Lowering the Bar

McDonald's Ordered to Pay Fat Manager

Via the Law360 service I learned that a judge in Brazil has ordered McDonald's to pay a former manager $17,500 based on his allegations that he gained 65 pounds during his years with the company, due to such dastardly corporate practices as offering employees free lunches.

In addition to forcing this free food down his gullet, the company also went so far as to hire inspectors who would show up randomly and send back reports on food, cleanliness and service. As a result of these invasions by what he called "mystery clients," the man alleged he was effectively required to sample his restaurant's food every day to make sure it was up to par, also adding to his girth.

According to the reports, McDonald's has not yet decided whether it will appeal.

In news that is possibly more shocking since it suggests the U.S. legal system is not entirely broken, this week a federal judge in New York denied class certification in the Pelman case, which has been around since 2002 and in which the plaintiffs allege that McDonald's misled them into thinking they could eat burgers and so forth every day without any adverse health effects. (Full disclosure: I represent defendants, although not McDonald's, in some vaguely similar cases.) But in the Pelman case, at least, the plaintiffs were fat children, not fat adult McDonald's managers complaining about free lunches.

I don't know whether the Brazilian argued that he had to also try out the Happy Meal toys and was thereby induced to consume said Happy Meals, but it is certainly not impossible.

Assorted Stupidity #7

• When I suggested the other day that Charlie Sheen should consider the Tourette's defense, I didn't have all the facts. So unless there is some evidence that Tourette's syndrome could cause someone to do cocaine, bring a porn star to the hotel where his family is staying, freak out and start throwing furniture around the room and then strip naked when police arrive, he might want to keep looking.

• Legal Blog Watch reports that two lawyers who have each been using the slogan "I'll Make Them Pay" are now suing each other, each hoping to make the other one pay for using "I'll Make Them Pay." The one who loses should have to change his slogan to "Subject to Certain Exceptions of Limited Applicability, I Normally Make Them Pay."

• Federal prosecutors in Kansas City have charged Brother Jerry Love with running a fraudulent tax-refund scheme. Brother Jerry, whose real name is the less heavenly "Gerald Poynter II," apparently "helped" people make millions in outrageous refund claims and kept a 15-percent fee. Poynter also did business as, among others, "Heartland Investment Group," "Blackbelt Tax Services," "Luckytown," "Jerry Love Ministries," and "The Dojo."

• The Rand Paul campaign worker who stomped on a woman's head has asked for an apology from the stompee. Video showed Tim Profitt stomping on the woman, a MoveOn activist, while she was being restrained by others. Profitt claimed that the woman had started the fight, and that he only put his foot on her head because he has back problems that keep him from bending over.

• Sports excuses are still getting the job done when it comes to getting continuances. In a recent "emergency motion," a Dallas lawyer argued that he had to be in San Francisco for "Very Important Baseball Matters," namely Game 1 of the World Series. The judge granted the motion. (Another Rangers fan said he quit his contract lawyer job so that he could watch the Series on TV.) A similar motion last year, based on the Saints being in the Super Bowl, was also granted.

PRACTICE TIP: Referring to Judges on Your Panel as "Ass Clowns" Does Not Maximize Chance of Success

I believe I've pointed out before that insulting a judge hearing your case is usually not good strategy, but maybe it is time for a refresher.

This case has a long and tortured history, but it looks like it began as a bankruptcy case in which the debtor wanted to discharge (among other things) student loans. The main issue on appeal was whether he had shown "undue hardship," which in turn requires a showing of "good faith efforts" to pay back the loans and "insurmountable barriers" to doing so. According to the debtor, his efforts were not just good-faith, but "heroic." According to the bankruptcy court, though, not so much: "For most of this decade," the court wrote, instead of working "[Debtor] continued his education in law school and then spent several years pursuing lawsuits in an attempt to eliminate the student loan debt, not pay it." Debtor appealed and lost.

Which brings us - although I loathe this term - to the "teachable moment."

The debtor filed a motion asking the panel or the full Ninth Circuit to rehear his appeal. Well, not so much asking: "the Court will address these issues," he wrote, "or there will be civil unrest." (Emphasis added.) It wasn't clear whether the debtor expected anyone else to join him in this "civil unrest," and it should go without saying that even appearing to threaten a federal judge is an extremely bad idea.

But this practice tip is focused on not insulting them, and the petition for rehearing is full of examples of terms not to use in reference to any judicial officer. "Ass clown" is one of the few I am actually willing to reprint.  "Plaintiff has news for these slime ball, piece of ____, ass clown judges," the debtor wrote, "that think they are going to rig the system and railroad the poor and innocent . . . that simply is not going to happen in this case.  You ___ ______ are now on notice."

And so on. Interestingly, this is not an example of a pleading that is just lots of obscenities. It also makes legal arguments, as though the debtor put together and followed an outline that he just made sure to flesh out with lots of obscenities. This might be because, as noted, the debtor has actually been to law school (and apparently spent quite some time there). In fact, as one of the appellees' briefs noted, he has been to lots of schools:

In addition to a B.A. in Education, [Debtor] possesses a substitute teaching credential, a real estate sales associate license, [a] law enforcement academy certificate, an associate of arts degree, and a J.D. . . . [He] provided no evidence concerning why he could not work in the legal field, but rather testified that "I didn't really go to law school to actually be a lawyer."

The debtor argued that his inability to actually work at any of these jobs was largely the fault of various third parties, including the California Bar Association, which (as he noted in his reply brief) has refused to admit him more than once for both test and background-check-related reasons.

Unsurprisingly, the panel denied the debtor's petition for rehearing, in a one-page order that makes no mention at all of the petition's unusual nature. The panel noted its agreement that the debtor had failed to establish "undue hardship," then just started a new paragraph and added, "[Debtor's] remaining contentions are unpersuasive."

Also unsurprisingly, the debtor was not willing to stop there, having somehow escaped being sanctioned. He filed a petition for certiorari with the U.S. Supreme Court, and (though I'm not 100% sure it's the same case) the Court denied his petition on October 4. I haven't tried to get a copy of that petition to see whether he called any of the Justices "ass clowns." Seems like there is enough evidence already to show this is a bad idea.

Good Reason to Kill #11: Sang "My Way" Poorly

In February, the New York Times reported that many Filipinos are reluctant to sing Frank Sinatra's "My Way" at karaoke bars because of the number of killings the song has allegedly triggered in recent years. "I used to like 'My Way,'" said a man quoted by the Times, "but after all the trouble, I stopped singing it. You can get killed."

Karaoke seems to be enormously popular in the Philippines, and according to the article, so is violence. The result is that some believe that rather than any particular song being to blame, it is just statistically more likely in the Philippines that singing and violence will coincide. But many believe the song itself is dangerous. At least six deaths have been linked to "My Way" over the past decade, and the media refers to these as the "My Way Killings." "The trouble with 'My Way,'" said one bar patron, "is that everyone knows it and everyone has an opinion." Butcher it, and you may have a serious problem. "[M]ost of the 'My Way' killings," said the Times, "have reported occurred after the singer sang out of tune, causing other patrons to laugh or jeer."

The article also points out that karaoke-related violence happens in other countries, too. In just the last two years, a Malaysian man paid with his life for hogging the microphone, and authorities in Thailand said that a man there killed eight of his neighbors for singing "Take Me Home, Country Roads." (Granted, John Denver karaoke is practically a war crime, but you can't take matters into your own hands.) In this country, the worst karaoke violence I know of is the 2007 incident in Seattle where a woman attacked a man who was attempting the Coldplay song "Yellow." She just threw some punches, though, and under the circumstances, it is hard to blame her for that.

Not Guilty by Reason of Tourette's?

A Florida woman whose previous claim to fame was that she had hiccups for five weeks straight in 2007 is now getting another 15 minutes by (potentially) asserting Tourette's syndrome as a defense to first-degree murder charges.

Jennifer Mee, 19, allegedly lured a 22-year-old man to a meeting at which he was robbed and then shot, although two other people were involved and police said they do not think she shot the victim. Presumably Mee was charged with felony-murder, which would make her just as liable as whoever pulled the trigger. But Mee's lawyer, John Trevena, said today that his client has been diagnosed with Tourette's syndrome, probably the best-known neurological disorder because it sometimes causes sufferers to swear uncontrollably. According to Trevena, "hiccups are a symptom of Tourette's," which is interesting but the question here, I think, is more whether felony-murder is a symptom of Tourette's. On that topic, the report says, Trevena "declined to be more specific."

Tourette's is apparently a very complex disorder that may cause many kinds of verbal and physical "tics," only rarely resulting in uncontrollable swearing. A very non-exhaustive search by me did not turn up any association between Tourette's and hiccups except a 2008 report in which Mee's own neurologist made the link, but this is entirely possible. Interestingly, these sources say that the severity of symptoms almost always decreases during adolescence, and extreme cases in adulthood (Mee is now 19) are rare. Tourette's can occur together with other disorders, too, and maybe one of those will provide a better defense here.

Let me suggest a better candidate for the Tourette's defense: Charlie Sheen, who is reportedly under psychiatric evaluation after an unidentified woman called police to say he was yelling and throwing furniture around a New York hotel room. You might say this is actually an improvement for Charlie compared to previous incidents, given that so far as I can tell he is not actually accused of assaulting any women this time.

According to an official, Sheen appeared "highly intoxicated" when police arrived at 2 a.m., but Sheen's publicist said that was a misunderstanding. "Charlie had an adverse allergic reaction to some medication," he said, although he didn't say which medication may cause furniture-throwing as a side effect. I assume he just hasn't heard about the Tourette's syndrome defense yet, which I think is a much better fit for Charlie.

Randy Quaid & Wife Seek Asylum in Canada; Say They Fear Hollywood "Star Whackers"

It is becoming increasingly apparent that Randy Quaid, who has frequently played oddball characters like "Cousin Eddie" in the "National Lampoon's Vacation" films and the not-entirely-sane pilot in "Independence Day," has not been acting. 

Quaid and his wife were arrested in Canada last week on a warrant issued after they failed to appear at a court hearing in Santa Barbara. The Quaids were to face felony vandalism charges based on an incident in which they were discovered squatting in the guest house of a home they once owned. By "squatting," I mean they were living there without permission, not that they were physically squatting, but given the Quaids' ever-increasing weirdness they might have been squatting in that sense too.

The Quaids were arrested in Vancouver, and told an immigration judge there last Friday that they wanted to seek asylum in Canada because they feared that their lives were in danger. Not from the authorities in Santa Barbara, but from the Star Whackers.

 
Just in case anyone didn't believe the Quaids are
requesting asylum from Hollywood "Star Whackers."

Although "the Star Whackers" would not have been a bad name for the aliens in "Independence Day," and is also not a bad name for a band, the Quaids appear to be using the term to refer to a shadowy organization they say has killed a number of their Hollywood friends, including Heath Ledger, David Carradine, and as many as six others. (As far as I know they have not suggested a motive for the killings.) Most authorities believe the Ledger and Carradine cases did not involve foul play, although that's exactly what you would expect them to say if they were in cahoots with the Star Whackers, isn't it?

The Quaids also told the judge that they came to Canada for legitimate reasons and were not trying to dodge the warrant, although coincidentally they did say they feel the U.S. justice system has treated them unfairly. Warrant-dodging would be consistent with their conduct in a previous case in which they were charged with "defrauding an innkeeper" and frequently failed to show up for hearings, but they insisted that was not their motive here. The report doesn't say what the Quaids claimed were their "legitimate reasons" for being in Canada, if it was anything other than seeking asylum. Nor does it say whether they explained why the Star Whackers secret assassination squad, skilled enough to murder eight famous people without leaving a trace, could be foiled just by moving to Canada.

After asking for asylum, the Quaids were released on bonds of just $10,000 each, although they are clearly flight risks. But they promised the judge they would appear at future hearings if he let them go. "I would not do anything to besmirch my reputation any further than it has been," Randy Quaid said. "I'm trying to do damage control." They have another hearing set for October 28 -- if they survive that long.

Dancing Polar Bears Sue for False Arrest

"The individuals in polar bear costumes," says a complaint quoted by Courthouse News Service, "were singled out for arrest, despite not being disruptive, while more noisy protesters were free to leave, even walking by as Capitol Police arrested the individuals dressed as polar bears." The individuals dressed as polar bears have now sued the United States, claiming they were falsely arrested simply for dancing outside the Longworth House Office Building in 2007.

The individuals apparently wore polar bear suits in an effort to "raise awareness of how the Iraq War was affecting global warming," presumably by making it worse and threatening polar bears. They allege that they complied with Capitol Police instructions to "quiet down and move along," although they "occasionally stopped to sing and dance."  Possibly not viewing this as especially compliant with their instructions, officers allegedly seized the dancing bears and "roughly" removed their pelts before arresting them.

Three other bears avoided arrest, while one journalist not dressed as a polar bear was also caught up in the sweep and has joined the lawsuit. The five are seeking a total of about $100,000 in damages.

According to the Copenhagen Post, Danish police took a more bear-friendly approach during the UN Climate Change Conference last December. Police told protest groups that they would not arrest those wearing polar-bear or panda costumes despite a ban on protestors wearing masks, so long as they did not engage in violence. "The first panda who pulls out an iron bar," police reportedly said, "will ruin it for the other peaceful pandas."

 

Nevada Supreme Court Denies O.J. Simpson's Appeal

In one of the year's least surprising developments, the Nevada Supreme Court has refused to overturn O.J. Simpson's conviction for armed robbery and kidnapping.

The court rejected all of Simpson's arguments, which included contentions about the racial makeup of the jury, the judge's conduct, and the idea that the convictions related to the 2007 "memento heist" in Las Vegas were just delayed payback for Simpson's 1994 acquittal on double-murder charges.

As you may have heard, Simpson was accused of killing his ex-wife and a friend, but was acquitted and has been searching for the real killers ever since.

Not only was Simpson's conviction upheld, the court reversed the conviction of his co-defendant, Clarence Stewart, apparently on the grounds that anybody stuck sitting next to O.J. Simpson during trial is not likely to be treated fairly by jurors. Stewart will get a new trial. O.J. will continue to be a guest in a Nevada state facility for the remainder of his nine-to-33-year (but probably 33-year) sentence.

For prior LTB coverage of this long-running saga (and there has been more of it than I thought), just search for "Simpson" in the search box over to the right, or try these:

• "O.J. to Explain How He Hypothetically 'Did It'," Lowering the Bar (Nov. 15, 2006);
• "O.J. Simpson Arrested; Blames Police, J. Edgar Hoover," Lowering the Bar (Sept. 16, 2007);
• "O.J. Simpson Convicted of Murder [though not charged with it]," Lowering the Bar (Oct. 5, 2008);
• "O.J.'s Sentencing Speech Causes Spectators to Weep, Judge to Reverse Conviction," Lowering the Bar (Dec. 5, 2008); and
• "Smithsonian Doesn't Want O.J.'s 'Acquittal Suit,'" Lowering the Bar (Mar. 2, 2010).

Please Advise at Your Earliest Convenience Whether You Would Like to Super-Size Your Allegations

That's just one of the many possible headlines for an item about a law firm that has opened a drive-thru window.

The Kocian Law Group, a personal-injury law firm with offices in Connecticut and New York, opened the new office in Manchester, Connecticut, in a building that formerly housed a Kenny Rogers Roasters restaurant. According to the report, the building no longer resembles a Roasters in any way apart from the drive-thru window that remains on one side and is now staffed by a paralegal rather than somebody in a paper hat.

 

Nick Kocian emphasized that the drive-thru is intended only as a convenient way for the firm's clients, some of whom are disabled, to drop off and pick up documents. He said that any actual consultations or meetings would be held indoors in an actual office.

So there, NBC commenter who suggested that "Now the ambulance can stop here on the way to the hospital." Although that would theoretically be possible.

Police-Cam Video of Kansas City Chimp Released

Okay, one more on yesterday's chimp rampage in Kansas City. The occasion (or excuse) for bringing it up again is that the video from the police car's camera has been released.

Here's the cellphone video I was going on about yesterday:

 

Now here's the view of that from inside the police car:

 

You can also find a version of the latter video with the theme from "The Monkees" ("Here we come . . . walkin' down the street . . . ."), which I admit was pretty comical. I was reluctant to use that one here, though, because I didn't want to be accused (again) of confusing monkeys with apes. As I have had to research and clarify before, there is a difference.  Chimps are apes, not monkeys, although as I have also pointed out before, the word "monkey" is, for whatever reason, often funnier than "ape." And that counts for a lot here.

Both are "non-human primates," though, and so as we discussed yesterday it is illegal to keep either one in your home, at least in Kansas City. Please check your local ordinances if you have any question about the legal status of your ape.