Stay Safe for 2015 on New Year's Eve

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December 31, 2014

I am a safe and boring conservative. My mother was a paramedic and I heard my share of horror stories of fun on New Year’s Eve gone terribly wrong.

This does not mean New Year’s Eve should be spent reading historical memoirs, just that I wish everyone to start 2015 without the need of doctors, medical care, insurance claims, or lawyers.

How will I spend New Year’s Eve? Cooking a nice dinner and dessert. However, many people will go out. There are many great places to see fireworks and awesome shows. Back while I was in college, my family owned Rooster T. Feathers Comedy Club. We always had two packed New Year’s Eve shows with people celebrating the New Year on the East Coast and then the West. Just if you go out, please have a designated driver or use Uber if you will celebrate with a drink.

Now, what will be on my playlist tomorrow night? Here is my “Safe and Conservative” New Year’s Eve musical selection.

Can Daredevil Ethically Accept Iron Man’s Gift of Sight?

By

Josh Gilliland

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December 30, 2014

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Tony Stark in Superior Iron Man #3 took a page from the Beyonder’s Secret Wars II playbook and tried buying Matt Murdock by giving Murdock sight. Just as the Beyonder learned, Matt Murdock is too ethical of a lawyer to be bought off with his vision. In this case, justice literally was blind.

Tony Stark claimed he gave Murdock a tailored strain of Extremis as a “gift.” However, Murdock’s vision was only temporary and would require “constant boosters” for Murdock to retain his sight. Would such a “gift” be proper to an attorney? Alternatively, could Stark give Murdock his sight back as a retainer agreement?

See No Evil, Hear No Evil, Speak No Evil

California attorneys have a duty to “support the Constitution and laws of the United States and [California]” and not “to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.” Cal Bus & Prof Code § 6068(a) and (g).

Stated otherwise, lawyers must not only follow the law, but they cannot take a case to help their clients break the law.

The Gift of Sight

Matt Murdock would be unable to represent anyone with an adverse interest against Tony Stark if Murdock accepted “Extremis-Vision” as a gift. Additionally, it is difficult to not find Extremis to be a controlled substance or a form of medical treatment that should be regulated by the FDA (or prescribed by a licensed doctor). At best, Stark would be practicing medicine without a license, and at worse, would be a new form of drug dealer addicting San Francisco.

If Matt Murdock were accepting regular boosters from Tony Stark to retain his vision, this would make representing someone who wanted to sue Stark over Extremis near impossible. This would create a conflict between any prospective client and Murdock because of his dependence on Stark.

Lawyers cannot represent a client, without written consent, where the lawyer has a personal relationship with a party or witness (Cal. Rules of Prof’l Conduct, Rule 3-310(B)(1)); or where the lawyer has business, financial, professional or personal relationship with a person that would be “affected substantially by resolution of the matter” (Cal. Rules of Prof’l Conduct, Rule 3-310(B)(3); or the lawyer has a personal interest in the subject matter of the representation (Cal. Rules of Prof’l Conduct, Rule 3-310(B)(4)).

If Murdock were dependent on Tony Stark for his vision, there is really no denying that Murdock would have a personal interest in all potential litigation against Tony Stark. As such, Murdock would be in an ethically challenged position to accept Stark’s “gift” and represent anyone adverse to Stark.

Moreover, if Extremis is a controlled substance or unlicensed medical treatment, Murdock arguably being a party to Stark’s criminal venture would be considered an act “involving moral turpitude, dishonesty or corruption,” that could be grounds for disbarment, if such actions were a felony or misdemeanor. Cal Bus & Prof Code § 6106.

The Unholy Retainer

Lawyers cannot be retained to help commit crimes. No evil corporation can ask their general counsel on how to avoid murder chargers for willfully poisoning donuts or knowingly selling exploding clothes. Attorneys have the duty to uphold the US Constitution and laws of their states. They will not help people commit crimes.

Tony Stark could not argue his “It’s not hard to be God, because I have been playing human” speech to Matt Murdock was protected by the attorney-client privilege for three big reasons.

First, while Stark might argue giving Murdock his vision was a retainer agreement for Murdock’s legal opinion, Murdock did not accept representation. A retainer agreement is when a client pays a lawyer a sum of money to secure representation. Banning Ranch Conservancy v Superior Ct., 193 Cal App 4th 903, 916-917, 123 Cal Rptr 3d 348, 357-358 [2011].

While restoring someone’s sight would be a very non-traditional retainer, there is nothing directly on point saying it would be valid or impermissible as an alternative fee.

Tony Stark’s discussion with Matt Murdock did not at any point actually request legal advice. As such, even if Stark claimed he was a prospective client asking for Murdock’s legal assistance, Stark did not actually pose a legal question to Murdock. As no legal advice was sought, there were no attorney-client communications.

Finally, even if Stark did pose a legal question to Murdock, it would not be protected under the crime-fraud exception to the attorney-client privilege. Cal Evid Code § 956.

The entire point of the discussion was Stark stating he was above humanity. Given the fact Stark effectively was offering Murdock “hush-money” to join Stark’s venture in addicting people to Extremis, the content of these discussions could be disclosed to law enforcement that Stark was a threat to others or arguably taken into custody on a 5150 hold for psychological evaluation.

Christmas Wishes for 2014

By

Josh Gilliland

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December 23, 2014

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What geek wishes do Jess and I have on our Christmas lists? Check out our video or podcast on everything from North Korea, to responding to data breaches, to Agent Carter, multiple TV shows and movies that start with the letter “A,” and our course Star Wars The Force Awakens.

What is Christmas without A Christmas Carol? I decided to read out loud from the Dickens classic. Rehearsing would have been a grand idea.

Can Daddy Sue Santa Claus for Kissing Mommy?

By

Josh Gilliland

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December 19, 2014

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I saw Mommy Kissing Santa Claus. Under the mistletoe. She even tickled Santa under his beard.

Christmas Time is for the children. The idea of a child walking in on their mother kissing Santa Claus has to be traumatic. Was Santa Claus bringing the child gifts as a way to buy their love while seducing their mother? What is Santa’s evil purpose for kissing the child’s mother? Who is Santa to judge who is on the Naughty List, based on his own conduct?

The only way the situation could be worse for the child would be further learning their parents and Santa have an odd polygamous relationship.

What of the father? Could Daddy sue Santa Claus for being the paramour threatening his marriage to Mommy?

Daddy could sue Santa Claus if the family lived in Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, or Utah, because those are the only six states left that allow the common law cause of action for alienation of affection. Fitch v Valentine, 959 So 2d 1012, 1036 [Miss 2007].

The other forty-four states have eliminated the tort of alienation of affection as a matter of public policy, either by statute or court opinion. (See, California Civil Code § 43.5, which states no cause of action arises for alienation of affection).

According to the Supreme Court of Mississippi:

Alienation of affections is the only available avenue to provide redress for a spouse who has suffered loss and injury to his or her marital relationship against the third party who, through persuasion, enticement, or inducement, cause or contributed to the abandonment of the marriage and/or the loss of affections by active interference.

Brent v. Mathis, 2014 Miss. LEXIS 557, 6-7 (Miss. Nov. 6, 2014).

Daddy could argue that Santa Claus bringing Mommy gifts, with discovery possibly revealing that Santa himself planted the mistletoe, could have been the “persuasion, enticement, or inducement,” that caused Mommy either to abandon her marriage to Daddy or Daddy’s loss of her affections by Santa’s active interference in their marriage.

Now, what about the poor child who walked in on their mother kissing Santa Claus? Under the November 2014 holding from the Mississippi Supreme Court:

“…[C]hildren do not have standing to sue for alienation of affection, because the children do not have a “colorable interest” in the alienation of one parent’s affections toward the other, nor do they suffer an ‘adverse effect’ from a defendant who is the cause of that alienation of marital affections.”

Brent, at *15-16.

Stated otherwise, the tort of alienation of affection exists to protect the “marital relationship, not the familial relationship as a whole.” Brent, at *8.

The legal options for the victim father could only be sought in a half of dozen states, while the child is completely without legal recourse for Santa’s seduction of Mommy to destroy their family. The best solution if marriage counseling fails, is for Daddy to divorce Mommy, secure custody of the child, and write a tell all book on how he was on the losing side of a love triangle with Santa called The Real Naughty List: Santa Claus’ War on Nice Guys.

Can Rudolph the Reindeer Sue Santa Claus for Nasal Discrimination?

By

Josh Gilliland

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December 14, 2014

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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?

Could 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.”

Moreover, 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?

By

Josh Gilliland

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December 12, 2014

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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.

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

By

Josh Gilliland

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December 8, 2014

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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.

Here 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.

Did 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.