Lowering the Bar

"Gay Dog" Defense Fails in Discrimination Case

A restaurant that refused to seat a blind patron because its workers allegedly believed his seeing-eye dog was gay has been fined $1,500 by the Australian Equal Opportunity Tribunal.  The restaurant, located in Adelaide, also agreed to provide a written apology to Ian Jolly for turning him away.

I have to admit I saw this story a few days ago but did not take it seriously until this morning (not that I am going to take it that seriously, really).  I assumed that this was just a case of workers discriminating against a man they believed to be gay and later offering some stupid excuse.  But that turns out not to be true, except that "stupid" does still seem to apply.

According to the Sunday Mail's report, anyway, the workers would probably not have believed Mr. Jolly himself to be gay (although they may well have believed him to be Jolly).  He was there with a woman, Chris Lawrence, who the report described as his "partner."  Of course, she might just be his business partner, but none of the reports I have seen offer any reason to suggest that the workers were really discriminating against Mr. Jolly himself based on what they believed to be his orientation.  Further, at the hearing, the restaurant's defense was apparently to admit it had discriminated but to contend that discriminating against gay dogs is not against the law.  "The staff genuinely believed," it argued, "that Nudge was an ordinary pet dog which had been desexed to become a gay dog."

There is a whole lot wrong with that statement, but I'll just say that whether or not the staff genuinely believed that either Mr. Jolly or Nudge was gay, they could certainly see that Mr. Jolly was blind, and should have been able to see that Nudge was a seeing-eye dog.  Why in the world they would have kept out a seeing-eye dog because of anybody's sexual orientation is completely baffling.

Or at least it was.  Then somebody pointed out to me (via Twitter), that what probably happened here is that "Australians can't understand their own accent."  You see, it turns out that in Australia, service animals are called "guide dogs," so the conversation must have gone something like this:

"Mate, you can't bring that dog in 'ere.  We don't allow dogs."

"No, no -- 'e's a guide dog."  [You have to say it like Crocodile Dundee.]

"Gay dog?  I'll be stuffed!  D'ya think I got kangaroos loose in me top paddock?  Well, we don't allow gay dogs, neither, so rack off."

"Don't lair it up, mate -- 'e's no bitzer.  I said 'e's a guide dog."

"You're a chop short of a barbie -- I said, rack off, which I understand to be an Australian slang expression meaning 'to depart swiftly.'"

Something like that, anyway.

I don't know if the "guide dog"/"gay dog" explanation is really what happened, but I hope it is.

Link: Adelaide Sunday Mail
Link: Huffington Post

Yet Another Lawsuit About the Lack of Fruit in "Froot Loops"

Roy Werbel and his counsel are back with yet another attempt to call out Kellogg USA for its dastardly marketing of "Froot Loops" cereal.  As you may recall, Werbel sued Kellogg in state court in San Francisco last October, alleging that the "Froot Loops" name had misled him by causing him to believe that "the product contains real, nutritious fruit."  That case was dismissed without prejudice in February, on the grounds that Werbel had not successfully served Kellogg.  But Werbel sued Kellogg again on April 19, despite the fact that he faces much bigger problems with this lawsuit than just trying to get the defendant served correctly.

As at least two federal judges have previously held, use of the word "Froot" cannot reasonably be interpreted as suggesting the presence of real "fruit," not least because "froot" is not real, and real fruit does not come in "loops."  See, e.g., Videtto v. Kellogg USA, 2009 WL 1439086 (E.D. Cal. 2009) (noting that the ring-shaped cereal "does not resemble any known fruit"); McKinnis v. Kellogg USA, 2007 WL 4766060 (C.D. Cal. 2007) (making a similar observation).

Yes, you are reading correctly -- there has been more than one similar "Froot Loops" case, and in fact there have been at least four such filings (counting Werbel's twice).  And for what may be obvious reasons, if this claim is being made there is quite likely to be a similar claim about "Crunch Berries" (emphasis added) somewhere nearby, as there was last summer (Sugawara v. PepsiCo) and again in the fall when Roy Werbel showed up in San Francisco alleging that both cereals had confused him.  This new lawsuit would therefore be the eighth (to my knowledge) alleging some sort of deception stemming from fictional fruit.  Werbel (and his counsel) are apparently undeterred by the fact that to date plaintiffs in such cases are 0-6, with a seventh loss not far away.

I selected Sugawara and Videtto as my "Lawsuits of the Year" for 2009, putting them at the top of a field of truly strong contenders.  Maybe someone should tell Roy Werbel that there is no actual prize associated with this selection, because he seems to be trying to win it for 2010.  Actually, I am hereby telling him that, so that I don't get sued if I fail to select his cases and/or to give him a prize as a result.  Although if he did sue me, I would enjoy that immensely.

Non-Child Sues for Slide-Related Injury

Close on the heels of the unsafe-safe case comes this filing in San Francisco, which also appears to be a remarkable failure-to-warn case:

Blu Morris v. City and County of San Francisco, No. CGC-10-498974 (filed Apr. 23, 2010).

Premises liability lawsuit. The plaintiff slid on a plastic tray down a slide at the defendant's Seward St. Mini-Park and landed on his tailbone at the end because the defendant failed to warn about the improper drop-off/exit from the slide or the slide's excessive slope.

Further research appears to confirm what I had only dared to dream: that the plaintiff is not a child, but rather a 39-year-old adult male who, having injured himself due to being unable to dismount properly from a slide, then sued the slide owners alleging that he should have been warned the slide was steep and/or that it had a "drop-off" at the end.  (The fact that said adult is a self-proclaimed "celebrity stylist" is an irrelevant additional bonus fact.)

The slide in question, a 30-year-old structure that is part of the Corwin Community Garden and Seward Street Mini-Park, does indeed appear to be steep and to have a "drop-off" at the end:

But as at least some of you surely recall, pretty much every slide has a "drop-off" at the end.  I mean, just look at some of these death-traps:

 

Actually, my guess is that a slide without a drop-off might be defective, because the slider would not be able to put his or her feet down (which, by the way, is what one does at the end of a slide).  I don't see anything unusual about the drop-off of the Seward Street slide; the scale is a little difficult to judge from the picture above, but based on this older shot (right) it does not seem to be too far off the ground.  It is a little unusual to have a slide made of cement, which is not the most slippery of substances, but it appears to be well-known that using this slide requires a small sled or tray or piece of cardboard for sliding purposes, and the plaintiff was obviously aware of this because he used a tray.  Why he was not similarly aware of the slide's slope, or the nature of its drop-off, is something he will presumably be explaining in response to an upcoming motion of some kind.  Although that may not matter, in view of the applicability of the assumption-of-the-risk doctrine, which is a little bizarre in California but which I think will almost certainly apply to the activity of sliding.

This will provide deserved protection to the owners of the slide, which is not only frequently used (successfully) by the children of San Francisco but in fact was voted "Best Place to Be a Kid Again" in 2007 by the adult readers of SF Weekly.  That report does note that it is possible to "land -- boom -- on your ass" at the conclusion of the slide, but describes that as "exhilarating" and "fun," not as a "defect."  It also notes, probably unnecessarily, that care must be taken when using the slide, especially if one has been drinking.

I express no opinion as to whether alcohol may have been involved in this particular case.

Princess Freed From Evil Associate's Curse

So, I guess, if you are this guy, just because you are engaged to a beautiful Swedish princess doesn't mean you have to be nice to her, because when she dumps you, you can always go back to being an associate in a law firm.

Nice work, dumbass.

Link: MSNBC

"Warning: Do Not Move 10,000-Pound Safe Without Help."

As so often happens, a sad story has somehow managed to become a comical lawsuit.

The widow of a Florida man who was killed when a safe fell on him has sued the retailer and manufacturer for allegedly failing to warn him of the risks of trying to move the safe by himself.  Probably, the defendants will suggest that these risks were open and obvious, especially since the safe was the size of a refrigerator and weighed about 10,000 pounds.  The decedent was apparently trying to move it by himself with a pallet jack, and he also left the safe door unlocked, allowing it to swing open and cause the five-ton weight to shift, with unfortunate results.

According to plaintiff, the failure to warn specifically about the risks of using a pallet jack (by yourself) and leaving the safe door open rendered the safe "defective" and "unsafe for its intended use."  Unless its "intended uses" include being wheeled from place to place while being moved by one person by hand, it is hard to see how this case could succeed.

There may be some room for debate, though, at least according to commenters on Overlawyered.  One commenter indeed suggested that a reasonable person would have been aware of the risks presented by falling safes, asking, "Does no one watch Looney Tunes any more?"  A few minutes later, though, another suggested that these cartoon representations could actually have been misleading, since Wile E. Coyote was repeatedly hit by falling safes (which he had presumably moved without help) and yet suffered no permanent ill effects.

Actually, in Florida that might be enough evidence to get to a jury.

Link: Overlawyered
Link: Florida Keys News

Longest Known Sentence in a Legal Document?

Your assignment for this week is to diagram the following sentence, which appeared in a recent order issued by the U.S. Court of International Trade:

The U.S. Court of Appeals for the Federal Circuit (“CAFC”) having misread this court’s opinion herein sub nom. Caribbean Ispat Ltd. v. United States, 29 CIT 329, 366 F.Supp.2d 1300 (2005), to the effect that it “prohibited” the defendant International Trade Commission (“ITC”) from “considering the effects of LTFV imports of non-CBERA countries when it assessed imports from Trinidad and Tobago” [Caribbean Ispat Ltd. v. United States, 450 F.3d 1336, 1341 (Fed.Cir. 2006)] and having thereupon vacated this court’s judgment of dismissal and remanded the matter for the ITC to “make a specific causation determination and in that connection . . . directly address whether [other LTFV imports and/or fairly traded imports] would have replaced [Trinidad and Tobago’s] imports without any beneficial effect on domestic producers”, id., quoting from Bratsk Aluminum Smelter v. United States, 444 F.3d 1369, 1373 (Fed.Cir. 2006); and this court having entered an order of remand in haec verba, 30 CIT 1519 (2006); and the ITC in compliance with that order having determined that an industry in the United States is not materially injured or threatened with material injury by reason of imports of certain wire rod from Trinidad and Tobago that is sold in the United States at less than fair value; and this court having affirmed that determination sub nom. Mittal Steel Point Lisas Ltd. v. United States, 31 CIT 1041, 495 F.Supp.2d 1374 (2007), and entered an amended final judgment of dismissal; and the intervenor defendants having appealed therefrom and induced the CAFC to opine, among other things, Mittal Steel Point Lisas Ltd. v. United States, 542 F.3d 867, 877 (Fed.Cir. 2008), that it does

not regard the decision in Bratsk as requiring the Commission to presume that producers of non-subject goods would have replaced the subject goods if the subject goods had been removed from the market. Although we stated there, and reaffirm here, that the Commission has the responsibility to consider the causal relation between the subject imports and the injury to the domestic injury, that responsibility does not translate into a presumption of replacement without benefit to the domestic industry[]

and also that the “problem may stem from a lack of sufficient clarity in [its] prior opinion”, 542 F.3d at 879; and the CAFC having determined to vacate yet again this court’s judgment of dismissal, notwithstanding the ITC’s “scrupulous attention to the terms of this court’s remand instructions”, id., and remand the matter yet again “for further consideration of the material injury issue in light of [it]s opinion” and also “for further proceedings with respect to the threat of material injury”, id.; and the mandate of the CAFC having issued in regard thereto; and the Clerk of this court having reopened this matter on March 24, 2010; Now therefore, after due deliberation, it is ORDERED that this matter be, and it hereby is, remanded to the defendant International Trade Commission, which may have until June 25, 2010 to attempt to comply with the CAFC’s reasoning, as set forth in its foregoing, more recent opinion, and to report to this court any results of this mandated remand; and it is further hereby ORDERED that the other parties hereto have until July 30, 2010 to file comments on any such results.

My mistake -- that sentence (of 538 words) didn't appear in the order, it was the order.

If you are aware of, or happen across, a sentence longer than this in any legal document, please let me know so it can be dealt with appropriately.

Link: Mittal Steel Point Lisas Limited v. United States, No. 02-0076 (C.I.T. Mar. 29, 2010) (PDF)

Circuses Legal Again in Turkmenistan

Good news for circus-lovers in Turkmenistan -- the ban has finally been lifted.

Circuses were banned years ago by the country's former ruler, Saparmurat Niyazov.  MSNBC called Niyazov an "eccentric autocrat" but that is understating it just a bit.  Niyazov took to the Stalinist personality cult with a vengeance, but pushed it so far it became a parody of itself, sort of like late-period Elvis.  He put statues of himself everywhere, including one that rotated to always face the sun, and one (right) of himself as a golden baby emerging from the Earth, perched on the horns of a bull.  (According to this New York Times piece, many of these statues are along one particular strip in the capital, Ashgabat, causing one foreign diplomat to refer to the place as "Stalin-Vegas."

He referred to himself as "Turkmenbashi," which means "Father of All Turkmens"; ordered that the days of the week and months of the year be renamed in honor of himself and his family members; and banned, in addition to circuses, movies, libraries, opera, ballet, beards, gold teeth, and lip-synching (showing that despotism has its good points).  At least some of this stuff has been dismantled since Niyazov mercifully died in 2007.  The new guy, Kurbanguly Berdymukhamedov, has given the country back most of its entertainment, even if he is still keeping most of the letters in its alphabet for his name.  (Ballet is still out, though.)

The first post-Turkmenbashi circus was held on Friday.  About 1,500 children were treated to displays of traditional Turkmen riding stunts and events featuring camels, elephants, pythons and crocodiles.  A multi-national clown force was also deployed.  This included clowns from Iran, although there was no indication that Mahmoud Ahmadinejad made an appearance to do some of his hilarious standup.

According to the AFP story, circuses in various parts of the former Soviet Union have been criticized for continuing to use performing animals that are sometimes mistreated and kept in poor conditions.  "In October," that report said, "one person was killed and another wounded when an ice-skating bear attacked his Russian handlers at a circus in Kyrgyzstan."  Two morals to that story: (1) be kind to animals, and (2) if training an ice-skating bear, be sure you can skate faster than it can.

Link: AFP
Link: msnbc.com

Bizarre-Lawsuit Coverage

Welcome to the many people who appear to be visiting via the Bing link on MSN's "Bizarre Lawsuits" feature.  As it happens, the story MSN has linked to -- the Dumouchel family's threat to sue its cable company for giving it free cable, thus allegedly causing its members to become fat and lazy -- is something that happened in 2004 (I wrote about it here in 2006).  While I dearly love that story, you should not miss out on the many odd legal disputes that have arisen over the past six years, and so if you want some more light Friday reading, here's the link to the relevant category of posts.

Thanks for visiting.

TIP: Lawyer-Client Interactions Should Not Involve Baseball Bat

Joshua Robinson, 38, a West Virginia lawyer, pleaded guilty on April 19 to a felony charge of "unlawful wounding" after he was arrested for going after a client with a baseball bat.

I suppose there are situations in which you can lawfully wound someone, but this was not one of them, and it poses some ethical questions to boot.

Robinson was arrested after a neighbor, observing one gentleman chasing another around the neighborhood whilst waving a baseball bat, called police.  Turned out the chasee was one David Lee Gump II, one of Robinson's clients, and presumably the son of David Lee Gump the First.  (When you are blessed with a name like "David Lee Gump," you see, you don't let it go to waste.)  Robinson claimed that Gump had broken into his home, but a magistrate dismissed that charge for lack of evidence.  Gump, on the other hand, said he had hired Robinson to work on his grandfather's estate, and had gone to Robinson's home to ask him why he had cashed a check made out to the grandfather.  Although these kinds of lawyer-client disputes are often resolved through arbitration, Robinson chose to go with the bat instead.

The guilty plea means that Robinson faces up to five years in jail, but since he is an attorney the charge also poses ethical issues.  His license was temporarily suspended in March because he had been jailed awaiting trial, and it is difficult to serve your clients' interests from jail (unless your clients are in there too).  But the actual disciplinary opinion is still to come, which gives me the opportunity to speculate about what ethical rules might apply to Robinson's conduct in this case.  Not surprisingly, most of the applicable rules are in the section on the "Client-Lawyer Relationship":

• Rule 1.1 imposes a duty of competence.  The neighbor told police Robinson had been "swinging wild, like a madman," which might call this into question.  On the other hand, he did connect at least once.  This one seems like a tough call. 
• Rule 1.2(a) requires a lawyer to "abide by a client's decisions concerning the objectives of representation . . . and [to] consult with the client as to the means by which they are to be pursued."  Here, it seems unlikely that Gump agreed that hitting him with a baseball bat was within the scope of representation, or that Robinson consulted with him before doing so.
• Rule 1.3 requires a lawyer to "act with reasonable diligence and promptness," but so far as I can tell, the bat came out pretty quickly so Rule 1.3 may have been satisfied here.
• Rules 1.7-1.9: application of the conflict-of-interest rules depends to some extent on whether Gump was a current or former client.  It sounds like he was a current client (although that status probably changed at some point during the incident).  If so, Rule 1.7(b) precludes representation of a client if that representation "may be materially limited by . . . the lawyer's own interests . . . ."  Here, it seems pretty clear that Robinson's representation of Gump was materially limited by his own interest in hitting Gump with a bat, so that seems like a violation.
• Under Rule 1.14, "[w]hen a client's ability to make adequately considered decisions in connection with the representation is impaired, . . . the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client."  There is no reason why this shouldn't apply just because the lawyer is the one causing the impairment, and so I think Robinson also violated this rule by continuing to hit his client with the bat.  It does seem outside the scope of a "normal client-lawyer relationship."
• Rule 1.16 required Robinson to withdraw from representing Gump if, among other things, his "physical or mental condition materially impair[ed]" his ability to represent the client, and it seems like such impairment could result from a really powerful desire to hit the client with a bat. So, technically, he should have formally withdrawn before taking the first swing.
• You then have to drop down to Rule 8.4 (Misconduct) to find other rules that might apply.  The breadth of this rule makes it problematic in many cases, although not this one.  8.4(b) forbids a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."  Nothing dishonest or untrustworthy here, since this was all done out in the open and the client had a chance to dodge.  But beating up your client with a baseball bat likely is enough to raise a question as to your "fitness as a lawyer in other respects," so that really ought to do it.

By the way, West Virginia is one of the states in which it is an ethical violation to have sex with a client, unless you were already having sex with that person before he or she became a client.  Rule 8.4(g).  This prohibition is not as common as you might think, and I believe it is especially uncommon to see an ethical rule that goes so far as to actually define "sexual relations," as West Virginia's does (intercourse, or touching the "sexual or other intimate parts of the [lawyer or client]" for certain defined purposes).  Anyway, this isn't relevant to the current story, just FYI.

I suppose there might be case law defining what the "other intimate parts of [a] lawyer" might be, but I also think I don't really want to know.

Link: Charleston Daily Mail
Link: West Virginia Rules of Professional Conduct

Birther-In-Chief Orly Taitz Loses Again

Orly Taitz, the crusading Moldovan-American lawyer-dentist who has been tirelessly seeking to prove that President Obama was born someplace other than Hawaii, has lost again.  Judge Royce Lamberth, chief judge of the D.C. federal court (and a Reagan appointee) tossed yet another of Taitz's lawsuits on April 14.

Among other things, Taitz has had trouble proving that she has standing to pursue these cases, mainly because she doesn't.  This latest effort involved a "writ of quo warranto."  There is such a thing, and it can in fact be used to inquire as to the authority by which a public office is held.  But as the court held, the statutes clearly state that only the Attorney General or a U.S. Attorney can pursue such a lawsuit without leave of court, and therein lies the problem for the private lawyer-dentists of our nation.

The opinion's third paragraph goes like this:

This is one of several such suits filed by Ms. Taitz in her quixotic attempt to prove that President Obama is not a natural born citizen as required by [the] Constitution.  See U.S. Const. art. II, § 1.  This Court is not willing to go tilting at windmills with her.

Oops, doesn't sound like good news for Orly, but let's read on anyway.

Again, the problem is standing: a writ of quo warranto "involve[s] a right belonging to the whole body of the public which can be protected only by a public representative."  Because filing a lot of lawsuits doesn't make you a "public representative," Taitz has no standing.  Also, the court said, the one case that has discussed the circumstances under which a private person could seek a writ suggests that only someone who is or at least claims to be entitled to the office herself could do so -- in other words, the plaintiff is the rightful holder of the office and has been displaced by a usurper.  (That last phrase is mine -- I just like the word "usurper.")  "Ironically enough," the court noted, "Ms. Taitz could never establish such an injury because -- as far as the Court is aware -- she was not elected president nor could she be as she is not a natural born citizen herself."

The court is correct that Taitz was not elected president and was not born in the U.S.  She is a naturalized citizen, a licensed dentist, a graduate of the Taft Online Law School and (somehow unsurprisingly) the holder of a license to practice law in California, but Article II does not mention any of those criteria.

Just in case, Taitz also brought (and lost) claims alleging violations of the False Claims Act (further irony), the Freedom of Information Act, common-law fraud, civil-rights claims under Sections 1983 and 1985, RICO, and even the Commerce Clause.  That last one was a creative effort to defeat health-care reform by claiming that the bill was unconstitutional because Obama was not president when he signed it.  While there are a lot of ways the court could have gone with that, it took the easy route by pointing out that at the time Taitz sued, Obama had not signed the bill yet (oops!) and so, again, she had no standing to pursue that claim.  (I guess you could argue her injury was "imminent," if she had one.)

Sooner or later, Taitz's unbroken string of losses may get so long that it will embarrass her online law school, but for now she continues to be listed on its roll of "honored graduates."  I express no opinion about her skill in dentistry, but have not been impressed by her legal arguments.

Link: The BLT: The Blog of Legal Times
Link: Taitz v. Obama, No. 1:10-cv-00151-RCL (D.D.C. op. filed Apr. 15, 2010) (on Scribd.com)