The unluckiest man in Quebec

I feel awful for this poor guy, but if the convenience store clerk was telling the truth – that he warned him that his second ticket was for the following week’s draw – I think the courts have ruled correctly on this matter:

The Supreme Court of Canada has dismissed a Quebec man’s claim to a $27 million jackpot because his lottery ticket was printed seven seconds after the cut-off time.

On Thursday, Canada’s top court said it would not hear Joel Ifergan’s lottery case. The SCC dismissed his request for an appeal with costs.

Ifergan purchased two lottery tickets for the May 23, 2008 Super 7 draw at 8:59 p.m., one minute ahead of the weekly draw deadline. His first ticket printed with the May 23 draw date on it, but his second one came out seven seconds after 9:00, with the May 30 draw date printed at the top.

That second ticket had all the winning numbers for the May 23 jackpot, but Loto-Quebec rejected the claim because the ticket said May 30.

Ifergan says he’s entitled to half of the $27 million awarded in the May 23 draw because his tickets were purchased ahead of the deadline, regardless of whether they were printed after it. He blames Loto-Quebec’s 10-second processing delay for denying him his share of the jackpot, which was awarded to another winner.

[…]

Convenience store owner Mehernosh Iranpur says he sold Ifergan the tickets, and Ifergan knew the second ticket was for the next draw.

“I asked him, ‘It’s for next week. Do you want it or not?’” Iranpur said. “He says, ‘No, I’ll keep it.’”

Then again, for many lottery winners, the jackpot turns out to be more of a curse than a blessing.   Maybe Mr. Ifergan is luckier than he thinks.

“Cyber Safety” in Nova Scotia

This province’s new Cyber Safety Act, drafted after the horrible Rehteah Parsons case came to light, officially took effect yesterday.

The law firm of Stewart McKelvey published this brief summary of the new law:

Cyberbullying is defined in the Act as:

any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.

A person who subjects another person to cyberbullying commits the tort and can be liable for general, special, aggravated and punitive damages and be subject to an injunction.

[…]

If the person committing the tort of cyberbullying is under the age of 19, his or her parent(s) or guardian(s) will be jointly and severally liable, unless they can convince the court that they:

a.) Were exercising reasonable supervision over the child at the time the child engaged in the activity that caused the loss or damage; and

b.) Made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.

Factors the court will consider in making this assessment include:

– The age of the child;

– The prior conduct of the child;

– The physical and mental capacity of the child, including any psychological or other medical disorders of the child;

– Whether the child used an electronic device supplied by the parent, for the activity;

– Any conditions imposed by the parent on the use by the child of an electronic device;

– Whether the child was under the direct supervision of the parent at the time when he or she engaged in the activity; and

– Whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant.

My time in Junior High was hellish enough without the internet and camera phones, so I shudder to think what it must be like today for those who don’t fit in.

But I also have little faith in the government’s ability to fundamentally understand, much less police, what happens online.  And legislation hastily drafted in response to a moral outrage inevitably has serious problems.

Freedom of expression is not absolute.  That’s why we have the tort of defamation, and laws against criminal harassment and “hate speech.”  But not everything that might disturb you, or hurt your self-esteem, should be considered “bullying.”  (I’m often accused of taking my political views way too seriously, and there’s no shortage of commentators who can get my back up almost every day.  But does that harm my “emotional well-being,” or do I just need to lighten up?)

And in an age where, in most households, both parents are working, there is only so far a parent can go in supervising their children’s internet usage.  It’s easy to delete your browser history (or turn on “private browsing”), so even the most diligent parent will not know everything that their son or daughter is posting.  And even if they don’t have home internet access at all, the youngster can just go to any public library.

I don’t want children being bullied online (or offline, for that matter), but there are other societal values – especially freedom of expression, and people not being held legally responsible for things they didn’t know about – which should be kept in mind. If the Cyber Safety Act survives Charter scrutiny at all, here’s hoping the courts keep these principles in mind.

Update: Jesse Brown, technology columnist for Maclean’s, savages the new legislation:

…Rape, assault, harassment: these are crimes with established parameters. All of them could also be called “bullying.” They could also be described as “mean,” and I suppose we could enact a law against being mean. But I’d rather have laws against specific crimes, rather than against vast swaths of vaguely defined human behaviour. Ultimately, bullying is in the eye of the bullied. For many, cyberbullying is equal to a negative thing said about them on the Internet. I’ve met restaurant owners who feel they’re being cyberbullied by Chowhound critics.

The problems with anti-cyberbullying laws don’t end there. Once a law establishes some flawed definition, it moves on to enforcement. Here’s how Nova Scotia’s new Cyber Safety Act, which went into effect yesterday, will go about stopping online abuse:

Someone feels that you’re cyberbullying them. They visit or phone the court and request a protection order against you (minors , or some reason, cannot do so, only adults). A judge decides if their claim meets the law’s definition. The definition of cyberbullying, in this particular bill, includes “any electronic communication” that ”ought reasonably be expected” to “humiliate” another person, or harm their “emotional well-being, self-esteem or reputation.”

If this is the standard, I don’t know a person who isn’t a cyberbully.

Whoever wins, we lose

The good news is, Donald Trump or Bill Maher will lose this case. The bad news is, Donald Trump or Bill Maher will win this case:

Donald Trump is filing a lawsuit against Bill Maher for failing to live up to an “unconditional offer” made on NBC’s Tonight Show to donate $5 million to charity if Trump provided a copy of his birth certificate proving that he’s not “spawn of his mother having sex with orangutan.”

We’ll chip in $500 to the charity of Trump’s choice if he actually prevails in court over Maher and collects $5 million.

“Trump would have to prove that Maher’s words and conduct demonstrated, objectively, that he intended to be bound by his statement, and that he was not merely making a joke,” says Dori Ann Hanswirth. “Given the outrageousness of Maher’s statement, the amount of money involved and the fact that his statement was made on a comedy TV show, it seems that Trump has an uphill battle here.”

[…]

perhaps the case that might most demonstrate why Trump is likely to lose is the case ofthe Pepsi Points.

In 1999, John Leonard sued PepsiCo., attempting to get the company to hand over an AV-8 Harrier II jump jet. The advertised “offer” came in the form of a television commercial that showed the big prize for 7 million Pepsi points. Leonard had 15 points and attempted to send Pepsi a certified check for $700,000 — 10 cents a point, per contest rules — to cover the rest.

Pepsi successfully argued that its advertisement was intended to be humorous.

“Plaintiff’s insistence that the commercial appears to be a serious offer requires the Court to explain why the commercial is funny,” wrote a judge. “Explaining why a joke is funny is a daunting task; as the essayist E.B. White has remarked, ‘Humor can be dissected, as a frog can, but the thing dies in the process.’ ”

Ultimately, Leonard was deemed to be a loser.

As the judge wrote: “A reasonable viewer would understand such advertisements as mere puffery, not as statements of fact. … The Court rejects plaintiff’s argument that the commercial was not clearly in jest.”

Courtney Love: client from Hell

This is why we ask for retainers, folks.  (In this case, it should have been at least half a mil.)

Courtney Love is having more ex-lawyer problems. This time, she’s being sued by the attorney who represented her in the first Twitter defamation battle over alleged nonpayment of more than $400,000 in legal fees.

[…]

During this time, there were many battles for Love, says Fink. “A number of these disputes and lawsuits centered on Love’s alleged failure to pay various third parties for services rendered,” says his complaint. “Little did [Fink’s law firm] know that it would subsequently be forced [to] join their ranks.”

Among the matters handled included:

  • A breach of contract lawsuit and subsequent arbitration with Love’s former business manager.
  • A lawsuit stemming from purported nonpayment of $352,000 on an American Express credit card.
  • Arbitration over managerial control over the End of Music publishing catalog of Nirvana songs.
  • A lawsuit with a bank stemming from the End of Music arbitration.
  • A lawsuit over payment for security services.
  • A lawsuit with business partners over Japanese “manga” comic books centered on a Love-like character.
  • A case before the Labor Commissioner over wage claims by her former housekeeper.
  • Two lease disputes at her former residence in Los Angeles and the negotiation of a new residence.
  • Claims with insurers over a robbery and artwork allegedly destroyed by her former housekeeper.
  • Advice to continue touring under the name “Hole” after her band partnership was dissolved.

Fink makes it sound as if Love wasn’t the easiest client to maintain. He says that during the time he represented her, she sent the firm hundreds upon hundreds of text messages, which were “difficult and time-consuming” to interpret. She allegedly refused to meet in person but would telephone at bizarre and late hours of the night, and one time, she supposedly summoned Fink to her hotel room and made him wait in the lobby for hours with no meeting taking place.

There was some gratitude sent Fink’s way in the form of framed Nirvana and Hole gold records, Las Vegas concert tickets and a bouquet of flowers.

But the money allegedly stopped coming to Fink in July 2009. Love already had made payments of more than $82,000, according to the lawsuit, but wouldn’t pay the rest, even though she was racking up months-long stays at hotels in New York and Los Angeles as well as paying personal assistants hundreds of dollars at a time to fetch her coffee.

Fink says he stopped working for Love in October 2009. He now demands $436,029.32, plus interest, in the outstanding balance of legal fees incurred.

Penn State is going to pay

Jerry Sandusky has been convicted, and I hope science comes up with a way to keep him alive for the 400+ years’ incarceration to which he will likely be sentenced.  Now, the civil suits begin:

Now, attention will turn to compensating the victims.

With $4.6 billion in operating revenue reported for the last fiscal year and an endowment topping $1.8 billion, Penn State is a flush civil litigation target for Sandusky’s victims.

At least one unidentified male has already filed a lawsuit against the university for failing to protect him from Sandusky. He is initially seeking more than $50,000 in damages, the standard amount in Pennsylvania courts to trigger a jury trial.

To hold the school liable, an victim would have to show that Penn State – through its employees – owed the boys a duty of care and that they failed to uphold that duty.

Legal experts said they expect more civil suits to be filed soon against Penn State and media reports have suggested that the total number of victims could be closer to 20. Victims of sexual abuse often wait until a criminal proceeding has concluded to initiate civil litigation.

Following Friday’s verdict, Penn State issued a statement inviting victims to participate in discussions toward a resolution of their claims against the university.

“The university plans to invite victims of Mr. Sandusky’s abuse to participate in a program to facilitate the resolution of claims against the university arising out of Mr. Sandusky’s conduct,” the statement said.

“The purpose of the program is simple – the university wants to provide a forum where the university can privately, expeditiously and fairly address the victims’ concerns and compensate them for claims relating to the university.”

Penn State had previously declined to comment for this story.

The situation Penn State faces has drawn comparisons to the sexual abuse allegations that have dogged the Roman Catholic Church and prompted calls for the university to set up a victims’ compensation fund. So far, Penn State has not established such a fund.

[…]

It’s impossible to know what the cost to Penn State ultimately might be. There is no formula for damages in sexual abuse cases and there are no caps on damages. Lawyers who specialize in sex abuse cases say damages can vary widely from case to case, depending on the harm done to the victim.

Last week, a jury in Northern California awarded $7 million in compensatory damages and an additional $21 million in punitive damages to a woman who claimed the Jehovah’s Witnesses allowed one of its members to sexually abuse her when she was a child. Lawyers for the plaintiff say they believe the award is the largest ordered in the United States in a religious child abuse case for a single victim.

Another variable that could determine Penn State’s liability is what portion of blame a jury assigns to it. If a verdict is returned in a civil case brought by one of Sandusky’s victims, a jury may be asked to determine how much of a judgment Penn State should be required to pay.

Michael Rosenberg, writing for SI.com, describes some of the many missed opportunities to stop this predator before he could destroy any more lives:

Victim 1’s wrestling coach said he saw Sandusky and the victim “laying together side to side” in a seemingly inappropriate position in the wrestling room. “They were both startled that I came in,” the coach said, but he evidently didn’t think he’d seen enough to do anything.

McQueary testified that he witnessed Sandusky raping a boy — Victim 2, who has still not been identified — in a shower in the Penn State locker room. That may be the single most indefensible part of Penn State’s actions. Nobody even tried to contact the kid’s parents.

In a heartfelt piece in The Washington Post, former Penn State linebacker LaVar Arrington wrote that he remembered Victim 4 as a child.

“I knew he looked up to me and was a big fan, and I made a point of stopping to talk with him,” Arrington wrote. “I’d ask him the usual questions: ‘How are you?’ ‘How’s school?’ He always seemed mad or kind of distant. I remember distinctly asking him: “Why are you always walking around all mad, like a tough guy?'”

Arrington’s regret is real and his candor is admirable. But surely, dozens of people knew Victim 4 better than Arrington did. They must have seen many more signs than Arrington.

Victim 6 told his mother about an attack, and she told authorities, and this led to Sandusky’s infamous comment: “I wish I could ask for forgiveness … I wish I were dead.” A janitor supposedly saw Sandusky shower with Victim 8.

Victim 9 told his mother that Sandusky was “touchy-feely.” He sometimes said he didn’t want to visit Sandusky, and his mother testified that “I’d just make him go anyways.” His underwear kept disappearing; he said he had accidents and threw them out, and his mother didn’t really buy that, but she convinced herself it must be true.

[…]

We can all sit here and loudly proclaim that we would have done more than McQueary, more than Paterno, or more than Schultz, Spanier and Curley. I hope that is true. But most of us probably won’t ever be in McQueary’s position.

We may, however, be in the same spot as these other folks, hearing a snippet here and a detail there, just enough to make us wonder. I hope when that happens, we do more than just wonder. I hope we ask questions and keep asking them. There was so much gruesome testimony and public talk about the body parts of an aging man and young boys in this trial. But it all could have been stopped years ago by one good set of vocal cords.

If you see something, say something.

The end of football?

It could happen, according to economists Tyer Cowen and Kevin Grier:

By now we’re all familiar with the growing phenomenon of head injuries and cognitive problems among football players, even at the high school level. In 2009, Malcolm Gladwell asked whether football might someday come to an end, a concern seconded recently by Jonah Lehrer.

Before you say that football is far too big to ever disappear, consider the history: If you look at the stocks in the Fortune 500 from 1983, for example, 40 percent of those companies no longer exist. The original version of Napster no longer exists, largely because of lawsuits. No matter how well a business matches economic conditions at one point in time, it’s not a lock to be a leader in the future, and that is true for the NFL too. Sports are not immune to these pressures. In the first half of the 20th century, the three big sports were baseball, boxing, and horse racing, and today only one of those is still a marquee attraction.

The most plausible route to the death of football starts with liability suits.1 Precollegiate football is already sustaining 90,000 or more concussions each year. If ex-players start winning judgments, insurance companies might cease to insure colleges and high schools against football-related lawsuits. Coaches, team physicians, and referees would become increasingly nervous about their financial exposure in our litigious society. If you are coaching a high school football team, or refereeing a game as a volunteer, it is sobering to think that you could be hit with a $2 million lawsuit at any point in time. A lot of people will see it as easier to just stay away. More and more modern parents will keep their kids out of playing football, and there tends to be a “contagion effect” with such decisions; once some parents have second thoughts, many others follow suit. We have seen such domino effects with the risks of smoking or driving without seatbelts, two unsafe practices that were common in the 1960s but are much rarer today. The end result is that the NFL’s feeder system would dry up and advertisers and networks would shy away from associating with the league, owing to adverse publicity and some chance of being named as co-defendants in future lawsuits.

It may not matter that the losses from these lawsuits are much smaller than the total revenue from the sport as a whole. As our broader health care sector indicates (try buying private insurance when you have a history of cancer treatment), insurers don’t like to go where they know they will take a beating. That means just about everyone could be exposed to fear of legal action.

Via Ilya Somin at The Volokh Conspiracy, who responds that the NFL and other football leagues could successfully push for tort-reform laws protecting the sport from legal action.  Maybe, but that wouldn’t solve the insurance problem – not to mention a gradual decline in the number of young people being allowed to play the game.  (Football is my favorite sport, but the more we learn about head trauma, the more nervous I become about my own sons possibly taking part.)

If history is any guide, the NFL will go out of business just as the Cleveland Browns are about to win the Super Bowl.

The man who adopted his girlfriend

Florida multimillionaire John Goodman (no, not that John Goodman) faced the prospect of bankruptcy when he was sued by the parents of a young man he killed in a drunk-driving accident.  He did have a massive trust fund set up for his children, but there was no way he could get access to that money.

Until now…

Enter the shrewd estate planning attorney who recommended that the 48-year-old Goodman adopt his 42-year-old girlfriend, Heather Laruso Hutchins, thus making her a beneficiary of the trust that Wilson’s parents cannot mention or touch. (In this arrangement, Hutchins is the beneficiary to roughly $70 million, which she would presumably share with Goodman, her doting dad-slash-boyfriend.) Elegant. Brilliant. And actually not that uncommon, it turns out.

Believe it or not, there is a growing trend in this country of adopting one’s adult lover or spouse for various reasons: to better guarantee the adoptee’s right to inherit directly from the adoptor; to keep other relatives from having any standing to contest an estate plan; or, as in Goodman’s case, to add a spouse or lover to a class of trust beneficiaries, allowing the “child” to inherit from the “parent.” Courts around the country are struggling to figure out whether these adoptions should be upheld or not.

Clever.  Sleazy and sick, but undeniably clever.

Slate asks the obvious question: wouldn’t the relationship between Goodman and Hutchins be considered incest, now that she is legally his daughter?  It would in some states, but not Florida:

But before you go out and adopt your lover, there is one pretty serious repercussion you should consider: Are you committing incest? An incest conviction can result in serious jail time. And think about it: The adopter is having sexual relations with his or her legal child. Is that not incest?

For as long as anyone can remember, almost all cultures have outlawed at least some form of sexual relations and/or marriage between family members. Written prohibitions can be traced as far back as the Levitical Codes. Incest is a statutory crime that has been around in America since colonial times.

My research indicates that today at least 25 states and territories, representing over 140.8 million people (approximately 46 percent of the total population) in the United States, are subject to laws that include the adopted parent/adult child relationship within the definition of incest. That means a good many adult adoptions solve one legal problem but create an arguably worse one. Fortunately for both Goodman and his daughter/girlfriend, Florida is not one of these states. Otherwise, they might find themselves facing criminal prosecution, as have adopters and adoptees elsewhere.

Insert your own Woody Allen reference here.

(via The Volokh Conspiracy)

Your Facebook photos may be held against you

Courts are still grappling with admitting social media postings into evidence, but there are several reported cases where litigants’ Facebook pictures were deemed admissible:

The first decision rendered in Canada on this subject came from the Superior Court of Justice of Ontario, which had to rule on the admissibility as evidence of photographs published on Facebook.4 The Plaintiff had instituted an action relating to bodily injuries suffered in an automobile accident and alleged that the consequences of her accident were loss of enjoyment of life, a reduction in her activities and that her social life had suffered greatly in view of her pain. Although the Plaintiff’s Facebook profile had not been discussed during the examination for discovery, the defence lawyer had accessed photographs published on the Facebook site of a cousin of the Plaintiff. The photographs showed a person having a lot of fun and who did not appear to be suffering or to be limited in her activities, thus contradicting her claims.

The judge admitted the photographs from the Facebook profile of the third party into evidence. Without the admissibility as evidence of these photographs found on the Facebook site, there would not have been any evidence contradicting the allegations and testimony of the Plaintiff concerning her loss of enjoyment of life. Thus, the impact of the admissibility of the Facebook items was important.

Another key decision was also rendered by the Superior Court of Justice of Ontario in 2007 in the case ofMurphy v. Perger5. This judgment was the first to rule on the admissibility as evidence of photographs found in the private section of a Facebook user’ profile. In this case, the Plaintiff was claiming damages for bodily injuries suffered in an automobile accident, in particular for the suffering and loss of enjoyment of life. In support of her claim, the Plaintiff had filed travel and sports activity photographs taken before the accident in the Court’s file. However, before the trial, the Defendant learned that the Plaintiff had published photographs on her private Facebook profile, which was limited to 366 “friends.”

The Court was of the opinion that the admission of the Plaintiff’s Facebook profile as evidence was possible and that it was not a fishing expedition. Since the photographs were already accessible to 366 persons, the judge was also of the opinion that there was no infringement of the right to privacy and that the Plaintiff could not have significant expectations concerning the protection of her private life.

The admissibility of photographs published on Facebook as evidence has also had rather harmful consequences on the credibility of plaintiffs in other cases.

For example, a Plaintiff6 claimed damages for bodily injuries suffered from two car accidents and claimed that he no longer had a social life. However, during cross-examination, the Defendant’s lawyer asked him about pages from his public Facebook profile, which the lawyer had printed. The Court was of the opinion that the Facebook evidence contradicted the Plaintiff’s claims since they revealed that the Plaintiff had a very active social life, that he attended parties and organized them, went to chalets on weekends, drank alcohol and smoked marijuana and seemed to have a number of good friends with whom he communicated and socialized on a regular basis. Following the cross-examination, the Plaintiff even closed his Facebook profile so that there would be no more incriminating items that could be used as evidence.

I may start advising my clients to stay off Facebook altogether until their cases have been dealt with.

Stuff you can’t sell (or even give away)

We’ve been selling some unused household items on Kijiji lately, so this segment from CBC radio’s Corner Brook, Newfoundland morning show caught my attention.

In particular, forget about selling – or even giving away – items which can no longer be legally sold in Canada, like baby walkers, old car seats and lawn darts.  (Too bad, because I’d love to get my hands on an old set of Jarts like we had when I was young.  I still have most of my body parts, dang it.)