Category Archives: Law: Everything Else

Do People Really Do This Stuff?

Two items from today’s news raise similar questions about whether people — even lawyers — really are ready to exercise their legal rights in socially awkward situations. (And if even lawyers are not, do those rights mean anything?)

First, this from the NYT “Haggler” column, the New York Times’s consumer meta-advocate. The column, Restaurant Bill Shock? Some Readers Say ‘Au Contraire’, is a followup to an earlier one about someone going to a very fancy restaurant, ordering the daily special — pasta with truffles, price not mentioned by waiter — and being shocked by the dish’s $275 price tag.

Readers wrote in with suggestions, including this one from Franklin Synder, a law professor at Texas Wesleyan:

“You might be interested in letting your readers know that a restaurant meal is a ‘sale of goods’ under Article 2 of the Uniform Commercial Code,” he wrote. “The code provides that where the buyer and seller have agreed to a contract but have not agreed on the price, the price is not what the seller subsequently demands. It’s a reasonable price for the goods at issue. Thus a customer has no obligation to pay for anything more than the reasonable price of a pasta meal at a trendy restaurant.”

He continued: “In this circumstance, a customer should make a reasonable offer for the value of the meal, then walk out and wait to be sued for breach of contract. Be sure to leave the restaurant full contact information so they can’t claim that you’re trying to steal something.”

I confess I may know one or two people who might actually try this if sufficiently provoked, but I do not think I am part of that tiny minority.

Similarly, there is this piece of advice in today’s Miami Herald about what to do when boarding a cruise, offered by one Gabrielle D’Alemberte, who is identified a senior trial attorney at the Law Offices of Robert L. Parks, P.L., a Coral Gables-based plaintiff’s litigation firm:

For those of us in South Florida who travel outside the United States, it’s important to understand that many other countries in Europe, the Caribbean and Latin America have similar laws that make it difficult to file lawsuits in negligence-related cases. If the unthinkable occurs — a child’s drowning in a hotel pool, a crippling watercraft accident at a Caribbean resort or an outbreak of a dangerous virus on a cruise ship — the choice of forum makes a huge difference in the legal outcome.

Therefore, you have to be sure to read the fine print before signing your passenger ticket for a cruise. If you purchase your ticket through a travel agent, be sure you see the actual documents prior to departure — and send an email to the agent to document that request.

When you come to the choice of forum clause in your ticket, take out your pen and cross out a few words, such as “I agree to…” and hand the documents back to the boarding agent. While the agent has the right to deny you from boarding, most likely you will still be ushered aboard.

Likely? Likely? Let me tell you that if I were to persuade my wife to go on a cruise and then attempted to pull this stunt, I would probably be disowned. And if it resulted in our being denied boarding, I don’t even want to think of the consequences. Has Ms. D’Alemberte, or anyone in Parks firm actually tried this stunt? I’m dubious, even if she is Sandy D’Alemberte’s daughter. Admittedly it would be easier to recover from this stunt if you are sailing from a port where you live, since you can turn around and get home easily, but I think it might put a serious damper on your vacation, not to mention your relationship.

I’m not even certain whether the cruise line would be obligated to refund your money in these circumstances. I suppose it depends on at what point you are said to have accepted the language in the ticket – when they send it to you or when you hand it over to board. Is there a contracts lawyer in the house?

More generally, and more importantly, who lives like this? (And why should we have to?) No one I know does this, and I hang around lawyers all the time.

Posted in Law: Everything Else, Law: Practice | 5 Comments

In Which I Get a Remarkably Small Check

Very, very faithful readers may recall back in December 2007 I posted I Am A Plaintiff in which I recounted my discovery that I was part of a class of persons who had been subjected to improper foreign currency fees when using a US credit card abroad.

As I reported then, the proposed settlement offered me three choices:

  1. $25 cash money.
  2. Estimate how many days I was abroad in 1996-2006, and get a rebate of 1% of what they guess I spent with my credit card based on some formula they do not disclose. Key to that formula is whether I characterize my travel as sometimes/often/mostly “business,” “visiting friends or relatives,” or “vacation or leisure”. (In fact it was some of each.)
  3. Provide detailed receipts of my credit card usage abroad in that period and get 3% back.

I chose option two, having calculated that I was abroad for 394 days during the relevant period.

Today, about three and half years after claims were due, I got my check — for $51.81. This doesn’t seem like much, as I’m sure I would have spent more than $5181 while doing a combination of fairly high-priced business travel, some holiday travel, and just being, over the space of more than a year. And indeed, the note attached to the check I received states that “All refund amounts are reduced because the full amount of all the claims exceeds the amount in the settlement fund.”

Poking around on the settlement website reveals very little about how they calculated this figure. I was not able to find a clear statement of what the settlement value was, what the lawyers’ share of the settlement was, or what was left after they took their share. I was able to learn that 10 million (10 million!) claims were filed. I was not able to learn what formula(e) the parties used to value the claims — something I’d have liked to see. I did, however, learn that the amount claimed exceeded the amount of the settlement, so that payments were reduced according to a complicated formula in the Court-approved Revised Plan of Administration and Distribution. But the site does not reveal which of the various contingency plans in that document were used, nor how much of a discount got applied to claims like mine. (If I understood it right, it does say that the folks who picked option one got their $25, so I didn’t get paid much for all the effort of going through old calendars and diaries and calculating the number of days I was abroad.)

All in all, one has a sense that the purpose of the claims web site is not to inform but to obfuscate, while appearing to meet some minimum formality of seeming disclosure.

Commonly, a complaint about class actions is that the victims don’t even bother to make claims. In this case that is emphatically not the case, since 10 million claims were filed (I’m not clear, though, if it was 10 million people, or if there may have been multiple claims by holders of multiple cards). But at the end of the day, even people like me who had what one would think would be a fairly substantial claim — abroad more than a year — gets peanuts. Without knowing the size of the settlement one can’t say whether it may serve some deterrent function in the future, but I have to wonder if it was large enough to achieve that.

Incidentally, the note attached to the check says there’s a second, separate lawsuit,, Ross v. American Express Co., regarding the mis-use of arbitration clauses. If you were forced into arbitration, don’t get your hopes up too high: that case was settled for $49.5 million, of which only $13.875 million remains after court costs and attorneys’ fees. Perhaps it is apt that lead class counsel have their offices on Locust Street?

Posted in Law: Everything Else | 4 Comments

Law On the Ground

Earlier today, a New York judge entered an injunction allowing the Occupy Wall Street protestors to re-occupy Zucotti Park. (That injunction was later overturned. No doubt further appeals are likely, although I’m not optimistic about their chances.)

During the period in which the injunction against the police action was in force, some protestors attempted to re-enter the park. Despite the court order, the NYPD did not allow it.

See NYPD Assaults Man & Punches Woman in Face at OWS / Liberty Plaza for their reaction:

httpv://www.youtube.com/watch?v=YxR8VHFvsl8

There is law on the books, and there is law on the ground. I doubt any of the police will be reprimanded in any meaningful way; more likely they will be (privately) congratulated.

(I think in the long run, this is more likely to feed the OWS movement than to harm it. They may now have to shift tactics to something that doesn’t involve standing in the cold 24/7.)

Posted in 99%, Law: Everything Else | 1 Comment

Motion REALLY Dismissed

In More Evidence That Judges Have Had it With Banks, Yves Smith points to Phillips v US Bank, N.a., Sup Ct Carroll Cty Ga.20111102, which (assuming it is real), can only be called a epic dismissal of a complaint.

Posted in Econ & Money: Mortgage Mess, Law: Everything Else | 2 Comments

Miami Human Rights Clinic Wins Big Women’s Rights Case Before Inter-American Commission on Human Rights

U. Miami lawyers from our new Human Rights Clinic won a major moral victory for their client Jennifer Lenahan (formerly formerly Jessica Gonzales) in a decision announced today July 21, 2011 by the Inter-American Commission on Human Rights, Jessica Lenahan (Gonzales) v. United States. Ms. Lenahan got nothing from the US Supreme Court in 2005, losing big in the famous Castle Rock v. Gonzales case, an occasion in which the Supreme Court (per Justice Scalia) famously held that Ms. Gonzales (as she then was) did not have an enforceable Due Process Clause interest in police enforcement of a restraining order against her husband even when the police had probable cause to believe the order had been violated. In the event, despite her telephoned pleas, and the fact that violation of the restraining order was a crime under Colorado law, the Castle Rock, Colorado police did nothing — and Ms. Lenahan’s husband murdered her three daughters.

In contrast, the IACHR said today that the US authorities’ pattern of insufficient attention to domestic violence and violence against women, combined with the failure to react in this case, violated US obligations:

[T]he Commission holds that the systemic failure of the United States to offer a coordinated and effective response to protect Jessica Lenahan and her daughters from domestic violence, constituted an act of discrimination, a breach of their obligation not to discriminate, and a violation of their right to equality before the law under Article II of the American Declaration. The Commission also finds that the State failure to undertake reasonable measures to protect the life of Leslie, Katheryn and Rebecca Gonzales, and that this failure constituted a violation of their right to life established in Article I of the American Declaration, in relation to their right to special protection contained in Article VII of the American Declaration. (¶ 170)

Congratulations to Carrie Bettinger-Lopez, our students from the Clinic, and all the other lawyers from around the country involved in this case.

Here’s part of the IACHR’s unofficial summary of the decision:

The restraining order was the only means available to Jessica Lenahan at the state level to protect herself and her children in a context of domestic violence, and the police did not effectively enforce it. The state apparatus was not duly organized, coordinated, and ready to protect these victims from domestic violence by adequately and effectively implementing the restraining order. These failures to protect constituted a form of discrimination in violation of the American Declaration, since they took place in a context where there has been a historical problem with the enforcement of protection orders; a problem that has disproportionately affected women since they constitute the majority of the restraining order holders.

The Commission established that the State did not duly investigate the complaints presented by Jessica Lenahan before the death of her daughters. The State also failed to investigate the circumstances of their deaths once their bodies were found. Consequently, their mother and their family live with this uncertainty, and the law enforcement officers in charge of implementing the law have not been held accountable for failing to comply with their responsibilities.

The Commission encourages the United States to comply with the recommendations contained in the Merits Report, which include to conduct a serious, impartial and exhaustive investigation into systemic failures that took place related to the enforcement of Jessica Lenahan’s protection order, to reinforce through legislative measures the mandatory character of the protection orders and other precautionary measures to protect women from imminent acts of violence, and to create effective implementation mechanisms, among others.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this matter. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

Here’s the text of the lawyers’ press release:

Landmark Human Rights Case Finds that Failure to Enforce a Restraining Order and Indifference to Domestic Violence Led to Daughters’ Deaths

In a landmark decision, an international tribunal has found the U.S. government responsible for human rights violations against a Colorado woman and her three deceased children who were victims of domestic violence.

Jessica Lenahan (Gonzales) v. United States is the first case brought by a domestic violence survivor against the U.S. before an international human rights body, the Inter-American Commission on Human Rights (IACHR). The IACHR ruling also sets forth comprehensive recommendations for changes to U.S. law and policy pertaining to domestic violence.

The case concerns a tragic 1999 incident in which police in Castle Rock, Colorado failed to respond to Jessica Lenahan’s repeated calls for help after her estranged husband, Simon Gonzales, kidnapped their three young children in violation of a domestic violence restraining order. Ten hours after Lenahan’s first call to the police, her husband drove up to the Castle Rock Police Department and began firing his gun at the police station. The police returned fire, killing Gonzales. Inside the truck, the police found the bodies of the three girls – Rebecca, Katheryn, and Leslie – who had been shot dead. Local authorities failed to conduct a proper investigation into the children’s deaths, resulting in questions about the cause, time, and place of their deaths that remain to this day.

“I have waited 12 years for justice, knowing in my heart that police inaction led to the tragic and untimely deaths of my three young daughters,” said Lenahan. “Today’s decision tells the world that the government violated my human rights by failing to protect me and my children from domestic violence.”

Lenahan is represented by the Human Rights Clinic at the University of Miami School of Law, the Columbia Law School Human Rights Clinic and the American Civil Liberties Union.

“The commission’s determination that the United States violated Ms. Lenahan’s and her children’s human rights by failing to ensure their protection from domestic violence has far-reaching implications,” said Professor Caroline Bettinger-Lopez, director of the Human Rights Clinic at the University of Miami School of Law. “As our country seeks to promote human rights of women and children around the world, we must also look at our own record here at home.”

The commission’s decision stands in stark contrast to the U.S. Supreme Court’s decision in Town of Castle Rock v. Jessica Gonzales (2005), where the justices ruled that Lenahan (then Gonzales) had no constitutional right to police protection, and that the failure of the police to enforce Lenahan’s order of protection was not unconstitutional. Lenahan then filed a petition against the U.S. before the IACHR, alleging violations of international human rights. “Now that the commission has appropriately found the police and the United States responsible for their appalling lack of action, it is critical that they be held accountable,” said Lenora Lapidus, director of the ACLU Women’s Rights Project. “We can no longer accept police departments’ failure to treat domestic violence seriously and to regard it as simply a private matter unworthy of serious police attention.”

Established in 1959, the Inter-American Commission on Human Rights is charged with promoting the observance of and respect for human rights throughout the Americas. The commission is expressly authorized to examine allegations of human rights violations by all 35 member-states of the Organization of American States, which includes the United States, and to investigate specific allegations of violations of Inter-American human rights treaties, declarations and other legal instruments.

“We know that the issue of violence against women is one that the Obama Administration cares deeply about,” said Peter Rosenblum, director of the Columbia Law School Human Rights Clinic. “We encourage the Administration to work with the appropriate state and local officials to address and adapt the Commission’s recommendations in a meaningful way.”

More information on this case can be found at:
www.aclu.org/human-rights-womens-rights/jessica-gonzales-v-usa;
www.law.miami.edu/hrc/hrc_gonzalez_usa.php;
www.law.columbia.edu/human-rights-institute/initiatives/interamerican/gonzales

Posted in Law: Everything Else, Law: International Law | 2 Comments

Judge Jordan Nominated for 11th Circuit

President Obama announced today that he will nominate Judge Adalberto José Jordán, one of the leading lights of the local federal bench, to the 11th Circuit Court of Appeals. Among his other virtues, Judge Jordan graduated from UM Law in 1987, and clerked for Judge Thomas A. Clark of the 11th Circuit and then for Supreme Court Sandra Day O’Connor of the Supreme Court of the United States. Judge Jordan has been on the Southern District of Florida since 1999, and regularly teaches Federal Courts at UM.

This is a great appointment and I cannot imagine that it will be controversial. Judge Jordan is a real star. I hope the Senate actually gets around to confirming him — they’re pretty slow up there.

Posted in Law: Everything Else | 1 Comment

May 5: President Obama Announces Intent to Nominate Stephen Higginson to Serve on 5th Circuit

I don’t know how I missed this, but back on May 5th, President Obama announced his intent to nominate Stephen Higginson to the United States Court of Appeals for the Fifth Circuit.

“Stephen Higginson is a distinguished candidate for the Court of Appeals for the Fifth Circuit,” President Obama said. “Both his legal and academic credentials are impressive and his commitment to judicial integrity is unwavering. I am confident he will serve the American people with distinction.”

Stephen Higginson was born in Boston, Massachusetts. He attended Harvard College, where he received his A.B., summa cum laude, in 1983. After graduating from Harvard, Higginson attended Cambridge University in England, where he was a Harvard Scholar, earning a Masters in Philosophy in 1984. He then attended Yale Law School and obtained his J.D. in 1987. While in law school, Higginson was Editor-in-Chief of the Yale Law Journal.

After graduating from Yale Law School, Higginson served as a law clerk to the Honorable Patricia M. Wald of the United States Court of Appeals for the District of Columbia. The following year, from 1988 to 1989, Higginson served as a law clerk to the Honorable Byron R. White of the Supreme Court of the United States. He has been an Assistant United States Attorney since 1989, when he joined the Criminal Division in the District of Massachusetts. Since 1993, Higginson has served as an Assistant United States Attorney in the Eastern District of Louisiana, where he became the chief of appeals in 1995. As chief of appeals, Higginson has personally handled or supervised all criminal and civil appeals in the District, editing or writing more than 100 appellate briefs, and presenting numerous oral arguments before the United States Court of Appeals for the Fifth Circuit. Higginson has received the Department of Justice’s awards for superior and outstanding performance as a federal prosecutor. From 1997 to 1998, he served a six-month detail with the Department of State, working as deputy director of special projects for the Presidential Rule of Law Initiative.

Since 2004, Higginson has worked part-time in the United States Attorney’s Office, continuing to supervise the appellate section. That same year, he joined the full-time faculty at Loyola University New Orleans College of Law, becoming an Associate Professor of Law. Higginson teaches subjects including constitutional law, evidence, and criminal law.

I’ve known Steve since law school, where many people would have guessed he’d end up as a judge. He’ll be great — if the Senate ever confirms him.

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