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.

  • Hulk Hogan's Helpers

    May 25, 2016
    It turns out that Hulk Hogan’s lawsuit against Gawker may have been more of a tag team match than originally reported.  This fascinating/scary piece from Talking Points Memo notes that a Silicon Valley billionaire named Peter Thiel bankrolled the Hogan suit that resulted in a crippling $115 million judgment against Gawker.  According to the TPM piece, Nick Denton, the beleaguered owner of the publication, apparently got suspicious about whether a third party was financing the litigation based on the fact that “Hogan’s lawyers made key decisions which made zero sense if the goal was to maximize [Hogan’s] settlement.”  TPM also reports that in recent weeks, there have been several new lawsuits filed against Gawker and all brought by the same attorney who represented Hogan.   

    Now it’s entirely possible that the spate of lawsuits, all filed by the same lawyer are on the up and up.  Success breeds success as people say.   So if several plaintiffs had problems with Gawker, it’s not surprising that they may flock to the lawyer who secured a company killing verdict against it.   

    But it’s not so much on the up and up if the plaintiffs and the lawyer are doing the bidding of an unrelated party.  The common law had a term for that kind of conduct –“maintenance.”   It is defined as “the intermeddling of a disinterested party to encourage a lawsuit.”  A related concept is “champerty.” Champerty" is the "maintenance" of a person in a lawsuit on condition that the subject matter of the action is to be shared with the maintainer.  They were crimes and torts at common law.  And they should be.  Lawsuits are designed to resolve real disputes between the parties in the suit.  Lawsuits are not intended to provide opportunities for surrogates to fight out unrelated battles – especially where one of the combatants lurks in the shadows.  

    I won’t repeat the point made in the TPM piece other than to say it is a scary prospect that someone with enough money and vindictiveness can use the court system to shut down a publication he doesn’t like.  Given that one blow hard presidential candidate has called for “loosening up libel laws” the prospects are even more chilling.  Perhaps now would be a good time to re-visit the evils of “maintenance” and “champerty.” 
    Go comment!
  • Opinions -- Everyone's Got One

    May 23, 2016
    I don’t know if these days people are more opinionated than in times past.  Remembering dinners with my dad when I was a kid, I think not.  But, I do think that there are way more outlets for those opinions.   

    Some of those outlets – Facebook and Twitter for example, aren’t necessarily designed for sharing opinions, but as crazy uncles and well-coiffed presidential candidates have demonstrated, it draws them like moths to a flame. But  review sites – like YELP and Rotten Tomatoes -- exist precisely to gather and distribute opinions.   

    And that is what is for.  It offers users the opportunity to talk about their job – whether they hate it, love it or tolerate it.  And the users who contribute reviews presumably assume that they can speak freely, without fear of liability, for two reasons.  First, the site allows for anonymous comments.  So theoretically at least, the speakers are masked.  And second, and probably better, is the First Amendment’s protection for opinion.   

    Opinions can’t form the basis for a libel suit.  There is a fairly mundane reason for this.  A libel plaintiff must prove that the defendant made a false statement.  And a true opinion can’t be true or false. In my opinion, “Animal House” is the funniest movie ever made.  In my son’s opinion, that honor goes to “Old School.” Neither one of is wrong, but neither one of us is right.   And so neither one of us made a false statement.  And Will Ferrell can’t sue me.    

    But that fairly simple fact seems to have eluded a California lawyer named Philp Layfield.  He and his firm are pursuing a defamation suit against several anonymous posters for comments they made on Glassdoor.  According to a subpoena served on Glassdoor, Attorney Layfield wants to know who authored the following posts:

      1.  “Bad place to work (this company just changed its name) Research Layfield & Wallace”
      2. “Deceptive, Unethical, Poorly Managed, No Sense of Direction” 
      3. “You will HATE working here – Please read all the reviews” 
      4. “Working Here is Psychological Torture” 
      5. “New Admitees Beware!” 
      6. “For the love of God, do NOT work here” 
      7. “Anyone who gives this place a full rating has literally just started working there.” 
      8. “Working for Philip J. Layfield (a.k.a. Philip S. Pesin) Was Pure Misery” 
      9. “Horrible place to work. Unreasonably cruel.”
      10. “Phil Layfield Changed His Name from Phil Pesin for a Reason”
      11. “Don’t let the name change fool you, read the reviews for Layfield & Wallace. This is Phil Pesin’s way of ‘starting fresh'”
      12. “Layfield & Barrett, wallace or pesin STAY AWAY!!! BAD BOSS”

    I can see why he’s upset, but I can’t see why he thinks he has a case.  As unpleasant as the posts appear, they sure look like opinions to me.  Consider #1 – what makes a job a “bad place” to work?  Can anyone prove that’s a false statement?  Is it false to say a job is “pure misery”?  I don’t think so.  And I hope the court quashes the subpoena.  Anonymous speakers should not lose the right to speak anonymously (The First Amendment includes that right) just because someone’s nose is out of joint.  If the case lacks merit, so does the subpoena.   

    And it seems to me Attorney Layfield may have one more problem – truth.  It seems to me that to prove the statements are false, he has to prove that it’s great to work at his firm.  But if he sues people for expressing their opinion, how great could it be? 
    Go comment!
  • Ferguson Abuse of Power Resolved - Or Is It?

    May 20, 2016
    St. Louis County Missouri has agreed to drop criminal charges against Washington Post reporter Wesley Lowery and Ryan Reilly of the Huffington Post.  The reporters were covering the unrest in Ferguson nearly two years ago.  Watch this clip starting at the 2:45 minute mark to see what precipitated the arrest.  I’m no criminal lawyer, but from what I can tell the arrests – inside a McDonalds where the reporters were grabbing a bite -- were for the offenses of “not moving as fast as the cop wanted” and “asking questions is a respectful tone.”  I don’t know if those are felony level offenses or not.  

    Thanks in part to Twitter, the reporters were released from custody that evening.  But nearly a year later, prosecutors filed formal charges against them for trespassing and interfering with a police officer.   Now, almost two years after the initial arrest, the matter is being settled.  In exchange for the count dropping the charges, the reporters have agreed not to file any civil lawsuit.  All’s well that ends well?  

    I’m not so sure.  The initial arrest was an abuse of power by a cop.  Totally inexcusable, but given the tension that night, I can see it happening.  I’m more troubled by the prosecutor’s decision – nearly a year later – when there were no bullets firing or street fires burning – to file formal charges.  And I can’t help but wonder if those charges were filed precisely to serve as a bargaining chip to avoid liability for the initial arrest.   

    If so, that is true abuse of power.  And there is no excuse at all for that.   
    Go comment!
  • Rooting for Reversal

    May 19, 2016
    I am rooting very hard for a Cleveland lawyer named Peter Pattakos in his efforts to overturn a trial court’s order requiring Pattakos to pay an opponent in a lawsuit nearly $11,000 in attorney fees as a sanction for conduct in a lawsuit where Pattakos was representing two plaintiffs in litigation against the English Nanny & Governess School. 
    What, I’m sure you’re asking, did Pattakos do to incur the wrath of the trial court? He told a reporter for the alternative weekly Scene that the case – which involved allegations that the school pressured the plaintiffs not to report an incident of sexual molestation they observed while on an assignment – might be of some public interest. Pattakos had the gall to invite the reporter – a friend of his by the way – to attend the opening statements.  The Scene reporter wrote an article about the case – accurately based on the public filings -- which was published the day before trial began.

    Three jurors saw the headline of the article, but, because they had been instructed not to read media accounts of the proceedings, they did not read the article itself.  The judge examined the jurors and apparently was satisfied that they were not prejudiced by the headline and the trial proceeded. Unfortunately, while the trial was in progress, Pattakos was hospitalized and the court declared a mistrial. Once Pattakos was able to return to action, the court set a new trial date.

    But before the rescheduled trial date, the defendant school asked the court to sanction Pattakos, arguing Pattakos was “responsible” for the Scene article.  In response, the court issued the order sanctioning Pattakos.

    Let me recap. A lawyer informs a reporter that a public trial is about to begin. The reporter reviews publicly available information and writes a story. The publication has no prejudicial impact on the jury. But the lawyer gets sanctioned. In what universe does that make sense? I’d say this is a “kill the messenger” result, but it is more accurate to say this was a “kill the guy who gave the messenger the heads up” scenario.

    And putting aside the fact that the story had zero impact on the trial, there is the First Amendment to consider.  Under certain very limited circumstances lawyers may be ordered to not to discuss highly confidential matters, but outside of those limited circumstances even we lawyers have a right to speak. And speak to the press.  And be free from some knee jerk over reaction when we do.

    Several media advocacy have filed a friend of the court brief in support of Mr. Pattakos. I hope they convince the appellate court to vacate this order. And I hope I do a more effective job rooting for Mr. Pattakos than I’ve done rooting for the Reds thus far.
    Go comment!
  • Worth More Dead Than Alive?

    May 13, 2016
    I saw this blurb somewhere recently and I was kind of fascinated by it.   

    Michael Jackson has earned nine figures every full year since his death. The top-earning celebrity estates in 2015: 
                Name                    $Millions
    1. Michael Jackson         115.0
    2. Elvis Presley                  55.0
    3. Charles Schulz              40.0
    4. Bob Marley                    21.0
    5. Elizabeth Taylor            20.0
    6. Marilyn Monroe             17.0
    7. John Lennon                 12.0
    8. Albert Einstein              11.0
    9. Paul Walker                   10.5
    10. Bettie Page                    10.0
    11. Dr. Seuss                         9.5
    12. Steve McQueen               9.0

    I’m not shocked by the top three.  I suspect Michael Jackson’s estate includes the revenue on the vast library of songs he’d invested in while he was alive.  And I’d always heard that Elvis had earned far more dead than he did alive.  That is thanks in large part to his manager – Colonel Tom Parker.  Elvis no doubt deserved better.  Charles Schultz at #3 is no surprise.  His characters seem nearly as ubiquitous now as when he was alive.   

    But Bob Marley at 4?  Does he still get revenue from sales of weed?  If so, I’m surprised he’s not ranked higher.  No pun intended.  And younger readers not familiar with the concept of the “pin up girl” may not be familiar with Bettie Page.  But apparently,   She was the subject of an almost cult like following in the 80’s. Who knew? And while I am glad to see my favorite author – Dr. Seuss – at #11, I really can’t figure out how Steve McQueen comes in at 12.   While he was in some truly awesome films – the chase scene in Bullitt is freaking awesome – he died 36 years ago. Impressive staying power.  

    I have to believe Prince will crack this list next year – although his estate will likely still be in litigation.   And I wonder if David Bowie will have a shot.  I really don’t mean to be as morbid as that sounds.  

    In any event, there is a legal reason why this list exists.  The “right of publicity” – the ability to control the use of one’s name and likeness – survives death.  That may seem obvious, but not all rights do.  Libel claims, for example, typically expire when a person dies.  So while the estate of Michael Jackson could sue me for using his photo to help publicize my blog, it couldn’t sue me if I besmirched his reputation.  (editor’s note – I am pretty sure this is the first time I have ever used the word “besmirched” in my blog).  Elvis’s estate was really aggressive about enforcing his right of publicity after his death, so much so that a bright eyed young law student wrote a law review article on the subject.    

    So, for my celebrity readers out there, know that you may have an annuity to leave to your heirs by virtue of your current body of work. And for everyone else, don’t be like Prince.  Get an estate plan in place!

    Go comment!
  • Duck Season

    May 09, 2016
    A friend sent this piece my way last week and thought I should write about it.  The story concerns an Ohio Supreme Court decision declining to hear an appeal from an appellate court finding that a Cleveland Indians fan could proceed with a lawsuit against the Tribe for injuries he sustained from being hit by a foul ball.     

    The trial court granted summary judgment to the Indians, finding that baseball spectators assume the risk of being hit by a foul ball any time they attend a game.  The trial court’s judgment meant the fan – Keith Rawlins – couldn’t present his case to a jury. The Court of Appeals, however, reversed the trial court’s ruling, finding that Rawlins presented enough facts to justify a jury trial.  The Indians asked the Ohio Supreme Court to hear the case and reinstate the trial court’s ruling.   

    The Ohio Supreme Court exercises “discretionary jurisdiction.”   That means it doesn’t have to hear every case that comes before it.  And in this case, it declined to hear the Indians appeal.  The upshot is, unless Mr. Rawlins and the Indians reach a settlement, the case will proceed to a jury trial.   

    The case is interesting because it goes against the precedent that has existed for decades – that a foul ball is an unavoidable risk at a major league game.   Law students read that case in first year torts class. It is the quintessential example of the concept – that some endeavors are inherently risky, such that by participating, the person accepts the consequences.  Interestingly, there is an old case, decided after the baseball precedent had been established, holding that a hockey fan does not assume the risk of getting hit by a puck.  The rationale of that case was that American fans were not as familiar with hockey as they were with baseball.  Whatever.  

    Apparently, in the case of Rawlins v. The Cleveland Indians Baseball Club, the difference was that Rawlins got beaned while he was leaving his seat after having been instructed to move from his original seat in preparation for a post-game fireworks show. At the time he was hit, Rawlins was walking up the aisle seats.  In Rawlins’ view, the fact that he was compelled to move, and the fact that he was hit while in the process of moving, removed the case from the assumption of risk umbrella.   

    The Indians argued, logically enough, that people leave their seats at any given time in a game, and there is no reason why they should be any less alert to the prospect of a foul ball while moving then when seated.  The appellate court didn’t see it that way.   Without any real explanation the court found that spectators who voluntarily leave their seats remain subject to the assumption of the risk, but spectators who are directed to move do not.  I confess, I don’t get it.  And does this rule mean that if I get hit while I’m am in the process of paying the beer vendor – an Indians employee -- for a round of beers I’m no longer subject to the assumption of the risk?   Seems like the court is opening a pretty big can of worms here.   

    The Supreme Court’s decision not to hear the case doesn’t mean it agrees with the appellate court. It just means the Supreme Court didn’t feel the case posed a matter of great public interest.  That may be because the facts are so unique, a similar situation isn’t likely to recur.   

    Maybe the Indians should settle with Mr. Rawlins.  Why not offer him luxury seats the next time the Indians make the World Series?  It’s a generous offer, but in all likelihood, they’ll never have to pay up!  
    Go comment!
  • Told You So

    May 03, 2016
    I have never understood why people begin the sentence "I hate to say 'I told you so'" with the words "I hate to say."  Because it seems to me most people really like to say "I told you so."  It always seemed to make my mom happy when she said it to me. And my wife appears to enjoy it too.     

    That comes to mind today in light of the Ohio Supreme Court's decision in White v. King.  In the case, the Supreme Court ruled that a prearranged discussion via e-mail among the members of a school board constitutes a meeting for purposes of the Ohio Open Meetings Act. In short, a virtual meeting is a meeting.  And if the public is shut out (which it kind of is in that scenario by definition) that is a violation of the Act.  

    The decision is unquestionably correct.  There is nothing in the Act's definition of a meeting that requires physical presence.  The Act defines "Meeting" as  a "prearranged discussion of the public business of the public body by a majority of its members."  So if I tell people to sit by their computers (or more likely take out their cell phones) at 9:00 am to discuss a matter of public business, how is that different from telling people to come to my office at 9:00 am to discuss that same matter. Spoiler alert -- it's not.  

    And the fact that the legislature didn't mention e-mail in the definition doesn't affect the analysis at all.  It also doesn't say that meetings count only if they take place at the office of the public body.  Because there is no need to say that.  The only issues are whether a majority participated in the discussion,  whether the discussion concerned public business and whether the discussion was prearranged.  If the answers to those three questions are yes, it doesn't matter where the discussion took place or what format was used.  The medium is not the message here.   

    Which brings me to my "I told you so" moment.  In 2005, the First District Court of Appeals heard the case of Haverkos v. Northwest Local School District.  I represented Mr. Haverkos.  The facts in that case were virtually identical to the facts in the White v. King  case. But back then, the First District concluded that the Ohio Open Meetings Act did not cover e-mail meetings.  That decision hung out there for too long. Finally, the Supreme Court rejected it.   

    So, allow me.  I told you so.  And I absolutely do not hate to say it. 
    Go comment!
  • A Win for Officer Heffernan

    Apr 26, 2016
    In January, I posted a piece about Jeffrey Heffernan’s strange lawsuit against the city of Patterson, New Jersey.  I compared the facts in the lawsuit to a “Curb Your Enthusiasm” episode.  The incumbent mayor of Patterson had Heffernan fired from the force because he’d seen Heffernan carrying a sign for the mayor’s opponent in the upcoming election.  But Heffernan was merely picking up the sign for his bedridden mother.   

    The decision to fire a public employee for exercising his First Amendment rights is unlawful.  And Heffernan was fired based on the mayor’s perception that Heffernan was doing exactly that.   

    But Patterson argued that since Heffernan wasn’t actually exercising his First Amendment rights, his firing in reality couldn’t be attributed to any protected activity, and therefore his lawsuit should be dismissed.  Do you follow? Apparently, the U.S. Court of Appeals did, because it agreed with the city and held Heffernan’s suit should be dismissed.   

    Just this week, the United States Supreme Court weighed in and ruled in Heffernan’s favor in a 6-2 opinion (the Court is playing short- handed right now).  The majority determined that the key issue was the government’s motive, even if the government didn’t exactly have its facts straight.  That is, if the government set out to retaliate, and an employee was harmed as a result, that really should be enough.  As the majority noted, “the constitutional harm – discouraging employees from engaging in protected speech or association – is the same whether or not the employer’s action rests upon a factual mistake.”  And that seems like the proper way to rule.  

    Justices Thomas and Alito, however, felt differently, finding that in the absence of protected activity, there can be no retaliation for engaging in protected activity.  That seems theoretically sound, I guess. But Officer Heffernan wasn’t theoretically fired.  That was real.  And he is entitled to real relief. 
    Go comment!
  • R.I.P. Prince

    Apr 22, 2016
    I commented today to a friend of mine (who hosts a radio show) that the death of Prince seems to be a bigger deal on social media than the death earlier this year of David Bowie, Glenn Frey , George Martin or Merle Haggard.  That is completely unscientific, but I feel like I’ve seen more posts about it from friends and other sources than the other deaths.   

    So, because this is ostensibly a legal blog, here is an interesting piece about Prince’s legal legacy.  I’m not sure it’s fair to call him “litigious” but he clearly was not a fan of what the digital world was doing to the music industry.  

    His most significant legal legacy I think, is his impact on the Digital Millennium Copyright Act.  The DMCA is designed to protect the rights of copyright holders and to insulate third parties from liability.  The key feature of the DMCA is the notice/takedown provision.  Under the DMCA, copyright holders who believe their rights are being infringed can send a notice to the online service hosting the infringing content.  That site can avoid liability if it takes the content down.  But the copyright holder has to act in good faith in sending the notice.   

    The contribution from Prince to this law arose when he sent a takedown notice to YouTube challenging a homemade video of a toddler running wild through a house, with the song “Let’s Go Crazy” in the background.  Prince contended the use of the song in that video infringed his rights in the tune.  The mom who made the video claimed “fair use” for the snippet of the song used in the video.   

    A lawsuit ensued, and has meandered along since 2007.  The U.S. Court of Appeals recently issued a ruling in the case that requires copyright holders to consider the defense of fair use before sending a takedown notice, or risk a finding of bad faith.  The counter argument was that so long as the work was copyrighted, it was up to the alleged infringer to assert the defense.  The Ninth Circuit ruling is likely to have a chilling effect on takedown notices going forward.  Probably not the result Prince was looking for.  

    On the upside, of course, Prince’s musical legacy is unquestionably greater than his legal legacy.  I leave you with my favorite Prince song:   

    Go comment!
  • Managing Reputation or Rewriting History?

    Apr 15, 2016
    A friend of mine sent this piece from the Sacramento Bee.   It’s a story about  the University of California Davis paid Nevins & Associates – a reputation management firm -- $175,000 to remove online mentions of a November 2011 incident where campus police pepper sprayed student protestors.  Admittedly, not the kind of images that would lead high school seniors to apply.  But it begs at least two questions.  

    Question 1 is whether a state university should be spending that kind of money on anything other than essential services.  And it’s a pretty good question whether that type of PR campaign is in any way essential.  

    Question 2 is a little bigger.  And it is whether this is a legitimate PR campaign or an effort to re-write history.   I don’t think any institution has an obligation to dwell on negative events in its history.  If Kent State opts not to post a picture of the National Guard shooting from 1970, I get it.  And I get that UC Davis wants to move on from its own unfortunate recent history.  So if that means it emphasizes all the good things about UC Davis, go for it.   

    But reputation management takes it a step further in my view.  According to a memo from Nevis & Associates, its objective was the “eradication of references to the pepper spray incident in search results on Google for the university and the Chancellor.”  That’s not just accentuating the positive.  That is truly eliminating the negative.  And for a university, whose mission should be about discovering the truth, that seems as misguided as a face full of pepper spray.
    Go comment!
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