Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

  • Brimfield Township News Busts My New Year's Resolution

    Jan 21, 2015

    One of my 2015 New Year’s resolutions was to be a little less judgmental. People make mistakes after all, so why rush to point out human frailties I encounter.

    It lasted for 21 days. But in my defense, it’s tough to read this story and not feel a little righteous indignation. The story concerns David Oliver, the former Chief of the Brimfield Township (Ohio) Police Department. He is the former chief primarily due to a junior officer’s allegations that paint Oliver as a bully, who happens to be unbelievably crude and sexist. A true trifecta of creepiness. He was initially suspended for two weeks following an investigation into “gender discrimination issues related to an employee of the department. ” Oliver has since opted to “retire.”

    But Oliver’s transgressions are not even what I’m most upset about. The township hired an independent attorney to conduct the investigation to the tune of $8000. I suspect the attorney charged an hourly rate. So, let’s assume it was $200 per hour. If so, the lawyer spent 40 hours on the case. And he didn’t produce a written report. He relayed his findings orally in a closed door with the Township Trustees. Why no written report? To avoid the Ohio Public Records Act. No record means no need to let the public in on the Chief’s shenanigans. 

    So a police chief, whose salary is paid for with tax payer dollars allegedly engaged in a sustained pattern of grossly (emphasis on gross) inappropriate conduct toward a junior officer, resulting in a suspension and then a “retirement” and those tax payers have no way of knowing what happened exactly, whether the allegations are credible, or the extent to which other officers were complicit. This, despite the Ohio Public Records Act, which is supposed to guarantee government transparency. 

    I am willing to bet the Brimfield Trustees are big advocates of “traditional values” and “the rule of law.” Too bad they don’t respect the laws they deem inconvenient.  Oops. There I go being all judgmental.

    Go comment!
  • World of War Craft (Beer)

    Jan 16, 2015

    That headline might be a little strong, since threatened litigation really isn’t “war.”  But two craft brewers recently got into a trademark fight that had a peaceful resolution, apparently as a result of public opinion. 

    On January 12, the Lagunitas Brewing Co. filed a trademark infringement lawsuit against Sierra Nevada Brewing Co. Sierra was ready to launch a new produce called “Hop Hunter IPA.”  But according to Lagunitas, the logo Sierra chose infringed on the Lagunitas IPA logo trademark. 

    The claim was a little fuzzy and it appears that Lagunitas may have been trying to argue that it owned a trademark in the term “IPA” itself. That would be a tough argument to make. While the font and design of the letters “IPA” may be protected, the word is merely descriptive of a particular type of craft beer. And Lagunitas can’t exercise veto power over competitors who want to sell an IPA style beer.

    And on the logo issue, an important question is whether consumers will be confused. Here they are side by side:

    Can you spot the difference? I figured you could. Of course, I have very bright readers.

    It looks like Lagunitas realized that maybe this was not a bar fight worth picking. In a series of tweets the day after filing the suit, Lagunitas founder Tony Magee announced he was dropping the suit. He said he lost in “the ultimate court – the Court of Public Opinion." That’s the ultimate court? These guys might disagree:

    I’m not sure if it was public opinion or a recognition that the case was weak that led to the decision to drop the suit so quickly. But it points up a valid concern in this type of situation. While it’s critically important to protect your brand, it’s equally important it consider how consumers will view the effort. If you come off looking like a bully, especially in an industry where companies pride themselves on being “the little guys” it may not be worth the effort. 

    Thanks to my colleague Dan Knecht for bringing this to my attention. His beer radar is second to none. Dan is a member of Graydon Head’s Craft Food and Beverage Industry Group, which focuses on assisting clients with the organizational, marketing, and employment legal issues peculiar to burgeoning brewers, restaurants, and retailers.

    Go comment!
  • This Is All Getting Very Complicated

    Jan 13, 2015


    Given my interest in free speech and the First Amendment, it made sense to write about the Charlie Hebdo incident. And at one point, I thought about incorporating in this piece some of the cartoons that precipitated the attack. Because I clearly have the right to do so. But I opted not to do that. And I find myself asking why? Why not show an example of what I’m talking about? Am I afraid? No, I don’t think so. Although it does beg the question whether I have the right to potentially put my co-workers in danger by displaying images that might lead some deranged radical to retaliate. 

    No, I think I decided not to post the cartoons for the same reason I write f*%# when I write about a case involving someone using the f-word. What’s the point of using offensive speech when I can convey the same message using symbols? And if that’s the case, why not be considerate of readers who would be offended if I spelled the word out? 

    Of course, this all depends on what message I am trying to convey. Today’s post is a comment on tragic events apparently inspired by the cartoons. It’s not a comment on the cartoons themselves. 

    And I’m not out to make a point by ridiculing anyone. So this post is different than the one I posted last week, making fun of Kirby Delauter. I’m sure Mr. Delauter found that post offensive (at least I hope he did) but that’s the point. He took an idiotic position and I held a mirror up to it. There was no way to convey my message in a completely inoffensive manner.

    But the critical distinction here is I made the decisions about what to include and what to leave out. No one, particularly not the government, is telling me what I can and can’t say.

    But that’s where it gets a little complicated doesn’t it?  France bans anyone from denying the existence of the Holocaust. So the argument goes, if France can prohibit holocaust denial speech, because it is offensive, why can’t it ban speech that offends Muslims? Once you start picking and choosing, you invite that type of response.

    Which brings me to this piece from the New York Times. The United States Supreme Court is going to hear an argument this term on a case arising from a decision by Texas agency denying a license plate design featuring a Confederate flag. The agency denied the request because it considered the Confederate flag offensive. A  group called the Sons of Confederate Veterans is challenging the decision, arguing that the flag is a symbol of “sacrifice, independence and Southern heritage.”  And just to make this a little more difficult, the Supreme Court may also consider an appeal by the American Civil Liberties Union challenging a decision by the North Carolina state legislature not to issue license plates featuring an abortion rights slogan despite the fact that it had previously issued plates featuring the “Choose Life” slogan.   

    The New York Times thinks it’s okay for Texas to ban the Confederate flag but not okay for North Carolina to ban the pro-abortion plates. I’ll leave it to you to read their reasoning, but these cases bear some similarities to the French conundrum. Once the government makes content based decisions, things get really complicated.

    Go comment!
  • Droning On

    Jan 08, 2015

    In what may be a momentous decision, Douglas Trudeau, a real estate agent in Tucson, Arizona, just got some good news from the Federal Aviation Administration. The FAA approved Trudeau’s request to use a drone for real estate photography. To my knowledge, this is the first time the FAA has granted permission for this kind of drone use. To date, the FAA has prohibited the use of drones for a commercial purpose. 

    It’s not clear to what extent this ruling will open the flood gates. But the potential uses for drones are many and varied. Amazon wants to use them to deliver packages. The news media has big plans for their use in news gathering. And certainly law enforcement will put them to use. While it’s not yet clear if all of these drones will block out the sun,

    it sure seems like the FAA will be moving toward allowing increased use in the near future.

    My only advice for Doug in Tucson, is for God’s sake, don’t use this guy to operate your drone:

    Go comment!
  • Kirby Delauter - American Hero

    Jan 07, 2015

    I’ve had at least 5 people suggest that I blog about this story from Fredrick Maryland. It seems that Frederick councilman Kirby Delauter threatened the Frederick News-Post with a lawsuit if the paper contacted him, used his name or mentioned him in “an unauthorized form in the future.”  Delauter was upset that reporter Bethany Rodgers mentioned him in this news article. The article is an innocuous report about Frederick County’s new charter system. The reference to Delauter is by all accounts truthful and straight forward. 

    But Delauter apparently believes truth is not the point. In his bizarro universe, he has veto power any time the media wishes to report on his activities as an elected official. It’s pretty hard to argue with this comment from Terry Headlee, the News-Post’s managing editor:  "Kirby Delauter can certainly decline to comment on any story," Headlee said. "But to threaten to sue a reporter for publishing his name is so ridiculously stupid that I'm speechless. It's just a pointless, misguided attempt to intimidate and bully the press and shows an astonishing lack of understanding of the role of a public servant.”


    Of course, just because something is ridiculously stupid doesn’t mean others can’t support it. Delauter’s fellow council member Billy Shreve is apparently also Delauter’s biggest cheerleader. According to Shreve: “I did not see his post, but I think The News-Post is extremely biased and someone should sue them.”  When asked if news media outlets should obtain permission to publish an elected official's name or reference, Shreve said, “I think media outlets are cowards and they hide behind the label of journalists and that's a bully pulpit to expand their liberal (agenda)."

    Ah yes, the liberal agenda. Well, when you put it that way, sure, sue the pants off them. Except, consider the consequences. If elected officials could require permission before a news outlet could report on them, how would anyone report on anything? And if so, how would we know anything? And that would mean a lot of ignorant voters out there. Which would probably mean lifetime tenure for Delauter and Shreve.

    The really annoying thing is that Delauter and Shreve probably bemoan the liberal assault on the Constitution. I guess it’s okay, however, to assault the First Amendment.  I wonder if Delauter and Shreve list as their hobby “throwing stones in glass houses.” They should. 

    This is one of my favorite scenes from the movie “Kingpin” – where Woody Harrelson learns that his character’s last name – “Munson” has been turned into a verb for screwing up. 

    Going forward, I intend to use the term “Delauter” as a noun or a verb to describe a truly stupid idea. So to use in a sentence – “My friend bet $100 on the Bengals to win the Super Bowl. What a Delauter.” Or this: “My cousin plans to vote for Kirby Delauter.  That’s the most Delautered idea I’ve ever heard.”  

    Go comment!
  • Looking Forward To 2015

    Dec 30, 2014
    My friends at The Cincinnati Enquirer asked me to look ahead to emerging legal issues for 2015. I gave them five. I don’t know if any or all of them will be resolved in the coming year, but I am certain they will make for interesting discussion if nothing else.  Happy New Year to all!
    Go comment!
  • The List

    Dec 18, 2014

    Around this time of year, it’s common to see “lists”  -- typically “the best of”.  But here is my list of people who bugged me in 2014:

    1.            Tony LaRussa (he will be on this annual list till I die, as a matter of principal)

    2.            Yadier Molina (see above)

    3.            Matt Holliday (ditto)

    4.            Anyone wearing St. Louis Cardinals apparel (this includes players and fans)

    5.            Former Vice President Dick Cheney

    6.            Oliver Stone

    7 – 9.     The writer, performer and producer of “It’s All About That Bass”

     10.          The companies mentioned in this article

    Since my reasons for picks 1 – 9 are obvious, let’s discuss item 10. The companies listed in the article all contain provisions in their terms and conditions that purport to obligate customers to refrain “from taking any action that negatively impacts [the company’s] reputation.” In some cases, the terms say that the customer who violates the provision will be liable to “attorney fees and court costs.” 

    Think about the quoted words above. The two that are key are “any action.” So, let’s say you buy something from one of these companies. And let’s say that they screw up your order. And let’s say there is absolutely no doubt about that fact. And let’s say you complain about it to the local Better Business Bureau, or you post a review on Yelp detailing the undisputed facts. Guess what you’ve done? If you answered “breach the contract” you are correct. And therein lies the problem. 

    The terms and conditions contractually bind customers to silence in the face of legitimate complaints. Victims of false reviews have a remedy – a libel suit. But the key word there is “false.” These terms and conditions allow the companies to blow by that little inconvenience. So by definition the terms don’t address false reviews (since there’s already a remedy for those) instead, they seek to stifle the truth. And that is disgraceful.

    Let’s hope courts that review any lawsuit seeking to enforce these onerous terms refuse to do so on public policy grounds. That is the only proper response.


    Go comment!
  • SLAPP Fight In Ohio?

    Dec 17, 2014

    Many thanks to my friend Jonathan Peters for bringing this item to my attention. Jon is a professor at the William Allen White Journalism School at the University of Kansas.  As an aside, White was a fascinating figure in American history. He’s mentioned prominently in Doris Kearns Goodwin’s The Bully Pulpit for being one of the “muckrakers” who helped spur much progressive legislation during Theodore Roosevelt’s presidency. White also fought against isolationists in the lead up to World War II – not a real popular position for a Midwesterner at that time. But I digress.

    Jon’s piece is about a recent ruling from Ohio’s Eighth Appellate District upholding a summary judgment in favor of the Chagrin Valley Times, a small newspaper near Cleveland. The Valley Times reported on a December 2012 protest at the Ohio headquarters of Murray Energy. The protest had to do with Murray’s firing 156 employees following President Obama’s reelection. The Valley Times also published an editorial and an editorial cartoon critical of Murray and its owner Robert Murray. 

    Robert Murray has been a guest on Fox News, where he has decried President Obama’s efforts to “destroy America.”

    But, like most bullies, Mr. Murray is great at dishing it out and not so great at taking it.  Murray and his company filed suit against the Valley Times for libel and “false light publicity.”  Following a period of discovery the trial court granted summary judgment in favor of the Valley Times, meaning the court found the Valley Times was entitled to judgment as a matter of law. There was not enough of a case to waste a jury’s time.  And the court of appeals upheld that decision.

    But that was the easy part. What makes the case most interesting is the conclusion to the Court’s Opinion. There, the court urges the Ohio legislature to adopt anti-SLAPP legislation. A SLAPP suit is a “strategic lawsuit against public participation.” It’s a suit where a big self-righteous bully, let’s call him “Robert Murray”, brings a lawsuit to shut down the free speech rights of people who disagree with him. Even if the suit is meritless, and even if he loses, the cost of defense may make the other side think twice before they open their mouths the next time. 

    Anti-SLAPP legislation exists in 28 states and the District of Columbia. As Jon explains,  “Anti-SLAPP statutes . . . typically provide five things: protections for speech on issues of public concern and for activities related to petitioning the government, procedures to obtain early dismissal of a SLAPP, recovery of attorney’s fees and court costs for the target, speedy review of any motions to dismiss, and restrictions on the discovery process while the court considers such a motion.”  And as the Eighth District Appellate Court notes, “In this era of decentralized journalism where the internet has empowered individuals with broad reach, society must balance competing privacy interests with freedom of speech. Given Ohio’s particularly strong desire to protect individual speech, as embodied in its Constitution, Ohio should adopt an anti-SLAPP statute to discourage punitive litigation designed to chill constitutionally protected speech.”

    Here’s hoping the Ohio General Assembly includes this on their list of New Year’s resolutions!  

    Go comment!
  • Above The Law Is, Apparently, Not Above The Law

    Dec 10, 2014

    First, an important point of clarification. This post does NOT concern the classic 1998 Steven Seagal film of the same name:

    It deals instead with a legal blog. Above the Law is a chatty, snarky publication about the legal industry.  It features headlines like “Judge Uses Cartoons to Benchslap Jones Day.”  From my observation, a lot of young lawyers read it regularly. Do I sound mildly jealous? Perhaps. Maybe I need to be snarkier.  

    But I digress. A lawyer named Meanith Huon sued Above the Law for allegedly posting an article that discussed his criminal trial for sexual assault charges. Meanith Huon is an attorney licensed to practice law in Illinois. On July 2, 2008, Huon was charged with two counts of criminal sexual assault, two counts of criminal sexual abuse, and one count of unlawful restraint. The charges arose out of his alleged interactions with “Jane Doe” on June 29, 2008, in Madison County, Illinois.

    Approximately one year later, on July 17, 2009, Huon was charged with cyber stalking and witness harassment based on allegations involving the same Jane Doe. Following a trial in May 2010, a jury acquitted Huon of the sexual assault charges. The cyber stalking and witness harassment charges were dismissed in December 2011. 

    On July 2, 2008, the day the sexual assault and related charges were filed, an article about those charges appeared in the Madison County Record. The following day, July 3, 2008, Above The Law published a post that included the one-line statement “Lawyer of the Day: Meanith Huon” along with a link to the Madison County Article. On May 6, 2010, Above The Law published an article “Rape Potpourri.” The “Rape Potpourri” article provided information and commentary on two “rape stories”: (1) the arrest of former New York Giants linebacker Lawrence Taylor based on a rape allegation, and (2) the allegations at issue in Huon’s criminal trial and the opening statement made by Huon’s defense lawyer at trial. The section of the article on Huon purported to link to and quote, several other publications, including the Madison County Article. The Article eventually generated over 107 comments or replies from users (way more than I ever get).

    On May 6, 2011, one year after publication of the potpourri article, Huon sued Above the Law, along with the anonymous commenters who posted comments on the article. Huon included a potpourri of claims, including defamation, intentional infliction of emotional distress, and false light invasion of privacy. Huon’s civil suit generated its own publicity, including a story on the blog, which appears on Gawker.  That blog posted an article entitled “Acquitted Rapist Sues Blogger for Calling Him Serial Rapist.” Jezebel included links to the Above the Law potpourri article. The Jezebel article prompted about 80 comments. Huon eventually amended his complaint to add Jezebel and Gawker as defendants.

    For the most part, Huon had less success in civil court than he’d had on the criminal side.  Although Huon alleged that the articles were written to incite defamatory comments, the court held Section 230 of the federal Communications Decency Act precluded any suit against Above the Law and Gawker for those third party comments.

    The court also found that for the most part, even the content written by Above the Law and Gawker (which would not have Section 230 protection) wasn’t defamatory.  According to the court, the articles accurately described the charges and the court proceedings against Huon. They were protected by what is known as the “fair report privilege.” 

    But Above the Law didn’t come away totally clean. The court noted that one passage in the article said: “And this, people, is why God invented Google. Had the victim Googled Huon, she would have found stories like this . . .”  The article then detailed reports about Huon from other publications. In context, the court found that this passage implied that Huon had been involved with sexual assault charges before the Jane Doe incident. And this was not the case. As a result, while the court dismissed all of the claims against Gawker, it allowed Huon to proceed with his suit, albeit in a very limited manner, against Above the Law. 

    The lesson? It’s okay to be snarky, but better make sure your facts are straight.       


    Go comment!
  • Shooting The Messenger

    Dec 09, 2014

    Well, sort of I suppose. Here’s a post from that calls out Roca Labs for its efforts to get negative comments about Roca products off the Internet. Without going into a lot of detail Roca is apparently suing 11 anonymous commenters for defamation based on comments the anonymous posters put up a various Web sites complaining about a Roca Labs product that supposedly gives the drastic weight loss benefits of a gastric bypass procedure without the operation.   

    Typically, in a case like this, the first thing the defendant tries to do is unmask the anonymous poster. But Roca may not be bothering with that step. According to the post, Roca’s plan is to get default judgments against the anonymous posters, and then use those judgments to force search engines such as Google to remove the posts.  Some search engines will remove content that has been deemed defamatory, but that is a voluntary policy, not a legal requirement.

    In fact, the law is contrary to such an argument. The federal Communications Decency Act provides that a provider of interactive computer services is not deemed the publisher of content generated by third parties. And courts have held (most recently an appellate court in Florida) that the CDA effectively provides immunity to search engines for claims arising from third party content. And that includes “equitable claims” like an injunction. 

    All of that means, it may be tough for Roca to shut down the critical voices out there. No matter how much it throws its weight around.

    Go comment!
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