Tag Legal

Ordering in the court

Michael 3 Comments

It shouldn’t surprise me anymore, but it does. Americans (I’ll say we Americans because I do it too sometimes and no doubt you have also) like to brag on our intelligence and sense of right and wrong, and even sticking up for the proverbial little guy now and then. And then at some other now and thens we are reminded we are also the providers and consumers of the American justice system and its second cousin, the American legal system.

If the justice system is looking to right wrongs and support the little guy, the legal system is often looking out to maximize billable hours or its contingency in lieu of. You have certainly heard of the most recent legal tussles between the Kellogg accompany and strawberries lovers the world over, or at least the country over. Yes, Big Fooda is once again being called out for misleading labeling, calling their strawberry Pop-Tart toaster pasties strawberry when there is so little strawberry in them. The petition claims if the purchaser knew how little strawberry was actually contained in the pastry, she would not have made the purchase. Claiming she wanted more than just strawberry taste, she is seeking 5 million dollars in a class action lawsuit. (Hold that thought. We will get back to it shortly.)

This isn’t the first time Kellogg has been called out on its labeling practices. Its not even the first time this year. They are currently fending off accusations that their Frosted Mini Wheat cereal is more than “lightly sweetened.” This on the heels of a legal challenge than Kellogg-owned Morningstar Farms Veggie Hot Dogs, Veggie Burgers, Veggie Meatballs, and variety of Veggie [These and Those] contain an insignificant amount of vegetables and are thus misleadingly labeled. Kellogg is thus defending themselves against another 5 million dollar class action (keep holding) lawsuit.

Kellogg is not alone among Big Fooda in as targets of legal label interpretations. Post Foods found themselves the target of class action action, claiming there isn’t enough honey in their Honey Bunches of Oats and other products bearing the honey label to warrant being honey labeled products. Just this month the lawsuit claiming Subway Restaurants Inc.’s tuna sandwiches and wraps contained “anything but tuna” was dismissed. And in a rather unusual labeling lawsuit, McCormick and Company has just settled a class action challenge, offering $3 million to plaintiffs for adding the word “natural” to a variety of products. The argument was not that the so labeled products are not natural, but that the word was added only to justify a price increase as the demand for natural products increased.

Although you might be tempted (I certainly am) to blame the American legal system for class action suits, they go back to thirteenth century England. As the feudal system declined and capitalism grew, group litigation also declined until the mid-nineteenth century. While it was falling out of favor in England its use was simultaneously increasing in the United States. In 1942 the United States Supreme Court passed a Federal rule in civil proceedings allowing one person to file suit on behalf of a group of plaintiffs.

You would think this is a good thing when a group of people are injured or otherwise affected by the single, common action, allowing those wronged the opportunity to have their plights corrected, pains lessened, or be compensated regardless of how big and powerful the deed doer is. Indeed, many significant events in American history owe their existence to class action suits. Brown vs Board of Education (1954) establishing schools integration and foretelling the dismantling of “Jim Crow” laws and Jenson vs Eveleth Taconite Company (1984) defining unwanted sexual advances and intimidation as forms of abuse are two examples of class actions whose resulting decisions were felt and continue to be felt by more than the original group of plaintiffs represented by that single person.

At the same time however, class action has become a fees mill for those specializing in group litigation. Consider the McCormick settlement.  Three million dollars will be divided among all those filing claims up to $15 per claimant to reimburse for purchases made from January 2013 to September 2021- probably a more than fair settlement for something that caused no illness, injury, abuse, embarrassment, loss or life, liberty or the pursuit of well season foods. If the Pop-Tart suit is upheld, the class certified, and then won or goes to settlement, it is likely about the same results as the McCormick settlement will be seen. Clearly these are not financial windfalls for the plaintiffs nor are significant advances in food safety being instituted. But the whether there are significant life altering decisions as in Anderson vs Pacific Gas and Electric (which you might recognize as “The Erin Brockovich case”), or it’s just people getting particular about how much strawberry is in a Pop-Tart, the lawyers still get their percentage up to 40% – on the total settlement.

I wonder, if the legal fees were capped to 40% of each individual award, would those who specialize in “protecting” the little guy still want go all out to protect us from Big Fooda and their unscrupulous toaster pastries for about 7 bucks?

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Go to the Tape

Michael 4 Comments

Do you ever wonder why? Just – Why, Huh, Really, Yeah, Unbelievable I’ve been doing that a lot lately. Lately there have been a lot of news reports about the charges being filed against the people who attacked the Capitol. In case you are wondering, yes, I did think about that word choice and that is the one I settled on. All you need to do is look at the tape. And that’s where I’m going.

For years, hundreds of years, we’ve settled on a system of innocent until proven guilty. It’s a good system.  The Presumption of Innocence is so good most people assume it’s a guaranteed right. Actually, it isn’t. Due process is. Due process requires certain procedures are followed before a person can be charged with, tried for, or convicted of any illegal act. The Fifth Amendment of the Constitution demands due process in federal cases and the Fourteenth Amendment extends that protection to those accused in state and local cases. Part of due process at the level of conviction is that the accuser meet a “standard of proof.” That’s where things enter the “Really?” realm for me. Stick with me for another minute please.

Because the accuser has to meet a burden of proof is it assumed the accused is innocent until that proof is met. I prefer to think of it as the accused has not been proven guilty. In fact, if you have served on a jury you might recall before deliberations began the judge instructed you and the other jury members that you were to determine if the accused is guilty or not guilty. Nobody voted for innocent.

Eagle eyed wordsmiths will have noticed in the previous paragraph’s opening sentence I used the word “assume” instead of “presume.” If we have to call the current system something it really should be call an Assumption of Innocence, rather than the Presumption of Innocence.  To “presume” supposes there is some unspecified evidence to reach a conclusion; ‘assume’ takes for granted that whatever is supposed is true. That’s really what we have, we are assuming these people are not guilty. If we were to presume anything it would be the other way around. Why? As another great phrase we’ve all heard goes, let’s go to the tape.*

With cameras so ubiquitous you can certainly presume, darn near assume, that nothing happens without a record of it happening, often by those doing what’s happening, I am utterly amazed at what people say they did not do within days of proudly sharing videos of what they just did. That some rebel can grab a battering ram, slug his and/or her way through a locked door, smash through inner doors, steal items out of offices, take pictures of himself and or herself while battering, slugging, smashing, and stealing, and then plead not guilty of all charges just does not compute. “Yes, I went to Washington but I didn’t go inside.” Let’s go to the tape.

This is all happening at the same time news outlets are publishing security camera video of attacks against Asian Americans including a violent assault of an Asian woman on a street right in front of a police car. Let’s go to the tape.

This all got stirred up in my head over the weekend listening to the reports of the trial of that cop who killed George Floyd. (I don’t want to call it the Floyd trial because he isn’t being tried for anything, and I don’t want to call it that cop’s name trial because I don’t want to give him any extra recognition.) Let’s go to the tape.

With few exceptions all of those so far charged have pled not guilty, certainly that’s their right. They can say whatever they want and the system is built that they don’t have to prove they are not lying when they say it. Let’s go to the tape.

ReplayOne of the standards of proof is “Clear and Convincing Evidence,” that it is highly probably to suppose what is presented is how the elements of the action had occurred. On the legal ladder of liability this standard lands on the rung below “Beyond a Reasonable Doubt,” that is the elements of the action had occurred as presented (which although is greater than to suppose the elements are present it does not mean “beyond all doubt” or “beyond a shadow of a doubt” or any other such absolute).

Call me an old fuddy duddy but I’m still of the school that if I see something happening with my eyes, I can pretty much suppose that’s how it went down and those actions did occur. Whether it is breaking door the doors to the Capitol, lifting a pack of gum, pushing an elderly Asian woman into a busy street, or kneeling on somebody until their life is snuffed out, I say we change the standard to “Let’s Go To The Tape.” It’s not just for sports anymore.

*The phrase “Let’s go to the video tape,” sometimes “Let’s go to the audio tape” is attributed to sportscaster Warner Wolf. Wolf published his memoir, Let’s Go to the Videotape: All the Plays and Replays from My Life in Sports, (Grand Central Publishing) with Larry Weisman in 2020.

Call It What You Will

Michael Leave a comment

I read an article in the paper last week that would have made go “Hmm” had I not been struck speechless, or even hmmless. The U. S. Department of Justice will no longer refer to people who have completed sentencing and released from prison as a “felon” or “convict.” Instead the terms “person who committed a crime” or “individual who was incarcerated.” will be used. The announcement included the comment that the newly forbidden words are disparaging. Hmm, we are talking about convicted felons – I’m sorry, I mean we are talking about people who committed crimes, aren’t we?

I have to expand my daily reading to include papers from around the world. I see the headlines and whatever American editors determine are newsworthy enough for U.S. media to re-report, but what might I be missing. Is the appellation of formerly incarcerated individuals high on justice departments’ priority lists worldwide?

If it catches on it will be the biggest “they said” since “they said” someone is a person of interest when the police want to talk to said someone about a crime and that it has nothing to do with being interested in someone. This person is not to be confused with a suspect whom police would want to talk to about a crime or a material witness who is presumed to have information about a crime. It seems that one shouldn’t call a suspect a suspect until all suspicion is removed in the favor of certainty less the person of interest is disparaged in the event some doubt remains.

It all reminds me of another article I saw a while ago about some organization now using the term “companion” rather than “mistress” when referring to a prominent person’s person of interest.  Now that would be disparaging. Not being a companion, nor even a mistress. Being said to hang around with someone who passes for prominent. Now that may be most disparaging.

That’s what I think. Really. How ‘bout you?