Do you remember Jeb Corliss? He’s the clown that tried to BASE jump off the Empire State Building in 2006, got busted by security, and then sued the building claiming emotional distress. I know, I know, that sounds even dumber than the claim of being fired for being too sexy, but it’s true, he actually did make such claims as I wrote about a year ago: Empire State Building v. Jeb Corliss.

Well, first he was convicted of reckless endangerment, and sentenced to three years probation and 100 hours of community service. Then his lawsuit for defamation — he claimed it was defamatory to claim his conduct was illegal, a concept that fell by the wayside upon his conviction — and his claim for emotional distress, were  tossed out.

Justice Jane Solomon wrote that “Preventing an individual from jumping off of the 86th floor of the Empire State Building is neither extreme nor outrageous,” (h/t Overlawyered).

And just to make sure he got the point, the judge also banned him from ever setting foot in the building again. Why do that? Presumably so that if he tries again, and again endangers the lives of the pedestrians on the street below, a future judge can add contempt of court to the charges that he will face.

He was also fired from his job as host of the show Stunt Junkies.  And the Empire State Building’s lawsuit against him for disrupting its business will be allowed to go forward, meaning that he might stand to lose a pretty penny in cold, hard cash when this is all over. Unlike the overwhelming majority of injury cases, it’s  rather unlikely that there is an insurance company standing there beside Corliss for  his intentional act.

Was all the publicity worth it?

Maybe he can commiserate with ‘too sexy’ banker Debrahlee Lorenzana who is now the laughing stock of New York (because with two wars, a crappy economy and a massive oil spill, we need something to laugh about). They’d make a great couple in the never-ending pursuit of celebrity. They could even make babies together: Imagine the offspring of a dipsy banker and a brainless stunt junkie. I know there’s a joke in here waiting to get out, but I can’t really top what the two of them have already accomplished, and besides, their abuse of our court system saddens me too much.

You see, when people go into the courthouse for “regular” lawsuits over real wrongs and real injuries, it is the high-profile nonsense that jurors will have have read about. It’s the nonsense lawsuits — the outliers — that get all the attention, and they get it for just that reason, they are outliers. And that taints the jurors’ perceptions of the justice system, and makes everyone more cynical about how our judicial system operates.

Jeb Corliss and Debrahlee Lorenzana may have made fools of themselves,but they have hurt others who actually need access to the courts.

Roy “Pants” Pearson, who infamously sued a dry cleaner for a lost pair of pants for $65M, only to reduce it later to $54M, and still managed to lose for some reason, has lost again. This loss was in the US Court of Appeals regarding the loss of his job. He claimed he was denied reappointment because of his complaints about the peer review system in place at the D.C. Office of Administrative Hearings. You can read more details here: “Pants Judge” Pearson Loses Appeal in D.C. Circuit.

While it’s tempting to crack jokes and endlessly take rhetorical spins on pants suits and whatnot – I leave the to Kevin Underhill, see Judge Who Lost Pants Forced to Rely on Briefs – the fact is that this is a very serious matter. Here is why:

This was a classic frivolous case, or at least, the damages claim was frivolous. But the real problem is that outlier suits like this — those wacko ones that we read in the press — are then used to argue for tort “reform.” It has long been the strategy of those that wish to dismantle the civil justice system by using such outliers to deprive justice to those with meritorious claims.

Previously:

Pants Lawsuit Ends in Victory for Dry Cleaners (6/25/07)

Trial Lawyer Group Makes Ethics Charge In Dry Cleaning Case (5/9/07)

All Hemmed Up Over My Pants Rant (Kia Franklin @ Tort Deform (6/19/07)

A doctor that has thrice been sued for medical malpractice, with the same expert coming in against him all three times, got fed up and sued the opposing expert, claiming fraud. For his troubles in the unusual suit, both he and his attorney have been socked with sanctions by a New York judge.

The decision by Justice Marcy Friedman in Cattani v. Marfuggi, filed last week in New York County Supreme Court (our trial level court), ripped both Dr. Robert Cattani and his counsel Richard Paul Stone, for bringing an action she deemed frivolous. Because of an “overwhelming body of case law, reiterated repeatedly by the appellate courts of this state,” against such suits, Justice Friedman sanctioned both lawyer and doctor $1,000, and has scheduled a hearing for them to come back to determine reasonable legal fees to be paid.

Judge Friedman reiterated the long-held position that “statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding.”

During the pendency of the action, Justice Friedman said that she took Mr. Stone aside in chambers and warned him of the potential for sanctions if he didn’t drop a suit that could not be maintained, but that Stone informed the court his client wanted to go forward.

The standard for frivolous conduct is well known here, and is set forth in our rules of court (22 NYCRR 6 130-1.1[a]). Conduct is frivolous if it “is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.”

Lesson to be learned: Learn to say no to potential clients with crazy claims. There is nothing to be gained by bringing frivolous suits, and much to be lost. A successful law practice isn’t made simply by hoping you might win the case, but by learning which cases not to take.

Monster Energy Drink’s lawyers seem intent on living up to their product’s monster name. Since I consider frivolous legal conduct to be within my wheelhouse, and this evening being Halloween eve, I thought I would look at the monstery conduct of Hansen Natural, the billion dollar company that makes this brew.

Could this company really have issues in this scary season, or am I just trying to piggy-back a play on names today? You be the judge:

In one act of brilliance, the legal wizards thought it would be a fine idea to send a take down notice to a beverage reviewing website. The site is actually called BevReview.com, making it pretty clear at the outset what their focus is. They reviewed the product. And they trashed it:

The color of the drink was dark yellowish… I guess you could call it amber, but who really knows. Think apple juice with a somewhat red tint. As for the taste, well… it was odd. Think citrus + medicine. Yum! There wasn’t a lot of carbonation (which reminded me somewhat of how Vault is being positioned as a hybrid soda/energy drink). The aftertaste was somewhat bitter, rather acidic. Not really pleasant, to tell you the truth. I actually couldn’t quite place what the heck the flavor actually was. It starts out smooth, and then the aftertaste kicks in and ruins it. (Of course, this might also have to do with the fact that sucralose is listed as an ingredient.)

Overall, the taste was weird and I don’t think I’d want to drink this again.

No problem, right? Except that their chief legal eagle, Darlene R. Seymour tried to scare the crap out of this little web site by threatening them with a lawyer letter. Perhaps she missed the class on that First Amendment thingie. The web site posted the letter, apparently telling Hansen to take the proverbial long walk on the long short pier.

And in another attempt at making its name synonymous with evil, the billion dollar company sent a cease and desist letter to the tiny Vermont Rock Art Brewery for trademark infringement for making Vermonster Beer. Hansen thought there might be some confusion in the marketplace, despite the fact that they don’t even make beer.

But that didn’t work out so well either, as the brewer fought back with a viral marketing campaign including a YouTube video hit. The owner went with the Web Defense under the assumption that the legal defense, while clearly winnable, would bankrupt his tiny brewery. So instead of waiting for the economic end game to hit him, he went after the giant.

In one of the great David v. Goliath battles of the web, which ended with a fast win for the brewery, the brewer turned the tables on the mega-monster when Hansen distributors started to boycott Monster Energy. Instead of punishing the brewer with legal fees, Hansen was now being punished with its products being pulled from shelves.

And others chirped in that, by the way, their stuff tastes like camel piss. Welcome to the web, Hansen.

So instead of pounding the brewer into salt, it was Hansen that got pounded. Just check some of these links out:

• Corporate monster picks on ‘Vermonster’:
  

  Where are those lawsuit reform groups when you really need them? You know, such outfits as Citizens Against Lawsuit Abuse that are always squawking about “frivolous” lawsuits and demanding new laws to prevent people from suing big corporations.

• Some Kind of Monster: Vermonster vs. Monster:
  

  All of this got me thinking. I seem to remember a lot of monsters throughout history. These monsters have no problem with Rock Art’s Vermonster or Monster energy drink co-opting their name and hopefully when they call for a jury of their peers, some of them will sit on that jury.

• A Corporate Monster vs. “the Vermonster”:
  

  Chance are that you’ve seen ads, letters-to-the-editor, op-ed pieces and other materials put out by outfits with such civic-sounding names on Citizens Against Lawsuit Abuse. By whatever name, the message is always the same, usually delivered in a sort of urgent, basso profundo voice saying something like this: “Bloodsucking lawyers are constantly filing frivolous lawsuits against beleaguered corporations.

• MONSTER Mash: Analyzing MONSTER ENERGY v. THE VERMONSTER:
  

  I would predict an outcome in favor of Rock Art. The fact is, Hansen is far from the first to use or register a MONSTER-formative mark for beverages.

• Why Monster’s Trademark Claims Against Vermonster Stink
  

  Hansen’s argument, however, is weak for several reasons. First, why would anyone believe that a product named “VERmonster” — a mark alluding to the state of Vermont — is affiliated with Monster energy drinks? Second, the term “monster” isn’t exactly distinct to Hansen’s energy drink. In fact, we correlate the term “monster” with so many things (e.g., job-searching websites, creatures in Loch Ness, etc.). Third, while some energy drinks have moved into the alcoholic beverage market, none of them have yet entered the beer market. For these reasons, it’s doubtful that Hansen has a viable argument that Rock Art’s “Vermonster” causes a “likelihood of confusion.”

And in a note to the shining legal talents that represent Hansen, you should note that my mockery of your product in the image shown here also falls within the ambit of First Amendment protection. (Both ass sweat and camel piss are, as far as I know, natural products, which you seem to tout in your drinks, so I figured you’d appreciate that. You might also like the trailer for Booty Sweat Energy Drink, but that would require an actual sense of humor.))

Perhaps you think my comments made lead to some confusion in the marketplace as to your actual ingredients. But that’s unlikely, since I don’t presume that readers of this blog are total morons.

I know that I shouldn’t have to explain that to you, and that is should be readily apparent to all lawyers (and in fact, everyone that made it out of high school), but you guys do seem to need a bit of help in that department.

Another victory for the tort “reform” movement. Albert Freed wanted to sue Hanes because of a claim that his underwear gaped open and hurt his penis (and he didn’t do anything about it). It’s notable that he represented himself, since apparently no lawyer would have been moronic enough to touch it. (Not the plaintiff–>>)

This spectacularly stupid lawsuit (coming to us by way of Above the Law, where there will no doubt be abundant commentary that is NSFW) had its origins in a two week vacation to Hawaii, and new briefs that the plaintiff’s wife bought for him. He testified that they gaped open at the fly, that this was apparent to him on the second day of the trip, that he got an abrasion, that he did nothing about it for two week, that he didn’t even look at himself, and that some topical ointment cleared the problem up in a day or two when he got home. He brought suit for defectively manufactured briefs.

Previously I’d written about Roy “Pants” Pearson and his $54 million case against a dry cleaner for his lost trousers. OK, pretty much everyone in the world had written about that one. But Freed can now take his place beside Pearson in the pantheon of public humiliation over ill-considered lawsuits. Pearson probably still has the lead here based on the fact that he is an attorney, but still, Freed has given him a run for his money.

Why did Freed do this? I’m going to take a shot at this here: He won the trip as a reward for selling $20,000 of diet products. Yet he weighed 280-290 pounds. Perhaps he thought he could sell anything to anyone.

Why do tort “reformers” like these kinds of nutty suits? Because the corporate-run movement is based on anecdotes and not empirical evidence. If the U.S. Chamber of Commerce trots out a few losers like this, then they think they can make headway into closing the courthouse doors to legitimate suits. It is rare suits like this that make news, not the legitimate suits that are “ordinary” by comparison and that make up the bulk of the cases in the courthouse.

On a final note, you really have to read footnote 3 to the opinion, about the lawyer sitting in the gallery “minding his own business” who was suddenly called as an expert witness, since he was the only male available that was watching the proceedings that was not involved.This was a “prominent” local defense lawyer who was “conscripted” into the proceedings to talk about “penile discomfort.” The court declined to name him, but acknowledged the lawyer was a “good sport” about it.
Opinion via ATL:/Freed-v-Hanes.pdf

Links to this post:

Handling a Products Liability Case on the Fly
I must confess I have never spent a lot of time thinking about men’s underwear. Thus, it never crossed my mind that a products liability case could arise from men’s underwear of any type. Women’s underwear are different. …

posted by jday@dayblair.com (John Day) @ October 26, 2009 5:46 AM

I swear I didn’t make this up. A local defense lawyer sent a demand letter to a plaintiff’s attorney that he delete “pain” from the injuries in a suit because “pain is not an injury.”

When Eric Gottfried, the plaintiffs attorney, got the letter, his jaw dropped. Pain not an injury? In his response, Gottfried referred the defense lawyer to a “beginning tutorial on how ‘pain’ is central and essential to a personal injury lawsuit.” You can see the demand and response here: /DefendantsNonsense.pdf

The case seems to be a routine personal injury matter, as per Gottfried: Plaintiff is hit in the rear by the defendant in a car accident. Plaintiff has suffered a number of injuries, including a fractured nose (with surgery), three fractured vertebrae, fractured rib and rotator cuff injury, among others.

The tort “reformers” like to use anecdotes to “prove” that there are frivolous lawsuits. (Many of those cases, in turn, are pro se matters.) So here is the flip side: The most utterly worthless and frivolous legal argument that I can imagine coming out of a real law firm.

The difference, of course, is that defendants get paid to make frivolous arguments (when billing hourly) while plaintiffs lose time and money doing so (while using the contingency fee).

Links to this post:

is pain an injury?
yes, it is. the end. ok, not really. frivolous lawsuits are bad. just about everyone agrees on that, though there’s plenty of room for reasonable disagreement as to what makes a lawsuit frivolous. what we don’t hear about nearly as …

posted by Andrew Dat @ August 24, 2009 4:53 PM

if frivolous lawsuits are bad, what about frivolous defenses?
we are always hearing about these evil, un-american frivolous lawsuits that threaten the very fabric of our society. ok, i get it. i dislike frivolous lawsuits as much as anybody. they devalue the claims of the truly injured, …

posted by @ August 18, 2009 10:10 AM

The Chamber of Commerce has blown its own propaganda campaign regarding frivolous lawsuits. At this website designed to spread the myth of the frivolous lawsuit as a bona fide problem, they mistakingly included a pro-consumer eight-minute video called Mr. Fancy Pants. If you hold your cursor over the pictures after the video runs, you will see which one it is.

The video was produced by Injury Board, a collection of plaintiffs attorneys, and discussed last year at TortDeform.

Whoever put the Chamber site together apparently didn’t listen past the opening minute or so, which gives the propaganda angle. The rest of the video goes on to explain how the Chamber puts together their lobbying efforts and that judges already have the power to sanction litigants over frivolous cases.

I expect the Chamber to pull down the video after I post this, and perhaps slap someone upside the head for not bothering to actually watch the stuff they put up on their own site. I’m sure their corporate contributors will be delighted. Since it will likely disappear from their site, I’m putting the video here since it is also on available via YouTube. Enjoy the video…now being actively promoted by the U.S. Chamber of Commerce:

P.S.: These additional videos linked at the end of a clip are likely embedded by YouTube. If you look at the bottom of the video that I posted, for example, you will see unrelated “pants” videos. Which means that corporations that want to use this stuff need to re-code the YouTube videos to exclude those frames and links.

Former administrative judge Roy “Pants” Pearson, who infamously brought a $67M lawsuit against a dry cleaner for allegedly losing a pair of trousers, has lost his bid for a new trial. That he subsequently lowered his demand to only $54M didn’t seem to matter (Previously: Pants Lawsuit Ends in Victory for Dry Cleaners.)

Covered extensively up down and sideways by every writer with a keyboard, the D.C. Court of Appeals has now weighed in to reject the appeal.

Pearson’s claim, briefly summarized by the Court in a 23-page opinion, was:

Pearson’s claims regarding the “Satisfaction Guaranteed” sign are premised on his interpretation that the sign is an unconditional and unlimited warranty of satisfaction to the customer as determined solely by the customer, without regard to the facts or to any notion of reasonableness — a position he has consistently advocated both in the trial court and on appeal…

[Pearson] argued unambiguously that “[a]s a consequence of offering an unconditional guarantee of satisfaction a merchant is required to satisfy a consumer’s demand for lawful compensation (for example, for any amount of money). (emphasis added by Court of Appeals, at page 13 of decision)

The trial court, said the appellate bench, showed “basic common sense” to reject the unlimited claims of Pearson and that Pearson’s fraud claim “defies logic.”

The court’s opinion is rather matter-of-fact about the case, with a long recitation of the facts and extensive citation to case law. There are no gratuitous comments about the ludicrous nature of the demand, other than the legal analysis of it being without basis, and no discussion of sanctions.

The court may realize that such sanctions and commentary are unnecessary since, in the court of public opinion, Pearson has been tried and convicted and there was nothing new to add.

The decision is here, courtesy of How Appealing: Pearson-v-Chung.pdf

Will Brooklyn lawyer Marina Tylo be spanked for a frivolous defamation suit against a New York law blogger?That is the question being asked by Scott Greenfield over at Simple Justice. It seems that Tylo screwed up by serving a Summons prior to purchasing an index number. That’s a no-no in New York, and has been for years. You have to first pay the index number fee to start the suit, then serve the summons.

Tylo was sued for legal malpractice as a result. But because the subsequent attorney still had time to rectify her blunder, the malpractice case against her was dismissed.

Andrew Bluestone, whose blog focuses on New York attorney malpractice, wrote the story up. Sort of. He actually just wrote a prefatory paragraph that introduced the decision. You can see his posting with the decision here: Serving a Summons before Buying an Index Number

But that blog post seemed to make Tylo upset. So she sued Bluestone, apparently because he had the audacity to report the story. Her claims include libel, negligence, gross negligence, intentional infliction of emotional distress, and “tortious interference with prospective contractual relations.”

According to her legal filing, this is the entire text of Bluestone’s allegedly tortious conduct, this being his introduction to the court’s decision:

Here is the full text cite for a legal malpractice case in which plaintiff’s attorney served a summons before buying the index number. Khlevner v. Tylo, 10733/07

That’s it! You want the definition of frivolous? You got it right there in that filing. A simple factual statement. He didn’t even offer his opinion, which of course, would be protected anyway under that little First Amendment thingie.

(Addendum: The exact definition of a frivolous suit is right here. Conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another;)

And what kind of relief does Tylo seek? Aside from 10 million bucks, she wants Bluestone to remove his posting. The relief she requests includes:

• A retraction of his “libelous” statement; and
• “Removal of above stated statements, as well as other like and similar statements, from all publications, blogs and other media.”

Perhaps she thought that by suing him she could purge the Internet of this posting, so people wouldn’t see it when they looked her up. Tylo, of course, is not the first to have this brilliant idea of trying to purge the Internet of unfavorable references. She apparently has no clue about something called the Streisand Effect. (She also might find Dan Solove‘s book, The Future of Reputation On the Internet, to be of interest. Though reading it before filing suit would have been wise.)

So as a result of her idiotic suit against Bluestone she has drawn more attention to herself. Which probably wasn’t what she had in mind. Especially since others might now offer their opinions. Like Greenfield did. Like I do now. And those would be constitutionally protected opinions I might add, though frankly, anyone with a license to practice law in this country should already know that.

One last thing, by the way, since I found her bio. If she cares about her Internet reputation, she might want to put a bit more care into how she presents herself:

I am a very experienced and competant attorney. I finished NYU law school and have over 14 years expiernce in legal matters relating to Real Estate. Even though by using a great attorney such as my self you can save a whole lot of money I do not charge excessive legal fees. I also have a lot of expeirnce in investing and owning real estate and thus I am in a position to trully understand and appreciate any pitfalls associated with all types of real estate transactions including Litigation, Closings, Tenant issues, and transactional negotiational matters. I am licenced in the State of New York and all Federal courts, and Supreme Court of the United States. I will fight for my Clients tooth and nail to get the desired results.

Ms. Tylo, welcome to the electronic age.

You can find more on the subject here (updated periodically as more write on the subject):

• Brooklyn Lawyer Marina Tylo Deserves a Good Spanking (Simple Justice)

“From the annals of the truly stupid comes this latest attempt to shut down a blawger.”

• Does Marina Tylo File Frivolous Lawsuits? (Crime and Federalism)

“If some books are destined to on the big screen, there are some lawsuits destined to appear at Overlawyered.com.”

• I Trully Hope She Learns From This Expiernce! (Defending People)

“I can’t disagree with Scott, but the more salient point, in my view, is that Tylo chose the wrong defendant…”

• Marina Tylo Meets Barbara Streisand (Crime and Federalism)

“This wasn’t a very good idea, since filing a frivolous lawsuit against a law blogger is not the type of event that other bloggers will ignore.”

• Brooklyn lawyer Marina Tylo sues blogger for reporting that she was sued for malpractice (South Carolina Criminal Defense Blog)
  

  “…this ridiculous effort by Tylo to silence a blogger will end up earning her much more bad press than the one small post on Bluestone’s malpractice blog did”

• New York Lawyer Sues Law Blogger for Reporting on Malpractice Lawsuit (Citizen Media Law Project)
  

  “Unless I’m missing something, this looks like a purely frivolous case, perhaps a situation where sanctions against Tylo are appropriate.”

• Two Bloggers Sued, One by a Lawyer (Ambrogi/Legal Blog Watch)
  

  “What did Bluestone allegedly do to injure Tylo to the tune of $10 million? He quoted from a court decision in a legal malpractice case against Tylo.”

• Watch What you Say About Lawyers (Overlawyered)
  

  “…several blogs have already 1) mentioned the strong privilege that attaches to fair reports of court proceedings and 2) suggested that Tylo will before long be well acquainted with the phrase ‘Streisand effect’.”

If the name Jeb Corliss doesn’t ring a bell, he is the guy who got busted trying to parachute off the Empire State Building in July 2006. He was caught right away and arrested. The reckless endangerment charge was dismissed (currently on appeal), and he now brings an action for intentional infliction of emotional distress and defamation. For background, see Marc Randazza’s two posts on the subject:
Jeb Corliss Sues Empire State Building and Jeb Corliss Lawsuit Update (with video).

Jeb Corliss, it seems, is a moron of the first degree. Either that or he is such a publicity hound that he knows bringing a stupid lawsuit will simply bring him more publicity, and any publicity is good publicity.

The essence of his argument seems to be that he is an experienced BASE jumper and knows what he is doing and therefore won’t get killed doing it and won’t land in traffic. Well jolly good for all that.

But he isn’t the only one in the City of New York, and there just might be a few people walking down below near this spectacular landmark building that are stunned at the sight of a man parachuting down into one of the busiest places in Manhattan, and that they just might take their eyes off the taxis, busses and other vehicles flying by as they cross the street. Worse yet, he could be seen by someone actually driving one of those vehicles who would be, and this isn’t exactly a surprise, severely distracted.

Now I once saw a guy parachute unexpectedly into a high profile event, so I have a perspective on ground reactions to such a thing: In Game 6 of the 1986 World Series at Shea Stadium, Michael Sergio floated down out of the sky onto the field. And the crowd, myself included, was pointing and roaring while he was still hundreds of feet off the ground. Let’s just say he had everyone’s absolute and undivided attention.

Great stunt. Now picture that with moving vehicles on the street below. All of a sudden, not such a great stunt. Dumb stunt. Dangerous stunt. The kind of stunt where pedestrians can get inadvertently run down by large moving vehicles.

This clown doesn’t want me on the jury regarding his lawsuit. In my view, the police and security were well within their rights to do most anything humanly possible to stop him from creating a dangerous condition on the ground. The idea that they demonstrated “extreme and outrageous conduct,” as required under New York law to bring a suit for intentional infliction of emotional distress, will most surely fail. (And the idea that a BASE jumper actually suffered emotional distress from the experience is too stupid to be believed.)

He’s suing for the intentional infliction of emotional distress after planning this stunt, he says, for two years. Frankly, I think the guards that stopped him have a better claim against him.

Elsewhere:

• Suit: You kept me frm jumping off the Empire State Building (Overlawyered)
• Would-Be Jumper Sues Empire State Building (NYT- City Room)
• Stuntman Could Face Indictment Anew (Associated Press)
• Ridiculous Lawsuit of the Month (CKA Mediation and Arbitration)