo a fee for the service. Aereo's target customers are those who have cancelled cable and satellite and who use Netflix, Hulu, iTunes, Apple TV, and the other myriad Internet-based programming solutions. With Aereo, a person could watch live sports (think the Big Game for the NFL or March Madness) without paying for cable or satellite.
Aereo argues that it is simply a super-charged "rabbit ears" (back in the dark ages, people used antennas to watch TV, kids). Broadcasters are arguing that their creative content (and copyrights) are being infringed upon. Broadcasters also want use fees from the transmissions like they receive from cable and satellite providers.
If Aereo's argument prevails, broadcasters like FOX & CBS have threatened to move to cable, so this case has far-reaching implications.
Monday, January 20, 2014
Cell Phone Search Cases to be Decided This Session by SCOTUS
Big news this past Friday that SCOTUS (Supreme Court of the US) will take up two cases related to warrantless searches of arrestees' cell phones.
As a general matter, the 4th Amendment requires police to obtain a warrant before searching or seizing one's personal effects. However, SCOTUS has established several exceptions to the general rule including an exception that, after one is arrested, police may search and seize items on the person or within the person's wingspan in order to promote officer safety and prevent destruction of readily-available evidence.
The question being considered by SCOTUS in these cases is whether cell phones are unique because of the wealth of hyper-personal information contained within them or whether they are indistinguishable from other personal effects like car keys, wallets, address and appointment books (remember those?), folded handwritten notes, and the like.
Circuit courts are split on the issue and the hope is that SCOTUS solves the circuit split and provides a clear rule (preferably clearer than the GPS ruling last session!) on the treatment of arrestees' cell phones.
As a general matter, the 4th Amendment requires police to obtain a warrant before searching or seizing one's personal effects. However, SCOTUS has established several exceptions to the general rule including an exception that, after one is arrested, police may search and seize items on the person or within the person's wingspan in order to promote officer safety and prevent destruction of readily-available evidence.
The question being considered by SCOTUS in these cases is whether cell phones are unique because of the wealth of hyper-personal information contained within them or whether they are indistinguishable from other personal effects like car keys, wallets, address and appointment books (remember those?), folded handwritten notes, and the like.
Circuit courts are split on the issue and the hope is that SCOTUS solves the circuit split and provides a clear rule (preferably clearer than the GPS ruling last session!) on the treatment of arrestees' cell phones.
Friday, January 17, 2014
Florida's Right to Privacy
An owner of websites that publish names and likenesses of recent Florida arrestees will have to defend himself against invasion of privacy claims according to this federal ruling.
Florida's right to privacy is much more explicit and stronger than its federal counterpart. Unlike the US Constitution, Florida's Declaration of Rights includes a specific protection against the government intruding into your private life.
But what about intruders that aren't the government? In addition to the recognized common-law tort of invasion of privacy, Florida Statutes Section 540.08 prohibits companies and individuals from using your name, picture, or likeness without your express permission. The protection even lasts after you die (a designee or family member must then provide the consent).
This website was a commercial website according to the federal ruling because it received advertising revenue and provided a way for recent arrestees to pay the website to remove the arrestee's picture and name from the site.
From here, the defendant website owner will fight to win on the merits of the case. The case is still in its early stages and there is no timeline for the final decision yet.
Florida's right to privacy is much more explicit and stronger than its federal counterpart. Unlike the US Constitution, Florida's Declaration of Rights includes a specific protection against the government intruding into your private life.
But what about intruders that aren't the government? In addition to the recognized common-law tort of invasion of privacy, Florida Statutes Section 540.08 prohibits companies and individuals from using your name, picture, or likeness without your express permission. The protection even lasts after you die (a designee or family member must then provide the consent).
This website was a commercial website according to the federal ruling because it received advertising revenue and provided a way for recent arrestees to pay the website to remove the arrestee's picture and name from the site.
From here, the defendant website owner will fight to win on the merits of the case. The case is still in its early stages and there is no timeline for the final decision yet.
Wednesday, January 15, 2014
Florida's Living Will Law As Applied to Pregnancy
The importance of making a living will has been getting a lot of publicity after the husband for a pregnant Texas woman, brain dead for almost two months, began his fight to end life support despite the pregnancy. Texas law arguably prohibits ending life support for a person who is pregnant. But what does Florida law say?
WHAT YOU NEED TO KNOW: Florida Statutes Section 765.113 requires that a person EXPLICITLY state that they do not want life-prolonging procedures if their child is not yet viable.
A "blanket" living will designating a surrogate to make decisions on your behalf might not be enough. If you want to ensure that your wishes are followed, you need to explicitly state in your living will that you do not want medical staff to keep you on life-prolonging machines and techniques to bring your child to viability.
It also is a good idea to include an explicit statement if you DO want life-prolonging measures taken to save the baby even if you will not be able to be revived.
WHAT YOU NEED TO KNOW: Florida Statutes Section 765.113 requires that a person EXPLICITLY state that they do not want life-prolonging procedures if their child is not yet viable.
A "blanket" living will designating a surrogate to make decisions on your behalf might not be enough. If you want to ensure that your wishes are followed, you need to explicitly state in your living will that you do not want medical staff to keep you on life-prolonging machines and techniques to bring your child to viability.
It also is a good idea to include an explicit statement if you DO want life-prolonging measures taken to save the baby even if you will not be able to be revived.
Tuesday, January 14, 2014
Pets are Property, But Should It Be A Crime to Deny Ownership?
Pet lovers might not like this story very much, but the topic is worth discussion.
The law takes a very harsh look at pets. Simply put, pets are viewed as personal property like your television, wallet, and car. Pets have no "special" rights and disputes over pets are treated just like any other property dispute. That includes the "legal fiction" that damages can make the owner "whole" if their pet (property) is damaged or destroyed (killed).
As for the story itself, The District of Columbia has a law on the books that makes it a crime for a person to deny ownership of an animal when in fact they are the true owner of the animal. Exemptions exist for pet shops, animal shelters, and the like; but an individual owner faces a fine each time they deny ownership of their pet.
The plaintiff in this story is challenging the law based on the First Amendment. The plaintiff is an animal activist whose public speaking tour includes a message seeking to make the audience reevaluate the traditional notions of "pet" and "owner". He has declined public speaking appearances in the District to avoid violating the law.
The law takes a very harsh look at pets. Simply put, pets are viewed as personal property like your television, wallet, and car. Pets have no "special" rights and disputes over pets are treated just like any other property dispute. That includes the "legal fiction" that damages can make the owner "whole" if their pet (property) is damaged or destroyed (killed).
As for the story itself, The District of Columbia has a law on the books that makes it a crime for a person to deny ownership of an animal when in fact they are the true owner of the animal. Exemptions exist for pet shops, animal shelters, and the like; but an individual owner faces a fine each time they deny ownership of their pet.
The plaintiff in this story is challenging the law based on the First Amendment. The plaintiff is an animal activist whose public speaking tour includes a message seeking to make the audience reevaluate the traditional notions of "pet" and "owner". He has declined public speaking appearances in the District to avoid violating the law.
Monday, January 13, 2014
SCOTUS Bursts NCAA's Video Game Appeal Bubble
Sports game fans and NCAA supporters had a rough day with SCOTUS (Supreme Court of the United States).
A brief background: Former collegiate players sued the NCAA for making profits off the players' names and likenesses. Those of you who have played EA Sports games in the past are no doubt familiar with players named "PF 31" for UCLA with Ed O'Bannon's height, weight, and attributes. Plaintiffs alleged misappropriation, a privacy tort that prevents tortfeasors from using one's name or likeness for pecuniary gain (profit) without the person's consent.
The gist of this ruling: Players won against the game providers and several arms of the NCAA. The NCAA chose not to appeal the decision and some argue tried to "freeload" their way through the appeals process, never thinking that EA and others would actually settle. But the companies did settle (goodbye NCAA Football & Basketball games) and now the NCAA is on the outside looking in (much like Kentucky in last year's NCAA Men's Basketball Tournament).
After the appeals lawsuit was settled between EA and the players, the NCAA's First Amendment arguments disappeared and the NCAA petitioned SCOTUS to intervene with their First Amendment arguments. SCOTUS rejected the motions to intervene today, endangering the NCAA in their attempts to rejoin the legal arguments.
A brief background: Former collegiate players sued the NCAA for making profits off the players' names and likenesses. Those of you who have played EA Sports games in the past are no doubt familiar with players named "PF 31" for UCLA with Ed O'Bannon's height, weight, and attributes. Plaintiffs alleged misappropriation, a privacy tort that prevents tortfeasors from using one's name or likeness for pecuniary gain (profit) without the person's consent.
The gist of this ruling: Players won against the game providers and several arms of the NCAA. The NCAA chose not to appeal the decision and some argue tried to "freeload" their way through the appeals process, never thinking that EA and others would actually settle. But the companies did settle (goodbye NCAA Football & Basketball games) and now the NCAA is on the outside looking in (much like Kentucky in last year's NCAA Men's Basketball Tournament).
After the appeals lawsuit was settled between EA and the players, the NCAA's First Amendment arguments disappeared and the NCAA petitioned SCOTUS to intervene with their First Amendment arguments. SCOTUS rejected the motions to intervene today, endangering the NCAA in their attempts to rejoin the legal arguments.
Friday, January 10, 2014
Virginia Appeals Court Reacts to Defamatory Postings from Anonymous Authors
Many areas of the law are ancient and slow to change (think Contracts). But defamation is not one of them and that is why I am so fascinated by it.
Case in point: a Virginia Appeals Court has ruled that Yelp, a popular online review site, must disclose the names of seven anonymous posters who allegedly defamed a carpet cleaning service. In fact, the posters were not customers and had posted malicious comments alleging they were overcharged for services not ordered and the like.
WHAT YOU NEED TO KNOW: Defamatory language is not protected by the First Amendment of the U.S. Constitution or Florida's Declaration of Rights. If you post something "anonymously", that doesn't mean that your identity will be protected. Services like Yelp, in their Terms of Service, protect identities for "opinions" posted on their sites. If you are posting maliciously, the post is not your "opinion". Therefore, you are violating the Terms of Service for the site and sites can freely disclose your identity, even if there is no pending lawsuit.
If, as in this case, the online provider resists efforts to disclose identities, this court opinion suggests that, upon a showing that the post is from a non-customer, the court can compel the service to disclose the identity of the poster.
With the identity known, rest assured that the business will file a defamation suit against the poster. Be careful what you write on the Internet, even if you are posting anonymously.
Source: http://www.courthousenews.com/2014/01/09/64385.htm
Case in point: a Virginia Appeals Court has ruled that Yelp, a popular online review site, must disclose the names of seven anonymous posters who allegedly defamed a carpet cleaning service. In fact, the posters were not customers and had posted malicious comments alleging they were overcharged for services not ordered and the like.
WHAT YOU NEED TO KNOW: Defamatory language is not protected by the First Amendment of the U.S. Constitution or Florida's Declaration of Rights. If you post something "anonymously", that doesn't mean that your identity will be protected. Services like Yelp, in their Terms of Service, protect identities for "opinions" posted on their sites. If you are posting maliciously, the post is not your "opinion". Therefore, you are violating the Terms of Service for the site and sites can freely disclose your identity, even if there is no pending lawsuit.
If, as in this case, the online provider resists efforts to disclose identities, this court opinion suggests that, upon a showing that the post is from a non-customer, the court can compel the service to disclose the identity of the poster.
With the identity known, rest assured that the business will file a defamation suit against the poster. Be careful what you write on the Internet, even if you are posting anonymously.
Source: http://www.courthousenews.com/2014/01/09/64385.htm
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