I make no secret that I am a fan of Creative Commons.

Though the system has it’s flaws it, overall, is a great idea that is well-executed.

But there is a pretty severe limitation to the system, it requires the copyright holder to take action first. If the copyright holder does not proactively license his or her work under a CC license, it is locked away and there is precious little help in getting the potential user of the work permission, even if the owner might be willing.

This is why there is a need for a CC system that starts with the user and works backwards. This could be a boon not just for the sharing and reuse of copyrighted works, but also for the Creative Commons Organization itself.

Though this is just an idea, I want to lay out how such a system might work and what the benefits/limitations might be to get the conversation rolling.

How It Might Work

The problem is pretty simple. If a potential user finds a work they want to ask permission to use and it isn’t granted universally, as through a CC license, they have to ask permission. However, few people are comfortable doing that and even fewer know how to do it properly, with full legalese.

A reverse CC system could fix that by having the user pick out the license that they need/want and then emailing it in the form of a permission request to the rightsholder via email. All the user would have to do is pick the rights they need, enter some information about the work, and then send it. This could also be used in situations where the copyright holder has a CC license but the user needs more permissions for a one-time use.

Ideally, this permission request would come in a similar format to current CC licenses, with first an easy-to-understand version of the terms and then a legalese one to satisfy the lawyers. Ideally, such a request would be usable both by smaller copyright holders, who might be unfamiliar with CC licenses and big corporations who have much more standardized permissions systems.

Such a system could do a lot of good for the copyright climate on the Web and it doesn’t take much imagination to see its potential.

Why It’s Important

While there are stock letters that can achieve much of this effect, they are not intuitive and they can be very intimidating. The easier this process is made, the more likely people will ask permission and the clearer things are to the copyright holder, the more likely they will say “Yes”.

Also, since this license would be CC-branded, it would be a good chance to introduce the CC brand and licenses to people who don’t use them. It might encourage the spread of CC licenses or at least awareness of the name.

Most importantly though, it would give users the tools they need to quickly, easily and effectively ask for permission to use work. This could drastically reduce disputes about who gave permission for what and the nature of the use. By getting these requests into a more structured format, everyone can understand them better making them more clear and forcing people to spend less time on them.

It’s a win-win for both rightsholders and potential users alike.

Some Limitations

A CC-style system for asking permission would not correct the biggest problem with rights clearance, the time required to do so.

Most Creative Commons searches for a work are done for some immediate need such as an image for a written post or a clip for a video in production. Usually, in these cases, there are many similar works that can perform the task and the key is to find one that is properly licensed. A good example is looking for a CC-licensed image of a sunset for an article.

This method would only be useful in situations where a very specific work was needed and waiting was possible. If there is no specific need, there is likely enough CC-licensed or otherwise available works that you can find what you need quickly. If you can’t wait, then the project is probably dead regardless.

Such a system would also face strong issues in terms of internationalization and problems. Though the CC Organization managed to largely resolve the internationalization issues with their main product, it might be too heavy of a load to go through it again, especially for something likely to be rarely used.

Furthermore, this is heavily prone to user mistakes. It requires the user to know what work they needs, be able to find the right copyright agent and then contact them. While this is a simple task for blog posts and Flickr images, it isn’t easy for music and movies. In fact, there are many people who are paid very good money to figure out just those issues.

Despite these limitations, there are still many situations where such a permissions system would be useful, especially for students and others who are assembling larger projects over a period of time. Best of all though, it would be a way to introduce copyright holders who do not use CC licenses to the concept and bring them, even if just with one or two cases, into the fold of sharing their content.

Bottom Line

Though there would be flaws and limitations to this system, it would also fill an important gap within the current licensing system and make it possible for users to effectively initiate the licensing process.

Though Creative Commons was right to start with the system it did as it is both easier to implement and more likely to be widely used, there is still a need and an audience that is unserved by this licensing revolution that could be an opportunity for all involved.

As great as standardized licensing is, it is a one-way street without standardized permission requests as well. It’s time to empower the user too and help them open up new doors for themselves and rightsholders.

[thanks to giuli-o, jonathansin, and jonathan bailey via cc]

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A dog bite can be almost as traumatic for the owner as it is for the victim. In addition to the obvious concerns about the well being of the victim, a dog bite can have serious financial implications for the owner and can be a matter of life and death for the dog.

The Common Dog Bite Myths

There are as many myths about the law surrounding dog bites as there are breeds of dog. Some people will tell you that the law says that any dog that bites must be put down; others will say that a dog can’t be destroyed for a single, isolated incident. They’re both wrong. The old common law rule was that a dog owner could be held liable for his pet, but that “every dog is allowed one bite”. In other words, a single incidence of aggressive behavior wasn’t enough to doom the dog, but the owner was on notice from that point forward and would be held fully responsible for any future attacks. However, many places have introduced laws to replace this old rule, and this will be what determines what happens in the case of a dog bite. Here in Newfoundland and Labrador, that law is called the Dog Act and it says that a dog owner is liable for the actions of his dog, regardless of whether or not the dog has a history of aggressive behaviour. Ontario has a similar law, as do many other jurisdictions. It also gives a court the power to order any “dangerous dog” destroyed if it is satisfied that the dog is truly dangerous or has attacked a person or other animal. In most cases, the authorities can’t just destroy your dog without getting an order from a court, and if things do get this far you have a right to be heard and present your side of the story.

Action Steps to Take If Your Dog Bites Someone

So, what should you do if your dog bites someone? The first and most obvious thing to do is to offer any assistance necessary to the victim. This has nothing to do with the law and everything to do with being a decent human being. Help out however you can. If your moral compass doesn’t point you in this direction, keep in mind the purely practical side- this person could easily make your life very difficult in the near future, and your cooperation and goodwill may go a long way in bringing things to an amicable resolution. Once the immediate concerns have been dealt with, here’s what you need to do:

Don’t panic: Your dog isn’t the first to bite, and it won’t be the last. You’re not automatically going to lose your dog, and your insurance may cover any financial liability. This is a serious situation, but not necessarily a disastrous one.

Talk to any witnesses: Check to see if anybody saw the incident, and politely speak with them. You may want to get their name and number in case you need to contact them again at some point down the road. It’s quite likely that your version of events will differ from those of the victim, and independent witnesses may be the best route to finding the truth that lies somewhere in between.

Talk to your insurance company: Most homeowner insurance policies will cover liability for dog bites. If there are injuries or a chance that the victim will take any sort of legal action against you, call your insurer to inform them of the incident and see what advice they have to offer. They will likely appoint an adjuster to investigate the claim and, if necessary, a lawyer to defend you. Don’t admit any liability or offer to pay any expenses before talking to your insurance company.

Offer to pay expenses: If your insurance company isn’t going to cover you or you choose not to get them involved, you should consider offering to pay for any direct expenses that the victim incurs, such as medical costs or prescriptions. This is another one of those goodwill gestures that you can offer in an attempt to resolve the matter, and in the majority of cases you’re ultimately going to be held liable for these expenses in the end. Acting early and with compassion can help ease the situation and may put you in a better position if matters do escalate. If there are reasons why you think you’re not responsible, such as provocation, consult with your lawyer to get an idea of where you stand.

Talk to your vet and local dog trainer: Talk to the professionals about the incident and get their take on what occurred and your dog’s demeanour in general. They’ve got more experience with aggressive animals than you do, and they’re likely to be more objective as well. Listen to their advice, even if it’s not what you want to hear.

DON’T talk to police or animal control without consulting with your lawyer: Finally, if the authorities want to question you or ask you about the incident, know that you’re under no obligation to speak with them. That doesn’t mean you should obstruct their investigation, but you should consult with a local lawyer before answering any questions or giving any sort of statement. This is a good approach for any situation involving police questioning, but especially when your pet’s life may be on the line.

I am as much a pet lover as anyone, and I understand the attachment people have to their pets. If a court thinks that your dog is aggressive or this behavior is likely to happen again, there’s a definite chance that it will order your dog euthanized. Even if the court doesn’t make such an order, it is your duty as a responsible pet owner to look at the situation as objectively as possible and, with the help of your vet and trainer, decide if putting your dog down is the appropriate response. I wouldn’t go so far as to say that any dog that bites should be destroyed, but in some cases that will be the best and most responsible course of action. Also keep in mind that while you may be able to deal with one biting incident, any future incidents will almost certainly result in substantial liability and the destruction of your pet. You will need to remain extremely cautious in the future, as a second incident will be taken much more seriously than the first.

[thanks to orin zebest and money grubbing lawyer via cc]

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Framing the issue is perhaps the most important aspect of trying a case. Try not to accept the other party’s version of the lawsuit, and instead look at it not from your perspective, but the way the jury is going to look at it. Before we start a case, we pull the jury instructions we expect the judge to give. Since that’s what you have to prove at the end of the case at trial, that’s what guides us throughout the case – through discovery and depositions, motions and ultimately trying the case.

Match up the documents and testimony you have on your side of the case to the elements of proof in the jury instructions. Since jury instructions are written for everyday people to understand, there’s not a lot of “legal-ese” in them. Once you have your proof lined up, you’re ready to go to trial. Now, you have to learn the evidence rules. Matlock, LA Law and Perry Mason are not good guides for how it’s really done. Take a class or go to court and watch – the latter is the fastest way to learn, and while you won’t understand everything, you’ll see how the most common objections are handled and argued.

Finally, once you win your case, you’ve got to collect on your judgment. That’s the really hard part. Enforcing a judgment is a procedural nightmare. If you haven’t hired a lawyer yet, now’s the time. Unless you can get the other party to just write you a check, you’ll have lots of paperwork to fill out.

Of course, over 95% of all cases settle, so hopefully you won’t have to go though the trial and judgment collection portions of litigation. Remember, though, that settlements are compromises, and compromises means everyone goes away with less than they really wanted.

[thanks to ell brown and  j. craig williams via cc]

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Walter Edward Bagdasarian, a resident of La Mesa, California, blatantly made online threats during the presidential candidacy of Barack Obama. Bagdasarian calculated that the president-elect “will have a 50 cal in the head soon”, sending sparks of hatred to Obama supporters online.

Death Threats on Yahoo! Finance

Bagdasarian, using his alias californiaradial, made online entries using the Yahoo finance board on October 22, 2008 saying, “County fkd for another 4+ years, what nig has done ANYTHING right???? Long term???? Never in history, except sambos.” The post had an alarming title of “Shoot the nig.” The message board heated up due to the offensive language in Bagdasarian’s message and was soon deleted by Yahoo. The Southern California man ended his comments stating, “Fk the niggar, he will have a 50 cal in the head soon.”

The 47-year-old Bagdasarian had his house forayed by the United States Secret Service Agents November of last year. The agents found an armory of highly-destructive military weapons in the suspect’s house. Court documents also revealed that the weapons found in Bagdasarian’s home included injurious firearms such as three handguns and three rifles. The weapons carry advance specs counting a 30.06 rifle with a sniper magnification, excellent for sighting in targets. Agents were also able to locate a Remington .50 caliber muzzleloader, a rifle that can generate maximum velocity from magnum 150-grain charges.

Although the thread was already deleted in the Yahoo finance board, other websites including Google, show searches of other web surfers reacting against posts made by californiaradial. His comments were said to be irking and abusive.

Tracking Down Bagdasarian

United States Secret Service agents was able to track down Bagdasarian through the IP address used in the Yahoo comments. The suspect allegedly confessed to the crime that was made.

Walter Edward Bagdasarian was freed a month ago with a bond covering $100,000. His attorney has not given any public statement.

Research shows that this is not the first time a threat was received by the newly-elected president. In August of 2008, a citizen of Florida was also charged with the same case after commenting, “That nigger, if he gets elected, I’ll assassinate him myself.”

Two mid-South men were also captured by federal authorities on October 2008. The supremacists plotted Obama’s assassination during his candidacy. Daniel Cowart and Paul Schlesselman met on the internet the month before their capture. The plan included murdering 88 people and beheading 14 African-Americans.

In spite of the many threats, Barack Obama remains confident that United States Secret Service Agents hold his and his family’s protection. Obama believed, “”I think what’s been striking about this campaign is the degree to which these kind of hate groups have been marginalized. That’s not who America is. That’s not what our future is.”

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The bulk of the damages were calculated in a very straightforward manner under the D.C. consumer-protection statute. Applying the simple equation:

X=1500D*V*W

(where X=1500 x [number of Days violation persisted] x [number of Violations] x [(number of Wrongdoers])

yields a total of $64,800,000. It is not clear yet how the judge derived 12 violations from one pair of pants, so assuming he is just a bit optimistic there, a more reasonable lost-pants valuation would seem to be $5.4 million.

A new detail is that an additional $15,000 was claimed in order to compensate the plaintiff, who obviously can no longer use this neighborhood cleaners, for the cost of having to rent a car each weekend for a ten-year period in order to go to another one. Based on rough calculations, that comes out to just $15.64 per day, which again is a very reasonable value for car rental.

The remaining $647,500 claimed by the judge appears to be a combination of litigation expenses and time, and his “mental suffering, inconvenience and discomfort.” At least some of the “discomfort,” however, may be due to the alternative cause of the judge’s pants having become “uncomfortably tight” in the first place, damages that he could have mitigated.

Roy Pearson Divorce Details

Finally, the publicity over the lawsuit has led some of these unscrupulous Internet people to dig up the opinion from Judge Pearson’s divorce proceedings a few years ago, in which he was demanding support from his wife. Consistent with his current tactics, he sought sanctions at least twice, demanded the judge recuse himself, filed multiple motions to compel his wife to respond to his 248 requests for admission, and, according to the trial judge, “in good part [was] responsible for driving up” everyone’s legal costs, “including threatening both the wife and her lawyer with disbarment” which created “unnecessary litigation.”

No news yet on whether Judge Pearson, who is up this week for another ten-year term as an administrative law judge, will be reappointed.

Judge Drops Pants From Suit

As an update to this, in a pre-trial brief, Pearson lowered his demand to a mere $54 million, and apparently focuses now on the allegedly misleading signs used by Custom Cleaners, as opposed to the allegations of damages stemming from the loss of Pearson’s pants.

I am by no means the first to use something like “Judge Drops Pants From Suit” as a headline, and I struggled with that for a while, but sometimes a headline joke is just inevitable. A variation on the theme was the best I could do.

Since I haven’t seen the brief yet, it’s not entirely clear whether the pants were dropped entirely, or the focus merely changed. If they were dropped entirely and the demand reduced to $54 million, then that seems to indicate that Judge Pearson valued the pants and associated damages at $13 million. (I apologize for earlier statements about “$65-million-dollar pants,” which it seems were wildly exaggerated.)

But the suit itself is still going forward, apparently, since the report states that trial is set for June 11. The defendants’ attorney said he was “still baffled” as to why Pearson was continuing, “unless it’s simply to harass and annoy my clients.” Pearson refused to comment “in light of pending litigation,” which is an awfully popular no-comment excuse these days.

Pant Facts From Manning and Sossamon

The suit is costing the defendants an awful lot of money, of course. (Pearson is representing himself, and seems to be getting what he’s paying for.) There’s also a link to a page on this case at the site of the defense firm, Manning and Sossamon, which includes some additional details such as these:

• Mr. Pearson alleges that on May 3, 2005 he left a pair of pants with the Chungs to be altered by May 5, 2005. The pants he submitted were grey in color and were unique in that they had a succession of three belt loops very close together on each side of the front waistband of the pants.
• The Chungs offered the altered grey pants to Mr. Pearson a few days after the May 5, 2007 deadline.
• Mr. Pearson refused to accept the pants the Chungs offered even though (1) the pants had the same unique belt loop configuration as the pants he originally submitted; (2) the pants’ measurements were identical to measurements he requested for the alteration; and, (3) the tag number on the pants matched his receipt.

This is the first I’ve heard of the unique belt-loop configuration issue, which may make it extremely difficult for Pearson to show the pants were not his, if the pants are still an issue in the case, as I expect they will be. Stay tuned for more dramatic developments in this titanic legal battle.

[thanks to cat segovia and kevin underhill via cc]

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There are differences between legal information web sites that provide legal information and legal forms only, and web sites that offer something called “legal document preparation services” where a paralegal or other non-lawyer reviews a document and assists in preparation prior to sending the form back to the client. Rather than making a distinction between the different kinds of web sites, Pepe’s Task Force lumps them altogether into a single “evil” category. If it’s not a law firm web site, it has no place on the web, at least as far as the Connecticut Bar is concerned.

As reported by the Tribune, “the task force filed its report with the Department of Consumer Protection alleging that the on-line legal providers also were engaged in deceptive advertising because the companies are offering legal advice by providing relevant legal documents.”

Can it be that the provision of just a legal form constitutes the “unauthorized practice of law?” If that were the case why don’t we just ban self-help legal software and self-help law books from Barnes & Nobles book shelves? All of the legal information web sites that I know of, have a clear disclaimer that they are not a law firm and do not purport to give legal advice.

Does Pepe think that a consumer can’t tell the difference between an attorney and a legal information web site? Is any publication – whether print-based or web-based – that is a legal form the “unauthorized practice of law?”

In my opinion, there is a good argument to be made that a legal information web site that states that it’s services and products are the equivalent to what a lawyer provides is a misrepresentation. It would be a misrepresentation in advertising, and consumer protection agencies should monitor the claims made by these providers. However, the claim that the mere provision of a legal form is the “unauthorized practice of law” is an abuse of the legal profession’s self-regulatory power to protect the consumer from harm.

Catherine J. Lanctot has written an interesting article on the subject in “SCRIVENERS IN CYBERSPACE: ONLINE DOCUMENT PREPARATION AND THE UNAUTHORIZED PRACTICE OF LAW,” 30 Hofstra Law Review 811 (2002, 44 pp, pdf), where she argues that those who wish to apply UPL enforcement against such software products or document preparers ”must not lose sight of the broader implications.” Not only do they risk constitutional challenges, but :

“[W]e must consider the ramifications of such enforcement. The public reaction would likely be negative. Enforcing unauthorized practice of law statutes against online document preparation services would be neither painless nor popular. The lay public, which already detests lawyers, generally perceives unauthorized practice of law enforcement as yet another way for the legal profession to line its collective pockets at the expense of consumers. . . .

“In addition, it is at least possible that these websites are managing to provide some consumers with a necessary service—basic legal documents at an affordable price. At a time when the bar seems to have abdicated its responsibility to provide routine, noncomplex legal services to the poor and middle class, it could well be counterproductive to try to shut down one vehicle for serving those unmet needs.”

If the Connecticut Bar can’t distinguish between their self-interest in maintaining a monopoly over the delivery of legal services and the public’s right to legal information whether in the form of a book, a desk-top software program, or a web-based software program, perhaps the citizens of Connecticut should either strip the bar of its self-regulatory power, or further define what the “practice of law” means. That is what the citizens of Texas did, when the Texas Bar attempted to ban self-help law books and self-help legal software from being sold in the State of Texas.

[thanks to richard granat via cc]

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Secretary of State Peter Mandelson is planning to introduce changes to the Digital Economy Bill now under debate in Parliament. These changes will give the Secretary of State (Mandelson — or his successor in the next government) the power to make “secondary legislation” (legislation that is passed without debate) to amend the provisions of Copyright, Designs and Patents Act (1988).

What that means is that an unelected official would have the power to do anything without Parliamentary oversight or debate, provided it was done in the name of protecting copyright. Mandelson elaborates on this, giving three reasons for his proposal:

1. The Secretary of State would get the power to create new remedies for online infringements (for example, he could create jail terms for file-sharing, or create a “three-strikes” plan that costs entire families their internet access if any member stands accused of infringement)
2. The Secretary of State would get the power to create procedures to “confer rights” for the purposes of protecting rightsholders from online infringement (for example, record labels and movie studios can be given investigative and enforcement powers that allow them to compel ISPs, libraries, companies and schools to turn over personal information about Internet users, and to order those companies to disconnect users, remove websites, block URLs, etc)
3. The Secretary of State would get the power to “impose such duties, powers or functions on any person as may be specified in connection with facilitating online infringement” (for example, ISPs could be forced to spy on their users, or to have copyright lawyers examine every piece of user-generated content before it goes live; also, copyright “militias” can be formed with the power to police copyright on the web)

Mandelson is also gunning for sites like YouSendIt and other services that allow you to easily transfer large files back and forth privately (I use YouSendIt to send podcasts back and forth to my sound-editor during production). Like Viacom, he’s hoping to force them to turn off any feature that allows users to keep their uploads private, since privacy flags can be used to keep infringing files out of sight of copyright enforcers.

This is as bad as I’ve ever seen, folks. It’s a declaration of war by the entertainment industry and their captured regulators against the principles of free speech, privacy, freedom of assembly, the presumption of innocence, and competition.

This proposal creates the office of Pirate-Finder General, with unlimited power to appoint militias who are above the law, who can pry into every corner of your life, who can disconnect you from your family, job, education and government, who can fine you or put you in jail.

More to follow, I’m sure, once Open Rights Group and other activist organizations get working on this.

[thanks to darkpatator and cory doctorow via cc]

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Although I had returned to my more normal attire, I didn’t stop paying attention to what everyone was wearing so that I wouldn’t slip up and find myself completely underdressed. After a while, though, I stopped worrying about it because I realized that people were all over the board. Male students tend to wear jeans or khakis and polo shirts. Female students tend to have more variation. In my section, there were a few women who definitely shared my mother’s mentality. They came to class everyday with perfectly coordinated outfits and nail polish that matched their lipstick. Then there were people like me who generally didn’t wear makeup and only wore jeans and sweaters to class. Toward the end of the semester a friend of mine and I even started to wear sweats to our 8 a.m. property class because we routinely went to the gym together after class.

It wasn’t until the middle of the spring semester of that year that I thought about the subject again. I was sitting down with a group of people for lunch in the Hark. Somehow we ended up talking about clothes. I think someone said that they didn’t like wearing t-shirts and then suddenly another student from my section saw his opening and let us all know how he felt about the way students dress at HLS. I know he isn’t the only one that believes people should try a little harder when they are getting ready in the morning, but he went as far as saying he believed there should be a dress code. “This is professional school,” he exclaimed, “people should be dressing like professionals.” His plan involved a ban on jeans, sweatshirts and t-shirts. As someone who loves to be able to wear her gym clothes to class (and no, I’m not the only one), I have to say that I’m glad there isn’t a dress code here. I do applaud this guy though, I have never seen him wear gym shoes to class and I have never seen him without a collar.

Rest assured there is no dress code at HLS. I think people feel pretty comfortable wearing whatever they want and I don’t think that anyone ever looks out of place. On any given day there will be one person wearing a suit to class and another who looks ready for the gym. If you’re like me, you shouldn’t worry too much about buying special new clothes just to come to law school. You should just come with whatever makes you feel comfortable.

[thanks to ed yourdon and hls in focus via cc]

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Dear Applicant,

The position which you interviewed for has been filled.

This one is short and sweet and to the point, which I can appreciate. The only problem is that they used an entire piece of company letterhead to send one sentence. If this is their standard rejection letter, they should get company postcards printed up. It would be cheaper.

Dear Applicant,

At this time we are not hiring a law clerk. We will keep your resume on file if our needs change.

Interpretation: We might hire a summer law clerk, if the nephew of our founding partner needs a job. Your resume is in the trash. Thanks for writing.

Dear Applicant,

Thank you for your resume. Your qualifications were very impressive, but at this time, we have no plans to hire a summer clerk. I am fully confident that a person with your qualifications will have no problem finding summer employment. Best of luck.

This is by far my favorite. I received several like this. They build you up as they reject you. This is the equivalent of a girl saying: “You are a great guy who will make some girl very happy. But I’m just not looking for a relationship right now”. Even though you suspect you are being bullshitted, it’s just too nice to get angry with.

Dear Applicant,

Thank you for your interest in the summer clerk position with the University’s Legal Services Office. Unfortunately, you are not one of the applicants chosen for an interview. We felt that your qualifications did not match those of the ideal candidate.

When I first received this, I thought I misread it. It is harsh and vague. I’m not sure what qualifications they were looking for, since my GPA and class rank were well within the parameters specified within the job posting, and they didn’t require any special skills or experience. But this one is nice compared to the worst one I got:

Dear Applicant,

We received your cover letter and resume indicating an interest in a summer clerkship. We regret to inform you that you have not been selected for an interview. Your qualifications did not match up to some of the other applicants, or to the high standards we impose upon our summer clerks. Good luck with the rest of law school.

Interpretation: Who do you think you are? Did you actually think a prestigious law firm like ours would hire someone like you? You and your non-Ivy league law school make me sick. I hate myself and my life, so I’m taking it out on you. Thanks for playing.

[thanks to handslive and barely legal via cc]

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Koh sued for violations of California’s UCL, FAL, and CLRA, along with common-law fraud and unjust enrichment based on SCJ’s alleged “greenwashing” of Windex and Shout. In 2008, SCJ began to sell Windex in packaging that prominently displays the Greenlist label, and it’s used the label on other products, including Shout. Koh alleged that the label is deceptively designed to look like a third party seal of approval, which it is not, and it falsely represents that the products are environmentally friendly.

Koh alleged that today’s environmentally-conscious consumers will pay a premium price for “green” products, which they will buy in preference to non-green products. SCJ competes with ecofriendly brands such as SimpleGreen and Seventh Generation, and a major SCJ competitor, Clorox, announced that its Green Works cleaning products would launch with a Sierra Club seal of approval. As a result of the Greenlist label, Koh alleged, SCJ could charge as much as 50% more than non-green-labeled products. He alleged that he wouldn’t have bought Greenlist-labeled Windex at its premium price if he had known that Greenlist was a label applied by SCJ, not a third party, and that Windex is not environmentally friendly.

SCJ argued that Koh had not sufficiently alleged injury and that no reasonable consumer could have found the label misleading. In this case, the court found that Koh had sufficiently alleged loss: courts have held that being induced to purchase a product one would not otherwise have purchased is not “loss of money or property” within the meaning of the UCL and FAL as long as the purchaser received the benefit of the bargain. Here, however, Koh sufficiently alleged that he didn’t receive the benefit of the bargain because Windex cost more than similar products without misleading labeling.

SCJ then argued that the Greenlist label makes no mention of a third party, describes Greenlist as a “rating system” and not as a seal of approval, and directs consumers to SCJ’s own website for further information. This is a question of fact not subject to resolution on a motion to dismiss. Given the context described in the complaint, it’s plausible that a consumer could interpret the label as being conferred by a third party. The court also referred to FTC guidelines for products with “environmental seals,” which state that such labels are likely to convey environmental superiority, and that the labels are deceptive in the absence of substantiation for this broad claim.

SCJ also argued that Koh couldn’t sue over Shout’s labeling because he didn’t allege that he purchased Shout. Koh argued that this was appropriately dealt with as a matter of class certification, later on. Though he wouldn’t have standing in a suit over Shout alone, he alleged that SCJ used the Greenlist label on multiple products, including one that he bought, “and there is no brightline rule that different product lines cannot be covered by a single class.” So the court decided to wait until the class certification stage to decide the issue.

[thanks to debs and rebecca tushnet via cc]

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