LegalMatch: Business Law

A Look At The Last Day Of The Supreme Court

I know it is baseball season and the world cup right now, so it may be hard to think outside the sports arena; but the Supreme Court is also winding down their season and they have produced some notable decisions in a range of areas this term.  Like a good movie, the Court saved the best for last and handed out four opinions in their final day, which may or may not impact you but nevertheless is especially exciting to us law junkies.  The topics revolved around patent law, the first amendment right of association, separation of powers, and the second amendment.  So in no particular order, here is a brief summary of what was decided...

·         Bilski v. Kappos: This case concerned an invention that was used to predict business and economic cycles which was ultimately determined not to be eligible for a patent by the majority of the court, but held that this decision does not necessarily exclude business methods from patent eligibility.

·        Christian Legal Society v. Martinez: Here, the court looked at whether UC Hastings law school may deny school funding and other benefits to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.  The Court held that imposing an “everyone is welcome” policy is reasonable in order to receive funding.

·        Free Enterprise Fund v. Public Company Accounting Oversight Board: the opinion served to strengthen notions of separation of powers by finding certain appointment limitations placed on a public company to be unconstitutional.

• McDonald v. City of Chicago: The second amendment does apply to the state and local government through application of the fourteenth amendment.

Even If you aren’t directly affected by the decisions made by the Court, I think it is still important to know what is happening in the world around you. Of course, I find the law school freedom of association issue to be most interesting and a decision that could have an effect on the lower levels of education as well. But whether you think some of these decisions are a win or a setback, they are changes and I think it is good as a society to constantly be re-evaluating our stance on issues.

By: Violet Petran

Avoid Legal Liability with a Non Engagement Letter

Prospective clients can come from anywhere: at a cocktail party, through other clients, on the phone, and even through an internet matching service.  The increase in use of electronic communications and decreasing personal contact can lead to misunderstandings about when and whether the attorney-client relationship begins. 

Creating an engagement letter that sets forth the duties and obligations which the lawyer will perform for the client as well as pricing and compensation can help to solve any misunderstandings that occur in the newly formed attorney-client relationship.

But perhaps more important than an engagement letter is a nonengagement letter that does the opposite- to advise the client that he is not your client.  An effective nonengagement letter for the client would advise the individual to seek representation elsewhere.  An effective engagement letter on the lawyer side would clarify a potential misrepresentation problem which would serve to limit potential malpractice claims.

There is a big difference between giving legal advice (alert: you are entering into an attorney-client relationship) and simply providing legal information.  The difference can lead to malpractice suits in addition to the fact that you will likely have to put in the time to represent that client.

I think there is a great temptation to want to take every client that walks in the door and when asked about a legal issue, to answer it.  The problem is that in doing so it makes a lawyer subject to an unwanted client relationship and makes the client receive less than superior representation; this is really a lose-lose situation.  Clarity and communication are key to ensuring that people are getting (and not getting) what they want!

By: Violet Petran

Class-Action Lawsuit Alleges "Super-Stacked" Subs Are Neither Super, Nor Particularly Stacked

Are you a nutritionist? No? Then you should probably consult with one before you file a lawsuit like this one. You’ll save yourself quite a bit of embarrassment, and may even save yourself from becoming this week’s laughingstock of the legal blogosphere (no guarantee, though; they’re a fickle bunch).

 

An attorney in Illinois has filed a lawsuit against the Blimpie chain of sandwich shops. The restaurant chain advertises that any of its sandwiches can, for a small additional charge, be “Super-Stacked” – made with twice as much meat as an ordinary sandwich. However, the attorney is alleging that the “Super-Stacked” sandwiches don’t actually contain twice as much meat as the regular sandwiches.

 

How did he reach this conclusion? By looking at the restaurant’s published nutritional information. At first glance, one might reach the same conclusion as this lawyer: a regular sandwich contains 49 grams of protein. A Super-Stacked sandwich contains 71 grams. Shouldn’t a sandwich with twice as much meat have twice as much protein? It seems reasonable at first glance – most of us know that meat is high in protein, and most people (non-vegetarians, at least) get most of their protein from meat.

 

It also seemed reasonable to this attorney, because he’s now alleging that Blimpie engaged in deceptive business practices and claims that each plaintiff might be entitled to $75,000 in damages.

 

There’s just one problem: meat isn’t the only thing in the world that has protein in it. In fact, it’s not even the only thing on that sandwich that has protein in it.

 

As this blogger accurately points out, the bread and cheese on the sandwich are also fairly high in protein. He even does the math for us: the 2 slices of American cheese that both sandwiches come with contain a total of 10 grams of protein. The bread contains 15 grams.

 

Subtract that, and we have 24 grams of protein from meat on the regular sandwich, and 49 on the Super-Stacked. Granted, I went to law school to avoid doing math, but I can tell you that 49 is almost exactly twice as much as 24. Sorry, Mr. Plaintiff’s Attorney, your lawsuit is over before it began.

 

I won’t question this attorney’s motives, because I honestly don’t know what they were.

 

However, I do know that lawyers don’t think like many other people. Lawyers are trained to spot problems, and then solve them. In preparing for exams, first year law students have the skill of “issue spotting” drilled into them – a large percentage of your grade on most law school exams comes from how many problems you spot, and propose a solution for. Whether or not you propose a good solution counts for far less. While being trained to spot problems is certainly a good thing, lawyers are generally not trained to gauge how important a particular problem is, in the scheme of things. Now, this is certainly a skill that most people (and by extension, most lawyers) possess, but you can bet they didn’t learn it in law school. This results in some lawyers seeing every tiny issue in the world as a legal question begging to be answered. 

 

Some lawyers can’t leave this manner of thinking back in law school, where it belongs. It’s rarely useful in the real world.

 

This lawyer could have figured out he had no case by doing something that literally any other person who suspected of being shortchanged on meat would do (assuming they cared enough to investigate): buy a regular and “double” sandwich, take the meat out, and weigh it, and then see if the double-sized sandwich actually has twice as much meat, by weight. Problem solved.

 

Repeat after me, kids: Think before you sue.

By: Rusty Shackleford

 

 

Is There Truth In Advertising?

You cannot turn on the television, go outside, read a magazine, or listen to the radio without hearing the battle of the advertisers. Whose batteries are the best? Where should you buy your diamond engagement ring? Can my hair really get 10 times thicker in just 1 wash?

The new trend: advertisers taking their competing advertising claims to Court. There has been a recent surge in this area of advertising litigation as companies search for novel ways to capture new customers and keep their current ones. As one article reads, “Companies that were once content to fight in grocery-store aisles and on television commercials are now choosing a different route — filing lawsuits and other formal grievances challenging their competitors’ claims…. The goal is usually not money but market share.”

Desperate times call for desperate measures, and with the decrease in overall consumption, companies are desperate to stay in the game.

The basis of an advertising litigation claim rests on that the competitors' ads are false and the product does not meet the claims. Some popular brands that have filed lawsuits include: Pantene against Dove, AT&T vs. Verizon Wireless, and Campbell’s Soup duking it out with Progresso.

There is a requirement that advertisements have a minimum level of factual basis in their ads. Specifically, the ad must: be truthful and nondeceptive, advertisers must have actual evidence to substantiate their claims, and advertisements cannot be unfair. When the claim proves bogus, the ad has to be pulled and the company must pay money damages. This year, there have been 82 formal false advertising complaints filed with the National Advertising Council of Better Business Bureaus.

LegalMatch has some helpful advice for keeping advertisements lawful:

• Be accurate in your representations
• Get permission from outside sources used in your advertisements
• Treat competitors fairly
• Keep sufficient quantities on hand
• Be careful when using the word "free"
• Be truthful in all claims about pricing
  
• Do not overextend offers of credit

I think this increase in searching out the truth in advertising is a positive thing. Even if the competing companies' motives are not always pure, consumers ultimately win as companies will be inspired to produce to the standards they claim.

Black Friday Is Uneventful - In a Good Way

With Thanksgiving dead and buried, citizens around the country can now turned their bloated turkey-filled bellies forward in anticipation for the endless annual nightmare that is Christmas shopping.  The conclusion of Thanksgiving means more than just a much-needed reprieve from the sudden deluge of distant relatives invading your home.  The end of turkey day also marks the beginning of Black Friday, a term apparently coined courtesy of the Philadelphia Police Department. 

 

In case you’ve been living under a rock for the past decade or you were too lazy to click on my links, Black Friday is the busiest shopping day of the year.  Large retailers usually offer major discounts on their products (though lately they haven’t been all that major) due to the fact that the holiday season is normally when they finally start earning some profits for the year.  It unfortunately is also a day infamously known for causing injuries to both customers and employees, as well as death by trampling due to overly eager shoppers looking to nab cheap flat-screen televisions.

 

Fortunately, this year’s Black Friday looks to have been an uneventful one in terms of shopping-related deaths and injuries (who would’ve known shopping would gradually turn into a health hazard?).  Even better is that the incidents that did occur are more hilarious than dangerous, for the most part anyway.  They also present enough zany assault and battery, theft, trespass, and other potentially litigious scenarios to make any law professor squeal in delight. 

 

Black Friday is funny to me because I find it so strange that people can become completely fixated on getting a good deal on some item that they’re willing to throw sanity to the wind and commit some real crimes, like the aforementioned and ever popular assault and battery.  It’s like they suddenly think that the law has been temporarily suspended or something just because of all the savings going on (they haven’t by the way and never will). 

 

But some of the cases can be a bit more ambiguous.  Take the Toy R’ Us incident in Memphis where some late-comers tried to barge into the store instead of waiting in line with everyone else and some angry shoppers tried to shoot peppery spray into their eyes, only to miss and hit some innocent bystanders.  What a legal mess.  First, the pepper sprayers probably wouldn’t have been justified in spraying the late-comers based on a defense of preserving their place in line; but they could try to justify it based on a self-defense argument claiming they thought they were under imminent threat of physical harm by the rushing late-comers. 

 

However, this doesn’t solve the tort issue between them and the innocent bystanders who were sprayed amidst the chaos.  As any tort professor will tell you, assault and battery is still assault and battery regardless of whether you’ve assaulted and battered your intended victim.  That’s what people in the legal world called transferred intent; basically you’re liable for hitting a person if you’ve hit them and should be reasonable aware that your actions could’ve resulted in harm to an unintended party.

 

Thankfully, it looks like not too many of these Black Friday cases are tying up our court system, but instances of assault and battery still tops the list cases received by LegalMatch.

 

On an aside, I’ve always wondered why Thanksgiving gets so overlooked by everyone.  It’s never really been latched onto by the media or corporate America like other holidays.  I suppose it’s probably because it doesn’t bring about the same amount of spending and profits like its cooler older brother Halloween or its hotter younger sister Christmas.  

 

Anyway, the lesson here that you all should be taking away with you is that bargains shopping is never a defense to anything…