How Many Times Can a Complaint Be Amended?

This post aims to answer a simple question: what is the highest number of amendments to a complaint that has ever been allowed by a court in the United States?

A bit of background first. This post concerns civil litigation, where plaintiffs typically file a complaint setting forth various causes of action against defendants who have allegedly wronged them. These complaints are often amended. Sometimes plaintiffs add or remove parties. Plaintiffs may also add or remove causes of action or factual allegations in support of their causes of action. A defendant may move to dismiss a complaint, and if they succeed, the court may grant the plaintiff leave to file an amended complaint. Granting leave to amend at least once is common--unless a defendant has clearly demonstrated that a plaintiff's case is completely futile, a court will likely give the plaintiff another shot.

While many cases I've litigated have involved amended, second amended, or even fourth amended complaints, I was curious about the maximum number of amendments courts have allowed. A first amended complaint isn't too hard for a plaintiff to get. But when a court is confronted with a complaint that has been drafted and redrafted multiple times, the probability that the court will give a plaintiff yet another chance decreases.

From my exhaustive research (searching for "tenth amended complaint" and increasing the numbers until I could find no further results), it appears that the most amended complaint on record was amended twenty-two times.  The case is Mirarchi v. Boockvar, and it's a recent one--with the original complaint filed on January 12, 2021 in the US District Court for the Eastern District of Pennsylvania (case no. 5:21-CV-00126). A publicly-accessible link to the docket is here.

I've answered the question I set out to investigate, but I dug into the case itself, as I was curious about what would give rise to so many amendments. For those of you brave enough to dive into that nonsense, read on:

Can You Serve Legal Documents Via Pigeon?

It's been a while, but I'm back to answer the important questions. Today's pigeon-themed inquiry is not inspired by any news stories or current events. Instead, it popped into my head and demanded an immediate answer. Those who would like to know the answer, and learn some trivia about pigeons and related laws should read on.

As a bit of background, carrier pigeons (or homing pigeons) are pigeons that have been bred to find their way back to a fixed point even after being transported over long distances. Pigeons may be trained to carry small packages containing messages or other items. Because pigeons can only return to a fixed point, the person sending the message must have a pigeon that will return to the recipient's location. As this New York Times article details, pigeons have been used for sending messages, samples of blood, and other items over long distances, and have been employed in multiple wars to send communications from the field. In the John Wick universe, the Bowery King uses pigeons to send messages and small objects.

Naturally, this prompts the question of whether pigeons may be used to effectuate service of pleadings or documents in litigation. Case law on whether sending a document by pigeon constitutes valid service is limited. From what I could find in a cursory search, no US court has directly addressed a situation where a party has attempted to serve a legal document on someone using a pigeon. A couple courts have considered pigeon-service as a hypothetical scenario, but both appear to disapprove of the practice. 

In Geiling v. Wirt Financial Services, Inc., No. 14-11027; 2014 WL 8473822 (E.D. Mich. Dec. 31. 2014), the plaintiffs took issue with documents that had been produced in discovery that contained the plaintiffs' social security numbers, claiming that the mailing of these documents violated a Michigan state law against transmitting full social security numbers through the mail. The court noted an exception to this rule for documents sent by mail pursuant to legal discovery or process. The plaintiffs argued that this exception should not apply and the court disagreed, noting that the Michigan Court Rules envisioned that parties would produce documents in discovery through first-class mail. The court further suggested that "parties sending documents by untrustworthy means, carrier pigeon for example, could be faulted for operating outside normal discovery bounds," but not parties using standard methods to mail documents. (emphasis added). This suggests that the court would view service by carrier pigeon as a method of service outside of normal discovery practices, but a direct ruling on the issue must wait for another day.

In Seibold v. Commissioner of Dept. of Motor Vehicles, No. HHBCV136019840S; 2014 WL 565905 (Ct. Sup. Ct., Jan. 9, 2014), the court addressed whether a party had properly served an appeal by fax on the Office of the Attorney General, even though the rules required service by certified mail or personal delivery. The party claimed that because the Attorney General had actual notice of the appeal and had not been prejudiced by the failure to make proper service, her case should not be dismissed. The court rejected the plaintiff's argument, noting that at "its logical extreme" the argument would allow "service of the appeal on the agency by any means, including by a carrier pigeon, as long as the agency actually receives the appeal and is not prejudiced." (emphasis added). This, the court concluded, was not supported by statute or case law.

In summary, while courts have not directly addressed a situation where a party has attempted service using a pigeon, the disapproval of the method expressed by the few courts that have contemplated such a scenario means that it is probably is not advisable to do so.

Practically, service by pigeon is unlikely to catch on. The most apparent barrier to wide usage of homing pigeons is the fact that the person sending a document via pigeon must already have a pigeon in their possession that will return to the recipient. This suggests that a network of homing pigeons trained to deliver documents to law firms and courts must be supported by a secondary network of delivery personnel who take the pigeons from the recipients to the senders. Pigeons may be seen as redundant if a system for their physical delivery is already in place.

Another potential criticism of the practice is that even the smallest filing or item of correspondence is too large to be carried by a pigeon. The answer to this, however, is that these documents could be loaded onto tiny flash drives that could, in turn, be deposited into a pack that the pigeon can carry.

States considering permitting service via pigeon may be encouraged to learn that there are already legal barriers in place to prohibit interference with homing pigeons. In Pennsylvania, for instance, it is a summary offense to shoot, maim, or kill a homing pigeon. Similar restrictions exist in Michigan, Virginia, and Wisconsin. Laws like these may assuage concerns that interlopers will interfere with pigeons used for legal service.

North Dakota's Maxims of Jurisprudence

A while back, I blogged about California's and Montana's maxims of jurisprudence. These are collections of statutes, or subsections of statutes, that set forth various maxims, canons of construction, or presumptions to aid in the interpretation and application of the law. Typically, the text accompanying the maxims notes that they are intended to aid in the just application of laws, and do not qualify any existing laws.

As a result of another weekend spent inside, I learned that North Dakota also has a statute setting forth a similar list of maxims. North Dakota Century Code § 31-11-05 sets forth North Dakota's maxims of jurisprudence:

The maxims of jurisprudence set forth in this section are not intended to qualify any of the provisions of the laws of this state, but to aid in their just application: 

1. When the reason of a rule ceases so should the rule itself. 

2. When the reason is the same the rule should be the same. 

3. A person must not change that person's purpose to the injury of another. 

4. Anyone may waive the advantage of a law intended solely for that person's benefit, but a law established for a public reason cannot be contravened by a private agreement. 

5. One must so use one's own rights as not to infringe upon the rights of another. 

6. One who consents to an act is not wronged by it. 

7. Acquiescence in error takes away the right of objecting to it. 

8. A person cannot take advantage of that person's own wrong. 

9. A person who fraudulently has dispossessed himself or herself of a thing may be treated as if the person still had possession. 

10. A person who can and does not forbid that which is done on that person's behalf is deemed to have bidden it. 

11. No one should suffer by the act of another. 

12. One who takes the benefit must bear the burden. 

13. One who grants a thing is presumed to grant also whatever is essential to its use. 

14. For every wrong there is a remedy. 

15. Between those who are equally in the right or equally in the wrong the law does not interpose. 

16. Between rights otherwise equal the earliest is preferred. 

17. No person is responsible for that which no person can control. 

18. The law helps the vigilant before those who sleep on their rights. 

19. The law respects form less than substance. 

20. That which ought to have been done is to be regarded as done in favor of one to whom and against one from whom performance is due. 

21. That which does not appear to exist is to be regarded as if it did not exist. 

22. The law never requires impossibilities. 

23. The law neither does nor requires idle acts. 

24. The law disregards trifles. 

25. Particular expressions qualify those which are general. 

26. Contemporaneous exposition is in general the best. 

27. The greater contains the less. 

28. Superfluity does not vitiate. 

29. That is certain which can be made certain. 

30. Time does not confirm a void act. 

31. The incident follows the principal, not the principal the incident. 

32. An interpretation which gives effect is preferred to one which makes void. 

33. Interpretation must be reasonable. 

34. When one of two innocent persons must suffer by the act of a third, the one by whose negligence it happened must be the sufferer.

North Dakota also has two other statutes (both accessible at the link above) which set forth conclusive and disputable presumptions. Section 31-11-03 is the list of forty disputable presumptions which contains several familiar concepts such as: "That a person is innocent of a crime or wrong" (subsection (1)); "That higher evidence would be adverse if inferior is produced" (subsection (6)); and "That a printed and published book purporting to contain reports of cases adjudged in the tribunals of the tate or county where the book is published contains correct reports of such cases. (subsection (34)).  The list also contains some presumptions that the familiar reader will recognize from other states' lists of maxims of jurisprudence, such as: "That Private transactions have been fair and regular" (subsection (19)); "That things have happened according to the ordinary course of nature and the ordinary habits of life" (subsection (28)); That a thing once found to exist continues as long as is usual with things of that nature" (subsection (31)); and "That the law has been obeyed." (subsection 32)).

These maxims are virtually identical to most of California's maxims of jurisprudence, and are even listed in the same order.  There are some minor changes in the wording, primarily changes that make North Dakota's list gender neutral.  North Dakota's list overlaps with California Civil Code sections 3509 through 3543.  Missing from North Dakota's list are the following California sections:

3545. Private transactions are fair and regular.

3546. Things happen according to the ordinary course of nature and the ordinary habits of life.

3547. A thing continues to exist as long as is usual with things of that nature.

3548. The law has been obeyed.

As noted above, all of these missing maxims are included in North Dakota's list of forty disputable presumptions.

The statutes appear to be cited with relative frequency--often in cases involving equitable claims or defenses, such as equitable estoppel or the defense of unclean hands.  While a body of case law exists in support of these defenses, the statutes appear to provide a quick, go-to resource for a simple statement of the rule being applied. But as noted in the statute itself, the maxims have little independent force beyond that which is already set forth in statute or precedent.

Kansas Man Demands Trial By Combat in Iowa Court

From the conversations, texts, emails, and messages of dozens of friends, coworkers, and former classmates (all of whom are dead-on when it comes to pinpointing my legal interests), I learned about this story of a Kansas man who demanded trial by combat in an Iowa divorce case.  The story was first reported a few days ago, but I've been busy.

Those who know me, who have read this blog, or who have read papers that I have co-authored should not be surprised that this case is right up my alley. 

The Des Moines register reports:

A Kansas man has asked an Iowa court to grant his motion for trial by combat so he can meet his ex-wife and her attorney "on the field of battle where (he) will rend their souls from their corporal bodies." 

David Ostrom, 40, of Paola, Kansas, claims in court documents that his ex-wife, Bridgette Ostrom, 38, of Harlan, has "destroyed (him) legally." 

He asked the Iowa District Court in Shelby County to give him 12 weeks "lead time" in order to source or forge katana and wakizashi swords, as first reported by the Carroll Times Herald. 

"To this day, trial by combat has never been explicitly banned or restricted as a right in these United States," Ostrom argues in court records, adding that it was used "as recently as 1818 in British Court."

When reached by phone Monday, Ostrom told the Des Moines Register that he got the idea after learning about a 2016 case in which New York Supreme Court Justice Philip Minardo acknowledged that duels had not been abolished.

The story has been widely reported, but most of the other articles rehash the same points. Kevin Underhill at Lowering the Bar provides good legal coverage here, including a discussion of the relevant case law that Iowa's court would likely cite to reject Ostrom's request.

Here's a report on the story from KCTV5 News. It includes a video of an interview with Ostrom, who claims that "I'm not interested in physically causing harm to anyone." This is something of a shift in tone from the goal of rending souls from "corporal bodies" expressed in his moving papers.

(Ostrom later admitted that his demand contained a spelling error and that he had intended to write "corporeal bodies.")

If you want a copy of Ostrom's papers, or the response filed by his ex-wife's attorney, you're out of luck because none of the news outlets that are reporting and re-reporting this story have deigned them worthy to include for download in their stories. As far as I can tell, they cannot be obtained online. I'm hesitant to ask my firm's messenger service to send a runner to Shelby County, Iowa to obtain a copy of the papers, but I have not ruled the option out.

But back to the case. Unsurprisingly, Ostrom never had much of a chance of success in his motion. Indeed, the judge refused to consider his filing, or the response filed by his ex-wife's attorney in light of both parties' failure to abide by procedural requirements. Just because a form of dispute resolution is not specifically banned does not mean that a party can simply demand it once the case is being litigated in court.

Of course, if two parties are negotiating a dispute resolution provision in a private contract, this might be different. An arbitration by combat provision has been included in at least one contract of which I am aware. This 2016 New York Times article describes the contract behind the ownership of Zuffa, the promotion company that operates UFC:

The two brothers have equal stakes in Zuffa. And while there is no hint of tension between them, a lawyer insisted that their contract needed a dispute-resolution mechanism in case they ever differed over corporate strategy. Lorenzo had an idea: They would fight.

“A sport jujitsu match, three five-minute rounds,” he said. “Dana would be the referee. Whoever won got to vote the other guy’s shares.”

It has never come close to blows, the brothers say. But privately, each says that if combat were required, the other would win. “Frank’s getting ornery in his old age,” Lorenzo said. “Just kidding.”

To my knowledge, no court has litigated whether such a provision would be enforceable.

In the past, Ostrom would have faced the prospect of being barred from public office for engaging in trial by combat, as courts would likely view his proposed sword-fighting approach as a duel. But no longer, as Iowa in 1992 repealed Iowa's constitutional provision that prohibited those who had participated in duels from being eligible to hold public office. Good for them.

The court noted that it would take no action "[u]ntil the proper procedural steps to initiate a court proceeding are followed." For now, it appears that Ostrom's quest to bring swords to the courtroom has failed.

In any event, trial by combat has had yet another moment in the sun. The concept will likely now fade away for another several years until the next go-getter tries, and fails, to resolve a dispute with a legally sanctioned fight to the death. This is the way.

Defendant Victorious After 90-Day Jaywalking Trial

The South China Morning Post reports on the conclusion of a 90-day (!) trial for jaywalking in Hong Kong:

A woman charged with jaywalking has been acquitted at the end of a 21-month-long trial which was slammed by a city judge for bringing Hong Kong’s courts into disrepute.

Kamala Thapa denied one count of negligently endangering her own safety, after she was hit by a taxi while crossing Tai Tam Road outside the American Club in Stanley on April 25, 2016.

Her trial at Eastern Court over a traffic summons, which would have cost her a fine of no more than HK$500 (US$64) if convicted, had sparked three judicial reviews, one civil claim and what appeared to be the city’s first arrest warrant issued to a lawyer by a court.

The reason for the disproportionate length of the trial appears to be the result of "extravagant" proceedings in the jaywalking case before the magistrate, along with multiple instances where these proceedings were reviewed by higher-level judges. Here is an example of one some of those instances:

Her trial was punctuated by a dramatic episode. Presiding deputy special magistrate Ho Lai-ming – in what appeared to be a first for the city’s courts – issued an arrest warrant for Thapa’s lawyer Kelvin Leung after comments he made which she deemed offensive. Leung denied the accusations. 

After subsequently changing her barrister, Thapa’s trial hit another wall when a defence witness she had called decided to withdraw halfway through giving evidence. 

But Ho ordered the defence to fulfil its duty by calling the witness back, a decision that prompted Thapa and her lawyers, including Leung, to lodge a judicial challenge.

The South China Morning Post reports that the arrest warrant for Leung has not yet been executed.

After the protracted trial, Thapa prevailed. Both Thapa and the prosecutor unsurprisingly claim that they have incurred substantial fees, and the South China Morning Post reports that Thapa has filed a civil claim against the magistrate judge "for damages in excess of HK$1.7 million [over US$216,000] for loss of liberty and injured feelings."

The Tort of "Outrage"

CNN reports that, rather than prudently disappear, failed Senate candidate and former Constitution-ignoring Alabama Chief Justice Roy Moore has filed a lawsuit:

Failed Alabama Senate candidate Roy Moore says the women who accused him of sexual assault were part of a political conspiracy, according to a lawsuit filed Monday. 

The suit was jointly filed with his wife, Kayla, about an hour before the two held a news conference. It was Moore's first public appearance since election night in December, when Moore, a Republican, was upset by Democrat Doug Jones.

I'm pleasantly surprised to see that CNN links to a copy of the Complaint.

I'm not going to delve into the merits of the litigation, although Moore's theory -- that it's curious that allegations against him were not raised earlier -- strikes me as flimsy. I'm sure the merits of his lawsuit have been and will be analyzed by others in far greater depth. Instead, I want to focus on Moore's sixth cause of action for "Outrage." The pertinent allegation under that cause of action states:

66. At the aforesaid times and places, Defendants—with the intent to cause severe damage to the Plaintiffs’ reputation and standing in the community—intentionally or recklessly engaged in extreme and outrageous conduct that caused emotional distress so severe that no reasonable person could be expected to endure it. Fully aware of the probable emotional impact their actions would have on the Plaintiffs, the Defendants nonetheless recklessly and willfully disregarded the consequences of their actions.

I've never heard of a cause of action for outrage, but after a bit of research it appears that Alabama courts recognize this cause of action as an alternate name for the cause of action for intentional infliction of emotional distress. The Alabama Supreme Court provides some background on this in Thomas v. BSE Indus. Contractors, Inc.:

This Court first recognized the tort of outrage, or intentional infliction of emotional distress, in American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1981). In Inmon, the Court held that to present a jury question the plaintiff must present sufficient evidence that the defendant's conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it. The Court defined the second element of the tort of outrage as follows: "By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as 1044*1044 atrocious and utterly intolerable in a civilized society." Inmon, 394 So.2d at 365 (quoting Restatement (Second) of Torts, § 46 cmt. d, at 72 (1948)).

This makes sense when you compare Moore's cause of action for outrage with the allegation underlying his cause of action for intentional infliction of emotional distress:

64. At the aforesaid times and places, and for some time prior Defendants, with the intent to cause damage to the Plaintiffs, did intentionally utter, produce, and disseminate spoken and written communications to harm the reputation and character of Roy Moore. The aforesaid outrageous and shocking acts were done with the intent of causing emotional distress and injury to Roy Moore and Kayla Moore and were a proximate cause of the Plaintiffs’ injuries as described above, herein.

Why does Moore allege two causes of action that are essentially the same? One possibility is that, until recently, Alabama courts appear to have taken a notably narrow approach to the tort of outrage.  A relatively recent opinion by the Alabama Supreme Court in Wilson v. University of Alabama Health Services Foundation held that it was error to apply too narrow of an approach to the tort:

This Court has previously recognized the tort of outrage in three circumstances:

"The tort of outrage is an extremely limited cause of action. It is so limited that this Court has recognized it in regard to only three kinds of conduct: (1) wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So. 2d 901 (Ala. 1987); (2) barbaric methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala. 1983); and (3) egregious sexual harassment, Busby v. Truswal Sys. Corp., 551 So. 2d 322 (Ala. 1989). See also Michael L. Roberts and Gregory S. Cusimano, Alabama Tort Law, § 23.0 (2d ed. 1996)."

Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000). However, as Wilson notes in her brief, this Court has not held that the tort of outrage can exist in only those three circumstances: 

"That is not to say, however, that the tort of outrage is viable in only the three circumstances noted in Potts. Recently, this Court affirmed a judgment on a tort-of-outrage claim asserted against a family physician who, when asked by a teenage boy's mother to counsel the boy concerning his stress over his parents' divorce, instead began exchanging addictive prescription drugs for homosexual sex for a number of years, resulting in the boy's drug addiction. See O'Rear v. B.H., 69 So. 3d 106 (Ala. 2011). It is clear, however, that the tort of outrage is viable only when the conduct is `"so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society."' Horne v. TGM Assocs., L.P., 56 So. 3d 615, 631 (Ala. 2010) (quoting [American Road Service Co. v.] Inmon, 394 So. 2d [361, 365 (Ala. 1980)])." 

Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011) (emphasis added).

The Court went on to overturn the trial court's holding that the cause of action for outrage is only limited to "three situations." With restrictive case law like Potts on the book, however, and with the Wilson decision only being published in December 2017, it's not surprising that a plaintiff who might not be aware of the recent Wilson decision might also want to assert a cause of action for intentional infliction of emotional distress to get around the restrictive-sounding precedent.

Additionally, the extra cause of action makes the Complaint look all the more impressive without much risk. After all, the Alabama Supreme Court in Birmingham Railway & Electric Co. v. Baylor (a case that is very old and which does not appear in full on Google Scholar and which I am not going to devote resources or time towards cite-checking),  notes that "mere redundancy will not vitiate a complaint." (at p. 494).

Moore likely won't lose anything by adding in what is essentially a restatement of his cause of action for intentional infliction of emotional distress, and will gain what appears to be an additional cause of action -- a cause of action for "Outrage," no less!

Plaintiff Asks Court to Declare That Defendant is a "BULLY"

From this tweet by Keith Lee, I learned of this fascinating Complaint filed on Sunday in the New York County Supreme Court. Lee takes note of the first two paragraphs of the Complaint, which are admittedly colorful:

1. The date, September 7, 2017, is a date that shall live in infamy in Staten Island history. On September 7, 2017, the circus came to town. The Defendant, DENNIS W. QUIRK (“QUIRK”) in his individual and personal capacity exploded on the courthouse steps as part rabid-dog and part carnival-barker, in a dangerous, intentional, outrageous, and malicious manner. QUIRK caused serious, substantial, unconscionable, intentional, and malicious harm to the Plaintiff, MICHAEL J. PULIZOTTO (“PULIZOTTO”), in the center of the public square – the steps of the Richmond County Courthouse – all to advance QUIRK’s own personal and political agenda.

2. The date, September 7, 2017, shall always and hereafter be known as “THE DAY OF THE RAT” in Richmond County.

The Complaint goes on to allege that Quirk set up a large inflatable rat outside the parking lot of the courthouse in an effort to ridicule Pulizotto, among many other things. Notably, in Paragraph 2, Pulizotto does not only use "THE DAY OF THE RAT" as shorthand for future reference in the document (as he does with "QUIRK" and "PULIZOTTO"), but dramatically states that September 7, 2017 shall be known as "THE DAY OF THE RAT" in Richmond County. It is unlikely that the Court has the authority to make such a declaration (as such a declaration would likely be within the province of county authorities), but Pulizotto does not seek the labeling of that date in his prayer for relief.

While I found much of the Complaint entertaining, due to its length and excessive hyperbole, I was not able to read the entire thing. But as I skimmed through, these two paragraphs caused me to chuckle:

56. Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

57. QUIRK is a BULLY.

As it turns out, these two paragraphs end up being relevant to Pulizotto's causes of action, specifically, his cause of action for declaratory judgment. For those who need to brush up on their remedies, a declaratory judgment is: "A binding judgment from a court defining the legal relationship between parties and their rights in the matter before the court" which does not provide for enforcement.

What sort of declaratory judgment does Pulizotto seek?

AS AND FOR A SIXTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF(DECLARATORY JUDGMENT)

181. Plaintiff, PULIZOTTO, repeats, realleges, and restates all paragraphs above as if fully set forth herein and further states as follows.

182. As specifically plead above, a bona fide, justiciable, and substantial controversy exists as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

183. The Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic] have adverse legal interests.

184. A judgment would serve a useful purpose in clarifying or settling the legal issues as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

185. There is a clear and ascertainable standard for the Court to rule on this issue, to wit: Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

186. A judgment would finalize the controversy and offer relief from uncertainty as to whether the Defendant, DENNIS W. QUIRK is a “BULLY”.

And in addition to the $25 million in compensatory and punitive damages that Pulizotto seeks in his Prayer for Relief, he also asks for:

G. a declaration that: “DENNIS W. QUIRK IS A BULLY.”;

 

Declaratory judgments may be used to stop litigation "bullies" from sending repetitive demand letters or making meritless threats of litigation, but this is the first instance of which I am aware in which a party has sought to use the remedy to give its name calling the force of law. While Quirk likely does not want to be called a "Bully," the "BULLY" label that Pulizotto seeks is of no legal consequence and bears no apparent relevance to the parties' legal relationship or rights, the Court will almost certainly refuse to grant Pulizotto the requested relief on this cause of action.

 

Pulizotto may well have strong, negative feelings toward Quirk, but incorporating such a petty and futile cause of action into his Complaint will likely do nothing but harm his credibility before the Court in future proceedings. This Complaint and its dramatic language therefore join the vast ranks of pleadings that are amusing, yet awful examples of how litigants should act.

[UPDATE, 10/18/2017]

Another no-no I just noticed in the drafting of the Complaint is that the Plaintiff repeatedly misspells his own name. I have updated the above quotes with [sic]'s so that readers do not accuse me of shoddy copying and pasting.

Recent Equifax Breach Prompts Criticism of Arbitration Provisions (Updated)

The credit monitoring firm, Equifax, recently suffered a massive data breach, resulting in the exposure of the personal information of approximately 143 million Americans. This personal information includes names, Social Security numbers, birth dates, and addresses.

Equifax, realizing how terrible this is, has tried to respond by offering free credit report monitoring services to its customers for a year. But this isn't going over very well, as it appears that Equifax may be attempting to get people to waive their class-action rights and agree to binding arbitration provisions by signing up for the credit-monitoring service. From the Wall Street Journal:

The fine print in the Equifax agreement concerning the monitoring services said that consumers who take part waive the ability to bring or participate in a class-action suit, a class arbitration or other similar legal actions. That seemed to suggest that consumers would be bound to an individual arbitration process with the company, which some argue is a more difficult place for consumer to get larger rewards for their problems.

The Washington Post has similar reporting here, and a report from MarketWatch is here.

The Terms of Service that contain the "fine print" can be found here. Here is the relevant provision:

Binding Arbitration. Any Claim (as defined below) raised by either You or Equifax against the other shall be subject to mandatory, binding arbitration. As used in this arbitration provision, the term "Claim" or "Claims" means any claim, dispute, or controversy between You and Us relating in any way to Your relationship with Equifax, including but not limited to any Claim arising from or relating to this Agreement, the Products or this Site, or any information You receive from Us, whether based on contract, statute, common law, regulation, ordinance, tort, or any other legal or equitable theory, regardless of what remedy is sought. This arbitration obligation extends to claims You may assert against Equifax’s parents, subsidiaries, affiliates, successors, assigns, employees, and agents. The term "Claim" shall have the broadest possible construction, except that it does not include any claim, dispute or controversy in which You contend that EIS violated the FCRA. Any claim, dispute, or controversy in which You contend that EIS violated the FCRA is not subject to this provision and shall not be resolved by arbitration.

The key in this paragraph is the definition of "Claim," which is sufficiently broad to cover damages arising from the data breach (as these damages presumably arise from one's relationship with Equifax).

Equifax may claim that the Terms of Service linked to above do not apply to customers who enroll in the "TrustedID Premier" program that Equifax is offering after the breach. That program is linked to from this page (with a URL of www.equifaxsecurity2017.com). The Terms of Service associated with the TrustedID program are here, and while they also contain a pretty stringent-sounding arbitration provision, it does not contain the same, extremely broad "Claim" definition. [NOTE: See update below].

But the Terms of Service that I initially quoted should still apply to those who enroll in the TrustedID service because those Terms are extremely broad in their potential application:

THIS PRODUCT AGREEMENT AND TERMS OF USE ("AGREEMENT") CONTAINS THE TERMS AND CONDITIONS UPON WHICH YOU MAY PURCHASE AND USE OUR PRODUCTS THROUGH THE WWW.EQUIFAX.COM, WWW.IDENTITYPROTECTION.COM AND WWW.IDPROTECTION.COM WEBSITES AND ALL OTHER WEBSITES OWNED AND OPERATED BY EQUIFAX AND ITS AFFILIATES ("SITE"). YOU MUST ACCEPT THE TERMS OF THIS AGREEMENT, INCLUDING THE ARBITRATION AGREEMENT CONTAINED IN SECTION 4 BELOW, BEFORE YOU WILL BE PERMITTED TO REGISTER FOR AND PURCHASE ANY PRODUCT FROM THIS SITE. BY REGISTERING ON THIS SITE AND SUBMITTING YOUR ORDER, YOU ARE ACKNOWLEDGING ELECTRONIC RECEIPT OF, AND YOUR AGREEMENT TO BE BOUND BY, THIS AGREEMENT. YOU ALSO AGREE TO BE BOUND BY THIS AGREEMENT BY USING OR PAYING FOR OUR PRODUCTS OR TAKING OTHER ACTIONS THAT INDICATE ACCEPTANCE OF THIS AGREEMENT.

Sorry for all the capital letters. I strongly suspect that attorneys who draft terms of service agreements are secretly angry people, and sometimes the rage manifests itself in the work product.

In case you cannot read the paragraph above, it applies the terms in the Agreement to all websites owned and operated by Equifax and its Affiliates.

In response to critics pointing out how Equifax appears to be systematically herding potential Plaintiffs' into agreeing to binding arbitration, Equifax has set up this "Progress Update" page where it tries to put out the new fire that it has caused:

2). NO WAIVER OF RIGHTS FOR THIS CYBER SECURITY INCIDENT

In response to consumer inquiries, we have made it clear that the arbitration clause and class action waiver included in the Equifax and TrustedID Premier terms of use does not apply to this cybersecurity incident.

Have they though?

Let's go back to the Terms of Service -- specifically, to the relevant portion of the integration clause near the end:

ENTIRE AGREEMENT BETWEEN US. This Agreement constitutes the entire agreement between You and Us regarding the Products and information contained on or acquired through this Site or provided by Us, including through other linked third party Internet sites.

This appears to exclude Equifax's damage control statements, which appear on a separate page and are not included in the terms of the Agreement. All Equifax would need to do would be to point to this clause and argue that its statements elsewhere about the arbitration agreement not applying are of no legal relevance.

In short, commentators who are criticizing Equifax's response seem to have a pretty good point. Signing up for Equifax's free (for a year) credit report monitoring service may result in a waiver of rights that the average consumer would not expect, and likely would not agree to if it were put into plain English.

All of this may end up being moot, however, as signing up for the credit monitoring service requires customers to give Equifax the last six digits of their Social Security numbers. Perhaps those willing to entrust Equifax with this information following a breach of this magnitude are willing to agree to just about anything, including a waiver of the right to trial and right to join in a class action.

[UPDATE: 9/11/2017]

I have revised the post above to add the link to the TrustedID Program Terms of Use, which I had not linked to in the original post. Additionally, at the time I wrote the initial post, the TrustedID Program's Terms of Use included an arbitration provision, albeit one that was less all-encompassing than the provision in Equifax's general Terms of Service Agreement. The TrustedID Program's Terms of Use have now been updated and no arbitration provision appears in these terms at all. The TrustedID Agreement contains integration clause near the end of the Agreement, which states, in pertinent part:

ENTIRE AGREEMENT BETWEEN US. This Agreement constitutes the entire agreement between You and Us regarding the Products and information contained on or acquired through this website or provided by Us, including through other linked third party Internet sites.

This may have the effect of fulfilling Equifax's promise that their arbitration provisions do not apply to the recent breach. Users affected by the breach could visit the webpage for the TrustedID Program without ever accessing Equifax's general website (say, by linking to the TrustedID page from the link in the post above). And while the broad terms of Equifax's general Terms of Use still apply, Equifax would probably have a harder time arguing in court that customers are bound to the general Terms of Use if those customers could have enrolled in the TrustedID Program without ever visiting (or being prompted to visit) a page containing or linking to Equifax's general Terms of Use.

In short, users looking to enroll in the TrustedID Program now have a much stronger argument that they have not agreed to arbitration and may still pursue claims in court, either as individuals or through a class action. Of course, I just checked the TrustedID page and it is still seeking the last six digits of my Social Security Number ... so users still must decide whether entrusting Equifax with this information following the breach is a prudent action to take.

Wells Fargo Turns to Arbitration Clauses to Neutralize False Account Lawsuits

The New York Times reports that Wells Fargo has been using arbitration clauses in its contracts with customers to defeat claims that the bank set up false accounts for customers:

Ms. Zeleny, a lawyer who lives outside Salt Lake City and opened a Wells Fargo account when she started a new law practice, said it would be impossible for her to agree to arbitrate her dispute over an account that she had never signed up for in the first place.

The bank’s counterargument: The arbitration clauses included in the legitimate contracts customers signed to open bank accounts also cover disputes related to the false ones set up in their names.

Some judges have agreed with this argument, but some lawmakers and others consider it outrageous.

“Wells Fargo’s customers never intended to sign away their right to fight back against fraud and deceit,” said Senator Sherrod Brown, an Ohio Democrat, who introduced a bill last week that would prevent Wells from forcing arbitration in the sham account cases.

Yet even as the bank reels in the court of public opinion, Wells Fargo has been winning its legal battles to kill off lawsuits. Judges have ruled that Wells Fargo customers must go to arbitration over the fraudulent accounts.

In dismissing one large case seeking class-action status in California, a federal judge ruled last year that it was not “wholly groundless” that customers could be forced to arbitrate over accounts they had never agreed to. That case is now being settled, according to legal filings.

An earlier report, also in the New York Times, details Wells Fargo's efforts to compel arbitration in a Federal District Court in Utah:

Wells Fargo has asked a Federal District Court to order dozens of customers who are suing the bank over the opening of unauthorized accounts to resolve their disputes in private arbitrations instead of court, according to legal documents. 

The motion, filed in the United States District Court in Utah on Wednesday, is in response to the first-class action lawsuit filed against Wells since it agreed to pay $185 million in penalties and $5 million to customers for opening up to 2 million deposit and credit-card accounts in their names without their permission. 

. . .

Mandatory arbitration rules inserted into account-opening agreements prohibit customers from joining class actions or suing Wells Fargo. Instead, the agreements require individual, closed-door arbitration. 

Mandating arbitration when signing up for financial products has become standard practice after a Supreme Court decision in 2011 validated the practice. But customer advocates say it improperly denies customers the legal protections of court proceedings, such as the right to appeal, and helps to conceal corporate misconduct from the public and regulators because the related documents and hearings are not made public.

Folks in the media seem to have an unfortunate aversion to linking to actual documents, but I did some searching and you can find Wells Fargo's Motion to Compel Arbitration in the Utah case here. You're welcome, dear reader.

Wells Fargo's position in this motion is that the Plaintiffs admit that they set up at least one account with Wells Fargo voluntarily. In doing so, they voluntarily entered into agreements that their disputes with Wells Fargo would be settled through binding arbitration.

Here is one example of such a set of facts that Wells Fargo sets forth in its motion:

On July 9, 2010, Sbeen Ajmal, a California resident and at the time a Wells Fargo employee, opened a team member checking account (x5671) and a consumer savings account (x6215). Ajmal signed the Consumer Account Application for the two accounts as the primary joint owner on July 9, 2010; Mohammad Nazir was listed as a secondary joint owner. (Declaration of Karen Nelson (“Nelson Decl.”) ¶ 26, Ex. 3-A at 3.) In signing this application, Ajmal confirmed the following: “I have received a copy of the applicable account agreement and privacy brochure and agree to be bound by them… . I also agree to the terms of the dispute resolution program described in the account agreement.” (Id.; see also id. ¶ 26 & Ex. 1-G (March 2010 Consumer Account Agreement).) Ajmal further agreed that “disputes will be decided before one or more neutral persons in an arbitration proceeding and not by a jury trial or a trial before a judge.” (Id. ¶ 26, Ex. 3-A at 3.) Ajmal actively used her team member checking account (x5671), and had her paychecks directly deposited into the account. (Id. ¶ 27, Ex. 3-B.)

Another example references a customer who received a welcome letter stating that if his account remained open past a certain date, it would be governed by terms in the "Consumer Disclosure brochure." Among the terms in the brochure was an agreement that any "dispute" arising between the customer and Wells Fargo would be settled through arbitration. As for the definition of "dispute," the contract provided this definition:

[A]ny unresolved disagreement between you and the Bank that relates in any way to account[**] [emphasis added] or services described in this brochure [including] any claim that arises out of or is related to these accounts, services or related agreements. It includes claims based on broken promises or contracts, torts (injuries caused by negligent or intentional conduct), or other wrongful actions. It also includes statutory, common law and equitable claims. A dispute also includes any disagreement about the meaning of this Arbitration Agreement, and whether a disagreement is a ‘dispute’ subject to binding arbitration as provided for in this Arbitration Agreement.

[**NOTE: The quoted portion in the motion says "account," although it makes more sense if read as either "accounts" or "the account." Each alternative reading, however, significantly changes the potential scope of the arbitration agreement, as described in more detail below.]

Wells Fargo's argument is that the arbitration agreement in the accounts that the Plaintiffs admit to entering voluntarily apply to the dispute arising from Wells Fargo's alleged creation of additional accounts for those Plaintiffs without those Plaintiffs' permission. The Plaintiffs will likely argue that the scope of each arbitration agreement was limited to the account that was voluntarily created, and not to any accounts created without permission.

Wells Fargo's argument has merit because the arbitration provisions cited in its motion are generally quite broad. The bank can argue that once the customers created a contractual relationship with Wells Fargo, they agreed that future actions of Wells Fargo relating to the accounts or services fell under the arbitration provision in that contract. This argument is strongest under the terms of the contract described in the first quoted paragraph above.

But under the terms described in the second quoted paragraph above, Wells Fargo's argument might face more of an uphill battle. There, the "disputes" covered by the arbitration provision may be limited to the customer's account -- or to Wells Fargo accounts in general, depending on whether the term "account" is read as "the account," or "accounts." Based on the remainder of the quote and its context, it looks like the intended word was "accounts," which would strengthen Wells Fargo's position, but the quote as stated is ultimately unclear. If the Court reads the agreement giving rise to the account to extend only to Wells Fargo's actions in providing services under that particular account, the Plaintiffs will have a stronger argument, at least to the extent that the Consumer Disclosure brochure is the only applicable agreement.

The New York Times references some critics and lawmakers who are angry with Wells Fargo's strategy, but from a pragmatic point of view the bank would be foolish not to use these agreements. Arbitration agreements are supported by favorable Supreme Court case law, and because they can thwart Plaintiffs' litigation efforts early in the process. Whether anger by consumers and legislators over Wells Fargo's arbitration maneuvers is enough to prompt changes in the law governing arbitration clauses remains to be seen.

Volokh (and Dolinko's) Lost Maxims of Equity

Here's some informative Monday evening scholarship for those who are interested in learning more about remedies, equity, or life in general. My favorite maxim, which I try to include in every motion I write is "Equity delights in a good practical joke," although "Equity is crunchy on the outside, soft and chewy on the inside," is a close second.

For those interested in California's attempt at generating interesting maxims / fortune cookie sayings, check out this post on California's Maxims of Jurisprudence.

Michigan Residents File Pokemon Go Class Action Lawsuit

The attorneys at Pomerantz Law are at it again, and are attorneys of record in a Michigan class action lawsuit against Niantic and Nintendo. The allegations in the Michigan complaint overlap significantly with those in a Massachusetts class action lawsuit that I blogged about at the beginning of August filed by a Massachusetts resident. Both complaints were filed in the District Court for the Northern District of California.

Click On Detroit reports about the new class action -- which also alleges causes of action for nuisance and unjust enrichment -- filed by a Michigan couple living in St. Claire Shores, a suburban town located near Detroit that will be holding a Fence Arbitration meeting today for those who may have forgotten to mark their calendars. Reporting by Bloomberg Markets (on the lawsuit, not the Fence Arbitration meeting) can be found here.

A copy of the Complaint can be found attached to the Click on Detroit article. Its substance significantly overlaps with the Massachusetts Complaint, and it too includes multiple bold, italicized mentions of how "Niantic even placed three Pokéstops within the United States Holocaust Memorial Museum." That part never gets old.

One improvement in the Michigan Complaint is that it has more facts regarding how Pokémon Go affected the plaintiffs' lives. As you may recall, the Massachusetts Plaintiff's allegations were little more than a complaint about several people walking near his house and knocking on his door on a few occasions. The Michigan Complaint is more detailed. The factual allegations are largely copied from letters the Plaintiffs wrote to Niantic, and here is an example of some of that quoted language. Trigger warning: bold italics:

At any given moment there are at least a couple of hundred people in the park play[ing] this game, compared to the average of at least 15-20 in the park. The [Pokéstops and Pokémon gyms] . . . [are] an open invitation for the players to utilize our street, our lawns, looking in our windows . . . and so forth. There are at least 30 homes . . . that are affected by this. These players are loud, make threats, [are] intrusive, and I do not feel safe. My husband and I moved to our home almost two years ago because it was peaceful, quite, and safe. When I see people driving slow, looking into our home, walking on our property, looking into our vehicles, we do not feel safe. Neither do the neighbors. . . .

. . .

With all the traffic it is hard to tell who is playing the game, or casing out our street/park, someone who is looking to rob, rape or any other harm. . . . They park along our street that borders Wahby Park, we ask them to move and get threats and attitudes. I was threatened by a man who refused to leave. He was parked in front of my home. I had hardly any room to back out of my driveway. Mind you, he was also parked the wrong way on the street. . . . I truly hope you will take this into consideration, the news has already been in the park twice, and have interviewed neighbors on this issue.

To paraphrase, the plaintiffs live near Wahby Park which, in addition to being a great place for weddings, allegedly has six PokéStops, where players can collect items and place "lures" that attract Pokémon. This has led to a crisis of numerous people going to the park, and wreaking havoc in the surrounding neighborhood. Plaintiffs allege that players are walking on their yards, blocking driveways, and even include a picture of a potential hipster giving side-eye to the camera.

Yikes.

Plaintiffs seek to establish a class and use the same definition as the Massachusetts Plaintiff, which is:

All persons in the United States who own property (i) the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application or (ii) abutting property the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application.

For reasons I explain at length in this prior post, I think this class definition is likely to fail.

For a reason specific to this lawsuit, though, I think this Complaint has faces an additional, serious problem because the named plaintiffs do not appear to fall into the class. The plaintiffs include an illustration of the neighborhood as it appears in the app:

From this illustration, it appears that all of the PokéStops and Gyms are in the park, which is public property. The park is separated from all surrounding homes by a road. Accordingly, there appear to be no areas of private property that "abut" PokéStops or Gyms. This is a problem for the Complaint as a whole because the lead plaintiffs need to be members of that class. Plaintiffs might argue that their property falls within the 70-meter radius where people can interact with the stop or the gym, but this does not appear to fit the fairly specific, GPS-coordinate-based class definition.

I will continue to monitor both Pokémon Go class action lawsuits, and I will do my best to post updates as they proceed. I suspect that the plaintiffs in both will face some significant obstacles, but the law firm spearheading this effort doesn't appear to be slowing down at this point.

Evaluating the Pokemon Go Class Action Lawsuit

Several news outlets have reports on Marder v. Niantic, Inc., filed July 29, 2016 in the Federal District Court for the Northern District of California. A copy of the complaint is available here.

Coverage of the complaint is available here, here, here, and here, although the Boston Herald seems to have the most direct quotes from various people involved in the suit or otherwise wronged by Niantic's Pokemon Go app.

The Complaint outlines Pokemon Go's success, but notes that the game places "PokeStops" and "Gyms" -- locations that attract players -- on or near private property. The Complaint states that Niantic "blithely" acknowledges that players may trespass, although a round of updates a few days ago added more explicit admonishments against trespassing. The Complaint also notes several times in bold and italicized letters that "Niantic even placed three Pokéstops within the United States Holocaust Memorial Museum."

Strong stuff.

The Complaint goes on to describe the terrors inflicted on the named Plaintiff, Jeffrey Marder:

In the days following the U.S. release of Pokémon Go, Plaintiff became aware that strangers were gathering outside of his home, holding up their mobile phones as if they were taking pictures. At least five individuals knocked on Plaintiff’s door, informed Plaintiff that there was a Pokémon in his backyard, and asked for access to Plaintiff’s backyard in order to “catch” the Pokémon.

The Complaint goes on to cite other instances of Pokemon Go causing people to drive or park near people's houses, and again notes that "Niantic placed at least three Pokéstops within the United States Holocaust Memorial Museum in Washington, D.C." (emphasis [unfortunately] in the original).

Interestingly, one of the stories the Complaint cites is that of Boon Sheridan, whose house used to be a church. Sheridan reported that the game made his house into a Gym and that many players would park outside or drive slowly past. The Boston Herald managed to get in touch with Sheridan, however, and he stated that he complained to Niantic who removed the Gym designation from his house within 48 hours. Sheridan further stated that he likely would not join Marder's lawsuit.

The Complaint alleges causes of action for nuisance (invasion of the use and enjoyment of one's land) and unjust enrichment (Defendants received monetary benefits from their alleged tortious conduct). The Complaint seeks class action status for the class defined as:

All persons in the United States who own property (i) the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application or (ii) abutting property the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application.

While I will readily acknowledge that the intricacies of class action litigation are not the focus of my legal practice or research, my initial reaction is that this class definition will face an uphill battle in proving commonality among the class members. Like the class members in Wal Mart v. Dukes who were thwarted by the jump from an individual experience of sex discrimination to a business-wide policy of discrimination, here, the Plaintiff must show that class members living on or near property designated as PokeStops suffer a similar loss of enjoyment of their land. This will be difficult for Plaintiff to show.

I base this assessment on the game's design and Plaintiff's choice to limit the class definition to Plaintiffs owning property near Gyms and PokeStops. Plaintiff will be hard-pressed to show that class members tend to have people knocking on their doors in search of Pokemon as a result of PokeStops or Gyms placed on the property. Off the bat, Gyms are not a source of catching Pokemon -- players simply need to be within a certain distance of the Gym in order to interact with it. That distance used to be 100 meters, after the latest round of updates, it is apparently 70 meters. Even with the decreased distance, there should often be no need to approach or knock on the door of the property where the Gym is located.

If the property has a PokeStop, it may be the location of a "lure" module which increases the frequency of Pokemon appearing within a radius surrounding that location -- but again, the 70-meter radius is often large enough that players need not be inside the property (or within its curtilage, if I may borrow from Fourth Amendment law) to take advantage of the lure. Players can likely stand nearby on a sidewalk which, while potentially aggravating to an ornery landowner, does not appear to amount to a loss of enjoyment of the property. After all, people normally walk, stand, and allow their dogs to defecate on and near sidewalks. Increased foot traffic and the occasional presence of nostalgic hipsters is not much of a change.

In previous posts, I criticized New York State Senators for allowing their staff members to play Pokemon Go for weeks in order to generate ill-conceived policies to combat problems that do not exist. Here, however, I feel that Plaintiff and his attorneys would have done well to play the game a bit more before filing this class action. Doing so would reveal the significant obstacle to establishing the commonality element of his class definition.

And, after all, isn't this exactly what summer associates are for?

Pokemon Go Players: Beware of Binding Arbitration!

Unless you've been living under a rock or avoiding the outdoors for the past several weeks, you have probably heard of Pokemon Go, a smartphone app developed by Niantic. Pokemon Go compels 20-somethings to wander through my neighborhood at night, collide with trees, and enslave small creatures for the purpose of battling other players' small creatures. Players meander along sidewalks, streets, and beaches until they come across a Pokemon, which is superimposed on the surrounding environment through a phone's camera. For example, here is an Onix in my apartment perched on a (signed) copy of Justice Antonin Scalia and Bryan Garner's Reading Law:

What a time to be alive!

Players cavort through neighborhoods collecting items at "Poke Stops" and battling other Pokemon at Gyms. Sometimes they are mugged. The New York Times has this discussion of the history of Pokemon and the future of augmented reality games and the Wall Street Journal notes that the game is turning people into injury-prone zombies.

Legal commentary as varied as the creatures themselves is emerging as the game gains momentum. Commentators note interesting questions of property the game raises, the potential for players to injure themselves, and the risk of criminals stealing phones.

In this post, I'll focus on another line of commentary noting that those who sign up to play Pokemon Go forfeit their right to trial, agreeing instead to submit any claims to binding arbitration. Commentators note, and criticize, this portion of Niantic's Terms of Service here, here, here, and here.

"Arbitration by Combat"

An article on Game of Thrones, trial by combat, and arbitration that I coauthored with Raj Shah is now available on SSRN. You can download the full paper here. Here is the abstract:

Trial by combat is a popular method of dispute resolution in the Game of Thrones universe. While modern legal systems reject trial by combat as an unjust and barbaric practice, this article examines whether trial by combat may be employed as a means of private dispute resolution in the United States. This article evaluates whether ‘arbitration by combat’ provisions based on Game of Thrones and various historical approaches to trial by combat would be upheld by state laws and protected under the United States’ Federal Arbitration Act (FAA). This article concludes that while Game of Thrones-style arbitration by combat may violate state contract and criminal laws, arbitration by combat that conforms to less-violent historic practices may survive state law challenges and may even fall under the protection of the FAA.

Raj and I wrote this for a special issue of the Media and Arts Law Review dedicated to the subject of "Law and Law Breaking in Game of Thrones." Melissa de Zwart of the University of Adelaide Law School was extremely helpful throughout the editing process, as was an anonymous peer reviewer who provided numerous insightful suggestions and comments. Raj was extremely helpful and patient as a coauthor, as several deadlines in the editing process tended to coincide with me being in trial. Even when my schedule became hectic, Raj managed to provide thoughtful edits for the paper as a whole, making the final article far superior to what I alone could have produced.

Readers should know that I have not read any of the Game of Thrones books and that I have only seen a few episodes of the series. Raj is to thank for the sections of the paper regarding Game of Thrones (although I have seen some clips of the show's trial by combat to understand how violent the practice can be). Raj also primarily wrote the sections pertaining to the Federal Arbitration Act -- my contributions to the paper include the discussion of historic trial by combat and state-level obstacles to arbitration by combat provisions.

Finally, I would like to note the inadvertently timely publication of this article. A New York attorney recently invoked trial by combat in his own litigation proceedings. While that instance of trial by combat is unlikely to take place, I hope that our article can provide some insight into how trial by combat proceedings may find their way into the litigation process.

Trial By Combat in New York?

A friend sent me this post by Eugene Volokh commenting on a colorful brief filed by Richard Luthmann, a Staten Island attorney. This paragraph from near the end of the document sums up the attorney's position:

The allegations made by Plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned respectfully requests that the Court permit the Undersigned to dispatch Plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His Divine Judgment once the Undersigned has released the souls of the Plaintiffs and their counsel from their corporeal bodies, personally and/or by way of a Champion.

Luthmann is seeking to resolve the dispute through trial by combat, and throughout his brief he goes into great detail about the history of trial by combat in England. He argues that trial by combat is a permitted method of dispute resolution in the United States because trial by combat was legal in England when the original United States colonies were formed, and United States law inherited the English common law of the time. Accordingly, Luthmann argues that under the Ninth Amendment, he has the right to have the case decided through trial by combat.

Full coverage of the case can be found here. Above the Law also summarizes the case here.

While Luthmann may be correct that trial by combat was never officially outlawed in the United States, I suspect that his quest to have his case decided through trial by combat is doomed to fail. Adam Winkler, quoted in this Business Insider article, notes that while the common law inheritance argument may be technically correct, no court would adopt the trial by combat approach. And I suspect that Luthmann's claims of a Ninth Amendment right to trial by combat would run into Seventh Amendment problems were the other party to the suit to invoke the right to a trial by jury, since the Seventh Amendment preserves the right to a trial by jury in civil cases involving a dispute greater than $20.

If Luthmann or another party really wishes to have disputes resolved through trial by combat, a better course of action may be to enter into a contract that states that trial by combat is the agreed-upon method for resolving disputes that may arise under the contract. This is what Raj Shah and I argue in our article, Arbitration by Combat, which was very recently published in the Media and Arts Law Review and which I summarize in this post. I will be sure to announce when the full article becomes available on SSRN, so trial by combat enthusiasts should stay tuned!

Arbitration by Combat and Game of Thrones

I am happy to announce that I will be coauthoring an article with my former UCLA Law classmate, Raj Shah, in an upcoming special issue of the Media and Arts Law Review. The issue will contain articles on "Law and Law Breaking in Game of Thrones." Prior posts on the call for papers can be found here and here.

Our article currently has the title, Arbitration by Combat. Here is the article proposal that we submitted:

Trial by combat is a popular method of dispute resolution in the Game of Thrones universe. The trials of Tyrion Lannister and Sandor Clegane stand as some of the most defining moments of the series. However, as the series vividly illustrates through Oberyn Martell’s duel with Gregor Clegane, trial by combat can pose mortal dangers for combatants not endowed with the protection of the god R’hllor. Furthermore, as Tyrion Lannister’s prosecution by the Iron Throne demonstrates, trial by combat can often lead to unjust results.

Trial by combat was also a common method for resolving disputes in medieval Europe. Trials by combat were subject to numerous procedural rules and were often (but not always) less violent than the disputes in Game of Thrones. But trial by combat has since been rejected as an unjust and barbaric ritual. 

The concerns surrounding trial by combat as a means of dispute resolution raise several interesting questions: can agreements to arbitrate disputes by means of a trial by combat be enforced in the United States? And if these “arbitration by combat” provisions are enforceable, what form of combat would be permitted under existing law? The more restrained historic form of trial by combat or the Game of Thrones variety?

In this article, we seek to answer these questions by examining how arbitration by combat agreements might implicate state and federal laws in the United States. First, we explore whether such agreements would run afoul of state laws barring contracts that are unconscionable or against public policy. We argue that savvy drafters of arbitration by combat provisions should avoid the gory proceedings in the Game of Thrones universe. But arbitration by combat based on historic practices may survive judicial review.

Second, we examine whether state regulation of arbitration by combat provisions would be preempted by the Federal Arbitration Act’s protections for arbitration agreements. In particular, we analyze whether the Act would protect an arbitration by combat agreement against state interference, given the U.S. Supreme Court’s recent expansion of the Act’s reach in AT&T Mobility v. Concepcion, 563 U.S. 321 (2011).

We argue that while Game of Thrones–style arbitration by combat may violate state contract laws, arbitration by combat that conforms to historic practices may find more success. We also conclude that there is a strong argument that an arbitration by combat procedure falls under the protection of the Federal Arbitration Act, provided it satisfies certain “fundamental attributes of arbitration” identified in Concepcion. That is, the combat would have to be informal, speedily resolved, and relatively inexpensive to conduct. Hence, state safety regulations of combat proceedings – while permissible – would be preempted to the extent they interfere with such characteristics.

The topic of this paper should not be too much of a surprise to regular readers of this blog. Trial by combat has always fascinated me, and you can find my previous posts on the subject here and here.

I must confess, however, that I am not well-versed in the Game of Thrones literature. Fortunately, my coauthor, Raj Shah, has extensive expertise in that area (as well as in the area of researching and writing about the Federal Arbitration Act). While Raj, like myself, has not published on the subject of Game of Thrones before, he has published a critical race perspective on U.S. standing doctrine in the UCLA Law Review, which you can find here.

As is the case with any post or paper I have announced on this blog, comments and criticism from readers are welcome. Our deadline for completing the full paper is December 19.

Leeson on Trial by Combat and the Coase Theorem

I have been researching trial by combat for a project I hope to undertake in the near future. In the process I read Peter Leeson's article, Trial by Battle (3 J. Legal Analysis 341 (2011)). It is one of the most fascinating things I have read in some time, and the first three paragraphs of the introduction give a good summary of Leeson's argument:

Modern legal battles are antagonistic and acrimonious. But they aren't literally battles. Disputants don't resolve conflicts with quarterstaffs. Their lawyers don't fight to the death. This wasn't always so. For over a century England's judicial system decided land disputes by ordering disputants' legal representatives to bludgeon one another before an arena of spectating citizens. The victor won the property right for his principal. The vanquished lost his cause and, if he were unlucky, his life. People called these combats trials by battle.

To modern observers trial by battle is an icon of medieval backwardness. Montesquieu called it "monstrous." The institution's barbarity seems equaled only by its senselessness. As Richard Posner put it, "trial by battle" is one of those "legal practices that no one defends any more."

Almost no one. This paper defends trial by battle. It examines trial by battle in England as judges used it to decide property disputes from the Norman Conquest to 1179. I argue that judicial combat was sensible and effective. In a feudal world where high transaction costs confounded the Coase theorem, trial by battle allocated disputed property rights efficiently. (citations omitted).

I previously blogged about trial by combat here. Leeson's article recounts the practice in detail and his approach to the practice from an economic perspective makes Trial by Battle the most interesting article I have read since R.S. Radford's, Going to the Island: A Legal and Economic Analysis of the Medieval Icelandic Duel (62 S. Cal. L. Rev. 615 (1989)).

In case you were wondering, Radford's article is also related to my current project. I will hopefully have more on that later.

Why Are There No Federal Writs of Erasure?

Eric Pearson, in Foley & Lardner's Wisconsin Appellate Law blog, discusses this recent exchange that took place between Judge Frank Easterbrook and counsel for the appellant during oral argument in O'Keefe v. Chisholm (Bloomberg News has background on the case here):

Counsel: I would request the Court please vacate, in its entirety, the district court’s basis for the ruling. However this Court gets to that issue, if it perceives it needs to. This district court ruling has left a considerable stain, and we do not wish to have that… 

Easterbrook, J.: What are you asking for concretely? 

Easterbrook, J: Do you want us to issue a writ of erasure? 

Counsel: Well… 

Easterbrook, J.: Tell the district court it has to say something else? 

Easterbrook, J.: When we review a case on appeal, we will issue our own opinion. But we don’t go about erasing district court opinions. That seems to be what you want us to do. 

Counsel: Well…what I was thinking, Your Honor, was the vacation of that opinion. 

Easterbrook, J.: We do not vacate opinions. We review judgments.

Asking for a vacation of a "basis for the ruling" in front of a panel containing Judge Easterbrook is a bad idea in light of prior decisions that Judge Easterbrook has authored. Judge Easterbrook has repeatedly refused requests to vacate opinions of district courts, labeling these requests as actions for "writs of erasure."

But why are there no writs of erasure? The language of the All Writs Act (28 U.S.C § 1651) suggests that federal courts have broad powers to issue a variety of writs:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

In light of this broad language, I would expect Judge Easterbrook to give some reason for why writs of erasure are not permitted. But many of his recent opinions on the subject simply contain a conclusory statement that the Seventh Circuit does not issue writs of erasure. See, e.g., Tara Gold Resources Corp. v. S.E.C., 678 F.3d 557, 560 (7th Cir., 2012) (noting, in the context of a request to vacate a letter sent to a business by the Securities and Exchange Commission that "[t]he judicial arsenal does not include a writ of erasure that blots documents from existence."), United States v. Zingsheim, 384 F.3d 867, 870 (7th Cir. 2004) ("A Writ of Erasure is not among those remedies that are “agreeable to the usages and principles of law” and authorized by 28 U.S.C. § 1651(a), the All-Writs Act.").

After some searching, I found some other opinions by Judge Easterbrook that shed light on why he rejects writs of erasure. But after I reviewed those opinions, I was still left wondering whether his blanket rejection of these writs is truly justified. In the remainder of this post, I explore the reasons for rejecting writs of erasure and close with some brief remarks on why these reasons may not sufficiently a blanket rule against such writs.

In Its New Statement of Legal Terms, General Mills Greatly Restricts Consumers' Rights to Sue

The New York Times reports:

General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, “join” it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways.

Instead, anyone who has received anything that could be construed as a benefit and who then has a dispute with the company over its products will have to use informal negotiation via email or go through arbitration to seek relief, according to the new terms posted on its site. 

In language added on Tuesday after The New York Times contacted it about the changes, General Mills seemed to go even further, suggesting that buying its products would bind consumers to those terms.

General Mills' online agreement certainly seems to go as broad as it told the Times. At the top of its webpage, it states, "Please note we also have new Legal Terms which require all disputes related to the purchase or use of any General Mills product or service to be resolved through binding arbitration." Looking to the legal agreement suggests that the terms apply to a broad range of activities, although they may not apply to all consumers who purchase General Mills products. Here are the portions of the agreement that give me this impression:

1. Your agreement to these legal terms 

These terms are a binding legal agreement (“Agreement”) between you and General Mills. In exchange for the benefits, discounts, content, features, services, or other offerings that you receive or have access to by using our websites, joining our sites as a member, joining our online community, subscribing to our email newsletters, downloading or printing a digital coupon, entering a sweepstakes or contest, redeeming a promotional offer, or otherwise participating in any other General Mills offering, you are agreeing to these terms.

Of course, your decision to do any of these things (i.e., to use or join our site or online community, to subscribe to our emails, to download or print a digital coupon, to enter a sweepstakes or contest, to take advantage of a promotional offer, or otherwise participate in any other General Mills offering) is entirely voluntary. But if you choose to do any of these things, then you agree to be bound by this Agreement.

. . . 

3. Dispute resolution; binding arbitration 

. . . 

ANY DISPUTE OR CLAIM MADE BY YOU AGAINST GENERAL MILLS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR PURCHASE OR USE OF ANY GENERAL MILLS SERVICE OR PRODUCT (INCLUDING GENERAL MILLS PRODUCTS PURCHASED AT ONLINE OR PHYSICAL STORES FOR PERSONAL OR HOUSEHOLD USE) REGARDLESS OF WHETHER SUCH DISPUTE OR CLAIM IS BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY (TOGETHER, A “DISPUTE”) WILL BE RESOLVED BY INFORMAL NEGOTIATIONS OR THROUGH BINDING ARBITRATION, AS DESCRIBED BELOW.

Later portions of the arbitration waiver indicate that consumers who go to arbitration cannot consolidate their classes with other consumers, meaning that consumers who agree to the contract waive any class action rights.

This is a pretty notable development in General Mills limitation of its own liability, and I don't think that this contract will stand up in all the situations the contract claims to cover. Also, I don't think that General Mills has accurately stated what its contract actually says in its discussion with the New York Times.