Quick Settlement; When and Why?

One of the themes we flesh out in our Legal Environment class is the characteristic of litigation as a "War of Attrition."  The quote comes from one of the lessons in The Moral Compass of the American Lawyer: Truth, Justice, Power, and Greed by Richard Zitrin and Carol Langford. I also like the image as it helps to bust the myth of the quick settlement.  The myth of the quick settlement is the second half of the myth of the frivolous lawsuit. The legend goes something like this:  In America, people regularly file frivolous lawsuits and businesses quickly pay off the plaintiffs with a lucrative settlement to avoid bad publicity.  The legend/myth/folklore makes no sense on so many levels. But here, I just focus on the quick settlement part.

Why would any business or insurance company pay a plaintiff who files a frivolous lawsuit and earn a reputation as a source of easy money? Why would businesses fear embarrassment from frivolous lawsuits that, by definition, have no merit and probably make the plaintiffs look stupid? Why would businesses worry about the costs of defending a lawsuit that is likely to be dismissed immediately upon filing of a motion? Doesn't it make more sense for a business/insurance company to vigorously defend a frivolous case?

So, when would we expect a quick settlement of a lawsuit?  How about when there is an absolutely bona fide case that has the capacity to embarrass a company to such a degree as to affect revenue?  Up until discovering the article below, the example that I used to use was the sexual harassment lawsuit filed against Fox News and Bill O'Reilly by one of O'Reilly's young female producers.

The Smoking Gun website has posted the complaint which is too sexually explicit to show in class, but which seems to include allegations just a bit too specific and unusual to be made up. O'Reilly and Fox initially denounced the suit as an extortion attempt and filed their own complaint against the plaintiff.  Yet, surprisingly, the case was settled in two weeks. Why? Apparently, the plaintiff had most of the alleged harassing comments recorded on her phone answering machine. So, far from being a frivolous lawsuit, it was a bona fide lawsuit with the unquestioned ability to cause significant damage to Fox and their standard-bearer, O'Reilly.

However, now there is new example that may be more appropriate for full disclosure in class.  Following the unfortunate death of Philip Seymour Hoffman, The National Enquirer published an article purportedly quoting David Bar Katz, Mr. Hoffman’s friend, as saying that he and Hoffman were lovers who free based cocaine the night before Hoffman’s death.  The problem, of course, was that the factual statements were completely false and the Enquirer apparently made no effort to determine if the person whom they quoted was actually David Bar Katz.

The ensuing lawsuit was settled within a few weeks with the creation of a foundation that will award an annual playwriting prize. Was the lawsuit settled so quickly because it was frivolous or because it was absolutely bona fide?

Student Engagement

Today, I am giving a presentation at the Business Educators conference in San Diego on using Music and Humor to foster student engagement.  Regular readers will know that I have long advocating for bringing music into the classroom in many forms and I have made presentations on this subject before at regional and national conferences.

Coincidentally, just this last week, CBS ran a report on a "super teacher" in South Korea.  Watch the video below to see some of the teacher's methods.  (The rest of the report is interesting, too)

Law and Ethics

From Robert Emerson:



Visit Prof. Emerson's YouTube channel, here, for more videos.

From the Ethics Guy:



Visit the Ethics Guy YouTube channel, here.

And don't forget the Ethics Unwrapped site from Univ. of Texas, here.

Snarky Facebook Gloat Costs Papa Cash

Yesterday's post was about an arrogant snarky franchise manager taking advantage of an employee and getting whacked for a big settlement.  Today's is about the arrogant snarky daughter of a successful plaintiff who likely cost her dad his compensation in an age discrimination claim by posting about it on facebook - proving her dad had violated the confidentiality agreement.

According to the report in the Miami Herald, a 69 year old headmaster at a private preparatory school was denied contract renewal and sued claiming age discrimination.  The case eventually settled with the plaintiff receiving approximately $90,000 and with a confidentiality clause.  However, the plaintiff's college aged daughter posted the following on her facebook page:

“Mama and Papa Snay won the case against [the prep school],” Dana Snay posted days later to her 1,200 Facebook friends. “[The school] is now officially paying for my vacation to Europe this summer. SUCK IT.”

When her former prep-mates/facebook friends saw it, word got back to the school. The Florida Appellate Court has set aside the settlement.

According to Yahoo Shine, this is an image from the daughter's facebook page:

Read more here: http://www.miamiherald.com/2014/02/26/3961605/daughters-facebook-boast-costs.html#storylink=cpyfacebook page:

Contest Winner Gets Toy Yoda Instead of Toyota

Here's one from the archives.  Back in 2002 a Hooters franchise in Panama City Beach, Florida ran a beer selling promotion contest for their employees.  The prize? From USA Today:

Jodee Berry, 27, won a beer sales contest last May at the Panama City Beach Hooters. She believed she had won a new Toyota and happily was escorted to the restaurant's parking lot in a blindfold.

But when the blindfold was removed, she found she had won a new toy Yoda — the little green character from the Star Wars movies.

Those cutups at Hooters are always good for a few laughs!  Hooter's defense?  It was an April fool's joke!  Of course, a contract offer must be evaluated from the standpoint of a reasonable person based on manifestations of intent, not from the subjective, unexpressed intent of the offeror.

What was the settlement worth?

David Noll, her attorney, said Wednesday that he could not disclose the settlement's details, although he said Berry can now go to a local car dealership and "pick out whatever type of Toyota she wants."

Good for her.

Marriage Defenders' Irony Song

From Roy Zimmerman and in light of yesterday's post . . .

Question of Law or Fact?

Here is an interesting juxtaposition of articles.  In a trial in Michigan challenging the constitutionality of Michigan's state constitutional amendment barring same sex marriage, expert testimony has been elicited that same sex couples can be competent parents:

David Brodzinsky, an expert in adoption and foster care and a former Rutgers University professor, said there are no "discernible differences" in children who are raised by same-sex couples and youth raised by heterosexuals.

"It's not the gender of the parents that's the key. It's the quality of the parenting," said Brodzinsky, based in Oakland,Calif.

At about the same time, in a brief filed in the 10th Circuit Court of Appeals in a case where a US District Court judge struck down Oklahoma's same sex marriage ban, a legal argument was advanced claiming that same sex marriage is bad for children. 

"Marriage encourages mothers and fathers to remain together and care for the children born of their union," the group's 93-page filing said. Severing the link, it said, "would powerfully convey that marriage exists to advance adult desires rather than serving children's needs."

Citing a court opinion from 1888 — 19 years beforeOklahoma's statehood — Alliance said marriage "is the foundation of thefamily and of society, without which there would be neither civilization norprogress," and cited a 1978 ruling that said traditional marriage was"fundamental to the very existence and survival of the (human) race."

So, is the effect of same sex marriage on children a question of fact or of law? 

Michigan case:

Oklahoma case: