Likelihood of Success

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Archive for the ‘Lex scripta’ Category

Accurate but true. But false. Or something.

Posted by Ron Coleman on September 29, 2009

And thats the way it is.

And that's the way it is.

New York’s Appellate Division to Dan “Time Travel Typist” Rather: It’s kind of hard to feel sorry for a guy disemployed for $6 million a year, but, sorry Charlie, you’re done:

At the outset, we find that Supreme Court erred in declining to dismiss Rather’s breach of contract claim against CBS. Rather alleges that he delivered his last broadcast as anchor of the CBS Evening News on March 9, 2005, and that, since he was only nominally assigned to 60 Minutes II and then 60 Minutes, he should have received the remainder of his compensation under the agreement in March 2005. Rather claims that, in effect, CBS “warehoused” him, and that, when he was finally terminated and paid in June 2006, CBS did not compensate him for the 15 months “when he could have worked elsewhere.” This claim attempts to gloss over the fact that Rather continued to be compensated at his normal CBS salary of approximately $6 million a year until June 2006 when the compensation was accelerated upon termination, consistent with his contract.

Contractually, CBS was under no obligation to “use [Rather’s] services or to broadcast any program” so long as it continued to pay him the applicable compensation. This “pay or play” provision of the original 1979 employment agreement was specifically reaffirmed in the 2002 Amendment to the employment agreement. . . .

Rather’s claim for lost business opportunities due to CBS’s failure to release him to seek other employment is insufficiently supported. Since, according to Rather’s own allegations, an immediate result of the September 8, 2004 broadcast was criticism that he was biased against Bush, it would be speculative to conclude that any action taken by CBS would have alone substantially affected his market value at that time. Rather’s claim for damages for loss of reputation arising from the alleged breach of contract is not actionable. Dember Constr. Corp. v. Staten Is. Mall, 56 A.D.2d 768, 392 N.Y.S.2d 299 (1st Dept. 1977).

Rather’s cause of action for breach of fiduciary duty must also be dismissed. Supreme Court held that the issue of “whether a fiduciary duty has been created in the course of the long relationship between Rather and CBS is really a question of fact.” Previously, the court determined that “the length of [Rather’s] contractual relationship with [CBS], and the nature of the service that [Rather] performed under his contracts” created an issue of fact that could not be resolved on motion. This was error.

Rather claims that his “four-decade history” with CBS constituted a “special relationship that imposed fiduciary duties upon CBS toward [Rather].” The law in this Department, and indeed enunciated in every reported appellate-division-level case, is that employment relationships do not create fiduciary relationships. Simply put, “[the employer] did not owe plaintiff, as employee, a fiduciary duty.” . . .

Wow. Some people will say anything in court papers, huh.  Or elsewhere.  Anyway, it’s as predicted here.

Courage!, Dan!  Or was it Kenneth?  (Hat tip to Insty, who says, “Loser loses again”!)

Posted in Lex scripta, Medialites | Leave a Comment »

My smarter half

Posted by Ron Coleman on September 25, 2009

Here’s something that’s kind of interesting, and instructive, about social media and professional, as well as online-social, relations. I published this on LIKELIHOOD OF CONFUSION® a couple of weeks ago (for good measure I just pinned it to the top again there, which I may do from time to time):

Secondary Trademark Infringement — the website:

This website is dedicated to an examination of the law of secondary liability for trademark infringement – the idea that someone other than a direct infringer can be liable for infringing another’s trademark. Secondary liability for trademark infringement is a relatively recent development in the law, and it has evolved entirely in the courts. . . .

Of all the contexts in which secondary liability has been raised, whether contributory or vicarious, the Internet has by far generated the most interest and attention. The advent of Internet commerce has created new problems for the law to address. On the Internet, buying and selling take place among a seemingly infinite number of parties at lightning speed, making it difficult both to police and remediate infringement. These issues came to light in Tiffany v. eBay, where the court observed that “more than six million new listings are posted on eBay daily, and at any given time, some 100 million listings appear on the website.”

That’s from the overview of Jane Coleman‘s new short treatise on contributory and vicarious liability for trademark infringement — those are the two different types of secondary liability, you know — which is the first work to analyze and digest thoroughly the entire law on this developing subject.

And talk about thorough! Be sure and read it through and through so you’ll be ready to comment incisively when the Second Circuit does its work on Tiffany v. eBay (oral argument was in mid July, by the way). You’ll be the hit of the party.

End of the post.   But here’s the point I want to make on this blog:

Read the rest of this entry »

Posted in Lex scripta, Social networking | Leave a Comment »

Filler

Posted by Ron Coleman on September 23, 2009

Morris County Courthouse

I’m trying a commercial case to a jury, in Morris County, New Jersey — it’s a wild and woolly one, believe me — so I can’t really blog much.

But did you know I once had a week-long stint on Overlawyered.com?  It’s one of my proudest weeks of blogging.  (I had more time then.)

You may enjoy some of this stuff.  I know I did.

Posted in Blogophilia, Heart and spirit, Lex scripta | 1 Comment »

Samuels’s Round Tuits: “It’s like a masters class in blawg review”

Posted by Ron Coleman on September 9, 2009

Wow.  Remember what I said?  (And I’m not the only one.)  No matter what you do, don’t be stupid and buy into what some consultant sells you as “social networking” to build your practice if you don’t have (1) something to say, and (2) a gift — or a honed set of skills — for saying it in compelling fashion.

Well, that doesn’t mean that if you don’t have these things, the next best thing is to just steal it from someone else!

You really have to read this to see what @ScottGreenfield is talking about.  But here’s a sample of what on earth is going on out there, where it’s evidently nuts:

Scott Greenfield was displeased to discover that his RSS feed was being “scraped” and reproduced by an outfit called USLaw. When confronted by Greenfield,USLaw behaved unprofessionally; their unsatisfactory response prompted Greenfield to reconfigure his feed to offer only partial posts. While this is entirely understandable and part of a Greenfield post beats a dozen posts from most bloggers, the change was not in Greenfield’s interests or his readers’; it was a necessary but regrettable response to unprofessional behavior. For what it’s worth, while it was well beyond fair use for them to reproduce the posts as they did, USLaw didn’t represent Greenfield’s writing as anything but his work. USLaw behaved unprofessionally, but they were not obligated to do otherwise. As far as I can tell, they are not practicing attorneys; although they operate in the broader legal internet space, they are not legal professionals bound by codes of ethical conduct and subject to discipline for unethical behavior.

Without excusing USLaw’s conduct, what’s been done by attorney Melina Bennighoff or on her behalf by a marketer is much more objectionable. As Bennett explains, Benninghoff scraped posts from Bennett’s blog and others’ without those authors’ consents and reposted these on Benninghoff’s blog. It is noteworthy that the reposted items are identified as “by benninghofflaw”. A cursory search online revealed that Benninghoff has also set up several Twitter accounts with false names and pictures to drive traffic to her singularly ridiculous blog and boost her position in search engines.

What this boils down to is a practicing attorney lifting copyrighted content from other sites and presenting it as her own work for commercial benefit. That she may have hired a marketing consultant who has done these things in her name and for her benefit may be meaningful to some, but it shouldn’t matter; attorneys are, and should be, ethically responsible for their own actions and those of their agents. . . .

Confronted by Bennett, Benninghoff’s marketer, Wayne Conley, responded unconvincinglyand set-up a fake Twitter account using Bannett’s wife’s name. At Legal Blog Watch, Carolyn Elefant wrote about the whole sorry affair, calling it “Law Firm Marketer Gone Wild”.

It’s the Wild West out there.

Man.

And… don’t even think about it.  I say that with all due modesty.

Posted in Blogophilia, Lex scripta, Nuvo-Techno, O Mores!, Social networking | Leave a Comment »

Bitter, bitter, bitter

Posted by Ron Coleman on August 26, 2009

Yes, it’s getting right ugly for prospective lawyers right now — even the elite “Tier One” crowd. Here’s the article in the New York Times that has all the law-firm-associate blogs hopping; and here’s a sample hop sent to me by a Biglaw alumnus, now in house managing someone’s regulatory compliance, and who says “Thank God I’m not a lawyer any more.”  The definitive take, of course, is at Above the Law, which deems the story mere “dog bites man.”

Personification of Power, Newark historic courthouse

I can’t complain.  I have many times, but… I can’t.

Posted in Gelt, Lex scripta, Metropolis, Sisyphus | Leave a Comment »

The shoot ’em up capital

Posted by Ron Coleman on July 19, 2009

Charles-Bronson---Death-Wish-PhotographA year after the Supreme Court told the Washington, DC city counsel that, yes, the Second Amendment does apply to the District of Columbia, it’s exactly as the Brady Bunch has predicted — with pretty much everyone packing heat, it’s now a wide-open, Wild West firing range where you have to run, squatting, from your car to the lobby of the building you’re going into just to avoid the ricocheting ordnance.

Or not.

Posted in Lex scripta, Metropolis, Packing heat | Leave a Comment »

Was Rosen really right?

Posted by Ron Coleman on July 16, 2009

Hm.  Instapundit cites Randy Barnett, who writes:

When [Jeffrey] Rosen published his critique [of Sonya Sotomayor], I knew very little about Sotomayor. After forcing myself to watch much of the hearings, I wonder if those who criticized him then are having any second thoughts today.

I am having second thoughts about my own measured enthusiasm for Sotomayor, which was based on a selfish interest in a particular area of law plus what I believed was the range of options from this Administration, yes.

But do I have second thoughts about my criticism of Jeffrey Rosen (it’s buried in here; and no, I don’t think Jennifer Rubin meant me when she asked the question)?

No.  Rosen’s article seemed rushed, and was based on very few specifics, and a lot of anonymous sources.  The specifics were also very pedestrian.  She was obviously vulnerable on Ricci v. DeStefano, but, well, “everyone” knew that — I am sure that that includes Randy Barnett.  If her opinion in Ricci was that bad (and evidently it was!), why couldn’t Rosen give us six more such-a’s?  That was his job as a reporter.

To the contrary, Rosen is to be criticized not only for pulling back from his original view so he wouldn’t lose out on invitations to all the right parties, but for writing such a damned lazy legal journalism article when in fact there may have been not only smoke but some fire to report.  There’s a lot of that going around.

I also didn’t, and still don’t, think much of this slam by Jennifer Rubin, also cited by both Glenn and Randy:

The question is not whether Sotomayor will get through, but why the president felt so compelled to select her. If he was desperate to find a Latina, he should have found a wise one.

Talk about “wise.”  I know wisdom is not the same as intelligence, but I don’t think Jennifer Rubin has the slightest inclination to make that distinction here.  Read the rest of this entry »

Posted in Lex scripta, Medialites, Politics and Poker | Leave a Comment »

I know the feeling

Posted by Ron Coleman on July 16, 2009

Joy McCann: “Wait. I’ve Changed My Mind About Sotomayer.”

Not in a good way, either.

Posted in Lex scripta | Leave a Comment »

And time off for good behavior?

Posted by Ron Coleman on July 9, 2009

The 71-year old Bernard Madoff isn’t going to appeal his 150-year sentence, it turns out.

“We won’t be appealing the sentence,” Madoff’s lawyer, Ira Sorkin, said Thursday. He declined to say why the decision was made.

How about the fact that a successful appeal could well get the sentence cut, I don’t know, maybe in half?

Maybe even by two-thirds?

Yeah.  Would not have been the brightest use of stolen money.

(More on sentences of this nature at Colin Samuels’ new blog, by the way.)

Posted in Gelt, Lex scripta | Leave a Comment »

Tote boards don’t cut it

Posted by Ron Coleman on June 2, 2009

In what I suppose amounts to an endorsement by LIKELIHOOD OF CONFUSION® of the Sotomayor nomination from the point of view of her strong intellectual property background, I made a side point decrying what we might call the “tote board” approach to reckoning a judge’s inclinations on given issues.  That’s where we pile up all her published opinions, see how many went “one way” and how many went “the other way,” and declare that the nominee is “pro-gun” or “pro-government” without regard to the facts of those cases, the nature of the appellate or litigation docket that generated those opportunities to write the opinions, or even the ratio decidendi of the opinions themselves, which will be in some unknown percentage utterly unrelated to the issue being “tagged.”  It’s the logical fallacy of the confusion between cause and effect, or perhaps of the “questionable cause,” I suppose.

Thus, in my post, in which I pretend to start parsing out “pro-trademark-owner decisions” versus “pro-infringement-defendant decisions,” I immediately hit PRL USA Holdings v. U.S. Polo Ass’n, Inc., reported on here. That decision by a Second Circuit panel including Judge Sotomayor was “pro-defendant” in outcome, but obviously had nothing really to do with trademark:  The appeal really was about a point in connection with the Federal Rules of Evidence, not trademark at all.

It is true that some judges go where they want to go in certain kinds of cases regardless of what is really happening in a case, and without a care as to what issues are really before them — but these judges are merely robed criminals, patent abusers of their office and their oaths.  It is not as if many such jurists have not achieved high office, but no one seriously suggests that Judge Sotomayor is one of that type.

Now Ann Althouse presents us with a classic example of the “surprising decision” phenomenon, in connection with what unsophisticated observers will utterly not understand.  It relates to a Seventh Circuit decision, published today, holding that the Second Amendment to the Constitution is not incorporated into the Fourteenth Amendment — a potentially devastating development for gun ownership advocates.  Here’s Ann:

A unanimous 7th Circuit panel, consisting of Easterbrook, Bauer, and Posner, adhering to Supreme Court precedent, says that the 2d Amendment is not incorporated in the 14th Amendment and thus does not apply to the states. Easterbrook’s opinion (PDF) — emphasizes federalism — the value of decentralized decisionmaking on the subject of gun rights . . .

The panel adheres to Supreme Court precedent, but it also lays out the federalism argument in clear bold terms for future consumption by the Supreme Court. . .

See how this helps the Sotomayor nomination?

Sotomayor was labeled “anti-gun” by Gun Owners of America for refusing to extend to the states the U.S. Supreme Court’s 2008 decision overturning a Washington, D.C., handgun ban. The group said a January ruling by a three-judge panel that included Sotomayor displayed “pure judicial arrogance” for declining to throw out a New York state weapons law.

Very cool. You don’t love the law? Then you don’t get it!

Posted in Lex scripta, Medialites, Packing heat | Leave a Comment »