Disproportionate Impact on Small Producers

A significant concern raised about S. 510 is its potential to place undue burdens on small producers. Writer Barry Estabrook, a noted critic of industrialized agriculture whose commentary on the bill appeared in The Atlantic and was cited in a post at Cato at Liberty, argued that the legislation could ultimately “make things worse.”

Estabrook’s core contention is that “the proposed rules would disproportionately impose costs upon” small entities. This includes traditional, low-tech, and organic farmers and foodmakers who primarily sell their goods to neighbors and local markets. Even producers with flawless safety records or those selling low-risk foodstuff may face crippling new paperwork and regulatory requirements. Large-scale operations, by contrast, are typically better equipped to absorb these costs as a standard part of doing business.

Concerns Regarding Regulatory Discretion and Specific Provisions

While S. 510 does incorporate language not present in earlier drafts that acknowledges the concept of tiering regulatory burdens, the effectiveness of these modifications remains a point of debate. As the Farm and Ranch Freedom Alliance has noted, most of the changes intended to be favorable to small producers are left subject to the Food and Drug Administration (FDA)’s discretion. Consequently, the ultimate impact hinges significantly on the agency’s subsequent regulatory implementation.

Further legal and practical concerns regarding the bill have been articulated. Peter Kennedy, for the Farm-To-Consumer Legal Defense Fund, which often defends producers of raw milk, has discussed specific provisions that may prove particularly burdensome to small entities. These issues include:

• HARPC (Hazard Analysis and Risk-Based Preventive Controls): A new mandate requiring food facilities to develop and implement controls to prevent known or reasonably foreseeable hazards.
• Traceability requirements.
• Increased penalties.
• Expansion of federal jurisdiction.
• New produce standards.

Kennedy also addressed the implications of S. 3767, the “Food Safety Accountability Act of 2010,” a separate measure introduced by Senator Patrick Leahy (D-VT).

Advocacy for the Measure

Conversely, proponents of the legislation defend the measure as fair, arguing that it strikes a necessary balance between ensuring public safety and accommodating small producers. An advocacy sheet, which has been attributed in some quarters to Senate staffers, defends the measure’s fairness to small farmers.

The post The Food Safety Modernization Act: Examining the Alliance of Big Business and Regulatory Advocacy first appeared on Human And Legal.

Background of the Dispute

For several years, Ms. Robishaw received favorable performance evaluations. However, her satisfactory record was interrupted after the state of Massachusetts began mandating specific testing for English fluency among its teachers. Subsequent to this requirement, Ms. Robishaw received an unsatisfactory rating in English fluency, which ultimately led to her dismissal.

The dispute proceeded to arbitration, where the arbitrator reinstated Ms. Robishaw. The arbitrator’s decision was subsequently challenged and reversed by a state court judge. In reversing the reinstatement, the judge reportedly described the teacher’s performance on an interview test tape as “utterly incomprehensible.”

Grounds for Appeal

The appeal before the Supreme Judicial Court centers on procedural and evidentiary arguments. Counsel for Ms. Robishaw asserts that the arbitrator had excluded the interview test tape from evidence, and consequently, the state court judge should not have considered it when reviewing the case. Furthermore, the appeal argues that the judge failed to observe the established presumption against overturning arbitration results, a critical standard in reviewing such findings.

The Underlying Statute

This case is situated against the backdrop of a voter-approved state law enacted in 2002. As noted in the Lowell Sun, the law stemmed from Massachusetts’s Question 2, which requires:

“all school superintendents to attest to the English fluency and literacy of their teachers where ‘the teacher’s fluency is not apparent through classroom observation and assessment or interview assessment.'”

The controversy surrounding English fluency requirements has historical precedent in Massachusetts. Longtime observers may recall a similar and highly publicized dispute in the 1990s involving a foreign-born teacher in Westfield, Massachusetts. That earlier controversy is widely credited as a catalyst for the adoption of Question 2 by the state’s voters. Ms. Robishaw, coincidentally, attended Westfield State College.

The post Legal Challenge to Teacher English Fluency Requirement: The Robishaw Case first appeared on Human And Legal.

The article effectively explores the tensions between large and small manufacturers regarding compliance burdens, and it touches on the adverse effects of the law on thrift stores and the market for vintage books. Overall, the Times‘s report is a decent contribution to the public discourse on the matter.

However, the timing of the article raises serious concerns. The New York Times has now chosen to cover the harm caused by this legislation fully ten months after The Washington Post and other media outlets began reporting the basic outlines of the story. The paper’s coverage comes:

• Nine and a half months after a national furor developed, prompting both members of Congress and the Consumer Product Safety Commission (CPSC) to issue rushed “clarifications.”
• Nine months after hundreds of bloggers were already on the case, and the law’s effects on thrift stores were garnering headlines across the country. During this time, the Times‘s continued silence led commentators to note its “weird blind spot” on the issue.
• Eight and a half months after a Times editorial, deemed “deeply clueless” by critics, assailed those who were accused of seeking to “foment needless fears that the law could injure smaller enterprises like libraries, resale shops and handmade toy businesses.”
• Seven and a half months after protests by minibike dealers began drawing extensive national coverage.
• Seven months after critics organized a rally on Capitol Hill, and The Washington Post joined in reporting on the law’s dire effects on vintage (pre-1985) children’s books.

The Times’s belated reporting arrives approximately 300 days late, overlooking potentially billions of dollars in compliance and opportunity costs. Nonetheless, this publication is significant. The news division has now implicitly rebuked the editorial side’s earlier, seemingly “ideologically blinkered dismissal” of the “needless fears that the law could injure smaller enterprises.”

Moreover, the New York Times‘s acknowledgment of the story may serve as an essential form of validation for other media sectors—including certain magazines and network news departments—that often rely on Times coverage. This belated permission may allow them to finally recognize the legitimacy of the story and begin according serious attention to the continuing ramifications and “calamity” caused by the CPSIA. When they undertake this effort, these outlets will discover a substantial body of information to review and absorb.

The post The New York Times’s Delayed Coverage of the Consumer Product Safety Improvement Act first appeared on Human And Legal.

Venkat Balasubramani, writing for the blog Spam Notes, authored an insightful guest column on the AvvoBlog arguing that blog coverage functions as a modern check on the potential for overzealous or hardball litigation tactics by attorneys.

Increased Scrutiny and Case Examples

Across a range of high-profile matters, blogs have been instrumental in drawing national attention to deficiencies in a litigant’s position and the systemic risk that parties lacking substantial resources could be overwhelmed by the expense of litigation.

Notable examples cited include the BlockShopper and Nordstrom/Beckons affairs, as well as the Kentucky domain-name seizure case. Furthermore, in various gripe-site and reputational-claim actions, the Streisand effect has frequently come into play, where attempts to suppress information inadvertently amplify its visibility. In these instances, blog coverage helped to highlight the legal and ethical implications of the proceedings.

Bloggers as Accountability Monitors

Balasubramani specifically acknowledged the contributions of several legal bloggers who actively monitor and critique litigation excesses.

He noted:

Walter Olson: who blogs at Overlawyered is another blogger who frequently flags unreasonable positions taken by lawyers. While he monitors litigation excess generally, absurd tort lawsuits are his specialty, and many a plaintiff’s lawyer has graced the pages of his blog in shame.

The column concluded with a reflection on the overall positive impact of this heightened visibility:

Increased scrutiny of legal decisions and lawsuits by blogs and internet commentators will have undoubtedly have an overall beneficial effect. … Lawyers these days live in fear that one of their lawsuits will be highlighted on the pages of sites such as Overlawyered, the Legal Satyricon, or the Volokh Conspiracy. I know I sometimes do.

This commentary suggests that the digital age, through legal blogging, has imposed an additional layer of public accountability, influencing attorneys to proceed with greater caution and professionalism in their representation.

The post The Role of Legal Blogs in Promoting Professional Accountability first appeared on Human And Legal.

The plaintiff, 77-year-old Rachel Moltner, alleged that she suffered second- and third-degree burns after spilling hot tea from a Starbucks location. The incident reportedly occurred when she encountered difficulty removing the tightly secured lid of the beverage container. This specific complaint contrasts with prior litigation alleging that Starbucks’ lids were insufficiently secured.

Moltner’s claims extend beyond the initial burn injuries, including allegations that she suffered broken bones from a fall out of bed while receiving treatment for the burns at Lenox Hill Hospital. The suit seeks $3 million in damages.

Substantive Allegations and Procedural Posture

The complaint, which was initially filed in New York state court before being removed to the U.S. District Court for the Southern District of New York, contains a range of allegations against Starbucks. These include claims of a defective cup, defectively hot tea, and failure to warn. The case is currently identified as Moltner v. Starbucks Coffee Co., case number 1:08-cv-09257-LAP-AJP (S.D.N.Y.).

The current dispute centers on whether the defendant, Starbucks, timely exercised its right to remove the case to federal court based on diversity jurisdiction. Under 28 U.S.C. § 1446(b)(1), a defendant generally has thirty days from the receipt of the initial pleading to file a notice of removal. However, the clock may start later if the initial pleading does not establish federal jurisdiction.

In this instance, Starbucks sought removal more than thirty days after receiving the complaint, waiting until the plaintiff made a formal demand for monetary damages that clearly exceeded the amount-in-controversy requirement of $75,000.

The Jurisdictional Dispute: An Issue of Timeliness

The delay in removal raises an important strategic consideration, often termed sandbagging, for defense attorneys.

• If defendants proactively remove cases based solely on the possibility that damages will exceed the jurisdictional threshold—even when the complaint lacks an explicit ad damnum clause specifying a dollar amount—they risk improperly removing a case that rightfully belongs in state court.
• Conversely, if defendants wait for a formal confirmation from the plaintiff (such as a demand letter) that the amount in controversy exceeds $75,000, they face the argument that they have missed the mandatory 30-day window for removal.

The plaintiff, Moltner, presents a compelling argument that Starbucks waited too long, asserting that the alleged injuries (second- and third-degree burns, plus subsequent broken bones and a $3 million demand) would have clearly exceeded $75,000 even without a specific amount cited in the initial complaint.

A ruling in favor of the plaintiff on the timeliness issue would mandate that the case be remanded back to state court. While upholding the 30-day removal limit, the practical consequence of such a ruling is that it may encourage defendants to feel compelled to prematurely remove cases to federal court when there is any doubt regarding the amount in controversy, thus potentially leading to more removal attempts that are ultimately found to be unwarranted.

The post Procedural Nuances in a Product Liability Case: Analyzing Federal Removal Jurisdiction in Moltner v. Starbucks Coffee Co. first appeared on Human And Legal.

In the realm of amateur and school athletics, the legal duty of care is clearer. As noted by Professor Timothy Davis of Wake Forest Law, coaches owe a duty of care to their student-athletes not to increase the inherent risks of a sport. Consequently, coaches have, at times, been held liable for player injuries when they breach this duty.

However, the legal landscape shifts when considering professional sports. Precedent in this area is less established, yet the potential for liability remains a relevant consideration.

Legal scholars suggest that liability based on recklessness might arise where an athlete sustains an injury as a consequence of a coach acting outside the scope of their expertise. This is particularly salient when coaches have an actual or constructive appreciation of the potential risks stemming from their conduct. A key example is when a coach’s decision directly contradicts medical advice. Similarly, a coach’s demand that an athlete return to play, especially given the coach’s lack of medical training, arguably provides evidence of recklessness. Such a demand disregards an immediate and readily ascertainable risk, moving beyond a mere abstract possibility of risk.

Despite the theoretical basis for liability, Professor Davis identifies several significant barriers to successfully holding professional coaches accountable. These include, but are not limited to, the existence of workers’ compensation schemes, the strong athletic “culture” often prioritizing playing through injury, potential federal preemption issues, and mandatory arbitration clauses. Professor Davis ultimately concludes that professional coaches currently face limited incentives to prioritize player health from a purely liability standpoint—at least in the current legal environment.

While some media outlets, such as the New York Times, have recently focused heavily on issues like concussions in professional football, Professor Davis points to the league’s response to these health crises as a model for achieving progress and systemic change outside of the judicial system.

The post Coaching Liability and Athlete Injuries: A Legal Analysis first appeared on Human And Legal.

The Spectacle of Legal Marketing

Recently, a law firm’s advertising campaign garnered national attention, including a feature on Stephen Colbert’s ThreatDown, for its incorporation of a bear holding a small child. The imagery, while arguably designed to suggest a firm’s balanced approach—perhaps a combination of aggressive advocacy and protective care—sparked commentary across the legal community.

The reaction to this unconventional advertisement was swift, highlighted by a comment from a Wall Street Journal law blog reader: “As long as Bingham is allowed to advertise with a bear holding a baby, personal-injury lawyers should be able to do whatever they want.” This critique suggests that the use of such a theatrical image by a major firm effectively lowers the bar for all legal advertising, normalizing increasingly sensational marketing tactics.

Beyond the Bear: A Trend Toward Spectacle

While the bear advertisement stands out for its novelty, it is fundamentally similar to other high-concept or gimmicky campaigns prevalent in legal marketing. For instance, campaigns have featured attorneys morphing into wild animals, such as a tiger, or images of lawyers demonstrating superhuman strength, such as lifting an automobile. It is worth noting that some of these high-impact ads are syndicated and reused by numerous attorneys across the country, suggesting a perceived effectiveness in leveraging spectacle for visibility.

These examples raise a central question regarding the intersection of novelty and professionalism in legal advertising. While the goal of any advertisement is to capture attention and convey a message, legal professionals are traditionally held to a high standard of respectability.

The Necessity of Professional Standards

The core issue remains whether the pursuit of attention through sensational, non-traditional advertising risks undermining the public’s perception of the legal profession’s seriousness and integrity.

In the case of the highly debated bear advertisement, a related question arises regarding compliance with standard professional advertising practices. One might reasonably wonder if the firm included the typical disclaimers required in legal advertising, such as clarifying that the image does not represent an actual client. More humorously, but pertinent to the image’s professionalism, one might also speculate whether the firm thought to include a disclaimer stating that “the bear is not a member of the bar.”

The ongoing debate underscores the challenge for law firms in balancing the commercial necessity of memorable marketing with the imperative of maintaining the dignity and respectability expected of legal professionals.

The post Rethinking Professional Advertising: The Role of Novelty in Legal Marketing first appeared on Human And Legal.

In January 2006, The Smoking Gun revealed that James Frey’s supposedly non-fiction memoir contained significant inaccuracies and fabrications. This exposé led to considerable public backlash and initiated a legal response. A class action lawsuit was filed against the author, his publisher, Random House, and the literary agent, citing consumer fraud and false advertising based on the misrepresentation of the book’s genre as non-fiction.

The resulting settlement required Random House to establish a fund of $\$2.35$ million. This fund was allocated primarily to two categories:

1. Consumer Refunds: Readers who purchased the book were eligible to receive a $\$20$ refund upon submitting a claim. The total amount set aside for these refunds was $\$800,000$.
2. Attorneys’ Fees: The remaining $\$1.55$ million was allocated to cover the costs and attorneys’ fees incurred by the plaintiffs’ counsel in pursuing the class action litigation.

This case, while unique in its literary context, highlights a common feature of consumer class action settlements: the significant disparity between the direct recovery for the class members and the compensation for the attorneys.

The $\$800,000$ designated for class member refunds was theoretically accessible to readers who felt misled. However, the mechanism for distributing these funds—requiring individuals to submit a claim for a $\$20$ refund—often results in low participation rates. This structure means that a substantial portion of the $\$800,000$ refund fund may ultimately go unclaimed.

Conversely, the $\$1.55$ million allocated for attorneys’ fees represents a guaranteed, substantial recovery for the lawyers who initiated the suit. This dynamic has consistently raised ethical and legal questions regarding the efficacy of certain class action litigation in delivering genuine value to the affected consumers, particularly when the administrative costs and legal fees dwarf the individual consumer’s recovery.

This settlement underscores the critical role that class action mechanisms play in holding parties accountable for misrepresentation, even as it illustrates the inherent tension between maximizing class member benefit and adequately compensating legal efforts, a tension frequently debated within legal scholarship and judicial review of class action settlements under Rule 23 of the Federal Rules of Civil Procedure.

The post The Cumulative Cost of Inaccuracy: Class Action Litigation Over A Million Little Pieces first appeared on Human And Legal.

The plaintiff, David Gross, was a teenager employed at a local KFC. The facts indicate that Gross, exhibiting a degree of immaturity, was involved in an incident while on the clock. \

The core issue revolved around the Industrial Commission of Ohio’s determination regarding whether Gross’s injury arose out of his employment and was sustained in the course of his employment, thus qualifying for Workers’ Compensation benefits. The doctrine of arising out of and in the course of employment is central to establishing a valid claim under Ohio Revised Code § 4123.01(C) and related case law.

The circumstances of the injury, characterized by the plaintiff’s callow conduct, ultimately swayed the Commission and the Court. This judicial reluctance to grant relief to a seemingly undeserving claimant highlights the tension between achieving strict legal consistency and the practical application of equity.

Despite the unflattering facts, a rigorous application of existing workers’ compensation precedent arguably mandated a finding in Gross’s favor. The analysis of whether an activity falls within the scope of employment should, in theory, remain independent of the claimant’s perceived moral or personal failings. The final decision, while rooted in the specific facts presented, sets a potentially problematic precedent where the egregious nature of the claimant’s conduct overshadows a purely legal determination of coverage. This outcome serves as a reminder to legal professionals of how unique factual narratives can challenge and occasionally distort the consistent application of legal principles.

The post Gross v. Industrial Commission of Ohio: A Study in Hard Facts and Legal Precedent first appeared on Human And Legal.

A consumer advocacy group and a retired physician have initiated legal action against Kentucky Fried Chicken (KFC), alleging that the quick-service restaurant chain utilizes cooking methods that pose health concerns to the public. The Center for Science in the Public Interest (CSPI), a consumer organization, and Dr. Arthur Hoyte, a retired physician based in Rockville, Maryland, are petitioning the court to issue an order mandating KFC to switch to alternative cooking oils.

The crux of the lawsuit centers on KFC’s use of partially hydrogenated oils in the preparation of its fried chicken and other menu items. This type of oil is known to contain trans fatty acids (trans fats). The plaintiffs contend that the presence of trans fats in KFC’s products presents a significant public health issue due to their documented adverse effects on cardiovascular health.

Allegations and Requested Relief

The legal challenge asserts that by continuing to use partially hydrogenated oils, KFC is engaging in practices that mislead consumers about the healthfulness of its products. The plaintiffs argue that a judicial intervention is necessary to compel the restaurant chain to adopt healthier frying alternatives, such as non-hydrogenated oils, which contain significantly lower levels of or are free from trans fats. The suit does not seek monetary damages, but rather injunctive relief, specifically an order compelling a change in the company’s cooking practices.

The parties bringing the action aim to ensure that consumers are not unknowingly exposed to high levels of trans fats when purchasing KFC products. This case highlights the ongoing legal and public health debate regarding the responsibility of food corporations to mitigate health risks associated with certain ingredients and preparation methods.

Legal Context and Implications

This lawsuit falls within the broader category of consumer protection litigation, where plaintiffs seek to hold corporations accountable for product safety and truthful marketing. The requested relief—a court order dictating business operations—underscores the seriousness of the plaintiffs’ public health concerns.

The outcome of this case could establish a precedent for how the food industry is legally scrutinized regarding its choice of ingredients, particularly those with well-documented negative health consequences like trans fats. Legal analysis will likely focus on existing food safety and labeling laws, as well as the common-law duty of companies to avoid creating an unreasonable risk of harm to consumers. The litigation reflects a growing trend of using the courts to address systemic public health issues related to diet and food preparation.

The post Litigation Spotlight: Lawsuit Challenges KFC’s Frying Oil Practices first appeared on Human And Legal.