frivolous law suits

Now THIS is an Unethical Lawsuit (But Not Frivolous!)

/ Jack Marshall / 6 Comments

The Hershey company (in Hershey, Pa.) has been sued by Cynthia Kelly in the United States District Court for the Middle District of Florida on behalf of herself and everyone who purchased Reese’s Peanut Butter Cup Halloween candies advertised as pumpkins and white ghosts. The class action lawsuit seeks $5 million in damages and a court order requiring the company to change its advertising next year so purchasers won’t feel that they have been victimized by a bait-and-switch. It alleges that Hershey falsely advertised the seasonal candy as having “explicit carved” out designs, and there were no such carvings in the actual products.

Kelly’s complaint says that she purchased a bag of Reese’s Peanut Butter pumpkins for $4.49 at an Aldi’s last October 2023 because she was impressed by the artistic carvings depicted in the advertisements and the packaging, and would not have bought the candy if she knew that it was uncarved. And she wasn’t alone in this painful disappointment, as shown by comments on Hershey YouTube ads written by heart-broken candy-lovers:

Continue reading →

The Democrat Porn Star Virginia Legislature Candidate Renders The “Ethics Dunce” Designation Obsolete: “The Naked Porn-Performing Political Candidate Principle” Perhaps?

/ Jack Marshall / 4 Comments

I don’t know what you call this, but whatever it is, “ethics dunce” just isn’t enough.

That’s Susanna Gibson above with her husband (I don’t know where those annoying stars came from) performing on a porn website while she was already running as a candidate for the Virginia House of Delegates. The 40-year-old Democrat, along with her lawyer husband, have been appearing in flagrante delicto on an X-rated website, and offering to perform sundry sex acts in front of the camera, including those involving violence and bodily excretions, in exchange for money—not that there’s anything wrong with that.

But after the conservative Washington Free Beacon was tipped off to this rare proclivity on the part of a political candidate and wrote about it, Gibson announced that she was shocked—shocked!—that anyone would feel that a candidate for the legislature soliciting money for sex acts was something the public had a right to know about. She found a lawyer willing to try to use Maryland’s “revenge porn” law to punish such people. Daniel P. Watkins of the Meier Watkins Phillips Pusch firm, argues that “it’s illegal and it’s disgusting to disseminate this kind of material”and says that he is “working closely with the F.B.I. and local prosecutors to bring the wrongdoers to justice.”

Sure, Danny, good luck with that! It’s a ridiculous idea for a law suit, but ya never know, so it slips under the wire as “ethical,” though any lawyer bringing such a suit should have to wear a bag on his head.

Ugh. Where to begin?

Continue reading →

Ethics Heroes: The Appeals Court For The Commonwealth Of Massachusetts

/ Jack Marshall / 10 Comments

I am not honoring the appeals court that just upheld the lower court judgment in my favor in a two-year old (and probably not over yet) frivolous lawsuit against my for defamation by an angry ex-Ethics Alarms commenter. The court’s decision rejecting the plaintiff’s appeal was dictated by precedent and black letter law, as was the decision in the original case. It took no special courage or integrity to hold so, and in fact any other result would have evinced rank incompetence.

No, I am awarding the court Ethics Hero status after receiving today its  published opinion in case n. 18-p-1605, where the judgement of the lower court judge was affirmed. It is officially a summary decision, and thus not binding precedent, since the usual details a full appellate opinion would contain are missing. However, in the eight page opinion affirming the lower court dismissal of the complaint, the judges are impressively restrained, respectful, and thorough. They manage this despite the fact that the lawsuit was doomed from the beginning, without merit or law on its side. The persistence of the plaintiff has wasted taxpayer money (and mine) and occupied time the judges needed to address more serious and legitimate matters.

Nonetheless, the fact that a pro se litigant is able to receive more than perfunctory handling of even a complaint this misbegotten and trivial speaks well for our system, and very well for the judges. Despite all the attacks claiming that our system only caring about ‘justice for the rich,” a pro se litigant seeking justice (as he saw it) and using confused, garbled and outrageously long documents to that end,  cannot deny that his case and arguments were ignored. He lacked the financial resources to hire a lawyer to pursue them (though I wonder if any lawyer would have accepted the representation) and represented himself—rather badly, but still, he took his best shot. Continue reading →

Afternoon Ethics Warm-up, 6/6/18: Special “Don’t Sue Me, These Are Just Opinions” Edition

/ Jack Marshall / 123 Comments

Good afternoon.

1. For the record...Ethics Alarms passed 9 million views this week. That’s not a lot in a bit less than 9 years by the mega-blog standards, but their aren’t many ethics blogs that do better, and maybe none. Admittedly, this is a little like being the most popular fan site for Clint Howard…

2. Now this IS a frivolous lawsuit...tomorrow I finally go to Boston to argue my motion to dismiss the vexatious defamation lawsuit against me by an Ethics Alarms commenter whose feelings I hurt in the process of throwing him off the site. If a lawyer brought this suit, I would have a rare claim against him for breaching Rule 3.1, prohibiting frivolous suits. No lawyer, however, would bring such a suit. There has to be a good faith belief that you can prevail, or change the law, but there is literally no support in the law of defamation for calling insults (yup, I insulted him), opinions, and conclusions based on fully-revealed information and data libel. Non-lawyers, however, don’t have to obey legal ethics rules, and, as in this case, don’t know what they are anywhere. Maybe after I’m through with all of this, I’ll post the whole complaint. Among its claims is that I graduated from Hampshire College, and that the Massachusetts court has jurisdiction because I’m a fan of the Boston Red Sox. I also, it claims, defamed the plaintiff by erroneously referring to him as an academic. To deal with this spiteful action, I have already expended several thousand dollars. Yes, it goes with the territory. I know.

3. Imagine, impugning the professionalism and impunity of the FBI! A drunk and irresponsible FBI agent  shot a man at a Denver bar over the weekend when his gun flew out of his pocket, hit the floor and discharged as he was executing an acrobatic maneuver on the dance floor. This, you will not be surprised to learn, is not compliant with FBI policy. Agents are considered on duty at all times. They can carry their weapon at all times too, but cannot endanger the public while doing so. They are also not permitted to act like clowns in public, or be drunk as proverbial skunks. The agent is Chase Bishop, 29, who works out of Washington D.C. No word yet if he is part of the Mueller investigation.

Conservative wag Glenn Reynold would headline this story, “Top. Men.” Maybe he already has. And if you don’t get the reference, your cultural literacy needs a tune-up. Continue reading →

End Of May Morning Ethics Warm-Up: The Games People Play

/ Jack Marshall / 39 Comments

Good Morning!

1. Too soon? On June 6,  “Active Shooter” will be released. The video game allows players to take part in a simulated school shooting scenario, assuming the role of either the shooter, a SWAT team member, or a student trying to survive. the simulation’s developer is Rival Games, and it be sold on the Steam online store. Naturally, the game is being condemned, and there are even calls to ban it.

I see nothing unethical about the game at all. Depending on how well it is constructed, I can even see some benefits of it. A simulation on-line makes more sense that silly active shooter drills in schools, which only increase student anxiety and create the illusion that such an event is more likely than it is.

Promotion for Active Shooter has a disclaimer stating: “Please do not take any of this seriously. This is only meant to be the simulation and nothing else. If you feel like hurting someone or people around you, please seek help from local psychiatrists or dial 911 (or applicable). Thank you.” This is a CYA message, of course. The company is considering removing the option of playing the shooter; I think this would be wise.

Yes, of course the game is offensive and upsetting to many, especially those whose family members and friends were involved in these tragedies. They definitely shouldn’t buy the game. But let’s take a poll:

2. Pantsgate. In what must be the longest running stupid legal ethics story ever, the District of Columbia Board on Professional Responsibility is recommending a 90-day suspension for  former judge Roy Pearson Jr., who sued his dry cleaners for $67 million for allegedly losing his pants in 2005. I wrote about this crazy story on the old Ethics Scoreboard, which is currently off line, but will be back soon, I swear.

Pearson first sought $1,150 as compensation for his lost Hickey-Freeman pants, but when the dry cleaners refused to pay, he escalated his litigation, finally reaching what the board called “the absurd” $67 million  claim. The board, like an earlier hearing committee, found that Pearson  violated ethics rules barring frivolous claims (Rule 3.1) and serious interference with the administration of justice (Rule 8.4). The board disagreed with the hearing committee’s lenient recommendation of a stayed suspension. Continue reading →

Morning Ethics Warm-Up, 4/21/2018, Part 2: Wait, It’s Afternoon Already!

/ Jack Marshall / 42 Comments

Good afternoon!

Here are ethics items that have nothing to do with the Marjory Stoneman Douglas High School anti-Second Amendment  demogogues.

2. Unethical Lawsuit of the Year. Incredibly, the Democratic National Committee yesterday announced that it is suing the Trump campaign, the Russian government, and Wikileaks, accusing them of conspiring to disrupt the 2016 Presidential election.  Suits require facts. There are no facts to support this lawsuit, only speculation, rumors and propaganda. The legal analysts whose opinions I respect haven’t even acknowledged the suit yet, perhaps because they suspect, or know, that it is a cynical publicity ploy and merely laying the foundation for a Democratic Party fundraising blitz. (Using the civil courts for such purposes is unethical, of course.) The betting here (and elsewhere) is that the lawsuit will be dismissed in short order. It is grandstanding, and to my eye, pretty desperate grandstanding.  Such a lawsuit would open the Democrats, their allies and the Clinton campaign to all manner of intrusive and embarrassing discovery. My first reaction to the news was that this almost as stupid as Oscar Wilde’s criminal libel suit over being called “a Sodomite.”

Wikileaks had an amusing response:

“The Democrats are suing WikiLeaks and @JulianAssange for revealing how the DNC rigged the Democratic primaries. Help us counter-sue. We’ve never lost a publishing case and discovery is going to be amazing fun.”

3.  More future news! Ann Althouse flagged for us a future news (psychic news?) classic,  Morning Joe” Scarborough’s op-ed in the Washington Post, “It’s becoming clear that Trump won’t run in 2020”.

Althouse writes,

I’m reading the headline and laughing. It’s on the most-read list at The Washington Post. It’s what people want to read, and isn’t that what fake news is all about, giving the people what they want (and getting them to want what you want them to want)? “Allies are quietly admitting”… “Republicans are sensing”… and Joe Scarborough is picking up the message. It seems to me Trump has faced vicious opposition all along, and he keeps winning in spite of/because of it.

This isn’t really fake news, though. Psychic news or future news is a different unethical beast, and in this case, it’s just an abuse of punditry.  It becomes fake news when the headline “Trump won’t run for re-election, insiders say” starts turning up. What is especially ironic about this trend is that there has never been a President whose stated intentions have been so changeable and unreliable, and yet the very same journalists who complain about this are willing to run breathless stories about what some leaker claims he said was his intent. President trump can’t be counted upon to do this week what he said he would do last week, and the Post thinks it is worth publishing what Morning Joe’s sources say President Trump  plans on doing three years from now. Continue reading →

From The “Why People Hate Lawyers” File: The Lawyer Who Bit Off More Than He Could Chew

/ Jack Marshall / 6 Comments

"Bit--off--too-much--chicken--no---plastic---knife---ARRRGH!"

“Bit–off–too–much–chicken–no—plastic—knife—ARRRGH!“

Paul Newton Jr., a lawyer in Gulfport, Mississippi, sued Popeye’s after he required emergency surgery to remove a chunk of fried chicken from his throat last November. He claims the fast-food restaurant was negligent and caused his near fatal accident because it didn’t include a plastic knife along with the “spork” in his drive-through order.

Newton says he consumed  the meal (two chicken breasts, an order of red beans and rice, a biscuit and a soft drink…YUM!) in his office, and had to “hold a chicken breast in his hands and to tear off pieces thereof with his teeth.”In the  lawsuit , the lawyer maintains Popeyes had a duty to provide the appropriate utensils so customers will be able “to cut their purchased food orders into appropriate portions.”

Newton abandoned his chicken suit–well, not his chicken suit, but his chicken lawsuit— the Huffington Post reported, after receiving “extreme comments directed to me and my family.”

Like “Learn to eat!”, maybe? Continue reading →

Fairness To Incompetent Lawyers?

/ Jack Marshall / 14 Comments

To be fair, Tamara can blame the fact that she thinks this is a good law suit on her cognitive problems..

To be fair, Tamara can blame the fact that she thinks this is a valid law suit on her cognitive problems…

Why this story didn’t make my head explode, thus rating the KABOOM! label, is a mystery. My theory is that the truly idiotic and ignorant exclamations on Facebook by my usually rational friends about guns in the wake of the Orlando terrorist attack have gradually strengthened my skull’s tolerance to internal pressure.

Once again, I have encountered a news story that required me to check and see if it was a hoax.

Tamara Wyche is a 2013 Harvard Law School graduate who is suing the New York State Board of Law Examiners. She claims she twice failed the bar exam because it refused to provide the same kind of testing accommodations that the law school did for her in her exams there, in recognition of her various cognitive problems. The fact that she flunked while being forced to take the exam under the same rules as everyone else resulted in the large Boston law firm Ropes & Gray terminating her employment. You can read her complaint here.

I confess that I didn’t read all of it: I didn’t want to press my luck with the old cranium.

The 29-year-old Wyche says she was diagnosed with depression and anxiety as a first-year law student at Harvard, and also  suffered several head injuries (?) that resulted in permanent memory problems and cognitive issues, requiring her to take several leaves of absence from her studies. She finally earned her law degree in 2013 thanks to Harvard granting her several doctor-recommended accommodations, including 50% extra time on tests, a separate testing room, and extra break time. She also was exempt from being called on in class, because of a propensity for anxiety and panic attacks.

Allow me to cut to the chase for a second, again in the interest of my dangerously bubbling brains, and perhaps yours. Continue reading →

A Slap On The Wrist For The Lawyer Who Demanded 65 Million Dollars For A Lost Pair Of Pants

/ Jack Marshall / 9 Comments

And they weren't even Elvis' pants...

And they weren’t even Elvis’ pants…

There has been a lot of beating up on judges and lawyers lately, on this blog and elsewhere, so what better time to revisit the weird case of foormer administrative law judge and current attorney Roy Pearson, Jr? He was the D.C.  judge who carried on such a vendetta against a dry cleaner because they lost a pair of his pants that it became national news…which is to say, it was discussed on The View and the women made fools of themselves. Not as big fools as the judge made of himself, though.

Pearson claimed that in 2005, the dry cleaners gave him the wrong pair of pants and refused to pay him the $1,150 he demanded as compensation. His suit—his $67 million suit!— against the dry cleaners alleged that the business violated Washington, D.C.’s consumer protection law by failing to comply with its sign promising “satisfaction guaranteed,” which Pearson claimed was unconditional. You know, even if a customer was deranged.

In his testimony in this wacko lawsuit, Pearson argued that “satisfaction guaranteed” meant the dry cleaner was legally obligated to pay a customer who demanded $1,000 for a supposedly lost sweater even if the owners knew they had delivered the correct sweater to the customer.

By that logic, the owner would also have to let the customer have sex with his teenage daughter, if that’s what it took to “satisfy” him. Continue reading →

Now THIS Is An Unethical Lawsuit!

/ Jack Marshall / 23 Comments

chuck.chuck_

A New Mexico appeals court has refused to overturn the summary judgment dismissal  of Arthur Firstenburg’s five-year-old lawsuit against his neighbor Raphaela Monribot, whom he had accused of causing him excruciating pain and discomfort by using her iPhone, a Wi-Fi connection, dimmer switches, and other electronic devices in her own home. Firstenburg says that he suffers from electromagnetic sensitivity, or EMS, an acute sensitivity to electronic radiation that doctors and and scientists almost unanimously (but not quite) believe doesn’t exist.

Because Monribot had the misfortune to live next door to this guy, she had to defend against a $1.43 million lawsuit that has racked up court costs of over $85,000, and heaven knows what in legal fees. Firstenburg is not paying for any of it because he is broke; his lawyer, Lindsay Lovejoy, had taken the case on a contingent fee basis. She decided the appeal was a lost cause: the plaintiff handled it himself.

This case will, I assume, become the new poster child for those favoring a “loser pays” system, a bad idea that would be godsend in abuses of the system like this one. Continue reading →