Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

  • Slapping a Bully

    Feb 26, 2015

    Robert Murray owns Murray Energy Coal Corp. And he is a big bully. Which is bad enough, I suppose, but Murray is the kind of bully who uses the court system to throw his considerable weight around.

    And like most bullies, while Murray’s skull is thick, his skin is thin. Which accounts no doubt for this litany of libel lawsuits he’s filed over the years. I’ll keep my readers posted if I’m next.

    But most recently, Mr. Murray may have gone too far. Because in his most recent temper tantrum/libel suit, an Ohio appellate court not only tossed the meritless case, it called for the Ohio legislature to pass legislation that would put the brakes on Murray’s tactics.

    Here’s a quick recap of the case. The day after President Obama’s 2012 re-election Murray Energy fired 158 employees. In a personal “prayer” delivered to employees the day of the firings, Mr. Murray said: “Lord, please forgive me and anyone with me in the Murray Energy Corp. for decisions we are now forced to make to preserve the very existence of any of the enterprises that you have helped us build.”  (Is it just me or does Murray’s prayer sound a little like this one?)

    An organization called “Patriots for Change” organized a protest in front of Murray Energy’s Chagrin Falls headquarters in December of 2012. Protestors accused Murray of being a bully, and held up signs that included statements such as “Mr. Murray stop intimidating your coal mining employees.”

    Chagrin Valley Times reporter Sali McSherry reported on the protest, quoting several demonstrators, but also quoting verbatim Murray’s official statement calling Patriots for Change a “militant unionist labor group.”

    The Valley Times also published an editorial written by Editor Emeritus David Lange taking Mr. Murray and Murray Energy to task for its spotty safety record and challenging the truth of certain statements Mr. Murray had made regarding his alleged lack of knowledge of a 2007 partial mine collapse.

    The Valley Times editorial cartoonist Ron Hill chimed in with a cartoon depicting a snowman made of lumps of coal, holding a sack of money in each hand.  The cartoon also featured lyrics to the tune of “Frosty the Snowman” that included “Murray the coal-man … meant to hoard away his pay.”

    In response, Murray and his affiliated companies did what any person who believes in less government would do. They asked a branch of the government to help them out. Mr. Murray apparently believes in the motto about foolish consistency being the hobgoblin of small minds. Either that or he’s a also a hypocrite.

    In any event, Murray and his companies sued Patriots for Change, Chagrin Valley Publishing Co., Sali McSherry, David Lange, Ron Hill and assorted others for libel and false light invasion of privacy. The trial court granted summary judgment in defendants’ favor on all claims, and the appellate court affirmed.

    Summary judgment means Murray’s suit had no legal merit. The court threw it out without wasting a jury’s time. And the court of appeals validated that decision.

    But of course, the newspaper, the reporter and the protestors had to hire lawyers, take time out of their work days and otherwise endure a civil lawsuit due to the whims of this moron. All of which prompted the appellate court to add this color commentary to its decision:

    This case illustrates the need for Ohio to join the majority of states in this country that have enacted statutes that provide for quick relief from suits aimed at chilling protected speech.  … The fact that the Chagrin Valley Times website has been scrubbed of all mention of Murray or this protect is an example of the chilling effects this has.  … Many states provide that plaintiffs pay the attorney fees of successful defendants and for abbreviated disposition of cases. In this era of decentralized journalism where the internet has empowered individuals with broad reach, society must balance competing privacy interests with freedom of speech. Given Ohio's particularly strong desire to protect individual speech, as embodied in its Constitution, Ohio should adopt an anti-SLAPP statute to discourage punitive litigation designed to chill constitutionally protected speech.”

    Good advice from Ohio’s judicial branch.  Let’s hope the legislative branch pays attention.

    Go comment!
  • Drone Update

    Feb 16, 2015
    My last post talked about options for limiting drone traffic, including this video

    detailing the plans by at least one member of some “well regulated militia” to shoot ‘em down. 

    But it looks like I forgot one other option – the Federal Aviation Administration. The FAA has proposed new rules that will limit how commercial operators can use drones going forward. Two provisions that may pose a real problem? Operators will need to see the drone with “unaided vision.” Operating the drone within eyesight will no doubt limit the range and the usefulness of the technology.

    And when you think about it, what good would the drone really be under these restrictions? We know Amazon wants to use them for lightning fast delivery. And journalists see value in a device that can travel where a reporter cannot. 

    No doubt the proposed rules are a starting point for negotiations.  Let’s see where we end up. 

    Go comment!
  • Options For Limiting Overhead Drone Traffic

    Feb 11, 2015

    Does anyone seriously doubt that drones are going to be an increasingly large part of our lives in the near future? So, if we accept that premise, the next question becomes what can we do about the prospect of these things buzzing over our property?

    Well here’s one approach:

    The pros? It’s very old school and possibly effective. This of course depends on your marksmanship skills. Of course, if you actually hit one, it seems to me it could plummet to the ground and do who knows what damage to your property or your neighbor’s. So there’s that.

    An alternative, less, um, noisy approach may be to register your property as a “no fly zone.”  Here’s a piece from talking about a Web site that allows property owners to register their real estate as a no fly zone. According to the article, many drone hardware and software firms have promised to honor the request. Seems like a less risky strategy than using the drone for target practice. 

    But it begs the question about whether it will be effective. That of course remains to be seen. But as drones increasingly cloud our skies, there will be questions about privacy.  And one threshold question will be whether and to what extent a homeowner has an expectation of privacy about what happens in his/her yard or any other space that can be viewed by a drone. If there is no expectation of privacy (or a very limited expectation) an invasion of privacy lawsuit against the drone operator will fail. It may be worth registering for the no fly protection simply to bolster the case that there is an expectation of privacy. That piece of evidence could be useful in a civil suit.

    That of course, assumes you don’t opt for the shoot ‘em up solution.  

    Go comment!
  • First Amendment Works Both Ways

    Feb 06, 2015

    Thanks to my friend Dan Donnellon for bringing this case to my attention. It’s a decision from the United States District Court for the Eastern District of Virginia.

    The court dismissed a complaint brought by woman named Pamela Melvin. Ms. Melvin basically claimed that she was the victim of a mistreatment by a number of individuals and entities, including the Veterans Administration. She claimed in the complaint to be in grave danger, and that the VA installed a “one-way Internet system” in her apartment and used it to control her computer and printer.

    But her complaint targeted 11 newspapers from across the country, including USA Today, The Washington Post, and the Dallas Morning News. Essentially, Ms. Melvin claimed that the newspapers violated her civil rights by not reporting on her case. In Ms. Melvin’s view, the newspapers routinely reported on “civil cases that were filed by white citizens against the Federal Government, its agencies and officials” but did not report on Ms. Melvin’s troubles because she is African-American.

    There are any number of problems with Ms. Melvin’s claims.  She has no relationship with the newspapers that would cause the newspapers to owe her any duty. There are questions whether she could establish any damages. There was no evidence that the newspapers engaged in any purposeful discrimination.  And the court could have dismissed on those grounds alone. 

    But to the court’s credit, it went one step further, and also dismissed on the basis of the First Amendment. And that’s the interesting part of the case. We often think of the First Amendment as prohibiting the government from telling us what we can’t print, or protecting us from liability for something we already printed. And it does. But the First Amendment also prevents the government (any branch -- executive, legislative or judicial) from making a newspaper print anything it doesn’t want to. In other words, the First Amendment keeps the government from restricting speech or compelling speech. 

    That is probably a pretty obvious observation, but it’s nice for courts to remind us of the concept periodically. 

    Go comment!
  • Thanks For The Gluten Free Menu, See You In Court

    Feb 05, 2015

    A friend sent this article to me recently. It seems that P.F. Chang’s has gotten into hot water over the issue of gluten free offerings. But first, a little background. A lot of people suffer from a disease called celiac. It’s a stomach disorder that causes pain and discomfort to those afflicted by it. People with celiac have an intolerance to gluten, a protein found in wheat, rye and barley. My sister has it and it’s no fun. It’s tough to find foods that don’t include gluten, so it can severely limit the diet of people who have it.   

    The good news is that many restaurants are offering gluten free menu items. And that’s where P.F. Chang’s comes in. You might think the chain’s legal problems stem from not offering gluten free items. But that’s not the case. In fact, Chang’s was one of the first chains to offer gluten free choices. My sister is a loyal customer. So, where’s the gluten free beef exactly? It seems that Chang’s charges a $1.00 surcharge for gluten free items. 

    And according to a lawsuit filed by Anna Marie Phillips, that surcharge violates the Americans With Disabilities Act. She’s filed a complaint in Scottsdale Arizona (where Chang’s is headquartered) asking the court to convert the case to a class action on behalf of all similarly situated diners who have been socked for the $1.00 fee. Chang’s operates 204 restaurants in 39 states. So, damages in a class action would be . . .  a lot (I went to law school to avoid math).

    But do Ms. Phillips and her “class” mates have a case? According to my partner Dan Burke, who knows ADA law far better than me, there are two important issues. First, to make an ADA claim, an individual has to have a “disability.” So a person with celiac disease likely is protected by the ADA, but a person who simply prefers a gluten-free diet for general health reasons is likely not. That might limit the size of the class right off the bat. Second, Chang’s will need to show that the $1 surcharge is a “business necessity” to provide a gluten-free menu item. What that means, very simply, is that Chang’s will need to prove that it costs a dollar extra to prepare items gluten free.  

    I have no idea how this case will play out. But it will surely be filed under the heading “No Good Deed Goes Unpunished” or possibly “Why People Hate Lawyers.”

    Go comment!
  • Don't Go Irish

    Jan 30, 2015

    For the first (and hopefully only) time in my life, I am rooting against the University of Notre Dame. The whizzing sound you hear is my dad spinning in his grave. But I have no choice. As much as I love my law school alma mater, I value transparency even more. 

    ESPN recently filed suit against Notre Dame under the Indiana Public Records Act seeking records from the University’s police department. Here’s a copy of the complaint.

    Now, you may be asking yourself, how are the records of a private university subject to the public records law? The answer is pretty simple. Under Indiana law, the Notre Dame police are sworn officers who carry guns and have the power – granted by state law – to make arrests. According to Luke Britt, Indiana’s Public Access Counselor, that makes their arrest records public.  

    Ohio has a similar law, and our firm has brought a lawsuit on behalf of a student journalist at Otterbein University in Westerville Ohio. The suit asks the Ohio Supreme Court to compel the Otterbein University police to produce arrest records under the Ohio Public Records Act. Like Notre Dame, Otterbein is contending that it is a private university, which gives them the right to hide the records of a unit that can exercise deadly force, enforce state laws and even make arrests off campus in the city of Westerville.

    I agree with Mr. Britt, who said in his opinion: "The police force is established by the governing body of a private institution, but their powers come from the state . . . . I am not comfortable saying an organization can hide behind the cloak of secrecy when they have the power to arrest and create criminal records and exercise the state's police powers."  With what part of that argument would any rational person argue?

    Private police forces are never a good idea. Especially in a university setting where there is a temptation to cover up sexual assaults and other crimes. Colleges don’t want potential students (and their parents) to worry about such a terrible topic. But the answer is not to cover it up.

    So, sorry Notre Dame. I’m rooting for ESPN in this contest. 

    Go comment!
  • Media Day Edition

    Jan 28, 2015

    In honor of Seattle Seahawks running back Marshawn Lynch’s decision to attend the annual Media Day event only to repeat “I’m here so I don’t get fined” in response to every question, I have a few questions.

    If any of my readers can forward this edition to Mr. Lynch, I’d appreciate it.

    1. Mr. Lynch, is it fair to assume you are an arrogant pr***?
    2. As a follow up, how long would you say you’ve been an arrogant pr***?
    3. Do you expect to be an arrogant pr*** for the foreseeable future?  
    4. Are you as stupid as you are making yourself appear?
    5. Have you taken so many blows to the head that you are incapable of realizing that the media promotes your sport, which increases the audience, which allows you to make 30 million dollars per year?
    Go comment!
  • Brimfield Township News Busts My New Year's Resolution

    Jan 21, 2015

    One of my 2015 New Year’s resolutions was to be a little less judgmental. People make mistakes after all, so why rush to point out human frailties I encounter.

    It lasted for 21 days. But in my defense, it’s tough to read this story and not feel a little righteous indignation. The story concerns David Oliver, the former Chief of the Brimfield Township (Ohio) Police Department. He is the former chief primarily due to a junior officer’s allegations that paint Oliver as a bully, who happens to be unbelievably crude and sexist. A true trifecta of creepiness. He was initially suspended for two weeks following an investigation into “gender discrimination issues related to an employee of the department. ” Oliver has since opted to “retire.”

    But Oliver’s transgressions are not even what I’m most upset about. The township hired an independent attorney to conduct the investigation to the tune of $8000. I suspect the attorney charged an hourly rate. So, let’s assume it was $200 per hour. If so, the lawyer spent 40 hours on the case. And he didn’t produce a written report. He relayed his findings orally in a closed door with the Township Trustees. Why no written report? To avoid the Ohio Public Records Act. No record means no need to let the public in on the Chief’s shenanigans. 

    So a police chief, whose salary is paid for with tax payer dollars allegedly engaged in a sustained pattern of grossly (emphasis on gross) inappropriate conduct toward a junior officer, resulting in a suspension and then a “retirement” and those tax payers have no way of knowing what happened exactly, whether the allegations are credible, or the extent to which other officers were complicit. This, despite the Ohio Public Records Act, which is supposed to guarantee government transparency. 

    I am willing to bet the Brimfield Trustees are big advocates of “traditional values” and “the rule of law.” Too bad they don’t respect the laws they deem inconvenient.  Oops. There I go being all judgmental.

    Go comment!
  • World of War Craft (Beer)

    Jan 16, 2015

    That headline might be a little strong, since threatened litigation really isn’t “war.”  But two craft brewers recently got into a trademark fight that had a peaceful resolution, apparently as a result of public opinion. 

    On January 12, the Lagunitas Brewing Co. filed a trademark infringement lawsuit against Sierra Nevada Brewing Co. Sierra was ready to launch a new produce called “Hop Hunter IPA.”  But according to Lagunitas, the logo Sierra chose infringed on the Lagunitas IPA logo trademark. 

    The claim was a little fuzzy and it appears that Lagunitas may have been trying to argue that it owned a trademark in the term “IPA” itself. That would be a tough argument to make. While the font and design of the letters “IPA” may be protected, the word is merely descriptive of a particular type of craft beer. And Lagunitas can’t exercise veto power over competitors who want to sell an IPA style beer.

    And on the logo issue, an important question is whether consumers will be confused. Here they are side by side:

    Can you spot the difference? I figured you could. Of course, I have very bright readers.

    It looks like Lagunitas realized that maybe this was not a bar fight worth picking. In a series of tweets the day after filing the suit, Lagunitas founder Tony Magee announced he was dropping the suit. He said he lost in “the ultimate court – the Court of Public Opinion." That’s the ultimate court? These guys might disagree:

    I’m not sure if it was public opinion or a recognition that the case was weak that led to the decision to drop the suit so quickly. But it points up a valid concern in this type of situation. While it’s critically important to protect your brand, it’s equally important it consider how consumers will view the effort. If you come off looking like a bully, especially in an industry where companies pride themselves on being “the little guys” it may not be worth the effort. 

    Thanks to my colleague Dan Knecht for bringing this to my attention. His beer radar is second to none. Dan is a member of Graydon Head’s Craft Food and Beverage Industry Group, which focuses on assisting clients with the organizational, marketing, and employment legal issues peculiar to burgeoning brewers, restaurants, and retailers.

    Go comment!
  • This Is All Getting Very Complicated

    Jan 13, 2015


    Given my interest in free speech and the First Amendment, it made sense to write about the Charlie Hebdo incident. And at one point, I thought about incorporating in this piece some of the cartoons that precipitated the attack. Because I clearly have the right to do so. But I opted not to do that. And I find myself asking why? Why not show an example of what I’m talking about? Am I afraid? No, I don’t think so. Although it does beg the question whether I have the right to potentially put my co-workers in danger by displaying images that might lead some deranged radical to retaliate. 

    No, I think I decided not to post the cartoons for the same reason I write f*%# when I write about a case involving someone using the f-word. What’s the point of using offensive speech when I can convey the same message using symbols? And if that’s the case, why not be considerate of readers who would be offended if I spelled the word out? 

    Of course, this all depends on what message I am trying to convey. Today’s post is a comment on tragic events apparently inspired by the cartoons. It’s not a comment on the cartoons themselves. 

    And I’m not out to make a point by ridiculing anyone. So this post is different than the one I posted last week, making fun of Kirby Delauter. I’m sure Mr. Delauter found that post offensive (at least I hope he did) but that’s the point. He took an idiotic position and I held a mirror up to it. There was no way to convey my message in a completely inoffensive manner.

    But the critical distinction here is I made the decisions about what to include and what to leave out. No one, particularly not the government, is telling me what I can and can’t say.

    But that’s where it gets a little complicated doesn’t it?  France bans anyone from denying the existence of the Holocaust. So the argument goes, if France can prohibit holocaust denial speech, because it is offensive, why can’t it ban speech that offends Muslims? Once you start picking and choosing, you invite that type of response.

    Which brings me to this piece from the New York Times. The United States Supreme Court is going to hear an argument this term on a case arising from a decision by Texas agency denying a license plate design featuring a Confederate flag. The agency denied the request because it considered the Confederate flag offensive. A  group called the Sons of Confederate Veterans is challenging the decision, arguing that the flag is a symbol of “sacrifice, independence and Southern heritage.”  And just to make this a little more difficult, the Supreme Court may also consider an appeal by the American Civil Liberties Union challenging a decision by the North Carolina state legislature not to issue license plates featuring an abortion rights slogan despite the fact that it had previously issued plates featuring the “Choose Life” slogan.   

    The New York Times thinks it’s okay for Texas to ban the Confederate flag but not okay for North Carolina to ban the pro-abortion plates. I’ll leave it to you to read their reasoning, but these cases bear some similarities to the French conundrum. Once the government makes content based decisions, things get really complicated.

    Go comment!
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