Friday, November 14, 2008
The Supreme Court has granted cert in the matter of Citizens United v. Federal Election Commission, that "Hillary: The Movie" case, according to Scotus Blog and the Washington Post. The issue? Whether the film was designed to influence audiences to vote against the New York Senator, and therefore was subject to the FEC's rules. Citizens United receives some funding from corporations.
Publisher Liable For Plaintiff's Reliance On Ad That Represented Defendant Physician As Board-Certified
The Oregon Supreme Court has affirmed the lower court decision in the case of Knepper v. Brown, in which the plaintiffs sued a physician and an advertiser for injuries arising out of a failed medical procedure.
We begin our analysis by noting that this is a fraud case, i.e., a case involving an intentional tort. Our past cases have referred to proximate cause (or "proximate injury") as one of nine elements of a claim for tortious fraud. Although our more recent cases have employed a more abbreviated list of the elements of fraud, see, e.g., Riley Hill General Contractors v. Tandy Corp., 303 Or 390, 405, 737 P2d 595 (1987) (listing five elements), we agree that some notion of proximate cause is subsumed under the last element in that abbreviated list: "Damage to the plaintiff, resulting from [the plaintiff's] reliance [on defendant's representation]." Id. (emphasis added).
The question, then, is whether that notion of proximate cause or proximate injury is equivalent to the concept of "reasonable foreseeability," as we have used that phrase in cases like Fazzolari and Buchler. We are persuaded that it is.
Courts have noted that, when an intentional tort is involved, the range of legal causation can be quite broad: "'For an intended injury, the law is astute to discover even very remote causation.'" W. Page Keeton, Prosser and Keeton on Torts § 43, 293 n 6 (5th ed 1984) (quoting Derosier v. New England Telephone & Telegraph Co., 81 NH 451, 130 A 145 (1925)); see also American Fed. Teachers v. Oregon Taxpayers United, 345 Or 1, 17, 189 P3d 9 (2008) (in action under Oregon Racketeer and Corrupt Organizations Act, person who was intended target of illegal acts was injured "by reason of" those acts). Still, the historical references to "proximate injury" as an element of fraud indicates that courts also recognize that there is some limitation on the consequences for which a perpetrator of an intentional fraud may be held liable. A requirement that any claimed damages be foreseeable appropriately recognizes that the scope of liability for an intentional, fraudulent misrepresentation depends on the nature of the misrepresentation, the audience to whom the misrepresentation was directed, and the nature of the action or forbearance, intended or negligent, that the misrepresentation justifiably induced. Restatement (Second) of Torts § 548A (1977) incorporates that requirement:
"A fraudulent misrepresentation is a legal cause of a pecuniary loss resulting from action or inaction in reliance upon it if, but only if, the loss might reasonably be expected to result from the reliance."
(Emphasis added.) Comments to that Restatement section make the same point even more clearly:
"a. * * * In general, the misrepresentation is a legal cause only of those pecuniary losses that are within the foreseeable risk of harm that it creates. There is an analogy here to the rules as to legal causation of physical harm resulting from negligent conduct, stated in §§ 435 to 461.
"b. Pecuniary losses that could not reasonably be expected to result from the misrepresentation are, in general, not legally caused by it and are beyond the scope of the maker's liability. This means that the matter misrepresented must be considered in light of its tendency to cause those losses and the likelihood that they will follow. * * *
"In determining what is foreseeable as a result of the misrepresentation, the possibility of intervening events is not to be excluded altogether."
Id., comments a, b. Similarly, in Prosser and Keeton on Torts § 110 at 767, the author states:
"Furthermore, the consequential or special damages must have been proximately caused by the fraudulent conduct. In general and with only a few exceptions, the courts have restricted recovery to those losses which might be expected to follow from the fraud and from events that are reasonably foreseeable."
When we apply that foreseeability principle in the present case, it is clear that plaintiffs' damages reasonably might be expected to result from their reliance on Dex's misrepresentation. An advertisement that misrepresents a medical provider's qualifications self-evidently creates a risk that a consumer who seeks treatment from the provider in reliance on that misrepresentation will suffer an adverse result that would not have occurred if the provider's qualifications had been as represented. The testimony at trial showed that Knepper's injuries fell precisely within the foreseeable risk of harm that the misrepresentation created: Knepper testified that she wanted to have a board-certified plastic surgeon perform the liposuction, and a juror could infer from that testimony that Knepper believed that she was more likely to suffer an adverse result from being treated by a medical provider who was not board certified in plastic surgery. Further, plaintiffs' medical expert testified that he had never seen adverse results like the ones that Knepper experienced from a medical provider who was certified in plastic surgery. A juror could infer from that testimony that plaintiffs' injuries probably would not have occurred if Knepper had received treatment from a board-certified plastic surgeon (as she believed Brown to be). Stated in terms of the applicable legal standard, Dex had reason to expect that Knepper would act in justifiable reliance on Dex's misrepresentation by retaining Brown for the surgery, and that an adverse result was more likely if Brown, rather than a board-certified plastic surgeon, performed liposuction surgery. There is no additional requirement that plaintiffs also prove that Dex in fact did foresee that Knepper would suffer the particular adverse results of the medical services that Brown performed. It follows that plaintiffs' injuries were foreseeable as a result of Dex's intentional misrepresentation, and that is all that plaintiffs had to show. Dex must respond in damages accordingly.
We turn to Dex's next argument -- that the trial court erred in declining to direct a verdict on plaintiffs' fraud and conspiracy claims on the ground that plaintiffs failed to submit any evidence that Dex had "acted maliciously, with the intention to harm another, or in reckless disregard of the consequences." Dex contends that, to prevent an unconstitutional chilling effect on the free flow of information, Oregon courts must recognize that publishers require some additional protection from claims arising out of false or misleading advertisements, and cannot be held liable for the publication of such advertisements unless the publication is done maliciously or with intent to harm another or in reckless disregard of that possibility.
We think that Dex's argument demands too much. This is not a case of the unwitting publication of an advertisement that turns out to be false. It is, instead, a case in which the publisher took a knowing and active part in the perpetration of the fraud. Punishing fraud has no impermissible "chilling" effect on the right to express views on "any subject whatever." See Article I, section 8, of the Oregon Constitution (protecting such a right of expression). Fraud is excepted from that constitutional protection. See State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982) (explaining principle). What Dex argues would extend constitutional protection to fraud, and we reject that argument.
As we have explained, plaintiffs' evidence permitted the jury to infer that the fraudulent misrepresentation by Dex and Brown was designed to mislead potential patients into believing that Brown was a board-certified plastic surgeon, thereby luring them into accepting surgery by Brown that he was not specially trained to perform. The misrepresentation created the risk that those who relied on it would be harmed as a particular result of Brown's lack of expertise as a plastic surgeon, and that is what happened to plaintiffs. The trial judge did not err in refusing to grant Dex's motions for directed verdict and judgment notwithstanding the jury's verdict.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
Read the entire opinion here. The case is Knepper v. Brown, CC 9903-02495; CA A128550; SC S055155 (2008).
Matt Ivester, founder of JuicyCampus.com, the controversial Internet gossip site, recently spent some time on a real campus--Georgetown. Students who heard him speak had some comments about his site. Here's a link to their reactions, via Wired Campus. The New Jersey A.G.'s office launched an investigation of the site earlier this year. Here's more about the site from a Newsweek December 2007 article and in a March 2008 article from the Washington Post.
Mega Brands has won yet another victory in its fight with giant rival Lego, this time in the European Court of First Instance, which agrees that the Danish toy maker cannot trademark its signature "bricks". Both Mega Brands and Lego market a system of tiny interlocking bricks to make structures, a toy very popular with children (and adults). Mega Brands calls its little bricks Mega Bloks. Lego's patent on its Lego blocks expired in the 1980s.
Recent years have witnessed a considerable growth in legislation and litigation concerning religion. This article examines the implications of the latest change, namely the abolition of the offences of blasphemy and blasphemous libel by section 79 of the Criminal Justice and Immigration Act 2008. First, the article provides the context by examining what has been lost, analysing the ambit of the offence, focussing on litigation in the twentieth century both in domestic courts and at the European Court of Human Rights. Second, the article seeks to explore why blasphemy has been abolished now, scrutinizing five developments that led to the abolition. The article concludes by examining the extent to which the criminal law continues to protect religious beliefs and believers, contending that while the body of the blasphemy laws is dead, its soul lives on in a plethora of other criminal laws and, more problematically, in non-legal means of control.
Download the complete article from SSRN here (priced).
Thursday, November 13, 2008
More Philadelphia TV anchors are fighting it out in court. Two of WCAU-TV's former on-air talent, Vince DeMentri and Lori Delgado, have filed lawsuits, Mr. DeMentri over his firing from the station after he and Ms. Delgado had an affair (she got to stay, he didn't), and she over his alleged stalking of her. Ms. Delgado has also since left WCAU-TV. All of this after Philly has watched the Alycia Lane/Larry Mendte implosion.
Wednesday, November 12, 2008
Harvard Law School Professor Charles Nesson is going after the Recording Industry Association of America, claiming that its suit against his client, Joel Tenenbaum, under the The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, is unconstitutional. Read more here in an article in the Harvard Crimson and here in Wired, the blog of the Chronicle of Higher Education.
In most U.S. jurisdictions, court proceedings are rarely recorded accurately or in their entirety because a small percentage of courts regularly create a video record of court proceedings. Of those courts that do, most do not preserve the video record but simply turn it into a transcript. There is little room-if any - to argue that a written transcript of court proceedings could be more accurate than a video record. While a written transcript is certainly useful and may make certain things easier for those involved with the case, the written transcript alone cannot match the accuracy of a complete video record. The video record simply contains more information and is inherently more accurate than human transcription. Analyses in the field of linguistics demonstrate the importance of a complete and entirely accurate record. Studies in linguistics and psychology have shown that slight variations in verbal and nonverbal language - which includes paralanguage and kinesics, can convey additional information, different meanings and have significant impacts on the communicative event that may be crucial to the outcome of a trial. These studies indicate that nonverbal information comprises sixty to ninety-three percent of the communicative event. Without a video record, a complete and entirely accurate record is difficult to obtain. This Comment discusses why slightly incomplete and inaccurate written records should be prevented in order to prevent any significant impacts on the outcome of cases. This Comment calls for the implementation of an original video record and, if necessary, a secondary, supplemental written record of trial court proceedings that are preserved for review by the trial court, the fact-finder(s), and appellate courts if such review becomes necessary.
Download the article from SSRN here.
The judge in charge of the Romero case has issued a gag order, just as the police chief was set to hold a press conference to give the media another update on this very high profile situation. The eight-year-old detained is accused of killing his father, Vincent Romero, and another man. His attorney has complained that the boy was questioned by law enforcement without a lawyer present. The gag order covers law enforcement and attorneys involved. The police chief has already spoken to the media several times, as has the defense attorney, and reporters and others have speculated about the possibility of child abuse as a motive. Read more here.
Soccer star Ashley Cole's lawsuit against the Daily Mirror and the Sunday Mirror heads to court. He is suing on a "no win, no fee" basis. The newspapers printed several stories claiming that he had relationships (sex) with several women; he says these articles amounted to invasion of privacy. At a preliminary hearing, attorneys for the papers told the judge that since Mr. Cole and his wife have released a great deal of information about their lives to the public, they have no reasonable expectation of privacy as to these stories. Mr. Cole has also filed another action relating to articles published in the Sun and the Sun online earlier this year.
More evidence that British broadcasters are starting to get tough with their on air hosts in the wake of the Brand/Ross fallout: UTV has suspended "shock-jock" host Jon Gaunt for calling a London councilman an "ignorant pig" during an on-air debate on the show TalkSport about exposing children to foster parents who smoke. Mr. Gaunt also referred to Councillor Michael Stark a "Nazi." Mr. Gaunt apologized during the broadcast, trying to explain that he had meant to say "health Nazi." UTV is investigating; it has received numerous complaints from listeners.
Mr. Gaunt also addressed the issues he had discussed with Mr. Stark on air in a Sun column, this time referring to "health and safety Nazis." But he also continued with his "Nazi" theme by referring to the Social Services department as the "SS". Read more here in a Guardian story and here in an article in the Independent.
Tuesday, November 11, 2008
Speaking of privacy, the Sun and the News of the World have agreed to pay actress Sienna Miller thirty five thousand pounds and apologize for publishing photographs and articles about her and actor Balthazar Getty that she claimed invaded her privacy. The settlement came on the day that Daily Mail editor Paul Dacre decried the privacy rulings of Mr. Justice David Eady. Ms. Miller is also suing the Big Pictures Photographic Agency for harassment and invasion of privacy.
A number of attorneys have criticized Daily Mail editor in chief Paul Dacre's comments on Mr. Justice Eady's privacy rulings, including Anthony Lester (Lord Lester of Herne Hill), a Member of Parliament, and a well known human rights lawyer, who said that Mr. Dacre was "completely wrong" to criticize the judge personally for his rulings, adding that the opinions were justified considering the jurisprudence of the European Court of Human Rights. Geoffrey Robertson, a well known human rights lawyer in Britain, said that journalists do not understand the Human Rights Act, passed in 1998, and consequently fail to understand cases decided under it. Many lawyers who commented on Mr. Dacre's speech noted that privacy rights and free expression must be balanced under Britain's legal doctrine. Lord Falconer, a former member of the cabinet, also spoke up in defense of the judge's rulings when he appeared on the BBC Radio 4 "Today" program. Read more here.
In response to an extended debate over media regulation, Air Chief Marshal Sir Jock Stirrup told the Society of Editors conference that he supports press self-regulation rather than regulation by the government, and he pointed to the recent voluntary media blackout over Prince Harry's service in Afghanistan, which was breached not by British media but by German and Australian press, as a successful example of such self-regulation. Air Marshal Stirrup also told the audience that he thought reporting on such issues was balanced, but that the balance was "crucial" and that the press needs to provide "accurate reporting" or the job of the military becomes infinitely more difficult. The Independent has reported that certain Members of Parliament are considering introducing measures that would limit the ability of media to report on national security. Read more here in a Guardian story.
Do the Obama girls have their father's "rock star" potential? Billy Ray Cyrus has indicated they've certainly got an open invitation to appear on an episode of his daughter's Hannah Montana series (warning: link is highly musical). Now it's presumbly up to the new Presidential couple (and maybe their security detail) to decide if and when we'll see Malia and Sasha on the small screen. I'm sure they'd love to be on the show, and the camera loves them. But Mom and Dad know best. Obviously this isn't media law, it's parents' law.
Each year, the American Bar Association Forum on Communications Law awards two or three full-ride scholarships to law students to the Forum Annual Conference. Hotel lodging, airfare and ground transportation, and registration fees (including meals) for both the Media Advocacy Workshop and the Forum conference are all included in the scholarship. Of the three possible scholarships, one scholarship is for an international student (a student who is a permanent resident of a country other than the U.S.), one scholarship is for a minority student, and one is open to the general pool of applicants. The scholarships are intended for those who would not otherwise be able to attend the conference.
The Forum Annual Conference will be held on February 5-7, 2009 at the Westin Kierland Resort & Spa, in Scottsdale, Arizona. To apply for a scholarship in 2009, please click here for additional information on the conference.
To apply for a scholarship, please submit the following:
- A resume indicating your expected graduation date, any pertinent course work, academic scholarship, extracurricular activities, and pertinent employment or volunteer experience.
- A cover letter explaining the following: your interest in media law, your interest in attending the conference, any previous employment or volunteer experience in free speech and communications law; and career goals. Please also indicate whether you are applying for the international, minority, or general scholarship.
- A letter of recommendation from an academic reference.
Please submit all information to David Greene by November 15, 2008. The subject of your email should read "Communications Law Forum scholarships." Scholarship decisions will be made by mid-December. Please note that preference may be given to upperclass law students.
Monday, November 10, 2008
The jury in the Lori Drew trial may not hear evidence about the suicide of Megan Meier. Judge George Wu said he thought evidence concerning the suicide was prejudicial and he is leaning toward excluding it. Ms. Drew is on trial for violating the Computer Fraud and Abuse Act by allegedly creating a fake MySpace page and sending Megan messages in the name of an imaginary teenaged boy. The thirteen-year-old hanged herself in 2006 after the "boy" broke off their budding relationship. Read more here.
Prosecutors would like to gag some members of law enforcement, lawyers, and members of the family involved in the Casey Anthony case from speaking to the press. Ms. Anthony is charged in the death of her young daughter Caylee, who hasn't been seen in several months. This morning, searchers are out again searching for the three-year-old. Read more here.