Bad Lawyer Ads

It's the Thanksgiving Week break at UConn - no classes this week.  That means it is time for another installment in the "Bad Lawyer Ads" series. This will be the only post this week.  Happy Thanksgiving!

Enjoy.

Law Lessong: The Holder in Due Course Blues

There's not a lot of interesting resources out there on Holder in Due Course.  Perhaps this can help.

Ethics Unwrapped: Moral Equlibrium

From the University of Texas Ethics Unwrapped series:

Unsheathing the Sword of Eminent Domain Against Banking Beasts

City officials in Richmond, CA are taking aggressive steps to address the devastating effects of the mortgage crisis.  Home values have declined precipitously since borrowers took out mortgages in the pre-2008 market and most of Richmond's homeowners are under water. The city has seen hundreds of foreclosures each year displacing families and destabilizing neighborhoods. So the city has decided to act by offering to buy these mortgages from the bank at a fair market value - somewhere around 80% of the value of the houses, but well below the loan principal.  If the banks won't sell, the city is prepared to use its eminent domain power to take the bank's mortgage interest in the house, paying "just compensation" in the same amount as the purchase offer. The banks are irate. At least one Federal lawsuit has been dismissed as unripe. But now, the mayor of Irvington, NJ is announcing that his city is formally investigation employing the Richmond plan.

If, in the name of economic development, New London can take unblighted working class homes to give the land to a developer for a glitzy hotel , then it seems like Richmond should be able to take some bank assets in order to keep people in their homes. But unlike the working class,the bankers aren't used to getting their lunch money stolen.  And they have the lawyers to fight the war of attrition.

From Democracy Now!:

SLAPPed With a Fine

Thank you to my UConn colleague, Robert Bird, for sending in this news item.

Well, it is not quite a SLAPP suit, but it employs the same principle.  You order a product online and get bad service. You write an online review expressing your opinion of the service.  Then the Seller informs you of a "fine" in the thousands of dollars because your "contract" contained a "non-disparagement" provision.  Don't pay the "fine" and the Seller reports the charge to credit agencies as if it were a debt. Watch the video for the whole story.



You can read the "non-disparagement" provision here: http://web.archive.org/web/20130817144417/http://www.kleargear.com/termsofuse.html
Thanks to Terence Lau at Univ. of Dayton, for providing the link

Here are only a few of the issues that come to mind for me:
1. You can't be fined for breaching a contract.  There can be a liquidated damages provision, but that is enforceable only if the provision is NOT a fine and IS a fair attempt at estimating damages.
2. If the Seller materially breaches the contract by not performing its obligations, then the Buyer's obligations under the contract are excused.
3. No court would enforce the contract provision as to do so would be government censorship of speech.
4. This is an attempt at SCOBUF (Strategic Censorship of Opinion by Unilateral Fine) (I just made that up.  Do you think it will stick?) It is along the same lines as SLAPP which is outlawed by legislation in many states.
5.  Perhaps the Buyers cannot get a lawyer to take their case, but where are the state regulatory agencies?  Is this not a classic "Unfair and Deceptive Acts and Practices" case?

The company seems to be attempting to name itself as both judge and jury in a defamation claim without bothering to actually file one.  See post on internet defamation.

Pop Quiz

Who is credited with making the insightful observation:

 "The law must be stable, but it must not stand still"? 

A. Roscoe Conkling, influential 19th century US Senator from NY


B. Roscoe Pound, former Dean of Harvard law School


C. Ezra Pound, American expatriate poet


D. Paula Poundstone, comedienne


The answer, of course, at least according to SearchQuotes, is Paula Poundstone. (see screen shot below)

If it's on the internet it must be correct, right?  Here is an example to share with students about double-checking sources.

The real answer, as most readers will know, and as most  internet sites state correctly, is Roscoe Pound.

Statute of Frauds Song

For the next several Fridays LSCB will be re-posting a series of Law Lessongs to be used as a classroom resource on some otherwise difficult or mundane topics.  The Statute of Frauds Song recently passed the milestone of over 20,000 hits on Youtube.  I hope that you can make use of it in your curriculum.

Internet Defamation

A yelp review of a San Francisco landlord's offerings form the basis for a defamation claim according to the California Court of Appeals. Referring to the landlord as a "sociopathic narcissist" is not actionable as a statement of opinion. But alleging:

Of the 16 mostly-long-term tenants who lived in the Building when the new owners moved in, the new owners’ noise, intrusions, and other abhorrent behaviors (likely) contributed to the death of three tenants (Pat, Mary, & John), and the departure of eight more (units 1001, 902, 802, 801, 702, 701, 602, 502) in very short order. 

is probably factual.  And since two of three allegedly deceased persons were still alive, the statements were false.

Here is an explanation, some advice and some marketing of legal services around the issue of internet defamation:

What is Title IX?

Due to recent events on our campus at UConn, this question has been asked with increasing frequency.  "Title IX" refers to Title IX o f the Education Amendments of 1972.  The act states in most relevant part:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance...

People seem to be most  familiar with the impact of Title IX on sports. As is exhibited in the video below.
There are a number of good resources available on the web, for example:

Title IX info
US Dept. of Education
US Dept. of Justice
ACLU

A Case of Contractual Capacity

A Marine who served in Afghanistan and was discharged for PTSD and TBI has sued a Harley Davidson Dealership that refused to take back the motorcycle sold to him while he was suffering form the symptoms of his condition.  Did the dealership know or have reason to know that the Marine buyer could not act reasonably under the circumstances?  ABC News reports: :

Smith, who is unemployed, entered the Harley-Davidson dealership on a whim to buy a motorcycle, according to the lawsuit filed on Oct. 30. While there, he told the employees that he had PTSD, while pacing, sweating profusely and acting jittery.

"At one point, the salesperson even gave him water so that he could take his Xanax," said Gilleon. "He took three while he was there."

According to the Marine: "I know I was sweating fast. I was talking fast. I know I was jittery, and I kept misplacing personal items like my wallet all over the dealership," said Smith.

Failing to take back the motorcycle also resulted in a claim for unfair business practices.  Seems like the dealership manager should have taken a BLAW course.

Click on the image below to see a video news report:

WalMart's Unilateral Mistake

For one day last week, WalMart was giving new meaning to "Always Low Prices." Due to a technological glitch, WalMart's website was advertising a video projector for sale for a price of $8.95 that should have been listed for $588.95. A 24" computer monitor that retails elsewhere for about $150 was likewise listed for $8.95.  A Fischer Price Power Wheels battery operated car for kids that retails for about $260 was listed for $29.97.

Luckily for WalMart, an advertisement is not an offer to sell, but merely an invitation to customers to make offers to buy.  That protects the merchant from having to have an unlimited inventory of every item. The merchant is always free to reject the customers entreaty to deal. But in the internet world, customers placed orders online for the advertised prices and their credit cards were charged for the shockingly low prices.

But, once again, WalMart is saved by the law.  WalMart relied on its "terms of use" for its website which states in part: "We reserve the right to refuse or cancel an order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified by our credit and fraud avoidance department."

Is this disclaimer unconscionable?  Does it violate relevant state consumer protection statutes about advertised prices? Is WalMart cancelling "orders" or consummated sales (cancelling contracts as opposed to rejecting offers?)

Even without their internet disclaimer, WalMart may still have been protected by the rule of unilateral mistake.  If a non-mistaken party knew, or should have known, that the other party was mistaken about a circumstance affecting the agreed upon exchange, then the contract is voidable and may be rescinded by the mistaken party.  According to news reports,  many customers were upset with WalMart.  

There is so much legal ground to be covered to adjust to an internet world.

Ethics: It's About the Brotherhood of Man.

Law is an expression of public policy decisions.  Sometimes the public policy intentionally permits less than laudable conduct.  The employment-at-will doctrine comes to mind as an example. To encourage employment, the law gives free reign to employers to dismiss employees - even if the grounds for the dismissal seem unfair. See posts: Fired For Racial Tolerance; Fired For Choice of Necktie; Fired For Wearing Orange Shirts.

Ethics, on the other hand, carry no such hidden agenda.  Ethical principles encourage doing the right thing, independent of considerations of expediency, efficiency, profit or other purportedly justifiable circumstance. In short, ethics is about the "Broterhood of Man."  As in:

There is a Brotherhood of Man,
A Benevolent Brotherhood of Man,
A noble tie that binds
All human hearts and minds
Into one Brotherhood of Man. 

Your lifelong membership is free.
Keep agivin' each brother all you can.
Oh aren't you proud to be
In that fraternity,
The great big Brotherhood of Man? 

Oh, that noble feeling,
Feels like bells are pealing,
Down with double-dealing,
Oh Brother! 

You, you got me;
Me, I got you, you! 

From "How to Succeed in Business Without Really Trying":

Daniel Radcliffe:


Robert Morse:


Matthew Broderick - click on image below:


Drew Carey:

What Duty Does a University Owe its Student Interns?

Are we sending our undergraduate students, especially female students, into a lion's den?

Many business programs either require or encourage students to seek internships as part of their undergraduate education.  These internships are typically unpaid.  As recently confirmed by a US District Court ruling, unpaid interns are not employees and, therefore, are not covered by the laws protecting employees in the workplace. The intern in that case, a Syracuse University student, was placed in an unpaid internship at the offices of a satellite television provider. She claimed to have been sexually harassed by an executive there. While our students are typical placed in professional business settings, these settings are not immune from incidents  of sexual harassment - incidents from which our students have little legal recourse.

It would seem that universities, at the minimum, should be charged with an obligation to advise students of this lack of protection and to monitor their workplaces closely - far more closely I am afraid than has been the norm to date. Perhaps readers can share suggestions in the comments section of this post.

 

Socially Irresponsible Investment Banking

This is a re-post of a video originally posted in 2010. Having used this video in class last week, I am once again reminded of its effectiveness. The LSCB has many more readers now than it did when this was first posted, so hopefully more readers will enjoy this learning resources and find ways to incorporate it into their classes.

This video allows you to consider the relationship between ethical conduct and short or long term profit as well as popular impressions of business.

Six Elements of Fraud

This blog has previously featured videos from Professor Robert Emerson at the University of Florida and will continue, from time to time, to post some of Professor Emerson's innovative and engaging  materials.

JP Morgan Settlement: Justice or Shakedown? Depends on Perspective.

Financial pundits last week were commenting on the $13B settlement the government negotiated with JP Morgan over the sale of shaky financial securities leading up to the recession of 2008.  On the Daily Show, Jon Stewart takes these pundits to task.  Whether you agree with Stewart or not, these videos can provide provocative prompts for timely discussion or assignments.

Click the image below to see Stewart take on the financial pundits.



Click the image below to see Stewart continue his criticism - especially addressing the Bear Stearns purchase.

Legally Blonde, The Musical

Harvard Professor Callahan educates his students: exploit your superior resources to take advantage of the weak, scruples are a flaw, and emotions make you weak.  The successful lawyer smells the blood in the water.

"Is it unfair, Oh, wait! I don't care"

"You're nothing until the thrill of the kill becomes your only law."

Is such a public perception of lawyers justified?