2009 Lowering the Bar Awards

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Here are my selections for the best of 2009’s worst. As was the case last year, all nominations and selections were determined though a complex and scrupulously fair process which involved me drinking and then picking the ones I liked the most.

Again, thanks for reading this blog.  Your combined support added up to nearly a million page views this year, or two million if each eye counts separately (is that what “Web 2.0” means?).  Thanks especially to those who contributed links or items or documents, which I very much appreciate.

Lawsuit of the Year: (tie) Sugawara v. PepsiCo and Videtto v. Kellogg’s

No lawsuit in Lowering the Bar history has attracted as much attention (and derision) as the case in which the plaintiff alleged that the name “Crunch Berries” misled her into thinking that the cereal contained lots of healthy fruit. (If you are shocked to find out it doesn’t, I assume you are here by mistake.) Last summer, a judge ruled that no reasonable consumer could be deceived by that:

[W]hile the challenged packaging contains the word “berries” it does so only in conjunction with the descriptive term “crunch.” This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a “crunchberry.” . . . [T]he “Crunchberries” depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both that the Product contains “sweetened corn & oat cereal” and that the cereal is “enlarged to show texture.” Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist. . . . So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world.

In Videtto, the plaintiff made the same argument as to the maker of “Froot Loops,” and with the same result.  These cases edged out the others because they not only lacked all merit but are representative of deceptive-cereal lawsuits everywhere. In fact, to date there have been no fewer than seven lawsuits in California alleging that the terms “Crunch Berries” or “Froot Loops” are deceptive, and those are just the ones I know about.  I guess there are a lot of unreasonable cereal consumers out there.

Other nominees:

Legal Argument of the Year: Citizens Have a First Amendment Right to Honk

This year, I picked Helen Immelt’s contention that she could not be cited for violating a noise ordinance because she has a First Amendment right to honk her horn whenever she likes. What really put this argument in the winner’s circle was that, late in the year, the Washington Supreme Court said it would take this case, which is awesome. Bonus points: the First Amendment was also invoked in 2009 by, among others, Sen. Larry Craig (he argued his foot-tapping was protected speech) and an attorney who argued he had a constitutional right to wear a hat.

Other nominees:

Lawyer of the Year: Stanley G. Hilton

Hilton has already been honored by the nomination of Hilton v. San Francisco International Airport, and that is part of the reason he wins here.  He has a long history of alleged misconduct, including charges for unprofessional conduct that included rude comments to other counsel during a conference call.  He later argued he had not meant to be rude, saying he thought the call had been disconnected and that he had taken the opportunity to practice his impression of Al Pacino in “Scarface.”

Other nominees:

  • The guy who represented Roy Werbel, the named plaintiff in deceptive-cereal lawsuits six and seven (see Lawsuit of the Year, above).  This crusader filed almost exact copies of the Sugawara and Videtto complaints in the Northern District of California, despite the fact that those lawsuits had not only been dismissed but were also widely ridiculed.
  • The convicted terrorist who, after being exiled from Pakistan, used forged papers to get into Canada and has since gone to law school. Canadian bar examiners reportedly had concerns about whether hijacking a plane and shooting someone disqualifies one from practicing law.
  • John Peoples, a 60-year-old blind attorney who sued his Pilates instructor for disability discrimination, saying she took advantage of him by charging him more than the agreed-upon $375 an hour. Problem: he admitted in his deposition that she was not really a “Pilates instructor,” but rather had been providing other services that are, in fact, illegal in that state.
  • Honorable mention: Howard Kieffer, who practiced law for years in ten different states, specializing in federal criminal defense. He is not eligible to win this category, because he’s never had a license to practice law. This surprised colleagues, who said Kieffer “seemed to know a lot about” federal sentencing and prison issues. He did – he had served three years for tax fraud.

Homeland Security Department of the Year: The Homeland Security Department

For the second year in a row, the homeland security department of the year is the Homeland Security Department.  No other homeland security department was even close to the Homeland Security Department’s record of comical ineptitude. To be fair, although the department’s actions were generally inept and invasive, they also cost many billions of dollars and almost certainly did no good at all.

The judges were impressed by, among other things, the following actions:

  • Insisting that “mule skinners” must have high-tech biometric IDs although they are people who use mules to pull a barge along a canal at a historical park;
  • Failing to notice that a fugitive who was wanted on a felony warrant, which had been entered into the national alert system, was working in the Atlanta office of its immigration division;
  • Posting an airport screening manual on the Internet in PDF form without correctly redacting it;
  • Enforcing rules preventing snow globes from being taken on airplanes, during the same holiday season in which it —
  • Failed to stop the Underpants Bomber although he had previously been reported as a serious threat by his own father; and, most importantly;
  • Vastly overreacting to the failed underpants bombing by spending billions on full-body scanners that will let screeners see you naked while not preventing whatever it is that terrorists are planning next.

Other nominees:

  • None.

Legislature of the Year: The United States Congress

Among its many other misdeeds, Congress responded to a massive financial meltdown by giving over a trillion dollars to the same people who caused the meltdown in the first place, who have not yet paid that money back and yet are about to give each other enormous bonuses.  Again.

There really were too many other reasons to list.

Other nominees:

  • The South Korean Legislature:  made an impressive bid to challenge Congress for this award by having a major brawl of the kind that put Taiwan over the top last year. A committee locked itself in a room to consider a controversial bill while furious opposition members tried to cut through the door with power saws.
  • The West Virginia Legislature, which debated a bill that would have made it illegal to sell Barbie dolls “and other similar dolls” on the grounds that they “promote or influence girls to place an undue importance on physical beauty to the detriment of their intellectual and emotional development.”  Opposing lawmakers displayed Barbie dolls on their desks during the session.
  • The Tennessee House of Representatives, which debated a bill making it a misdemeanor to “knowingly wear pants below the waistline, in a public place, in a manner that exposes the person’s underwear or bare buttocks.”  The bill’s sponsor insisted on referring to his legislation as “the crack bill,” forcing colleagues to state they were not “pro-crack.”
  • The United Nations (it’s kind of a legislature): A man dressed as Col. Sanders got past security and into the UN building, managing to meet the General Assembly’s president and tour the Assembly before being removed. KFC sent him with an official letter asking that the “Grilled Nation” be registered as the 193rd UN member state. Sanders was the second colonel to address the UN this year, and he made a lot better impression than the first one, Col. Qadhafi, who gave a 90-minute speech so rambling and loony his own translator gave up.

Congratulations to all those who were not nominated in any of these categories.