Calblog

On Posting Etiquette, Jennifer Lopez, Publicity Rights-Revisited, Coco Puffs, Frivolous Lawsuits, and 12(b)(6) Motions [Special bonus blog paragraphs included on Civil Procedure Strategies! Read Now!]

As you may have noticed, I have a few select pet peeves against those who choose to comment on my postings.

For instance, trying to correct spelling errors that I admittedly make from tme to time- not for the sake of educating my grammar skills mind you (the way XRLQ thankfully does on occasion), but rather as a cheap way of thinking that they are undermining my credibility on substantive issues by pointing to spelling mistakes, rather than debating the issues themselves.

However, my biggest pet peeve of all is those who

anonymously send comments to my private e-mail account rather than post it for everyone to see and dissect on their own. If the message contains truly private or confidential information, then fine. If it contains information regarding social invites or items that are off the topic of my posts, then also fine. But please don’t e-mail me your general comments about a post hoping to engage in an extended debate/discussion about a topic through my personal e-mail account.

One person can’t seem to take the hint despite my explicit request.

Hence, I am posting our exchanges over this issue for you to comment on for yourself. And since he keeps insisting on e-mail me personally rather than post his comments to this blog, he found me in one of my rather testy moods.

Even though this guy even went so far as to look up my listing at the California Bar website to confirm that I was indeed a lawyer, he still seems to afraid to identify himself.

Oh well. It’s irrelevant to the issues at hand as you will be able to read for yourself. The exchange is in regard to a previous blog posting found here.

Perhaps the person e-mailing me is somehow connected to the case? Who knows? He still won't reveal himself. But again, I admit this is ultimately irrelevant to the issues presented.

To my mind, the fact that Jennifer Lopez makes a music video that pays homage to Flashdance does not mean that she should be hauled into court by a woman who claims to have served as an inspiration for the film under any sort of intellectual property or publicity claim.

Although this strikes me as common sense, I have been rather amazed by the number of people who think otherwise, without putting forth new facts or cogent arguments on the matter.

This anonymous e-mail's first note stated as follows:

Subj: re: Judge throws out lawsuit against J-Lo
Date: 7/10/2004 9:46:35 PM Pacific Daylight Time

Hi. I'd like to help clarify a few things for you:

#1. U.S. District Court Judge Terry Hatter dismissed the lawsuit (not hatcher)

#2. The motion to dismiss is the earliest point at which the judge can dismiss a case, unless it has been filed in the wrong jurisdiction.

#3. The full name of the motion to dismiss was 'motion to dismiss for failure to state a claim'. The case was dismissed because it failed to state a claim.

#4. The lawsuit was not frivolous, but it was misguided. Marder wanted to be declared an author of Flashdance for her contributions.

#5. The 1st amendment does not save things like music videos when it comes to 'right of publicity' trademark violations.

#6. This case was actually quite complicated.

Regards,

an IP student who read the motion papers.

My initial response was as follows -

Subj: re: Judge throws out lawsuit against J-Lo
Date: 7/11/2004 11:39:15 AM Pacific Daylight Time
From: Levine2001

Hi. I'd like to help clarify a few things for you:

#1. U.S. District Court Judge Terry Hatter dismissed the lawsuit (not hatcher).

I'll assume that this was just a typo or just a simple mistake in communication somewhere down the line. It is obviously irrelevant to the issues of course.

#2. The motion to dismiss is the earliest point at which the judge can dismiss a case, unless it has been filed in the wrong jurisdiction.

I know. I'm a lawyer who has had extensive experience with such motions.

#3. The full name of the motion to dismiss was 'motion to dismiss for failure to state a claim'. The case was dismissed because it failed to state a claim.

But this begs the question - WHY did it fail to state a claim? Because the plaintiff obviously had no cause of action against Jennifer Lopez....If the plaintiff had such a claim, then she can simply amend her complaint and re-file it since a complaint that "fails to state a claim" is almost never dismissed with prejudice and is allowed to be re-filed when additional facts are alleged in order to state a valid claim.

#4. The lawsuit was not frivolous, but it was misguided. Marder wanted to be declared an author of Flashdance for her contributions.

And how does this involve Jennifer Lopez exactly?? If she has evidence to show that she is an author of the Flashdance movie, she needs to be suing the creators of the film - NOT someone making a music video that pays homage to it.

#5. The 1st amendment does not save things like music videos when it comes to 'right of publicity' trademark violations.

I know. I'm a lawyer who has had extensive dealings with such issues. While I always felt as a matter of opinion that the right of publicity should be declared unconstitutional and that current interpretations of trademark protections are overly broad, my arguments obviously differ from many court opinions. The point is that publicity rights SHOULDN'T trump the 1st Amendment as a matter of preferred policy (if you are serious about free speech at least). My comments were not meant to suggest that there isn't a large body of court cases that ignore such free speech concerns. There is always a difference between debates on what Constitutional interpretations should be, versus the various court rulings on such issues.

#6. This case was actually quite complicated.

an IP student who read the motion papers

This statement is an attempt to seem like you are debating the issue when it is in fact merely a ruse to avoid them. HOW is it complicated exactly? If was so complicated, then why on earth did the judge dismiss the case for failing to state a claim? Do we need to make sure that the judge is thrown off the bench for incompetence perhaps??

Regards,

Justin Levine - An IP attorney who likely knows much more about such matters than most students, even though I appreciate their opinions.

P.S. - any future comments should be posted in the "Comments" section of the blog so that they may be subjected to public scrutiny. I am always suspicious of anonymous people who are afraid to make their challenges public.

[end of initial response]

Simply ignoring my request about posting in the Comments section, the anonymous e-mailer sent me another response. His second e-mail and my responses are reprinted here:

Subj: Re: Judge throws out lawsuit against J-Lo
Date: 7/11/2004 1:50:52 PM Pacific Daylight Time

"the plaintiff obviously had no cause of action against Jennifer Lopez"

Plaintiff was trying to be declared a co-author of FLASHDANCE. If she succeded, as a co-author she had rights against Lopez's derivative work "I'm Glad".

But she wasn’t declared a co-author of Flashdance, was she? And why was that? Did she allege to have a hand in actually writing the script? Did she have a contract with the distributing studio that she would be considered a co-author of the finished film? If she didn’t allege either of those things then her claim as a co-author is frivolous and unfounded.

But let’s say these facts did occur and that she should be considered a co-author of Flashdance. How does give her rights in regards to Lopez’s music video exactly? To suggest that an homage is a “derivative work” under copyright law is simply staggering and would have broad implications in depriving untold numbers of works from free speech protections. So because Lopez recreates some dance moves first featured in Flashdance, this means that Marder is entitled to money from her? This doesn’t even begin to pass the laugh test. And if any lawyer thinks otherwise, it is simply proof of the shoddy state of legal culture in this country.

"she can simply amend her complaint and re-file it since a complaint that "fails to state a claim" is almost never dismissed with prejudice and is allowed to be re-filed when additional facts are alleged in order to state a valid claim."

Nearly every 12b6 I worked on that was granted resulted in a dismissal with prejudice. My experience is in federal court, so maybe things work differently in state court, but if the claims could never succeed as a matter of law assuming all facts in the complaint are true, it gets dismissed with prejudice.

We must live in two parallel legal universes. Ladies and gentlemen, I’m going to give you some free and invaluable legal advice for you to read in regards to legal Civil Procedure that was passed down to me by a mentor and has ended up serving me well over the years. You can thank me later. But for now, I’ll simply ask that continue reading and then let you decide who is right in regards to this question….(though anyone with extensive litigation experience will already know of course.)

First, let’s start off with basic terminology. For a court to dismiss “with prejudice” means that a plaintiff cannot re-file a claim in the future regarding the same circumstances and events alleged in her complaint. It essentially closes the case once and for all.

To dismiss “without prejudice” on the other hand means that the court has tossed a plaintiff’s case out, but she is then allowed to re-file her complaint at a later date assuming that certain defects in the complaint are cured (i.e., perhaps she filed the claim in the wrong court/venue, perhaps she accidentally left out a fact in her complaint that is critical in alleging a claim).

A federal 12(b)(6) Motion to dismiss for failure to state a claim is the federal equivalent of a demurrer in state courts. It essentially says, “Let’s assume everything the plaintiff is saying is true. So what? She doesn’t state a legal claim in her complaint.” The court can only look at the complaint itself in ruling on a 12(b)(6) motion and cannot consider any other supplemental evidence.

Despite what this posting attorney claims, courts will almost always grant a plaintiff leave to amend a complaint when tossed out on a 12(b)(6) motion.

For instance, let’s say Marder’s complaint simply stated, “Plaintiff is a blue-collar factory worker who pursued dreams of becoming a dancer. Defendant Paramount made a film Flashdance about a blue-color factory worker who aspires to become a dancer. Therefore Defendant Paramount violated Plaintiff’s copyright. Furthermore, Defendant Lopez made a music video recreating specific dance steps found in the film Flashdance. Therefore, Defendant Lopez violated Plaintiff’s copyright.”

Such a complaint would not survive a 12(b)(6) motion to dismiss, even if the court assumes the stated facts are true. Such facts alone do not constitute copyright violations in regards to Plaintiff Marder.

But now let’s say that in the 12(b)(6) hearing, Marder tells the court, “Oh. I forgot to include in the complaint a line that stated, ‘Plaintiff wrote the Flashdance script with Paramount producers and reached an explicit oral contract that she would be considered a co-author of the finished film. Furthermore, Plaintiff had a written contract with Lopez that she would share revenues from her music and any video featuring works inspired by Flashdance.’ I meant to include that line your honor, but it somehow must have gotten deleted in the word processor accidentally….”

Do you think a judge will say, “Too bad! You’re out of luck! I’ve already ruled on this case.”?

Think again. Almost all judges will say, “Ok. I’ll have to toss this complaint. But you go ahead and put the new facts you are alleging in an Amended Complaint and re-file it. You will have to pay a re-filing fee of course, but I’m not going to deprive you of your day in court due to a slip-up like that.”

Facts that can’t succeed as a matter of law will result in dismissal with prejudice under the rules if it is determined that all the facts have been laid out on the table. But a 12(b)(6) motion does not prevent a Plaintiff from alleging new facts in an amended complaint that can succeed as a matter of law. That is the key issue here that this attorney poster seems to be ignorant of.

Based on the news reports of Marder’s complaint against Lopez, I justifiably concluded that her complaint as to Lopez was indeed frivolous. If she alleges new facts that weren’t contained in her complaint (and thus not reported in the media) which suggests a legitimate claim against Lopez, I’ll be happy to address the issue separately when that occurs with a new and fresh look at things. But the fact that Marder hasn’t done that so far speaks volumes.

Baring strange and unusual circumstances, there are only a few select instances when a 12(b)(6) motion will be dismissed with prejudice:

1. The Plaintiff has already filed so many amended complaints in regards to a claim that a court will determine that the entire enterprise is a frivolous fishing expedition which wastes the court’s time and resources.

2. A statute of limitations bars a claim, or facts conclusively bar a court’s subject matter jurisdiction.

Beyond that, courts will almost always let Plaintiff’s state additional facts in an amended complaint if it will allow the case to then be heard on the merits. Oftentimes, they won’t say “dismissed with prejudice” or “dismissed without prejudice”. They will simply say “dismissed”. It is often up to the lawyer to figure out that one can then file a leave to amend.

Any other lawyers out there wish to chime in on this? Maybe my challenger is right. Maybe I am living in the Twilight Zone here and am simply recalling phantom hallucinogenic thoughts on the Federal Rules of Civil Procedure that have no basis in reality.

While I’m on the subject, here’s my advice regarding Demurrers and 12(b)(6) motions. As a general rule – don’t do them. You heard me right – don’t do them.

Why do you ask? Simple….It’s a waste of time and money for your client. By filing one of these motions, all you are doing is highlighting to Plaintiff what is wrong with his/her complaint. Then the Plaintiff will merely correct the error by filing an amended complaint while you the defense lawyer charges your client for the time spent constructing a motion that accomplishes nothing in the end (unless your lucky enough to go up against an attorney/plaintiff who is unaware that once can simply file a motion to amend the complaint).

It is far better to file an ANSWER to the complaint. This then locks in the Plaintiff’s pleadings with all of its deficiencies for the rest of the proceedings. The court can ultimately allow an amended complaint to be filed after your answer, but the bar for granting such a request is often much higher and it tends to make the judge rather annoyed at the one asking for such a favor.

As with all general rules, there are of course exceptions. There are only 3 good reasons to file a Demurrer/12(b)(6):

1. As discussed above – a statute of limitations or jurisdictional issues bar a claim from being heard.

2. You are absolutely certain that a Plaintiff will not be able to allege new alleged facts in the future that would survive a motion to dismiss (no matter how hard they might be able to prove). (Maybe this was the case in Marder’s complaint – in which case it strengthens my argument in criticizing her allegations of so-called “claims” against Jennifer Lopez.) Or perhaps they can allege new facts but you are quite certain that they don’t have temerity to go through the filing process again.

3. What is called by some attorneys as the “Orphan Elephant Syndrome” wherein you suspect that Plaintiff may have a viable claim but is being strategically vague in the Complaint and you wish to force them to show more of their hand. (i.e., let’s say a cause of action has 4 elements to it, but facts in the complaint only speak to 3 of the 4 elements, or the facts alleged are too vague. There may be situations where you wish to force the Plaintiff to show more of their hand in the case upfront, so you would file a 12(b)(6) motion, wait for them to file an amended complaint if you succeed on the motion, then ANSWER the amended complaint, locking in the pleadings.

Also bear in mind that filing a 12(b)(6) motion with a declaration of facts can convert it into a Rule 56 motion for Summary Judgment. A successful ruling on summary judgment will dismiss a case with prejudice since that is essentially a ruling on the substantive merits of a case. You will not be able to re-file your case in such an event. So it is important to keep in mind the difference between as Rule 12(b)(6) motion and a Rule 56 motion. If the posting attorney still maintains that it was a 12(b)(6) motion (versus a Rule 56 motion), then I remain confident in my comments regarding Marder’s case in regards to civil procedure.

This is valuable advice that you don’t get in most Civil Procedure classes folks. You can thank me later….Right now, I need to get back to Fisking the comments of this poster.

"she needs to be suing the creators of the film - NOT someone making a music video that pays homage to it"

Marder was suing the makers of the film, sony, AND lopez. Paramount and Sony/Lopez filed seperate 12b6 motions.

Good to know. But since my post was about Marder’s lawsuit against Lopez (not the studios), I don’t see how this is relevant to my arguments as to why Marder’s lawsuit vis-à-vis Lopez was frivolous.

"This statement is an attempt to seem like you are debating the issue when it is in fact merely a ruse to avoid them. HOW is it complicated exactly?"

Because if you read the complaint, Marder alleged... I think it was 6 or 8 causes of action. Part of the complaint was against Paramount to be declared a co-author and for an accounting. The other claims were against Sony and Lopez for state law claims of right to privacy, trademark 'right of publicity', copyright infringement, and a few others I can't recall. The issues were complicated because the various issues between Paramount/Marder would have to be resolved first to determine Marder's rights in FLASHDANCE, and then once that was determined, then Marder's claims against Sony/Lopez could be. Of course copyright was only one of those claims, so a seperate analysis would be needed to determine why each state law claim should also be dismissed.

As a side note, Marder’s claims against the studios would also be frivolous unless she claimed that she actually helped write the script or direct the film herself. Did she make such allegations? If not, then she has no claim. Her life story might have inspired Flashdance, but that doesn’t give her any legal claims to it since authors are allowed to use inspiration and ideas from various sources without getting permission from them in order to create their works. What is it that Marder created (i.e., “fixed in a tangible medium of expression”) that the studios and J-Lo copied exactly??

If you can’t answer that simple question – then there is no legitimate copyright claim.

As to a right of publicity. How was her image/name used in either Flashdance or J-Lo’s music video exactly??? The character’s name in the film is “Alex Ownes”, not “Maureen Marder”. So how does Marder’s recognizable personality fit into this film exactly? Did the actress Jennifer Beals look just like Marder in the film? Did Jennifer Lopez in her music video?? Since Marder isn’t a celebrity, should this even matter under a “publicity” claim?

Obviously no legitimate “publicity” claim here against any defendant.

As to trademark claims – what goods or services did Marder make that was causing consumer confusion when people went to see Flashdance or Jennifer Lopez’s music video? If the answer is “none” – then that is also telling about the worth of Marder’s complaint.

And by the way – why Marder wait close to 20 years before filing this lawsuit? Flashdance was made in 1983 after all.

If she did not have a hand in writing the actual script or creating the film, then at best, she only has a contract claim against the film’s producers a la “Buchwald v. Paramount”. I don’t know the specific facts in this regard, so it is possible that she had such an explicit contract. But if she merely provided inspiration for the story without a contract – she is out of luck. And even if she did have such a contract, any obligation under it would not extend to Jennifer Lopez since there is no privity with her.

But frivolous lawsuits such as Marder’s are unfortunately all too common when people think that they can copyright mere ideas that might have served as inspiration to others.

"the right of publicity should be declared unconstitutional"

Let us say you are Shaq. You hate Coco Puffs cereal. Coco Puffs starts to feature the faces of prominent black atheletes on their cereal boxes, eating Coco Puffs. You publicy call this racist, because you think the word "Coco Puff" is slang derogatory to black atheletes. Finally, Coco Puffs is released with a big photoshopped picture of Shaq (you) eating Coco Puffs and smiling. But for 'right of publicity', you have no claim and no way to stop this. Celebrity endorsements would largely disappear because you could use famous person's likeness to endorse your products and help your sales without paying those people a dime. Nike would love to sell Air Jordans without paying MJ tens of millions of dollars.

My views on the right of publicity have been well parsed out elsewhere in this and other blogs. As I have stated previously, I would allow a claim in the narrow instance when it is clear that a product is alleging that someone officially endorses their product when it is in fact not the case. So I would allow a claim to go forth under your hypothetical. But I have always maintained that it should be brought under common law “false light” claims – not the statutory right of publicity which goes well beyond such scenarios (By the way – your claim of “but for the ‘right of publicity’ you have no claim and no way to stop this” is ridiculous. False light claims have been around much longer than statutory “publicity” rights. It is also interesting to note that few states have such publicity statutes.).

So now let me give you a hypothetical. A bobble-head doll maker makes an image of Arnold Schwarzenegger holding a machine gun. Arnold (and his wife) doesn’t want him to be associated with guns, so he threatens to sue the doll maker under a right of publicity claim. Does this hypothe….ooops! I forgot. This isn’t a hypothetical. This actually happened!

Do you maintain that the doll-maker doesn’t have a free speech right in this regard? If you believe in the right of publicity, then surely you would agree with Arnold here right? And if you do, then it should be clear to everyone that you have no regards to the First Amendment. That simple. I don’t think it so radical to suggest that this unconstitutionally infringes free speech. Others agree – even if you don’t.

To summarize – the clear and unmistakable implication of a product endorsement should be actionable when the person whose image was used does not in fact endorse or use the product. But there mere unauthorized use of another’s image in a work should not be actionable, even if the work has some commercial properties to it.

So let’s now bring this back to Marder’s case. Was Jennifer Lopez suggesting that Marder was endorsing a product??? Didn’t think so.

Was Jennifer Lopez using Marder’s image or likeness at all??? Nope. At best, she made an homage reference to the actress Jennifer Beals who played a character named Alex Owens, who Marder claims was loosely inspired by her since both characters were blue-collar workers who moonlighted as dancers.

And for this Marder is claiming a violation of a right of publicity???? You’ve got to be kidding me!

This is the equivalent of a singer making a music video which pays homage to the film the Sandlot and then having Michael Sandavol sue the singer! If you don't get the reference here - check out this case which is directly on point with the current discussion.

If you can’t see how this isn’t a clear indication of the First Amendment chilling effects from the “right of publicity”, then I just don’t know what else to say to you beyond, “I hope the Kool-Aid tastes good.”

p.s. Given your comments in that post I actually did not believe you were an attorney, let alone an IP attorney. Maybe you just spoke rashly. The 'i.p. student' was not literal, I have graduated from law school, I merely have a particular interest in ip matters. I did not email you to argue, instead it was to inform you. I have read the complaint and the motion papers and you have not, so I don't see any room for argument. Many of your opinions regarding this case, without having read the motion papers, are just assumptions. The law firm that represented Marder is a prominent, respected IP firm in los angeles. They likely know much more about such matter than both of us combined. ;)

So now let’s address the most arrogant and ignorant comments that you have stated.

“Given your comments in that post I actually did not believe you were an attorney, let alone an IP attorney. Maybe you just spoke rashly.”

What exactly was it in my post that caused you to not believe that I am an attorney? Can you quote a specific passage in the post for me that you feel is “rash”???

“I did not email you to argue, instead it was to inform you.”

But you obviously wish to “inform” me in order to take issue with my comments. So this statement is pure sophistry on your part. All “arguments” aim to “inform” the other side.

“I have read the complaint and the motion papers and you have not, so I don't see any room for argument. Many of your opinions regarding this case, without having read the motion papers, are just assumptions.”

This statement is just too silly for words. But unfortunately, many people with advanced degrees fall into this trap (especially lawyers). The trap is this – you think that you can use some experience or schooling in order to shut off a debate rather than contribute to it. Rather than using your extra knowledge to suggest why I might be mistaken, you essentially take the attitude of “Well, you should just take my word that I know about more this subject than you do, so you can just shut up right now and not even bother debating me.” This is a tactic that is often used by a variety of professionals that are very insecure about the positions they hold. The reason you feel that there is “no room for argument” is that you can’t back up your own arguments, so you try and find a cheap way of shutting down the whole discussion.

The fact is that our status as lawyers is irrelevant to our ability to judge and comment on these issues. The only reason I wrote the line about my being an attorney is to throw back in your face the technique of claiming to be an “IP student who read the motion papers” as a substitute for credibility in this debate rather than establishing credibility based on arguments. Anyone can debate these issues knowledgeably and credibly. Not just lawyers. So I usually leave my “credentials” as a lawyer out of the equation unless someone seems to mistakenly suggest that it is somehow important.

Of course there is room for argument in this matter (contrary to your assertion). And I am perfectly willing to let the blog community read this and make their own decision.

I am making assumptions about this case – true. I feel perfectly justified in doing so because I have read media accounts of the case from a respected news source. That is how most people form opinions on most issues since they don’t have access to original documents – only media accounts of the documents.

Have you actually seen Jennifer Lopez's music video that helped to spawn this case? Under your rationale, even someone who read the court papers shouldn't be able to comment on the case if they haven't seen the video in question.

If you have read the actual motion papers and judgment decision, then it should be very easy for you to cite, or at least paraphrase any stated facts about the case that the media failed to report on that would in turn challenge my assumptions and conclusions.

Since you haven’t done that – it only strengthens my opinions about this case and tells me that my assumptions are quite justified.

So I will again put the question to you directly: What are the facts in this case that I don’t know about that would lead me to conclude that Marder’s claims against Jennifer Lopez are not entirely frivolous?

If there are such facts, then why did the judge grant the 12(b)(6) motion in the first place? Did he simply not read the complaint?? Do we need to remove him from the bench for incompetence???

This is the whole crux of my argument that you seem to have absolutely no response to: I declared Marder’s lawsuit regarding Jennifer Lopez to be frivolous. A judge granted Lopez’s motion to dismiss “for failing to state a claim” which certainly backs up my contention. But instead of acknowledging this, you try and clumsily defend the indefensible by suggesting that its “more complex” than I suggest and that she it isn’t really frivolous, just “misguided” (even though the very reason that it was “misguided” was because it was in fact frivolous, so I don’t know what you meant by that comment), then you say that you doubted the fact that I am an attorney because I spoke “rashly” about the case without stating a single passage in either my posting or Marder’s complaint to back up your contention.

I continue to be utterly astounded by the people defending this lawsuit even after it was thrown out by a judge.

If there is one minor point that you may have helped to clarify, it is simply to confirm that the case was indeed thrown out at the earliest possible point and did not go through a lengthy discovery culminating in a summary judgment as the California News Service account mistakenly reported and I originally commented on. For this I thank you. But the tone of your other comments is frankly inexplicable.

“The law firm that represented Marder is a prominent, respected IP firm in los angeles. They likely know much more about such matter than both of us combined.”

I can’t speak to the firm as a whole that you fail to name, but I feel confident in knowing that I know more about IP law than the individual who filed the case since I could have warned him/her ahead of time that any claims by Marder against Lopez would be thrown out. Just like I feel confident in knowing that I know more about libel law than USC Professor Erwin Chemerinsky. If they knew more than I do about such subjects, then they wouldn’t go around making silly statements to the press or filing motions that can’t get past a simple 12(b)(6) ruling regarding Jennifer Lopez that anyone with a rudimentary knowledge of IP law would have foreseen.

It has been my experience that a mere association with a law firm has little to do with knowledge of a subject. On the contrary, attorneys who work for law firms are often biased advocates that need to make monetary quotas which often distorts clear and objective thinking on issues. So I don’t think much for your declaration in this regard either.

Legal debates can quickly become convoluted because sometimes people argue (a) what the law should be as a matter of policy, while other times they try to argue (b) what the current state of the law objectively is. The fact that many aspects of law are murky allows people to argue (a) and (b) essentially at the same time without giving notice to people which category they are addressing during any given section of the argument. I have sometimes been guilty of such in certain instances (unintentional as it may have been).

But sometimes, (a) & (b) converge in such a way that legal precedent manages to coincide with one's personal policy views.

My various postings hopefully will convince people that I am right under (a), while the rulings of others also happen to prove me right under (b) in this particular instance.

Please note that any future comments directed to my e-mail account will simply be reposted on this site. Since I am copying your words to me and reposting them here without your permission, perhaps you feel that you have claims against me for copyright and privacy violations? If you actually believe that Marder had legitimate claims against Jennifer Lopez, then the notion shouldn’t sound so far fetched.

I look forward to being served and answering the Complaint…