Monthly Archives: September 2009

8145 – Flagging Down a Good Deed


You’d think we could all get along, at least when it comes to remembering 9/11.  This case got started just after September 11, 2001 when artist Dean Baer was inspired to paint a rendering of the U.S. flag.  To make sure the image was used for a good cause he entered into a contract with Scholarship America, which benefitted dependents of attack victims.  The agreement provided that Baer would guarantee donations to the fund and could also use Scholarship America’s trademarks provided he’d gotten written approval in advance.  His draft press release was not approved in time for the first anniversary of 9/11 and he was then informed that a corporation was interested in exclusive use of the image.  Baer agreed before he found out that the corporation was Easy Spirit Shoes and the image was going to be on a hang-tag attached to a shoe.  Baer sued for breach of contract, but the Court held for Scholarship America finding the agreement could have covered shoe tags as well as full-size prints, and shoe buyers were referred to a link where they could buy the full image.  So hang tags will hang tough and shoes instead of shows and clearly the road to help is paved with good intentions.


Baer Gallery Inc. v. Citizens Scholarship Foundation of America, Inc., No. 05-2620, 6-16-2006, Wollman, J., 450 F. 3d 816 (8th Cir. 2006).

8144 – Off to the Laces


Holy shoes!  This is the first case I’ve seen where a lawyer was trying to put his best foot forward in the courtroom by wearing shoes with holes in them.  The case involved a lawsuit for personal injuries suffered in a car accident.  It seems the defense lawyer was well known for wearing shoes with holes in them, which he manages to display to the jury, proving he’s a man of humble means and getting the jury to like and trust him.  The plaintiff’s lawyer decided he was sick and tired of the defense lawyer’s heavy-footed tactics and filed a motion to compel defense counsel to wear appropriate shoes at trial.  The motion read it’s well known in the legal community that Michael Rob wears shoes with holes in the soles when he’s on trial, that he wears these shoes as a ruse to impress the jury and that he should be required to wear shoes without holes in them at trial.  It’s clearly one of the first cases where a lawyer has bared his sole and it reminds us that time wounds all heels.  The judge’s decision will be the last word and it’ll probably have a lot of footnotes.


Boyd Lenkersdorf, et al. v. Michael Sorrentino, et al., Circuit Court for the 15th Judicial District in and for Palm Beach County, Florida, Case No. 502005, CA004986

8143 – Gagging on Your Own Order


Can they keep you from talking about your divorce case ever?  This case involved a celebrated divorce between Nicholas Perricone, the popular anti-aging dermatologist guru, and his former wife, Madeleine.  It seems at the beginning of the bitter divorce proceedings the parties signed an agreement which provided that neither party shall disseminate to the public or the press any disparaging or defamatory information.  A few years after the divorce, Nicholas learned that Madeleine was planning to appear on a national TV program and tell all about the marriage, the divorce and a pending custody battle.  Nicholas asked the Court to bar her from appearing, which it did.  Madeleine appealed claiming that her constitutional right to free speech entitled her to talk about her divorce.  But the Court reminded us the Constitution protects us from the government, not from ourselves, and if a person voluntarily signs a confidentiality agreement, she has waived her right to free speech and parties cannot complain if the Courts merely hold them to their promises.  So hell hath no fury like a woman silenced.


Nicholas Perricone v. Madeleine Perricone, Connecticut Supreme Court, No. SC-17683, June 23, 2009, Rogers, C.J.

8142 – Talking His Way Out of Prison


When a Congressman goes on a golf trip, it may turn out to be par for the Courts even though there may be a hole in one of the government’s arguments.  This case involved former Congressman Tom Feeney, who took a now notorious golf trip to Scotland.  He claimed it was a fact-finding trip paid for by the National Center for Public Policy Research, but it turned out the trip was actually paid for by Jack Abramoff, presently in prison.  When the Congressman learned the trip was under scrutiny he asked the House Ethics Committee to look into it.  They concluded it was a junket paid for by a disgraced lobbyist and ordered repayment of $5,000.  Even though Feeney went on to be beaten in the next election, the government decided to launch a criminal investigation based on statements he’d voluntarily given the Ethics Committee.  A Lower Court said okay, but the Court of Appeals reversed citing the speech and debate clause of the U.S. Constitution which states that members of Congress shall not be questioned in any other place.  So golf links won’t be leading to chain links but Mr. Feeney has paid a high price, there’s not much debate about that.


In re Grand Jury Subpoena, D.C. Circuit Court of Appeals, No. 08-3056

8141 – Belaboring the Point


When a perfect Labor Day turns into a bad day whether or not you were working could make all the difference.  This case involved the annual Labor Day Music Festival in Beaumont, Texas, which featured the musical group Bad Company and the singer, Tracy Byrd.  It was being staged by Perfect Day Enterprises, which hired the Sullivan Advertising Agency to handle the media.  Everything was perfect until Heath, who worked for the advertising agency, decided to attend the festival.  On the way, he missed a turn and as he made a u-turn, out of nowhere came Ron on his motorcycle.  Ron barreled into Heath’s car and was killed in the ensuing crash.  His widow, Jackie, sued the advertising agency claiming Heath was working at the time of the accident.  There was expert testimony that based on industry standards the agency had to have someone attend the festival to make sure vendors and customers were satisfied.  But the Court held that Heath was just taking the day off to enjoy the festival with his family and wasn’t working.  So enjoy Labor Day, but be careful, because if your play involves work, pay to play could be right around the corner.


Jacquelyn Elmore, Individually and as Representative of the Estate of Ron Elmore v. E. Sullivan Advertising and Design Company, Court of Appeals of Texas, Eleventh District, Eastland, September 25, 2008, McCall, J.

8140 – Fire Away


This case got set off when a university student set fire to the Astroturf on the school’s football field.  He said he didn’t mean to set the whole field on fire.  He was just trying to scorch a few letters into the turf.  Unfortunately, the small fire got quickly out of control, reminding us that fire doubles every 30 seconds and the result was complete devastation of the field.  As you can imagine, university officials were not amused.  It seems Astroturf is astronomically expensive and the question became who’s going to foot the bill for the football field.  The university sued the student, whose family notified their insurance company since their homeowner’s policy pretty much covers the field, they thought it would cover this field.  But the company did an end run claiming the policy excludes property damage expected or intended by the insured.  The student said he only intended to scorch a few letters, but the Court said the underlying intent to set fire to any part of the field voids the policy.  So the insurance company scored and, even though a full field fire was not his goal, he has met his match and is in the end zone all alone.


Nationwide Insurance v. Zavalis, Court of Appeals for the Seventh Circuit, 4/1/95, 63 Law Week 2468

8139 – Divorce Degree


Are children of divorce entitled to a college education?  The question in this Pennsylvania case was whether parents of children and families where divorce has occurred should be treated differently from parents in an intact family when it comes to the obligation to send the kids to college.  The Pennsylvania Supreme Court ruled that a father in an intact family can’t be forced to pay for his child’s education, so a father in a divorced family can’t be forced to either.  Shortly after that decision, the Pennsylvania Legislature passed a law specifically declaring that children of divorce have a right to a parent pay for college education since they are more likely to fall through the cracks than children in an intact family.  But the Court ruled that while the Legislature could require parents of all children to send them to college, it cannot single out children of divorced families for extra protection since extra protection is not equal protection.  As for the argument that children of divorce are more disadvantaged, the Court said there’s no real evidence of that.  Many other Courts have come out the other way, but Pennsylvania is holding fast as a holdout.  Let’s just call it a difference of degree.


Curtis v. Kline, Pennsylvania Common Court of Common Pleas, Chester County, 20 FLR 1232