Can Rudolph the Reindeer Sue Santa Claus for Nasal Discrimination?

They used to laugh and call Rudolph names. They refused to let Rudolph play reindeer games. However, when it because too hazardous to safely navigate the night sky due to fog, Santa Claus had no problem using Rudolph the Red-Nosed Reindeer as a navigation device. Worse yet, just how much money has Santa made on Rudolph merchandizing? Is Rudolph even collecting any royalties?

Santa-RudolphCould Rudolph sue Santa Claus for the treatment he endured at the hooves of the other reindeer based on respondent-superior for discrimination? Was Rudolph’s journey to the Island of Misfit Toys evidence of constructive discharge?

Well, Run Run Rudolph to your closest plaintiff’s lawyer to answer whether you have a case against Santa Claus.

Federal law prohibits discrimination based upon race, gender, age, religion, and multiple other factors. As a preliminary matter, Rudolph would need to show he was a member of a protected class in order to successfully bring a case against Santa as the employer of the discriminating reindeer.

Rudolph has a substantial problem because anti-discrimination laws apply to human beings and not magically flying reindeer that can talk. Assuming Rudolph can overcome the humanity barrier, there are no Title VII or similar discrimination cases based upon theories of “nasal discrimination for nose color.”

RudolphMoreover, neither Title VII nor the Americans with Disabilities Act include eye color, thus claiming “nose color discrimination,” is something no anti-discrimination law has stated for legal protection. Tracy v. Mount Ida College, 1995 U.S. Dist. LEXIS 11183, 4 (D. Mass. Mar. 17, 1995) and Kelly v. Horizon Med. Corp., 2014 U.S. Dist. LEXIS 43212, 32 (M.D. Pa. Mar. 31, 2014).

A Court might find Rudolph’s red nose to simply be a “physical characteristic,” such as being left-handed or a specific hair color, thus not qualifying for protection under any of the anti-discrimination laws.

However, Rudolph is not without legal recourse. A good trial lawyer could argue that Rudolph was discriminated against because of his age, specifically, his youth, because “age discrimination is broad enough to accommodate [claims] of age discrimination based on youth.” Bergen Commer. Bank v Sisler, 157 NJ 188, 196, [1999]. As such, if such a case went to trial, a jury could see the following “Naughty List” encapsulated in these jury instructions:

Rudolph Reindeer claims that he was subjected to harassment based on his age at Santa’s Workshop and Reindeer Stable at the North Pole, causing a hostile or abusive work environment. To establish this claim, Rudolph must prove all of the following:

 1. That Rudolph the Reindeer was an employee of Santa Claus;

 2. That Rudolph the Reindeer was subjected to unwanted harassing conduct because of his age;

 3. That the harassing conduct was severe or pervasive;

 4. That a reasonable reindeer in Rudolph’s circumstances would have considered the work environment to be hostile or abusive;

 5. That Rudolph considered the work environment to be hostile or abusive;

6. That Santa Claus, who knows if you have been bad or good, knew or should have known of the conduct and failed to take immediate and appropriate corrective action;

 7. That Rudolph was harmed; and

 8. That the conduct was a substantial factor in causing Rudolph’s harm.

The cruelty of the other reindeer should have been known by the omniscient Santa Claus. Moreover, driving Rudolph off with an elf aspiring to be a dentist can be directly attributed to the hostile work environment that Santa permitted in his workshop. As such, there could be a very strong case against Santa’s Workshop, but it will be very difficult to empanel a jury that is not biased towards Santa Claus for either being on or off the Nice List.

Flash Dance! Can Reverse Flash Outrun Trademark Infringement?

Barry Allen in the first season of The Flash took to wearing a red speed resistant uniform with a lightning bolt on the chest and sides of his head. The Flash became a symbol of hope that saved people from accidents, stopped crime, and foiled terrorist plans.

ReverseFlashInfringement

Enter the Reverse Flash. Technically, Barry saw the “man in yellow” in the past when the Reverse Flash murdered Barry’s mother. However, Barry was the only person who saw “the man in yellow” fourteen fictional years ago.

The Reverse Flash’s uniform is the same design as Barry Allen’s uniform with the red and yellow inverted. One change is the glowing red eyes.

The Reverse Flash’s public debut had police officers confused by another “speedster” in town who killed security guards and attempted to steal scientific equipment. Moreover, this “yellow blur” acted exactly the “reverse” of the Flash’s heroic nature.

Can the Flash enjoin the Reverse Flash from wearing a uniform that is the same design as the Flash’s uniform? There is case law where an alleged infringing party wore uniforms with the logos of their competitors that caused actual customer confusion. W. Wis. Water, Inc. v Quality Bevs. of Wis., Inc., 305 Wis 2d 217, 226. Could the Flash prevail in such a case?

As a preliminary matter, to bring a case for trademark infringement under Section 32 of the Lanham Act, a plaintiff must prove:

(1) That it [the plaintiff] possesses a mark;

(2) That the defendant used the mark;

(3) That the defendant’s use of the mark occurred in commerce;

(4) That the defendant used the mark in connection with the sale, offering for sale, distribution, or advertising of goods or services; and

(5) That the defendant used the mark in a manner likely to confuse consumers.

Hershey Co. v. Friends of Steve Hershey, 2014 U.S. Dist. LEXIS 97366, 6-7 (D. Md. July 17, 2014).

The Flash could prove that he possessed the mark (the uniform with design), that the Reverse Flash also used the same design on his uniform, with the colors reversed, and that there was actual confusion between the Flash and Reverse Flash. However, the challenge in prevailing is over using the mark in “commerce,” because there was no use of the mark in commerce for the sale, offering for sale, distribution, or advertising of goods and services. For this action to survive, a Court would have to find pro bono super-hero work (opposed to vigilantism) is a “service,” which is not outside of the realm of possibility.

The Flash might argue that his super-hero services are in commerce and similar to being a volunteer firefighter. There certainly is a good argument that The Flash is a Good Samaritan who volunteers his time for the public good, like a volunteer firefight. In one New York case, volunteer firefighters were able to to enjoin a school from using the firefighters acronym in the school logo. However, the volunteer firefighters had been in existence since the 1870s, with 43,000 members, an operating budget of $11,000,000, plus operating a home for retired firefighters, a firefighting museum, and sold merchandise. Matter of Fireman’s Assn. of State of NY v French Am. Sch. of N. Y., 41 AD3d 925, 925-926 [3rd Dept 2007].

While The Flash’s Scubby Gang do maintain an illegal prison and conduct police actions in violation of law, this is still a long way off from operating a Flash Museum or providing nursing home facilities for the Golden Age Flash Jay Garrick.

Barry Allen other has legal remedies he can seek to protect his Flash trademark.

The Reverse Flash is constantly moving, thus a blur. As such, the Flash might be successful in suing Reverse Flash for Dilution by Blurring or Tarnishment. The law states:

(1)  Injunctive relief. Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.

15 USCS § 1125(c)(1).

The fact the Reverse Flash murdered police officers and committed other crimes would unquestionably tarnish the Flash’s mark. The issue again would turn on “commerce.”

Depending on what state Central City is located in, there could be a cause of action for the Flash’s right to publicity. In states such as California, a plaintiff can bring a right to publicity claim if the plaintiff can show that his or her name or likeness was appropriated without consent. Nurmi v. Peterson, 1989 U.S. Dist. LEXIS 9765. While use in commerce is one possible cause of action, California law states the following: “damages may be recovered from any person who knowingly uses another’s name, voice, signature, photograph or likeness in any manner or for commercial purposes, without permission.” California Civil Code section 3344(a), emphases added.

The Reverse Flash has used the Flash’s likeness in having the same uniform with the colors changed in a manner inconsistent with how the Flash’s public image as a hero, irregardless of whether the Flash’s likeness was used in commerce. Moreover, the biggest infringement is also in plain sight with the villain’s name: Reverse Flash.

Time travel makes causality paradoxes that echo in proximate cause and who was first to wear the uniform. Given the fact Reverse Flash is from the future, whose uniform is based of the Flash’s uniform, the fact the Reverse Flash appeared in the past does not mean Reverse Flash was the first to wear the uniform design by killing Barry’s mother fourteen years ago.

There is no question the Reverse Flash has similar powers to the Flash, wears a similar uniform to the Flash, and whose high speed appearance could be confused with the Flash. As such, Barry Allen/the Flash could bring a civil action for infringement with a high likelihood of success on the merits.

Superior Iron Man Cannot Violate Consumer Protection Laws

Iron Man has moved to San Francisco in Superior Iron Man. Now Tony Stark is going out of his way to make issues like $4,000 a month for a one-bedroom apartment, and landlords requiring proof of income of at least $100,000, seem meek. The residents of San Francisco [in the Marvel Universe] would think of those problems in terms of “the good old days” of high rent and corporate buses.

IronMan-Mark1-GoldenGateBridgeHere is what Tony Stark did: 1) Gave everyone in San Francisco with a smartphone Extremis 3.0 as a downloadable app; 2) the app had a clickware agreement and was a “techno-virus designed to transform you into the very best ‘you’ you could be. Beauty, muscle tone, health…” 3) After a one month orgy of feeling and looking good, the one month free trial of Extremis 3.0 ended, and the app became $99 a day to use (or roughly $3,011.24 a month or $36,135 a year).

Playing the role of an expert witness, assuming the population of San Francisco is 837,442, and estimating 80% of the population has smartphones, then potentially as many as 66,995,360 people would be paying Tony Stark $3,011.24 a month for Extremis 3.0. These numbers could vary, but Stark could be making trillions of dollars a month.

Tony Stark’s one-month free deal, followed by a $99 a day fee, makes Extremis 3.0 look less like in-app purchases and more like crack cocaine. Stark’s business plan was to get the population of San Francisco physically addicted to his app, followed by extreme profiteering.

Apps in the real world do not physically change people. iPhone users cannot use the new health feature to trim 30 pounds with a swipe or change their hair color from brown to blonde to red in an hour. Extremis is a very fictional app.

Litigation over in-app purchases is very real. Parents of children who made in-app purchases of “currency” in a supposedly free apps without the parents’ consent, sued Apple alleging Apple violated the California Consumers Legal Remedies Act (“CLRA”), violation of California’s Unfair Competition Law (“UCL), breach of the implied covenant of good faith and fair dealing, and restitution /unjust enrichment/ money had and received. In re Apple In-App Purchase Litig., 855 F Supp 2d 1030, 1038 [ND Cal 2012].

Tony Stark having a “free app” that switched to one costing $99 a day after one-month’s use could violate the CLRA, which is to deter “unfair methods of competition and unfair or deceptive acts or practices,” under Cal. Civ. Code section 1770(a). In re Apple In-App Purchase Litig., at *1038. Moreover, conduct designed “likely to mislead a reasonable consumer” violates the CLRA. Id.

Josh_vs_IronManDid the Extremis 3.0 terms of service state that the app was free for only one month? If the terms of service did not state anything about the cost becoming $99 a day after one month, such a large omission could be actionable. Applying the elements from In re Apple In-App Purchase Litig., that Tony Stark actively misrepresented the cost of Extremis 3.0 as free as follows:

(1) Representing that goods have uses or characteristics they do not have, Cal. Civ. Code section 1770(a)(5);

(2) Representing that goods are of a particular standard or quality when they are of another, Cal. Civ. Code section 1770(a)(7); and

(3) Representing that a transaction confers or involves rights, remedies, or obligations, which it does not have or involve, or which are prohibited by law, Cal. Civ. Code section 1770(a)(14).

In re Apple In-App Purchase Litig., at *1038.

The fact that Extremis 3.0 was free, then jumped in price to $99 a day, that physically makes people addicted to the app would violate the law. Where was it disclosed that people could become addicted to the app? Stark represented that users would be the “best ‘you’ you could be,” but there was nothing about physical addiction. Factor in the cost of the app, recovering Extremis 3.0 users could bring a case against Stark.

There is a good argument to be made that the cost of $99 a day would violate other consumer safety laws as well. A cleaver California Attorney General and US Attorney could also try prosecuting Tony Stark as a drug dealer, which would be highly untested, but possibly could work as Tony Stark is destroying lives with a controlled substance that is a techno-virus.

Will We See a President Ward or the Kree Captain Mar-Vell on Agents of SHIELD?

New York Political Consultant Gerry O’Brien and I are big fans of Agents of SHIELD. Both share their thoughts on whether Grant Ward’s brother is alive and if they are setting Senator Christian Ward up to be the new President of the United States in the Marvel Cinematic Universe (after defeating President Ellis in a general election).

Josh_CaptainMarvel_0670We also discuss the original Kree Captain Marvel at length and how the Mar-Vell and Colonel Yon-Rogg could be on future seasons of Agents of SHIELD.

What Should You Get the Lawyer in Your Life For Christmas?

Santa-NiceListShopping for lawyers is hard. Many “normal” people think we lawyers want a leather bound collection of John Grisham books for Christmas.

Moreover, many Judges to this day are still getting copies of The Brethren by Bob Woodward as gifts.

Please do not give such gifts unless asked. Lawyers really do not read Latin for fun.

This might surprise many, but lawyers are just like “normal” people with hobbies. I encourage anyone shopping for a lawyer to think in terms of in arguendo, “Hey, Sarah likes sailing, I will get her a new lifejacket and gloves, because I want her safe on a boat.”

Like with anyone, think of that person’s interests. One of my favorite childhood Christmas gifts was a Star Wars AT-AT. A very meaningful recent gift was a bust of John Quincy Adams.

Here are some ideas that I think would be great Christmas Gifts for a geek lawyer:

Pocket Watch

Watches are a wonderful gift, because the wearer always associates the watch with whoever gave them the gift.

The Polaroid Z2300 Digital & Instant Camera

We live in the most photographed age in human history, but probably have the least printed photos then any other era. It is important to print, so memories are not lost when data storage changes. This camera is a nice mix that can save photos electronically and instantly print pictures.

Plus, I loved my Polaroid camera as a kid.

Ring Light

Hey, photographers have cool toys.

GoPro Hero 4 Black

Han Solo Frozen in Carbonite Cufflinks or the Classic “I Love You,” “I Know” Set

Jelly Babies

Jelly Babies are required for any Doctor Who fan and excellent for taking the tension out of settlement negotiations or depositions.

Bust of James Garfield

The original Legal Geek

Socks. Lawyers need nice ones too.

Dress Shirts, because we wear them out.

Bow Ties, because Bow Ties Are Cool.

Gift giving always requires thought about the individual. Plus, lawyers can be complicated people. I hope this list gives you some ideas if your Nice List includes a lawyer.

Does Mack Have an OSHA Complaint Against Director Coulson?

Rogue spy agencies commit acts of vigilantism, illegally conduct foreign operations in Canada, and obviously lack a human resources department. We also learned on Agents of SHIELD that no one had read the OSHA regulations before entering an alien city in Puerto Rico that had been sealed for centuries.

Does Mack have a cause of action against Director Phil Coulson for his workplace injuries in Attilan? Would a Court find such failures to follow OSHA regulations inhuman?

Shirt Compliments of Neatorama and available from NeatoShop.com

Shirt Compliments of Neatorama and available from NeatoShop.com

Let’s examine the basic facts: Mack is lowered into a confined space that has no windows or ventilation for hundreds, if not thousands, of years. Mack did not wear any protective clothing or wear an oxygen mask while entering the unsealed and unventilated confined space. Furthermore, there was no evidence of testing the air quality of the secret city entrance, other then the mini-drones called Dwarves becoming non-operational.

Employers are to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 USC 654. Ensuring that a work area has an acceptable air quality for human habitation is part of these requirements ensuring employee safety.

OSHA recognizes that “Airborne contaminants can present a significant threat to worker health and safety.” As such, testing for airborne contaminants and determining what protective equipment is necessary to ensure the safety of employees is not one to be ignored, especially in ancient alien civilizations that destroy human tissue upon the touch.

OSHA-Atmosphere-Supplying-RespiratorsIf a work environment has “substances with a high degree of hazard to the skin are known or suspected to be present, and skin contact is possible,” then an employee should be protected by wearing the following:

Pressure-demand, full-face-piece SCBA or pressure-demand supplied air respirator with escape SCBA.

Fully encapsulating, chemical resistant suit.

Inner chemical-resistant gloves.

Chemical-resistant safety boots/shoes.

Two-way radio communications.

OSHA, Air Quality, Table 8-6, Sample Protective Ensembles

OSHA-HazardsMack did not have any such protection while being lowered into Attilan.

Upon coming in contact with the floor of the alien room, Mack immediately went into physical distress, developing alien markings upon his arm, his eyes changing color, and becoming physically violent to his coworkers.

It is noble that Director Coulson had a acceptable loss rate of zero for the operation in San Juan, however, providing Mack with proper protective clothing would have helped achieve that goal.

Mack might have assumed the risk of entering Attilan, given what was known about the Diviner and its destructive power on human beings. However, that knowledge should have been a warning to the SHIELD Agents to wear the proper protective clothing before entering a confined space of alien origin with unknown air quality. A Court finding otherwise would simply be Inhuman.

Lawyers and Judges Geeking Out Over Star Wars The Force Awakens

There has been an awakening. Have you felt it?

NerfHerder_8594The answer is YES. Judge Matthew Sciarrino joined Jessica and I to discuss the teaser trailer for Star Wars The Force Awakens. If you remember IOU’s for Star Wars toys and have already requested December 19, 2015 off from work, then you will enjoy what Judge Sciarrino has to say about the new Star Wars teaser trailer.

Thanks, 2014!

TurkeyIt’s that time of the year again, where we all think about what we’re thankful for (before we start thinking about what we want next!), so I’m here to say thanks for a great year!

Thanks to Josh, who is an awesome blogging partner whose great work on Guardians of the Galaxy (among other posts, like those on Captain America and Agents of S.H.I.E.L.D.) got us named to the ABA Journal Blawg 100 for the second year in a row (thanks, ABA Journal!).

SuperHeroesThanks to the geek world, which is getting better and better about giving us stories with great women.  My favorite, Wonder Woman, has been around for years, but I love her as the God of War.  And the new Goddess of Thunder is awesome! Even the news for future years – like the Agent Carter show and Captain Marvel movie – was exciting news this year.

And, finally, thanks to all of the family, friends, and fellow geeks out there.  You make life brighter and I hope you all have a happy Thanksgiving and a wonderful holiday season!

Black Friday: Avoid Tort Liability for Christmas

BlackFridaySalesNothing expresses a season of thankfulness, love, and giving, like people waiting overnight in line to buy things. “Black Friday” videos of shoppers rushing into stores can look like the Normandy landing in a fight to the death for the best deal.

You almost expect people to pin letters home on their backs in case they do not survive, just like Union soldiers before Cold Harbor.

Corporate counsel at every major store probably have already issued litigation hold instructions to their records managers to save security video.

To not get me wrong, I love holiday shopping. The Stanford Shopping Center always has pretty decorations. Christmas in the Park in downtown San Jose is also fun. There is just no way on God’s Green Earth that I will go shopping on Black Friday.

nickel-60534_1280How long was “Black Friday” been around? The first case with the term “Black Friday” was in 1874.

The case did not pertain to holiday shopping, but a stock market crash where parties tried to corner the market in gold in 1869, “for purposes of speculation and plunder.” Cameron v Durkheim, 55 NY 425, 438-439 [1874].

A stockbroker who was alleged to have been part of the “Black Friday” conspiracy that caused the panic of 1869 sued on defamation over the accusation. Willard v. Sun Printing & Pub. Co., 106 F. 636, 636 (C.C.D.N.Y. 1901).

The first mention in a lawsuit that “Black Friday” was a major shopping event the day after Thanksgiving was not until 2001 during a deposition. Gray v Press Communications, LLC, 342 NJ Super 1, 5-6, 775 A2d 678, 681 [Super Ct App Div 2001].

Tort cases involving Black Friday have included injuries from stepping on a skateboard; claims of excessive force by police by someone attempting to get a shopping cart; and even trademark infringement between online retailers. Doyle v. Wal-Mart Stores, Inc., 2014 U.S. Dist. LEXIS 128624, 6-7 (N.D. Okla. Sept. 15, 2014); Bannan v. City of Philadelphia, 2012 U.S. Dist. LEXIS 16353, 10 (E.D. Pa. Feb. 9, 2012); Overstock.com, Inc. v. Nomorerack.com, Inc., 2014 U.S. Dist. LEXIS 89620, 2 (D. Utah June 30, 2014).

“Black Friday” has been around for decades with people going shopping. Personally, I prefer to celebrate the day after Thanksgiving by avoiding crowds.

However, if you must go shopping, or off to enjoy a movie to see the Star Wars The Force Awakens teaser trailer, be safe in parking lots, and remember the spirit of the holiday. Having up-to-date insurance and your lawyer’s number might also be handy.

Murder, Incorporated on Gotham

Let’s start with Alfred is awesome. The ultimate butler who can fight off three assassins and put one in the ground. The world needs more marksmen butlers.

Alfred-VenusianAikidoThe Gotham mid-season finale focused on three assassins hired to kill Selnia Kyle (AKA Cat) at Wayne Manor. This small “league of assassins” killed a groundskeeper at Wayne Manor, shot Alfred (just a flesh wound), murdered Dick Lovecraft, and had a gunfight with the police.

“Murder-for-hire” assassins would violate both Federal and New York. Federal law specifically states:

(a) Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility of interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined under this title or imprisoned for not more than ten years, or both; and if personal injury results, shall be fined under this title or imprisoned for not more than twenty years, or both; and if death results, shall be punished by death or life imprisonment, or shall be fined not more than $ 250,000, or both.

(b) As used in this section and section 1959 [18 USCS § 1959]–

(1) “anything of pecuniary value” means anything of value in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage;

(2) “facility of interstate or foreign commerce” includes means of transportation and communication; and

(3) “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

18 USCS § 1958.

The murder of Dick Lovercraft was a completed murder-for-fire and could be prosecuted under Federal and New York law.

New York law specifically prohibits conspiracy to commit murder under NY CLS Penal § 105.15. Murdering a witness to a crime with the intent to prevent the witness from testifying in a trial is first-degree murder. NY CLS Penal § 125.27(1)(a)v).

The three assassins could be prosecuted under both Federal and State law for their conspiracy to kill Selina Kyle (thus attempted murder), because there was 1) a contract to kill the minor; 2) the intent to kill Kyle was to prevent her from testifying in the Wayne murder; and 3) interstate commerce was used in someway to give Federal jurisdiction, whether it was by communication or travel.

The death of the groundskeeper would qualify as a “death” under both statutes, as the groundskeeper was murder in the furtherance of the conspiracy. His death would carry a life sentence for all of the conspirators. Alternatively, if somehow the groundskeeper’s death and body mutilation was only second degree murder viewed separate from the conspiracy, the fact an assassin shot Alfred in the arm would qualify as an injury, thus carry a 20-year sentence.