Monthly Archives: August 2009

8136 – Love Your Lawyer

 

The first thing we do, let’s kill all the lawyers.  You’ve probably heard that oft-quoted line from Shakespeare, and you may have even thought it or said it yourself.  Well, sorry to disappoint you but when Shakespeare penned that famous line it seems he meant it as a compliment to lawyers.  To find the line, we turn to Henry VI, Part 2, where we find the rebel Jack Cave with his followers Dick, the butcher, and Smith, the weaver.  Jack is discussing his plan to become king, which he could only pull off after he killed all those who stood in his way.  Jack calls for his followers to make him king, whereupon Dick, the butcher, says well, the first thing we do is let’s kill all the lawyers.  Scholars say Shakespeare actually meant the line as a compliment to lawyers and judges who protect people from tyranny and anarchy.  Jack goes on to complain about the skin of an innocent sheep, which being scribbled over, should undo a man.  Three centuries later, it’s paper instead of parchment and emails instead of scribbles.  But as for lawyers, let’s quote a little Longfellow who said, things are not always as they seem.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

King Henry VI, Part 2, Act 4, Scene 2, Line 73

8135 – Not Nudesworthy

 

Can a magazine publish nude photographs of a beautiful woman years after she was killed by her famous husband?  This case involved Hussler Magazine which decided to publish nude photos of Nancy Benoit, who along with her young son, was strangled by her professional wrestler husband, Chris Benoit, who then committed suicide.  Nancy was a well-known model and wrestler in her own right and the deaths garnered a great deal of publicity. Twenty years before these tragic events occurred, Mark took photographs and videos of Nancy.  Nancy’s mother, as administrator of Nancy’s estate, sued, to stop Hussler from publishing the photos, claiming Nancy had asked Mark to destroy them and believed that he had. The Court that first heard the case dismissed it, concluding that Nancy’s death was a legitimate matter of public interest.  But the Appeals Court reverses, stating the right of publicity does not end with death and Hussler’s headlined “exclusive nude pictures of wrestler’s doomed wife” will not be allowed, that an infamous murder does not render one’s entire life an open book.  So last rights include the right to right or wrong.

THIS IS NEIL CHAYET LOOKING AT THE LAW™
Maureen Toffoloni vs. LFB Publishing Group, d/b/a Hussler Magazine, et al., Eleventh Circuit Court of Appeals, No. 08-16148, 6-25-2009, Wilson, J.

8134 – The Wages of Debt

 

When you lose everything at the casino, can you sue the casino for making you lose everything?  This case involved a disbarred lawyer who sued three New Jersey casinos alleging they facilitated her gambling addiction and induced her to gamble away money belonging to her and to her clients.  She claimed casino employees continued to allow her to gamble despite a clear indication that she was a compulsive gambler.  She was gambling 5 days per week, losing an average of $5,000 per hour, and in one weekend she lost $150,000.  She claimed New Jersey landowners have a legal duty to make their premises safe for invitees, and these casinos were definitely unsafe for compulsive gamblers.  But the Court said the heightened duty applies only to dangerous conditions on the premises and casinos do not have a duty to rescue compulsive gamblers from themselves. The Court said her theory would impose a duty on shopping malls and credit card companies to exclude compulsive shoppers and defies both common law and common sense. So when you wager your wages, you’re out of luck and you can bet on it.

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Arelia Margarita Taveras vs. Resorts International Hotels, Inc., et al, U.S. District Court for the District of New Jersey, 9-19-2008, Bumb, J.

8133 – A Matter of Life and Birth

 

Partial birth abortion is clearly on the way out.  This case involved the Virginia law that bans what it terms “partial birth infanticide.”  The law makes it a felony to kill a human infant whose been born alive, which is defined as having been completely or substantially expelled or extracted from its mother.  The law is aimed at what’s known as the D&E procedure which stands for “intact dilation and evacuation” in which an abortion provider crushes the fetal skull of an intact fetus.  In very rare circumstances, the fetus’s head becomes lodged in the mother’s cervix and it’s necessary to end the fetus’s life in order to save the life of the mother.  The statute had been declared unconstitutional on the basis that it could prevent a doctor from saving a mother’s life, but the full bench of the Court of Appeals has reversed all earlier decisions and upheld the law.  The Court said to hold an entire law unconstitutional because of a very rare event is not appropriate and a physician can always take any action necessary to save a mother’s life. So it’s a tow hold, but for the moment, partial birth abortion has been aborted.

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Richmond Medical Center for Women vs. Herring,  U.S. Court of Appeals for the Fourth Circuit, 6-24-2009

8132 – The Court Gets with the Program

 

Good Samaritans, which began with the bible, have made it to the internet.  This case dealt with a company called “Zango,” which provides free access to its popular catalogs, if customers agree to receive on-line pop-up ads as they browse the internet.  Zango was zinged by a company called Kaspersky Lab which distributes software called “Kis.”  Kis filters and blocks potentially malicious software known as “malware” and Kis classifies Zango’s program as “adware,” a type of malware and blocks it.  In other words, Kis delivers the kiss of death to Zango’s business model,  since consumers who don’t pay the fee get the pop-ups blocked anywhere.  Zango sued but Judge Rymer with rhyme or reason held that Kaspersky Labs is entitled to immunity under the Good Samaritan Provision of the Communications Decency Act, which basically provides immunity to anybody who restricts access to harassing or otherwise objectional material on the internet. So you may see fewer pop-ups popping up thanks to the parable of the Good Samaritan.

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Zango, Inc. vs. Kaspersky Lab, Inc., Ninth Circuit Court of Appeals, 6-25-2009, Rymer, J., USLW Vol. 78, No. 1, Pg. 1010, 7-7-09

8131 – No Entitlement

 

If you bought or refinanced a house lately, you’re probably a little ticked at title insurance.  Title insurance covers the property for defects in the title, and in addition to your bank requiring the insurance, it’s probably a good idea to get an owner’s policy that protects you as well as the bank.  The problem is the cost, which is usually in the thousands of dollars, most of which goes to the bank’s lawyer who also happens to be the title insurance agent. Tom decided he was mad as hell and wasn’t going to buy it anymore and sued, claiming he was overcharged.  The rates on his coverage included an original issue rate, a reissue rate and an extended coverage rate. When Tom refinanced, the company charged him the extended coverage rate which was 20% more than the original issue rate.  He brought a class action suit under the Real Estate Settlement Procedures Act or RESPA, which prohibits split percentages or kickbacks in real estate transactions. Bu the Court dismissed the case, holding there’s another section of the law that specifically protects title insurance fees. So homeowners are not entitled to a break on title insurance.

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Thomas A. Arthur vs. Trico Title Insurance Company of Florida, U.S. Court of Appeals for the Fourth Circuit, No 08-1727, Wilkinson, J., USLW Vol. 78, No. 1, Pg. 1008, 7-7-09

8130 – It Simply Doesn’t Register

 

If you live on the streets, do you have a home?  That’s a tough question for anybody, but it’s particularly tough for a sex offender who is required by law to register his residence with the authorities.  Bill served five years for indecent assault and was also classified as a sexually-violent predator.  When he was released from prison, he was turned away from housing programs and had no choice but to live on the streets of Harrisburg, Pennsylvania.  After about a month he was arrested for not registering his residence.  The State argued even though he lived on the streets he still had to register, particularly since he had a mail address and a locker at a place called the Daily Bread.  But the Court said Black’s Law Dictionary defines residence as a house or other fixed abode, and if a homeless person drifts from park bench to bus stop to alleyway on a daily basis, he will never acquire a fixed abode.  Unless the law is changed, said the Court, he does not have to register.  So home is where the heart is and where the hearth is and while it may be heartless, the homeless are hearthless, and sex offender registration is rendered helpless.

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Commonwealth of Pennsylvania v. William Howard Wilgus, Superior Court of Pennsylvania, No. 1100 MDA 2008, June 26, 2009, Cleland, J.

8129 – It’s the Real Thing, Isn’t It

 

When you come to think of it, how do you really know that powder was cocaine?  This case got started when Boston police got a tip that a K-Mart employee, named Luis, was engaging in suspicious activity.  Police set up surveillance.  You might say a blue light special turned into a blue light special and they detained Luis and found on his person white clear plastic bags containing powder that looked like cocaine.  They also arrested two other men who, when they got out of the police car, left behind 19 more plastic bags.  The samples were submitted to the state lab which reported back by affidavit that the substance was indeed cocaine.  The defendant moved that he had the constitutional right to cross-examine the analyst.  Two Lowers Courts said no way, but the U.S. Supreme Court reversed holding analysts must be produced at trial.  The Court said forensic evidence is not immune from the risk of manipulation and 95% of cases are resolved by plea bargaining.  Four justices dissented but the majority ruled, and those who say it’s cocaine won’t be able to take a powder when it comes time to prove it.

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Luis E. Melenez-Diaz v. Massachusetts, U.S. Supreme Court, June 25, 2009, Alito, J., No. 07-591

8128 – Yelling Discrimination in a Crowded Courtroom

 

A race to the finish is one thing, but if you’re finished because of your race, well, that’s quite another.  This case, recently decided by the U.S. Supreme Court, was closely watched, both because it involved allegations of racial discrimination by white firefighters of the City of New Haven Fire Department and because Judge Sonya Sottomayor took part in the Lower Court decision.  Forty-one candidates took the test and when the smoke cleared, 22 had passed – 16 whites, 3 blacks and 3 Hispanics.  The immediate cry was the test was discriminatory, as proved by the fact that so few minority applicants passed it.  That’s called the disparate impact test, and the City decided to throw out the test result because of it.  The white firefighters sued and the Lower Court backed the City, but the U.S. Supreme Court reversed, holding that no individual should face workplace discrimination based on race.  Four justices dissented, writing that a city that’s 60% Latino and African-American has to do better.  But the majority ruled and, basically, it’s as simple as black and white.

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Frank Ricci v. John D’Stefano, et al., U.S. Supreme Court, No. 07- 1428 and 08-328, Kennedy, J., June 29, 2009, U.S. Law Week, Vol. 77, No. 50, Pg. 5639

8127 – The Sound of Silence

 

How do you feel about text spam on your cell phone?  Well, the Ninth Circuit has just short-circuited what could’ve turned out to be a real pain in the ear.  The case involved unsolicited ads sent to cell phones via the SMS system, which stands for Short Messaging Service.  The company argued that the Consumer Protection Act prohibits calls and a text is not a call.  Also, the law only outlaws calls made by automatic dialers and, lastly, the cell phone owners, in return for a special free ringtone, had agreed to receive promotional messages.  Well, the Court ruled the text message is a call, that Webster’s defines a call as to communicate with a person by telephone.  Also, although these numbers were not made by automatic dialers, the equipment had the capacity to do so and, lastly, the advertiser had to own the company making the free offer, which it didn’t.  So who you’re gonna text has run into text buster, and text spam is a hard sell for them and a soft cell phone for you.

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Satterfield v. Simon and Shuster, Ninth Circuit Court of Appeals, No. 07-16356, June 19, 2009, Smith, J., U.S. Law Week, Vol. 77, No. 50, Pg. 1831, 6-30-09