Military Services Suspends Tuition Assistance

Due to Sequestration, the military services are suspending tuition assistance to service members. According to the U.S. General Accounting Office, costs have risen in recent years and it may be that reforms are necessary. But I do know that when  you talk to a military recruiter, one of the hot buttons they push again and again to get kids to sign up is that the military will help you get through college. My wife and I both benefited from aid provided by the military when we were in the service and later college. In fact, when I entered the service in the early '80s, I was on academic probation at the junior college I was then attending and had no intention of going on to college. The reason I ultimately went to college was due to my sergeants pushing me to continue my education, the base academic office, the online, onbase, offbase, and CLEP tests that I took. Eventually, I used my VEAP to get me through college and my wife used her "New GI Bill. It was the same story with my dad. He came from what would be known as an economically challenged background and when he got out of the Navy in the 60s, he used the GI bill to get his degree and go to work as an Electrical Engineer.

Arguing that cutting tuition assistance is bad doesn't really address my complaint about this decision. It plays into the game that's going on when the White House cuts tours and the DOD cuts tuition assistance.  Yes money is tight and as a matter of law, government agencies across the board have to make cuts. But does anyone truly believe that White House tours are over for good or that tuition assistance for military members won't be restored? No! These are temporary cuts designed to make a political point.

Instead, we need leadership from those we've put in charge of the Department of Defense, the White House, and the other governmental agencies. The Department of Defense should take another look at programs such as

• The Global Hawk Block 30 drone program;
• The C-27J Spartan cargo aircraft;
• Upgrades to the M1 Abrams tank;
• Air National Guard funding;
• A proposed East Coast missile defense system.

These are all big ticket programs that the military has said it doesn't need or want at least in the amounts pushed by Congress. While I'm not saying these are the right programs to cut or that they even can be cut, I am saying that when you cut programs that we know will be restored, e.g., tuition assistance for the military or White House tours, we know that these are temporary cuts done for political purposes or because a particular program represents low hanging fruit that can be cut with a pen stroke and restored the same way later.

Instead, we need our military leadership (and the leadership of other agencies) to step up and examine programs like the Seven Big Boondoggles identified in Business Insider and then make real cuts that will have a real and true long-term impact on the US budget.

In October 2012, Donald Trump offered President Obama $5 million if the president released his college transcripts to the public.

My daughter plays a game at her school called Pinto. She'd kill me if I told you the rules. Part the game is the other person has to figure out the rules. But it involves feeding back a previous person's statement, using their language, and making it a bit more absurd.

In February 2013, Bill Maher pintoed Donald Trump when he offered to pay $5 million to the charity of Trump's choice if the man could prove that his father wasn't an orangutan. I don't have a link to the video of that offer. But I do have a clip with Bill Maher on Conan O'Brien's show where he talks about Trumps subsequent lawsuit against Bill Maher to enforce this "offer." 

Apparently, Donald Trump took Maher's statement as a serious, legally binding offer. He then proved that he isn't descended from an orangutan and wants Maher to pay up. When Maher didn't immediately hop to and write a check, Trump sued for breach of contract in the Superior Court for the County of Los Angeles. In the clip, Conan O'Brien characterizes the orangutan offer as a joke. Maher confirms it was a joke and points out the wrongness of using courts for frivolous, punitive litigation. 

In the context of this litigation, Maher raises a reasonable point. If Trump knew this was a joke, then his lawsuit is not only frivolous, but clearly brought for an abusive purpose Some have already questioned whether Trump's lawsuit qualifies as a Strategic Lawsuit Against Public Participation (SLAPP). SLAPP lawsuits are a kind of lawsuit generally intended to shut up someone, not through the merit of a particular claim, but by making the SLAPP target spend time and dollars to fight against a frivolous lawsuit until the target is worn out and wants to crawl off and hide somewhere.

Mind you, the problem of suing someone like Bill Maher is (1) he can afford to litigate until hell freezes over; (2) far from wearing him out, unlike the fear and desperation a lot of people feel when sued, he's only going to see his ratings go up; and (3) Trump will most likely end up paying Maher's attorney fees.

Ultimately, Trump is going to get publicity, which he appears to enjoy. Maher will get publicity. He's an entertainer and while he may not need the publicity, it won't hurt him. What about the public though? Courts in Los Angeles County are seriously impacted (type Los Angeles Courts closing in Google; you'll get a sense of how bad it is).

People are now spending hours on buses get get across town so they can defend against their landlord throwing them out. Guys trying to collect on bad debts for their business find themselves waiting two years to resolve cases that used to be concluded in one. Courtrooms are dark, trials are trailing. Money is short everywhere. The last thing California needs is more frivolous litigation.

And the knee-jerk reaction to this lawsuit is that it is frivolous (really, really, terribly frivolous). But let's look closer. After all, Donald Trump didn't get hacks to represent him. His counsel is the well-respected Cooley law firm and three of its star attorneys:

Scott Balber is a New York partner in Cooley's Litigation Department and the head of its Financial Services Litigation group. He's an experienced trial lawyer with dozens of trials under his belt. Jonathan Cross is special counsel with the firm. Also a New York lawyer, he focuses on complex commercial litigation and arbitration. Finally, Michael Rhodes is a California attorney and litigation partner with Cooley who represents heavy hitter technology and Internet companies such as eBay, Nintendo, Facebook, Google, NVIDIA, HortonWorks, Wikimedia Foundation, Mutual Pharmaceuticals, Shoe Dazzle and LinkedIn. None of these attorneys are lightweights. So if experienced, well-regarded blue chip attorneys like this are putting their reputations behind this lawsuit, there must be a chance that Trump will prevail.

Right? It's not like these gentlemen just signed on for the money regardless of how frivolous the claim might appear. This is because under the ethical rules of the road for attorneys, there are standards that lawyers must adhere to before filing a lawsuit. In New York, attorneys can't file litigation merely to harass or maliciously injure another. In other words, this lawsuit can't be just about screwing with Bill Maher. Before a lawyers can sign off on a lawsuit, they have to make an affirmative determination that the action is not frivolous.

These guys must have listened to Donald Trump, investigated the facts of the case, and made their own independent determinations that this is a legitimate lawsuit with a chance of Trump prevailing. They know the law that you can't enforce the terms of a joke. They're familiar with SLAPP laws.

Yet, they decided to go forward with this case. So I'm assuming that Trump looked them straight in the eye and told them, "Oh yeah, I totally believed that Bill Maher was absolutely serious. It was a legitimate question, I could realistically have been a hybrid human-orangutan and people wanted to know if this was true or not. Now, having disproved this legitimate question by flashing my birth certificate, he's got to pay up."

And these three lawyers then nodded and said, "Yeah, I could see a reasonable person thinking this is a legitimate offer and we have a shot in hell of prevailing in a lawsuit for breach of contract, let's file this puppy." Now, they might be wrong. But in general, lawyers get to rely on whatever information is provided to them by their client. Only if they later find out that Donald Trump wasn't truthful about a particular fact do they have to back off. See Daniels v. Robbins, 182 Cal. App. 4th 204, 223 (2010).

So I assume that Bill Maher's defense will be to point out that his comments were a joke and that because a contract requires a meeting of the minds, no contract was formed. His lawyers might point out the classic case that illustrates this point is called Keller v. Holderman and involves two people joking about selling a watch. It's black letter law and I'm sure Trump's lawyers knew this case before they filed their lawsuit.

A better example was brought to my attention in a tweet by Max Kennerly:

Review Leonard v Pepsico, 210 F.3d 88 (2d Cir. 2000) RT @businessinsider Donald Trump Sues Bill Maher After Proving He Isn't An Orangutan
— Max Kennerly (@MaxKennerly) February 6, 2013

It's a case called Leonard v. Pepsico, where Judge Kimba Wood refused to make Pepsi give someone $23 million Harrier Fight Jet in return for 700,000 Pepsi Points. Judge Wood found:

The advertisement featuring the jet did not constitute an offer under the Restatement (Second) of Contracts. 

Even if the advertisement had been an offer, no reasonable person could have believed that the company seriously intended to convey a jet worth roughly $23 million for $700,000, i.e., that it was mere puffery. 

The value of the alleged contract meant that it fell under the provisions of the statute of frauds, but the statute's requirement for written agreement between the parties was not fulfilled, so a contract had not been formed.

In other words, if no reasonable person would believe Bill Maher was serious, then Donald Trump loses. This case won't go to a jury. Bill Maher won't have to wade through depositions. Maher's attorneys will file a special motion to strike the lawsuit. They'll include a declaration from Bill Maher saying it was a joke. They may include a DVD with copies of the relevant clips

The judge assigned to the case will then rule that this lawsuit is classic free speech concerning a public figure. The fact that this is a breach of contract lawsuit and not a libel suit will be ruled irrelevant. Navellier v. Sletten, 29 Cal.4th 82 (2002). It will dismiss the lawsuit, ruling as a matter of law that no reasonable person could find this to be a contract. The Court will then order Donald Trump to pay Maher's attorney's fees.

The only rational tactic for Trump and his attorneys at this point is to dismiss the lawsuit on Monday before Maher has time to file his anti-SLAPP motion. If this happens, we'll know  two things. Trump and his lawyers should have known this was a frivolous action when they filed it. And second, Trump's lawyers are in better shape, because they beat Maher's lawyers to the courthouse (once Maher files his anti-SLAPP motion, Trump must pay Maher's attorney fees regardless of any future dismissal).

Cable Theft Litigation May be Coming to Your Neighborhood

Lawyers and companies look for innovative ways to create revenue streams. This may involve suing a lot of people for big damages and then settling for relatively small amounts (still large enough to hurt). The most appropriate claims for this kind of sue ‘em, scare ‘em, settle ‘em and move on style of lawsuit generally involve statutory damages and attorney fee provisions.   The mass RIAA lawsuits against individuals downloading music files was the first wave of this phenomenon that I became aware of.

The copyright infringement statute at issue provides for statutory damages ranging from $750 to $150,000 per work. Title 17 USC §504. An important point about statutory damages, you generally don’t need to prove actual damages. If you can prove infringement, you can go for actual damages, but generally, statutory damages are higher and easier to prove.

The RIAA music downloading lawsuits weren’t so much about generating a revenue stream for the music industry. Rather, they were aimed at scaring the bejeesus out of downloaders and uploaders. But they got smart people thinking and you started to see mass lawsuits against downloaders of movies like the hurt locker. Then you saw lawsuits against downloaders of porn (shaming and scaring people into settlements) and an outfit called Righthaven that went after bloggers and others posting scraps from copyrighted newspapers.

Lately, I've seen another type of lawsuit. It involves alleged cable piracy. In California, the relevant statute is Code of Civil Procedure section 593d:

Any person who violates this section shall be liable in a civil action to the multichannel video or information services provider for the greater of the following amounts:  (1) Five thousand dollars ($5,000).  (2) Three times the amount of actual damages, if any, sustained by the plaintiff plus reasonable attorney's fees.  A defendant who prevails in the action shall be awarded his or her reasonable attorney's fees.

You'll note, the statute provides for $5,000 in statutory penalties and reasonable attorneys fees. Usually, the attorney will attempt to stack multiple violations and seek $5,000 per violation. Before he files the complaint, you'll probably receive a threatening letter, which contends you've been caught engaging in cable piracy and it'll contend you are liable for $10, 20, or $30 plus thousand dollars unless you contact them right away and settle. If you don't settle, you may end up facing an actual lawsuit. Often, you'll see a cluster of these lawsuits in a community. They'll sue maids, cooks, grandmothers and try and force them into agreeing to a payment stream of $100 a month over period of five or so years. Or they might take a lump sum of $2,500 or whatever they can get.

You usually won't deal with the actual attorney in these early stages, but some other individual who'll send you copies of the "inspection reports" that prove you pirated their client's cable television. You may live in an apartment building or condo community with a central cable box. The industry files hundreds of these lawsuits throughout the state. Most of them end in default judgments being taken against the defendants.

California's cable theft statute, Section 593d(a)(1), provides the state law rule governing possession and use of unauthorized and unlawfully modified cable television signal decoders as follows:

Any person who, for the purpose of intercepting, receiving, or using any program or other service carried by a multichannel video or information services provider that the person is not authorized by that provider to receive or use, commits any of the following acts is guilty of a public offense: 

(1) Knowingly and willfully makes or maintains an unauthorized connection or connections, whether physically, electrically, electronically, or inductively, to any cable, wire, or other component of a multichannel video or information services provider's system or to a cable, wire or other media, or receiver that is attached to a multichannel video or information services provider's system.

 The California statute is modeled on the relevant federal statutes. In most cases, there won't be a lot of state authority on whatever statute is relevant to your state. But you can turn to federal authority to interpret these statutes. In any event, to establish their claims against each defendant (usually, the cable company will sue everyone in a particular household), the company must prove three elements for its cause of action under Section 593d: (1) offending conduct (2) performed "knowingly and willfully," (3) which was done for a specified unlawful purpose.

In the case of California, the applicable statute of limitations for violations of Section 593d is one year. Code Civ. Proc. § 340(a); DirecTV, Inc. v. Webb, 545 F.3d 837 (9th Cir. Cal. 2008) [one year statute of limitations for civil violations of California’s Piracy Act]; Menefee v. Ostawari, 228 Cal. App. 3d 239, 243 (1991) [Claims based upon statutes which provide for mandatory recovery of damages additional to actual losses incurred, such as treble damages, are considered penal in nature, and thus  are governed by the one-year limitations period under Section 340]. The attorney suing you will likely actually sue for three years or so and argue that the longer statute of limitations is applicable.

Another issue that will arise both in state and federal litigation. The cable company will contend that it is entitled to statutory damages for each violation that it chooses to allege. You'll want to argue that this is wrong. For a state claim, you might point to a bankruptcy case in which the Court detailed why a party cannot obtain more than one award of statutory damages for multiple alleged violations of Section 593d. Comcast of L.A., Inc. v. Sandoval (In re Sandoval), 341 B.R. 282 (Bankr. C.D. Cal. 2006). In Comcast of L.A., Inc. v. Sandoval, the plaintiff sought $30,000 in damages against the defendant. Cf. Cmty. Tv Sys. v. Caruso, 284 F.3d 430 (2002) (construing 47 USC § 605 (the Federal statute on which California's Section 593d is modeled) and finding defendants liable for a single award of statutory damages attributable to the purchase and installation of a single descrambler device); Comcast of L.A., Inc. v. Sandoval (In re Sandoval), 341 B.R. 282 (2006) (construing Section 593d and finding plaintiff would only be entitled to a single $5,000 award of statutory damages).

If you didn't steal any cable and want to defend yourself, these kind of claims are defensible. It's going to depend on the particular facts and circumstances. You'll want an attorney. Courts aren't always familiar with these statutes and cable counsel is going to argue things that are flat out wrong. The other reason you'll want an attorney, there are some very powerful procedural devices that are available depending on the particular company and the specific facts of your case, which can result in an early dismissal or a nominal settlement.

One thing to keep in mind, the company may sue everyone in your household. But Section 593d requires that the defendant “knowingly and willfully” acted. The cable company has to prove as to each defendant that he or she “knowingly and willfully” made or maintained an unauthorized connection for the purpose of receiving unauthorized cable television. This is not a strict liability statute where a wife or husband, a child or babysitter, a guest or roommate is liable for a violation of this statute by virtue of another’s willful and knowing action. The cable company has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense as against each defendant. Evid. Code § 500; Sargent Fletcher, Inc. v. Able Corp., 110 Cal.App.4th 1658, 1668 (2003).

Because you can get your attorney fees if you win the case, you might be able to find an attorney who will take this sort of claim on pro bono. A good place to start is your local county level bar association. Of course the reverse is true, if you lose the case, you'll be liable for their fees. Sometimes, you can defeat three of the claims against a household and end up losing one claim. The nice thing is you can argue for your attorney fees as to those defendants who prevailed. It may offset the claim where you lose.

Good luck if you do get one of these collection letters. If you're guilty of stealing cable, try to settle early for a smaller amount. If you're innocent, then contact an attorney and marshal your evidence.

Food Labeling the New Tobacco Litigation?

Friends and former colleagues have done a lot of asbestos defense over the years. Most have moved on. Food labeling may be the next target for tobacco and asbestos style big bucks litigation. At least a well-written article by Vanessa Blum of The Recorder titled Welcome to Food Court hints in that direction.

As one San Jose attorney, Pierce Gore, put it:

Why shouldn't consumers be entitled to educate themselves and choose for themselves? These companies are lying on their labels. They've been doing it for years. They're unhappy they got caught.

If I were in the food business, I would be careful about how I label my food these days. If you call something natural, it might turn into a target for litigation if there is an argument it's man created, e.g., corn syrup or if you label an ingredient one name and an attorney or expert feels it is better labeled something else, you may find yourself mired in a sticky, expensive class-action lawsuit.

Caltrans and the First Amendment: Marine Veteran Steve LeBard and the Old Town Orcutt American Legion Post 534 Grapples with Caltran Policy in Trying to Erect a Veteran's Memorial

The Old Town Orcutt American Legion Post 534 seeks to erect a Gateway Monument and Veterans Memorial Flagpole on a 1,500 square foot patch of land within the CalTrans right of way. It would include five black pillars about eight feet tall, a sixty foot flag pole flying the United States flag, and the symbol of each branch of the military. It appears to have been a bear of a job getting the approvals and permits and a marine veteran named Steve LeBard has taken the lead in ramrodding the project through one bureaucratic obstacle after the next. But this veteran has run into a wall when it comes to CalTrans policies regarding the actual words that would appear on the monument. Steve Chawkins of the Los Angeles Times covered the story in an March 3, 2013, article entitled Caltrans policy stymies a proposed veterans monument.

As the facts appear in the press, according to LeBard, CalTrans won't permit the sixty-foot flagpole in the center of the memorial or certain words in the military seals such as United States, Army, or E Pluribus Unum. While CalTrans states that it hasn't made a final determination on the text of the monument and has said that the email discussing what would and wouldn't appear on the monument was taken out of context, it has also said that it is bound by Brown v. CalTrans, a 2003 Ninth Circuit United States Court of Appeals  decision. According to CalTans Spokesperson Jim Shivers,

The CalTrans right of way should not become a center of free speech. We have a very careful protocol as to where stop signs, traffic signals, cross walks, speed limit signs, other highway safety signs to allow for a proliferation of messages amidst those traffic safety signs, in our minds, would cause concern.

In Brown v. CalTrans, the Department of Transportation got hammered for taking down signs and banners hung over freeway overpasses, but leaving up American flags. The Court held that the agency couldn't pick and choose between what messages it would take down and leave up. The current situation isn't all that analogous. The Supreme Court has upheld the display of the flag and veteran's memorials time and time again. This isn't a case where a large white cross forms the dominant centerpiece of the monument or the Ten Commandments is prominently displayed. I see no legal impediment to CalTrans allowing this Veteran's memorial to be erected as intended, not with CalTran's absurd proposed modifications.

But CalTrans is still correct in its concern that allowing this monument at the CAlTrans right of way does open the potential door to other speech. Cf. United States v. Grace, 461 U.S. 171 (U.S. 1983) (reversing the dismissal of protester's action to enjoin enforcement of statutory prohibitions against the display of a flag, banner, or device on sidewalks outside the U.S. supreme court because the statute, by failing to sufficiently serve the public interests urged as its justification, was unconstitutional under the First Amendment).

If you have a monument to veterans, both CalTrans and the Veterans' organization will have to accept that subject to reasonable place, time, and manner restrictions, people with other views may want to make their opinions known. A war memorial may be the chosen site of an anti-war protest in the future. Where CalTrans is wrong is in its belief that it can limit future free speech at that site by removing a flag or certain words from the seals of the armed forces. The proposed Veteran's memorial is still going to be an expression of those seeking to honor this country's veterans; it is still speech. CalTrans thus errs in trying to keep the American Flag from flying at the center of the monument or believing that the removal of words such as United States or E Pluribus Unum will change a future court's analysis as to whether the site of the memorial is an appropriate site for future protests or the expression of other opinions.

CalTrans should not focus on stopping free speech, but rather ask itself under what circumstances can we have speech at this site and come up with reasonable policies that recognize the right of people to safely express their opinion. As I understand the situation, the determination has already been made that a Veteran's memorial can be erected at this site. The issue appears to be CalTrans' belief that by keeping the monument from displaying the flag and limiting the words on the monument, it will be in compliance with prior case law and it can keep people from expressing their opinion at the site. The reality is that there are sidewalks at or near the location. And people will be drawn to the memorial to photograph it and pay their respects. The opinion in Brown v. CalTrans wasn't telling CalTrans that its job was to prevent the exercise of free speech, but rather that CalTrans as a governmental agency cannot favor one viewpoint over another, e.g., flags versus protest banners.

In short, CalTrans drew the wrong lesson from the 2003 case. Instead of trying to micromanage the construction of the proposed memorial, CalTrans should instead focus on how it can appropriately allow Americans to safely and reasonably express themselves at this location. After all, you can still apply for a permit to hang a banner over a freeway overpass. Let the monument go in as designed and intended and let people apply for an appropriate permit if they want to express another opinion at this site. Let this be a true memorial for America's veterans and their dedication to this country's freedoms. Let the American flag fly.

RZA has Sued JVC Kenwood Holdings, Inc. (doing busines as Teichiku Entertainment, Inc.) in a Declaratory Action to Defeat Allegations that RZA's "Dark Fantasy" Allegedly Contains an Unauthorized Sample from "Gincyo Watadori" as Performed by Meiko Kaji

According to the Hollywood Reporter, Robert Fitzgeral Diggs (professionaly known as the multi-talented The RZA) has sued JVC Kenwood Holdings, Inc., doing business as Teichiku Entertainment, Inc. (a business that buys the rights to musical sound recordings and composition) for a declaration that JVC's claim's of sampling are false. Specifically, as alleged in the lawsuit, JVC claims that RZA illegally sampled portions of Gincyo Watadori by Meijo Kaji for use in the sound recording Dark Fantasy (released November 22, 2010) on the Kanye West album, My Beautiful Dark Twisted Fantasy). RZA strongly denies this and wants a declaration, inter alia, that the Gincyo Watadori sound recording isn't sufficiently original enough to receive copyright protection and that Dark Fantasy does not infringe on the Gincyo Watadori sound recording.

According to the Hollywood Reporter, Howard King, one of the attorneys for RZA, has stated the following:

"RZA did not use Teichiku’s piano run, and it sounds different from the one in 'Dark Fantasy,' " says King. "In fact, it would have been technologically impossible to sample the piano run without the rest of the music in 'Gincyo Watadori,' and the piano run in 'Gincyo' is so simple that the least talented person in the studio could have replayed it had anyone wished to do so."

In the same article, it is reported that Daniel Rubin, an attorney for Teichiku responded:

It's not just the piano melody that was sampled, but also the orchestral backing was sampled too," he says. "We made this claim in June of last year, and in our attempts to settle this matter, they've made many offers. We wanted a much larger sum than they were willing to give us, so we didn't take it.

Rubin also contends that a test "revealed that the RZA's song emanated from "Gincyo." In any event, RZA pulled the trigger first and filed his lawsuit in the Ninth Circuit's Central District Court of California on February 25, 2013 (Case No. 2:13-cv-01359-SVW-MLG).

This is an interesting copyright case for several reasons. First, it has that "man bites dog" flair in that RZA sued the alleged copyright holder for declaratory relief first rather than waiting for JVC Kenwood Holdings to sue him for infringement. Second, the state of copyright law when it comes to sampling is arguably a bit murky. This is partly due to a split of authority between the Sixth Circuit and the Ninth Circuit when it comes to something called de minimus sampling. Basically, in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the Sixth Circuit held that if you sample even a few seconds of a musical piece, you need to pay for it or don't sample. In other words, it rejected the de minimus defense when it came to sampling.

A year earlier, the Ninth Circuit had accepted the de minimus defense for sound sampling in Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004) when it held that a three-note sample was too short to be independently copyrightable, and even if it was, Diamond's use was de minimus. While RZA doesn't appear to be relying on a de minimus defense (he has denied sampling any portion of the "Gincyo Watadori" sound recording) by filing first, he will have the benefit of what is arguably a more favorable venue for this declaratory relief action.

Leaving aside the specifics of this lawsuit and the positions that have been taken or may be taken by the parties, the defenses to a generic sampling copyright infringement claim might go something like this,

I didn't sample the music. If I did sample the music, it was so little that no one would recognize it or be able to claim a copyright to it. Finally, if I did sample the music and it was enough to be copyrightable, then my use was fair, because it was only to mock you via a parody or to comment on the work or educate someone about it.

As stated above, in this case, RZA has flatly stated that he didn't sample any portion of Gincyo Watadori. If this is proven true, then the de minimus and Fair Use doctrines won't necessarily come into play. Personally, I've listened to both pieces and I lack the skill to tell one way or the other if the recordings sound even remotely similar. But on the net, its a bit of a game to hunt down and identify allegedly sampled pieces. There are sites like Whosampled and Du-Bruit that have databases of allegedly sampled pieces by various artist and try to identify the DNA and the links between artists and sound  recordings. And some people have hinted at a similarity between portions of the two recordings, e.g., the so I was going through some old records I had thread at Kanyetothe.com.

I should note that I've generally seen Meiko Kaji's sound recording referred to as Gincho Wataridori. I'm not sure which transliteration is correct. Meiko Kaji is a well-known, talented singer and actress who has appear in many movies. Two of her songs were used in the first Kill Bill. RZA organized, and mostly produced and orchestrated the music for that film.

It will be interesting to see how this lawsuit plays out.

Updated Information to Earlier Post: Opposing Side Concurs in Request to Lift Injunction

Looks like a total victory for Paul Levy and his client, Majed Moughni, as well as for the Michigan Chapter of the ACLU. The attorneys for McDonald's and class counsel have apparently filed concurrences asking the judge to lift the injunction. You can read about it in detail here.

Good work!

Halal Chicken, McDonalds, and the Majed Moughni Facebook Injunction: How Far Can Judge Kathleen MacDonald Go to Silence Dissent to an Arguably Unfair Class Action Settlement?

In the 2006 to 2009 time frame, I wrote a blog called Blue Dog Thoughts. I ruminated on political issues (a presidential election was in process) and Internet trivia (e.g., one police officer's arresting reaction to his too salty McDonald's hamburgers). But family (kids hitting high school, driving them to wrestling matches, track meets, school plays, marching band events, dances) and work issues ultimately had me put my blog to bed. Life hasn't slowed, but I find myself getting the itch to once again pick up my figurative pen.

My first post is inspired by Walter Olsen's heads up on Overlawyered where he alerts us to Judge Kathleen MacDonald's February 7, 2013, order requiring Majed Moughni to (1) take down previous Facebook posts (criticizing the arguably lawyer enriching, unnamed class participant stiffing settlement); (2) keep his mouth shut in the future about any disagreement he might have with the proposed settlement (unless he got prior approval from the judge or the lawyers who are destined to receive a good chunk of the so-called settlement funds); (3) turn over the names and contact information of anyone who agreed with Moughni via the "Like" function of Facebook; and (4) post on his community Facebook page, Judge MacDonald's own notice of the terms of the proposed settlement. The lawsuit involves the sale of arguably non-halal (analogous to kosher) chicken sandwiches allegedly sold by McDonald's to people who care that the food they eat is prepared according to the tenets of their faith. In this post, I discuss my opinion of the Court's order and this class action settlement based on my understanding of the facts as I've ascertained them from reading various posts and other sources on the Internet. To the extent those facts turn out to be wrong or incomplete, my opinions may change.

In any event, I find this to be an interesting First Amendment case. Leaving aside hyperbole for the moment, we have a clash of two competing ideas. Judge MacDonald and the Jaafar and Mahdi Law Group (the attorneys appointed to represent the interests of the proposed class plaintiffs) want to control the manner in which this settlement is presented to the public. And a judge has a not unlimited right to control how parties before the Court and attorneys representing those parties communicate with the public about ongoing, active litigation. Thus, in their motion for injunctive relief, Jaafar and Mahdi Law Group cites Michigan's Rules of Professional Conduct, Rule 3.6:

A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

as well as Rule 4.2:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

and also argues the Court's right to silence and control the content  of Moughni's speech based on a court's power to control matters before it:

Circuit courts have the “jurisdiction and power to make any order proper to fully effectuate the circuit court’s jurisdiction and judgments.” It is long settled that a trial court possesses inherent and essential authority to control the proceedings before it. A circuit court‘s inherent authority“is not governed so much by rule or statute, but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."

... 

Encompassed within this “inherent authority” is the power to“sanction litigants and their counsel” as well as dismiss an action where necessary. More specifically, the trial court has broad power to authorize, supervise and manage the manner and content of class notice. [Citations Omitted].

All for the proposition that the Court can order Moughni to cease telling people that he considers this settlement unfair to the actual victims of the alleged torts. When we speak about parties and lawyers before the Court, this makes sense. The judge needs to control his case. He or she will want to ensure that juries are not improperly influenced and that parties (such as class plaintiffs) know of potential settlements or other significant developments. If a party's lawyer or the party has a problem with this, they are already before the Court and can argue their points.

So you might understand why at least some people feel that the Court's order was appropriate. Certainly, there is support from experts such as Robert Sedler, a constitutional law professor at Wayne State University. He opined that there is no First Amendment issue, saying there is a "narrowness to the order." But where does this leave a tough-minded activist lawyer like Majed Moughni? This is a man who strongly believes in free speech. He's helped lead protests against terrorists such as the "Underwear Bomber" Umar Farouk Abdulmutallab. He's been threatened with death by terrorist Ali Charaf Damache (currently on trial in Ireland for those threats). He's counter-protested against the obscene antics of a man like "Pastor" Terry Jones, while still standing up for the man's right to speak.

It's inevitable that as a potential class member (he and his family reside in the area), a man like Majed Moughni will want to express his opinion on a settlement that funnels hundreds of thousands of dollars to a Dearborn law firm (and two Dearborn charities*), yet grants not a single dollar, not even a coupon for a genuinely Halal Chicken Sandwich to any individual unnamed class plaintiff. After all, the proposed settlement doesn't even enjoin McDonalds from committing the same alleged violations (selling Chicken Sandwiches in the future as halal when those Sandwiches arguably didn't qualify for that label). But those unnamed class plaintiffs are barred from suing McDonald's for their individual claims unless they object to the settlement. And Moughni clearly feels that they should object.

He isn't a named party to the lawsuit. He represents no party to the action and can't easily appear before the Court to state his opinion on proposed settlement. There is a hearing set for March 1, 2013, but if an individual doesn't file a formal objection to the proposed settlement, they won't be able to speak at the hearing. So Majed Moughni went to his Dearborn Area Community Page on Facebook and blasted the settlement with his opinion that it was a "backroom deal," urged other community members to object to the settlement, and stated that he had hired an attorney to try to intervene.

If you're a class action attorney about to score several hundred thousand in attorney fees, the last thing you want is people objecting to your proposed class action settlement [in the particular settlement agreement at issue, Section 6.1 provides that only twenty-five people need to opt-out of the settlement and McDonald's would have the right to walk away from the settlement]. So you're going to want to silence a man like Moughni and do it quick. You might visit his office and try to strong arm him into shutting up. Probably, you'll threaten him with a defamation lawsuit or filing a complaint with the state bar. But someone like Moughni isn't going to back down. This is a guy who didn't back off when a terrorist threatened him with death. So you need a hammer and a big one. You go to the judge who's already approved your lovely big-fee settlement and ask for an injunction shutting this man up and ideally making him mouth via mandatory Facebook posts the party line as laid out in the Court's own class notice of proposed settlement [the settlement agreement has a clear-sailing provision, which forbids defendants from objecting to the proposed attorney fees and obviously class-counsel won't object to their fees, another incentive to silence an objector such as Moughni].

Given that Moughni isn't a named party before the Court or a lawyer representing any party before the Court and this is a matter of public interest, a lot of judges would outright deny the requested injunction on the ground that it constitutes an unconstitutional prior restraint on free speech. But Judge Kathleen McDonald is made of sterner stuff and chose to grant class counsel everything they asked for while silencing Moughni's attempt to argue the motion.

Thankfully for Moughni, Paul Levy and the Public Litigation Citizen Group stepped up to the plate and agreed to represent him. They filed a motion to vacate the injunction with the Court.  According to Paul Levy,

The judge's actions represent a jaw-dropping attack on the First Amendment.

The ACLU of Michigan also asked for leave to file an amicus brief supporting Mougni's motion to vacate the injunction. The Public Litigation Citizen Group and the ACLU both point out that prior restraint on protected speech, i.e., shutting someone up before they speak, because you know you aren't going to like what they say, is generally—except in rare circumstances—unconstitutional. Keep in mind, we're not talking about commercial speech here (Moughni isn't representing anyone in this action), we're not talking about a situation where Moughni has signed a confidentiality agreement, or threatened to publish obscene material, or intends to yell fire in a crowded theater.

We speak of a man's right to publicly criticize his government when it (through the Court in this instance) proposes to act in a way that he disagrees with. Fundamentally, this is what free speech is all about. So I agree with Paul Levy and the ACLU in this scenario and not with Judge MacDonald and Professor Sedler.

The hearing on the motion to vacate is set for the same March 1st date as the hearing on approval of the settlement.  So even if the Court vacates the injunction, it will likely have accomplished class counsel's purpose of silencing dissent during the opt-out period.

* For discussion on how cy pres class action settlements can and should be structured, a good case to review is Nachshin v. AOL LLC.

** Update Post.