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TheTMCA.com | Legal Developments in the World of Trademarks, Copyrights, Advertising and Beyond In the coming months, the U.S. Supreme Court is expected to issue a decision in Mission Product Holdings, Inc. v. Tempnology, LLC that may (yes, we said "may") resolve a circuit split as to whether trademark licensees can continue using trademarks after a licensor in bankruptcy rejects the license agreement under bankruptcy law. The TMCA has been following this case from the first decision by the U.S. Bankruptcy Court for the District of New Hampshire in 2015, through the decision by the Bankruptcy Appellate Panel for the First Circuit in 2016, the First Circuit's decision in early 2018, and the Supreme Court's grant of certiorari in late 2018. Along the way, we have explained that the Bankruptcy Code gives debtors the power to "reject" executory contracts (which relieves a debtor from its contractual obligations), and that federal courts have been divided for years regarding the effect of rejection of trademark license agreements. The blame for the circuit split can be placed largely on Congress. That is because the Bankruptcy Code—which Congress drafted—contains specific provisions for the post-rejection treatment of license agreements for "intellectual property," but those do not cover trademarks, although they cover patents, copyrights, trade secrets, and mask works, among other things. When Congress implemented those protections, it noted the deliberate omission of trademarks from the statute because the issue warranted "more extensive study," which we wrote about at length in our prior posts. The Supreme Court heard oral arguments in Mission on February 20, 2019. At oral argument the Justices focused primarily on the effect of a brand owner/licensor's breach of a trademark license agreement in bankruptcy, as a debtor, as opposed to the effects of breach outside of bankruptcy. In addition, the arguments also touched on general contract law, the "negative inference" of Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc., 756 F.2d 1043 (4th Cir. 1985) (see our previous posts for more on this case), and relevant provisions of the Bankruptcy Code, specifically sections 365(g) and 365(n), which concern, respectively the effect of a debtors' rejection of a contract generally and rejection of an intellectual property license for intellectual property other than trademarks. So you don't have to listen to the entire oral argument, we have selected the most interesting questions and issues, which, in our opinion, provide some tea leaves for those of us following the case: Off the bat, Justice Alito asked Mission whether a debtor-licensor's cessation of quality control activities would imperil a trademark. Before Mission could answer, Justice Sotomayor asked Mission whether rejection of a trademark license revokes approval by the licensor that is a condition to the license. Mission responded that quality control obligations are imposed by trademark law, and not solely by contract, and rejection entitles a debtor-licensor to free itself only from contractual obligations. Mission added that, outside of bankruptcy, a licensor's breach of a license agreement (breach being the effect of rejection on the agreement mandated by the Bankruptcy Code) does not take away a licensee's right to use a trademark. Chief Justice Roberts asked Tempnology whether a licensee can continue using a trademark after rejection, so long as the licensee carries out quality control as the debtor-licensor did. Tempnology responded that ceasing quality control abandons a trademark, causing it to lose value and its status as a trademark (which didn't exactly answer Justice Roberts' question). Justice Breyer asked whether a person can use an abandoned mark, and Tempnology conceded one can. Several Justices pressed Tempnology for authority that a trademark licensor could unilaterally terminate a license agreement outside of bankruptcy by ceasing quality control. Tempnology relied on the general notions of trademark law, including a trademark's signification of its owner and an owner's duty to exercise control over the trademark, which did not appear to relieve the Justices concerns. Justice Sotomayor asked Tempnology, at two separate points, how the Court could limit its ruling to trademark agreements, e. rather than "any number of other contracts." Tempnology stated it was only asking the Court to adhere to precedent that the effect of rejection is that the contract is no longer enforceable, but she did not seem to be persuaded by that argument. Questions by Justices Gorsuch and Sotomayor as to whether the trademark issues are moot signaled a possibility that the Court may not reach a decision on the effect of rejection. The Justices' questions intimated that Mission may not have suffered damages, because Tempnology refused to supply Mission with goods that could bear the licensed mark prior to the rejection. Following the rejection, Mission did not use the trademark, but argued it was damaged because it was wrongly prevented by the bankruptcy court's decision from using the trademark following rejection, including on goods it could have ordered from suppliers other than Tempnology. Tempnology asserted the issues are moot because Tempnology took no action against Mission that prevented Mission from using the trademark. Given that the Court granted cert for this case, we would be surprised if the Court declined to resolve this Circuit split and instead ruled on mootness grounds. Throughout the argument, the Justices and the litigants searched for property law scenarios analogous to the rejection of a trademark license agreement by a debtor—an apartment lease, a McDonald's franchise, a photocopier lease, and an igloo lease. As to the igloo, Justice Breyer likened a licensor's quality control obligations to a promise to air condition an igloo, stating, ". . . you break your promise to air condition, no more igloo." (The amicus curiae arguing in support of Mission who received this analogy disagreed, responding that a licensee can continue using a trademark because abandonment is the only consequence of ceasing quality control and that takes some time.) These discussions—and the general struggle to find a suitable analogy—highlighted the unique nature of trademark rights as property and the Bankruptcy Code's treatment of various contract rights respecting property. The oral argument provided a glimpse of the Court's unenviable task of filling in the blanks of the Bankruptcy Code that Congress left to the Courts. While the Court is clearly concerned with reaching a result that makes sense under notions of trademark, property, contract and bankruptcy law, we are eager to see how it resolves their conflicts. Once the Court reaches a decision, you should expect to hear from us again.
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SSS Online Portal | History of Bangladesh is full of power shifts, disasters, conflicts and victory. Though Bangladesh is a small country in Asia, historically it is very important. She has seen important rises and falls in history. The earliest history is a little vague. The political life of ancient Bangladesh can be found in the Greek and Latin History. In 326 BCE, when Alexander the Great invaded India, he withdrew from his conquered place as he anticipated a counter attack from the Bengal region. The Bengal region was then ruled by some valiant rulers. Bengal region was ruled by the Hindu kings. The Muslims first invaded the area in 13th Century. They seized control and established their independent rule. They ruled for nearly two hundred years without any major foreign invasion. But in 15th Century, the traders from different countries of Europe started coming to Bengal region. The Portuguese, Dutch, French and British came one by one into this region. The main reason of the European traders for coming to this region was to make money from the local market. They wanted to spread their influence in the field of trade and economy in South Asia. Though the traders had economic motives when they arrived, soon they took interest in the local politics. In 1757, the last Muslim leader of Bengal region was defeated by the British. The British started ruling the Bengal region. They imposed their rule upon the people of that region. They controlled West Bengal for approximately two hundred years. The British people had to leave India and Bengal region for strong pressure from the local intellectuals and ordinary people. Near the end of the Second World War, the size of the British Empire got reduced. The empire was breaking down. Though Gandhi and Viceroy Lord Mountbattan both tried to unite the Hindus and Muslims, the Muslims felt insecure. They were worried because they thought they will be neglected in India as this is a region dominated by the Hindus. Due to the situation, Lord Mountbattan decided to divide the subcontinent in 1947. Two countries were born instead of one. One is India and another is Pakistan. According to the partition agreement, India would be a Hindu state and Pakistan would be a Muslim state. Pakistan was divided into two parts: East Pakistan (Bengal) and West Pakistan (Punjab). Even after the partition, there were conflicts between the Hindus and Muslims. So, finally Muslims left India and moved to Pakistan. The Hindus left Pakistan and moved to India. Though there were disparity between the history, culture, lifestyle, language and customs of the two parts of Pakistan, they were united on the basis of shared belief in Muslim religion. But problems arose soon when the rulers started distinguishing the people of West Pakistan from the East Pakistan. The disparity in all sectors made the people of East Pakistan angry. The discontent grew due to the unfair policies and partial treatment of the people of East Pakistan by the government. When Urdu was imposed upon the people of East Pakistan, they revolted. Many people die for the language. The language movement brought the courage among the people of Bangladesh and they dreamt of freeing the land from the invasion of Pakistan. Finally, in 1971, after a bloody war of 9 months, Bangladesh became independent. Bangladesh Travel Guide – Three Cities to Visit With air travel becoming ever more affordable regardless of destination, scheduling a trip to exotic locations like Bangladesh is becoming the norm rather than the exception in today's travel culture. Likewise, the expansive reach of the internet now allows any traveler to check a prospective tourist destination in advance so much so that one can now plan a trip entirely on a mobile phone mobile internet device. Such advancements in travel and tourism have simplified the process so much that all one needs to do is decide exactly where to go and everything else is taken cared of from there. From insurance quotes to itinerary booking, any traveler is now safe in the hands of advance travel planning. For this reason, it comes down to deciding which three cities in, say Bangladesh, is well worth the visit for any traveler looking to relax, unwind, and see the world. You can find many article source references on the subject but for ease and convenience, we are listing down the three cities in Bangladesh that is well worth anyone's time. Dhaka. The capital and largest city in Bangladesh, Dhaka is a melting pot of the old and the new. Dhaka is also an ideal springboard for further incursions into other parts of the country. It features the most extensive list of local tourism agencies which will do all things for you short of sending a "Good Night SMS." Dhaka is also an excellent venue for getting all the necessary supplies in case you plan on spending a night or two in many of the more exotic destinations that grant access to wildlife, camping, hiking, and other outdoor adventures. Instead of spending your time reading phen375 reviews, perhaps you'd lose more weight if you spend time in Dhaka and other Bangladeshi locations. Not only are you seeing the world, but you are also doing your body a favor as well. Sundarbans. Located in the southern part of Bangladesh, Sundarbans is home to some of the most recognizable natural attractions anywhere in the world. This is a prime location for beautiful forests, the biggest mangrove growth in the world, and expansive delta swamps. Are you looking for an alternative to the Africa Safari? Sundarbans ably fits the bill. While you may not be able to buy premium Kratom here, you get everything else in the name of a crazy and wild adventure and for any nature lover, that's a trip that is well worth the attraction. Kuakata. Far away from the commercialized beaches in many other Asian locations, Kuakata in Bangladesh offers reclusive beach locations that make you feel like you are in paradise. The beaches here are strategically located to give you a stunning view of both the sunrise and the sunset. Bring your labrador retriever with you and it may feel like home away from home. Online public relations information allows you to scout your trip ahead of time. If you want more information on Bangladesh prior to scheduling a trip, do your homework and look up all the necessary information. Past that, you will not regret booking a trip to Bangladesh. Easily one of the most romantic getaways on Earth, you'll find all the comfort, relaxation and quiet that you need in Bangladesh, in the company of animals, the stunning beach and an expansive blue sky. You'll probably ask yourself why you did not come sooner. The History of Bangladesh Compared to its more popular neighbors Indian, Pakistan and Burma, the history of Bangladesh is not as well known. However, this does not mean that the history of this small country in South Asia is anything less dramatic or interesting. Like dreamweaver templates, the history of Bangladesh presents its own set of challenges and subplots that are intriguing to any student of world history but importantly to those who have taken a keen interest at this country. Bangladesh did not become a formal sovereign state until 1971 but even before this, it already had a rich culture that was well documented in the region. This is because the thriving religions of Hinduism and Buddhism all had their roots somewhere in the region where Bangladesh is located. As such, the land on which modern-day Bangladesh has stood has been a stirring witness to rise and fall of many civilizations in the area. No amount of anti wrinkle cream can hide the fact that Bangladesh has laid witness to countless wars for various purposes from the early Gupta and Harsha Empires of the 3rd to 6th centuries CE to the last war that led to its independence. The long history of Bangladesh paved the way to the occupation of the British in the 19th century. The change in governing authority was more like a drug detox for the people of Bangladesh who had to get accustomed to a new set of political, religious and economic policies. It was never a melaleuca experience; rather it was a time of serious struggle for the people who had to adjust to foreign influences for the very first time. Still, this also marks the period where the people of Bangladesh were formally introduced to the benefits coming from the West particularly in the area of education and medical aid. Formal independence for Bangladesh was gained following the war in 1971. This was after Bangladesh was originally considered as East Pakistan. While the country remained under Indian influences for the next few years, Bangladesh began to be freely ruled by people from within the country. This marked a period of steady progress where Bangladesh opened itself to modernization, and economic growth via capitalism. With the introduction of modern advantages like online mba for students, the growth of it jobs, and even technological benefits like home alarm systems, Bangladesh is slowly but surely introducing itself into the world. Still, the history of Bangladesh continues to evolve today as the country fights to overcome serious social, political and economic issues in the 21st century. Its economy enjoys a solid BB- rating which is higher than that of Pakistan and neighbor Sri Lanka but it also continues to suffer from rampant perceptions of corruption and crime. As Bangladesh forges ahead, there is no doubt it will be present in many an ebook reader detailing its ascent into the world stage. Only time will tell if Bangladesh makes the leap from being a developing country into a development one. That is something that the government and its people must work hard at achieving in order to be able to provide a bright future for the future generations of Bangladeshi citizens. The Three Must See Cities in Bangladesh If you are all for travel and tourism to exotic destinations particularly those in the Southeast Asian region, then there are three must-see cities in Bangladesh that you need to visit to complete your whirlwind tour of The Far East. While the name of these cities are fairly hard to remember or might cause you to cheat at scrabble, there are plenty of reasons – mainly religious and cultural – that make Bangladesh and its cities a definite stopover during a trip in the region. Here are the three must-see cities in Bangladesh and what you should expect when you drop by these unique tourism destinations. Dhaka. The capital of Bangladesh, its primary attraction has to be its mind-boggling "collection" of rickshaw transports. By conservative estimates, there are roughly 400,000 rickshaws running around Dhaka on any given day and you do not need a masters of accounting to tell you that such a number is truly astounding especially when you consider that Dhaka is not even close to being considered a major metropolitan district by global standards. Rickshaws are the lifeblood of Dhaka as a city and they bring tourists closer to the city attractions figuratively and literally speaking. Dhaka is also home to plenty of cultural attractions like the prominent national holidays on March 26 commemorating the nation's Independence, February 21 as the Language Martyr's day, and the 16th of December as Victory Day. These carry the local Buddhist and Hindu influences in the region and are excellent attractions to those interested in learning about East Asian culture. Any masters in education or even those planning RN to BSN online programs but would want to take a break before plunging to the rigors of intensive studying can certainly benefit from the refreshing atmosphere that is Dhaka, Bangladesh. Of course, we mean that in the full cultural sense of the word. Chittagong. Next to Dhaka, Bangladesh, Chittagong is the next biggest city in the country and is home to a multicultural collection of beliefs influenced by Islamic, Buddhist, and Hindu cultures primarily because of its location as a port. Chittagong is also home to the rich historical chapters that helped defined Bangladesh as the struggles opposing the conquering invaders of the Second World War had its roots here. At its very best, Chittagong is undergoing a dramatic face lift and is becoming an attractive home to many an umbrella company as the city is widely considered as one of the fastest growing metropolitan districts in the world. If you want to see a third-world city in action, or if you are planning to grow your business in East Asia, there is little doubt that Chittagong is the best place to be in as it also gives you access to neighboring territories like Nepal, Bhutan, Burma, Northeast India, and even Southern China. Khulna. Rounding up the list of the three must-see cities in Bangladesh is Khulna which, not surprisingly, is the 3rd largest city in the country after Chittagong and Dhaka. Khulna is a vital location for many a masters in health administration professional as majority of the world's battles against infectious diseases are being waged here, including malaria and water-borne diseases. Still, it cannot be denied that Khulna remains to be a vital and strategic location for business and economics in the region as it is like a city with a coach hire advertisement sign as it seeks to remodel itself into a vital economic hub next to Chittagong. As Bangladesh grows, so will Khulna with all the potential that it offers. While Bangladesh is far from being one of the most recognizable cities in the world, its potential for growth is more than apparent. Consequently, it remains to be a popular destination for exotic tourism escapades or even backpacking trips for religious and spiritual discoveries. The next time you find yourself in Bangladesh, check out Dhaka, Chittagong, and Khulna for all the great attractions that it offers. With these, you can make your Bangladesh visit one that will be truly memorable for many years to come. Travel Tips While Visiting Bangladesh If you have never been to Bangladesh and you are looking for more information on the country, its citizens, the roads, the sightseeing that is worth awhile there, the best types of hotels to stay in or what precaution measures should you be taking if you are planning on going here for the summer, you should read article here and learn everything there is to know about Bangladesh and Bangladesh tourism in particular. First and foremost, you are going to have to think about the prefect time of the year when you can visit Bangladesh. Once you are done with this type of planning, you should go ahead and decide what type of transportation means should you better opt for. Taking the bus could represent an action that is going to submit you to a constant threat of terrorism is some areas of Bangladesh. Driving to this far-distant country could also prove to not be a great idea. Taking your time and doing the proper amount of research about traveling to and visiting Bangladesh should also help you understand if taking your english mastiff along is a good idea or not, especially if you are going to be travelling to cities such as Sylhet and Chittagogn Hill Tracts. There are no top dental hygienist schools awaiting for there, but rather cruel acts of terrorism that might be welcoming you on these lands. As a matter of fact, the general lines of recommendations refer to the avoidance of tourism travelling to these parts of Bangladesh, as you will also be required to go through some rather harsh formalities. The official authorities are going to be asking for a 10-day notice in regards to your travel plans in Chittagong Hill Tracts. In other words, the situation can get so delicate there, that, at times, not even the best wrinkle creams on the planet should be able to help you forget all about your terrorism-related experience. Violent street disorders, local abductions of citizens or politicians and bus or public vehicle burning activities are not uncommon here. Ordering some books using Amazon Australia and doing some heavy reading about acts of terrorism should aid you learn more about this threats of the 21th century. Plus, pick pocketing and armed robberies are also often times occurring in Bangladesh, so special attention needs to attributed to doing your shopping there. As for the road travelling itself, you also need to pay special attention to the poor road conditions and the poor quality of the roads. Speeding and aggressive overtaking of the road are going to yet pose another threat to you, so if you are thinking about going to Bangladesh in order to be a part of some mph programs, you should probably think again. Upon preparing your incursion here, you might as well think about asking some masters of social work students to tell you how to handle travelling to countries that are under the threat of terrorism. Bangladesh Breakdown Country Analysis Bangladesh The Vibrant Culture of Bangladesh When eyeing a country to visit in Asia, it helps to be acquainted with the vibrant culture of Bangladesh, a small country of 148 million people sandwiched between India and Burma. Not too long ago, the reputation of Bangladesh was such that it was a poor country reliant on agriculture, tourism, and fishery as its primary means for livelihood. However, the growth of industrial and commercial markets primarily coming from India and spilling over to Bangladesh and fueled by more research into technologies designed to push the region forward has dramatically uplifted the quality of life in Bangladesh. As such, it is now one of the more enticing destinations for tourists from all over the globe. With regard to the culture of this vibrant country, everything begins with the influence of history and religion to what has become of Bangladesh today. It is heavily influenced by the cultures from India and the Cambodian peninsula which is discussed in better detail when you click here. Bangladesh also has very strong ties to Islamic traditions from nearby Middle East and this is also an essential determinant in today's economy where company ratings can be traced to connections in the Arab peninsula. The same can be said of the music coming from Bangladesh. While the country does not produce Taylor guitars for export, you can bet that it has a long list of musical instruments that pool together the country's rich history and cultural heritage. Such instruments include the ektara, dhol, dotara and tabla and are important musical pieces in North Indian classical music. The richness of the musical genre also spills over into the dance scene as there are many folk dances, not different from those in South Africa, which are predominantly buoyed by the local tradition in the area. More importantly, the myriad of festivals and celebrations in Bangladesh are major tourist attractions the whole year around and are strong enough that the industry fuels subsequent other businesses like home remodeling companies that kick into high gear at the onset of the tourist season. Festivals like the Eid ul-Fitr and Eid ul-Adha of the Islamic calendar are well received and widely sought out by foreigners more than you would expect with a free cell phone. The same can be said of colorful Hindu festivals like Kali Puja, Durga Puja, and Saraswati Puja while Buddhist festivals like the birth of Buddha are also celebrated. There is so much to see and enjoy in Bangladesh, borne on the shoulders of its rich cultural heritage. Book a trip today and see for yourself why Bangladesh is one of the most traveled destinations in Central Asia. It's a trip that will surely fill your heart with great memories and one that will open your eyes to the richness and diversity of Bengali culture. Is Bangladesh Worth Visiting? Whenever we hear of tourist destinations marketed heavily, we always end up asking ourselves whether that place is worth visiting or not in the first place. A classic case, for example, is Bangladesh where tourism ads have been revving in full gear for a while now. Those ads do not shy away from proclaiming all the good things in Bangladesh so much so that, just from reading the ads, one would surely be enticed to check out the potential travel destinations. You find yourself reading, and then shortly after, clicking the first link to people's testimonies about Bangladesh. So is it really worth visiting? Should you even bother to plan a trip to Bangladesh? The true answer is that it really depends on your goals as a tourist. Let's be honest; it's unreasonable to expect that you will find the best in First World amenities in Bangladesh. You can't expect to see first class counterparts of your Dentist Salem Oregon or Vancouver WA dentists. If you are expecting the best that the world has to offer when you visit Bangladesh, then you will be sorely disappointed. However, this does not mean that Bangladesh is the complete opposite of what you'd expect from a first class tourist destination. The capital, Dhaka, is fairly industrialized owing to the huge volume of businesses that finds its way into Bangladesh. As a result, the amenities have followed suit and international hotel brands are not setting shop in Bangladesh. On the one hand, you may not find a Domestic Violence Attorney Seattle counterpart in Bangladesh, but finding a Westin hotel or a Radisson Blu Garden Hotel is more than enough to make up for your worries. But of course, this is not why one should come to Bangladesh. For that, you would have to be interested in the culture. Bangladesh draws inspiration from the unique intersection of the Hindu and Buddhist religions resulting in one of the more unique cultural marriages in the world. Its literature, music and arts, and norms are heavily influenced by this social union. While you may not find fantasy football names here, the festivals and attractions will be more than sufficient to keep you engaged. The cities also offer a unique insight in Third World life. Bangladesh is dominated by huge populations packed in the metropolitan areas offering a unique avenue for observing the life of many who seek to make it in the big city. Between the cars, scooters, and rickshaws during the rush hour traffic, plus the added beauty of Bangladesh's many waterways, there is plenty to see and explore in the city. You can even watch people window cleaning high alongside tall skyscrapers, if only to see how the life in this progressive country relies heavily on manpower resources. Bangladesh has plenty to offer for the right person and is certainly a good place to find something new. Learn more about what Bangladesh can offer so you can personally decide if indeed, this is a country that is well worth visiting for a tourist getaway. Economic Progress in Bangladesh There seems to be a common perception from many in the Western world that most countries in Asia outside of the notables like China, Japan, Singapore, and Russiaare wallowing in continued poverty and have yet to enjoy the benefits of economic progress. Do a quick survey in Americaasking about the economic progress in Bangladesh and the long-standing perception is that the country is more than likely to have never heard of the somanabolic muscle maximizer scam and many similarly complicated ploys. All told, it is hard to picture a country as notoriously languid as Bangladesh snapping out of its funk and finally climbing the rungs of economic progress. Is this perception true or can we be any more farther from the truth? Consider the facts vetted by multiple UN agencies and recently released to pronounce Bangladesh's slow but sure arrival on the world economic stage: 6% GDP growth amidst the global economic crisis when most western countries were seeing declines 8% growth on the industrial sector 6% growth in the services department 4% growth in agriculture 90% of all annual public spending is now supported by domestic sources rather than borrowed from international agencies like the IMF and World Bank The economic progress shown by Bangladesh over the last few years has been nothing short of astounding especially when considered in the light of Bangladesh's recent economic struggles. In a relatively short period, the country has moved from basic cash advance transactions to being an attractive hub for foreign investments in South Asia. Bangladesh primarily draws on its manpower competitive advantage to funnel jobs from rising economic powers China and India so much so that in recent years, company equivalents to a Beaverton Auto Accident assistance firm are beginning to exist. A big portion of the rise in economic performance is driven by key changes to policies which have fostered a business-friendly climate well beyond your everyday plumber chester business. Specific examples include fair and speedy processing steps for local and foreign investors alike leveling the playing field and allowing outsiders to put up their business quickly and efficiently. A Scottish Trust Deed business equivalent deciding to establish a base in Bangladesh would take no more time than a local businessman putting up an agricultural company. The same can be said of legal measures to protect from nationalization, the strict enforcement of intellectual property laws, reduced duties on imports as well as subsidies on exports, and even corporate tax holidays among other things. The long road to economic independence is slowly off for Bangladesh although it is certain that more time is required before people begin to buy Kratom just because they can, rather than do it out of need. Still, any road to progress, no matter how slow, is much better than taking a few steps backward. No doubt,Bangladesh's recent economic data suggests it is trending in the right direction with more reason for continued optimism. Only time, and the vigorous implementation of more business-friendly policies, can guarantee that growth will be sustained. In the interim, there is cause for a minor celebration. In the long-term, there is certainly cause for much hope. The Flourishing Export Business in Bangladesh The People's Republic of Bangladesh is one of the flourishing countries in Asia, despite it being a flood-prone nation during the rainy season. It has quite a lot of resources that has attracted investors for import and export businesses and local trading as well, generating a positive input in supplier and client history. While farmers and crop cultivators make up the majority of the country's population, the export business in Bangladesh generally come from the supreme group of fabrics and textiles that they manufacture. They are also known to have large deposits of minerals such as limestone, hard rock and silicone sand. Even though the country has quite a lot of resources in almost every industry, especially in the agricultural side, the absence of competent technologies to harness them is one of the main reasons why their assets have yet to reach the full potential of being explored and properly utilized. They have yet to take advantage of the high-end equipments that will transform their raw materials to several things that are deemed useful to every country. Nevertheless, their current export ventures in the garment business are still a promising one for the Bangladeshis. They are also doing export on leather, paper, tea, ceramic items, to name a few, and all of which have given positive inputs in the economy. The major counterparts of Bangladesh in their imported and exported products are India, China, Japan, USA, Hong Kong, Malaysia, Taiwan, South Africa, Saudi Arabia, Indonesia, and other countries in Europe. Companies involved in this major activity stay in touch with suppliers and customers alike through the virtual phone service that helps them stay organized and connected with each other at all times. In doing so, they are keeping their economy in the balance by importing the goods they need and produce products for local and internal consumption, by means of export. True, Bangladesh may still be laid back in terms technology innovation, but their manpower has never failed to sustain and maintain their status in the global market. Aside from the thriving economy of Bangladesh, the country has also quite a number of natural resources to be proud of. It is primarily because of the Sundarbans, which is considered to be the world's biggest mangrove forest, where the Royal Bengal Tiger resides, among many other beautiful creatures in the wild. Shapla is the country's national flower, known to many as water lily, while Kathal, or jackfruit, is their national fruit, and of late, they have chosen their national tree to be that of a mango. With the natural beauty of the country and persistence among its citizens, Bangladesh will continue to attract new markets and globally be recognized as one of the leading exporters of prime commodities. Neighboring countries may have yet to learn more from their ways and adopt their simplicity and sincerity in approaching things. Needless to say, they have gone far with lesser modern mechanism, and will continue to achieve much more if they are given the opportunity to be explored. Is Bangladesh in Crisis? Bangladesh politics offers some great insights into what can happen when abuse of authority can corrupt an otherwise peaceful march to progress and equality. From late 2006 to 2008, Bangladesh was embroiled in a deadly and violent political crisis which claimed the lives of many people. Many a professional institute focusing on global political affairs point to the root of the whole conflict as the mismanagement of political authority when it was conferred by the Bangladeshi constitution during a period of political transition. There are basically two dominant political parties in Bangladesh; the Bangladesh Nationalist Party (BNP) and the Awami League. In late 2006, a caretaker government was formed to oversee the administration of the national election following a two-decade long political conflict. This was not Ibiza where blue horizons were seen up ahead. Instead, the Awami League questioned what it termed where unfair acts by the caretaker government designed to manipulate the results of the upcoming election. When the Awami League announced that it would boycott the upcoming election, the political crisis boiled over leading to riots and clashes which claimed the life of many political supported on both sides. The cessation of hostilities in late 2008 was made possible by the intervention of the UN and the EU in Bangladeshi political affairs. This intervention led to the creation of an interim government where the President was not elected. It only served to momentarily diffuse the tensions like lulls on movie trailers online but as long as the issues remain, the threat continues to be present and waiting for the right moment to manifest itself. Enter 2013 when the EU and UN have suspended their participation in the election monitoring process owing to claims that a credible political system for fair and equal voting does not exist. This has set the stage for what can be another deadly round of political crisis in Bangladesh. Like sciatica that only lies dormant, now is perhaps the time where it can all resurface again with even more deadly consequences. The planned 2013 elections in Bangladesh give rise to two very important issues that require attention not only by the local ruling government but also by international watchdogs with a stake in the country. These are the rise of election-related violence as parties go against each other in the pursuit of their own respective agenda, and the role of the increasingly imbalanced military which can escalate violence even further. Both elements are so serious it cannot be addressed by the metaphorical coconut oil for face approach. Something needs to be done if a new round of violence is to be prevented. So what can we expect from this political turmoil? There is no clear answer to that question, but there are sound suggestions. First, the sitting government led by Prime Minister Sheikh Hasina from the Awami League must take careful steps to assure the BNP that a fair election will occur, much like when the Awami clamored for BNP to do the same in 2008. Second, a conciliatory approach needs to be taken akin to employing a car accident attorney to objectively settle matters. Third, the military must remain non-biased on the issue, but also restrained in its quest to control the conflict. This is a goal that is far easier said than done. So is Bangladesh in crisis? It might not be, YET. Only time will tell if the parties involved can come into a peaceful resolution of their differences so they can forge a credible government which will carry Bangladesh to its future;if not, then there is little doubt that a political crisis is about to happen again. And this time, the consequences can be even deadlier. ICC Twenty20 World Cup 2014 Held In Bangladesh The best cricket players in the world recently gathered in Bangladesh to compete in the 2014 ICC World Twenty20 tournament. Organized by the International Cricket Council (ICC), the games were played from March 16 to April 6, 2014 in three cities of Dhaka, Chittagong, and Sylhet. Although this was already the 5th ICC World Twenty20 competition, it was the second consecutive time that an Asian country, Bangladesh, hosted the event. The 2012 version was held in Sri Lanka. Established in June 15, 1909, the International Cricket Council (ICC) is the international governing body of the popular sports of cricket. The ICC is headquartered in Dubai, United Arab Emirates and has 106 member countries including Bangladesh, Australia, England, India, New Zealand, Canada, and other countries. There are 10 Full Members that play official Test matches, 37 Associate Members, and 59 Affiliate Members. The ICC World Twenty20, aka ICC World T20 or World Twenty20, is an international championship of Twenty20 cricket normally held every two years. The first ever tournament was held in 2007 in South Africa and was won by India. Twenty20 cricket, commonly shortened to T20, is a form of cricket that was first played in England and Wales for professional inter-county tournaments in 2003 and administered by the England and Wales Cricket Board (ECB). Introduced to create a more lively form of cricket, a Twenty20 game can be completed in approximately three hours. Each inning lasts about 75-90 minutes with 10-20 minutes interval. Such is the worldwide popularity of the Twenty20 game that the ICC adopted the format and made it into an international competition in the form of the ICC World Twenty20 tournament. The ICC World Twenty20 is played on a group stage and knockout format. Points are awarded to teams during Round 1 and Super 10 stages. 2 points for win, 1 point for no result/tie, zero for loss. During the 2014 tournament, 16 warm-up matches were played in March 12-19, 2014. In the Group stage, teams were clustered into Group A and Group B. In the Super 10, teams were organized into Group 1 and Group 2. In the Knockout stage, four teams competed in the Semifinals until two teams remain and competed in the championship round. The following teams directly qualified for the Super 10: Australia, England, India, New Zealand, Pakistan, South Africa, Sri Lanka, and West Indies. The following teams qualified for the group stage: Afghanistan, Bangladesh, Hong Kong, Ireland, Nepal, Netherlands, United Arab Emirates, and Zimbabwe. After holding thirty-five matches at three different venues, the tournament closed by declaring Sri Lanka as the champion. Virat Kohli of India was declared the Man of the Series as well as the player with the most runs of 319. Most wickets awards were given to Imran Tahir of South Africa and Ahsan Malik of Netherlands, each with 12 wickets. To learn more about wicket, visit icc-cricket.com to get more information. If you have the desire to learn cricket, then go for it, have fun, and play. Please browse through the Web pages of our portal to find out more about the SSS organisation and our objectives, and to make a donation by clicking on the Donate logo, on the right hand side of the page. About SSS Welcome to SSS!Society for Social Service (SSS) is a local non-profit, non-political, non-governmental voluntary organisation. It was established in November 1986 by the initiative of a group of development workers of Tangail district in order to promote the socio-economic condition of the underprivileged and indigent Bangladeshi people with special attention to women and children.
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Healthcare: Fitness Tips & Health Advice | CareBunny One of the secrets of beauty and attractive appearance of any representative of the fair sex can be permanent fitness classes. For a large number of people, the word "fitness" is not only clear, but is constantly used in everyday life, but many people are not familiar with the basic characteristics of the sport, the benefits and benefits to the body. Let's figure this out.
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TxtMania | The Philippines, a group of over 7,000 islands with combined land area encompassing 300,000 square kilometres, grew into a nation under more than three centuries of Spanish conquest and 42 years of American rule. It is the first country outside the New World that closely witnessed the United States' rise to power following the 1898 Spanish-American War. Situated 800 kilometres southeast of mainland Asia, the archipelago, named after King Philip II of Spain, was discovered in 1521 by Ferdinand Magellan, the same explorer who had discovered the Pacific Ocean in search of the so-called "Spice Islands" and is now widely considered the first navigator to have cruised around the planet. Ironically, the Filipinos, after having been subdued for centuries by foreign colonizers as a result of Magellan's voyage, would emerge as the best seafarers in the world, manning a third of all international vessels today. Some 7.8 million overseas Filipino workers (OFWs) and Filipino migrants would help rebuild cities in many countries and bring back over US$10 billion in annual remittances to their families in the Philippines. The country's geographical location and long exposure to foreign influences has placed the Philippines on a unique cultural base in Asia. It is now the only predominantly Catholic country in the region, with 70 million out of its total population of 85 million (as of 2005) confessing to be Catholic. There are also large numbers of Protestants and Born-Again Christians in the country while the Muslim population is concentrated in southern Mindanao. Early Trade The first inhabitants of the Philippines were the Negritos who traveled from mainland Asia over a land bridge that is now underwater. Migrants from other Southeast Asian countries such as Indonesia and Malaysia later followed and established a Malayan culture that flourished before the Spaniards came. Chinese and Arab merchants helped establish markets at the community level. A sultanate system, first established in the southern island of Sulu in the 14th century, is believed to have reached the islands of Luzon and Visayas, giving way to the rise of the Islamic faith. The Spaniards would later drive the Muslims to the south and establish Catholicism as the main religion in the north and central parts of the country. Local villages, known as barangay, traded agricultural and fishery products with each other. The Igorot tribe in Northern Luzon carved the marvellous Banaue Rice Terraces from the mountains, a proof of their advanced agriculture technology. Communities near the shore exchanged goods with Chinese and Arab merchants, who came aboard large ships. These communities traded slaves, gold, beeswax, betel nuts, pearls, and shells for porcelain, silk, iron, tin and semi-precious stones. The Philippine islands were a part of an extensive trade route used by Chinese merchants as early as the 10th century. By the time Magellan arrived in the islands, regular trade and cultural contact between Chinese traders and local chieftains were firmly instituted. Many Chinese merchants settled in the country and shared their crafts with the natives. Some historians claim that an Italian Franciscan priest, named Father Odorico, was actually the first European to have reached the Philippines in 1324 when his ship bound for China took refuge from a storm in Bolinao Island in northern part of Luzon. Aside from the Banaue Rice Terraces in the Cordillera Mountains, early settlers did not leave any giant monument, and this is what makes conservative historians doubt the existence of the rich kingdoms in the country hundreds of years ago. However, it cannot be denied that early Filipinos were learned individuals who expressed their beliefs and sentiments in rich languages. According to the National Commission for Culture and the Arts (NCCA), there are actually 78 language groupings and over 500 dialects in the Philippines. Feudal Society Magellan, who claimed the archipelago for Spain in 1521, died in a battle with a group of local warriors led by Lapu Lapu at Mactan Island. It was Ruy Lopez de Villalobos, in the fourth Spanish expedition, who named the territory as Filipinas after the heir to the Spanish throne in 1543. In 1565, Miguel Lopez de Legaspi led an expedition to colonize the islands and by 1571, most parts of the archipelago came under Spanish rule. The Spaniards established the colonial government first in Cebu in 1565 and then in Manila in 1571. Historians claim that University of San Carlos in Cebu and University of Sto. Tomas in Manila are the oldest universities teaching European type of education in Asia. Jesuit and Dominican priests established the two institutions. Under Spanish rule, Catholicism became the dominant religion. Catholic friars not only lorded over the congregations; they enjoyed vast political and economic influence, which they eventually used to repress Filipino peasants' uprisings in the largely feudal Philippine society at that time. The Spaniards also quelled a number of rebellions instigated by the Chinese migrants. The friars distributed lands to Spanish families, who later comprised the landowning class. To perpetuate their economic interests, this class would also rise to become the political elite that would remain in power to this day. This gave way to the hacienda system in the Philippines, where cacique or landowners managed large tracts of lands tilled by peasant workers. Under the system, farmers were supposed to receive half of the harvest, but they usually ended up with much less because they had to pay for large interests on debt incurred from the cacique. This would be later corrected with a system of land reform, which, however, remains to be fully implemented to this day. Galleon Trade The Manila-Acapulco galleon trade became the major trading system between Asia and the Americas for nearly two centuries. Manila became a transhipment point of American silver to China. It was through this trade that the first Chinese silk and porcelain reached the shores of the New World. There were unverified claims that Filipinos helped build the city of Los Angeles in America. The Chinese and Filipinos would later become the two largest Asian migrant groups in the United States. Coconut became the country's top agricultural product, because of Spain's huge need for charcoaled coconut shells used for the caulking of the galleons. In 1642, the colonial government issued an edict requiring each Filipino to plant 200 coconut trees all over the country. By 1910, coconut exports would account for a fifth of total Philippine exports and to this day, coconut oil remains the country's top agricultural shipment. The Galleon Trade lasted for about 200 years until 1815. It is during this period that rice and tropical fruits from the Philippines such as mango and banana made their way to Latin America. Beginning 1750, Spanish priests encouraged the development of plantations to grow abaca (hemp), tobacco, coffee and sugar. Sugar barons from the Visayas would later emerge as among the richest clans in the country. From 1762 to 1764, the British briefly captured Manila during the Seven Years War. The treaty of Paris ended the British occupation and returned the colony to the hands of their original colonial masters. Plantation Crops In 1781, the Spanish governor established the tobacco monopoly in the Philippines, which would become a major source of revenue for the colonial government. From 1820 to 1870, the Philippines would be transformed to an agricultural export economy. Located on the oceanic trading routes connecting Asia to other parts of the world, the Philippines became a transhipment point of merchandise goods from all over Southeast Asia on their way to Europe. The Philippines exported plantation crops such as sugar, abaca, other fibres, tobacco, coffee, and coconut products to China, Spain, United States, United Kingdom and British East Indies. In return, it imported textiles and rice. Historians claim that Spain administered the Philippine affairs through Mexico. Spanish administrators in the country were actually reporting to the Viceroyalty of Mexico. After Mexico gained its independence from Spain in 1821, Madrid directly governed its only Asian colony and even allowed rich Filipinos to study in Europe. The Spanish rule gave way to the rise of a small but highly powerful elite class, which to this day, controls most of the Philippine economy. The elite families, which own large plantations, were able to send their children to Europe for education. Foreign Investors Investors from Spain, Germany, Britain and other European countries laid the groundwork for utility companies in steam navigation, cable, telegraphy, railroads and electricity in the country. They also invested heavily in rice and sugar milling, textile and banking. The local elite developed the brewing industry, which would become one of the most profitable sectors in the economy. Although the educated Filipinos who studied in Europe shunned the use of force to topple the colonial government, their writings provoked nationalist sentiments among young men, who eventually formed a revolutionary movement against Spain. In 1896, the war between Spanish and Filipino soldiers escalated following the death of novelist Jose Rizal and rebel leader Andres Bonifacio. Emilio Aguinaldo, the new leader of the revolutionary forces, forged a pact with US Commodore George Dewey in Hong Kong to defeat the Spanish army. American Colony The Americans entered the scene because of its conflict with Spain over Cuba. With the outbreak of the Spanish-American war in the Pacific, the Philippines had to be taken by the US, lest other European countries such as Britain, France and Germany would fight for their next Southeast Asian colony. On June 12, 1898, Aguinaldo, first backed by American forces, declared the independence of Kawit, Cavite, the seat of the revolutionary Filipino government at that time, from Spanish rule. The Americans took possession of Manila on August 13, 1898. While armed clashes with Spanish forces continued in other parts of the country, the Americans and the Spaniards were negotiating for the purchase of the Philippines for US$20 million. In the Treaty of Paris in 1898, Spain ceded the Philippines, Cuba, Puerto Rico, and Guam to the US. Filipinos felt insulted at the fact that their country has been passed from one colonial master to another for only US$20 million. When the US, which had not conquered any country before, made known its intention to succeed Spain as the next colonizer of the Philippines, Aguinaldo and his men waged a revolutionary resistance that ended with his capture in March 1901. The American soldiers easily subdued the remaining factions of rebellion with the help of their powerful weapons and their divide-and-conquer tactic. As an archipelago of 7,000 islands, the Philippines is home to different ethnic groups which do not speak the same language. The national government's attempt to declare Tagalog (spoken in Central and Southern Luzon including Metro Manila) as the national language would not easily win the support of other regions. The Philippine-American war took the lives of 4,234 American and 16,000 Filipino soldiers. The death toll was much higher on the civilian population, with as high as 200,000 casualties. Although local resistance persisted until 1903, the US ended its military rule on July 4, 1901. American Way Under American civilian rule, the Philippines was introduced to US-type of education, Protestant religion, and later to the concept of democracy. Placed under US control were most parts of the country, except in the southern portion of Mindanao where Muslim rebels held strong resistance. William Howard Taft, the 27th US president, was the first American Civil Governor in the Philippines. Taft was praised for establishing a civil service system, creating a national legislature, suppressing prices, upgrading health standards, and sponsoring land reform and road building in the country. In 1907, the First Philippine Assembly composed of educated and rich Filipinos with vast landholdings. Manuel L. Quezon, who represented the Philippines in the US Congress, lobbied for the passage of the Jones Law, which in 1916 abolished the Philippine Assembly to give way for a bicameral legislature made up of the Senate and the House of Representatives. With the passage of the Tydings-McDuffie Act in 1934, Filipinos had their first taste of self-rule through the Philippine Commonwealth, a transitional government designed to prepare the Filipinos over a ten-year period for independence. By 1935, the Commonwealth was in place with Quezon as its first president. The Philippines also approved a new constitution in the same year. The United States is credited for helping establish the Republic of the Philippines, the first democratic government in Asia. Economically, the Philippines was ahead of its Asian neighbours, who were still subjects of European colonial powers before the war. Japanese Invasion In December 1941, the Japanese Imperial Army invaded the Philippines and drove the Commonwealth Government from Manila. While Quezon continued to head the government-in-exile until his death in New York in August 1944, the Japanese forces handpicked Jose P. Laurel, a graduate of Yale University and Tokyo International University, to head a new government under their control. The Philippines was dragged into the war because of Japan's military ambition to become the dominant force in Asia and the Pacific. Japan wanted to be the leader of an economic zone in East Asia, which would be the source of its raw materials. The US presence in the Philippines, known for its strategic location in Southeast Asia, was the largest threat to the Japanese forces, following the destruction of the American Pacific fleet at Pearl Harbor on December 7, 1941. While the American forces were regrouping in the United States, Filipino soldiers formed a guerrilla organization called Hukbalahap (People's Anti-Japanese Army). Some 30,000 guerrillas at that time engaged the Japanese army in intermittent clashes. The Hukbalahap would later adopt the communist ideology and rule in the countryside. Meanwhile, Sergio Osmeña replaced Quezon as the head of the government-in-exile and joined General Douglas MacArthur in the liberation of Manila. General MacArthur returned to the Philippines via the island province of Leyte, along with 174,000 army and navy servicemen on October 20, 1944. The liberation of Manila took almost 20 days from February 3 to 23, 1945 and the fierce battle destroyed much of the city, with its ruins now often compared to the ruins of Warsaw, Poland in Europe. The Japanese army, however, continued to fight in the provinces, until September 2, 1945 when General Yamashita, the Tiger of Malaya who was believed to have hidden vast amount of treasures during the war, surrendered in Baguio City. It is estimated that the battle of Manila cost the lives of 1 million Filipinos, 300,000 Japanese and 60,000 Americans. The intensity of the US-Japan war would force the former to drop an atomic bomb in Hiroshima on August 6, 1945 and in Nagasaki three days later. US Bases By February 1945, Osmeña restored the Commonwealth in the Philippines but it was only on July 4, 1946 that the US granted the Philippines its independence, coinciding with the celebration of the Independence Day in America. However, US military bases would remain in the country for the next 45 years. On March 14, 1947, Manila and Washington signed the Treaty of General Relation, which provided the US to construct military bases for a lease period of 99 years. In 1959, the agreement was amended to shorten the lease period until 1991, after which both sides were to renegotiate the contract. When the US sought a ten-year extension of the lease period in 1991, the Philippine Senate, led by Senate President Jovito Salonga, rejected the proposal in a historic casting of vote on September 16, ending US military bases in the country. With newfound freedom in 1946, Filipinos elected Manuel A. Roxas, leader of the Liberal Party and one of the seven members of the Constitutional Convention who drafted the 1935 Constitution, as the first president of the independent republic in April 1946. His presidency was focused on rebuilding the cities and municipalities torn by the war, redistributing lands as wealthy landowners returned to reclaim their estates, and confronting the Hukbalahap, which by this time was tagged as a socialist-communist organization. The economy grew at a rapid pace, immediately after the war. Special Treatment Close economic ties between Manila and Washington continued after the war on the back of agreements providing for preferential tariffs for American exports and special treatment for US investors in the Philippines. In the 1946 Philippine Trade Act, the Americans were granted duty-free access to the Philippine market and special rights to exploit the country's natural resources. Because of the Trade Act, the Philippines suffered a huge trade deficit with the influx of American imports. In 1949, the Philippine government was forced to impose import controls, after getting the consent of Washington. Roxas' two-year presidency ended with his death, following a heart attack while delivering a speech at Clark Air Force Base in Pampanga province in April 1948. Vice president Elpidio Quirino succeeded Roxas as president and defeated Jose P. Laurel to keep his post in the 1949 presidential race. It was during Quirino's term that the Minimum Wage Law was enacted and the Central Bank was established to stabilize the peso and consumer prices. The country's gross national product grew by an average of 7.7 percent annually in the early 1960s, on the back of the double-digit increase in the manufacturing sector. In the 1953 presidential election, Ramon Magsaysay, who had served as defense secretary under the Quirino administration, won by a landslide. The charismatic Magsaysay initiated peace talks with the Hukbalahap, which would later evolve into a communist organization. He became popular for opening the gates of Malacanang Palace to ordinary people. He died in a plane crash on Mount Manunggal in Cebu in March 1957, which to this day remains a mystery to many Filipinos. While the standard of living in the Philippines was below that of the Western World, the country was often cited as the second richest economy in Asia, after Japan in the 1960s. However, ill-advised economic policies, poor governance and rapid population growth in the country would allow other Asian economies such as Korea, Taiwan, Singapore, Hong Kong, Malaysia, Thailand and China not only to catch up with but to leave the Philippines behind in the race towards industrialization. Filipino First Vice President Carlos P. Garcia assumed the country's top government post following the death of Magsaysay. Garcia was known for his First Filipino Policy and Austerity Program, which put the interests of Filipinos ahead those of foreigners. Under his austerity measures, he encouraged temperate spending, which resulted in less imports and more exports. His nationalist policies, however, perpetuated the business interests of the ruling elite in the country and did not encourage local businesses to be competitive. Garcia lost to his vice-president in the 1961 presidential poll. Protectionist policies allowed local manufacturers to control the economy from 1949 to 1962, discouraging them from becoming competitive. Diosdado Macapagal, father of incumbent President Gloria Macapagal-Arroyo, was the president from 1961 to 1965. Before he became president, he authored the land reform program as a legislator and was vice-president to Garcia. As president, Macapagal began a five-year socio-economic program by removing imports control and liberalizing foreign exchange. It was Macapagal who declared June 12 as the national Independence Day. In 1962, the Macapagal administration began devaluing the peso by half to around 3.90 to the US dollar. Macapagal initiated a shift in investments from the light industries to chemicals, steel and industrial equipment. He was also one of the proponents of the MAPHILINDO, a trade bloc of three South East Asian countries – the Philippines, Malaysia, Indonesia. This bloc later expanded to what is now the Association of the Southeast Asian Nations (ASEAN). By 1965, foreign capital was present in nearly a third of the country's capital stock. Martial Law Ferdinand Marcos, the Senate president, defeated Macapagal in the presidential election to become the country's tenth president in November 1965. A close ally of the United States, Marcos launched military campaigns against the insurgents including the communist Hukbalahap and Moro rebels in Mindanao. In August 1967, Manila hosted a summit that led to the creation of the ASEAN. With his reelection in 1969, Marcos had to contend with worsening civil strife. An ideologist named Jose Ma. Sison founded the Communist Party of the Philippines on December 26, 1968. It was during the same year that University of the Philippines Nur Misuari founded the Moro National Liberation Front (MNLF), the armed wing of Islamic resistance movement. In June 1971, the government convened the Constitutional Convention to amend the Constitution. Ironically, Marcos declared Martial Law on September 21, 1972, following a series of bombings in Metro Manila, He abolished Congress, curtailed freedom of the press, imposed curfews, ordered the arrest of his political enemies, prohibited labour unions, and controlled the economy with the help of his cronies. Although his wife Imelda was credited for building some of the country's finest monuments, she was criticized for personal extravagance, a form of which was maintaining a collection of 3,000 pairs of shoes. Green Revolution The so-called green revolution in the early 1970s, which introduced new farming technologies, enabled the Philippines to export rice to its neighbours. The International Rice Research Institute was established in Los Banos town, Laguna province where Thai, Vietnamese and other Asian researchers trained to develop their own rice production. Thailand would later become the world's largest rice exporter and the Philippines one of the largest rice importers. With the introduction of new farming technologies, the Philippines became heavily dependent on importer fertilizers, which are mostly fuel-based. The increase in world crude oil prices also pushed prices of fertilizers, to the detriment of Filipino farmers trying to adopt the modern technologies. Chinese Tycoons On June 9, 1975, the Marcos administration signed a joint communiqué with Communist China to restore official diplomatic relations. The Communiqué recognized that "there is but one China, of which Taiwan is an integral part. In return, China vowed not to interfere in the internal affairs of the Philippines and refrained from providing any substantial support to the Communist Party of the Philippines, the largest insurgent group in the country. The largest success story in the Philippines actually involved Chinese merchants who left China in pursuit of business opportunities abroad. Unlike rich American investors, Chinese migrants came to the Philippines with little money but large determination that the country's democratic society would help them become rich. True enough, they found goldmine in the Philippines. Today, the richest individuals in the Philippines have Chinese names, including billionaires such as Lucio Tan, Henry Sy, John Gokongwei, and George Ty. Together, they are the largest group of investors in the Philippines and control most of the largest companies in the country. Overseas Workers Under Martial Law, one man other than Marcos would singularly define labour relations in the Philippines and the role of the Filipino workers in the world. Labour Minister Blas Ople, a former journalist, authored the Labor Code on November 1, 1974 and launched the overseas employment program in 1976, which would send young and talented Filipinos who could not find work at home to other countries for dollar-earning jobs. Ople obtained the permission of Marcos to deploy thousands of Filipino workers overseas to meet the growing need of Saudi Arabia, Iran, Iraq and the United Arab Emirates for skilled workers and the rising demand for Filipino seamen in flag-of-convenience vessels. Hesitant at first, Marcos later conceded to the proposal, if only to tame the growing militancy building among the hearts of the young and intelligent Filipinos who could not find job opportunities in their own land. The Philippine Overseas Employment Administration (POEA) and the Overseas Workers Welfare Administration (OWWA) were established to intensify recruitment of Filipino workers. This would make the Philippines the third largest destination of dollar remittances in the world, next to the more populous countries of India and Mexico. The Marcos administration also tried to court foreign investors, by committing guarantees against nationalization and imposing restrictions on trade-union activity. However, the blatant record of human rights abuses by the military under his administration was a big turnoff among foreigners. Under Martial law, the military and the police killed, abused, or arrested at least 10,000 Filipinos, including some of the brightest students and intellectuals. Many had disappeared without a trace. While Marcos lifted martial law on January 17, 1981 in time for the visit of Pope John Paul II to Manila in February, he maintained most of his powers as a dictator. Benigno Aquino, an opposition senator living in asylum in the US, decided to return to Manila in 1983. His death, from assassins' bullets at the tarmac of the Manila International Airport, sparked adverse sentiments against the Marcos administration. Bankruptcy As the economy stagnated under the Marcos administration because of a mix of bad economic policies, corruption and uncontrolled population growth, the government had to resort to foreign borrowing to finance the fiscal deficit. In October 1983, the Central Bank notified its creditors about its plan to default payment on debt amounting to US$24.6 billion. With the growing loss of confidence by the business community, the peso depreciated by as much as 21 percent in 1983. The gross domestic product shrank by 6.8 percent in 1984 and by 3.8 percent in 1985. Emboldened by Marcos' dipping popularity, the opposition gathered around Aquino's widow, Corazon Cojuangco Aquino, who would later challenge Marcos in the 1986 snap presidential election. When Batasang Pambansa (National Assembly) declared Marcos the winner amid allegations of widespread electoral fraud, protesters, buoyed by Manila archbishop Jaime Cardinal Sin, trooped to the streets. Following the defection of Defense Minister Juan Ponce Enrile and Armed Forces vice chief Fidel Ramos from Marcos, protesters began converging along EDSA near Ortigas Avenue, which would culminate in the ouster of Marcos from Malacanang Palace on February 25, 1986. The media called the bloodless uprising as the 1986 EDSA People Power Revolution - something that political groups would later thought could be replicated time and again. Democratic Rule After Marcos, his family and his cronies fled from the Philippines, Aquino became president, organized a new government, freed the political prisoners and tried to restore democratic rule in the country. In February 1987, her government approved a new Constitution, which would later be subjected to heated debates over its restrictive provisions on foreign participation in the economy. The 1987 Constitution restored the presidential system of government with a bicameral legislature composed of the Senate and the House of Representatives and an independent judiciary headed by the Supreme Court chief justice. To avoid a replication of Marcos' excesses, the Constitution limited the president's stay in office to one six-year term. It also created the autonomous regions of Muslim Mindanao and Cordillera and put agrarian reform as the cornerstone of the government's plan for social transformation. A renegade faction in the Philippine military launched a series of coup attempts against the Aquino presidency. Perception of political instability dampened economic activities and refrained the economy from matching the large strides taken by its Asian neighbors in the 1980s and 1990s. By this time, Singapore, Malaysia and Thailand have overtaken the Philippines in the race towards industrialization. The Arroyo administration, while taking pride of having restored democracy, failed to bring the economy on track towards industrialization, and one of the factors singled out was the president's political inexperience and lack of consistency in pushing for economic reforms. In the 1992 presidential election, Aquino endorsed the candidacy of her chosen successor – Defense Secretary Fidel Ramos. In June 1991, Mount Pinatubo's powerful eruption sent tons of ashes around the planet's atmosphere. Subsequent lava/lahar flow buried several towns in Central Luzon and jolted the economy. The natural tragedy also forced American soldiers at Clark Field and Subic Bay to withdraw from their bases earlier than stipulated. The US turned over to the Philippine government the two bases with total assets amounting to US$1.3 billion. The Philippine government later transformed the two bases into special economic zones. Liberalisation In 1992, Fidel Ramos was elected President. He began his term amid an energy crisis, which plunged the country literally into darkness. This he was able to resolve by inviting foreign investors to take part in the so-called build-operate-transfer (BOT) scheme, where they would serve as independent power producers (IPPs) enjoying a lot of incentives and guaranteed market. While it brought light to Filipino households, the scheme would later translate to high electricity rates. In 1995, the Ramos administration also had to contend with a rice shortage, as a result of low agricultural production and poorly managed importation program. Since then, the government has authorised the National Food Authority (NFA) to import rice at will in order to prepare for any shortage in domestic stock. The Ramos presidency was also responsible for economic reforms such as privatisation of government assets, trade and banking liberalisation and deregulation, which would push annual trade growth at double-digit levels and draw in large-ticket foreign investments. By 1996, the Philippines was described as a newly industrialising economy along with the likes of Thailand and Malaysia. It was also under the Ramos presidency that communism was legalised, and some leftist organisations would later join Congress as partylist groups. The government and the Moro National Liberation Front (MNLF) headed by Nur Misuari would sign a peace agreement that would establish a peace zone in southern Philippines. However, other militant rebel groups such as the Moro Islamic Liberation Front (MILF) and Abu Sayyaf would continue waging a war against the government for a Islamic state in the south. What Ramos failed to accomplish is the amendment to the 1987 Constitution to remove the restriction on foreign ownership of land and public utilities, which limits maximum ownership to 40 percent. The opposition party accused him of trying to tinker with the charter to remove the six-year term limit of the president and in the process perpetuate his stay in power. In the end, he had to give up such attempt under the weight of public opinion. Financial Crisis With the outbreak of the Asian financial crisis, the Philippine economy contracted by 0.6 percent in 1998, the same year Joseph Estrada, a popular politician with links to the movie industry, became president. The economy actually grew although at a slower pace at 3.4 percent in 1999 and at 4 percent in 2000 even as the inflation and interest rates began to decline. In comparison, growth reached 5.2 percent under the Ramos presidency in 1997. While Estrada got the backing of Filipino-Chinese businessmen by reducing the problem of kidnapping, he did not get the same support from other "elite" businessmen. Despite appointing top economists, Estrada, a former college dropout, could not convince the "high society" that he could resolve the country's economic woes. Ironically, what brought down the Estrada administration was not his economic policies, seen by many as not substantially different from those of Ramos, but the perception of wide corruption in his administration. In October 2000, a former ally implicated Estrada in illegal gambling payoffs and kickbacks. Reports that he has many wives housed in different mansions also got Estrada indifferent treatment from the Church, which was a force behind the 1986 People's Power Revolution. EDSA 2 In December 2000, the House of Representatives impeached Estrada. The subsequent impeachment trial at the Senate was aborted when senators from the opposition party walked out of the courtroom, triggering street demonstrations reminiscent of the 1986 revolt. Within hours after the walkout, the crowd at EDSA grew into millions of anti-Estrada protesters. When political and military leaders withdrew their support from Estrada, Supreme Court Chief Justice Hilario Davide swore Vice President Gloria Mapacagal Arroyo as the next president on January 20, 2001. Arroyo, a daughter of former President Diosdado Macapagal, came to Malacanang with a promise to clean the government of corrupt officials and bring down the number of poor Filipinos, which represents a third of the total population. In her first year in office, she faced numerous challenges starting with the May 1 rebellion, instigated by the Estrada camp to regain the presidency. The rebellion proved futile, as the highly politicised military and the police remained loyal to Arroyo. She also had to contend with Muslim extremists, who began to target cities in their attacks. Following the terrorist attacks in the US on September 11, 2001, the Philippines was one of the first countries to express support for a US-led international campaign against terrorism. On the economic front, Congress passed the liberalisation of the retail trade sector and the Electric Power Industry Reform Act of 2001, which aims to privatise the state-owned National Power Corporation. The Arroyo administration also promoted business process outsourcing (BPO), information technology, tourism, and mining as key investment areas for foreign companies. Trade with other Asian countries was also given importance in view of the declining trade volume with the United States. Telecommunications One particular industry, which has led economic growth since 2000 is telecommunications, although this proved to be a bane for other industries as Filipinos cut their expenditures on other items to buy mobile phones and pay for monthly network services. By 2005, it is estimated that half of the 85 million Filipinos would have mobile phones, a high penetration rate for a developing market. Because of the global economic slump following the September 11 attacks, the GDP grew by merely 1.8 percent in 2001. Growth reached 4.3 percent in 2002 and 4.7 percent in 2003 even as the Arroyo administration confronted communist and Islamic insurgency problems and a shocking military coup in July 2003. After surviving the coup, Arroyo won the May 2004 presidential election over Estrada's close friend and popular actor Fernando Poe Jr. Economic growth reached 6.1 percent in 2004, the highest in 15 years, although this was negated by high inflation and uncontrolled unemployment rates which were more felt by the poor. Fiscal Deficit Pressed by economists to narrow the burgeoning fiscal deficit, President Arroyo urged Congress to pass a package of tax reform measures aimed at achieving a balanced budget by the end of her term in 2010. Because of a long history of budget deficits, the public debt hit more than 130 percent of the GDP in 2003 and has been rising since then. Different sectors, however, criticised the administration for passing a heavier burden of taxation on the people at a time crude oil prices were hovering at historic high levels and pushing prices of goods and services beyond the capacity of ordinary consumers. By the second half of 2005, there were signs that the fiscal deficit was narrowing, even with the delay in the implementation of the Expanded Value Added Tax (EVAT) law, which raised by 2 percentage points the tax rate on consumer products and services to 12 percent and by 3 percentage points the corporate income tax to 35 percent. The new EVAT law, which was expanded to cover fuel and electricity, took effect on November 1, 2005. New Constitution As the popularity of President Arroyo dipped to the lowest level amid allegations that she bought her way to the presidency in the 2004 presidential elections, she was given an option to correct the loopholes in the political system by amending the 1987 Constitution. She formed a Consultative Commission to recommend charter amendments focusing on lifting all restrictions to foreign investments and paving the way for a shift in the form of government from a presidential, central system into a parliamentary, federal system. Posted by Text Mates at 4:16 PM 0 comments Labels: Economy, History, National, Social Filipino Inventions Solar powered Balut maker The College of Engineering and Agro-Industrial Technology at the University of the Philippines-Los Banos has invented a solar "balut" maker. Engineer Fernando Paras Jr. said the machine, which covers an area of five square meters, is actually an incubator that can process duck eggs into embryonated eggs or balut for 15 to 17 days. Traditionally, balut makers in Pateros have been using electricity for incubation. The new invention is a two-way solar-powered system, with the solar water heater serving as the primary heat source while the photovoltaic cells serve as the auxiliary heat source regulating the temperature inside the incubator. The machine can process up to 4,000 eggs at the same time. This can double the income of farmers. SMS reader for the Blind A group of four engineering students from the De La Salle University invented the SMS reader, a device that allows the blind to read and send text messages. The prototype is composed of a black box with a Braille display that mimics the interface of a mobile phone. A data cable is connected to a slot in the black box. Superkalan Narciso Mosuela of La Union province invented the "superkalan", a novelty stove that can be fired with anything that burns—wood, paper, dried dung and leaves, corn cobs, and coco shells. The body of this stove is made of aluminum alloy, with a cast iron heat intensifier. For his invention, the Food and Agricultural Organization (FAO) bestowed on Mosuela the "best design award" for Third World country category in 1987. Aside from the superkalan, Mr. Mosuela invented a functional rice thresher and other kitchen gadgets. Anti-cancer cream In November 2005, Filipino inventor Rolando dela Cruz won the gold medal for his "DeBCC" anti-cancer cream at the prestigious International Inventor's Forum in Nuremberg, Germany. The "DeBCC" cream, developed from cashew nuts and other local herbs, was chosen over 1,500 entries as the "most significant invention" of the year. According to Mr. dela Cruz, the cream was a simple answer to basal cell carcinoma (BCC), the most common type of skin cancer worldwide. BCC affects around 800,000 Americans every year, according to the Skin Care Foundation. BCC also affects 500,000 Europeans and 190,000 Australians every year. Mole Remover In 2000, Rolando dela Cruz developed an ingenuous formula that could easily remove deeply grown moles or warts from the skin without leaving marks or hurting the patient. His formula was extracted from cashew nut (Annacardium occidentale), which is common in the Philippines. The formula won for dela Cruz a gold medal in International Invention, Innovation, Industrial Design and Technology Exhibition in Kuala Lumpur in September 2000. In March 1997, dela Cruz established RCC Amazing Touch International Inc., which runs clinics engaged "in a non-surgical removal of warts, moles and other skin growths, giving the skin renewed energy and vitality without painful and costly surgery." Modular Housing System Edgardo Vazquez won a World Intellectual Property Organization (WIPO) gold medal in 1995 for developing a modular housing system. Such a system called Vazbuilt is reportedly capable of building within weeks a house with prefabricated materials that can withstand typhoons and earthquakes. Ironically, Vasquez is not getting enough support from the Philippine government to propagate his technology, which could help provide shelter to some five million Filipino families without their own homes. Vazquez is the national president of the Filipino Inventors Society. Super Bunker Formula-L In 1996, Rudy Lantano Sr., a scientist from the Philippine Department of Science and Technology (DOST), won the World Intellectual Property Organization (WIPO) gold medal for developing Super Bunker Formula-L, a revolutionary fuel half-composed of water. The mix burns faster and emits pollutants, 95 percent less than those released to the air by traditional fuel products. The inventor said his invention is a result of blending new ingredients and additives with ordinary oil products through agitation and mixing, which is a very safe process. The initial plan was to commercially produce two million liters of Alco-Diesel, two million liters of Lan-Gas and an unlimited quantity of Super Bunker Formula-L each day for customers in Luzon. Natural Gas Vehicle The Department of Energy (DOE) has developed a vehicle that runs on natural gas, whose rich deposits remain untapped under the Philippine seabed. The project's main objective is to look into the potential of natural gas as an alternative fuel to conventional petrol and diesel for the transport sector. The natural gas vehicle (NVG) has been road-tested in Isabela where an existing natural gas supply from the PNOC Gas Plant is located. Test runs have also been made in Cagayan, Ifugao and Mountain Province. The test vehicle used was the Isuzu Hi-Lander 4JA-1, direct injected diesel engine. The use of natural gas as a fuel is cheaper. On a gallon-equivalent basis, natural gas costs an average of 15 to 40 percent less than gasoline and diesel. There are over one million NVGs in the world today, according to the International Association for Natural Gas Vehicles. Lamp Fixing Invention A Filipino inventor has developed a technology, which could revive a busted lamp (pundido) and give it more years of functional life than those of new ones. Acclaimed by the Filipino Inventors Society as timely and revolutionary, the Nutec system can prolong the life of fluorescent lamps up to seven years. Nutec was developed by New World Technology, headed by president Eric Ngo and chosen as the "Product of the Year" at the Worldbex 2000 Building and Construction Exposition held at the Manila Hotel. Engineer Benjamin S. Santos, national president of the Inventors Society, called Nutec a timely invention. "Tubig Talino" The Department of Science and Technology claimed that it has developed "Tubig Talino", an iodine-rich drinking water that treats micronutrient deficiencies responsible for goiter, mental and physical retardation, and birth defects. "Tubig Talino" is actually a mixture of 20 liters of water and 15 ml of "Water Plus + I2". Consumption of five glasses a day of this iodine fortification in drinking water is expected to provide 120 micrograms of iodine, which meets 100 percent of the recommended dietary allowance (RDA) of a male adult. Feminine Hygiene Product Inventor Dr. Virgilio Malang won a gold medal for his invention "Psidium Guajava Effervescing Gynecological Insert", a silver medal for his "Patient Side-Turning Hospital Bed", and three bonze medals for his inventions "external vaginal cleanser", "light refracting earpick", and "broom's way of hanging" at the Seoul International Fair in held South Korea in December 2002. There were 385 inventions from 30 countries that joined the competitions. Patis Contrary to popular belief, there was no fish sauce or Patis yet during the Spanish occupation. Patis began to become a part of most Filipinos' diet only after the Japanese occupation. Here is an account of how an enterprising lady discovered the fermentation of Patis. Immediately after the war, the family of Ruperta David or Aling Tentay started a dried fish business. One day, Aling Tentay stored in jars some salted fish that turned into fragments even before they dried. While in jars, the fish fragments turned into a liquid substance that tasted like our Patis today. Thus the beginning of the thriving Patis business of Aling Tentay, which was officially registered in 1949 and is known today as Tentay Food and Sauces Inc. (Source: Philippine Daily Inquirer) A Showcase of Ingenuity Nothing perhaps has been associated with Filipino technology as much as the country's pride - jeepney. The word "jeep" evolved from the military designation, general-purpose or G.P., of a light vehicle first used by the Americans in World War II. Developed by the U.S. Army Quartermaster Corps, this vehicle was powered by a four-cylinder engine and was classified as a quarter-ton truck in carrying capacity. It had served as a command vehicle, reconnaissance car, and ammunition carrier. The American soldiers brought these vehicles to the Philippines in the 1940s. After the war, these vehicles were left by the Americans and converted by the Filipinos into public utility vehicles. Employing artistic and indigenous designs, the Filipinos came up with a longer, well-decorated, techni-colored and sleeker vehicle, which they later called jeepney. From the standard military jeep, the body was extended to accommodate between 20 to 30 passengers. Modern jeepneys now sport very colorful and intricate paintings, fancy adornments, and metallic decors reflective of Filipino sentiments, values, and culture. The town of Las Pinas has been recognized as the jeepney-producing center in the country. Today, public utility jeepneys or PUJs serve as the primary means of transportation in most provinces. For this, the Philippines came to be known as the "land of the jeepneys".
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courtweek.com - Archives: 2011November 1, 2011The Law of Post-Halloween Legal StandardsToday is All Saints Day or All Hallows, a holy day of obligation for some. To others, it''s just the day after Halloween -- a day they forget was once merely All Hallows Eve. Some spend All Hallows recovering from the revelry of the night before, and some are still on the streets in the wee hours of the holy day. Our Case of the Week examines once such alleged citizen on the streets and the unfortunate lesson she learned about differing standards of legal review in a California appellate decision handed down last week.Let''s Make a DealAngelique Bongiovanni found herself in the legal system in 2009, charged with possession of methamphetamine in two separate cases. In a deal that would come back to haunt her on the day after Halloween, she made a plea bargain in one of the cases. Under the plea agreement, Ms. Bongiovanni pleaded no contest, and was placed on probation for three years. As an added bonus, her 365-day jail sentence was suspended to run concurrently with the sentence from her other drug bust.It seemed like a good deal at the time, and it would have been...if only she hadn''t allegedly been out with the witches, warlocks, goblins, and alleged gang members on the streets of Los Angeles on All Hallows 2009.All Hallows HijinksOn Nov. 1, 2009, Wendy Diaz lived with her husband and three children in a Los Angeles neighborhood with a gang problem. Perhaps not unlike Chauncey and Wadsworth fighting over tee times, the proper procedure for shaking martinis, or the best way to train a polo pony, Ms. Diaz''s neighborhood faced fights from the gentlemen and ladies of the rival gangs, "Vincent Town," and "Columbus Street." Police arrested a Columbus Street gang member for breaking into the Diaz home.After taking her children trick-or-treating on Halloween evening, Ms. Diaz ventured outside at approximately 1:00 in the morning of All Hallows to look for a friend parking on the street. Instead, Ms. Diaz said she saw Ms. Bongiovanni accompanied by a companion in a pumpkin costume.According to Ms. Diaz, Ms. Bongiovanni proceeded to engage in an expletive-laden tirade of threats. To accommodate the gentle readers of Courtweek.com who would rather witness a debate between Chauncey and Wadworth on the best ways to make covert contributions to the Republican National Committee instead of enduring the vile threats of alleged gang members, we will attempt to sanitize the vulgarity of Ms. Bongiovanni''s alleged utterances.Ms. Diaz said Ms. Bongiovanni approached her and called her an [expletive deleted] snitcher, adding, "You been [expletive deleted] snitching.""You and your family are coming down," Ms. Bongiovanni stated allegedly, as she is said to have added for emphasis, "You [expletive deleted] rata," and "[expletive deleted] all biccicletas."To assist our readers in appreciating the full flavor of Ms. Bongiovanni''s supposed soliloquy, we should note that each deleted expletive is a version of the same slang word referring to an act of sexual intimacy. In addition, "rata" can refer to a Soviet fighter plane from the 1930s, plants from the Metrosideros genus in New Zealand, or rat in Spanish. We''ll let you decide which one Ms. Bongiovanni might have meant. Also, biccicletas is a derivation of the Spanish word for bicycles. Seems innocuous enough. However, in Ms. Bongiovanni''s case, People v. Bongiovanni, California''s Second District Court of Appeal noted biccicletas was also a term Columbus Street gang members used as a sign of disrespect (or "dissing" in gangspeak) when addressing the upstanding citizens of the Vincent Town gang.Ms. Diaz reported the incident to police the same day and gave law enforcement a description of the woman who threatened her. She then identified Ms. Bongiovanni from a photo line up. Police knew Ms. Bongiovanni to be a member of the Columbus Street gang for almost a decade and that she went by the gang name, "Diabla." It wasn''t difficult police work...Ms. Bongiovanni sported Columbus Street gang tattoos on her body. If that weren''t enough, police said she also admitted she was a member.Winning 10-2?However, nifty tattoos notwithstanding, Ms. Bongiovanni denied she was a member of the gang at trial. In addition, Ms. Bongiovanni noted she was approximately 50 pounds heavier than Ms. Diaz had described her. Then again, it was Halloween, and with her friend in that pumpkin costume, she probably got a lot of candy. Despite Ms. Diaz''s testimony and police testimony citing various Columbus Street gang activities including murder, assaults, car theft, and narcotics distribution, the jury deadlocked, and it''s vote was 10-2 in favor of acquitting Ms. Bongiovanni. The court declared a mistrial and thus granted prosecutors'' motion to dismiss the charges pursuant to California Penal Code section 1385.So, it was time for Ms. Bongiovanni to do the happy dance. Sure, she was on probation, but the charges were dropped. No probation violation there...or so she thought.At an ensuing probation violation hearing, Ms. Bongiovanni argued she had not violated her probation in the All Hallows morning incident. She claimed the whole thing was a case of mistaken identity, and she argued the jury''s 10-2 vote in her favor showed she hadn''t done anything wrong.Most members of the jury may have believed her, but the judge wasn''t buying it. More importantly, for purposes of sending Ms. Bongiovanni to the slammer for a probation violation, the opinions of those 10 jurors didn''t matter.You see, California probation violation determinations differ from a criminal trial in that the fact-finder in a probation violation hearing is the judge -- not a jury. In addition, where in a criminal trial, the legal standard is proof beyond a reasonable doubt, in a probation violation hearing, the standard is only a preponderance of the evidence. In other words, there can be a fair amount of doubt as to whether you did it, but if the judge weighs the evidence, and there''s more evidence indicating guilt rather than innocence, you lose.In Ms. Bongiovanni''s case, the judge noted the cops testified at trial that she was a member of the Columbus Street gang, a Columbus Street member was arrested in connection with the break-in at the Diaz home, and that Ms. Diaz identified Ms. Bongiovanni as the woman who threatened her. In the minds of 10 of 12 jurors, that wasn''t enough to prove anything beyond a reasonable doubt. However, under the preponderance of the evidence standard, that''s all the judge needed.In upholding the trial court''s decision that Ms Bongiovanni violated her probation, California''s Second District Court of Appeal wrote, "Appellant''s argument that a jury vote of of 10-2 for acquittal supports her credibility is not persuasive because the fact finder in the probation violation hearing was the trial judge, not the jury. Because probation revocation differs substantially from criminal prosecution and the facts supporting the revocation need only be proved by a preponderance of the evidence, we find substantial evidence to support the trial court''s finding that the appellant violated her probation."So, Ms. Bongiovanni had her probation revoked, and it was three years of incarceration for her. The moral of this week''s Case of the Week: if you''re on probation and walking around with a giant pumpkin on All Hallows, study legal standards of review before you go calling someone an [expletive deleted] Soviet fighter plane. __________________________October 22, 2011The Law of Flying DwarfsThose readers who enjoyed -- or perhaps didn''t enjoy -- this writer''s On Trial column in The National Law Journal may remember the saga of Dave the Dwarf. He fought to save the Constitution...while saving his livelihood in dwarf tossing. To commemorate the 10th anniversary of Dave the Dwarf''s epic legal battle--and because a Florida state representative is now trying to do in the legislature what Dave could not do in the courts--we now revisit the Law of Dwarf Tossing...and what it tells us about the 5th and 14th Amendments to the United States Constitution...as well as legislative and regulatory drafting in the state of Florida.Big Fun in a Little PackageDavid Flood is a gentleman of somewhat small stature: three foot two, to be exact. He''s also a Tampa, Fla., radio personality and quasi-celebrity. Known as Dave the Dwarf to his legions of little listeners and big fans on Tampa''s 93.3 FLZ radio, Mr. Flood also has had a side business, and that''s what made him a legal star. You see, for a fee, you could bring Dave the Dwarf to your birthday party, St. Patrick''s Day festival, bar mitzvah, or Millard Fillmore Inauguration Day celebration, and Dave would let you engage in the time-honored tradition of dwarf tossing.That''s right, you could put little Dave in a harness and toss him to your heart''s content. Dwarf tossing was a cultural phenomenon in the 1980s. It was the biggest thing since Members Only jackets. It seemed a good time was being had by all, as tiny torpedoes of humanity went airborne at parties.That was, until the Little People of America and their friends in the Florida Legislature intercepted the toss.Little LobbyistsNot everyone was amused by this zany brand of miniature fun. Among the concerned populace was a public interest organization known as Little People of America, Inc. The non-profit organization provides support and information to people of short stature, and states it is the only dwarfism support organization providing services to those afflicted with all of the over 200 types of dwarfism.Little People and others lobbied the Florida Legislature, and the result was the passage of Section 561.665, Florida Statutes, governing activities involving exploitation of people with Dwarfism in establishments selling alcohol.Not all little people supported the law, and one of them was Dave the Dwarf.Dave the Dwarf sued then-Florida Governor Job Bush in an attempt to overturn the law, arguing the law was an unconstitutional violation of his rights under the Due Process Clause of the 5th Amendment and the Equal Protection Clause of the 14th Amendment.Specifically, Dave the Dwarf argued in Flood v. Bush, No. 8:01cv02261 (M.D. Fla. filed Nov. 28, 2001), that his due process rights were violated because the law failed to properly define those covered by the law, making the law unconstitutionally vague. He argued also that the law violated his equal protection rights because the law treated him differently than others. For instance, you could be tossed, I could be tossed, and Oprah Winfrey could be tossed (with a great degree of difficulty), but Dave the Dwarf could not be tossed...or so he thought.Banned or Not?The governor''s lawyers swung into action in an attempt to toss Dave the Dwarf right out of court. They argued dwarfs needed protection. Dave counted that was hogwash. Also, in addition to maintaining Gov. Bush should be dismissed from the suit, the Florida Attorney General''s Office argued that there was no constitutional violation because the law didnt really ban dwarf tossing.Turns out they were right.The law itself banned only "undertaking or permitting any contest or promotion or other form of recreational activity involving exploitation endangering the health, safety, and welfare of any person with dwarfism" in establishments selling alcoholic beverages. Nowhere did the law ban dwarf tossing specifically.Dave the Dwarf argued dwarf tossing was good for his welfare because he made money doing it. Note the language is "health, safety, and welfare," as opposed to "health, safety, or welfare." Dave the Dwarf might have been better off leaving the law alone, continuing his aerial acrobatics, and arguing he was in compliance with the law because dwarf tossing promoted his welfare.As it was, the trial court tossed Dave out of the courthouse, holding the law did not ban dwarf tossing and that -- although the law mandated that the Division of Alcoholic Beverages and Tobacco of Floridas Department of Professional Regulation promulgate regulations on the issue -- they had failed to do it. While the regulators may have been out at the beach listening to Jimmy Buffet tunes and drinking margaritas, Dave the Dwarf could have been spending his days flying through the warm Florida breezes.So why is Florida State Rep. Ritch Workman trying to repeal the law while everyone from Jon Stewart to your short Uncle Freddy is weighing in on the issue?Well, it appears those regulators finally finished getting wasted away in Margaritaville, cruised on back home to Tallahassee, and did some regulating.The Oprah RuleThe Division promulgated Section 3.048 of Chapter 61A of its regulations, entitled, "Exploitation of Dwarfs." Unlike their friends in the Legislature, the regulators did more precise drafting and included dwarf tossing specifically. The regulation provided in subsection (2): "Any activity described as dwarf-tossing is specifically included within those acts of exploitation prohibited by this rule."Of course, there was also subsection (3), which could be called the Oprah Rule. It provided: "Nothing contained herein shall be construed to prohibit dwarfs from engaging in non-exploitative sporting or recreational events of the type engaged in by persons who are not dwarfs."So now we''ve come full circle: Oprah Winfrey can be tossed (if one has a large catapult), but Dave the Dwarf is, once again, left out of all the fun...unless Rep. Workman has his way. His bill, HB 4063, is pending in the Florida Legislature. In the meantime, you can catch Dave the Dwarf on his radio show, What Would The Dwarf Do?, where presumably, he is not being tossed...at least not yet.__________________________August 25, 2011The Law of Wiener WarsOnce the gentleman from New York''s Ninth Congressional District resigned his House seat for exposing his wiener, you may have thought you would be finished with bad wiener jokes for a while. You would be wrong.This week, mighty corporate litigants have been battling it out in the U.S. District Court for Northern District of Illinois in a wacky wiener war. The case of Sara Lee Corp. v. Kraft Foods Inc., features charges of hot dog blasphemy. Sara Lee, the makers of Ball Park Franks, and Kraft, the friendly folks bringing you the venerable Oscar Mayer wiener, both claim the other has disparaged its products in violation of federal and state law.Seriously though, we all read Upton Sinclair''s The Jungle in school. Thus, everyone thinks hot dogs are comprised of animal parts swept up off the factory floor anyway. How can one disparage a hot dog?Oh, I Wish I Were...Sara Lee fired the first shot in the Weiner War, suing Kraft in May 2009, claiming Kraft violated both the federal Trademark Act of 1946, 15 U.S.C. 1051 et seq., known commonly as the "Lanham Act," the Illinois Consumer Fraud and Deceptive Practices Act, and other Illinois state laws.In its federal complaint, Sara Lee alleged Kraft claimed falsely that Oscar Mayer wieners were the "100% pure beef hot dog" when it knew Oscar Meyer wieners contained other mouth-watering ingredients, such as sodium lactate, sodium diacetate, sodium phosphates, salt, corn syrup, and dextrose. Sara Lee claimed non-beef ingredients comprised approximately 20 percent of an Oscar Meyer wiener. Of course, Sara Lee conceded that most of this non-beef 20 percent was water.Sara Lee claimed Ball Park Franks were disadvantaged becausebeing the honest dudes they are Sara Lee would not compete with Oscars little lies by claiming falsely that Ball Park Franks were 100 percent pure beef.But, Oscar Meyers alleged crimes against humanity and hot dog harmony didn''t end there.In advertising paraphrasing Oscar Mayers famous jingles for its hot dogs and bologna, Kraft claimed, The best tasting beef hot dog has a name. Its O-S-C-A-R, and These days, its Ball Park and Hebrew National who are wishing they were an Oscar Mayer wiener. In addition, Kraft invited customers to Try the taste that knocked the others out of the park.Just as it claimed the 100 percent beef claim was false, Sara Lee claimed these comparisons against its hot dog were false as well.Sara Lees attorney, Richard Leighton of Washington, D.C.''s Keller and Heckman LLP, claimed the evil Oscar Mayer even cheated on taste tests, claiming testers were served boiled Ball Park franks on a paper plate with no bun, no ketchup, no mustard, nothing.It must have been a big taste test error because the bouquet of the sodium lactate and dextrose really pairs well with mustard.Not only were these claims placed in print and electronic media, Sara Lee claimed Kraft even put them on its Wienermobile, a vehicle described by Sara Lee as a hot dog-shaped vehicle that promotes Oscar Mayer and its products in interstate commerce.Have you ever seen the Wienermobile? This writer has. It looks like a rolling phallic sex toy designed to appeal to the prurient interest in violation of the U.S. Supreme Courts holding in Miller v. California.Sara Lee argued that, by making these allegedly false claims in interstate commerce, Kraft violated section 43(a)(1)(B) of the Lanham Act. Section 43(a)(1)(B) prohibits false or misleading advertising or marketing that damages another''s product. In addition, Sara Lee argued these false claims violated the applicable Illinois state laws.Not surprisingly, Oscar Mayer saw things differently.My [Fill in the Blank] Has a First NameMighty Oscar fought back, counterclaiming against Ball Park''s protective corporate mother, Sara Lee. Kraft argued the 100 percent beef was accurate because, although Oscar Mayer contained additives, beef was the only meat in Oscar Mayer. In addition, Kraft believed it needed to illustrate Oscar''s beefiness because of the public perception that hot dogs contain mystery meats.Damn you, Upton Sinclair!In addition, Kraft argued Sara Lee had its own hot dog advertising shenanigans.In a corporate legal battle example of Pee-wee Hermann''s famous retort, "I know you are, but what am I?," Kraft argued Sara Lee made its own false claims about how much beef there was in Oscar''s tubesteak. In addition, Kraft argued Sara Lee mislead consumers with taste tests by professional chefs proclaiming that Ball Park was America''s best franks.All jokes aside, the Wiener War in Sara Lee Corp. v. Kraft Foods Inc., may change the way companies market their products and establish limits for what merchants can say about their products and their competitors in advertising.Meanwhile, the court battle continues with weighty questions, such as "Do a bunch of San Francisco chefs know anything about Chicago hot dogs?" and, if you thought hot dog litigation was bad, just wait until companies start suing each other over other meats lots of people hate.When commenting on the litigation, Sara Lee''s Ball Park product director, Chuck Hemmingway said, "Simply put, we believe that these untrue statements are a bunch of bologna."First, they attack Oscar''s hot dogs, and now Oscar''s bologna? Mr. Hemmingway may want to watch out for the speeding Wienermobile. Oscar is not happy.____________________________August 12, 2011The Law of A&E''s Reality TV TroublesReality television tends to get lots of people into lots of trouble. From going to the slammer for failing to pay taxes on reality winnings to shooting sweet, innocent puppies with arrows, reality TV contestants have often been models of bad behavior. But what happens when it''s the reality show''s network getting in trouble? Our Case of the Week examines what happens when a reality show insinuates falsely that a woman tried to smuggle drugs into a jail via her vaginal cavity.Family DayMarlorita Battle was minding her own business visiting her husband, an inmate at the Riverbend Maximum Security Institution in Nashville, Tenn. Little did she know she was about to become a big, big star.On the day she chose to visit the prison, the A&E Television Network reality show, The Squad: Prison Police, was there, too. The Riverbend facility apparently had a drug problem, and there were allegations the contraband made its way into the prison compliments of visiting family members.It was time for some riveting reality TV drama.The episode of The Squad: Police Prison entitled, Conspiracy, began with Tennessee Corrections Special Agent John Fisher describing the Riverbend prison''s drug problem. He noted that an informant had indicated a woman was smuggling drugs into the prison on a regular basis."We''re expecting this lady today," Agent Fisher said, as A&E splashed Mr. Battle''s face on the screen.As Ms. Battle began what might have been a pleasant visit with her husband and small child, the A&E cameras moved in, and agent Fisher said, "We''ve identified the female subject and inmate," as a mugshot of Ms. Battles husband is shown to television viewers.Keystone Kops and the Nitty GrittyMs. Battle''s husband had the toddler on his lap, and the couple sat next to each other. Ms. Battle''s husband caressed her, and then Ms. Battle visited the restroom, causing Agent Fisher to use his supposedly excellent cop skills to determine a crime was in progress. Not unlike the Keystone Kops, Agent Fisher and his bumbling band of merrymen swung into action."Hold on now, she''s going to the bathroom," Agent Fisher says, adding, "Typically, these women hide stuff up their vaginal cavity [sic] and then go to the restroom to take it out. Now we are starting to get to the nitty gritty."The camera then shows the doors to the bathroom, triggering more amazingly astute analysis from Agent Fisherthis time its about the size of Ms. Battles bladder and her efficiency in the latrine."There she is, right there. See how fast she went in there. She didn''t have time to pee," Agent Fisher says.Apparently, Agent Fisher, unaware of a bygone era when gentlemen and ladies would not utter the verb, "pee," on national television, has a special mathematical formula for computing travel times for urine through the urethra and into the toilet, hand washing, mirror check, and egress from a restroom.Ms. Battle, allegedly carrying something in her hand, proceeded to kiss her husband, A&E provided a crashing cymbal sound to enhance the reality TV drama, and Agent Fisher exclaimed, "Some [expletive deleted] just happened. I think we got ''em. I think we got them."It was time for the brave men of law enforcement to swing into action with A&E there to capture all the zany fun.First, they conducted a strip-search, and then, they placed Ms. Battle''s husband in a so-called "dry cell." Its called a dry cell because there''s no running water, and thus, no way to get rid of contraband.They kept Ms. Battle''s husband in the dry cell for 24 hours. He neither urinated nor defecated any contraband.After releasing Ms. Battle''s husband from the dry cell, Agent Fisher called the incident a "false alarm," but he added more commentary during the closing credits of The Squad: Prison Police that would become significant in subsequent litigation. This is Courtweek, after allyou know someone''s gonna get sued."If you are dirty, if you are smuggling in contraband, drugs, cellphones, tobacco, then we''re going to catch you. We might not get you today, maybe next week, next month, next year, but eventually, we''re going to catch up with you, and we''re gonna get you. That''s what we do," Agent Fisher said.Reality TV in CourtMs. Battle sued A&E Television Networks, Inc., and Wild Eyes Productions, Inc., the producers of The Squad: Prison Police, in federal district court in Tennessee, alleging defamation and intentional infliction of emotional distress.A&E and Wild Eyes moved to dismiss the suit, arguing on the defamation claim that The Squad: Prison Police was not capable of defamatory meaning, noting that the program doesn''t claim Ms. Battle committed a crime, but instead "accurately reports the results of an investigation."The court didn''t buy it.Noting the camera angles, the ominous music, and the made-for-TV commentary of Agent Fisher, U.S. District Judge Kevin Sharp wrote:"Even though the Program indicates that a search of Plaintiff revealed no drugs, a jury could conclude from the overall way that the Program is presented that Plaintiff was a drug smuggler who just happened not to get caught on September 12, 2009. Such an impression is enforced by Agent Fisher''s parting comments to the effect that while we might not get you today, we will get you sooner or later if you are smuggling drugs into a Tennessee prison."In rejecting the attempt by A&E and Wild Eye''s to dismiss Battle v. A&E Television Networks, Inc., the court cited also the U.S. Supreme Court case of Milkovich v. Lorain Journal Co., and held that statements of opinion were not automatically protected from libel and slander claims on First Amendment grounds."After all, ''expressions of ''opinion'' may often imply an assertion of objective fact," the court said.The lesson we take from this week''s Case of the Week is that, before airing a show, A&E might want to make sure the subject is guilty of genital smuggling--or at least not put a cop on the air insinuating the innocent party just got lucky on that one occasion. After all, they could just put a bunch of people on a desert island, have a some obnoxious people become roommates, or have really untalented people sing.________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: [email protected] 5, 2011The Law of Pig FumesHave you ever had a neighbor who cooked food they may have found tasty and delicious, but that emanated aromas reminiscent of aged Roquefort cheese and dirty baby diapers left in a garbage can in the hot sun? It would be most annoying, but would it be unlawful? Would the pungent aromas be trespassing onto your property?Believe it or not, the issue has been litigated, and, in this week''s Case of the Week, we learn whether various airborne items--chemical particulate matter, sewage plant smells, and pig farm fumes--are trespassing when they waft onto your property. People may disagree, and that''s okay. As we''ll discover, the courts disagree as well.Organic AirOluf and Debra Johnson had decided to get back to nature. They converted their Minnesota conventional family farm into an organic farm, hoping to achieve an organic food certification that would allow them to charge more for their farm fresh products.Soon the Johnsons were ready to enjoy their new organic Eden. As they began their new all-natural existence, they stopped using pesticides, and Mr. Johnson posted signs around the property, letting everyone know that the Johnsons'' new tree-hugging Utopia was a chemical-free zone.There was just one problem. The neighbors hadn''t joined the eco-friendly bandwagon.The Johnsons may have embraced Mother Nature, but their next-door neighbor, the Paynesville Farmers Union Cooperative Oil Company, was still spraying away. Pesticides and herbicides drifted onto the Johnsons farm.Seeing the neighboring farm much like a chinchilla sanctuary might view a petrochemical plant as a neighbor, the Johnsons filed complaints in 1998, 2002, 2005, 2007, and 2008. The Minnesota Department of Agriculture cited Farmers Union four times for violating Minn.Stat. 18B.07, subd. 2(b) (2010), which made it illegal to apply a pesticide resulting in damage to adjacent property.Having had enough of chemicals wafting onto their pristine, virginal, chemical-free land, the Johnsons sued in Minnesota state court in January 2009, alleging, among other things, that Farmers Union committed trespass by allowing its chemical fumes to invade their property.A state trial court was unconvinced. It granted summary judgment to Farmers Union, on all claims, including the trespass claim, holding that trespass by particulate matter was not recognized in Minnesota.Leading the charge for Birkenstock-wearing lovers of fields and streams everywhere, the Johnsons appealed.The Law of Pig FumesIn rejecting the Johnsons'' claim, the trial court relied on the Minnesota Court of Appeals'' decision in Wendinger v. Forst Farms, Inc., 662 N.W.2d 546 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003). The facts leading to the court battle in Wendinger are every homeowner''s worst nightmare.The Wendingers and the Forsts had been neighbors for years. They had also farmed their lands for years, and the Wendingers built a new home on their land in 1984.In 1994, the Forsts entered into an agreement with Wakefield Pork, Inc., to construct and maintain a pig farm to house Wakefields'' pigs. In a design sure to make anyone nauseous, liquid pig waste was stored in an outdoor concrete lagoon. The pig poo was then pumped and spread on the fields each fall.As the scents from farmyard feces filled the ambient air, the Wendingers began to complain. Then, they filed scores of complaints with state and local authorities. Finally, they sued.Among their allegations was a claim for trespass, arguing the pig fumes entering their property constituted trespass.A trial court dismissed the trespass claim, and the Wendingers appealed. The Minnesota Court of Appeals affirmed, holding that the Wendingers'' claim was one for nuisance--not trespass--because the odors of which the Wendingers complained interfered with the use and enjoyment of their land, not with their exclusive possession of it.The trial court in Johnson used the Wendinger decision for the proposition that particulate matter traveling from one property to another could not constitute trespass. However, the appellate court in Johnson held the trial court read too much into the pig fume decision.Pesticides are not Pig FumesAlthough the appellate court in Wendinger used the phrase, "particulate matter," the appellate court in Johnson held all particulate matter is not alike."Nothing in our Wendinger analysis indicates that we intended the term particulate matter to define a unique category of physical substances that can never constitute a trespass," the court said. Basically, the court held pesticides are not pig fumes."Unlike the plaintiffs in Wendinger, the Johnsons do not claim trespass based on transient odors. Instead, they primarily complain that the liquid chemicals that the cooperative sprayed into the air from neighboring fields drifted, landed, and remained on the Johnsons'' organic crops in detectable form, contaminating them." Judge Kevin Ross wrote for the court.Where the Wendinger court said there was no trespass because the pig fumes only affected enjoyment of the land, not possession of it, in ruling for the Johnsons, the appellate court in Johnson held that pesticides can affect both possession and enjoyment."The errant dispersion of pesticides, which contain chemicals designed to affect the land, can interfere with possession," the court said.So, the next time youre cooking your Aunt Betsys Garlic and Sauted Sardine Surprise, youre probably okay--even if it does ruin the ambiance of your neighbor''s garden. But, if you spray Raid, and it ends up in your neighbors Cheerios, he may just lawyer-up.______________________________July 28, 2011The Law of Protecting Celine DionHow important is protecting Celine Dion?After all, she sells millions of records, and many middle-aged women adore her. However, there are millions more who would rather spend a weekend in an Iranian torture chamber than listen to Ms. Dion sing the theme from Titanic for the 4,761st time.The woman may need some protection.Well, in a development that may damage U.S.-Canadian relations and come as a shock to fans of syrupy, schmaltzy pop music, a federal appellate court has held that serving as Celine Dion''s bodyguard does not constitute an original contribution of major significance in a field of endeavor sufficient to warrant the granting of a EB-1 visa.The BodyguardHad the court heard the case of Kevin Costner''s character protecting Whitney Houston in The Bodyguard, the whole thing might have gone differently. Mr. Costner''s character had made a major contribution in the field of celebrity personal protection by serving as a U.S. Secret Service agent. Such a high level of demonstrated skill and accomplishment might have brought him a visa.But what if, instead of being employed by the U.S. Department of the Treasury to be part of elite squad of livesavers, Mr. Costner had been employed to protect the top-selling female Canadian recording artist of all time by the pride of Charlemagne, Quebec herself?Would the United States grant a visa to the man who had protected Canada''s fourth most famous export--next to Keanu Reeves in Bill and Ted''s Excellent Adventure, maple syrup, and those deeply disturbing Sarah McLachlan commercials with the abused puppies and kittens?Nikolaos Skokos thought they should.Mr. Skokos, a security consultant for Celine Dion, applied to the United States Department of Homeland Security (DHS) for an EB-1 visa, and DHS rejected him. Apparently, DHS didnt think protecting the vocal cords that brought Beauty and the Beast to warm the hearts of little children was important enough.To see what an affront this might be to Ms. Dion''s throngs of adoring fans, it helps to know a little bit about the legal process behind granting visas to enter the United States.Legal TitanicIn addition to establishing a lottery for certain visas and dropping homosexuality as a basis for exclusion from the United States, the Immigration Act of 1990 created the EB-1 visa to attract immigrants with exceptional talents and skills.The EB-1 visa has three types, one for multinational executives and managers, one for professors and researchers, and one for applicants of extraordinary ability. Two of the ways an applicant can demonstrate this extraordinary ability are showing he had made original contributions of major significance to his field of endeavor under 8 C.F.R. 204.5(h)(3)(v) or showing she was paid a high salary compared to others in her field under 8 C.F.R. 204.5(h)(3)(ix).Not only did DHS feel that protecting Celine Dion did not meet this standard of excellence, the U.S. District Court for the District of Nevada agreed with DHS, holding for the government and rejecting an appeal filed by Mr. Skokos.In the legal equivalent of running the Titanic into an icebergwhile listening to Celine Dion sing about it as Leo and Kate flail in the frigid waters of the North Atlantic, Mr. Skokos appealed to the U.S. Court of Appeals for the Ninth Circuit in Skokos v. Department of Homeland Security, and fared no better.The appellate court held Mr. Skokos failed to establish that his work for Ms. Dion constituted an original contribution of major significance to the field of bodyguarding. In addition, the court held he failed to establish that he was paid more than most celebrity bodyguards.The court noted Mr. Skokos claimed he was far more than a bodyguard--he supervised guards, made security arrangements in the exotic destinations where Ms. Dion shot her mesmerizingly dramatic videos, and provided around-the-clock protection for Ms. Dion and her family. Nevertheless, the court was unmoved that protecting the valuable Canadian export was sufficiently significant to get a visa.The court noted the high standard for granting an EB-1 visa, citing the case of Kazarian v. USCIS, where a physicist who had published articles, written a textbook, and lectured extensively didnt even qualify for an EB-1 visa because his work--although satisfying the criterion for authorship of scholarly articles--did not establish that his work was of major significance in the field of physics.But, is writing scholarly articles and lecturing on physics at universities really as important as ensuring the gaffer and the best boy don''t snag Celine Dion''s Perrier from the buffet table?Of course, some people have managed to prove they are important and accomplished enough to get an EB-1 visa. Golfer Nick Price got one, but--unlike Mr. Skokos--he had won multiple championships, earned over a million dollars in prize money, and he had Jack Nicklaus, Lee Trevino, and Hale Irwin execute affidavits supporting his position.If only Mr. Skokos had managed to get a raise from Celine Dion and recommendations from Gladys Knight and the Pips.______________________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: [email protected] 20, 2011American Idol''s American LitigantMany contestants on the hit television show, American Idol, may believe Simon Cowell is a somewhat nasty fellow. He berates participants, calls them names, and generally makes people wonder if his momma taught him any manners. Nevertheless, most of these verbal salvo victims don''t sue. But, one did, leaving us with the question: Does Simon Cowell''s boorish behavior on American Idol violate Title VII of the Civil Rights of 1964?Effeminate Idol?In what some take as evidence of the decline of Western civilization, American Idol, the American spin-off of the British program, Pop Idol, has become one of the most successful shows on television. Contestants participate in singing competitions to win recording contracts, and the winners, including singers Kelly Clarkson and Carrie Underwood, have gone on to fame and fortune.Some of the contestants weren''t as talented. One of those contestants was Ian Bernardo.Mr. Bernardo first appeared on American Idol in 2006 on the opening show of the season. These season-opening audition shows feature a few acts that will advance in the competition and a few acts that will come close. They also feature performers with no reasonable chance of advancement. These contestants--possessing little or no talent--apparently appear to provide comedic material by making fools of themselves. Apparently, Ian Bernardo was one of these comedic contestants for the 2006-2007 season.Not surprisingly, Mr. Bernardo was unsuccessful in his American Idol audition. However, Mr. Bernardo--who described himself as "having a non-conforming appearance based on gender stereotype," which a U.S. District Court interpreted to mean that "he appears to conform to a stereotype of an effeminate homosexual male"--did make subsequent appearances on the show for the 2006-2007 season finale and for Simon Cowell''s final appearance on the show in May 2010.The Courthouse AuditionClaiming he was an employee of American Idol Productions Inc. on each of his appearances, Mr. Bernardo claimed also that he was subject to discrimination and harassment due to his sex on each of his appearances. He claimed American Idol Productions employees told him to "gay it up" and that producers conditioned his appearance on Mr. Cowell''s farewell show on Mr. Bernardo''s willingness to be "outrageous, flamboyant, and really gay."Claiming he was also subject to epithets such as "fag" and "homo," Mr. Bernardo filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). He obtained a right to sue letter from the EEOC and sued American Idol Productions for violations of Title VII of the federal Civil Rights Act of 1964 and New York State law.American Idol Productions moved to dismiss the case, making several arguments. In addition to claiming Mr. Bernardo suffered no adverse employment action, the producers argued Mr. Bernardo had failed to make a case for hostile work environment under Title VII. Although the court conceded that--if true--the conduct at the Simon Cowell farewell show would constitute a hostile work environment, the court rejected Mr. Bernardo''s legal argument.Noting Title VII is not a civility code and that discrimination on the basis of homosexuality is not prohibited under Title VII, the court held Mr. Bernardo had not established that gender stereotyping, which is prohibited by Title VII, had so permeated the workplace so as to create a hostile work environment.The court went on to dismiss all Mr. Bernardo''s claims, noting, "He, like everyone else with a modicum of talent (or less) who auditions for American Idol, chose to appear on a program that was famous for its judges'' insulting behavior. Benardo went on the air after being told what was expected of him, and he knew what to expect. Having volunteered to be insulted, he cannot now claim that he was sexually harassed."There was no word as of press time as to any possible Ian Bernardo appellate audition at the Second Circuit._____________________July 10, 2011Suing After Ferocious Puppy PanicPeople are injured in Americas stores, streets, and subways all the time, making personal injury law a big business. Its also one of the most contentious. Some cases may seem easy, but what if youre injured after being chased down a supermarket aisle by a charging dog owned by a store employee? Should the store be liable? Two Mississippi courts disagreed recently. Of course, it helps if you know something about the dog.Attack in the Artichoke AisleLenetra Outlaw decided to do some shopping at her local Penny Pinchers discount grocery store in West Point, Miss., one day in Aug. 2006. An otherwise pleasant shopping day took an unfortunate turn when Ms. Outlaw heard a sound that gripped her with fear and panic.She heard a dog bark.Ms. Outlaw then heard the terrifying sound of dog claws on Penny Pinchers'' floors as the possibly ferocious beast came charging down the aisle. Ms. Outlaw, who said she was extremely afraid of dogs, decided it was time for drastic evasive maneuvers.She ran down the aisle, made a turn, and sought refuge from her brutal foe. Not finding a safe place in the aisle, she ran into a freezer. Thinking that wasnt safe enough--after all, she probably saw the movie, Cujo--Ms. Outlaw leaped on top of the freezer. In her Quixotic quest to escape Armageddon, Ms. Outlaw exacerbated a previously existing hip injury, and decided to sue Penny Pinchers and Cindy Scott, the store manager who owned the attack dog.A Mississippi state court jury found for Ms. Outlaw and awarded her $130,000, finding Penny Pinchers 70 percent at fault and Ms. Scott 30 percent to blame.At this point, you may be wondering, What''s so interesting about this case?Remember at the beginning we told you it would help if you knew a little about the dog?Baby Weiner DogIt turns out this allegedly ferocious attack dog was nothing more than a four-month-old Dachshund puppy. That''s right. A little weiner dog weighing four pounds.It seems Ms. Scott brought the adorable puppy named Sophie to work every day. The pleasant little puppy had never attacked anyone before. Ms. Scott kept Sophie behind the counter--not to protect customers, but so that no one would step on the little thing. Rather than a 150-pound Rottweiler with a spiked collar, Ms. Outlaw jumped on top of a freezer in mortal fear of a tiny weiner dog puppy.Given this fact pattern, Penny Pincher and Ms. Scott decided an appeal was in order. The issue facing the Mississippi Court of Appeals in Penny Pinchers v. Outlaw: Did the presence of the four-month-old Dachshund puppy create an unreasonably dangerous condition at Penny Pinchers that day?The court noted that the Mississippi Supreme Court had held that dogs are not dangerous per se. The Magnolias State''s dog-loving supreme court held in Poy v. Grayson that to impose liability on a dog owner for personal injuries, a plaintiff must show the dog had a propensity for violence and that the owner knew it.The court in Penny Pinchers noted that the four-month-old, four-pound bundle of love, Sophie the Weiner Dog, had a clean record.Citing the Mississippi Supreme Courts 1969 decision in General Tire & Rubber Co. v. Darnell, the court went on to hold that a premises does not have to be completely safe from any hazardonly reasonable safeand that the plaintiffs own actions can be a factor."We acknowledge Outlaw''s extreme fear of dogs. However, we cannot say that it was reasonable for Penny Pinchers to anticipate that anyone, even someone with a great fear of dogs, would have such a reaction to Sophie''s presence in the store," Judge Thomas Griffis wrote for the court.Thus, we feel confident in saying, if you hurt yourself jumping on top of a freezer to escape a four-pound Dachshund puppy, don''t bother suing anyone because its probably your own fault.__________________________June 29, 2011A Defamer''s Guide to ''Dirtbag v. Dirtbag''What does it really take to slander or libel someone? The law of defamation can be complex, but a New York state court recently tried to sort out this weighty issue: What is a "dirtbag," and is the term defamatory?The issue arose after a man named William Schumacher penned comments that another man, John Acheson, was "the biggest dirtbag" he had ever met in his life. Acheson sued Schumacher before Westchester City Court in what, amusingly, could become a seminal case of black letter law. Apparently, no other U.S. court has ever issued a reported decision on the issue of whether it is defamatory to call someone a "dirtbag."Citing a New York precedent, the court in Acheson v. Schumacher said libel or defamation was "a writing or broadcast that tends to expose the plaintiff to public hatred, contempt, ridicule, or disgrace." The court went on to cite the five proving elements of the tort, including the truth or falsity of the statement and whether the complaining party actually sustained damages.Without offering any citation, the court defined "dirtbag" as "an informal term" meaning "a dirty, grimy, sleazy, or disreputable person." The court went on to explain various possible meanings for Mr. Schumacher''s allegedly defamatory statement. Did Schumacher mean that Acheson was the physically largest of the dirtbags he had known? Or perhaps just one of the most powerful? The court surmised also that Schumacher may have believed Acheson to be "just a tad worse" than the other dirtbags he had known.The point the court was making was that -- in any case -- these statements would all be opinions. Citing the case of Gilliam v. Richard M. Greenspan, P.C., the court held that statements of opinion are not defamatory. (In Gilliam, one lawyer penned a nastygram, saying unflattering things about another lawyer. The court held it was opinion and threw out the case.)But don''t take these court decisions as a license to spew any insult you please. In Lund v. Chicago and Northwest Transp. Co., a Minnesota appellate court held that certain epithets -- in that case, the unfriendly word "s---head" -- used alone might be only "unactionable rhetorical hyperbole," but combined with other defamatory words or statements, such words could "take on actionable characteristics."It also matters where and when insults are hurtled. In National Recruiters Inc. v. Cashman, the Minnesota Supreme Court found it slander when a plaintiff was called "a no-good loser; a no-good son of a bitch" in the context of an employment reference.Other courts are more hostile toward such lawsuits. When ESPN posted a photo of daredevil Evel Knievel and his wife with the caption, "Evel Knievel proves you''re never too old to be a pimp," the Knievels sued the network for defamation. They lost on the grounds that a reasonable person would not have taken the photo and caption to mean Evel was literally a pimp and Krystal his prostitute, despite their 29-year age difference and his rose-tinted glasses in the photo.And Florida courts have held that even such insults as "cockroach" and "mega-scumbag" do not constitute defamation, nor do references to a woman''s "poor feminine hygiene." Despite being "crude and indecent," such comments were considered permissible as "satirical hyperbole."The bottom line is that you can freely call someone a dirtbag or a mega-scumbag, but be careful the next time you write a letter of recommendation. If you can''t say something nice, at least don''t say anything that will get you sued.___________________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: [email protected] more at the Washington Examiner: http://washingtonexaminer.com/opinion/op-eds/2011/06/defamers-guide-dirtbag-v-dirtbag#ixzz1Qfc82pzXJune 12, 2011The Law of Ben & Jerry''s and Natural BeansHave you ever wondered just what "all natural" means? There was once a professor who reminded his students that the bubonic plague was all natural. Various merchants--from sellers of cereal to purveyors of popcorn--claim their products are "all natural." Ben & Jerrys claimed its ice cream was all natural, but the Center for Science in the Public Interest didnt agree, so they got someone to sue Ben & Jerry''s.So, we can attempt to discover once and for all just what all natural means, the tale of Chubby Hubby, Chunky Monkey, and Cherry Garcia defending their honor gets to be this week''s Case of the Week.Activist ice creamIn the 1970s, childhood friends Ben Cohen and Jerry Greenfield took a correspondence course in ice cream making. Then they scraped up $12,000, opened an ice cream shop in an old Vermont gas station, and delivered dairy products in a station wagon. Ben & Jerry''s Homemade Inc. was born, and, as they say, the rest is history.Ben & Jerry''s expanded quickly. Not only was the company known for its tasty ice cream with imaginative names, Ben & Jerry''s became known as a leader in social and environmental activism. The growing company tried to promote world peace, and--from green dairy farms to recycled supplies--Ben & Jerry''s made environmental stewardship a focal point of its operations. In addition, Ben & Jerry''s donated 7.5 percent of the companys pre-tax profits to charity through the Ben & Jerry''s Foundation. In 2000, Ben and Jerry sold the company to Unilever.Although they are now very rich dudes, Messrs. Cohen and Greenfield and their ice cream operation still conjure up images of granola, Birkenstocks, peace signs, and...well...things that are all natural. Of course, the labels of Ben & Jerry''s ice cream read all natural, too. Some people didn''t think it was natural enough.Dutch chocolateAlthough Amsterdam may be more famous for Rembrandt, the Rijksmuseum, and reefers, some people believe the Netherlands is also famous for Dutch chocolate. But, does anyone really know what Dutch chocolate is? Hint: it''s a little more complicated than just being made near The Hague.Chocolate is produced when seeds from cocoa beans are fermented and dried and mixed with fat and powdered sugar. Cocoa powder can be made in two forms: unalkalized cocoa or Dutch-process alkalized cocoa. The unalkalized cocoa is made by merely pressing the beans. The process produces a light brown, very acidic powder.Dutch-process cocoa, on the other hand, is produced by cocoa nibs with a mild alkali solution to raise the pH and thus, lower the acidity. This process improves taste, color and solubility, but it also destroys many of the flavonols, which are believed to have health benefits. Ben & Jerry''s used the Dutch alkanization process.All Natural?The Center for Science in the Public Interest (CSPI) doesn''t think alkanized cocoa is all natural, so it contacted Unilever, demanding that the company remove the words all natural from both Ben & Jerry''s and Breyers ice cream, another brand the company owns. Ben & Jerrys agreed to remove the phrase, all natural, from any products containing alkanized cocoa. Breyers did not.CSPI organized a class action with the ice cream-enjoying Skye Astiana as lead plaintiff of a band of ice cream eaters who hate the allegedly unnatural Dutch chocolate, and sued Ben & Jerry''s in the U.S. District Court for the Northern District of California in Astiana v. Ben & Jerry''s Homemade Inc. They alleged violation of both federal and California law in the labeling of the ice cream as all natural even though its cocoa contained potassium carbonate from the alkanization process.Specifically, the CSPI plaintiffs argued Ben & Jerry''s committed fraud and engaged in false advertising in violation of California Business & Professions Code 17500. In addition, CPSI claimed Ben & Jerry''s violated regulations promulgated by the federal Food and Drug Administration (FDA).Ben & Jerry''s filed a motion to dismiss the case, making numerous arguments, including debating the definition of all natural.The ice cream makers argued that "all natural" was a term of art under FDA and U.S. Department of Agriculture (USDA) regulations. Thus, Ben & Jerry''s argued, for the CSPI plaintiffs to have been deceived by the all natural packaging, they would have had to have possessed an intimate familiarity with the FDA''s natural policy as well as the USDA''s regulations about what constitutes a synthetic process.Ben & Jerry''s was taking the position that Ms. Astiana was merely an ice cream lover and not a federal regulatory expert.In addition, Ben & Jerry''s argued a prospective class plaintiff would have had to taken that extensive regulatory knowledge, then actually have seen the all natural phrase on the package, and then made her own analysis that the ice cream was either not alkanized or that the alkali used in the Dutch cocoa process was not synthetic under the USDA regulations.After all that, under Ben & Jerry''s argument, the potential plaintiff would have had to have relied on that regulatory analysis in deciding to enjoy that pint of Chubby Hubby. Ben & Jerry''s argued that when the reasonable consumer bought her Chunky Monkey, she was not assuming all natural meant alkanized with sodium carbonate and not potassium carbonate.The court wasn''t buying it--at least not for now.The court denied Ben & Jerry''s motion to dismiss, holding that the dispute was too fact-dependent to be thrown out at this point."Moreover, the fundamental dispute--what is a natural product?--will likely present some factual disputes. The only FDA guidance appears to be a distinction between natural and synthetic in the policy, but that definition in the Federal Register is qualified as meaning something that would not normally be expected to be in food. Surely, that characterization raises multiple linguistic and philosophical questions, not to mention factual questions," U.S. District Judge Phyllis Hamilton wrote for the court.So, the battle between Ben & Jerry''s and the enemies of Dutch chocolate will continue. What have we learned this week? Well, according to the U.S. District Court for the Northern District of California, there really isn''t any definition of "all natural"...at least for the moment._______________________________June 5, 2011The Law of Bees and BudsWhat does it mean to operate a motor vehicle? It seems to be a simple question. Get a bunch of lawyers and judges involved, and it becomes anything but. Although alleged drunk driving cases are where this question is asked most often, this week''s "Case of the Week" asks it in a different setting.What about when that motor vehicle is attacked by a swarm of bees?Unhappy HiveOne May day in 2009, Michael Corpus called animal control for the city of McAllen, Tex. It seems he was having a bit of a problem with a beehive.City of McAllen Animal Control Officer Roberto Mata responded to the call, and upon arrival at the scene, Mr. Corpus asked Officer Mata to accompany him to the hive with the swarming army of displeased bees.Possibly remembering what happened to the fools who tried to go into a hotel room with Mike Tyson''s tiger, Officer Mata said something along the lines of: "I don''t think so; Homey don''t play that," and refused. Officer Mata insisted Mr. Corpus accompany him to the hive.So the two gentlemen entered Officer Mata''s animal control vehicle, equipped with animal protection equipment. Officer Mata donned protective gear and approached the hive of danger, but he instructed Mr. Corpus to remain safely in the animal control vessel as the engine remained running.Things would have been just fine and dandy had Officer Mata not done something that may have been somewhat unwise.Insects Attack!Not unlike a Saturday Morning Super Hero decked out in protective gear as he makes Saturday mornings safe for kiddie sales of sugary cereal and overpriced toys, Officer Mata approached the hive in his protective animal control gear. Then, the swashbuckling hero of animal protection began spraying the bees.Guess what happened next?Shockingly, the bees attacked. But, no worries. Officer Mata was protected by his animal control gear. The problem was what Officer Mata did next.To escape the mighty swarm, Officer Mata ran to the truck, opened the door, and hopped in.The only problem, of course, was that, when he opened the door to the animal control truck, he let in a bunch of very angry bees--who proceeded to have a field day biting the [expletive deleted] out of the unprotected corpus of Mr. Corpus.Mr. Corpus was not amused.What do unamused people do in this column? They sue.The Law of Bees and CarsMr. Corpus sued the city of McAllen, alleging Officer Mata''s negligent operation of his city-owned vehicle cased serious injuries to Mr. Corpus.Operating a motor vehicle? What about spraying the bee hive and opening the truck door so the bees could turn Mr. Corpus into a walking, talking pin cushion.Actually, Mr. Corpus had a smart lawyer.You see, government entities are usually only liable in civil suits if they waive what lawyers call sovereign immunity, the government''s immunity from legal actions. Governments waive sovereign immunity for certain activities. Basically, you can sue the government only if the government says you can sue the government.One of the exceptions to sovereign immunity in Texas is for operation of motor vehicles. If Mr. Corpus'' lawyer could show Officer Mata was operating the animal control truck, then he would have a case under the exception to sovereign immunity.So just what does it take to be operating a motor vehicle?If you asked a bunch of convicted drunk drivers, they would probably tell you Officer Mata was operating the animal control truck. That''s because courts have held that, to be guilty of drunk driving, all one must do is sit in the drivers seat with the key in the ignition.Bud or Bees?For instance, in People v. Wood, Andrew Wood had a very unfortunate night at McDonald''s. When he pulled up to the drive-up window in his van, he passed out--with his car running--and, giving new meaning to the phrase, "This Bud''s for you," he had a can of Budweiser between his legs. At least it wasn''t hot coffee. Oh yeah, he also had a cooler full of marijuana on the front seat.The legal story from the bad night at the Golden Arches wasn''t so bad for Mr. Wood at first. Both a trial court and an intermediate state appellate court threw out the evidence against him, holding he was not operating his van at the time of the arrest and search.However, the Michigan Supreme Court reversed both courts and held Mr. Wood was operating the motor vehicle even though his van wasn''t moving, and he had his foot on the brake. Noting that his van was running and in drive, the state''s high court held he was operating the vehicle because he had put the vehicle in motion, was still in control of it, and the vehicle still posed a danger to the public. In doing so, the court reversed two previous Michigan cases that held one could not be sleeping and operating a motor vehicle at the same time.Actual physical control of the vehicle is the standard used by many jurisdictions, and in Illinois, Michigan, Minnesota, and Nevada, that control can be maintained while sleeping.Putting the key in the ignition will get you in some states, including Vermont. In the Vermont Supreme Court case, State v. Helton, one hapless, inebriated fellow was convicted of DUI for merely putting his keys in the ignition to roll up his car windows--after he had gone to retrieve his vodka from the car.Note to self: appoint a designated sober window operator.So what about Officer Mata, was he in control of the vehicle and thus operating it for purposes of Mr. Corpus bee attack case?Departing from the case law of other states, both the trial court and the Texas Thirteenth Court of Appeals said "no.""The animal control truck was not in operation; it was parked. Corpus was injured when the bees entered the cab of the truck where he happened to be sitting. Although we do not condone Mata opening the truck door and exposing a passenger not wearing protective gear to agitated bees, we nonetheless cannot conclude that Corpus''s injuries resulted from the operation or the use of the truck," Judge Nelda Rodriguez wrote for the court.So for this week, we''ve established that you are operating a vehicle in Michigan if you''re asleep at the wheel in the McDonald''s drive-through with weed on the seat and Budweiser between your legs, but that you''re not operating a running vehicle in Texas with a swarm of bees on the seat and between your legs.Either way, its not a Happy Meal._____________________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: [email protected] more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/06/law-bees-and-buds#ixzz1OXOJfS6kMay 29, 2011The Law of Rambo and Air FreshenersOur column two weeks ago about the Fourth Amendment has generated some discussion about just what will negate yourFourth Amendment protections and allow the cops to haul your posterior end to jail. As a public service to help our readers remain free from bondage, we will, from time to time, present our Case of the Week: Fourth Amendment Follies edition.This weeks helpful hint: Don''t use too much air freshener.Druggies from CharlotteRobert Little was traveling through the pleasant North Carolina hamlet of Thomasville early one August morning in 2008. It might not have been any big deal, but it was 4:03 in the morning, and Mr. Little was driving an old Buick with a malfunctioning headlight.Bonus reader helpful hint! If you''re carrying contraband, don''t drive through a small Southern town at 4:03 in the morning in an old Buick with a busted headlight. Bad things will happen. At least wait until 5:00 when the first batch of doughnuts comes off the conveyor belt at the local Krispy Kreme.Because Mr. Little didn''t get the memo on suspicious vehicles lurking through the Bible Belt during the wee hours of the morning, he got to meet Officer Adam Kallfelz of the Thomasville Police Dept.Officer Kallfelz observed three things that made him decide it was time for back-up.First was Mr. Little''s nervous and agitated demeanor. Second, Mr. Little said he was traveling from Charlotte. Finally, Mr. Little had approximately 10 tree air fresheners hanging from the rear-view mirror.Before we get to those pesky air fresheners, please allow us to defend the good people of Charlotte, North Carolina. You''re a fine city with an economy built on good barbecue and Bank of America overdraft fees, and--unlike Office Kallfetz--we don''t think you''re a bunch of druggies. We don''t think people should be stopped by the cops just because they''re coming from Charlotte.But, back to those tree air fresheners.Rambo RaidA nervous dude driving from Charlotte with 10 air fresheners made Officer Kallfelz realize he needed a crime deterrent.It was time for Rambo.At 4:07 AM, Officer Kallfelz called Officer Christopher Leonard, asking him to bring his partner, Rambo.Not unlike Sylvester Stallone searching swamps for sadistic Viet Kong alumni, Rambo, a drug dog, went over that old Buick like a frat boy going through sofa cushions looking for that lost last joint.Rambo signaled for the presence of narcotics in the Buick''s door, and Mr. Little was arrested for being a felon in possession of a firearm.Mr. Little moved to suppress the evidence, arguing the search was illegal, but a trial court denied the motion, holding that the stop and the search were lawful. Mr. Little appealed.Air Freshener JurisprudenceIn his appeal to the North Carolina Court of Appeals, the Tar Heel State''s intermediate appellate court, Mr. Little argued in State v. Little that the search was improper because the cornucopia of air fresheners did not provide reasonable suspicion for extending the stop until Rambo arrived.Unfortunately for Mr. Little, North Carolina has a proud tradition of air freshener jurisprudence. They even go after Santa Claus if there''s air freshener involved.In State v. Hernandez, the North Carolina Court of Appeals held a stop was proper when it was based, at least in part, on Christmas tree air fresheners.In Hernandez, Trooper Jonathan Whitley of the North Carolina Highway Patrol stopped a vehicle when driver Jose Hernandez removed his seatbelt while still operating his vehicle. Not unlike with Mr. Little''s arrest, air fresheners would help lead to Mr. Hernandez''s undoing."I noticed there were several of these Christmas trees, air fresheners in the vehicle. I noticed a strong odor coming from the vehicle," Trooper Whitley testified in defending his actions.Christmas tree air fresheners as a basis for detaining a motorists? Well, the court upheld the stop, and the court in Little followed the court in Hernandez."Facts giving rise to a reasonable suspicion include nervousness, sweating, failing to make eye contact, conflicting statements, and strong odor of air freshener," Judge Martha Geer wrote for the court in Little.And, if you think North Carolina is the only state fighting the war on air freshener, you would be wrong.In Commonwealth v. Watts, the Massachusetts Appeals Court held reasonable suspicion could be based, in part, on the presence of fabric softener drier sheets.The federal courts have joined this attack on pleasant aromas as well. In United States v. West, the Tenth Circuit proclaimed, "The Tenth Circuit has consistently held that the scent of air freshener is properly considered as a factor in the probable cause analysis, and in the Eleventh Circuit held in United States v. Wright that evidence of a drug conspiracy existed based partially on the fact that two persons entered the Winn-Dixie together to purchase carpet freshener and fabric softener; materials known to be used to mask the odor of cocaine.Many other federal circuits, including the Third, Fifth, Seventh, Eighth, and Ninth, have upheld convictions based, in part, on the presence of fabric softener, and in United States v. Edmonds, the Third Circuit upheld a trial court''s refusal to believe a drug mule was a mere unsuspecting courier. Why? She brought along a box of Bounce fabric softener sheets.So, the lesson from this week''s Case of the Week: with a Mountain Fresh scent filling the air, your dorm hall monitor in college didn''t believe you then, and the cops don''t believe you now. If you have contraband and notice Rambo sniffing your car, ditch the fabric softener...Bounce can get you busted.____________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/05/law-rambo-and-air-fresheners#ixzz1Nvzi9iNpMay 22, 2011The Law of Airport TipsHave you ever been sitting in a hotel room, staring at a room service bill, trying to determine whether the service charge added to your bill is the tip? And let''s not even get started with deciphering the cryptic hieroglyphics known as the cable bill.But what if your employer hoisted a sign informing customers there would be a two-dollar charge for your services? Would that payment be your tip? Would posting that sign get somebody sued? Of course, it would. This is the Case of the Week.Air a la carteOur story begins in Sept. 2005, when American Airlines began charging a $2.00 fee for passengers to check a bag at curbside.Before this policy began, curbside check-in was free, but customers tipped the skycaps--usually a dollar per bag--for curbside service. Until American went and messed up things, most skycaps earned most of their earnings from tips.As the airline industry faced significant financial problems, airlines began charging for many services that had been free. This a la carte fee system affected everything from headphones to handbags.Want to watch the in-flight movie? No problem. That''s free. Want to hear it? Two dollars for headphones, please. Want to eat? Pay up.Pay2Pee, the world''s first aircraft pay toilet, can''t be far away.At the moment, we can add curbside check-in to our non-complimentary airline a la carte menu.American--and its subcontractor actually employing the skycaps--made out like Tijuana bandits. The charge was designed to defray the cost of curbside service in a dark and dreary economy, but it actually became a profitable business venture for all...except the skycaps themselves.Many passengers thought American''s $2.00 fee was the tip. Others felt $2.00 per bag was enough to pay for curbside service. The end result was the same: the skycaps lost a significant amount of their income as tips plummeted.Suing SkycapsTwo skycaps at Boston Logan International Airport sued American and the contractor, seeking class certification and arguing that American''s curbside fee violated the Massachusetts statute governing tips, Mass. Gen. Laws, ch. 49, 152A (2008), constituted tortious interference with an advantageous relationship, unlawful conversion, and unjust enrichment under Massachusetts law, and that the skycaps were entitled to restitution under the legal theory of quantum meruit.The skycaps'' employer was dismissed due to an arbitration agreement, and American removed the case from a Massachusetts commonwealth court to federal court.The skycaps argued Massachusetts law prohibited American from charging the curbside baggage fee because the fee qualified as a service charge under the commonwealth law because it was a fee that a consumer would reasonably expect to be given to the skycap.American countered that the skycaps suit was preempted by the federal Airline Deregulation Act of 1978. When a federal law preempts a state law on an issue, the federal statute has sole jurisdiction, and the state statute is preempted and nullified for purposes of that dispute.The District Court held for American on several grounds, but held for the skycaps on the preemption argument. Thus, the claims under the Massachusetts tips law and for tortious interference were tried to a jury.Big TippersIt turned out the jury was a bunch of big tippers. The jury found for the skycaps in April 2008 and awarded damages in the amount of $2.00 to each skycap for every bag handled between Sept. 2005 and the verdict.Thus, the jury awarded the nine prevailing plaintiff skycaps approximately $333,000 in damages plus interest and attorney fees. One plaintiff skycap from the St. Louis airport did not get to share in the bounty because--as a citizen of Missouri--he was not covered by the Massachusetts tip law.But, our story is not over. Cheap tippers can rejoice. American appealed, and the First U.S. Circuit Court of Appeals handed down a decision bound to make Parisian tourists do a happy dance.The First Circuit reversed the district court and ruled for American in DiFiore v. American Airlines, Inc., holding that the Massachusetts tip statute was, in fact, preempted by the federal Airline Deregulation Act.Although the appellate court conceded there was conflicting case law, it relied on three U.S. Supreme Court cases, Morales v. Trans World Airlines, Inc., American Airlines, Inc. v. Wolens, and Rowe v. New Hampshire Motor Transport Assn, in holding that the federal law preempted the Massachusetts tip statute vis--vis the skycaps tips.The court held the commonwealth''s law was preempted when applied to Ameircan because it was related to a price, route, or service, noting that related to and service were statutorily broad terms.The First Circuit rejected the skycaps'' argument that the tip law''s connection to airline price, route, or service was so tenuous, remote, or peripheral as to not trigger preemption under Morales or Rowe."This, to borrow an apt airplane image, is walking into a rotating propeller: the advertising and service arrangements are just what Congress did not want states regulating, whether at high cost or at low. When the Supreme Court invoked the rubric ("tenuous, remote, or peripheral"), it used as examples limitations on gambling, prostitution, or smoking in public places--state regulation comparatively remote to the transportation function," the court said.So, next time you go to the airport, please remember that--because a federal court has ruled that curbside check-in is not like betting on ponies, retaining the services of a hooker, or smoking a joint at baggage claim--these guys aren''t protected by the Massachusetts tip statute.Even if you pay an airline curbside baggage fee, please, folks, tip your skycap.________________________May 14, 2011The Fourth Amendment and the Law of Bongs and BaggiesThe Fourth Amendment provides some of our greatest protections from government. It keeps colonial constables out of our tea, J. Edgar Hoover and the FBI out of our mothers underwear drawers, and seizure-hungry sheriffs out of our Chevys.Yet, as with anything, the Fourth Amendment is not absolute. The Fourth Amendment prohibits only unreasonable searches. Thus, if police have probable cause for a search, its not unreasonable, and the Fourth Amendment won''t stop it. In fact, the Fourth Amendment has a specific clause allowing searches with probable cause.A recent Massachusetts case gets to be our Case of the Week because it addresses the novel legal question: Does the presence of a bong and Baggies constitute probable cause for a search for marijuana?Speeding and SeizingWhen Shawn Smith decided to do some urban drag racing with friends, he probably should have left his bong at home. For readers who may be unfamiliar with the household appliance known as the bong, it is a water pipe--used by some to smoke marijuana.The speeding Mr. Smith was attempting to outduel a fellow motorist when police clocked him traveling 67 miles per hour in a 40 mile per hour zone.When police stopped the Smithmoblie, they noticed a bong and an open box of plastic sandwich bags in the car. The police testified that, based on their experience, a bong and Baggies usually meant one thing...and it usually happens a lot in Cheech and Chong movies. Yes, police thought they were dealing with that plague on humanity: marijuana.Having spotting the offending bong and Baggies, law enforcement swung into action.Police ordered Mr. Smith from the car, and frisked him. They asked him if there were any marijuana in the car, and he said there was not. However, Mr. Smith admitted he had some herbal enjoyment in his pocket. Police seized it, arrested Mr. Smith, and impounded his speedy car. Shockingly, they found more marijuana.However, in a development that will be significant legally later in our story, police did not detect any marijuana smoke or residue in the bong.Evidence Up in Smoke?Sure, police get to do an inventory when they seize a car. In this week''s case, police were arresting Mr. Smith for his weed, so they got to go through his car and inventory everything. However, when police misbehave, there is a judicial remedy known as suppression of the evidence. For those who never have time to watch Law and Order, that means the evidence is thrown out because the cops got it illegally.In this case, because the police failed to give Mr. Smith his Miranda warnings before giving him the Spanish Inquisition, Mr. Smith moved to suppress evidence of the search.However, Massachusetts prosecutors argued the bong and Baggies sitting in the car in plain sight gave the police all the probable cause they needed to search the carMiranda or not. In essence, the Commonwealth argued, it was the probable cause supplied by the bong and Baggiesnot the Mirandaless utterances of Mr. Smith that gave police the pot.Both a trial court and the Massachusetts Appeals Court, the commonwealths intermediate appellate court, rejected prosecutors'' arguments and threw out the evidence--and thus, the case. Citing Massachusetts case law, the court held that bongs and Baggies--and nothing more--do not give the police probably case for a search.Bong and Baggies LawThe Appeals Court distinguished Mr. Smith''s case from two previous Massachusetts Appeals Court decisions where bongs did lead to probable cause for a search: Commonwealth v. Dolby from 2000, and Commonwealth v. Correia in 2006.It is true the facts in all three cases were somewhat similar: cops stop car, cops see bong, cops arrest driver. However, Smith differed from Dolby and Correia in one, key respect. Unlike in Dolby and Correia, in Smith, there was neither marijuana smoke nor residue present in the bong.The Appeals Court said that distinction was critical. In Dolby and Correia, the evidence was not suppressed, but it was because there was residue in the bong--not because police spotted an innocent bong just hanging out, minding its own business, with no nefarious residue or smoke.Baggies get the same constitutional protections.Citing its decision in Commonwealth v. Garcia, the court held, the observation of two lawful items--the bong and the box of sandwich bags--did not supply probably cause. The court articulated its rationale in Garcia:"The trooper''s experience, coupled with his observation of an apparently empty baggie, is not enough to provide probable cause to conduct a warrantless search of the automobile. Benign objects such as spoons, mirrors, and straws are often used in the narcotic trade. To allow police officers, experienced in narcotics investigations, to conduct a warrantless search whenever they observe one of the above items, and nothing more, would permit random searches, which are condemned by the Fourth Amendment and the Declaration of Rights," the court said.So, Mr. Smith got off: the evidence was suppressed, and the charges were dropped. The moral of this week''s Case of the Week: if you''re going to go drag racing with your bong in the back seat, at least make sure it is clean._________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/05/law-bongs-and-baggies-fourth-amendment-searches-probable-cause-miranda-marijuana#ixzz1MKivXiVWMay 8, 2011The Law of Cow Bones and BungeesWhen you buy a product or service, how much information should the seller disclose to you? This week''s Case of the Week examines that issue in a case involving breast implants, bungee cords, a surgeon''s eyesight, and the jurisprudence of cow bone implants...not necessarily in that order.Manmade ChassisDenise Dalien decided she wanted to augment the chassis God gave her, so she consulted plastic surgeon Stanley Jackson of Puyallup, Wash. Dr. Jackson performed breast augmentation on Ms. Dalien in 2000, using saline implants.After a diet and exercise regimen caused her to lose weight, Ms. Dalien noticed some indentation and rippling on what was once her soft and supple upper left bosom.No problem. Dr. Jackson went in again, removed the saline implants, and replaced them with gel implants.Turns out there was a problem. Ms. Dalien was not happy with her new gel bosoms, so under the surgical theory of more is more, Dr. Jackson performed additional revision procedures on Ms. Dalien during 2005 and 2006.Blinding BungeeJust before all this happened, and--importantly for our story--unbeknownst to Ms. Dalien, Dr. Jackson was having issues with a bungee cord. Dr. Jackson went into mortal combat with the killer cord in July 1999.The bungee cord won.Dr. Jackson received surgery on his eye, and took over a month off from his practice. In July 2006, Dr. Jackson reported additional changes in his vision. He retired in October 2006 after unsuccessful surgery.Citing her allegedly unsuccessful surgeries, Ms. Dalien sued the good doctor twice. In one suit, Ms. Dalien argued negligent medical malpractice in the botched boob job.In her second civil action, Ms. Dalien sued under Washington States Consumer Protection Act (CPA). Ms. Dalien argued, among other things, that Dr. Jackson violated the law by failing to disclose his eye injury.Cow Bone LawDr. Jackson argued that the nondisclosure of his eye condition did not occur in trade or commerce and that any alleged professional malpractice or negligence was exempt from the CPA.Ms. Dalien countered that the nondisclosure of the eye condition was, in fact, done in trade or commerce because Dr. Jackson solicited and retained patients by failing to disclose this condition.In siding with Dr. Jackson, Washington State''s Court of Appeals cited the Evergreen State''s jurisprudence on cow bone disclosure and the case of Michel v. Mosquera-Lacy.In Michel, Mystie Michel sought treatment from Lucy Mosquera-Lacy, a periodontist employed by Bright Now! Dental, Inc., and the doctor said Ms. Michel needed a bone graft.When completing her pre-procedure paperwork, Ms. Michel was given the choice of human bone, cow bone, or synthetic bone for her graft. Stating she could not fathom the thought of having animal parts in her body, Ms. Michel declined the opportunity to get authentic cow bone.Well, unfortunately for Ms. Michel, supplies were running low in the dental office that day.When Dr. Mosquera-Lacy ran out of human bone, she finished the job with cow bone.Although the dentist claimed she merely finished up with cow bone--and that cow constituted no more than 10 percent of the graft--Ms. Michel said she now had a McImplant with the doctor having implanted a cow bone in her mouth.Whatever damages or urges to graze on her front lawn Ms. Michel may have experienced, her case wasn''t actionable under the Consumer Protection Act, the Washington Supreme Court held, because the use of cow bone was not an entrepreneurial activity in trade or commerce."Michael failed to show that Dr. Mosquera-Lacy''s use of cow bone is entrepreneurial. It does not relate to billing or obtaining and retaining patients. It simply relates to Dr. Mosquera-Lacy''s judgment and treatment of a patient. There is no evidence that cow bone was used to increase profits or the number of patients. When the supply of human bone ran out during the procedure, Dr. Mosquera-Lacy used her judgment and skills as a periodontist to finish the procedure. This is not actionable under the CPA," the court said.Bovine Bones and BungeesFollowing the Washington Supreme Court''s holding in Michel, the Washington Court of Appeals held in Dalien v. Jackson that Dr. Jackson''s nondisclosure of his eye condition was also an activity that fell outside the scope of Washington''s Consumer Protection Act. Thus, the court declined to certify her class action, and it affirmed a trial court''s dismissal of her case."As in Michel, Dalien has failed to show that Dr. Jackson''s nondisclosure of his eye injury is entrepreneurial. Dr. Jackson''s nondisclosure does not relate to Dr. Jackson''s billing or obtaining and retaining patients. Dalien has presented no evidence that Dr. Jackson represented that he had better vision than his competitors or somehow relied on his vision to promote his business," Judge Russell Hartman wrote for the court.However, the court didn''t say Ms. Dalien didn''t have a case--just that she didnt have a case under the CPA. Referencing her other suit, the court said, "To the extent that Dr. Jackson''s eye injury may have affected his ability to examine, diagnose, treat, or care for his patients, that question is actionable under the negligence theory, which Dalien is pursuing in her original lawsuit."The lesson of this week''s Case of the Week? If you want to sue under Washington''s Consumer Protection Act, make sure they advertise their excellent vision allows them to see your head before they implant a cow bone in it.____________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/05/law-cow-bones-and-bungees#ixzz1Ll8lzZ00May 1, 2011The Law of Bait Car JournalismDavid Broder, Edward R. Murrow, William F. Buckley Jr., Walter Cronkite, and now Bait Car?As the old Sesame Street song said, it would appear that one of these things just doesn''t belong here. Well, that''s not what the producers of the television show, Bait Car, say. They argue their show is real journalism, and--in an attempt to avoid producing evidence in a California court proceeding--they say their photographers are journalists. In recognition of this creative legal argument, their case gets to be our Case of the Week.What is a Journalist?The proliferation of new media sources has created a novel question: Just what is a journalist? Must one possess government-issued press credentials, sending shivers down the spines of First Amendment advocates? How about a requirement that you earn your living from journalism? Perhaps there should be a requirement that at least your Aunt Betsy actually read what you write?This question has taken on real legal significance as the U.S. Congress and many states have tried to implement so-called reporters'' shield laws. These laws attempt to protect reporters and their confidential sources by shielding confidential information from disclosure to courts and third parties.Although there has been substantial progress, a federal shield law has not yet passed. However, 40 states and the District of Columbia have shield laws, with many states enacting them after what some argued were Bush administration abuses, prosecutorial attacks on the press, and the prosecution of New York Times reporter Judith Miller.Some Republican lawmakers cited national security concerns with reporters'' shield legislation, and others had a more fundamental issue: How do you go about deciding which writers get to be journalists in a New Media world vs. Old Media world?Many hipsters sipping lattes at Starbucks like to bash so-called Old Media. As they iPad away their afternoons, bowing before the altar of New Media, they mock institutions such as The Wall Street Journal as the old media of their grandparents, and--bless their little black turtlenecks and Birkenstocks--they weren''t fooled by Rupert Murdoch''s purchase of Myspace. Silly, Rupert, New Media is for hip kids.But, the beautiful world of blogging Brown alumni opining on global warming and Maya Angelous contributions to literature while their conservative brethren blog on banks and hedge funds may be in for a shock to its modern sensibilities. There may be unwanted guests at this post-modern, online clambake, and it may be a sign of things to come.Bait Car as New MediaThe folks at truTV, that network of cop shows that used to be Court TV, have come up with a new show called, Bait Car. In Bait Car, the producers work with local police to place an unlocked car with keys in the ignition out on the street. Its the bait for would-be car thieves. Get it, bait, car?Many unsuspecting citizens, including Joseph Bullard, took the bait.Or did he?In the case of People v. Bullard in the Superior Court of California, San Francisco County, Mr. Bullard argued that he was merely being a good citizen, moving the Bait Car out of its illegal parking spot.He also argued selective prosecution. Mr. Bullard, a gentleman who enjoys cross-dressing, argued it was no coincidence that the unholy trinity of producers, police, and prosecutors arranged for the Bait Car to be placed outside Divas, a well-known, somewhat risque San Francisco transgendered club. Police countered that they just picked an area known for car theft.To prove Mr. Bullard''s Good Samaritan claim, his legal counsel wanted to see the tapes of the filming from KKI Productions, the producers of the San Francisco episodes of Bait Car. Not unlike Judge John Sirica sending an order to the Nixon White House, Judge Gerardo Sandoval ordered KKI to turn over the tapes.Not so fast, said KKI. Arguing that Bait Car was journalism and that the intrepid Bait Car photographers were, in fact, journalists and so under California''s reporters shield law, KKI refused.Judge Sandoval wasn''t buying it. He rejected KKI''s reporters shield argument, and demanded the tapes.Funny thing. You may have laughed at Mr. Bullard''s "I was only helping by moving the car" argument, but prosecutors dropped the charges against Mr. Bullard.Future of Journalism?Bait Car''s producers were working with prosecutors, turning over their tapes to the district attorney''s office, and that cooperation with cops was fatal to their legal argument, according to Judge Sandoval and legal journalism experts."You can''t have it both ways. You can''t cooperate with one side and not the other," said Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press."You can make a very strong argument that the cooperation with one side is a waiver of the privilege," Ms. Dalglish added.People v. Bullard does not decide the law on the contentious issue of who gets to be a reporter in the eyes of the law--although it does put Californians on notice that, if youre in cahoots with the cops, you probably don''t get to be one, at least for reporters shield purposes.The case also illustrates that the cozy little blogging world at Starbucks and beyond is also in the midst of a culture shift. The latter day hipsters may have make room on the Starbucks sofa for Bait Car journalists, Dog the Bounty Hunter, Big Brian the Fortune Seller, and the zany, fun-loving staffs of Ma''s Roadhouse, Lizard Lick Towing, and Hardcore Pawn.Yes, the Fourth Estate is becoming a very big tent in every respect imaginable...and in some not so imaginable.________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-bait-car-journalism#ixzz1LCFs9nEyApril 24, 2011The Law of Gwen Stefani AvatarsAt the time of this week''s legal tale, Gwen Stefani was a big, giant rock star, and Activision Publishing''s Band Hero videogame series was extremely popular. Combine the two - the theory went - and you would have what one of those MBA-types might call, synergy.Activision and Ms. Stefani thought so...until they ended up in court.This week''s Case of the Week illustrates the legal principle of the right of publicity. It also puts us on notice with the following legal poetry: Make Gwen Stefani a dude, and you''re gonna get sued.California Dreamin''In the 1990s, Gwen Stefani and Activision were both living the Southern California dream. Ms. Stefani and her Orange County band, No Doubt, achieved critical and commercial success, including Grammy nominations and huge recording contracts, while hitting the top of the charts with their 1995 single, Don''t Speak.Meanwhile, the friendly folks at Activision were building a videogame empire in Santa Monica with hit games such as MechWarrior 2: 31st Century Combat and Civilization: Call to Power. They also made some money off a game series based on the adventures of skateboarder Tony Hawk.Entering the 21st Century, one of Activision''s biggest games was its Guitar Hero series, which basically allows players to engage in computer-assisted air guitar. Band Hero was a similar, spin-off production.One of Band Hero''s features allowed players to create avatars based on real life rockers.Thinking it would be just nifty to have No Doubt avatars in the game - or at least thinking that it would be just nifty to have some of Activision''s cash -- No Doubt executed its Professional Services and Character Licensing Agreement with Activision, allowing the gamemaker to create avatars -- or computerized characters -- based on the band, and use them in Band Hero.Gwen is not a dudeMuch to their horror, the members of No Doubt learned about a special feature of Band Hero shortly before the product''s launch -- it was a special feature No Doubt may have worried pubescent punksters might manipulate.In their Agreement, Activision and No Doubt agreed Activision would license only a limited number of No Doubt songs for use in the game. However, that provision failed to consider another potential use of Band Hero.When players reached a certain level of the game, Band Hero allowed them to unlock their avatars, changing their song selection and personal characteristics.For instance, Activision licensed only a few No Doubt songs, but if Little Johnny were proficient enough in Band Hero to get his avatar -- say, perhaps, a lasciviously alluring Ms. Stefani -- to reach Level Nine of Band Hero, he could unlock her and free her from the bondage of her current condition, in every way, including gender.No Doubt was most displeased to discover that, once your Gwen Stafani avatar were unlocked, not only could Avatar Gwen be singing Janet Jackson, she could also be singing Tito Jackson.You see, once unlocked, an avatar''s voice could be changed from male to female.Not surprisingly, Ms. Stefani and her bandmates were not excited about the prospect of having their voices replaced with the manly sounds of Boy George.Ska vs. SuitsCould Activision really use the twisted avatars without No Doubt''s permission?No Doubt didn''t think so, and the band sued Activision in California state court. In No Doubt v. Activision Publg, Inc., the band sued for injunctive relief and damages, arguing Activision had engaged in the unauthorized exploitation of No Doubt''s name and likeness.The band sued on several grounds, including Activision''s alleged violation of No Doubt''s right of publicity.The right of publicity gives an individual control over the commercial use of her name or likeness. About half the states have a statutory right of publicity and others protect the right of publicity as part of their right of privacy laws.There has been a movement to extend the right of publicity beyond death. Not surprisingly, this movement is led by the heirs of some very famous dead people, including the heirs of Marilyn Monroe.California is one of those states with a codified right to publicity, contained in section 3344 of the California Civil Code.However, Activision countered that No Doubt''s right of publicity claim was barred as a matter of law because Activision''s actions on the avatars constituted constitutionally protected activity under the First Amendment.A Los Angeles Superior Court judge denied Activision''s motion to strike No Doubt''s complaint, and Activision appealed to California''s Second District Court of Appeal.Citing Comedy III Prods., Inc. v. Gary Saderup, Inc., the appellate court applied the transformative use test, a method to determine whether a use of a likeness was transformed from something more than a mere impersonation.The appellate court sided with No Doubt and the trial court. The court ruled that a transgendered avatar did not qualify as a transformative use. Thus, the appellate court held, the First Amendment did not excuse Activision''s alleged violation of its right to publicity."Nothing in the creative elements of the Band Hero elevates the depictions of No Doubt to something more than conventional, more or less fungible, images of its members that No Doubt should have the right to control and exploit. Thus, the trial court did not err in denying Activision''s motion to strike the right of publicity claim based on Activision''s assertion of a First Amendment defense," Judge Thomas Willhite Jr., wrote for the court,The court compared and contrasted Ms. Stefani''s avatar with the image in another case involving a Sega videogame and the former lead singer of Dee-Light, Kirby v. Sega of Am., in holding Avatar Stefani was not a transformative use. The First Amendment may be powerful, but -- at least in this Case of the Week -- it provides no constitutional protection for a Gwen Stefani avatar in a Boy George voice singing, Do You Really Want to Hurt Me?_________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-gwen-stefani-avatars-band-hero-No-Doubt-v-Activision-Publ-Inc#ixzz1KUS9gVwHApril 17, 2011The Law of Urinal TrademarksTrademarks and the legal disputes involving them may be the most entertaining area of intellectual property law, and a recent Pennsylvania federal court case illustrates just how entertaining trademark fights can be. You might think this fight over the name, "Pint," was a beer dispute. You would be wrong.This week''s Case of the Week examines what happens when two urinal manufactures get into a legal dispute over the names of their products.Pint of Yellow LiquidThe urinal and its bathroom cousin, the toilet, use a lot of water. As people have become more concerned about the environment, manufactures have joined the party, developing so-called green products, and urinal makers are no exception. After all, no self-respecting urinal manufacturer wants to be known as a truck stop eco-terrorist.Among the leaders in the urinal market are Zurn Industries and Sloan Valve Co. Both Zurn and Sloan wanted to help save the planet by making eco-friendly urinals.Zurn developed a urinal Mother Nature would love and named it, The Pint. The U.S. Patent and Trademark Office awarded Zurn the United States Trademark Registration No. 3,389,517 for The Pint, part of Zurn''s EcoVantage line of environmentally friendly "fractional flush" urinals. They''re called fractional flush because they use a fraction of the water regular urinals use when you flush them.Not to be outdone, the nature-loving folks at Sloan came out with their own environmentally sound urinal, the Sloan 1 Pint Urinal System.Not unlike a fraternity pledge spotting someone swiping his pint of Guinness from the bar, lawyers for Zurn swung into action.Urinating ContestAfter noticing a Sloan press release for the Sloan 1 Pint Urinal System on the website, greenlodgingnews.com, Zurn''s lawyers sent Sloan a cease and desist letter, arguing Sloan''s name infringed on Zurn''s registered trademark for The Pint. Zurn demanded that Sloan stop marketing its allegedly infringing urinal with "pint" in its name.In an apparent attempt to maintain peace and harmony in the urinal world, Sloan changed the name of its urinal from the "Sloan 1 Pint Urinal System" to the "Sloan Pint Urinal System."It was a nice try, but Zurn was unsatisfied. Simply deleting the numeral, "1," from the name wasnt enough. Not unlike Carrie Nation on a bar raid, Zurn wanted the Pint the h*ll out of there.Sloan refused, and Zurn''s trademark lawyers did what it takes to become the Case of the Week. They sued.In its case, Zurco, Inc. v. Sloan Valve Co., filed in the U.S. District Court for the Western District of Pennsylvania, Zurn argued Sloan''s use of its name violated the federal Trademark Act of 1946, known commonly as the Lanham Act. Specifically, Zurn argued that Sloan''s name caused a likelihood of confusion among potential customers.Sloan countered that -- despite Zurn''s federal trademark registration --The Pint was not a legally protectable trademark for a urinal because the mark was generic, a trademark legal term meaning the name is a common, general term with no secondary meaning.Sloan argued that pint was merely an identification of a type of urinal -- one that uses one pint of water when flushed. Thus, Sloan argued, urinal purchasers would associate the term, pint, with the flush volume of the urinal, not the maker of the urinal, Zurn.In attempting to decide the dispute between the fighting flushers, the federal court applied the so-called primary significance test, used in many cases, including A.J. Canfield Co. v. Honickman. Under the primary significance test, the court determines whether the primary significance of a term in the minds of the consuming public is the product or the producer.The court illustrated the difference by citing E.T. Browne Drug Co. v. Cococare Products, Inc., where the court made the distinction that cola was generic because it described a product, but Pepsi-Cola is not generic because it describes the producer.Zurn disputed the generic label by noting that, in the toilet and urinal industry, flush volumes are described -- not in pints -- but with the terms, gallons per flush (GPF) and liters per flush (LPF). In fact, Zurn claimed the use of gallon and liter by those other wasteful water-hogs in the toilet and urinal industry was precisely why it chose the unique term, pint.However, Sloan countered that pint had become an industry standard, noting that American Standard has used pint and 1 point since 2008, Mansfield Plumbing Products has used 1-pint for its Brevity line of urinals, and Caroma USA had used one pint for its Cube Ultra line of urinals for two years.Unfortunately for Sloan, the court noted that none of those urinal craftsmen had used the term before Zurn introduced the Pint in 2007. In addition, Zurn argued it had been diligent in sending cease and desist letters to the allegedly infringing urinal producers, a requirement for protection under trademark law.To Be ContinuedIn denying motions for summary judgment on most issues, the court held that there were genuine issues of material fact as to whether The Pint was generic. As a result, the case will move forward, and more evidence about urinals and what people call them can enter the hallowed halls of American jurisprudence.________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-urinal-trademarks#ixzz1K9cmh600April 10, 2011The Law of Chicken HeadsEmotional injuries and related damages may be one of the most contentious areas of the law, especially when -- as in thisweek''s Case of the Week -- that emotional injury is based on an employer''s forcing a worker to wear a chicken head mask in order to get medical benefits. Yes, this week, we go to Massachusetts to bring you the law of chicken head damages.Poultry ProblemsKaren Cappello worked full-time for Cricket Productions, where she processed orders. Because she was a full-time employee, she asked her boss, Victor Grillo Jr., for medical coverage.Mr. Grillo was very happy to give Ms. Cappello the medical coverage she desired, but it seems there was a catch.Mr. Grillo said Ms. Cappello could have the medical insurance only if she wore a chicken head mask."No head, no payment," Mr. Grillo wrote in an e-mail.We''re not making this up. We couldn''t come up with stuff this good.Even with major medical and hospitalization coverage for her young daughter on the line, Ms. Cappello declined to don the chicken head, which was part of a complete chicken costume kept in the office. You see, according to court papers, the employees at Cricket Productions considered themselves a fun-loving group that often socialized after hours.Apparently, none of the production place''s playful pranksters thought there was anything odd about making a session in the chicken head a prerequisite to health coverage.Ms. Cappello did.Saying she became too depressed to work as a result of the alleged harassment, Ms. Cappello sought medical attention and claimed she was unable to work.Of course, this is the Case of the Week, so you know what happens next.Colonel Sanders or Jack Daniels?Ms. Cappello decided to file a claim for her alleged injuries, and an administrative legal action ensued. Cricket carried no workers compensation coverage, but an administrative law judge held that, because Cricket was doing the business of DTR Advertising, Inc., DTR''s insurer, The Hartford Insurance Co., was liable for Ms. Cappello''s claim.Based on the opinion of her psychiatrist, Mark Cutler, Ms. Cappello argued Mr. Grillo''s alleged chicken head harassment was the predominant contributing cause of her adjustment disorder and major depressive disorder. The administrative law judge agreed and held for Ms. Cappello, but The Hartford appealed, arguing the chicken head incident was not the predominant contributing cause of Ms. Cappello''s alleged injuries.Hartford argued there could be other potential causes for the alleged injuries, and -- on appeal to the Commonwealth of Massachusetts Department of Industrial Accidents in the case of Cappello v. DTR Advertising, Inc. -- the judges noted that Ms. Cappello had received previous psychiatric treatment for issues related to a divorce and an alcohol-dependent husband.Ms. Cappello rejected the notion that marital warfare or her husband''s close, personal relationship with Jack Daniels and Johnnie Walker caused her injuries.It was all about that chicken head.Foul fowl?Because of her preoccupation with the perceived harassment at work and her disbelief that she was being asked to do what her employer asked her to do, which she perceived as very humiliating, she has been unable to return to any work for which she is reasonably trained by virtue of her education and job experience, Ms. Cappello''s psychiatrist told the administrative law judges.In a legal ruling sure to shock the San Diego Chicken, Mardi Gras revelers, and others who actually enjoy wearing chicken head masks, the judges sided with Ms. Cappello.Rejecting the insurer''s argument that there were other causes for Ms. Cappellos psychiatric issues, the judges ruled Ms. Cappello had shown those problems were not the cause of her present injuries. Although the judges conceded she had past psychiatric problems, they noted she had not experienced her present symptoms until the chicken head incident.The judges held that Dr. Cutler''s medical opinion satisfied the Massachusetts standard for predominant contributing cause of injuries established in the Massachusetts Appeals Court decision, May''s Case, and the Massachusetts Supreme Judicial Court decision, Robinson''s Case.In addition, citing Bouras v. Salem Five Cents Savings Bank, the judges held that, because Dr. Cutler''s opinion satisfied the predominant contributing cause standard, the chicken head incident was the only legal cause of her injuries."Because the doctor''s opinion effectively ruled out the previous stressors in the employee''s life as causes of her emotional disability, his opinion can be understood to implicate the events at Cricket Productions as the only cause," the judges wrote.The Massachusetts case of the chicken head was remanded to the lower judge on additional claims Ms. Cappello made, but she was victorious on this day...so was her lawyer.For their efforts on behalf of their client and for furthering the jurisprudence of chicken heads in the Commonwealth of Massachusetts, the judges awarded Ms. Cappello''s lawyer $1,488.30 in legal fees.__________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-chicken-heads#ixzz1J7TcDYNfApril 1, 2011The Law of April Fools'' JokesFor our April Fools'' Day edition of the Case of the Week, we visit the California Court of Appeal, which supplies us with a case touching on constitutional law, contracts, defamation, and, of course, the law of April Fools'' jokes. Not surprisingly, our case involves Sasha Baron Cohen, known popularly as Borat and Ali G.A 2004 episode of Mr. Cohen''s British television show got his network into a bit of trouble, and it had to pay the alleged target of his jokes $90,000. When the infuriated supposed subject came back for more, it ended up in American court, raising the question: could a reasonable viewer take the show seriously, resulting in a judgment for defamation?The Art of AmendingOn a 1987 youth trip to Israel, Sasha Baron Cohen began a friendship with a woman known only as "Jane Doe" in court proceedings. The friends lost touch over the years, but Ms. Doe followed Mr. Cohen''s increasingly successful career as a comedian, and, apparently, Mr. Cohen never forgot Ms. Doe''s real name.On the Aug. 15, 2004, episode of Mr. Cohen''s television show, Da Ali G Show, Mr. Cohen interviewed the American author, Gore Vidal. Among the topics of conversation were the United States Constitution and the practice of amending it.Mr. Cohen asked Mr. Vidal if it were not sometimes better to get rid of something rather than amending it. As an example, Mr. Cohen referred to Ms. Doe. Using her real name and referring to her with a term also used to describe a female dog, he said Ms. Doe was always trying to amend herself by such means as highlighting her hair, adorning herself with tattoos, and shaving her private regions.Mr. Cohen said Ms. Doe''s amending was for naught because he dumped her after he impregnated her. (Ms. Doe denied her relationship with Mr. Cohen was ever romantic or sexual in nature.)Given what Mr. Cohen claimed were Ms. Doe''s unsuccessful attempts at amending herself, he reasoned that amending anything -- including the Constitution of the United States -- was ill-advised.With no apologies to Vidal Sassoon, the people of the Eastern Hemisphere, or George Washington, in his role as Ali G, Mr. Cohen went on to suggest that Mr. Vidal was an internationally famous hairstylist, that euthanasia was a means of exterminating the elderly in Asia, and that Denzel Washington resided at Mount Vernon.Ms. Doe was not amused.Costly ComedyDa Ali G Show was produced by Britain''s Channel Four Television Corp. and distributed in the United States by HBO. After complaints from Ms. Doe, HBO settled with her in 2004 for $40,000. As part of the settlement, HBO agreed to edit the episode so Ms. Doe''s name would be removed in any future broadcasts.Well, Ms. Doe''s fame -- or infamy, depending on ones perspective -- continued. When HBO presented the episode on Comcast, it left Ms. Doe''s name in the airing of the show, resulting in another settlement with Ms. Doe in 2006 with the same terms as the 2004 settlement, except this time Ms. Doe received an additional $50,000 payday.Nevertheless, viewers of Da Ali G Show had not heard the last of Ms. Doe.When a friend of Ms. Doe''s saw the unedited version -- that would be the one with Ms. Doe''s name -- on YouTube after the second settlement, he contacted her, and they discovered a viewer in Estonia had uploaded the clip from Finnish television, which had received the unedited version from Channel Four.No more settlements. Ms. Doe decided to take her battle to court.The Law of April Fools''Ms. Doe sued HBO and Mr. Cohen in California state court, and later added Channel Four as a defendant. She sued on multiple grounds, including libel, slander, breach of contract, invasion of privacy, and negligent infliction of emotional distress.Channel Four moved for summary judgment -- a legal ruling where one side wins the case before it even gets to trial -- arguing, among other things, that no reasonable person could have understood Mr. Cohen''s statements as factual.The trial court sided with Channel Four."No reasonable person could consider the statements made by Ali G on the program to be factual. To the contrary, it is obvious that the Ali G character is absurd and all his statements are gibberish and intended as comedy. The actor, Sacha Baron Cohen, never strays from the Ali G character, who is dressed in a ridiculous outfit and speaks in an exaggerated manner of a rap artist. Ali G''s statements are similarly absurd," the trial court said.Ms. Doe appealed, but she fared no better with the Californi''s Second District Court of Appeal in Doe v. Channel Four Television Corp. Citing cases involving comedian Robin Williams and an April Fools'' joke, the appellate court agreed that no reasonable person could have taken Mr. Cohen seriously. Thus, the court held, there was no defamation.In the case involving Robin Williams, Polygram Records, Inc. v. Superior Court, California''s Third District Court of Appeal held there was no defamation when Mr. Williams did a skit where a wine distributor complained that there was white wine and red wine, but no black wine.The court noted Mr. Williams said the so-called black wine was tough enough to be advertised by Mean Joe Green, was black in color, tasted like urine, and went with anything it damn well pleased. The court added that no reasonable person could have taken Mr. Williams seriously and that to hold the skit defamatory would run afoul of the First Amendment.Likewise, in San Francisco Bay Guardian, Inc. v. Superior Court, California''s First District Court of Appeal held there was no defamation when, in its April Fools'' Day edition, the San Francisco Bay Guardian newspaper ran a fictitious letter from a landlord stating that he found his tenants who had undergone electroshock therapy where much more cooperative because no reasonable person would take the fake letter seriously.Today''s legal lesson is thateven if it involves an electroshocked tenant with shaved privates drinking black wineits tough to win a defamation action against a comedian.________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/03/law-april-fools-jokes#ixzz1ISyc57fbMarch 27, 2011The Law of Cantaloupes and Inflatable SharksHave you ever been really impressed by marketing displays constructed at your local store, where industrious employees create displays of commerce only slightly less impressive than the Taj Mahal?Well, Joyce Henderson may have felt that way before she broke her hip falling before a marketing temple of stacked cantaloupes at her local supermarket.Adding insult to injury, Ms. Henderson lost again in this week''s Case of the Week as the U.S. District Court for the Eastern District of Oklahoma grappled with the weighty issue of whether cantaloupes are the legal equivalent of inflatable sharks for premises liability purposes.Cantaloupes of DoomThe story of Henderson v. Harps Food Stores, Inc., began on a fine June day in 2009 when Ms. Henderson visited the Harps Food Store in Fort Gibson, Okla. Harps employees had created a display of cantaloupes, which was actually a giant octagon of wholesome, fruity goodness.Harps displayed the cantaloupes in large cardboard containers resting on a wooden pallet. The cardboard containers were roughly square in shape with the corners slightly recessed, forming the muskmelon octagon.Ms. Henderson admitted spotting the pallet beneath the pile, and even considered the pesky pallets potential as a pitfall. Nevertheless, she plowed ahead.While examining one of the succulently sweet cantaloupes, Ms. Henderson''s foot caught on the pallet, and she hurt her hip hitting Harps'' hard floor.The stage was now set for Ms. Henderson and Harps to debate the jurisprudence of cantaloupes vis-a-vis inflatable sharks.Ms. Henderson sued Harps in Oklahoma state court in a tort action, alleging Harps was negligent in its dangerous display of the killer cantaloupes and in its negligent failure to warn customers of its alleged fruity booby trap.Harps removed the case to federal court and filed a motion for summary judgment, arguing it was not liable because the exposed cantaloupe pallet was an open and obvious condition.Generally, under Oklahoma premises liability law, which applied even though the case was in federal court, businesses are not liable for damages sustained from these so-called open and obvious conditions. However, there is a possible exception in the law for conditions or defects visible but unseen by a plaintiff.Ms. Henderson and Harps battled over the case law. For instance, both parties cited the Oklahoma Supreme Court case of Phelps v. Hotel Mgmt., Inc., where an unsuspecting patron hit her head on a decorative glass bowl that protruded into the seating area of a hotel lobby.Sure, the thing was open and obvious in the literal sense, but the court in Phelps held a reasonably prudent person might not have noticed the risk of injury from the protrusion of funky art into the seating area and -- for the condition to be open and obvious as a matter of law -- the potential for injury must also be noticeable.The court in Henderson rejected Ms. Henderson''s reliance on Phelps and another court decision, Zagal v. Truckstops Corp. of Am., a case where things went horribly awry in the aisle of a truck stop. The court held those cases did not apply to Ms. Henderson''s case of the killer cantaloupes because -- not only did Ms. Henderson see the open and obvious collection of cantaloupes -- she knew it posed possible danger.However, all hope was not lost for Ms. Henderson. It was time for her lawyers to launch a legal shark attack.But could an inflatable shark really save Ms. Henderson''s case?Shark TaleMs. Henderson''s attorneys cited the Oklahoma Court of Civil Appeals case of Hansen v. Academy, Ltd., where Kimberly Hansen, an unsuspecting customer, was apparently in awe of a large inflatable shark that was part of a boat display on the sidewalk in front of an Academy sporting goods store.So mesmerized by the inflatable shark was Ms. Hansen that she proceeded to walk straight into the tongue of the boat, causing her to trip and break both her arms. Ms. Hansen sued Academy, but a trial court ruled for the sporting goods store, holding that the boat tongue was an open and obvious condition.But, remember...Jaws had a sequel.Ms. Hansen appealed, and the intermediate appellate court ruled for her. Noting an Academy employee testified the purpose of the inflatable shark was to get people''s attention, the appellate court reversed the trial court''s grant of summary judgment to Academy, holding that, although the boat tongue was visible, the plastic, air-filled fish of terror changed the legal outcome."The evidence certainly raised a question of fact as to whether Academy intended for its customers to devote their attention to the merchandise on display rather than to the sidewalk," the appellate court held in Hansen. Unfortunately for Ms. Henderson, U.S. District Judge James Payne wasn''t buying the shark argument in her case.Noting that arrows on the cantaloupe boxes actually pointed to exposed pallet on cantaloupe display, Judge Payne held the inflatable shark case didn''t apply."Because the cantaloupe display actually drew attention to the alleged hazardous condition, the Hansen case is distinguishable and does not provide an exception to the open and obvious rule," the judge wrote.The lesson of our Case of the Week? Apparently, at least in Oklahoma, a cornucopia of cantaloupes provides no exception to the open and obvious rule...but, an inflatable shark does._______________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/03/law-cantaloupes-and-inflatable-sharks#ixzz1HonZsGj9March 13, 2011The Sixth Amendment and another Texas Chicken Ranchby David HorriganIn the film adaptation of the Broadway musical, The Best Little Whorehouse in Texas, Burt Reynolds, playing a Texas sheriff, falls in love with Dolly Parton, portraying the good-natured, warm-hearted proprietor of a local brothel. That theatrical house of ill-repute was based on a real life bordello known as the La Grange Chicken Ranch.Although many local residents supported the Chicken Ranch -- and the entertainment and tax dollars it brought to Greater La Grange -- its closing involved law enforcement at the highest levels of Texas government.For those whove always wanted yet another sequel, we have one for you. It doesn''t have Ms. Parton, Mr. Reynolds...or even Dom DeLuise. What is does have is an intriguing question of constitutional law, which is why it gets to be our Case of the Week.Texas cathouse jurisprudence now considers: Does memory loss render a witness absent for purposes of the Confrontation Clause of the Sixth Amendment to the United States Constitution?Before we get to any of that legal stuff in the case of Woodall v. Texas, let''s take a look at the story of the latest little whorehouse in Texas.Naughty HaremPhyllis Anne Woodall may or may not have a lot in common with Dolly Parton''s Best Little Whorehouse in Texas character, Miss Mona Stangley, but Texas prosecutors alleged they were in the same profession.Ms. Woodall was the co-owner and operator of the Naked Harem, an El Paso, Tex., establishment some would refer to euphemistically as a "gentlemen''s club." Ms. Woodall and her business partner, Jeannie Coutta, ran a strip joint empire, El Paso Cosmopolitan, which not only operated the Naked Harem, but also its sibling club, the El Paso Cosmopolitan Topless Show Bar.Sadly for the ladies and their clients, those Texas prosecutors thought they were having a little too much fun.After repeated incidents of alleged prostitution at the Naked Harem, authorities arrested the ladies, charging Ms. Woodall with aggravated promotion of prostitution and engaging in organized criminal activity.At trial, prosecutors called dancers who testified prostitution was plentiful at the club, while Naked Harem loyalists testifying for Ms. Woodall cited Naked Harem policy forbidding dancers from having sex with its gentile clientele. Ms. Woodall then called a dancer, Lucia Pinedo, to testify.It was a bad move.Forget Me NotMs. Pinedo testified she sustained memory loss after an automobile accident and that she could not remember her prior testimony before a grand jury -- nor could she remember even being part of the Naked Harem. However, when Ms. Pinedo didn''t show up for a subsequent day of the trial, prosecutors -- over Ms. Woodall''s objections -- read her grand jury testimony for the jury.Before the grand jury, Ms. Pinedo had testified she had sex with patrons many times in the club''s private rooms, and -- in an unfortunate turn of events for Ms. Woodall -- Ms. Pinedo testified that, although she lied about her age to Naked Harem staffers, she was only 15-years-old when she began dancing at the club. To make matters worse, Ms. Pinedo contradicted the testimony of one of Ms. Woodall''s managers who said Ms. Pinedo showed a birth certificate as part of her identification upon being hired.Instead, in a moment worthy of X-rated versions of High School Musical or Glee, Ms. Pinedo testified her identification to get her job as an exotic entertainer was not her birth certificate, but was, in fact, her high school ID card.As they did with the La Grange Chicken Ranch, the good people of Texas may turn the other cheek when it was just a bunch of adults having consenting, albeit illegal, fun...prostitution by 15-year-olds is a very different story.After prosecutors made numerous references to Ms. Pinedo''s impressionable youth during closing arguments, the jury sentenced Ms. Woodall to 16 years in prison.Ms. Woodall appealed, arguing, among other things, that introducing Ms. Pinedo''s grand jury testimony was a violation of Ms. Woodall''s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution because Ms. Pindeo''s memory loss prevented Ms. Woodall from being able to cross-examine her.Constitutional ConfrontationA Texas intermediate appellate court reversed the trial court and sided with Ms. Woodall, holding that allowing prosecutors to read Ms. Pinedo''s grand jury testimony to jurors despite her memory loss violated Ms. Woodall''s Sixth Amendment Rights because the State used out-of-court testimonial statements [the grand jury testimony] about which the declarant [Ms. Pinedo] could not be cross-examined due to memory loss.The state argued also that, because Ms. Woodall refused the trial judge''s offer to issue a so-called writ of attachment forcing Ms. Pinedo to return to continue her testimony, Ms. Woodall was precluded from arguing Ms. Pinedo was absent for Confrontation Clause purposes.However, Ms. Woodall argued that Ms. Pinedo''s memory loss made recalling her futile, and the intermediate appellate court agreed."She did not remember giving the grand jury statement, nor could she remember working at the Naked Harem. A writ of attachment would not have changed Pinedo from an absent witness into a witness available for trial and examination. Her undisputed testimony about the car accident and resulting memory loss established that she was unavailable as a witness regarding the relevant subject matter," the intermediate appellate court held.Yet, in another legal twist, on Mar. 2, the Texas Court of Criminal Appeals, the states highest court for criminal matters, reversed the intermediate appellate court on both issues.First, citing three U.S. Supreme Court decisions, California v. Green, Delaware v. Fensterer, and United States v. Owens, the Texas high court rejected the argument that a Confrontation Clause violation could be based on witness memory loss.Second, Ms. Pinedo''s memory loss notwithstanding, the court held Ms. Woodall''s failure to take the trial judge up on the offer to haul Ms. Pinedo back into court was fatal to her Confrontation Clause argument. The court said Ms. Woodard induced the alleged error of which she now complains, and she may not argue on appeal that her confrontation rights were violated.In the movie, Burt and Dolly went off happily into the sunset. It doesn''t look as though thats happening here._________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/03/sixth-amendment-and-another-texas-chicken-ranch#ixzz1HaDgOkKeMarch 6, 2011Labor, Lassie, and the LawIts been a tough week for the First Amendment and labor unions, but perhaps not for puppies.In this space, we attempt to look at the lighter side of the law, but there''s just nothing funny about a Marine making the ultimate sacrifice for his country or alleged followers of Jesus thinking the Messiah wants them desecrating other people''s religious services. However, Americas courts never let us down when we need comic relief, and free speech cases are no exceptionThis week, California''s Second District Court of Appeal ruled on a particularly perplexing constitutional quandary. It''s a question not yet addressed in the current labor unrest in Wisconsin:Does labor union speech enjoy greater constitutional protection than speech about puppies?Well give you the court''s answer in Best Friends Animal Socy v. Macherich Westside Pavilion Prop., LLC, in a moment, but let''s start off by saying that -- not unlike fallen heroes and violated funerals -- theres nothing funny about animal abuse or unfair labor practices. Nevertheless, what we''ve got here is an appellate court of law weighing the constitutional rights of terriers versus Teamsters.Puppies and PicketersThe Best Friends Animal Society does good work. Not only does the Utah-based organization have adoption programs for dogs and cats, it has programs for parrots and pigs as well. In addition, it operates an animal sanctuary, and its Pup My Ride program transports dogs from overpopulated areas to places where they are more likely to find homes.Best Friends also operates the Puppies Aren''t Products campaign with the stated goals of fighting against so-called puppy mills and irresponsible breeding.One of the weapons in Puppies Arent Products arsenal is the staging of protests at shopping malls where the evil puppy mills alleged middle men -- the pet shops -- attempt to sell their canine cargo.Although Puppies Arent Products bills its mission as a fight against the puppy mills, unlike more militant animal rights groups, Puppies Arent Products stresses the peaceful nature of its protests...a Gandhi for golden retrievers, if you will.Peaceful or not, one shopping center didn''t want to give the puppy protesters free rein over its establishment. When Puppies Arent Products targeted the Barkworks Pups & Stuff store at Los Angeles Westside Pavilion, the owners of the mall swung into action.Not unlike abortion protesters at a Democratic convention or anti-war protesters at a Republican convention, the puppy protesters were confined to undesirable areas -- in this case, mall space far away from Barkworks. Incidentally, Barkworks denies its dogs come from puppy mills, stating it takes great pride in having built a reputation of bringing healthy, happy puppies to loving families and homes.Look for the Union Label?Westside Pavilion had rules about when people could protest in its common areas. The rules applied to so-called noncommercial expressive activity, and covered various forms of expression, such as political and religious speech, soliciting for signatures on petitions, and the dissemination of noncommercial leaflets and fliers.The rules were what constitutional lawyers call content neutral, meaning the rules didnt vary depending on what a speaker was saying. There was just one catch.Labor unions got special treatment.The mall had special rules for qualified labor activity, which was defined, in part, as activity authorized by the National Labor Relations Act (NLRA) or applicable state labor laws.Non-labor expressive activity -- such as the puppy protest -- was limited to certain areas of the mall and was subject to certain blackout days, days when no protests were allowed, such as the busy business days of Valentines Day, Halloween, and the Christmas shopping season.In contrast, labor expressive activity had no blackout dates, and the workers'' expression could take place near the targeted, allegedly union-busting establishment.The litigating Lassie lawyers saw this distinction as the way to get the puppy protesters within pawsteps of the alleged villains at Barkworks.Collies in CourtBest Friends sued Westside Pavilion''s owners in California state court, arguing the mall''s restrictions violated the free speech provisions of article I, section 2 of the California Constitution. Specifically, Best Friends argued, among other things, that it was unconstitutional for the mall to give labor union protesters preferential treatment over the Puppies Arent Products protesters.Westside Pavilion countered that the restrictions passed constitutional muster and that the mall was forced to give labor union protesters special treatment in order to comply with state and federal labor law.The mall won the first round when California Superior Court Judge Linda Lefkowitz ruled against the puppy protesters, holding that, under the 1997 California appellate decision, Union of Needletrades, Indus. & Textile. Emp. v. Superior Court, the shopping mall was within its rights to limit the activities of the puppy protesters and that the NLRA and state law required the mall to make special accommodations for labor protesters.But, this dogfight wasnt over.Best Friends appealed and found a more fur-friendly tribunal in California''s Second District Court of Appeal. In a 3-0 decision on Mar. 2, the appellate court overturned Judge Lefkowitz, and ruled in favor of the puppy protesters.The appellate court rejected the holding of the case on which Judge Lefkowitz relied and instead followed two other California appellate decisions, H-CHH Associates. v. Citizens for Representative Government and Snatchko v. Westfield LLC, in holding the mall could not restrict the puppy protesters in the manner it sought, and it rejected the mall''s preferential treatment of labor protesters.The appellate court said the mall suggests that the law compels it to discriminate. But federal and state laws do not require shopping malls to give labor speech more access to common areas than political and other types of free speech.Celebrating its victory and the apparent end of Puppies Arent Products banishment to the dark corners of the mall where one wouldn''t expect to find Jennifer Grey, Best Friends issued a statement entitled, Nobody Puts Baby in a Corner.______________________________________________Read more at the Washington Examiner:http://washingtonexaminer.com/blogs/opinion-zone/2011/03/labor-lassie-and-law
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Dr. Mark E. Endicott | Quality Orthopedic Care Dr. Mark E. Endicott is a general orthopedist with specialties in sports medicine, senior orthopedics, total joints and fracture care. Dr. Endicott treated multi-generational patients. Dr. Mark E. Endicott is committed to excellence by pledging to provide the highest quality of orthopedic care possible. Along with the treatment of immediate or chronic problems, we strive to integrate the doctrine of prevention in all our treatment plans as a way to alleviate possible future difficulties.