Tag Archives: damages

Show me on TV and I’ll Sue!!!

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Every once in a while you hear about a lawsuit that someone has filed which constitutes a real head-scratcher. The kind that makes you wonder where our http://www.dreamstime.com/royalty-free-stock-photo-couple-watching-tv-image24768815legal system is going. This week we were treated with a lawsuit filed by a man, Andrew Rector of New York, who was caught by ESPN cameras sleeping during a baseball game, and who feels he has been defamed because the announcers found that funny and commented about it. He seeks more than $10 million in damages from ESPN, its announcers, the New York Yankees and Major League Baseball.

I’ll be the first to admit that while I love baseball, there are times when the games move slowly, get a little boring or tedious, and I have also nodded off at a few, only to be elbowed by my wife to keep me from dribbling mustard on my clothes from the hot dog I hold in a death grip during my little snooze. If I had ever thought that there might be money in such trips to dreamland, however, I’d opt for seats in a more camera-friendly location of my local stadium.

What I think Mr. Rector and his attorney should consider before pursing this litigation much further is just how often we are all seen on video each day. Every person now sports the technological equipment in their hand to videotape every fight, argument, fall, stumble, arrest, nose-picking, earwax sniffing, wardrobe malfunction, and yes, sleeping incident, and they do so, and post them all to You-Tube constantly. Is ESPN more liable because they disseminate their video as part of their “for profit” business? I don’t think so. The fact of the matter is that when we step outside, we have essentially abandoned our “expectation of privacy”. If ESPN had not captured Mr. Rector’s nap, but someone else had done so on a cell phone and uploaded it to You-Tube, who becomes liable for his “damages” then?

Most sporting event tickets have a disclaimer on the back warning the attendee that he/she may be injured by thrown or batted balls, flying pucks or golf balls, etc. Must they now add a disclaimer that reminds those attending sporting events that, because virtually every sporting event is televised, they run the risk of actually being SEEN by others on television? In fact, isn’t that attention what most of the nuts waving at the camera behind home plate and elsewhere in the stadium actually lust for and seek out?

Mr. Rector claims that by disseminating his unseemly appearance snoozing through the game, with a comment or two about his activity (or lack thereof), it subjected him to “character and reputational” injury, and caused him loss of earning capacity. Seriously? We have been treated in recent years to late night TV hosts showing congressional aides sleeping or picking their noses behind senators during various hearings, Morgan Freeman drifting off during an interview, a news reporter’s on-air gibberish from a possible stroke, and even Vice President Biden apparently napping during a speech by President Obama. Do all of them have a claim for monetary damages because these videos were made public? If they do, and if a claim such as Mr. Rector’s is allowed to be pursued, we have entered a new era of civil litigation that is likely to overwhelm our legal system with unending lawsuits.

But at least if I trip on someone’s sidewalk, I can always hope that somebody catches it on camera and promotes it, thereby affording me the opportunity to seek compensation for my reputational damage due to my own clumsiness, if not for my actual physical injuries themselves…

Silence is Golden

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I often find myself frustrated when non-legally trained TV reporters use inappropriate terminology to describe legal issues. They will often report that “opening arguments start today” in some big trial. As attorneys, we all know that opening statements are not supposed to be “arguments”. Likewise, we frequently see reports of a plaintiff who “won a settlement” against a defendant. Settlements, of course, are not “won”, but are negotiated and agreed upon. In fact, in many cases, the defendant may feel that he or she actually “won” if the settlement achieved is particularly advantageous to them.

 Perhaps one of the most important reasons for settling a claim for the majority of defendants is the ability to resolve a case quietly, without publicity. That is why almost all settlement agreements and releases contain a “confidentiality” clause, which prevents the settling plaintiff (if not both parties) from discussing, publicizing or otherwise disclosing the terms of the settlement.

Some plaintiffs who believe they have achieved a good settlement may actually feel the settlement is some vindication of their position, and that they had, therefore, “won”. As such, they apparently don’t think twice about the confidentiality language in the release or agreement. That problem was illustrated by two cases recently in the news. In February, Mel Gibson’s “ex”, Oksana Grigorieva, apparently was sanctioned with the loss of half of the $750,000 settlement that she reached with Gibson following her suit against him over their break-up. Despite a confidentiality agreement in the settlement that barred her from discussing Gibson, she could not help appearing on Howard Stern’s radio show and taking pot-shots at her “ex”. The court apparently found that conduct in violation of the confidentiality agreement and ruled that she had forfeited the remaining payments due her on the settlement, which amounted to almost half the total figure.

More interesting was the report of an $80,000 settlement lost to a man who had reached a settlement at that figure after suing his former employer for age discrimination. His teenage daughter posted about the settlement on Facebook, noting that her father “won his case” and that the ex-employer was “now officially paying for my vacation to Europe this summer” (adding a final dig at the former employer with the words “SUCK IT” at the end of her post). The Florida Court of Appeals agreed with the employer that the plaintiff had clearly violated the confidentiality agreement and refused to force the employer to pay the plaintiff the $80,000 settlement figure.

Settlement agreements and releases entered into upon settlement of a suit or claim are contracts. Like all contracts, each side has obligations. It may be hard for an injured party who achieves a reasonable settlement to keep quiet about it, but they simply have to be carefully instructed on the consequences. Defendants settle to “buy their peace”, and that peace almost always includes the prevention of publicity, disclosure and information about the suit or claim and the ultimate settlement. These examples should prove very instructive to counsel who represent clients negotiating settlements of any type.

Anheuser-Busch Faces Class Action Suit Over Allegedly Watered Down Beer

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There are no limits to the imagination of “class action” attorneys who want to find an issue to raise on behalf of those little people allegedly victimized by the conduct of the big corporate defendant. As most people know, the class plaintiffs in any such suit generally each get a few bucks, or a coupon for 50% off future purchases of the product in issue, while the attorneys reel in millions of dollars in fees for representing the class. I don’t begrudge the attorneys their contingent fee — if you take the risk of litigation you should reap the reward — but class action cases just seem so inequitable because instead of an individual plaintiff receiving the bulk of any settlement or verdict, millions of “plaintiffs” really get nothing. The more troubling part are the trivial things they come up with over which to file suit. The whole idea behind bringing a class action suit over some minor issue is that it is fiscally more reasonable for the defendant to settle the claim than to litigate it. I only wish more of them really went to trial, where the proof of some actual damage is required. The latest ingenious claim is that Anheuser-Busch has “watered down” their beer. To their credit, A-B is fighting back with an advertising campaign mocking the idea that they water down their product. But what I’d really like to see is the actual trial on these claims. How do the plaintiffs march into court and assert that they were damaged by getting LESS alcohol? Are they going to claim that in order to get good and wasted they had to buy 12 beers instead of 11? That when they got pulled over for drunk driving they only blew a .07 instead of the legally required .08 to get that DUI ticket because A-B was cheating them out of alcohol? And if it is really watered down, they likely got a few less calories than expected. Are they going to assert that their beer gut just doesn’t measure up to their buddies?http://www.dreamstime.com/stock-photography-pouring-beer-image5000172

We all understand the concept that we expect to get what we paid for. If you expected your beer to be 5% alcohol and for some reason it was only 4.9%, then the seller didn’t meet their end of the bargain. No doubt about it. And I guess this is what the plaintiff lawyers here are really trying to say. But seriously, is this the kind of thing that should be tying up our legal system? This is the kind of suit that really does give lawyers a bad name. I’m upset. Think I’ll go have a beer…or maybe two.