When is Food Unfit For Its "Ordinary Purpose?"

The UCC says that every sale by a merchant includes the implied warranty of merchantability. "Merchantability," among other requirements, means that the goods are fit for the ordinary purpose for which such goods are intended. When the goods are food, that means that the warranty requires that the food be fit for human consumption. Typically, when the food contains foreign objects, like broken glass, or human fingers, the case is pretty clear that the warranty is breached.  However, what should be the test applied to determine if the warranty is breached when the food contains a natural, yet inedible object; i.e. beef bone in a hamburger, or a cherry pit in cherry nut ice cream. The emerging legal test seems to no longer turn on a foreign/natural object tests.  Instead the test is, "What is the reasonable expectation of the consumer?"

Needless to say, this consumer did not expect what she found in her green beans:

Justice Denied - NY Times series

The New York Times recently ran a three-part series of articles exposing serious and inordinate delays in the processing of criminal cases in the Bronx borough of New York City. Typical delays of up to five years have seen prosecutors' conviction rates plummet as witnesses disappear and evidence goes stale. Below are links to the three articles. Click on the image to go to the article.

Faltering Courts, Mired in Delay:


Courts in Slow Motion, Aided by Defense:


For Three Years after Killing, Evidence Fades as a Suspect Sits in Jail:

Imagining a Modern Bill of Rights

Here's an interesting exercise: If your students were to re-write the Bill of Rights from scratch, what would it include?  If we drafted a new constitution every 20 years, as Jefferson may have suggested, what would be included in the latest draft among the concept of fundamental liberties?

Payment in Meatballs

Thanks to Regina Robson at St. Joseph's University in Philadelphia for suggesting this movie clip.  Whilewere chatting at this past weekend's meeting of the North East Academy of Legal Studies in Business (NEALSB), Regina suggested a scene from the movie The Wedding Singer, to illustrates the principal of consideration. Robbie is helping Rosie get ready to sing at her 50th anniversary party by playing the piano for her rehearsals. Rosie pays him . . . in meatballs.

Click on the picture below to see the clip.

Do Hospitals Profit From Negligence?

According to a study published in the Journal of the American Medical Association, some hospitals make money due to surgical errors resulting in complications. Does this mean that hospitals may have an incentive to delay or refrain from implementing better safety standard controls?  I guess one would have to read the report.

According to the report's conclusions:
In this hospital system, the occurrence of postsurgical complications was associated with higher per-encounter hospital contribution margin for patients covered by Medicare and private insurance but lower contribution margin for patients covered by Medicaid and self-payment. Depending on payer mix, some hospitals have the potential for adverse near-term financial consequences for decreasing postsurgical complications.

Criminal Complaint Against Boston Bombing Suspect

With the Boston Marathon bombings dominating the national news, its a good idea to keep an eye out for teaching resources.  The article linked here from Yahoo news includes access to the full criminal complaint filed by the FBI against Dzhokhar Tsarnaev. You don't often see documents in high profile criminal cases released for easy public access during the proceedings.

Boston Bombing Suspect Not Given Miranda Warnings

Students have most certainly been following the pursuit and capture of the Boston Marathon Bombers.  The media has reported that the lone suspect in custody will not be given the normally ubiquitous "Miranda Warnings."  Seizing the teachable moment, this may be a good opportunity to discuss the Miranda Warnings.

The warning is required to be given to persons "in custody" with relation to a criminal matter prior to that suspect's interrogation.  But,as described in the video below, the government here is claiming an exception. Students are sometimes confused about the effects of failing to give the warnings.  Students sometimes think that it is a technical defect that requires release of the defendant.  But the warning of a right to remain silent, only affect the evidentiary use of statements made by the defendant while in custody without having been properly warned of the right to remain silent and that were coerced form him or her.  If sufficient evidence independent of the defendant's statements and not derived from them exist, then prosecution to conviction may proceed.

Law Music Video: Contract on Love

This weeks edition of Law Music Videos is Contract on Love by Stevie Wonder - just a bit of fun with legal imagery.



acappella:



sappy disco era version:



I had no idea there were this many versions of this song:



female version:

The Latest College Sport is Competitive Litigating

Just when you thought the latest college sport was conference jumping, we can now see that it's actually a different but closely aligned activity, competitive litigating.

Where does one begin to explain the saga of the realignment of conference affiliations of NCAA athletics programs over the last several years? In a frenzied grab for athletic riches, college presidents have set out to destroy traditional athletic rivalries all over the country. While professing to care about the well-being of student athletes, presidents and athletic directors have created conferences that ignore geographical limits ion favor of big football payouts, putting student athletes academic performance at risk from increased travel and missed class time. And that is where our story begins.

In December 2011, Boise State University agreed to join the Big East Conference with intercollegiate play to begin in 2013. The principal motivation behind this move appeared to be as a way to get its football team into a conference with a BCS bowl bid - which meant a more lucrative payout. Over the course of the next year, as teams continued to announce exits from and invitations to the Big East Conference, BSU changed its mind.  In December 2012, BSU announced it was returning to the Mountain West Conference. According to the Big East Conference, BSU owes an exit fee of $5M. BSU says that the Big East Conference doesn't even exist anymore, having been renamed the American Athletic Conference (the name "Big East" had been assigned to a cadre of 7 non-BCS members who formed a separate league) and no longer has an automatic BCS bowl bid.

The AAC (nee Big East) threatened to sue.  Apparently BSU has beaten them to the punch. Let the games begin. May the biggest treasury and the most aggressive tactics win.

Warning! Smoking May be Hazardous to Your Career

According to the Wall Street Journal, some employers are refusing to hire smokers. Concerns for employee health costs, absenteeism form illness and effects of secondary smoke on other employees and customers would seem to be the obvious motivations behind these policies.

Yet, some are claiming that such policies discriminate against the poor and less educated.  Others claim the practice is an unethical attempt by employers to shift the high cost of smoker's health care on to others.

Either way, the law does not prevent such policies. And, ultimately,we are likely to see a healthier society as a result.

Poor Little Rich Kids

Bloomberg Reports: 

The U.S. government paid almost $80 million in unemployment benefits during the worst of the economic downturn to households that made more than $1 million, including a record $29.9 million in 2010, tax records show.

Ethical?  

"Equity Will Not Suffer a Wrong to be Without a Remedy"

John Marshall, the first Chief Justice of the US Supreme Court based the decision of Marbury v. Madison - the foundation for the power of judicial review - on the premise that a just society must provide a remedy for every legal wrong. That makes the plight of Eric Wilson that much more tragic. Wilson was one of four sailors termed the Norfolk 4 who were suspects in a 1997 rape and murder.  The four confessed after coercive questioning by the investigating detective who, as reported by the NY Times, has since been convicted of extortion and making false statements to the FBI in an unrelated case.  Despite the fact that their confessions were inconsistent and that the only DNA evidence found at the scene matched none of the accused, three of the sailors were convicted of rape and murder and Wilson was convicted of rape. The three convicted of murder were sentenced to life in prison.  Wilson, sentenced to seven years, served his time and was released.

The DNA eventually led to a confession by the man who matched the evidence.  The 4 sailors were never involved.  In 2009, the governor conditionally pardoned the 3 sailors still serving jail time.  But Wilson,who was already out of jail, was not pardoned. Due to his conviction, he must remain registered as a sex offender. According to the Times:

But it takes time to tick off all the ways in which the effects of his conviction will linger for the rest of his life. There is the stigma, of course. He must report to the police in person every year, keep them posted about changes in his life and check in with local authorities if he travels.

Then there are the blows that really sting. He is not eligible for jobs on many government sites. He wanted to go to Niagara Falls for his honeymoon but could not get a passport to cross to the Canadian side. He cannot adopt his young stepson.

Not just that. “I’m not allowed to go to school functions for my son,” he said.

Seeking exoneration, Wilson filed a habeas corpus petition.  But because he is neither incarcerated nor on probation or parole, his petition was denied. The Fourth Circuit Court of Appeals confirmed noting:

The sex offender registration requirements and related consequences do not impose sufficiently substantial restraints on Wilson’s liberty so as to justify a finding that he is in the custody of state officials.

The Times reports: 

In dissent, Judge James A. Wynn Jr., wrote that he was “deeply troubled that our legal system would be construed to prevent a person with compelling evidence of his actual innocence and wrongful conviction from accessing a forum in which to clear his name.”

“This court has the authority — indeed, the moral imperative — to grant Wilson the hearing that he seeks,” Judge Wynn wrote.

And so Wilson goes on, wronged by a system purporting to serve justice, but unable to find it with both hands.

See similar post: "Actual Innocence" is Not Grounds For a New Trial. 

Click the image below to view a part of the PBS documentary "The Confessions" that feature the Norfolk 4:

Click the image below to see the full PBS documentary:

Accounting Fun

In honor of all the tax accountants knocking themselves out this week, below is some Accounting Fun from Ernst & Young.



Accountants Rocking Out:

Hardcore Egomaniacal Lawyers

It can be a fine line between being confident and being self-aggrandizing. Lawyers, schmoozed by a slick advertising agency, can have some trouble staying on the right side of the line.

WalMart's Highly Trained Counterfeit Bill Experts Buy Lawsuit

Here'a a real-life hypothetical for your torts lecture.

It's nearly Christmas and you have no money to buy presents for your kids.  So, you sell your car for cash and go to WalMart to get what you can. It's 2:00 AM after an exhausting day and you finally get your purchases to the checkout counter. When you pay for your kids' Christmas gifts with the $100 bills you just got from selling your car, the cashier tells you they are fake and tears them up. When you protest, she marks the bills with the counterfeit detecting pen and the pen fails to detect a fake. It doesn't matter.  The Manager has determined the bills are fakes.  They call the police.  You are told to wait.  In the meantime, WalMart employees engage in loud public conversations about your attempt to pay for goods with counterfeit bills. The police arrive, inspect the bills and deem them to be real. The manager argues with them.  Finally, the manager tries to give you back your ripped up bills.  The police insist that that the manager give you replacement bills. Finally, at 5:00 AM, you leave the store.

The subsequent lawsuit is based in Intentional Infliction of Emotional Distress and False Imprisonment.  Read the complaint, here.

What result?

Example of the type of counterfeit detecting device that WalMart uses but apparently doesn't trust:

What is Adverse Possession?

This story comes from Pennsylvania:

Guest Blogger, Henry Lowenstein: Elvis Dumervil and the Price of Six Minutes

ELVIS DUMERVIL AND THE PRICE OF SIX MINUTES

by

Henry Lowenstein, PhD

Professor of Management and Law

Coastal Carolina University

March 30, 2013

Professors often hear the lament from students about being late to class, late with assignments. They ask why this should be such a big deal?  What difference does it make if I am a few minutes or a day late?  They quickly learn the importance of time in the legal environment of business and business law sections on contracts as well as it coming into play on the topic of agency.

In business, as is often the case, “time is of the essence.”  In bidding on public contracts deadlines are explicit and unyielding.  In the private sector with Just-In-Time production methods and financial markets that operate by the second 24/7, a late submission often costs millions of dollars, potential legal liability and the loss of careers.

The critical importance of timeliness is well demonstrated by the recent plight of NFL football’s Elvis Dumervil, formerly of the Denver Broncos, a tale that has well resonated with my students………………..

source of image: http://en.wikipedia.org/wiki/Elvis_Dumervil 

Elvis Dumervil is an All-Star defensive end in the NFL’s Denver Broncos football team. An All American from University of Louisville, he was drafted in the 4^th round of the NFL 2010 draft.

THE CONTRACT

In July 2010, Dumervil signed a 6-Year player employment contract for $61.5 million which included a retention guarantee of $43.168 million through 2015. The contract specified that if Dumervil was on the roster at 2:00pm Central Time on March 15, 2013, he would receive a guaranteed salary of $12 million for the 2013 NFL season.

Subsequently, the Denver Broncos encountered problems with the $123 million salary cap established for each team by the National Football League (NFL).   To meet its salary cap requirements, the Denver Broncos engaged in renegotiations with players to restructure contracts to meet the salary cap   

Dumervil and his agent were offered an $8 million guaranteed for the 2013 season, which Dumervil intended to accept.  Dumervil’ s offer, however, required signed paperwork agreeing to the terms and confirming his position on the roster by 2:00 p.m. Central Time on Friday, March 15, 2013   This duty was left to his agent, Marty Magid.

On Friday, March 15, 2013, Magid did not fax the completed paperwork to the Broncos until 2:06 p.m. Central time…..6 MINUTES LATE!

OUTCOME:

1.    In accordance with the contract, missing the 2:00pm deadline automatically triggered a clause whereby the Denver Broncos released Dumervil as a free agent, thus, no contract with the Broncos.  This immediately saved the team $4.869 million. (known as “Dead Money” under the NFL salary cap) which the team can now reallocate against the salary cap. 

2.    Dumervil may not recover the lost $4.869 million, even if the team agrees to take him back and re-sign him for another year.

3.    Dumervil is out of work and has to seek another team as a free agent if one will hire him, or if the Broncos will re-sign him, both options likely to result in lower contract terms.

4.    Dumervil has fired his agent.  (He may have a negligence cause of action against the agent, yet to be determined.)

5.  On March 26, 2013, the Baltimore Ravens announced signing now free agent Dumervil to a new 5 year, contract for $5 million per year.  In USA Today Mr. Dumervil expressed satisfaction with the new team and contract.

Nevertheless, the SIX MINUTES cost him at least $3 million in salary a year ($15 million over 5 years) he would had received had his acceptance been received on time by the Denver Broncos.  Or in other words that lateness equaled  $2.5 million in salary per late minute!

LESSON:  As students in contracts:

1.    A written offer will be read to its plain meaning and its specific terms.

2.    Terms of acceptance:  In this case, the terms of the offer were specific that it must be RECEIVED by 2:00 PM CT.  There is no exception to the plain reading of the contract terms.

3.   Because the acceptance terms were specific, the general rule that an offer is accepted once dispatched (such as the “Mail Box Rule”) does not apply in this case.

And, as to be learned in Agency: 

The principal (in this case Dumervil) is liable for the acts entered into (or failure to enter into) by the Agent when he gives the agent actual (express) authority to act on his behalf.

MOST IMPORTANTLY….REMEMBER THE COST OF 6 MINUTES.   In contracts, time is of the essence.

 _______________________________________________

(Sources:  Mike Kilis, Broncos Release Elvis Dumervil because new contract too late, Denver Post, March 16, 2013 (updated)

at www.denverpost.com.

Jim Corbett, With A Wink and a nod, Elvis Dumervil was a Raven, USA Today, March 26 2013 at www.usatoday.com

Canadian Law School Deans Rock

Kudos to McGill Law School Dean, Daniel Jutras, for his performance of a parody of Adele's "Skyfall" at the Law School Skit Night. Music speaks to students. Use it in class to teach your lessons.

Bad Lawyer Ads # ... (I lost track)

This ad appears to be generic ( the "Lawyer & Lawyer" firm name at the end I guess means "Put you firm name here.") But in the YouTube description there is a link that brings you to an actual law firm.

There is nothing that inspires confidence and signifies relief for facing foreclosure more than the image of a break dancing guinea pig.

Being Responsible is a Waste of Money

According to "Mini Mo" you could be paying for way more auto insurance than you need.  Why should you pay for anything beyond the minimum required by law? That insurance doesn't do anything for you - it's just some nanny-state government over-regulation. Isn't it?

When I hear these ads promoting conduct that meets the absolute minimum required by law, I think about the phrase "law abiding gun owners." Does that mean gun owners who meet the absolute minimum requirements of law while constantly arguing to further reduce the minimum requirements? Like ads promoting people driving around with minimum insurance, that doesn't make me feel very safe.

Justice Delayed is Justice Gone Wild!

I have previously written about a common misconception held by students that civil litigation is relatively painless and quick. Of course, popular culture helps foster this misconception with TV shows and movies that cover the time period from the precipitating incident to the resolution in the court system in a neat , tidy package of time and effortless proceedings. The worst offender may be the movie North Country. The movie purports to be "inspired by" Lois Jensons's landmark sexual harassment suit against Eveleth Mines in Minnesota. In the real case, Jensons's legal odyssey from first harassment to final settlement traverses a tortuous path over 24 years, prompting the Court of Appeals to make this extraordinary statement:

If our goal is to persuade the American people to utilize our courts as little as possible, we have furthered that objective in this case. If justice be our quest, citizens must receive better treatment. The judiciary must somehow afford more efficacious monitoring of delayed cases. We must achieve this goal through action, not just by words.

In the movie, the whole scenario from incident to conclusion occurs over less than a year (none of her children age at all during the movie). And her greatest challenge is to answer some mildly uncomfortable questions at trial.

That is why I think it is important to make students aware of cases such as this one recently reported.

Lindsey Bullard was a 14-year-old Powder Springs, (Ga) middle-schooler when she was stopped by a man holding a video camera as she walked down the strip in Panama City, Fla., on spring break in 2000. When the man asked her to step into a nearby parking lot and expose her breasts, Bullard complied and was given a beaded necklace in return.

The cameraman later sold the video for “Girls Gone Wild, College Girls Exposed” and a photo of Bullard exposing her breasts was put on the cover and used in TV commercials aired nationwide.

Ms. Bullard filed suit in Federal Court in Atlanta in 2004 for commercial appropriation.  Unsure whether the suit could be properly maintained in Georgia, the Federal court certified the question to the state Supreme Court.  The Georgia court upheld her right to sue in a decision issued March 28, 2013.  Ms. Bullard is now 26 years old. And now, her case can proceed ostensibly through discovery and then on to trial - at some unknown additional number of years from now.

Ms. Bullard in "Girls Gone Wild Ad": Source: http://www.wsbtv.com/news/news/local/georgia-woman-takes-case-against-girls-gone-wild-s/nSSXx/ 

The Joke is On . . . ?

There are a multitude of lessons growing out of this story.  A female software developer attending a  conference was offended by sexist jokes told by the men sitting behind her.  She took a cell phone photo of the men, although she could not identify exactly who was speaking and who was listening.  Then she posted the photo with the allegation of the sexist joke-making on social media.

She was fired by her employer.
[The employer] said [the employee] put the company's business in danger, divided the developer community and could no longer be effective at the company.

One of the men in the picture was also fired by his employer.
"PlayHaven had an employee who was identified as making inappropriate comments at PyCon, and as a company that is dedicated to gender equality and values honourable behavior, we conducted a thorough investigation. The result of this investigation led to the unfortunate outcome of having to let this employee go," PlayHaven CEO Andy Yang said in a blog posting.

Take your pick among the lessons to develop from this scenario.  Were the employee dismissals legal under employment-at-will principles?. Was the posting of the photo and "shaming" of the men defamatory?  What if one of the men pictured was merely a bystander? Did her employer do the right thing (ethically and/or strategically) in dismissing her?  Did PlayHaven act ethically/properly in dismissing their employee?  Does the ease of access to a worldwide audience impose different legal/ethical considerations on those publicly reporting on the acts of other? Was the public reporting an invasion of privacy (was there a privacy interest)? Etc...

Here's a video about the incident that is WAY more hip than any of my posts could ever hope to be: