Lowering the Bar

New Video Questions Dupre's Claim

Welcome back to the case that poses the following legal questions, among others:

1. Is it possible to have less than zero credibility, and
2. What happens if both parties to a lawsuit suffer from that handicap?

I think the answer to the first question is yes -- if a credibility level of zero means that no one believes anything you say, then negative credibility would mean that, just because you say something, people are more likely to believe the opposite is true.  In legal terms, we would call that an inference or possibly a rebuttable presumption of falsity as to any fact to which the witness might testify.

The second question is harder, but it's clearly at issue in the case filed on April 28 by Ashley Dupre (a.k.a. "Kristen") against "Girls Gone Wild" founder Joe Francis.  Dupre's allegation that she had no idea what "Girls Gone Wild" was all about did not really have the ring of truth, but then neither did Francis's comment that he was shocked, shocked, to discover there was drinking going on and that he personally put Dupre on a bus home as soon as he learned this deeply disturbing fact.

At that point, it looked like this credibility battle was already at the Rocky-II-Finale stage, in which both fighters are laying on the canvas and neither one should get up but you figure one probably will at the end if only because Burgess Meredith won't shut up otherwise.  But the next day, Francis got in another punch.  Late on Tuesday, April 29, he released a video that he said proved the falsity of Dupre's allegations that she had not consented.  Maybe -- you be the judge:

Complaint, Paragraphs 13 and 14 (emphasis added):

13.   At no time did Plaintiff consent to any use of her likeness or image in any manner or to be used for the advertisement or commercial gain of the Defendants.

14.  It is the regular business practice of Defendants . . . to induce unsuspecting young girls to perform for their cameras.

Video released today:

Q: Do you know what "Girls Gone Wild" is?

A: [laughs] Yes, I do.

Q: Can I use this on "Girls Gone Wild"?

A: Of course you can.

The video also shows Dupre displaying a fake ID.  That of course does not prove that Francis didn't know he was dealing with underage girls, or that a 17-year-old's consent would be legally valid.  But it does tend to undermine Paragraphs 13 and 14.

Really, both parties ought to stand down at this point, before they reach critical mass and form a credibility black hole from which no truthful statement would ever be able to emerge.  Though I'm concerned it may already be too late.

Link:  MSNBC.com

Client 9's Playmate Sues Over "Girls Gone Wild" Video

Ashley Alexandra Dupre, well into her 14th minute of fame due to her affiliation with Eliot Spitzer, has sued "Girls Gone Wild" founder Joe Francis for allegedly taking advantage of her youth and vulnerability by once filming her sans T-shirt.

Why does it seem like these two may be perfect for each other?

In the complaint, filed on April 28 in the Southern District of Florida, Dupre alleges that she encountered "agents and representatives" of Defendant and his production company in 2003, when she was 17 and just trying to stay out of trouble while on spring break:

10.  On said date, Plaintiff was socializing with friends at the Chesterfield Hotel when she was approached by [said agents and representatives].  They offered Plaintiff alcoholic drinks.  After Plaintiff became drunk, they induced her into [sic] exposing her breasts while being filmed.  While drunk, Plaintiff was told to sign a "release." . . .

11.  At the time of these events, Plaintiff did not understand the magnitude of her actions nor that her image and likeness would be displayed in videos and DVDs produced and distributed by Defendants.

12.  Likewise, at the time Plaintiff signed the "release," Plaintiff did not and could not foresee that she would later have sex with a famous person for money, thus herself becoming famous and therefore acquiring a valuable legal claim.

Okay, I made up Paragraph 12, but Dupre does allege that the defendants have profited by means of advertising designed to capitalize on Plaintiff's "fame and notoriety," which, if I'm not mistaken, is due to having had sex with a famous person for money.

According to the Miami Herald, Francis's version of the Paragraph 10 events is very different.  As he tells it, Ms. Dupre was completely sober while going wild, and he personally -- personally, mind you -- put her on a bus home after catching her with a beer.  As you know, drinking is strictly against "Girls Gone Wild" policy.

Dupre's complaint contains eight counts, including unjust enrichment, Lanham Act claims, state-law false advertising and unfair competition claims, unauthorized publication of Plaintiff's likeness, and, of all things, cybersquatting.  The complaint seeks damages of not less than $10,000,000.  That is likely to pose some proof problems, especially as to the Lanham Act allegation that defendants' acts "have cause[d] substantial and irreparable injury . . . to the Plaintiff's business, reputation and good will."   I doubt that the reputation of someone who [disturbing phrase deleted] with Eliot Spitzer while [matter redacted due to protective order] and also putting [sanitized for your protection], not once, but [illegible], while in Washington, D.C., has been harmed that much by an ad for "Girls Gone Wild."

Joe Francis, who has made millions from the GGW videos and who, according to this month's issue of Scientific American, is an utter sleazebag, paid someone to come up with a pretty good line.  "I think it's ironic," he told CNN, "that she charged Gov. Spitzer $2,000 for sex and she wants to charge me $10 million for taking some naked pictures of her."  Not bad, and a lot better than the line he tried out after being held in contempt in 2007, also in Florida; that, Francis announced, was a case of a "judge gone wild."  A little more effort, please.

Link: CNN.com
Link: Miami Herald
See also "'Girls Gone Wild' Founder Says Judge Has Gone Wild in Suit Filed by Girls Who Had Previously Gone Wild," Lowering the Bar (Apr. 6, 2007); and "'Girls Gone Wild' Creator, Residing in Hole, Continues to Dig," Lowering the Bar (Apr. 16, 2007).

UPDATE: "Duct Tape Bandit" Pleads Guilty

The improbably named "Kasey G. Kazee," better known to history as the "Duct Tape Bandit," pleaded guilty on April 29 to robbing a Kentucky liquor store.  The robbery failed despite the fact that Kazee had carefully prepared for the robbery by wrapping his head in duct tape.  Kazee, who was unarmed, was quickly subdued by store employees.

The penalty for second-degree robbery can be as much as 10 years, but if I were the judge I would say that Kazee paid his debt to society when they yanked off his disguise.

Link: Yahoo! News

"The Secret": Your Path to Happiness, Love, Litigation

Some of you may be familiar with "The Secret," an enormous bestseller that encourages people to follow the "law of attraction," which I thought was something that made people hang out near playgrounds but which turns out to be "an ancient principle that holds that the universe will make your wishes come true if only you really, truly believe in them."

I agree there is an ancient principle at work here, but it's one I refer to as "bullshit."

The Secret was discovered, or rediscovered, or whatever, by Rhonda Byrne, who has made millions from the book and DVD versions.  Byrne's website, which is not secret, does not state exactly what the Secret is, although you can "Own the Secret" on DVD for just $19.95, or in book form for just $16.95.  (Here's another secret -- you can get it on Amazon.com for $14.37.  But don't.)

Now there is at least some evidence that the Law of Attraction does not always deliver on its promise of unlimited happiness and prosperity, namely a federal lawsuit.  On April 25, James Heriot, the director of the movie version of "The Secret," sued Byrne and her production company in the Northern District of Illinois, alleging that Byrne is not sharing the profits generated by the ancient principle as she had promised to do.  He is claiming up to half of the "Secret" profits, which he estimates at about $300 million.

Heriot wants to make clear, however, that just because the main purveyors of "The Secret" are now at each other's throats does not mean that "The Secret" isn't "The Secret" to unlimited happiness as they have been saying:

To all who have been inspired by "The Secret," [Heriot said in a statement issued through his law firm,] please know that I am not suing the universal principles of "The Secret." Rather, I am suing the corporate principals behind "The Secret," who promised at the outset that profits would be shared, and who have not kept faith with "The Secret"'s tenets of gratitude and integrity."

Got it -- universal principles not being sued, integrity of Secret unquestioned.

In fact, it seems hard to say whether this does call the validity of "The Secret" into question.  On one hand, it seems unlikely that Byrne's wishes included attracting a federal lawsuit.  On the other, isn't Heriot just following her advice by hoping that his wishes for $150 million will come true if only he really, truly believes in them and prevails in a copyright lawsuit?  Does "The Secret" describe how the ancient principle applies when two people wish for the same thing with all their hearts in federal court?  I hope the universe will provide the answers to these questions, or at least will deliver more comical "Secret"-generated lawsuit stories.

Byrne told the New York Times last year that "The Secret" was never about profit; she simply wanted to give her knowledge to the world, so that others could discover what they were intended to do with their lives as she had.  "One of the big things in discovering the secret," she said, "was discovering me."  And there is more discovery of her coming in the near future.  Byrne's deposition in a second case related to Secret profits is set for May 6, in Los Angeles.

Link: New York Times

European Union Passes Volume Limits for Bagpipes

Bagpipers across Europe are protesting new regulations that would force them to pipe quietly.  European Union officials in Brussels have ruled that, under EU health and safety laws, bagpipes cannot expose users to average noise levels of more than 85 decibels.  This is a problem because, as you probably know from your college bagpiping class, full-volume piping can reach 122 decibels, nearly as loud as a 747.

The new regulations apply to weekly average noise levels, so they do not completely forbid loud pipery, so long as loud periods are balanced by equivalent amounts of quiet time.  Pipists point out, however, that this does not help them at all.  "You can't play the pipe quietly," said Ian Hughes, leader of a Royal Air Force band in Scotland.  "They haven't got a volume switch."  Hughes said that the regulations would therefore effectively ban bagpipe playing.

Even more importantly, they could also ban rock & roll, the practitioners of which are known to use amplifiers with volume settings that rarely go below 10 and may actually go to 11.  The Who reached 126 decibels in a 1976 concert, reportedly the loudest ever until a British punk band hit 132.5 just last year.  (That beats the 747 by 2.5 decibels.)  Lemmy Kilmister, the lead singer of ear-bleeding metal band Motorhead, said his lot would not be complying.  "The essence of rock & roll is loud music," he said.  "How the hell can we be expected to enjoy ourselves if we've got to turn it down?"

Link: Times Online

Benny the Bull In Trouble Again

An Illinois dentist has sued the Chicago Bulls after allegedly being injured by the team's mascot, Benny the Bull, in what is a rare example of a lawsuit predicated on a negligent high-five.

Don Kalant alleges he was watching a game on February 12 when he raised his arm to get a high-five from Bull.  Kalant thus admits he initiated the contact, but alleges that the high-five he solicited was delivered negligently.  According to the lawsuit, rather than merely high-fiving, Bull grabbed Kalant's arm and fell forward, hyperextending Kalant's arm and rupturing his bicep.  Kalant's attorney declared that this was not an accident, but rather "part of the shtick."

"Benny's flying down the aisle, giving everybody high-fives," Kalant's attorney, Shawn Kasserman, said Monday in a telephone interview. "When he gets to Dr. Kalant, he either inadvertently trips or, as part of the shtick, trips. . . . He grabbed Kalant's arm and fell forward."

Kalant later had surgery and allegedly will miss as much as four months of work.  (He was, however, was able to make it through the rest of the Bulls game.)  He is suing the team on the theory that it is vicariously liable for its mascot's behavior.

Benny was last in trouble (to my knowledge) in July of 2006, when he was arrested after allegedly punching an off-duty police officer who was trying to get him to stop riding his tiny motorcycle through a festival crowd.

Link: Chicago Tribune

Charges Dropped in "Weekend at Bernie's" Case

New York prosecutors dropped charges today against two men who had been charged with a number of offenses resulting from an attempt to cash a Social Security check in January.  The problem, as you may recall, was the body they brought along with them.

As the New York Times reported on January 9, James O'Hare and David Dalaia showed up at a check-cashing business with a check that belonged to Virgilio Cintron.  Apparently recognizing they might have some explaining to do, they took Mr. Cintron along with them, although to do so they had to put him in an office chair and wheel him down the street, since Mr. Cintron had recently died.  But the clerk, who knew Cintron from the neighborhood, asked where he was.  "He's outside," O'Hare said, pointing.

Which, of course, he was, along with a small crowd that had gathered after seeing the odd procession.  A detective who happened to be eating lunch nearby noticed the crowd, which led to the arrest.  Ultimately, O'Hare and Daloia were charged with forgery, criminal possession of a forged instrument, attempted petit larceny, and improper disposal of a body.  Of those, I think only larceny makes any sense, unless a body can be a "forged instrument."

At the time, the medical examiner found no signs of foul play in Mr. Cintron's death, and that conclusion was restated today by prosecutors, who also said the examiner could establish only that Cintron had died of natural causes sometime during the 24 hours prior to the check-cashing attempt.  Therefore, they could not disprove the defendants' story, which, if I am reading this report correctly, was that Cintron was alive when they left home and must have died as he was being wheeled down the street.

Link: AP via FindLaw.com

Hair Salon's Reign of Terror Finally Ended

The Baolou International Beauty Salon in the city of Zhengzhou, China, has finally been closed by authorities.  The salon had apparently been terrorizing local residents, who cited a number of incidents in which unsuspecting hair-growers had been vastly overcharged for haircuts and were then held hostage until they agreed to pay the exorbitant fee.  This seems to have gone on for at least six months.

The last straw for Baolou International, which despite its name probably does not attract that many international clients, was an incident in which two college students had expected to pay the advertised rate, 38 yuan apiece.  That would have equalled a reasonable $10.84 for both haircuts.  Instead, they were eventually presented with a slightly larger bill, for 12,000 yuan ($1,700).  Although, to be fair, this did include a wash and blow-dry.

When the students couldn't pay, they were not allowed to leave, and were reduced to trying to borrow money from strangers and classmates in order to appease the evil stylists.  "After borrowing from 16 people," the Beijing News reported, "the two were only able to come up with 9,800 yuan, and it wasn't until after 10 pm that they were allowed to leave the hair salon."

It was not clear why no one called police to report the hostage crisis, or for that matter how the salon got away with this for at least several months.  One report said that the salon charged one customer 4,776 yuan for a haircut last September, and charged another one 5,670 yuan last December.  That customer, though, had opted for the 68-yuan cut to begin with, so he or she clearly had yuan to burn.

According to one report, nearly 100 citizens showed up to witness the closing of the salon, applauding the end of its reign of terror.  The Xinhua News Agency later reported that officials had fined the salon the maximum 500,000 yuan ($71,225), which comes out to 13,157 haircuts (at the advertised rate).

Link: Reuters
Link: Xinhua News Agency via China.org.cn

Obama's Campaign Font Said to Offer Hope, Geometric Simplicity

For those of you wondering about the secret of Barack Obama's success, that mystery has been solved-- it's the font:

Steven Heller: As a branding expert, can you tell me what it is about the typographical scheme of Senator Obama's campaign that is unlike his challengers' ?

[Graphic designer] Brian Collins: [A]s a result of their approach to design, the Obama campaign really stands out. From the bold "change" signs to their engaging Web site to their recognizable lapel pins, they've used a single-minded visual strategy to deliver their campaign's message with greater consistency and, as a result, greater collective impact. The use of typography is the linchpin to the program.

This appeared in the New York Times not too long ago, although you probably remember most of it from Obama's book, "The Typography of Hope."  It continued:

Q: What is it about the typeface Gotham that adds personality to the Obama brand?

A: I don’t think that Gotham adds any personality to Senator Obama's brand. I think it just amplifies the personality that's already there. . . . With that said, though, there's an oxymoronic quality to Gotham, which is why I think it's become so popular. It has a blunt, geometric simplicity, which usually makes words feel cold and analytical . . . , but it also feels warm. It's substantial yet friendly. Up-to-date yet familiar. That's a tough hat trick. And Gotham has another quality that makes it succeed: it just looks matter-of-fact. . . .

Q: Could this have been accomplished with other typeface(s)?

A: Yes.

There was an oxymoronic quality to this exchange, which sounded important while actually being sort of pointless.  It's a fine font, there's no question.  But is it the font you would want to see when you get an email from the White House at 3 a.m.?  That's what you should be asking yourself - does it have the strength of character(s) we need to win the War on Terror?  I have a lot of respect for McCain, but that guy is still using Courier, for Christ's sake.

Whatever happens in November, at least we will be done with WingDings.  Hopefully.

Link: Campaign Stops (a New York Times blog)
Link: See Gotham in its native habitat at BarackObama.com

Idaho Official: Democratic Primary Will Be Three-Way Contest; Also Pointless

Idaho Secretary of State Ben Ysursa said on April 16 that the state's Democratic primary, set for May 27, will be a three-person race.  In addition to better-known candidates Barack Obama and Hillary Clinton, Keith Judd has also qualified to participate, Ysursa said, even though he currently is a Texas resident.

Specifically, he is residing in the Beaumont Federal Correctional Institution, where he was sent after being convicted of making threats at the University of New Mexico in 1999.  He would likely have difficulty serving as President if elected, as he is required to live at the BFCI until 2013.  Although I suppose he could pardon himself.

Ysursa said that Judd, shown here in a prison photo either wearing a long ponytail or being attacked by a ferret, qualified for the ballot by sending in the required form and paying the $1,000 fee.  Judd also managed to qualify for a write-in slot in Kentucky, Indiana, Florida and California, but only Idaho is actually putting his name on the ballot.  According to Ysursa, his hands are tied because Judd filled out the right form and paid the fee.  "We did some checking," he claimed, and "there was nothing legally to keep him off [the ballot]," as far as they could tell.  (Note to self: in-state residence, lack of criminal record, physical freedom, not legal requirements to run for office in Idaho.)

Democrats are a little suspicious as to why Ysursa, who is a Republican, has let Judd on the Democratic primary ballot, given that he previously disqualified a Democratic candidate for state senate on the grounds that the candidate, though apparently not a prisoner, was registered to vote in the wrong district.  (Note to self: registration requirements strictly enforced in Idaho.)  "We have this really good candidate who can't get on the ballot," said a state Democratic spokesman, "and this yahoo prisoner in Texas who coughs up a thousand bucks can."

Ysursa did not respond to that directly, instead sticking to the story that though his office "did some checking," they simply "got conned."  He also pointed out that Judd's presence on the ballot will not make any difference anyway, since Idaho's delegates are chosen in caucuses, not in the primary.

"The good thing," he said, "is the Democratic presidential primary has absolutely no legal significance."

Link: CBS News