Tuesday, November 29, 2011

Trademark law run amok

So Chik-Fil-A is complaining about some dude with a local business whose T-shirts read "Eat More Kale."  Chik-Fil-A says the shirts diminish it's trademark.

In my view, this expands trademark law beyond what it should be. 

Plus, I recall a cattleman's association (I believe) who sported bumper stickers that read "Eat More Beef!" long before I'd ever heard of Chik-Fil-A's slogan.

Here's the article:

Vt. folk artist says he'll fight Chick-fil-A giant for rights to phrase 'eat more kale'

MONTPELIER, Vt. (AP) -- A folk artist expanding his home business built around the words "eat more kale" says he's ready to fight root-to-feather to protect his phrase from what he sees as an assault by Chick-fil-A, which holds the trademark to the phrase "eat mor chikin."
Bo Muller-Moore uses a hand silkscreen machine to apply his phrase, which he calls an expression of the benefits of local agriculture, on T-shirts and sweatshirts. But his effort to protect his business from copycats drew the attention of Chick-fil-A, the Atlanta-based fast-food chain that uses ads with images of cows that can't spell displaying their own phrase on message boards.
In a letter, a lawyer for Chick-fil-A said Muller-Moore's effort to expand the use of his "eat more kale" message "is likely to cause confusion of the public and dilutes the distinctiveness of Chick-fil-A's intellectual property and diminishes its value."
Chick-fil-A, which trails only Louisville, Ky.-based KFC in market share in the chicken restaurant chain industry, has a long history of guarding its trademark, and the letter listed 30 examples of attempts by others to co-opt the use of the "eat more" phrase that were withdrawn after Chick-fil-A protested. The Oct. 4 letter ordered Muller-Moore to stop using the phrase and turn over his website, eatmorekale.com, to Chick-fil-A.
Muller-Moore, 38, of Montpelier, says he won't do that.
"Our plan is to not back down. This feels like David versus Goliath. I know what it's like to protect what's yours in business," he said.
So he has enlisted the help of Montpelier lawyer Daniel Richardson and the intellectual property clinic at the University of New Hampshire School of Law's Intellectual Property and Transaction Clinic.
"Bo's is a very different statement. It's more of a philosophical statement about local agriculture and community-supported farmers markets," Richardson said. "At the end of the day, I don't think anyone will step forward and say they bought an 'eat more kale' shirt thinking it was a Chick-fil-A product."
Chick-fil-A spokesman Don Perry said the company does not comment on pending legal matters.
Muller-Moore, who describes himself as a folk artist who earns a living working as a foster parent for an adult with special needs, said he started using the phrase "eat more kale" in 2000. A farmer friend who grows kale, a leafy vegetable that grows well in Vermont and is known for its nutritional value, asked Muller-Moore to make three T-shirts containing the phrase for his family for $10 each.
A few weeks later, the friend told Muller-Moore that people kept asking for the shirts. The phrase helped him get his silkscreen business going, which he later expanded through the Internet. Now, he prints "eat more kale" on hooded sweatshirts too. And he has the words printed on bumper stickers that are common throughout central Vermont.
Five years ago, Muller-Moore said, he received a similar cease-and-desist letter from Chick-fil-A, telling him to stop using the phase. A pro bono lawyer traded a handful of letters with Chick-fil-A on his behalf. After the letters stopped, Muller-Moore assumed the issue had been decided in his favor and kept making the products.
But as his business grew, Muller-Moore decided to protect the phrase that became his unofficial trademark. He filed an application last summer with the U.S. Patent and Trademark Office to protect "eat more kale." The application is pending.
Vermont Law School professor Oliver Goodenough, who specializes in intellectual and property law, said the kale versus "chikin" fight reminded him of a case two years ago, when a Morrisville microbrewer that makes a beer called "Vermonster" ran afoul of the Monster energy drink company. That case was settled when the makers of Vermonster agreed never to go into the energy drink business.
Goodenough said there was little likelihood consumers would confuse kale with chicken.
"This looks a bit like an example of over-enthusiasm for brand protection," he said. "There are (law) firms in the United States that take this over-enthusiasm for brand protection seriously and believe the more they can scare away the better. If folks aren't deeply committed to this and it's a funny byproduct, maybe they won't fight it."

Monday, November 28, 2011

Punitive Damages for Texting and Driving

A Collier County circuit court judge has ruled that the punitive damages can be sought in a case where the driver who ran over and killed a cyclist was alleged to have been texting and driving. 
Typically, only compensatory damages are permitted.

The O'Brien Law Firm represents families of those killed by the negligence of car and truck drivers.  We have handled wrongful death cases involving car and truck drivers injuring and/or causing the death of bikers. 

Recently, Attorney Aaron O'Brien, in a car vs. bicyclist crash causing death case, wrote a warning to the insurance company for the driver.  Mr. O'Brien asserted boldly that although it may not have been done yet in Florida, he intended to seek and collect punitive damages from the driver, whom O'Brien alleged was texting and driving at or near the time of the crash.

Whether or not another law will do any good, if texting and driving is as reckless as driving while intoxicated, the civil damage consequences should be just as high.

Here's part of the text from the News-Press article:

James Caskey Jr. was riding his tricycle on a clear August morning in North Naples when he was struck by a car and died from head injuries.
In what the 62-year-old Caskey’s widow, Margaret S. Caskey, 64, and her attorneys say is a first in Florida, a Collier circuit judge has ruled that punitive, or triple, damages can be sought in her lawsuit because of her claim that the driver in the crash was text messaging. The driver and defense attorneys deny the allegation. The case is scheduled for trial in March.
About the same time that case is going to court, lawmakers will once again debate whether they should make texting while driving illegal. The odds are long that the bill — being co-sponsored by state Rep. Irv Slosberg, D-Boca Raton, a highway safety advocate whose daughter, Dori, died in a car crash several years ago — will even get out of committee. It went down to defeat last year, partly because legislators question how it can be enforced and partly because of the anti-government regulation atmosphere that prevails in Tallahassee.
Highway safety advocates say if legislators fail to act, the legal system will have to deal with the problem in cases such as Caskey’s.
Laws against texting and driving are mounting throughout the United States and other countries. Thirty-five states, Washington, D.C., and Guam have bans on texting and driving, as do Germany and the United Kingdom. Locally, the Lee and Collier school districts are among agencies that have personnel policies prohibiting texting by employees while driving agency vehicles.
The reason for the backlash is statistics.
Texting while driving resulted in 16,141 deaths from 2001 to 2007, according to a study released last year by the University of North Texas Health Science Center.
A 2009 study by the Virginia Tech Transportation Institute found that long-haul truckers increased the risk of crashes by 23 times when texting.
And a 2009 Car and Driver magazine experiment found that texting while driving had a greater impact on safety, including longer stopping distances, than driving drunk.

Tuesday, October 11, 2011

Conservatives Against Florida's Mandatory Minimum Drug Sentences

The Associate Press reports "even many conservative Republicans, including former Gov. Jeb Bush, calling for changes in Florida's tough narcotics laws that are helping fill state prisons with nonviolent drug users and costing the state tens of millions of dollars annually."

Associated Press (AP) - Jeffrey Pitts is serving a 5-year prison sentence for drug trafficking involving only eight to 27 Lortab tablets - prescription-only pills containing a small amount of a controlled substance but mostly made up of the same ingredient found in Tylenol and similar over-the-counter painkillers
His mother, nurse Paula Pitts, said he's doing time essentially for what she can give a patient during a 12-hour shift at the Panama City hospital where she works.

"Lortabs are what we use for lesser pain," she said. "Every time I medicate a patient I think of my son."
Don't think Pitts' sentence is an aberration - the mandatory minimum sentence for his conviction was three years. It's the kind of harsh punishment that has even many conservative Republicans, including former Gov. Jeb Bush, calling for changes in Florida's tough narcotics laws that are helping fill state prisons with nonviolent drug users and costing the state tens of millions of dollars annually.

But passing any changes won't be easy in a year when lawmakers are facing re-election.

"These folks never want to look weak on crime, and it's really not weak on crime," said Sen. Ellyn Bogdanoff, a Fort Lauderdale Republican who earlier this year sponsored unsuccessful legislation to abolish minimum mandatory sentences. "The judges can ultimately put somebody away for the maximum sentence. ... They know who the traffickers are and they know who the addicts are and there's a big difference."

Prosecutors and police are skeptical of such proposals and some are outright hostile.
"It's not the time to diminish the consequences of drug trafficking," Seminole County Sheriff Don Eslinger told a Senate panel. He cited statistics showing about 50 people a week die in Florida from overdosing on prescription drugs.

Jeffrey Pitts' situation is a case study in the severity of Florida's drug laws, which were passed in reaction to a violent "cocaine war" that gripped South Florida in the 1970s, compared to other states.
The most Pitts would have faced for the same amount of Lortabs in Texas, considered somewhere in the middle among the states in severity of drug penalties, would have been a year in jail and $400 fine. As a first-time offender, though, he likely would have been diverted to a drug court and substance abuse treatment instead of jail, said Vikrant Reddy, policy advisory for the Right on Crime advocacy group based in Austin, Texas

"That's a glaring example of why the minimum mandatories are so nefarious," Reddy said. "It's an extraordinary law in its breadth. It transcends left-right politics."

Right on Crime advocates a conservative agenda that includes drug courts and treatment instead of long sentences to cut prison costs and, it maintains, reduce crime. Bush signed the group's statement of principles in September, joining such conservative stalwarts as anti-tax crusader Grover Norquist, former federal drug czar Bill Bennett and former Attorney General Ed Meese.

The organization notes Florida's prison system, which now has about 102,000 inmates, grew more than 11-fold from 1970 through 2009 while the state's population increased just under three times. Florida's incarceration rate is 26% higher than the nation's.

Not all of that growth is due to drugs - Florida also has gotten tougher on other crimes. That includes minimum mandatory sentences ranging from a year in jail for killing or injuring livestock to life in prison in some cases for a third violent felony conviction. Florida also has done away with parole and requires inmates to serve a minimum of 85% of their sentences, which have kept inmates behind bars longer.

If Florida imprisoned people at the same rate it did in 1972-73 the state would have only 23,848 inmates and be spending $446 million a year on prisons instead of $2.4 billion, according to Right on Crime.
A Department of Corrections study shows 26.5% of inmates admitted during the 2009-10 fiscal year were convicted primarily of drug crimes and that almost two-thirds of all prisoners have a substance abuse problem.

Of those inmates in Florida prisons with a primary drug offense on June 30, only 15% had been convicted of possession while 49% were in for selling, manufacturing or distribution and 36% for trafficking. Florida law, though, automatically makes possessing certain amounts of drugs a trafficking offense even if there's no evidence of actual drug dealing.

"It's the prison-industrial complex," said Allison DeFoor, a prison minister and former Monroe County sheriff, judge and prosecutor now serving as vice chairman of the Center for Smart Justice in Tallahassee.
The center was established by Florida TaxWatch, a business-backed state budget research and advocacy organization that also has endorsed Right on Crime. Its mission is to conduct research and promote data-driven policy decisions.

"The system was rigged. It was rigged for more prisons," DeFoor said. "They shut down all the substance abuse treatment. They shut down all the education they could shut down."
Like many drug convicts, family members say Pitts began taking prescription painkillers due to injury or illness. He had been in motorcycle accident and was working at a drug store, said his wife, Janie, also a nurse.
The facts of his crime are in dispute because he never went to trial. Instead he took a plea deal that resulted in his conviction.

Employees at the pharmacy were questioned about missing drugs in 2006, according to his family. Pitts signed a form admitting he had taken at least five and possibly more Lortab pills, his mother said. The store took no action and he worked there several more months before going to law enforcement school.
Pitts was a security guard at a Navy base when arrested four years later. Police found the form in his employment records while investigating a tip from an acquaintance arrested on unrelated drug charges, his wife said.

Prosecutors say they had evidence thousands of pills were missing from the store and that another defendant would have testified he bought those drugs from Pitts.

They didn't need to prove that, though, to get a trafficking conviction.

For oxycodine, the controlled substance in Lortabs, all they had to do was show Pitts possessed pills weighing at least four grams. Each tablet typically contains 7.5 milligrams of oxycodone combined with 500 milligrams of acetaminophen, the over-the-counter drug found in Tylenol.

So even if Pitts took 27 Lortabs, he would have possessed only 0.2 grams of oxycodone - that's 5% of 4 grams. But under Florida law, the entire pill is counted, putting him over the four-gram limit.

That means eight tablets is enough to get a minimum mandatory sentence of 3 years and a $50,000 fine for trafficking in oxycodone, according to Florida Senate staff analysis.
Pitts pleaded guilty to that charge and accepted the maximum 5-year sentence to avoid an even harsher penalty because he had originally faced more serious trafficking and money laundering charges.
He could have gotten a minimum sentence of 15 years and a $100,000 fine if convicted of possessing 28 to 55 tablets or 30 years and $500,000 for 56 or more pills.

The trafficking-by-weight provision also results in stiff minimum mandatory penalties for street drugs such as marijuana and cocaine.

Pitts' mother is active with a national group called Families Against Mandatory Minimums.
"A lot of people don't understand that a trafficker is not just Pablo Escobar bringing in a mountain of cocaine in a submarine down in Miami," said Greg Newburn, the organization's Gainesville-based Florida project director. "It's a drug user who has no intent to distribute, but just happens to possess too much of a given substance."

During this spring's legislative session, Bogdanoff's bill to repeal minimum mandatory sentences cleared committee in the Senate but never got a floor vote. A similar provision died in House committees.
Police and prosecutors consider minimum mandatory sentences an important tool for obtaining convictions without going to trial. That's because they can get plea deals from defendants such as Pitts who are afraid to risk even more extreme minimum-mandatory sentences.

Bogdanoff is considering a different approach for the next legislative session that convenes in January. Instead of abolishing the minimum mandatories, she wants to increase how much weight it takes to get such a sentence and count only controlled substances - not legal drugs that may be mixed in with them - toward that weight.
She also wants to deal with another unique feature of Florida's drug laws that allows people to be convicted without proof they knew they possessed illegal drugs. Orlando U.S. District Judge Mary Scriven in July ruled Florida's drug law was unconstitutional for that reason. The state is appealing.

"We need to put in some sort of language that recognizes that there must be some level of intent," Bogdanoff said. Rather than requiring the state to prove intent, she said it might take the form of a rebuttable presumption that would give defendants a chance to prove they were unaware they had narcotics
DeFoor isn't optimistic about the chances of changing Florida's sentencing scheme in a year when lawmakers will be preoccupied with redistricting.

He's pushing instead for prevention and steps to reduce the chances inmates will commit new crimes when they are released through programs such as substance abuse treatment and faith- and character-based prisons.

"Sentencing reform is an option but it's not necessary," DeFoor said. "All you have to do is cut off your inputs and cut off your recidivism and you're going to starve the beast."
Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Wednesday, October 5, 2011

Another installment of I'll just fix this up myself: worker's compensation and crimianl cases as examples

Increasingly I talk with people who, after they have gone to court, are shocked to learn of negative collateral consequences. 

Most common is a plea to a Driving While License Suspended charge. 
When the person goes to court he or she reports to me (after the fact) “they told me that if I had my license I’d only have to pay a fine.”

Right, but what was not said is that in many circumstances DHSMV will send a notice that based upon the plea the person is now declared a Habitual Traffic Offender and will suffer a 5 year driver’s license suspension.

Apparently, that never comes up when a clerk, bailiff, etc. advise someone to plead guilty.
In another context, sometimes clients will tell me he or she relied on the advice of an insurance adjuster or a friend regarding an on-the-job injury.  Many times, it’s too late to fix the problems.

While it is true that in Florida, generally speaking, Worker’s Compensation is intended to be the “sole remedy” for workplace accidents, that is not always the case.  If you are seriously injured on the job, you should consult a lawyer before deciding how to proceed. 

One reason is that the lawyer may find that additional or concurrent coverage may be applicable.  Sometimes, automobile insurance and worker’s compensation insurance can cover the same accident.  Other times, there may be third party liability.  For instance, if a delivery driver for a bread company is injured by the negligence of a restaurant where the driver delivered the bread, he may have a civil negligence claim against the restaurant in addition to a worker’s compensation claim with his employer.

Also beware there are timelines running on all of these things.  So tread cautiously when navigating through the realm of Worker’s Compensation, criminal cases or any legal issue you may face.

What follows below is an article from The Florida Bar News.  Fortunately we do not have “blue forms” here in the Twentieth Judicial circuit (Lee, Charlotte, Hendry, Glades and Collier counties)

By Gary Blankenship
Senior Editor

The Florida Association of Criminal Defense Lawyers, along with the National Association of Criminal Defense Lawyers and the American Civil Liberties Union, are seeking to join a pending appeal at the Supreme Court challenging the way misdemeanor defendants are informed of their rights in the Fourth Judicial Circuit.

The case was brought by a person who initially pleaded no contest to a misdemeanor DUI and now claims the information he was given about his rights was insufficient and influenced him and others to accept pleas to quickly resolve their cases.

The Supreme Court accepted jurisdiction in June but has yet to set oral argument.

The FACDL, NACDL, and ACLU argued that the Duval County courts, in streamlining the way they handle first appearances, have reduced or eliminated the right to counsel for misdemeanor defendants.

“Defendants are encouraged to resolve their cases during the first appearance in court, without the guiding hand of counsel and without any knowledge of the potentially severe collateral consequences of entering pleas of guilty or no contest,” their brief contends. “. . . . The presence of the prosecutor, who is quick to offer a defendant a plea bargain, coupled with the county court’s suggestion that consultation with defense counsel is unnecessary, creates an uneven playing field that relies on the defendant to assert his right to counsel despite all indications that doing so will be contrary to his interests. The result is ‘assembly line justice’ that may move the cases through quickly, but fails to fulfill the requirements of sections 2 and 16 of article I of the Florida Constitution and Rule 3.111 of the Florida Rules of Criminal Procedure.”

According to the petitioner’s brief, the case came about when Eric Edenfield was arrested for DUI in 2009. A few hours later, he was brought to court with numerous other misdemeanor and felony defendants for first appearance.

Prior to the appearance, all the defendants were given a “blue form” titled “Plea of Guilty or No Contest” and also advised of their rights, including the right to an attorney, and the maximum and minimum penalties for DUI, and other information. The defendants were also shown a video where a judge explained the defendants’ right to counsel, the advantages of being represented by counsel, and the dangers of self-representation.

The video tells the misdemeanor defendants the upcoming hearing is their arraignment, and they must enter a plea, the penalties they face, and the rights they waive if they enter a plea. A discussion of the possibility of release if a defendant pleads not guilty is also discussed.

At the hearing, the judge asked the group if anyone did not understand the rights explained on the video, and no one raised their hand.

The judge then proceeded to handle the individual cases against each defendant. When the judge got to Edenfield, he asked if he wanted an appointed counsel or to represent himself. Edenfield responded he would represent himself and proceeded to plead no contest. He also acknowledged that he had read the “blue form” and understood all of the rights explained.

About a month later, Edenfield filed a petition to withdraw his plea. The judge denied the request after making “it clear that the procedure used for Mr. Edenfield’s and all other first appearance hearings was designed to save time,” according to Edenfield’s brief to the Supreme Court.

A panel of circuit judges turned Edenfield down on appeal, and the First District Court of Appeal found the video, the “blue form,” and the questions asked by the judge met the requirements of Fla. R. Crim. P. 3.111. Edenfield then appealed to the Supreme Court.

The state, represented by the Attorney General’s Office, argued that Edenfield glossed over the protections provided him in his brief to the high court. In particular, it noted the video shown collectively to the defendants carefully explained the right to counsel and that the defendants had the right to represent themselves, and the dangers of self-represention. It also explained the rights they would be giving up with a guilty plea.

The state also argued the “blue form” explained the various rights and the impacts of pleading guilty and waiving the right to counsel and provided that those who sign it vouch that they have “read and fully understand this plea of guilty or no contest . . . .”

When Edenfield sought to withdraw his plea, he “presented no evidence that he was not present in the courtroom when the videotape was played, no evidence that he did not hear or understand the advice given on the videotape, no evidence that he did not read or understand his waiver of counsel form, no evidence that he did not read or understand the ‘blue form,’ no evidence that he did not understand the nature of the proceedings, and no evidence that he was confused or misled in any way in entering his plea.”

A key disagreement between Edenfield and the state is the requirement in Rule 3.111 that the court make “a thorough inquiry” into the defendant’s understanding of the right to counsel and the effects if the defendant waives that right and capacity to “make a knowing and intelligent waiver” of that right.

Edenfield, represented by Jacksonville attorneys David M. Robbins and Susan Z. Cohen, argue that the thorough inquiry standard meant the county judge — separate from the videotape and explanations on the “blue form” — had to make a personal inquiry of Edenfield.

The state, however, says Rule 3.111 does not prescribe any particular form of procedure the court must use to determine that a waiver of counsel is a “knowing and intelligent waiver” or to advise the defendant of the dangers of self-representation.

“Indeed, nowhere in the rule is a one-on-one colloquy between the court and the defendant required,” said Assistant Attorney General Joshua R. Heller.

Edenfield’s lawyers assert, “A trial court must engage in a thorough inquiry into such matters as age, education, mental condition, prior experience with criminal proceedings, or any other inquiries which would assist a court in determining whether a waiver of the right to counsel is knowingly and intelligently entered, and this inquiry must appear in the record of the proceedings. . . . [A] court must engage in some questioning of the defendant’s level of comprehension regarding the waiver of the right to counsel.”

The brief also argued that state courts have consistently ruled in other criminal cases that a defendant may not be permitted to proceed pro se without an inquiry on whether the defendant understands all the implications of that decision.

The amicus filed
by the ACLU and the two criminal defense bars contends that, in an effort to streamline misdemeanor cases, a system has been imposed that encourages defendants to waive their right to counsel and plead no contest or guilty. The amicus noted that the video shown to defendants awaiting first appearance advises those facing felony charges to fill out a financial affidavit if they want an attorney appointed, and that the court will assume they want a lawyer appointed. Affidavits are not provided for misdemeanor defendants, and there is no statement that the court will assume they want a lawyer.

“Following the video, the . . . judges, to varying degrees and seemingly in concert with the state, then take advantage of the uncounseled defendants to obtain as many plea bargains and close as many cases as possible throughout the day.”

Nellie King, FACDL president, said the organization is concerned that constitutional rights are taking a back seat to expediency.

“The Edenfield case exposes a court culture that has transformed arraignment from a defendant’s opportunity to obtain counsel and make the case for release pending investigation, plea negotiations or trial, to a false choice between going home following a guilty plea or obtaining counsel and delaying the case for a month,” she said. “The former is obviously more enticing, so one after another, defendants waive counsel and plead guilty or no contest.

“The concern to our members is that defendants have no idea what rights they have given up until they confront them head-on in their day-to-day lives.

“When the court’s discussion focuses on defendants entering guilty pleas as quickly as possible, and without benefit of the advice of counsel, the process is flawed. Criminal court proceedings should be guided by the tenets of the Constitution, not by budgetary concerns and docket size.”

Arrested for cutting hair?

The Orlando Sentinel reported that armed deputies raided a barbershop on a busy back-to-school weekend.  The barbers were handcuffed in front of customers and arrested.
Their crime?
Criminal Barbering.
Criminal Barbering?  Yes, Florida Statute 476.194 makes it a crime to barber without a license or to hire someone to cut or braid or shampoo your hair without government permission a license.
Here’s the Sentinel article: