Does Lance Hunter Have a Valid Employment Contract with Director Coulson?

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April 1, 2015

Cocktail napkin on wood — Paper bar towel coaster

Agent Lance Hunter signed a cocktail napkin and gave it to Director Phil Coulson as acceptance of Coulson’s offer to join SHIELD. Does Hunter have a valid employment contract with Director Coulson’s SHIELD?

YES, with some creative lawyering.

Silicon Valley has been the home of deals written on cocktail napkins for decades. In fact, the earliest California case where parties first put a deal on a napkin, which was a signed contract by the next morning, was in 1953 for purchasing 800 head of cattle. H. Moffat Co. v. Rosasco (1953) 119 Cal.App.2d 432, 436 [260 P.2d 126].

In Hunter’s case, Director Coulson made a verbal offer for Hunter to join SHIELD. Hunter was abducted by Mack and Mockingbird and taken to the SHIELD Helicarrier Elliott before he could accept Coulson’s offer. After escaping and finding Director Coulson, Hunter simply signed the cocktail napkin and stated he was accepting the job offer.

There are several significant problems with Hunter having a valid employment contract. First, the cocktail napkin only has his signature. It does not contain the scope of employment, job duties, pay, vacation time, medical coverage, date of signature, or anything required terms for there to be a valid contract.

These defects are fatal to any contact. However, if Hunter had been given a written contract prior to his abduction that contained the required terms, a valid contract might be possible if the napkin is considered a separate signature page to a written contract. This would require the napkin being attached to a written employment agreement once Coulson can recapture his office or print a new contract.

Another option is to view Hunter’s signature as a manifestation of his intent to accept Coulson’s offer. The terms of the contract would need to be fully defined over drinks with umbrellas and codified in a final written agreement.

Any oral terms discussed between Coulson and Hunter not included in a final written agreement could be excluded under the Parole Evidence Rule, which states that any prior oral agreements cannot contradict a final written agreement. Cal Code Civ Proc § 1856(a).

There is a very strong argument that Hunter has an implied in fact contract. Such a contract is one where the existence and terms are manifested by conduct. Cal Civ Code § 1621.

Hunter’s conduct has demonstrated he is working for SHIELD since being abducted to the Elliott, demonstrating he accepted Director Coulson’s offer. Hunter’s conduct demonstrating an agreement to work for SHIELD include:

1) Hunter resisted the interrogation by Commander Robert Gonzales and the “Hufflepuff” leaders;

2) Hunter fought to escape Elliott;

3) Hunter found Director Coulson after getting to shore; and

4) Hunter immediately signed a cocktail napkin for Coulson after ordering a drink.

All of these actions demonstrate Hunter accepted Coulson’s original offer.

There is also the reality that Director Coulson’s SHIELD is an illegal operation, thus the contract would be void. However, assuming there are Presidential Pardons or Congressional Amnesty Acts in the near future, Hunter can consider himself employed by Director Coulson’s SHIELD. That, or they just formed a terrorist conspiracy.

Bases Loaded: Baseball Patents and Player Contracts in the 19th Century

By

Josh Gilliland

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March 31, 2015

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Baseball. There is something magical about watching a game. The crack of a bat hitting a ball; the tactics for the defense; and the fact the game is both a team and individual sport simultaneously. Hard not to love it.

I have great childhood memories of playing catch with my grandfather as a boy. I still have the glove from those evenings we would throw the ball around after he got home from work.

My grandfather played baseball in his youth in Iowa. Even in his 90s, he still has a good arm to the delight of dogs that play fetch. Back in 2005 he demonstrated he was still the “natural” at a Giants and Rockies game where he caught a foul ball launched into the upper deck bare handed. A hush fell over AT&T Park for all of those who witnessed the 84 year old’s “play” on the Jumbotron.

They even sent a camera crew up to get footage of him holding the baseball.

I also love the law. I was curious about what the cases from the 19^th Century involving America’s favorite pastime. There are many contract and a few patent cases.

Patenting the Double Herring-Bone Stitch

The first up to bat is a case from 1884 over an action for a failed injunction over the reissue of a patent for the leather covers of baseballs in Mahn v. Harwood.

We need baseballs in order to play baseball. On May 21, 1872, John Osgood was issued a patent relating to “base-balls and other similar articles.” Mahn v. Harwood (1884) 112 U.S. 354, 355. Osgood assigned his rights to Louis H. Mahn, who was reissued the patent on April 11, 1876. Id.

Problem: the patents descriptions and drawings were identical. The only reason Mahn sought a reissue of the patent was to enlarge the claims of invention. Mahn, at * 357.

The Court stated that it was contrary to law to reissue of a patent for the purpose of enlarging claims, especially after a four-year gap, and not even by the inventor. Mahn, at * 360-361. As such, the Court held the reissue of the patent was void, and dismissed the claims against the alleged infringer. Mahn, at * 363-364.

What is very interesting is the original patent describing the process how a baseball is made:

1. A ball exterior, composed of two crimped hemispherical covers, A and B, having their respective seams x and y break joints, substantially as set forth.

2. In combination with a ball whose exterior is composed of two hemispherical covers A and B, with their respective seams x and y breaking joints, I claim the double herring-bone stitch formed of two threads, in the manner herein set forth.

Mahn, at * 365.

Pitching a Preliminary Injunction on Negative Rights

Next up, a baseball club that tried to get an injunction against a baseball player from playing ball for the entire season of 1890 with any club but the plaintiff.

The New York Base-Ball Club and John M. Ward had a contract for Ward to play baseball for the 1889 season. The contract included a provision to “reserve” Ward for the 1890 season. Metropolitan Exhibition Co. v. Ward (Sup.Ct. 1890) 9 N.Y.S. 779, 779. The case turned on the definition of the word “reserve.”

The relevant contract provision stated:

It is further understood and agreed that the said party of the first part shall have the right ‘to reserve’ said party of the second part for the next season ensuing, the term mentioned in paragraph 2 herein provided; and said right and privilege is hereby accorded the said party of the first part, upon the following conditions, which are to be taken and construed as conditions precedent to the exercise of such extraordinary right or privilege, namely: First. That the said party of the second part shall not be reserved at a salary less than that mentioned in the 20th paragraph herein, except by consent of the party of the second part. Second. That the said party of the second part, if he be reserved by the said party of the first part for the next ensuing season, shall be one of not more than fourteen players then under contract.”

Metropolitan Exhibition Co., at *781-782.

The Court did NOT enjoin the Defendant from playing baseball in 1890. The contract only had a reserve clause; this did not include required contractual terms such as payment. The Court explained the issue of seeking an injunction for undefined contractual rights:

As before said, this is a suit in equity wherein the court has no power to enforce the affirmative covenant claimed to exist, which would compel the defendant to play ball with plaintiff; but the court is asked, in effect, to decree the specific performance of a negative covenant, claimed to have been made by the defendant that he should not play ball with others.

Metropolitan Exhibition Co., at *781.

The Court denied the Plaintiff’s preliminary injunction, because it effectively would have been a final verdict for the Plaintiffs. The Court instead ordered a trial to determine the rights between the parties before the start of baseball season.

Who’s On First?

The final case up to bat is from 1885 and concerned the 1883 baseball season. A player sued his employer for breach of contract and recovered damages of $431.12. Oberbeck v. Sportsman’s Park & Club Asso. (1885) 17 Mo.App. 310, 311. The Defendant appealed.

The parties contracted for the Plaintiff’s services to play baseball in 1883 for $785 to be paid semi-monthly. The Defendant effectively fired the Plaintiff in June of that baseball season by prohibiting him from playing. The breach of contract suit followed. Oberbeck, at *311-312.

The original contract between the parties contained terms of payment and performance. The Defendants claimed that the first contracted needed to be approved by American Association of Base Ball Clubs, which never approved the contract. The Defendants produced a second contract that contained a clause the Defendant could terminate the Plaintiff at anytime. The Plaintiff claimed he nevered signed the second contract. Oberbeck, at *312.

The jury found for the Plaintiff. The Defendant’s appeal was rejected and the judgment affirmed. The evidence was on the side of the Plaintiff and the appellate held he was “safe” on appeal.

Take Me Out to the Ballgame

Baseball is a field of dreams. It is a game of strategy, supreme concentration, and some interesting off the field lawsuits. There is adventure in going to the games or watching it from the comfort from home. In the end, I just really loved playing catch with my grandfather.

General Talbot Should Not Grab a Major’s Face

By

Josh Gilliland

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March 28, 2015

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Pretty sure General Talbot on Agents of SHIELD will be subject to an internal affairs investigation due to 1) rounding up all the female officers and enlisted service members and 2) unwanted facial touching of a servicewoman. Let’s discuss the legal issues from “Love in the Time of HYDRA.”

The General likely would be cleared of charges, but his wife being angry for not being diverted away from a dangerous situation, followed by the General pulling a gun on her and told to lie on the floor with lunch, would seem mild compared to what the Air Force would do to him.

The face-changing Agent 33 had invaded General Talbot’s base. Talbot recognized his base had been compromised after waiving Agent 33 impersonating his wife passed security (a violation of National Security Protocol) and then being called by his wife on the phone.

Note to all spouses: If your life partner makes you realize a face-changing spy has invaded your office, warn them to stay away. No one should die on Taco Tuesday.

Talbot’s solution to a female spy being on base was to sequester all of the women in order to find the spy. After interrogating each woman in public, Talbot grabbed the cheek of a Major, thinking that Air Force officer was the spy.

Bad, bad, bad, idea.

The spy actually had killed a male soldier her height and taken his uniform. There was no reason to round up only women, when the search should have focused on height and weight of people: Agent 33 could change her face; she was not a shape-shifter would could increase or decrease her mass.

Could the Air Force Major prevail in a hostile work environment claims against General Talbot? She would have to prove the following:

(1) That she belongs to the protected group;

(2) That she was subject to unwelcome sexual harassment;

(3) That the harassment complained of was based on sex; and

(4) That the harassment complained of affected a term, condition, or privilege of employment in that it was sufficiently severe or pervasive to alter conditions of her employment and create an abusive working environment.

Maddin v. GTE, Inc. (M.D.Fla. 1999) 33 F.Supp.2d 1027, 1031, citing Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557 (11th Cir.1987).

The Major could prove 1) she is a woman and thus belongs to a protected class based on gender; 2) she was subjected to unwelcome sexual harassment by the cheek grabbing (definitely battery); and 3) the harassment was because she was a woman.

The second element is somewhat problematic: the General definitely violated her person by grabbing her cheek, thinking it was a mask. Trying to unmask a spy is not on its face sexual harassment of a possible suspect, but it is definitely battery.

As one case explained, face touching “is not the type of physical conduct that is so egregious that even one instance would make a reasonable woman experience her workplace as hostile.” EEOC v. Int’l Profit Assocs. (N.D.Ill. 2009) 654 F.Supp.2d 767, 809.

It would appear the hostile work environment claims would fail because one incident of face touching (in order to unmask a spy) would not be egregious conduct to create a hostile work environment given the extreme situation.

This would not mean the General is safe from a Congressional Investigation. The military and Congress take a dim view on assault of service members, so the General better be prepared to explain how he was trying to find a spy that had killed two other military personnel.

Tony Stark Should Not Have Drones Taking Naked Photos

By

Josh Gilliland

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March 26, 2015

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Tony Stark in Superior Iron Man is being very creepy with drones flying over San Francisco for “security.” The City by the Bay has become an Orwellian parable, thanks to the great story by Tom Taylor. While crime is low to non-existent, Stark states that because of the drone surveillance, people of San Francisco were “thinking up really creative ways not to be naked.”

San Francisco has a population of over 835,000 people. Tony Stark could be sued in the largest invasion of privacy case of all time.

Invasion of Privacy in California

California might be short on water, but we are rich in privacy laws. The California Constitution states that, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal Const, Art. I § 1.

The state of California has enacted laws that would give anyone who is recorded by Stark’s drones a cause of action against him for invasion of privacy. Tony Stark has arguably subjected himself to civil liability suit based on the following:

A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.

Cal Civ Code § 1708.8(b), emphasis added.

What does this mean? A Stark Drone hovering outside your bedroom window recording your every moment would be an invasion of privacy.

Damages could be up to three times the amount of any general and special damages that are proximately caused by the violation of this section. Cal Civ Code § 1708.8(d). Moreover, punitive damages could be an option (and given the fact surveillance is constant AND naked photos of everyone, punitive damages should be a given). Id. Additionally, there is a civil fine of at least $5,000, but not more than $50,000, for each plaintiff. Furthermore, if Tony Stark commercialized the record images with a voyeur website, he would be subject to disgorgement of any profits. Id.

Tony Stark might be rich, but if he was fined $50,000 for each of the 835,000 people in San Francisco, Stark would likely be bankrupted.

Stark might argue the Terms of Service for his App gave him the right to record people. This likely would fail, given the severity of the intrusion. Moreover, no Judge will think, “Sure, you can click away all person freedom in an App Terms of Service Agreement.”

There is also the issue of recording naked children. For Tony Stark to be guilty of child pornography, the images would need to be of children engaged or simulating sexual conduct. Cal Pen Code § 311.11. Law enforcement can add that issue to the search warrant.

Tony Stark’s attorneys should strongly advise against the use of drones to record people in San Francisco. A very good [fictional] attorney could prove each element of the jury instructions for invasion of privacy:

That the people had a reasonable expectation of privacy in their homes;

That Tony Stark intentionally intruded into their homes to remotely record them with drones and technology in violation of Cal Civ Code § 1708.8(b);

That Stark conduct of recording each plaintiff at home is highly offensive to a reasonable person;

That each plaintiff was harmed, such as trying to find ways not to be seen naked; and

That Stark’s Drones were a substantial factor in causing the harm.

Tony Stark’s drones are creating significant civil and potentially criminal liability for the rogue super-hero. Stark’s attorneys should strongly recommend he cease all drone operations. Moreover, destroy all hard drives containing recorded images before Stark can reasonably anticipate litigation and be subject to the duty to preserve.

Can Supergirl Sue Power Girl for Identity Theft or False Impersonation?

By

Josh Gilliland

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March 23, 2015

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Does Power Girl (Kara Zor-L) living on Earth 1 mean she is committing false impersonation or identity theft of Supergirl (Kara Zor-El)?

In order to solve this “Identity Crisis,” we first must understand the legal flashpoints of false impersonation and identity theft. While further legal review might identify as many as 52 separate legal issues of the same individual from parallel worlds living in the same universe, we will focus on dueling dual Karas.

Assuming Supergirl is based in Kansas, the following laws control:

False impersonation “is representing oneself to be a public officer, public employee or a person licensed to practice or engage in any profession or vocation for which a license is required by the laws of the state of Kansas, with knowledge that such representation is false.” 2009 Kan. HB 2668(a).

Identity theft is obtaining, possessing, transferring, using, selling or purchasing any personal identifying information, or document containing the same, belonging to or issued to another person, with the intent to:

(1) Defraud that person, or anyone else, in order to receive any benefit; or

(2) Misrepresent that person in order to subject that person to economic or bodily harm.

K.S.A. § 21-6107(a).

The answer to whether Power Girl is infringing on Supergirl’s legal rights is odd, because they are the same person from two different universes. Moreover, the very fact that Kara Zor-L and Kara Zor-El should be the same down to the cellular level makes analysis strange to say the least.

As to the issue of false impersonation, Supergirl would have to be authorized by the Federal or state government to conduct law enforcement activities in order to meet the basic elements of false impersonation in Kansas.

If Supergirl is not a state actor in her law enforcement actions, then she would not be covered by the Kansas statute. However, being a member of the Justice League, we can assume Supergirl has legal authority to conduct law enforcement activities, thus would be covered by the statute.

Even though Kara Zor-L has the same powers and name pronunciation as Kara Zor-El, Power Girl does not introduce herself as Supergirl. Moreover, the two have different uniforms, fighting styles, and dissimilar personalities. From an objective level, it would appear that Power Girl does not impersonate Supergirl.

Identity theft is somewhat tricky. If Kara Zor-L applied for a driver’s license in Kansas, it is safe to assume she would have the same fingerprints as Kara Zor-El (Plus, both have challenges with producing original or certified birth certificates, unless Kansas will accept documents from two separate Kryptons, or that they are lawfully present in the United States, giving a new meaning to “illegal aliens”).

Theoretically, the physical similarities between Kara Zor-L and Kara Zor-El would include everything from retina down to both Kryptonians’ DNA. Moreover, Kansas requires “mandatory facial image capture” (or as normal people call it, taking a picture), which should produce a conflict with facial recognition technology. K.S.A. § 8-1324(j). As such, the very act of getting a driver’s license would access Supergirl’s secret identity and personal identifiable information. Therefore, if Kara Zor-L were to get a driver’s license, that could be a “benefit” based on Kara Zor-El’s identity.

The issue would come down to intent and whether Kara Zor-L “knowingly” was trying to unlawfully gain a benefit based on Kara Zor-El’s personal information. However, when you have two individuals who are physically more like a clone and less like a twin, the law is not designed for such situations.

“One of Us” in the Great State of Wisconsin

By

Josh Gilliland

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March 22, 2015

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Director Phil Coulson is not the only one from Wisconsin: Jessica weighs in on her home state appearing on Agents of SHIELD!

We discuss the AofS episode “One of Us,” focusing on Mr. Hyde’s team of “super” villains, the legality of Director Coulson’s SHIELD team, and why SHIELD would be a legally terrifying law enforcement/espionage/military agency. We also ask, just which SHIELD is the “real” one?

Did Not Providing Angar the Screamer Dental Care Violate the 8th Amendment?

By

Josh Gilliland

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March 20, 2015

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Angar the Screamer in Agents of SHIELD was imprisoned below a mental hospital and wore a metal gag for years. Once the gag was removed, it was very clear Angar had damaged skin around his mouth and rotten teeth (also, did they feed him by IV? Feeding tube?). Did this treatment violate the 8^th Amendment?

Yes, even with Angar’s super powered voice that attacked the central nervous system.

Case law is clear that deliberate indifference by prison officials to a prisoner’s serious medical or dental need constitutes cruel and unusual punishment in violation of the Eighth Amendment. Young v. McGill, 2011 U.S. Dist. LEXIS 140979, 5-6 (D. Conn. Dec. 8, 2011), citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).

If Angar was to sue the Federal Government for his treatment, he would need to allege “facts demonstrating sufficiently harmful acts or omissions and intent to either deny or unreasonably delay access to needed medical care or the wanton infliction of unnecessary pain by prison personnel.” Id.

The Government would argue that Angar had to wear the gag, because his voice would kill anyone who could hear him. This is a valid point, especially considering someone had to somehow “feed” the prisoner (perhaps Angar had a peripherally inserted central catheter for nourishment). Despite the need to restrain Angar from speaking, a less restrictive violation of Angar’s person would be to incarcerate him in a sound proof room. All guards and medical professions would interact with him could wear protective hearing to avoid being injured by Angar. This effectively is what doctors do already by wearing surgical gloves or those who work in high noise areas.

Another option besides wearing a gag would be drug therapy, so Angar could not speak. This would be akin to sex offenders who have to take a chemical to temporarily suppress their sex drive (chemical castration). State v. Christopher (1982) 133 Ariz. 508, 509 [652 P.2d 1031, 1032]. This would protect anyone treating the prisoner and not require Angar to wear a gag indefinitely.

Angar’s rotten teeth would speak for themselves that the prison had “deliberate indifference” to Angar’s dental needs. There is no way around the fact his teeth were a mess. God knows what sort of gum disease Angar would have had after years of not brushing. The damage to Angar’s mouth would strongly show the Government was indifferent to Angar’s health in violation of the 8^th Amendment.

Now….did Angar kill all those football players and cheerleaders? Were the high school students knocked out and drooling for hours? The birds looked pretty dead. If Angar took out a field full of high school students it would be comparable a small-scale Stamford, Connecticut from Civil War. Public reaction would not be good. Angar and the JV Masters of Evil would have bigger legal issues then tooth decay.