Monthly Archives: June 2009

8092 – Talk is Cheap


If a radio talk show host calls you a liar, you may just have to take it lying down.  This case involved the Tom Martino Show, a nationally-syndicated talk show that tries to help consumers.  One day Tom took a call from Melissa, who was complaining that her jet ski kept overheating and for the entire boating season spent more time in the shop than on the water.  Tom concluded “they’re just lying to you.”  And after talking off air to the dealer and the manufacturer, Tom added “they admitted to us they lied and they went back on their word.”  The dealer and manufacturer sued for defamation, but the Court has found for the show saying the statements were not assertions of fact but were just opinion.  The Court also said radio talk shows contain many elements that reduce the audience’s expectation of learning objective facts, including drama, hyperbolic language and an opinionated and arrogant host.  Also, the plaintiffs were given the opportunity to call in, but chose not to do so.  So as far as lawsuits for lying, well, they’re all talk and no go.


John M. Gardner, Susan L. Gardner and Mt. Hood Polaris, Inc. v. Tom Martino d/b/a The Tom Martino Show, Westwood One, Inc., No. 06-35931, Ninth Circuit Court of Appeals, April 24, 2009, Marshall, J.

8091 – A Trademark with Reservations


You can go on the warpath about a lot of things, but taking away the name of the Washington Redskins isn’t one of them.  This case got started when a group of Native Americans asked the Patent and Trademark Office to cancel the trademark of the Washington Redskins on the grounds that the team name was disparaging towards members of their ethnic group.  After the PTO agreed, the team appealed to the Court, which reversed holding the Native Americans waited too long to challenge the Redskins name on which the league and the team had spent millions in promotion.  The Court accepted the defense of laches, which basically means if you wait too long to assert your rights you lose them.  The Court said, “equity aids the vigilant and not those who slumber on their rights.”  The plaintiffs also challenged the Redskins cheerleaders, the Redskinettes.  But the Court said since Redskinettes is derived from Redskins, laches latches on for them as well.  Another lawsuit is in the works, but for the moment the Redskins and the Redskinettes will keep on putting skin in the game.


Pro-Football, Inc. v. Suzanne S. Hario, et al., U.S. Court of Appeals for the District of Columbia, No. 03-7162, May 15, 2009, Tatel, J.

8090 – A Flash and a Pan


Suits against gun manufacturers are still coming up empty.  This case got started ten years ago when Bufford Furrow shot and wounded five victims at a Jewish community summer camp in Granada Hills, California and later shot and killed a postal worker.  The shooting victims and the postal workers’ widows sued the manufacturers, distributors and sellers of the guns, claiming they knew the weapons would be obtained by illegal purchases for criminal purposes.  The Ninth Circuit Court of Appeals allowed the case to proceed, but then Congress passed the Protection of Lawful Commerce in Arms Act, which specifically requires that Federal Courts immediately dismiss civil actions for damages against manufacturers or sellers of qualified firearms, and the Court held it had no choice but to dismiss the case.  The plaintiffs argued the shootings occurred before the law was passed, but the Court said Congress can change the law while cases are pending.  The suit against one Chinese defendant will continue, but as for Glock and all the others, the cases, like the victims, have been blown away.

Ileto vs. Glock, Inc., Ninth Circuit Court of Appeals, No. 06-56872, May 11, 2009, Graber, J., USLW, Vol. 77, No. 44, Pg. 1705 5-19-09

8089 – Not With a Bang But With a Whimper


Our Courts are open to all, even to suspected terrorists, who sue the Attorney General and the head of the FBI.  Shortly after 9/11, Javaid Iqbal was one of 184 persons deemed to be of “high interest” and held at that the Metropolitan Detention Center in Brooklyn.  After pleading guilty to immigration and fraud charges, he was returned to Pakistan.  He then sued Attorney General Ashcroft and FBI Director, Mueller claiming he subjected to unconstitutional treatment during his detention, that he was repeatedly kicked and punched, subjected to unreasonable strip searches and not allowed to pray.  The District Court and the Court of Appeals refused to dismiss the case, but the U.S. Supreme Court has ruled that officials cannot be held personally liable for acts committed by others, that purposeful bias must also be proved and that mere knowledge of subordinates’ discriminatory action is not enough. So, in the end, the rule of law protects those who make the rules as well as those who break them.

John D. Ashcroft, former Attorney General, et al. v. Javaid Iqbal, et al., U.S. Supreme Court, No. 07-1015, 5-18-09, Kennedy, J. USLW, Vol. 77, No. 44, Pg. 4837 5-19-09 (DIDN’T HAVE A PRAYER)

8088 – Exposing Yourself to a Lawsuit


If your ex-boyfriend posts your naked picture on Yahoo’s website, can Yahoo be held responsible?  And here’s the naked truth on this one.  It all began when Cecelia’s ex-boyfriend created a profile of her without her permission, and posted it in several chat rooms on Yahoo’s website.  The profile included pictures of them naked together and encouraged males to check her out, when they did, they were treated to the pictures along with her address and telephone number.  In the words of the Court, she was inundated with male suitors expecting to have sex with her.  She sued Yahoo, but the Court held that the Communications Decency Act shields Yahoo from tort liability, that intermediaries cannot be held liable for what is placed on their sites by others.  The Court did hold, however, that she did had a breach of contract claim because a Yahoo representative had promised that the material would be removed, even though it wasn’t until she sued.  So, there it is, the Communications Decency Act protects indecency, while old-fashioned contract law rides to the rescue.  Go figure?


Barnes v. Yahoo!, Inc., No. 05-36189, slip op. (9th Cir. May 7, 2009).

8087 – No Pacifier for Pensions


If your pregnancy stunts the growth of your pension, can you do anything about it?  This case involved the question of whether pregnancy disability leave can be treated differently from regular disability leave when it comes to pension benefits and during the sixties and seventies, a large communications company gave employees who went out on disability full credit towards retirement.  But if you went out on pregnancy disability leave, that was treated as personal leave and capped at thirty days.  Now, if you’re thinking that’s really unfair and it should be illegal, well, you’re right; because it is unfair and it is now illegal.  The Pregnancy Discrimination Act makes it unlawful to discriminate an employment because of pregnancy.  The question for the Supreme Court was whether it should be retroactive, and David Souter, in one of his final opinions, decided that it should not be, because although the practice would clearly violate the law today, an earlier case had held that different rules for pregnancy was not discrimination based on sex.  So, while life begins at conception, pensions begin when Congress says so.


AT&T Corp. v. Hulteen, U.S. Supreme Court, No. 07-543, May 18, 2009, Souter, J., Vol. 77, No. 44, Pg. 1699, 5-19-09

8086 – Race Judicata


If store security follows you around because you’re black, can you sue for discrimination?  This case got started when a black woman shopper at a well-known retail chain realized store security were keeping her under surveillance simply because she was black.  She claimed they followed her to the dressing room and were waiting for her when she came out.  She left the store after complaining to the manager.  Another black couple had a similar experience at the same store, claiming when they took their daughter to the dressing room a sales rep. and security guard were outside when they came out.  When they complained, the sales associate snickered and said, “So what?”  The plaintiffs sued claiming that the behavior was race-based surveillance and violated the federal law that provides, “that all persons living in the U.S. have the same rights to make and enforce contracts as is enjoyed by white persons.  But the Court found that racially-based watchfulness, however reprehensible, does not prevent a shopper from making a purchase.  So several Justices dissented, but the majority ruled and because you could still buy it, the Court didn’t buy it.


Gregory v. Dillards, Inc.,  Eighth Circuit Court of Appeals, (en banc), No. 05-3910, 5-12-2009, Colloton, J., Vol. 77, No. 44, Pg. 1697 5-19-09

8085 – The Plots Thicken


Just because you apologize doesn’t mean you have to pay them back. This case involved the apology of the United States to native Hawaiians for taking their island. Back in 1993, Congress enacted a joint resolution acknowledging the illegal overthrow of the kingdom of Hawaii one hundred years earlier. The resolution also made it clear that the apology did not imply that any money would be changing hands. This case involved certain Crown lands on the island of Maui which were given back to Hawaii to be held in public trust for the support of native Hawaiians. When the Hawaiian Housing and Community Development Corporation wanted to develop the land, the Office of Hawaiian Affairs, which manages the trust, sued and won in the Hawaii Supreme Court. But the U.S. Supreme Court reversed, holding that the congressional apology did not create any substantive rights over Crown lands. So maybe another apology will be in order, although native Hawaiians are probably getting tired of losing land, getting an apology and losing land all over again.


Hawaii v. Office of Hawaiian Affairs, U.S. Supreme Court, No. 07-1372, March 31, 2009, Alito, J., USLW, Vol. 77, No. 38, Pg. 1606 4-7-09

8084 – Another Florida Recount


It is said that as Maine goes, so goes the nation. But as for whether the rest of the nation wants to actually go to Maine, well, that’s another story. This case got started when 1.6 million customers of a Florida grocery chain called “Kash ‘n Karry” learned that the store computers had been hacked and the hackers had gotten access to virtually all their credit card information. Since they were all Floridians and Kash ‘n Karry is a Florida corporation, they sued in Florida State Court. They immediately ran into the Class Action Fairness Act, which allowed the defendant to remove the case from State Court to Federal Court, and it ended up in the Federal District Court in Maine. The Florida plaintiffs appealed and the First Circuit has just send the case back to the “sunshine state.” The Court said the home state exception applies when the class members and the defendant are citizens of the state in which the action was originally filed. So cash won’t carry the case up north and the main event will be in Florida.


Hannaford Bros. Co., Customer Data Security Breach Litigation, (Grimsdale vs. Kash’n Karry Food Stores, Inc., First Circuit Court of Appeals, No. 09-1392 5-1-09, Lynch, J. USLW, Vol. 77, No. 43, Pg. 1679 5-12-099

8083 – Closing the Book on Open Meetings


Would you like to see some of your elected public officials in jail? I hope that’s not how you feel, but even if you do, it’s definitely not going to be easy putting them there. This case involved the Texas Open Meetings Act, which makes it a criminal offense to discuss public matters outside of an open meeting. Several public officials were indicted for exchanging e-mails that discussed privately whether or not they were going to call a council meeting to consider a controversial contract. They sued to block the prosecution, and the Court that first heard the case upheld the indictment, holding they could be prosecuted to the fullest extent of the law joining in the human cry to teach our public a lesson they won’t forget. But the Appeals Court reversed, holding that the law violated their right to free speech, and that public officials cannot be criminally punished for speaking out on matters of policy. So putting public officials in jail turns out to be a very hard sell, and despite open meetings and closed e-mails, taking bytes out of crime doesn’t play.


Rangra v. Brown, Fifth Circuit Court of Appeals, No. 06-51587 4-24-09, Dennis, J., USLW, Vol. 77, No. 43, Pg. 1685, 5-12-09