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By Dave Hoffman

Misunderstanding General Mills

On April 15, General Mills added language to its website which purported, “in exchange for benefits, discounts,” to subject consumers’ claims for use of General Mills products to arbitration and a class-waiver. General Mills, notably, was free to sue in court at will. When the Times noted the change, General Mills reversed course, stating:

[W]e never imagined this reaction. Similar terms are common in all sorts of consumer contracts, and arbitration clauses don’t cause anyone to waive a valid legal claim. They only specify a cost-effective means of resolving such matters. At no time was anyone ever precluded from suing us by purchasing one of our products at a store or liking one of our Facebook pages. That was either a mischaracterization – or just very misunderstood.

 Like Jeremy Telman, I found the emphasized sentence to be mysterious. There are only two ways to square the historic facts with “mischaracterization — or just very misunderstood” claim:

(1) General Mills thinks that “suing us” and “brining a claim in our bespoke arbitral forum” are the same thing; or

(2) General Mills believes that liking “one of our Facebook pages” isn’t the same as “joining our sites as a member [or] joining our online community.”

The first claim is sophistry, the second is frivolous. Roderick Palmore, GC of General Mills, Chicago Law grad, and head of compliance, had a bad week.

But what’s triply irritating about this whole saga is the lack of precision in the Times and elsewhere as to what, exactly, is wrong with the terms. General Mills is right to point out that many consumer contracts contain arbitral class action waivers, though many do not.  Contrary to the other speculation, there’s nothing per se illegal about provisions which shift costs in litigation. General Mills’ arbitration proceeding is actually quite generous about cost shifting, waiving a filing fee for disputes under $5000, and paying for the arbitrators themselves. Though proceduralists generally recoil from arbitration trumping procedure, what’s obviously at stake here isn’t individuals losing “their” right to sue, it’s class action lawyers losing their right to act as private attorneys general in quasi-regulatory cases. The ultimate question here – are class actions in federal court required for consumer protection – is harder than the commentariat has acknowledged.

But there is a legal problem with these particular Terms.  I don’t think they create a contract which binds consumers. Here’s the now-deleted triggering paragraph:

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.

The problem is that most people who participate in such activities are probably not actively required to click to agree to these terms, and consequently aren’t bound to...

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George R. R. Martin on Copyright, Inheritance, and Creative Control

This is Part 3 of the interview I did with George R. R. Martin in  2007.  For background and part 1, click here.  For Part 2, click here. For the audio file, click here.

HOFFMAN: Yeah, but you just generally right. The trope something that really speaks to folks. I guess maybe that raises a question about your fans generally. You’ve obviously got a huge fan base and I’ve been reading a little bit about them. One question that comes up a bunch of different times is fan fiction and what do you think about fan fiction?

MARTIN: I’m opposed to fan fiction.

HOFFMAN: Why?

MARTIN: Well number one, its copyright infringement and it can potentially endanger my copyrights and my trademarks if I were to allow it. Also, yes maybe it’s a gesture of love that they love your characters and they love your world and all that but it’s not the kind of gesture of love that I really want. And for aspiring writers and some of these people, sure it’s a wide range of fan fiction writers, some who are terrible. Some of them are actually talented writers. I think for the talented writers it’s particularly tragic because they should be doing their own material.

MARTIN: Now, I started writing for fanzines when I was back in high school and junior high. Back in Bayonne, NJ I was a comic fan and comic fandom was just starting back then in the 60s with little amateur [inaudible] magazines that sold for a quarter. And there were a lot of articles in there about the comic books we were reading so you could do non-fiction of that type or you could draw up characters if you were a talented artist. But there was also fiction and the fiction was of two types: one was the writers who wanted to write about characters in the actual comic books – they wanted to write a Superman story or they wanted to write a Spiderman story. That didn’t get very far and the company shut them down pretty quickly because they weren’t going to let their copyrights be infringed and start publishing amateur Spiderman stories. People very quickly switched to writing about their own characters. Now, some of the characters might have certain resemblances to Superman or Spiderman but you called them by a different name, you know they’re not Peter Parker, they’re Sam Smith, or something like that, you got a different character and you develop your character and you develop your world. That’s the kind of stuff I started with. I started with a character named Manta Ray since I couldn’t write about other people’s characters  and I really wouldn’t want to anyway. I wanted to do my own characters – make a character who ws great in his own right, who could stand up equal to those – and my own world. Those are the most important parts of writing. If you’re borrowing other people’s characters and borrowing other people’s...

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Lawyers in Westeros

This is Part 2 of the interview I did with George R. R. Martin in  2007.  For background and part 1, click here.  For the audio file, click here.

 HOFFMAN: Are there lawyers in your books that are just in the wings off stage that haven’t yet appeared?

MARTIN: That’s an interesting question. I hadn’t really considered that until I started reading those links that you sent me. There are certainly laws but are there special classes of advocates who make their living by interpreting those laws? My inclination is probably not because the laws my books are administered by lords. In some ways it’s government as much for men than law. We like to say our government in the United States is a government of laws not men. In some ways the Seven Kingdoms I think is the reverse. There is basis of a law but also a lot depends on who is interpreting it and who is sitting in the Lord’s seat, who is sitting on the Iron Throne and how they settle these disputes.

HOFFMAN: Well those are ultimate questions but I think in two places one could have imagine lawyers and one of them again will be this church trial because there were church lawyers in the ecclesiastical church system there were lawyers who specialized in canon law. And the second one was at least twice I can think of in the books there’re trials by combat. And I don’t really know what the other alternative would be but I assume would be trial by jury – the path that Tyrion did not choose both times. And I was thinking –

MARTIN: Well he does choose in the first…in the second…second of his two trials, he is being tried – it’s not by jury – it’s by lord. There’s no jury of his peers, no twelve people that are randomly picked but there are three lords sitting on his case and hearing the evidence.

HOFFMAN: Right.

MARTIN: And, you know, the –

HOFFMAN: Tyrell I think is one of them, I don’t remember the other two.

MARTIN: Oberyn Martell, who is the Red Viper is one of them, in order to balance it because they want a semblance of impartiality. It’s a hopeless thing because his father is the presiding judge and the right hand of the king and his sister, who is also the daughter of the same father, is the chief complainant who is accusing him of doing these things. But that does have semblance of a trial where witnesses are being called forth, people are swearing oaths, people are testifying against him and saying what they saw and what they did not saw. Though Tyrion realizes that it’s hopeless, he’s losing that so he exercises an option as a lord to request a trial by combat instead.

HOFFMAN: Which was a bad choice –

MARTIN: When Oberyn stands for him he thinks he has a better chance there. And he has gotten off...

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The Law of the Game of Thrones

In 2007, I did an interview with GRRM as a part of CoOp’s then vibrant “Law and Hard Fantasy” series.  (Yes, I know I’ve let it drop for half-a-decade, but new interviews are now coming out.)

Given the new-found fame of the Game of Thrones, I decided to have the interview transcribed for those of you who don’t want to listen.  Thanks to Temple’s Danielle Pinol who did the work.  I’m going to provide the transcript in three parts.  Here’s part I, about the roots of sovereign power in Westeros.  Part II talks about lawyers and magic. Part III will talk about fantasy literature more generally.

 

DAVID HOFFMAN: Today’s edition of Law Talk is unique in two respects: first I’m obviously not Nate Oman your usual host, I’m instead Dave Hoffman a law professor at the Temple University’s Beasley School of Law and with Nate, a blogger with Concurring Opinions. Today’s guest is distinct as well. George R.R. Martin is not a law professor, but instead a best-selling author of fantasy books including the renowned multi-volume work, “A Song of Ice and Fire.” The most recent book in that series, “A Feast for Crows,” was a New York Times #1 best seller. Martin is currently hard at work on the series’ next book, “A Dance for Dragons.” George joined me today to talk about the relationship of fantasy to law, a topic I recently blogged about several times. Along the way, we also talked about the laws of inheritance, copyright, and fan fiction; how to keep control over your work when it is filmed; remedies for breach of contract of sale in a magical world; and why most fantasy books seem to be set in England around the year 1400. I hope you enjoy it.  Ok well let’s get started, in some interviews you’ve suggested or other people have suggested that your books are fantasy for folks that don’t like fantasy. What does that mean?

GEORGE R.R. MARTIN: Well, that’s a marketing slogan but there’s a certain element of truth to that. I do get a numbers of fans who write me and say they enjoy my books but they’re not normally fantasy readers. One of the things I attempted to do when I started a Song of Ice and Fire these many years ago was to give as much of a flavor of historical fiction as of fantasy. And I think to the extent I’ve succeeded in that the books are attracting some people who prefer historical fiction to fantasy for whatever reason. I also wanted to make it a little grittier and more realistic than a lot of the fantasy that was out there at the time.

HOFFMAN: It seems like in order to make that happen, you do an immense amount of historical research and the way I think you’ve described it is you create a couple of bookshelves of information, you try to soak it all up and instead of working it in like a –

...

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Interesting example of prosecutorial discretion

The Philadelphia Inquirer has been fed the goods on a very interesting tale of prosecutorial discretion:

“The Pennsylvania Attorney General’s Office ran an undercover sting operation over three years that captured leading Philadelphia Democrats, including four members of the city’s state House delegation, on tape accepting money, The Inquirer has learned.

Yet no one was charged with a crime.

Prosecutors began the sting in 2010 when Republican Tom Corbett was attorney general. After Democrat Kathleen G. Kane took office in 2013, she shut it down.

In a statement to The Inquirer on Friday, Kane called the investigation poorly conceived, badly managed, and tainted by racism, saying it had targeted African Americans.”

There’s obviously much more here than meets the eye, including a fight between Kane and Frank Fina, who had led the state’s investigation into the Sandusky mess, and a further fight between Kane and much of Pennsylvania’s governing class.  But the details are sordid:

Before Kane ended the investigation, sources familiar with the inquiry said, prosecutors amassed 400 hours of audio and videotape that documented at least four city Democrats taking payments in cash or money orders, and in one case a $2,000 Tiffany bracelet.

Typically, the payments made at any one time were relatively modest – ranging from $500 to $2,000 – but most of those involved accepted multiple payments, people familiar with the investigation said. In some cases, the payments were offered in exchange for votes or contracts, they said.

Sources with knowledge of the sting said the investigation made financial pitches to both Republicans and Democrats, but only Democrats accepted the payments.

In explaining the decision to close the sting investigation without filing charges, Kane said one reason was that prosecutors in the case had issued orders to target “only members of the General Assembly’s Black Caucus” and to ignore “potentially illegal acts by white members of the General Assembly.”

The Inky’s reporting on this case is incredibly deep, even though it seems evidently based in leaks by someone who hates the Attorney General and wants everyone to know it.  Certainly worth reading.

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