Here’s a Jury you just might PAY to be on!

April 8th, 2015. By LucyC

How weird is this? A woman in Utah sued herself for killing—accidentally—her husband. Got it? Yeah? No? Ok.

So here’s the skinny. Barbara Bagley wanted the insurance money payable upon her hubby’s death. Problem is the insurance company didn’t want to pay.

How did she accidentally kill her husband? (Heads up, this could be useful). One night in November, 2011, Bagley was driving with her husband, Bradley Vom Baur, the passenger, when she lost control of the vehicle. The car subsequently rolled over, and her husband later died in hospital from his injuries.

Now, Bagley is the executor of her late husband’s estate (plaintiff) and the person responsible for his death (defendant). In order to get the insurance company to play ball, she was forced to bring a wrongful death and survival action against the driver (defendant) owing to the driver’s negligence causing her husband’s death. She has one very savvy lawyer.

Theoretically, by bringing a successful lawsuit against herself as the defendant, the insurance carrier would have to cover the cost for her negligence while driving. According to CBS Money Watch, the insurance company would then pay plaintiff Bagley as the personal representative and heir of her husband’s estate.

Still with me?

Not surprisingly, I suppose, the district court dismissed Bagley’s action. BUT—you knew there was a but—the court of appeals reversed the district court’s ruling. The whole thing boiled down to language, and not just language—punctuation marks!!! (Yes!)

The court of appeals determined that the “absence of punctuation marks separating” the words “death of a person” from “of another” in the language is read to mean that the two are connected, and “another” only refers to a person other than the decedent, according to the opinion. (Think “Eats Shoots,and Leaves“—not ”Eats, Shoots and Leaves”—an excellent read by the way.)

The wrongful death statute reads:

When the death of a person is caused by the wrongful act or neglect of another, his heirs…may maintain an action for damages against the person causing the death. The same separating punctuation is also missing from the survival action statute, which is interpreted by the court as meaning that the “another” is anyone other than the decedent, even if the “another” is both the defendant tortfeasor and the heir and personal representative of the estate, according to an article on this by the National Trial Lawyers.

Believe me, I couldn’t make this up. There’s more, but I’m betting you have the gist of it by now.

Moving on from the grammar and punctuation (do I hear a sigh of relief?) the attorneys provided by Bagley’s insurance company to defend Bagley argued that the reading of the statute to allow for her to file an action against herself, was “’contrary to…basic notions of fairness and decency’ and contrary to public policy.”

However, this was rejected by the court of appeals because the defendant did not define the public policy nor make reference to any policy in Utah regarding the notions of fairness and decency. Instead, the defense only cited cases outside of the state of Utah. Not so bright, in retrospect. But maybe there weren’t any other cases in Utah. I’m betting.

The court said that its proper role was to interpret the “meaning and application” of a statute’s text and avoid “judicial mischief” which they would do by allowing the Legislature to correct any statutory language that may be contrary to public policy.

Ready…Payday!

Just in case you’re interested, the case is Bagley and the Estate of Vom Baur v. Bagley, Case No. 20131077-CA in the Utah Court of Appeals, Third District. And if this baby winds up before a jury, you bet you’d be paying to be on that one—they don’t even have to give you the brown bag lunch! Wonder if there’d at least be costume changes…

Sisterhood causing a Ruckus in the Neighborhood?

April 6th, 2015. By LucyC

Oh saints preserve us! The nuns that own one of New York’s oldest preschools have decided they want to get into the real estate game—shut the school, sell the building, maybe, and pocket several million, most likely. Problem is, the parents are mad as hell and have filed a lawsuit.

The school’s two brick brownstones, located in Chelsea, could be worth a cool $20 million—not exactly chump change, and the possibilities are likely not lost on the Sisters. Located on West 15th Street, the sisterhood bought the facility for $5,000 in 1901 then set it up as a school for the children of women (read single mothers) who worked in the meat packing district. Nice.

Over time the demographics have changed, and the school now looks after 55 little people—2-6 year olds, under the banner Nazareth Nursery Montessori. And it costs—both the parents and the nuns. The parents pony up $10,000 a year per child, which apparently makes it the cheapest Montessori school in the borough. The Sisters employ 14 lay teachers who they oversee.

According to school officials, the facility is losing $100,000 a year. So the school announced it would close in August. The parents, once they had collected themselves, filed for an injunction to stop the closure.

Praise the Lord and pass the Paperwork! According to the parents, the nuns at first gave no reason why the school was closing—it wasn’t until after the announcement of closure that school officials claimed the facility “was losing $100,000” and that “the building structure is precarious.”

The parents also allege that there are no building violations with the city and that the “financial state of the school and the corporation is excellent,” citing IRS documents showing revenue of $570,000 in 2013.

The parents say that “At no time over the past four years was any parent told that the school was having financial problems and might close.” So they have concluded that the only reason for the closure is, naturally, to capitalize on their asset.

“It is clear that the defendants plan to close the school, stop providing education to the children of working mothers, sell the school’s property and transfer the money to the Sisters of St. Francis to use for other purposes, none of which is to educate children,” the Manhattan civil suit says.

So, let’s see, there’s one set of property ownership rules for lay people and another for religious organizations? The primary difference being motive? Really?

A school spokeswoman, one Rochelle Casella, is said to have countered that the litigious Manhattan parents are too wealthy for the nuns’ charity. Well, possibly not the best defense, but there’s likely some truth in it.

“The demographics of the area have changed,” Casella said, adding that the buildings are “not up for sale” but said the nuns have also not decided what they will be used for after the school closes. Casella has reportedly vowed to “vigorously defend our position in court.”

If this continues, it’s very likely the Sisters of St. Francis will have to sell their real estate to pay their legal bills. Now wouldn’t that be a win-win.

Guess Getting Arrested for Underage S*x is a Real Grind(r)

March 27th, 2015. By LucyC

A 52-year old man who was cruising through his hook-up app—Grindr—came across the love of your life (well, at least for the next 30 minutes), arranged a meet-up, and then found himself being arrested for engaging in an app-assisted sexual encounter with a 13-year-old boy. An app-assisted sexual encounter? How very 21^st century.

William F. Saponaro Jr., from New Jersey, got a little more than he bargained for—when he and another 24-year-old Grindr guy, who also met up with the boy, were arrested for having a “three party sexual liaison” with a minor. They were both charged with aggravated sexual assault and endangering the welfare of a child.

Sapanaro’s response? Sue Grindr. He claims that because the child accepted Grindr’s terms of service somehow the company failed to ensure the boy was of age—or legal, let’s just call a spade a spade. The actual claim is negligence for allowing a minor to utilize the app. Uh? How do you stop that? What about personal common sense—or is that optional now?

For those dating app neophytes, Grindr works similarly to other hook-up apps like Tinder, which is also being sued—but over charging its users, not its users being charged, if you follow. Short version, Grindr uses a person’s smartphone’s geolocation capabilities to allows its users, particularly gay and bisexual men, to communicate with other similarly inclined folk in the local vicinity. Because the nature of the conversation and encounters that are facilitated through Grindr are adult in nature, the company restricts use of the app to those 18 and over. But in this case, the boy lied, the adults got busted and—the company gets off the lawsuit. Why?

Grindr owed Saponaro no “duty of care,” according to the court ruling, because it could not foresee Sapanaro becoming a victim, and therefore was and is not liable to Saponaro under New Jersey law. Caveat emptor baby! And, since Sapanaro communicated with a third member of the three-party tryst, and not directly with the boy, there really was no way Grindr could have known what was going down. If they could, you would wonder how, and that potential scenario is even more worrying.

Also interesting, the court barred Sapanaro’s claim under the Communications Decency Act. According to the CDA’s “Good Samaritan” clause, providers of interactive computer services are prevented from being treated as the publisher of the information disseminated on them. Think about it, Facebook, Twitter et al, responsible for the content of all their users’ posts? Never mind email service providers.

Perhaps what’s most disturbing is the lack of resonance around a 13-year old using the app. Gotta wonder what happened to him.

Billy was Lovin’ Tinder’s Cattle Call for Hookups until…

March 18th, 2015. By LucyC

…he found out love (even the meat market kind that’s based on, uh, appearances) ain’t cheap.

Here’s the deal: $2.99 for unlimited “Likes”—(I guess that means “Likes” are officially a currency now). Sounds like a great deal, right? Not if you’ve been getting if for free. The hook-up, sorry, dating app—Tinder.com is raising its rates—from free to $2.99 – and at least one user has his knickers in a knot over it.

California resident Billy Warner has filed a class action against Tinder alleging the social media company/app lures people into signing up by offering a free service. Then, when you’re hooked— BAMMO!! That’ll be $2.99 please! Less than your average moderate sized cappuccino—just to put it in perspective.

For those of us not familiar with the app– the short course on Tinder is that it enables you to find people within a certain radius of where you are located—using your phone. You look at complete strangers’ profiles and pictures which are uploaded from their Facebook accounts – with their permission – and qualify them, pretty much on the spot, presumably with the goal of hooking up – at some point and for some purpose. Qualifying them involves swiping to the right to “like” someone and to the left to pass on someone.

“A swipe can change your life” the website claims. No kidding.

So what’s the problem with paying for all that potential fun? Especially for such a nominal fee?  Well, the problem for Billy is, he’s hooked. Warner claims that he is “entrenched in the use” of the app and had he known that Tinder would charge for it, he would not have downloaded it. Seriously?

He’s alleging a classic “bait and switch”. Oh – there is a principal involved…?

According to the Tinder class action lawsuit, “Tinder has, up until now, allowed users to enjoy unlimited free swipes and has been a free app,” Warner contends. “Tinder has never advertised, represented, or otherwise indicated to its customers, including plaintiff, that the use of its services will require any form or payment.”

“Defendant offered these free services with the goal in mind of enlisting a user base of tens or hundreds of millions of users, with the ultimate goal of later changing the rules of participation and deceptively and forcibly migrating a substantially percentage of its user base to a paid subscription model,” the complaint states. That certainly has the potential to generate serious amounts of cash.

Warner contends that “Had Defendant warned Plaintiff that additional fees may apply, Plaintiff would have reconsidered Plaintiff’s use of Defendant’s app….Failure to disclose that additional fees may apply unfairly induced Plaintiff’s downloading of Defendant’s app, as he reasonably believed it to be a ‘free’ service.” So—why pay for the cow…right?

Poor old Billy discovered that he would have to pay $2.99 per month to continue using the app when he was notified that he was out of “likes” and that he could purchase unlimited “likes” for $2.99 per month. Out of Likes? That’s gotta take some doing (and let’s hope Billy didn’t blow one of those precious likes on Ava (25, from NYC…)

“[Tinder’s] abrupt policy change constitutes an unfair and deceptive trade practice, put into place to forcibly migrate users to paid subscription services, in order to receive the same services that had previously been provided and advertised free of charge,” the class action lawsuit states.

Maybe a bait and switch is going on and maybe it’s a problem for Billy and thousands of other users, but I’m betting it’s still one of the cheapest sources of booty going. And, if they’re not monetizing the app through registration fees, you have to like wonder what the options are.

Oh wait…the options are (drumroll) to charge more registration fees. As reported earlier this month, looks like Tinder is going to charge fees for premium features on a tiered fee basis. Tiered? Uh-huh…the fees are higher for the over-30 set (to cut those poor budget-constrained under-30 somethings a break). Sounds a bit discriminatory, eh? But then again, wasn’t it Crosby, Stills & Nash who said, “…and it gets harder as you get older…”

Hipster BKLYN Pizza Joint in Fight over Ownership Dough

March 10th, 2015. By LucyC

Is a lawsuit good for business? In this case, very possibly—ah—make that a yes. It would seem that the Michelin starred pizzeria in Brooklyn— Roberta’s—has never enjoyed such popularity/notoriety as now. It’s currently the subject of an ownership lawsuit. And yes, it’s all about the dough.

Celebs to have graced the eatery include the Clintons with Gloria Steinem and “The Big Lebowski” director Joel Coen, and Beyoncé—who apparently stomped out while fighting with hubby Jay Z (I wonder if there’s something in the food?)

So, the backstory, three owners—Brandon Hoy, Carlo Mirarchi and Chris Parachini—can’t agree on how to expand. What’s that old saying—two’s company three’s a crowd? So Hoy and Mirarchi fired co-founder Parachini—as you do. The firing led to buyout negotiations but the talks broke down when Parachini snubbed an offer of $2 million for his 25 percent share in the company. Parachini countered at $2.9, to include his share of Roberta’s and its spinoffs including another restaurant in the Rockaways and another $2.5 million for intellectual property (?). Wow. That’s a big piece of the pie!

His argument, according  to a letter he wrote in September 2014 to his now estranged business partners, is “Roberta’s has grown into a name representing quality and success that is synonymous with Brooklyn and recognized across the world.” Um. I know the world’s a small place, but… He was, apparently, referring to a pending deal in Asia and possibly the Ace Hotel chain.

So, the deal stalls, and four months after being a no show in the eatery, Parachini puts in an appearance only to have his partners call the cops, according to court documents.

“Our worst fears became a reality on Dec. 22, 2014, when Parachini appeared at the restaurant and began telling staff he was the ‘boss’ and ‘owner’ and they had to listen to him,” Hoy says in an affidavit.

“We are concerned that this will end in a physical altercation before the police will take any action, based on the prior history with Mr. Parachini and his erratic behavior,” Hoy says.

Wisely, the police didn’t get involved. So, Hoy and Mirarchi filed a lawsuit to keep Parachini away from the restaurant.

A judge granted the emergency order on December 31, but also said that Parachini should be paid a salary and given access to their books during the lawsuit. Sounds reasonable to me.

Parachini lobbed back in a written response to the allegations of physical violence and erratic behavior that, “I have no history of violence nor have I ever threatened any of my partners or employees. This is a total fabrication…presented to inflame the court.” He goes on to call the allegations  “malicious, unconscionable” and “an attempted theft of my ownership.” You know, I would say he does appear to be on the losing end of this one. But it ain’t over until the fat lady sings…

Parachini claims that things began to go sideways when he went to LA last summer to talk to the Ace Hotel chain about opening a restaurant in a new hotel that’s slated to open on the Lower East Side.

Court papers state that this is when Hoy went behind Parachini’s back to make changes to a new takeout counter next to Roberta’s.

The three amigos—who incidentally are in their mid 30s and early 40s—started the restaurant with something like $43,000. Now they’re headed to court to duke it out over millions. According to court papers filed by Parachini, his partners will net $10 million to $15 million over the next 10 years with the New York business alone.

And the irony in all this is that, according to Hoy and Mirarchi’s attorney, Kevin Sean O’Donoghue, Roberta’s has been “more successful than ever” since Parachini was fired. “His involvement is not a material need for the company,” he told The New York Post.