Friday, Mar 5, 2010
Tuesday, Feb 23, 2010
They hope it'll help prevent wrongful convictions. One of the outside advisors will be Barry Scheck, founder of The Innocence Project. The unit, according to WNYC, will go back through old cases where innocence claims have already been.
Thursday, Mar 4, 2010
I got a copy of the letter (below) the City Attorney sent to The Linkery, a restaurant in San Diego, yesterday and now can see exactly which sections of the law they're accusing them of violating. I brought up a case yesterday that didn't exactly settle the legal issues -- whether The Linkery's mandatory tip policy means they're advertising one price and then charging another.
There's really not been any meaningful cases over this particular section in the state code. There was one, involving Kmart -- but the appeal really focused on whether the law covered the kinds of things Kmart sold or if it only, as Kmart argued, applied to things that are placed on a scale and weighed at the time of checkout. The court found it was the latter, and Kmart lost.
The case may come in to play here, because ultimately, the City Attorney needs to convince a judge that ordering food, having it prepared and delivered to you (whether at your table, or across a counter for take out) can't really be separated out as separate "commodities" when it comes to a restaurant. They'll argue that really, that's what a restaurant is in the business of doing -- serving food and its prices should already take that in to consideration.
That's key.
The Linkery's lawyer, when they get one, will argue the opposite. They'll say that service is a separate, distinguishable "commodity" that they can charge separately for. They'll argue that in any event, they're allowed to negotiate an extra fee for someone bringing the items you ordered to your table (and I used that term in the sense that you sit down and order knowing about the fee, so you've 'negotiated' that it's okay. Weird, I know, but that's how these things work, legally.) because it's a separate service from the food. And, the law says you can negotiate extra fees as a condition of sale, but those almost always explicit (ie, a $50 membership to Costco, instead of say, an extra 5 percent on every purchase you make at Costco).
Ultimately, to settle the legal issue, the court is going to look at the legislature's intent when they wrote this law. Just so happens we have a pretty good record of just what they intended:
This legislation enacts into law a requirement for retailers to charge the lowest price for the product that is displayed and not the higher original or regular price for the item. This requirement is consistent with the stated policy of most retailers in California and helps to prevent retailers who do not comply with this requirement from obtaining a competitive advantage over retailers who are in compliance.
So, the legislature was concerned about stores who say, leave a sale tag up too long or aren't very careful about putting the right price tags on the right product. They wanted to make sure us customers got the lowest price posted, even if it was a mistake. Doesn't seem to have much to do with the facts and issues in The Linkery case ... but ...
Because of the volume of items in stores, the very large number of price labels and shelf price tags, the very limited size of shelf price tags and price labels that practically restrict the inclusion of meaningful information beyond the stated price itself, the confusing nature of expired or premature sale price tags on currently offered items, and the posting of the sale price tags at many different heights and locations, it is very difficult for consumers to notice or remember any time limitation placed on a posted price. Therefore, a disclosure provision requiring a certain size, typeface, or location specifying the limited duration of the sale would not effectively provide consumers with accurate sales price information or prevent posted expired or future 'sale' price tags from being confusing.
This is where it gets a little tricky. The legislature was concerned about people being confused about the price they're going to pay. Some might argue, but is unreasonable to assume that after a night of multiple people ordering cocktails, salads, sodas, appetizers, entrees, deserts, that it'd be near impossible to know what you're actually going to pay for an item when the total bill will have an arbitrary 18 percent markup at the time you checkout? Couldn't that very easily be construed as confusing?
The Linkery's main argument is hey, we tell people about the charge on our menu and with a big sign. Notice though, that the legislature intended that not be a defense. They even said, requiring that disclosure, even if we regulated the placement and size, wouldn't do enough to make sure consumers aren't confused about the actual price of the items or "commodities."
None of that bodes well for The Linkery. There are a couple of solutions that might work -- mark up the food price of each item 18 percent and tell customers why in another notice. Show two prices, the original and the additional cost once the 18 percent is added.
There is, though, one price that will save The Linkery a lot on lawyers fees. Drop the policy and let people decide the issue of tipping servers for themselves.
JB writes:
Wednesday, Mar 3, 2010
Your legal note about the hotel service fee is interesting and probably relevant, but I wanted to highlight two misconceptions in your piece. First, it is important that 100% of the service charge at The Linkery goes to the staff that makes and serves the food, so the owners are not trying to underhandedly "skim off the top." Jay Porter, who wrote the blog entry you reference, makes that clear in one of the comments below the entry.Fair enough. We'll see how attached they are to the policy when they find out that if they really are breaking the law, the penalty could be up to a year in jail or a thousand dollar fine for each violation. That harsh a punishment is unlikely, but is it really worth the risk, both in terms of the punishment and the cost to fight, just for the sake of being different? After all, how many restaurants do just fine letting their customers make the decision about how much and when to tip?
Second, you ask whether it would be cheaper to just change their policy, but to ask the question is is a little disingenuous. The restaurant takes a certain pride in doing things the right way, not the traditional way, and chose to move from a tipping system to a service charge system after very careful consideration. Second only to the way they source their ingredients and prepare their food, I think their service charge policy defines them as a business and a group of people.
The Linkery, a restaurant in San Diego, has a policy of automatically adding 18 percent to customers bills in lieu of tips. They call it a "table service charge." Today, the Linkery's owner posted a note that the San Diego City attorney told them this illegal, that they're advertising one price for food on the menu, then charging another by adding what amounts to a mandatory gratuity.
Monday, Mar 1, 2010
The Linkery notes the charge on its menu -- I've eaten there (and for the record, am not a fan of mandatory gratuities because 1) I should get to decide how much or how little I want to tip and 2) it provides a legal mechanism for the restaurant to skim off the top before they give the tip to the employee) -- and it's pretty obvious.
So does the city attorney have a case? Maybe.
The 4th Court of Appeals of California has addressed this most recently, in a roundabout way. A man staying at a hotel sued the hotel after he was charged a service fee that really amounted to a tip for the people who brought him room service meals. He said the because the hotel didn't tell him it was a tip, it was illegal under California law because it was deceptive. Essentially, he was tricked into giving a tip that otherwise, he could've chosen for himself to give or not to give.
The court disagreed.
In the end, we find that how and what a hotel pays its room service servers is a matter between the hotel and the servers. ... Because there is no allegation the hotel deceives its guests about the costs of its room service meals and be-cause patrons are free to both obtain meals outside their rooms and to provide as small or as large a gratuity as they wish, the hotel's billing practice is not actionable. Searle v. Wyndham Hotels, 102 Cal. App. 4th 1327 (2002).Emphasis added. The case isn't entirely on point, but that bolded part might just be the catch for the Linkery, because it seems the city attorney is saying they're doing exactly that--deceiving people about the cost of their meal. That's a stretch because, ultimately, even though it's hard to calculate what it'll be as you're ordering, the charge is disclosed on the menu.
The Linkery says they're hiring lawyers, so it seems they're gearing up for a fight.
Wouldn't it be cheaper to just change the policy and let guests decide what they want to charge for themselves? Or is the real reason the Linkery wants to fight this is that because when it's billed as a service charge, they can legally hold back a portion for themselves whereas all tips have to go straight to the employee?
I'm interested to know.
A judge in Texas recently ruled that an airport security guard can sue a radio host for calling him "gay" on the air.
Friday, Feb 26, 2010
Henry Robinson alleged the imputation that he is homosexual was defamatory as a matter of law in his suit against Rickey Smiley of the Dallas radio station known as "The Beat." Smiley referred to him as the "gay security guard" in a February 2009 broadcast after an incident several days earlier at the Dallas Love Field Airport. The U.S. Supreme Court struck down Texas' sodomy law in Lawrence v. Texas, 539 U.S. 558 (2003).But in denying Smiley's motion to dismiss, U.S. District Judge Reed O'Connor said earlier this month that "No case appears to address whether imputation of homosexuality continues to be defamatory as a matter of law in the wake of Lawrence.""At a minimum," he concluded, "judicial caution requires the Court to acknowledge that the imputation of homosexuality might as a matter of fact expose a person to public hatred, contempt or ridicule."
Actually, Judge Reed -- the Second Circuit has addressed this. They said a book saying that Anna Nicole Smith's lawyer was (probably?) gay couldn't be defamatory per se, in light of Lawrence v. Texas. Okay, I know, that's all the way up there in New York and this is Texas. But... really?
Danny Holloway has been in prison for the last eight years, but DNA tests show that blood on the presumed murder weapon didn't match the victim. From the AP:
Judge Eric Clifford's ruling sets aside Danny Holloway's manslaughter conviction and 20-year-sentence. He has been in state prison since 2002 for the stabbing death a year earlier of 17-year-old Ashley Lee during a brawl outside a seedy hangout in Paris, about 90 miles northeast of Dallas.Tests conducted last year on the bloody knife prosecutors say was used to kill Lee do not match her DNA profile, according to court records."I cannot think that the knife introduced (into evidence) would not have had some influence on the jury," Clifford said. Holloway's bond was set at $75,000. He was returned to the Lamar County Jail.
The issue is hardly settled here in California and now, Texas is dealing with a similar situation.
Wednesday, Feb 24, 2010
David Jennings was on parole, 30 years after his first sex crime against an eight-year-old boy, for a non-sexual offense. He violated and Texas decided to put their most stringent sex offender requirements on him, what they almost humorously refer to as Condition X.
Jennings refused to follow the new conditions on his parole and instead, sued the state. A federal magistrate judge found that they way Texas chose to apply Condition X -- and because Jennings was on parole for a non-sex offense -- violated his right to due process. The state appealed and the 5th Circuit heard arguments on Feb. 2. A decision is expected soon.
Like Amnesty international, The Medill Innocence Project is worried about Henry Skinner, too:
Now the clock is ticking on another Texas death row inmate who has steadfastly maintained his innocence - with credible evidence to support his claim. The condemned man is Henry Watkins "Hank" Skinner, and much of that evidence was unearthed by the Medill Innocence Project and reported in the January 28 and 29 editions of the Texas Tribune, "Case Open" and "Case Open: The Investigation". Yet, Skinner faces death by lethal injection on March 24, less than five weeks from now. (Due to a clerical error, a state court judge yesterday delayed the scheduled execution by a month.)
In this month's Popular Science, I talk with some who are trying to commercialize a technology they say might help courts sort the truth from a lie. The question is whether the tech -- which made inroads during the sentencing phase of a capital case in Chicago late last year -- is reliable enough to justify putting someone in prison.
The two companies marketing fMRI lie detectors, No Lie MRI in California and Cephos in Massachusetts, have reported accuracy rates from 75 to 98 percent. That's not good enough, says Joy Hirsch, director of the Program for Imaging and Cognitive Sciences at Columbia University: "Someone's life could be in the hands of this technology."
Late last week, a federal judge temporarily blocked the enforcement of several of San Diego's campaign finance ordinances after the Republican Party of San Diego filed suit. Judge Irma Gonzalez said some of the ordinances, like limits on spending should subjected to a standard called "strict scrutiny" -- a legal test to determine if a law is constitutional that's particularly difficult to pass. Other ordinances, like the $500 limit San Diego places on contributions, should be subjected to a less rigorous standard, according to the judge.
Judge's hand out preliminary injunctions -- as Judge Gonzalez did in this case -- only when they think the party asking for them has a chance of succeeding if the lawsuit moves forward. Eventually, the court could make the injunction permanent once and if the plaintiffs prove their case. That's what everyone expects will happen, but, it's not guaranteed.
