Hello, hello, hello, Game Show fans! My, what a great crowd we have today. I’m your host, Wink Marshall, and today our contestants are going to compete for Most Unethical Law Suit. As always, you, our home audience, will decide who get the prize, a lifetime supply of extremely expensive boloney, courtesy of our sponsor, Oscar Meyer. Are you ready? Then, let’s meet our contestants! First, heeeere’s…
You remember Andrew, right? In June, I wrote…
ESPN cameras caught Andrew Rector sleeping in his seat in the fourth inning of the April 13 Boston Red Sox-New York Yankees game. In the time-honored tradition of TV play-by-play when something funny, weird or, most especially, sexy is spied in the stands, ESPN commentators Dan Shulman and John Kruk began making fun of him. The clip ended up on YouTube, naturally, and thus on various sports websites, followed by the various idiotic, cruel, gratuitously mean-spirited insults, usually composed by brave anonymous commenters. …Let me say for the record that picking fans out of the crowd at sporting events and making fun of them, whatever they are doing, is generally a rotten thing to do. I know: it’s public, you know you might be on camera, and the fine print on the ticket stub puts you on notice. Unless, however, the conduct involved is actually newsworthy or despicable (as in instances where an adult has snatched a baseball from a child), the Golden Rule applies. …Unfortunately, Rector, whose name was unknown and whose sleeping form would have been quickly forgotten, decided that his humiliation was so great that he needed to sue…for $10, 000,000. Rector filed the suit against ESPN, Shulman, Kruk, the New York Yankees and Major League Baseball…and asks for damages for defamation and intentional infliction of emotional distress, citing malicious and false statements said about him,including that Rector is “a fatty cow” that represents a “symbol of failure.” …None of the defendants actually said any of these things (“fatty cow”?). Rector’s suit is apparently making the creative legal argument that ESPN’s mild mockery seeded the vicious mockery elsewhere on the web.
Welcome back to Ethics Alarms, Andrew, old friend! Try to sta awake, now! Has the Streisand Effect kicked in yet? We’re doing what we can to help!
Now let’s meet someone completely new to Ethics Alarms, Contestant #2,
I’m sure you all saw “Frozen,” that cool ( Har!) Disney animated film about two princesses and sisters whose relationship is shattered when one of them isolates herself in an ice castle she magically created. That’s exactly what happened to Isabella! Well, not exactly, but she claims that the movie was based on her life because Disney plagiarized 18 specific instances from her autobiographies “Living My Truth” and “Yearnings of the Heart.” The $250 million lawsuit, which Tanikumi filed in U.S. District Court, also demands that Disney immediately stop promoting and marketing the film. It is true that the memoirs and “Frozen” are set near snow-covered mountains, and involve the relationship between a pair of sisters (but then, so does “What Ever Happened to baby Jane?”). In both, one sister does cause the other to be injured, and hides away. Also, one of the sisters in Tanikumi’s book has suitors named Hans and Cristoff, while in “Frozen,” Anna is romantically involved with Prince Hans and ice harvester Kristoff. (Bert and Ernie in Sesame Street are named after the cabbie and the cop in “It’s A Wonderful Life.”) However, Tanikumi’s self-published memoirs, which had sold about 6 copies before tha laws suit (apparently all to Disney writers) contain no instances of magic, talking snowmen, trolls, people freezing solid, spell-breaking kisses, and most the other key components of the Disney film, which was based on the Hans Christian Anderson story “The Snow Queen.”
Welcome, Isabella! I bet you are hoping for the Streisand Effect, to sell some of those dang books! You never know, though; ol’ Walt’s gang may just write you a check to put this lawsuit on ice!
Alright, then: now we’re going from “Frozen” to our final contestant, and he’s hot—but not TOO hot, as you will soon understand why. Meet our third competitor,
Shayne was once a captain in Houston’s fire department, but he began to avoid to entering buildings that were on fire. After this happened for the second time, he was moved from the first suppression fire fighting team to the department’s training academy, where he could teach student firemen how to fight fires with actually having to do it. (You know the old saying about teachers.) Mr. Proler fought that ruling, however, and got himself moved back to fire suppression. Then he sued, alleging that his fear of fire was protected by the The Americans With Disabilities Act (ADA), fighting the good fight for future surgeons who can’t stand the sight of blood, dog groomers deathly afraid of pooches, Wallendas with acrophobia, and one-legged Tarzans. An appellate court even awarded him more than $360,000 in damages—oh-oh! Winning a lawsuit could be a real handicap in this game, Shayne!–but Houston v. Proler was overturned by the Texas Supreme Court, which said, in its majority opinion (I’m paraphasing) “You have to be frickin’ kidding me!
All right, audience! You’ve met Andrew, Isabella and Shayne, and have heard about their lawsuits. Now it’s all up to you! It’s time for you to…
Pick The Most Unethical Lawsuit!
I’ll step out of character here to make a few observations. All three of these cases were flagged (among others) by the U.S. Chamber of Commerce’s Institute of Legal Reform to illustrate the need for litigation caps and reforms. I used to work with the Chamber on this very issue, but I don’t agree with its position; the cure they want would be worse than the disease. However, COCUSA is correct that there are a lot of terrible law suits out there, and that the cost to the economy—the Chamber says 300 billion a year—is crippling.
Andrew Rector’s case is the closest of the three to a frivolous case, a case so ridiculous that it amounts to a legal ethics violation for a lawyer to bring it to court. I explained why in the original post. It is also the stupidest of the three suits, because he is claiming public humiliation, and his law suit is bringing him more ridicule and abuse….all deserved.
Isabella Tanikumi’s case is the most sinister, because it reeks of someone trying to hold up a big corporation for a settlement in a nuisance suit that can’t possibly be won. The court cases in this category are not entirely consistent, but her odds are ridiculously long. She could win, but an ethical lawyer would try to dissuade her from trying, because the end result is likely to be lawyer fees and little else. Chuck Wepner, the “Bayonne Bleeder” who was a pug boxer pulled from obscurity to fight Muhammad Ali for the Heavyweight Championship, inspired the nation when he became the first challenger to knock “The Greatest” down, and then bled his way to the end of the fight, going the distance with the champ. Does that story remind you of a famous movie? Well, Wepner sued Sylvester Stallone for “plagiarizing his life,” and lost—and “Rocky” didn’t have a talking snowman.
Shayn Proler has some gall, I’ll say that for him. Unfortunately, ADA lawsuits are often ridiculous, and often win anyway. In the post where I found these cases, the Chamber writes that “The Americans With Disabilities Act (ADA) is a noble piece of legislation intended to prevent discrimination against those with disabilities.” This made me laugh out loud. This overly broad law, part of Jimmy Carter’s dubious legacy, does as much harm as good, and when it was proposed, the Chamber fought against it with all guns blazing. The Proler case is a good example of why. It’s absurd to argue that a fire department should have to accommodate a firefighter who develops a fear of fire, but the law makes that result possible. It’s not an unethical lawsuit. It’s just a really, really, really stupid and annoying one. An ethical fireman wouldn’t bring it. But he might win.
Pointer: Prof. Bainbridge