Originally posted 2012-07-02 17:00:08. Republished by Blog Post Promoter
Sometimes an objectively big story implicating this blog’s “beat” completely escapes me. That’s what happened with the story involving The Oatmeal, a web comic, and something called FunnyJunk. It sounds awfully stupid.
I think there’s a point where it’s just not worth trying to catch up. I don’t think a lot of important law is going to come out of this dispute anyway, because we all know that hard cases make bad law. Stupid cases often make good law, on the other hand, and there is a lot of stupid floating around on this one.
Instead, in a stunning bait-and-switch, I will mention two cases which, unlike the one I did win, I didn’t win, involving real legal issues, so no one can say I didn’t tell you so.
You may remember Ascentive v. Opinion Corp., which came out pretty good for my clients, PissedConsumer.com — the Eastern District of New York said that the stupid lawsuit brought by the plaintiff was not likely to succeed, and therefore it could not have a preliminary injunction. Well, in two other related cases, we attempted to get judges to make the not-so-vast leap of faith that a case that is not likely to succeed should, really, probably just go away.
Both times, the judges said, well, where there’s a will (i.e., a will to make unsubstantiated false claims with no real good faith basis), there’s a way; plaintiffs don’t look like winners here but we have to let them have their “day in court” — meaning that, in an American Rule (no fee shifting, ever) world, we have to let them try to bankrupt the smaller company via litigation. Well, those are the rules, I guess.
This happened in New York State Supreme Court, and once in federal court in Philadelphia. Both links in the previous sentence leave it to the redoubtable Professor Goldman to address both decisions. His take on both outcomes, and the trend they represent:
Judge Buckwalter’s [Eastern District of Pennsylvania] opinion is solidly constructed in the sense that it fairly applies existing law to the alleged facts. As taxpayers, we got our money’s worth from this opinion. Nevertheless, it’s clear Judge Buckwalter and other judges lack adequate doctrinal tools to kill doomed cases early. In the end, this case is really about Amerigas trying to shut down negative reviews of its business. . . . I could imagine other judges finding more doctrinal flexibilities to address the realpolitik of this situation. I can’t blame Judge Buckwalter for failing to do so, but the result is unfortunate nevertheless.
In other words, even a smart judge can’t help it if the law is not so bright when it comes to what is, essentially, trademark bullying — a business model that remains soundly intact for the time being.
Now, go eat your oatmeal, like this guy did: