Jamie Casino and The Super Bowl Ad: Just Because You Can Doesn’t Mean You Should

Soon after the Super Bowl concluded, I received an email from a college classmate, addressed to me and another attorney from our class: “Did you guys see this Super Bowl ad that ran only in Georgia last night? As attorneys, perhaps it speaks to your own professional pride.” The link was to personal injury attorney Jamie Casino’s two-minute tale of sin and redemption (with a prominent flaming sledgehammer), described variously as “the Most Insanely Epic Super Bowl Ad Last Night” (Slate) and “Ridiculously Badass” (Adweek) and “Batshit Amazing” (Deadspin).

 

Four points come to mind.

 

First, the ad was only possible because of Georgia’s sensible rules on attorney marketing. In many states, like Florida, Casino’s ad would have been prohibited by absurd Bar Association rules that go so far as to “prohibit images of an American flag, the Statue of Liberty, and a cactus,” as I discussed back in December. You can see in the comments to my post about Florida’s rules former Georgia Bar President Ken Shigley describing the sensible approach they took, which simply prohibits “false, fraudulent, deceptive or misleading” advertisements, and then requires certain disclaimers.

 

Second, to all the traditionalists who believe that flashy ads like Casino’s inherently demean the legal profession, I say, to paraphrase Bob Dylan, is there anything more American than advertising? Whatever the ad’s positives and negatives, the ad tells potential clients a lot about Jamie Casino — and that’s a good thing. Lawyers are not wholly interchangeable. The reason that superlatives like “best” and the like are sometimes prohibited in attorney advertising is because they’re meaningless, and Jamie Casino’s ad is anything but meaningless.

 

However, just because Jamie Casino should be able to make such an ad doesn’t mean that he should actually do it. Continue reading

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Quentin Tarantino Might Win Against Gawker, Thanks To The Supreme Court

Yesterday, Quentin Tarantino filed a copyright infringement lawsuit against Gawker for distributing copies of his script The Hateful Eight. Here’s the original Gawker post, here’s The Hollywood Reporter on the basics (with the complaint), and here’s Gawker’s reply.

 

The case is simple enough: Gawker encouraged readers to find the script, someone posted it to AnonFiles.com, someone (perhaps the same person?) emailed a link to Gawker, Gawker posted that link on its website. Tarantino, represented by Martin Singer (whose hyperbolic threats have graced this blog before), alleges direct copyright infringement against AnonFiles.com because it hosted the files and contributory infringement against Gawker because it “induced, solicited, encouraged, caused or materially contributed to the infringing conduct.”

 

If you’re not clear what “contributory” infringement is, take heart. The claim doesn’t come from the old common law, like most civil causes of action. The claim also wasn’t created by Congress through a statute; the Copyright Act only covers direct infringement claims against the actual party distributing the copyrighted work. Rather, the Supreme Court took the Copyright Act and then decided to expand it using common law doctrines relating to conspiracy claims and vicarious liability.

 

It was a rare instance of the Supreme Court interpreting a statute to expand liability than to restrict it. Look at the last 30 years of, say, antitrust or RICO or class action law, and you’ll see an entirely different trend, with the Supreme Court reaching for any justification to rule against the plaintiff and for the defendant. Then again, in those cases, the plaintiff is a consumer and the defendant a large corporation, and in copyright infringement cases, it’s often the opposite. So it goes.

 

Even the eminent Judge Richard Posner, writing for a unanimous Seventh Circuit panel in 2012, had trouble figuring out what the term meant:  Continue reading

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The Pennsylvania Superior Court’s Bizarre One-Judge Precedential Opinion

Last week, the Pennsylvania Superior Court released a new precedential opinion in a rollover case, Parr v. Ford Motor Company, 2014 PA Super 8. Initially, I was going to write about the merits of the decision itself, but when I went to look for which judges had voted for which side, I saw something disturbing: of the three judges on the panel, one had to retire before the decision was issued, and the remaining two judges disagreed on three dispositive issues. Thus, the ‘majority’ opinion — which may or may not be the law of the law in Pennsylvania now — is actually just one side of a split two-judge panel. There’s no meaningful difference between the ‘majority’ and ‘dissent’ opinion (neither commanded a majority), yet one of them has been designated a precedential opinion of the Superior Court. The circumstances underlying this “precedential” case raise questions about how practitioners and judges should treat it.

 

By way of background (Pennsylvania practitioners can skip this paragraph and the next three after it), when civil cases are appealed in Pennsylvania, they are first sent to the Superior Court. (Except for cases involving the Commonwealth, which go to the Commonwealth Court.) There are thirteen Superior Court Judges and four Senior Judges, but they hear and decide cases as three-judge panels. The three judges hearing the case take a vote, the majority wins, then one of the judges in the majority writes the opinion for “the Court.” If there is a dissent, they write an opinion about what they would have done instead.

 

A party that has lost in front of a three-judge panel has two options: they can ask the whole Superior Court to hear the case en banc, or they can ask the Pennsylvania Supreme Court to hear it. Parties don’t have a right to either, and both are rare. Typically, a three-judge Superior Court decision is the end of the road for civil litigants.

 

That three-judge majority opinion is, by default, “non-precedential,” sometimes also called “unpublished” or “memorandum.” Leaving the decision “unpublished” is a statement by the Superior Court that it does not want future trial courts (or future Superior Court panels) to put too much weight into their opinion, because it was written for the parties in the case, and was not written with an eye towards guiding the law in future cases. We could have a long academic discussion about the wisdom of allowing “non-precedential” decisions in the first place (see this article for more), but, regardless, the designation has a significant practical impact in Pennsylvania: lawyers typically cannot cite to “non-precedential” in support of opinions their arguments. See Superior Court Rule 65.37 (“An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding…). Even if party cites it, courts tend to ignore “non-precedential” opinions, because they know the court wrote that opinion did not feel strong enough to mark it “published.”

 

In contrast, “published” opinions by the Superior Court, even if just by a three-judge panel, become the law of the land in Pennsylvania. “Publication” is a statement by the Superior Court that trial courts are supposed to follow the decision from now on, and that future Superior Court panels are supposed to treat it as stare decisis. An “unpublished” decision is not much of a big deal, because it affects only the parties. A “published” decision, however, makes new law.

 

Now, let’s talk about Parr v. Ford. Without getting too deep into the details (if you want to do that, I wrote a separate post on our Firm’s blog), the Parr family was in an accident in their 2001 Ford Excursion, which rolled over and crushed on top of them, and two of the Parr children were seriously injured. The plaintiffs sued Ford, alleging the 2001 Excursion was defectively designed. When the case went to trial, the trial court made several evidentiary ruling in favor of Ford and against the plaintiffs, and the jury sided with Ford. The plaintiffs appealed, arguing that the trial court was wrong on four main issues, and that each one of those issues should warrant a new trial.

 

With all that background out of the way, let us talk about the problem. The appeal was assigned to a three-judge panel. Before the decision was reached, however, one of the judges retired. (I’m assuming he ran into the mandatory retirement age of 70; a bump up to 75 is in the works, but it requires amending the Pennsylvania Constitution.) That left just two judges deciding the case. Continue reading

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Why The NFL Concussion Settlement Wasn’t Approved – And Why It Might Never Be

Yesterday, Judge Anita Brody of the Eastern District of Pennsylvania, who oversees the consolidated NFL concussion litigation, issued an order denying preliminary approval to the $760 million (not including class action or MDL attorney’s fees) settlement reached last fall and detailed in a filing earlier this month. The settlement had already raised complaints that it was inadequate. Although the awards ranged up to $5 million (e.g., for a player who played for five years or more and was then diagnosed with ALS before age 45), it seemed that the bulk of the awards would be much lower (e.g., under $600,000 for long-time NFL players diagnosed with moderate dementia after age 60).

 

But that wasn’t why Judge Brody denied preliminary approval. The primary issue identified by Judge Brody is not, to me, a very big deal: based on the size of the award fund, she wrote, it seems possible that “not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid.” Given the sizes of the awards and the number of potentially qualifying plaintiffs, “it is difficult to see how the Monetary Award Fund would have the funds available over its lifespan to pay all claimants at these significant award levels.” Although the retired federal judge who mediated the settlement (Judge Layn Phillips) said that there were a variety of economic and actuarial analyses showing the adequacy of the fund, none of that was presented to the court, and so Judge Brody did not have enough of a record to preliminarily approve the settlement.

 

That’s a simple, obvious problem. It should be easy enough to fix: unless Judge Phillips did a sloppy job — which I highly doubt — then the production of these analyses, and then maybe some comparatively modest adjustments to the fund, should cure that issue.

 

But a footnote on page 10 raises a bigger problem: “I have additional concerns including, but not limited to, the adequacy of the BAP Fund and the release of the NCAA and other amateur football organizations. These concerns will also have to be addressed.”  Continue reading

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Congress Slips In A Stealth Medicare/Medicaid Lawsuit Tax

Otto von Bismarck is credited with the saying, “Law and sausage are two things you do not want to see being made.” This might be unfair to current artisanal dry-cured meat producers, but it is still quite the case with Congress. Last month, without a word of debate, Congress tucked into the Bipartisan Budget Act of 2013 a change in Medicaid subrogation law that will deny millions of injured victims their fair compensation and will make it harder for defendants and insurers to settle cases. It’s a de facto tax on any Medicare/Medicaid recipient who brings a tort lawsuit, which is quite a surprise given that, at the time, it was said the Act “includes no new taxes, and does not make any changes to entitlement programs.”

 

Some background is in order. For years, the companies that profit most from needlessly endangering consumers have tried to create the impression of a “jackpot justice” system,   in which trial lawyers file claims regardless of the defendant’s responsibility or the plaintiff’s damages, and are awarded large sums of money at random, which they pocket.

 

It’s a lurid image, one that lines up with the interests of the U.S. Chamber of Commerce’s membership, but it’s never been remotely true. The vast majority of injury litigation is routine and not genuinely open to much criticism: a defendant did something we all agree is unreasonable and unsafe (like running a stoplight) and hurt a plaintiff, the plaintiff received medical treatment and spent some time off from work, and now the plaintiff is bringing the claim to deal with those expenses and the lost wages.

 

Most injury lawsuits shouldn’t be that much work, but because of insurance companies’ “three D” strategy — delay, deny, defend — the cases end up being a lot of work. It can easily take more than 100 hours of attorney time to prove a simple red light car accident case with typical economic damages, like medical expenses.

 

And that’s where Medicaid and the recent changes come in. Whether the plaintiff is privately insured, part of an ERISA plan, a Medicare/Medicaid beneficiary, or was uninsured, someone is going to come looking for reimbursement from the plaintiff’s lawsuit for the medical care the plaintiff received. These “liens” have long been a challenge to plaintiffs and their lawyers, and the situation has become much, much worse in the past few years.  Continue reading

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Medicine Is Not An Exact Science (Countering A Defensive Medicine Myth)

 

As I’ve argued on this blog before, “defensive medicine” — i.e., the claim that doctors routinely order useless medical tests and procedures solely to prevent the appearance of malpractice — is a myth. By and large, if a test or procedure won’t help prevent the patient from developing a serious complication, then it won’t help the doctor avoid a lawsuit if something goes wrong. Conversely, if a test or procedure would have helped the patient avoid a serious injury or complication, then, typically, the standard of medical care required the test or procedure anyway. Tort liability arises only when a doctor fails to do what a reasonable doctor would do and that failure causes the patient harm.

 

As I detailed again back in August, states that enacted draconian “tort reform” laws — which made it impossible for injured patients to pursue all but the most egregious cases of malpractice involving millions of dollars in damages — have not seen any reductions in their health care costs. Tort law and malpractice lawsuits simply don’t have much of an effect on health care and health care spending in the United States. That’s not surprising, considering that malpractice payments comprise a mere one-tenth of 1 percent (0.11 percent) of national health care costs. Plenty of unnecessary medical procedures are performed every day, but the motive for them is the obvious one: to make money.

 

However, the myth of defensive medicine just won’t go away, and on Christmas Day, a doctor under the pseudonym “Skeptical Scalpel, MD” posted that “defensive medicine is ubiquitous and not going to go away soon. Health care costs will continue to rise.” He recommends “a massive culture shift” among doctors and patients.

 

It’s unclear what kind of culture shift Dr. Scalpel has in mind, but the three examples of “defensive medicine” he gives suggest he wants doctors to scrap the differential diagnosis (the process of elimination that forms the backbone of clinical medicine) and stop reaching out to colleagues for advice on complicated cases.

 

Here’s his first example:

 

A young man with chest pain arrives in the ED. After taking a history and examining the patient, the ED MD is 99.99% certain that the patient did not have a heart attack or a pulmonary embolism. But he’s a little short of breath. He remembers a case of a fatal PE with only minimal shortness of breath, orders a blood gas and CT angiogram of the chest.

 

Any physician who is “99.99% certain” that patient did not suffer a heart attack is unfit to practice medicine. A patient history and physical examination will never give any physician enough information to be “99.99%” or 98.78% or 73.64% or 22.13% or 00.01% certain of anything. Clinical medicine doesn’t work that way. A doctor in that circumstance might reasonably be “pretty sure” or “confident” that the patient isn’t having a serious, urgent medical condition, but to ascribe any specific probability to it — much less a probability (“99.99%”) that is an incredible 3.89 standard deviations from the mean, with an equally surprising zero confidence interval — means that the doctor has utterly failed to understand the limits of a clinical medicine, and has wrongly presumed a level of mathematical precision to their analysis.  Continue reading

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The Florida Bar Sued For Prohibiting Lawyers From Having Opinions

When I saw it, I had to double-check to see if it was a joke. The report said the Florida Bar  precluded a law firm from posting on its blog remarks like, “[the days] when we could trust big corporations … are over,” “Government regulation of … consumer safety has been lackadaisical at best,” and “when it comes to ‘tort reform’ there is a single winner: the insurance industry,” because such statements of opinion are not “objectively verifiable.” If that was the rule everywhere, then the ABA Journal’s list of top blawgs would be very dull indeed.

 

Could that report about the Florida Bar possibly be true? Two centuries ago Thomas Jefferson said “banking establishments are more dangerous than standing armies.” Less than a month ago Pope Francis decried how today “Human beings are themselves considered consumer goods to be used and then discarded.” But the lawyers who take on the banking establishments and hold corporations accountable for treating people like disposable goods can’t say the same?

 

Turns out the Florida Bar really did tell Searcy Denney Scarola Barnhart & Shipley PA that their blog violated that Bar’s most recent restrictions on attorney advertising because those statements of opinion were not “objectively verifiable.” Quite understandably, the firm has filed a First Amendment challenge to the restriction (complaint here).  Continue reading

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Pradaxa Benchslap: “the defendants can’t fathom the Court was not persuaded”

[Update, December 9, 2013: Judge Herndon entered stiff sanctions today given Defendants' misconduct in discovery. "As the Court mentioned hereinbefore, the question the Court has been asking over and over again has been answered. How can these problems keep happening? One of the problems to which the Court has been referring was that the defendants kept coming up with materials in an untimely manner. Materials were being turned over months and months late - often on the eve of a deposition. It is clear to the Court that the defendants have been pursuing a policy of turning over relevant material, or withholding relevant material, on their schedule and not the Court’s. In doing so, they have violated the Court’s case management orders. They have made misrepresentations to the Court in open court and in chambers. The defendants have caused the Court to believe that each defendant had a litigation hold, company-wide, on all relevant personnel and all relevant documentation and data (in their broadest definitions) at all relevant times."]

 

Kurt Vonnegut wrote in Slaughterhouse-Five that The Brothers Karamazov was the one book “that can teach you everything you need to know about life.” Here’s one of the lessons from Dostoyevsky’s final novel:

 

Above all, don’t lie to yourself. The man who lies to himself and listens to his own lie comes to a point that he cannot distinguish the truth within him, or around him, and so loses all respect for himself and for others.

 

I thought of that advice when I read U.S. District Judge David Herndon’s “minute order” earlier this week in the In re Pradaxa (Dabigatran Etexilate) Product Liability Litigation:

 

MINUTE ORDER … Today, the defendants contacted the Court suggesting that the December 16, 2013 deadline [imposed by the Court] may reflect a misunderstanding as the defendants do not believe the Court could possibly have intended to order a production completion date for which the defendants will be physically unable to comply.

 

In other words, as with past orders, the defendants can’t fathom the Court was not persuaded by their argument and/or did not accept their assertions of fact. They cannot accept that the Court would not simply enter an order as requested by them. Therefore, they are now giving the Court an opportunity to correct this faux pas. To which the Court now responds, no thank you. 

 

The Court considered carefully the assertions made by the defendants and weighed those assertions against the record in this case. On an assessment of credibility, the Court surmised that the defendants’ assertions of the time needed, in light of what has transpired in the past, was an exaggeration.. Signed by Chief Judge David R. Herndon on 12/4/2013.

 

(Breaks added for clarity; emphasis added) See it in all its glory on the ILSD ECF.

 

In the law blogging world, we call that a “benchslap.” (Back in 2005, David Lat coined the term to describe a “stinging slap” from a court.) Continue reading

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Judge Kozinski Vs. The Proposed Federal Civil Procedure Amendments

If you don’t think you can win fair and square, then change the rules. That’s been the modus operandi of the United States Chamber of Commerce (a private lobbying group with a misleading name) and the wealthy interests it represents, like the nation’s major insurance companies and product manufacturers. That’s why there’s been such a push for “tort reform” in the states over the past generation: because those same interests have realized that, in a fair court system, they will be held accountable for the full human and economic damage that they cause.

 

In the federal system, those wealthy interests have had such success in re-writing civil justice law in their favor — to those who doubt a slant in the Supreme Court, consider how the Chamber of Commerce wins every time, from Dukes to Behrend to Concepcion to Mensing to Barlett to Italian Colors — that they have moved on to re-writing federal civil procedure itself in their favor. This effort had its first big victory back with Twombly and Iqbal, which encouraged lower courts to start arbitrarily tossing out claims and cases on metaphysical grounds like whether an expert’s analysis was a “fact” or a “legal conclusion.”

 

Since then the effort to effectively grant civil immunity to a host of wealthy interests by way of supposedly neutral procedural changes has been gathering steam, culminating this year in proposed amendments to the Federal Rules of Civil Procedure by the Federal Judicial Conference’s Committee on Practice and Procedure. The two biggest issues relate to proposals (1) to preclude plaintiffs from obtaining evidence, including evidence held by defendants (back in June, I wrote about the “proportionality” changes) and (2) to give corporations a blank check to destroy evidence without any consequences.  Continue reading

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GoldieBlox’s Parody Of The Beastie Boys Is Probably Fair Use

[Update: After I published the initial version of this post, GoldieBlox pulled the video and "apologized." My thoughts are appended at the end.]

 

About 30 years ago, a punk rock band in New York City had the good fortune to run into an NYU student named Rick Rubin, who convinced them to move into hip-hop and rap and began producing them. This compelled the only woman in the group, Kate Schellenbach, to leave. (She eventually went on to join Luscious Jackson and to be a producer of The Ellen DeGeneres Show.) Three years after that, they released their debut album Licensed to Ill, which became the first rap album to hit No. 1 on the Billboard chart.

 

On that album was a short, repetitive (the melody is just The Isley Brothers’ “Shout” played over and over again), misogynistic track titled “Girls,” a track hated by a large swath of society, including, apparently, some of the band members. The Beastie Boys never played it live, and Adam “MCA” Yauch subsequently apologized for the insulting and bigoted content on the album, including in 1994 lyrics “I want to say something that’s long overdue / the disrespect to women has got to be through / to all the mothers and the sisters and the wives and friends / I wanna offer my love and respect to the end,” and in a 1999 letter to Time Out New York.

 

It was thus deeply satisfying to see GoldieBlox, the makers of a science-based toy for girls (one that I pre-ordered for my girls and received as a gift from my mother), repurpose the song as a girls-empowerment theme, changing lines like “Girls, to do the dishes / Girls, to clean up my room” into “Girls, to build the spaceship; Girls, to code the new app.” They then posted it online, and it promptly went viral, shared widely by the many people who hated the original “Girls.”

 

It’s unclear what exactly transpired between The Beastie Boys and GoldieBlox, but it is clear The Beastie Boys felt the use was for commercial advertisement, even if it was for a positive message with which they now agreed, and so now the case is in Court. The Hollywood Reporter has the complaint.

 

Considerable attention has been drawn towards the fact that Goldieblox filed the case, not The Beastie Boys (or Def Jam Records, or any of the other entities involved), but in the world of copyright litigation, that doesn’t mean too much. If there’s doubt as to whether or not you’re infringing on a copyright (i.e., if you’ve received a specific claim that you’re infringing), there’s good reason to file first, and in this case the complaint is filed against a bunch of massive corporations in a district that is convenient to them (i.e., the Northern District of California), and so this isn’t an example of a big company trying to push around a copyright holder by preemptively suing them in a far-flung jurisdiction. I personally wouldn’t have filed first, but there’s nothing unusual about GoldieBlox doing it, and the law encourages them to file quickly to remove the cloud of doubt — if they don’t, and it turns out later that a court finds the work to be infringing, they could be on the hook for much larger damages.

 

Now, on to the merits: does the GoldieBlox commercial infringe upon The Beastie Boys’ copyright to “Girls?”  Continue reading

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