Legal Geek No. 112: John Oliver and Coal Baron duke it out in Court

Welcome back to Legal Geek. This week, we review the latest updates in a lawsuit where HBO Comedian John Oliver is being sued by coal baron Robert Murray for a critical show segment on Murray and the coal industry aired a few weeks ago.

https://archive.org/details/LegalGeekEp112

John Oliver has done well since spinning off from his role as lead British correspondent on Jon Stewart's The Daily Show.  Last Week Tonight is his news and commentary show that plays weekly on HBO.  In addition to covering current events, Oliver uses this platform to put together interesting satirical pieces on industries and organizations that may have things not quite right with them.  His targets this summer season have included the Border Patrol, the dialysis industry, anti-vaxxers, and the coal industry.

And it's that coal topic that brings us to this lawsuit.  Oliver focused on what he deemed an industry in decline for decades as a counterpoint to President Trump's repeated promises to bring back thousands of coal mining jobs, a critical promise in some of the blue-collar states that made the difference in the election.  Apparently during research for preparing the segment, Robert Murray, the CEO of leading coal companies like Murray Energy, came to loggerheads with the comedian and his show runners.  Murray threatened before the coal segment aired to sue Oliver and HBO for any defamation, harassment or other injury caused by the segment.

Of course, that threat did not deter Oliver.  If anything, it made him go after Murray even more directly than originally intended.  He called the coal executive a geriatric Dr. Evil when covering some of the lowlights of Murray's career, including a 2007 mine collapse in Utah and a questionable explanation of the reasons why.  Oliver also recounted a silly story about Murray telling his workers that the idea for starting a mine company came to him from a squirrel.  The segment ends in Oliver's typical over-the-top silly fashion, with a man in a squirrel costume holding a check made out to "Eat [BLANK] Bob!"

So while Oliver wanted to make a point about having an honest conversation about the realities of the coal industry, he ended up poking the bear.  Murray did sue in West Virginia court, claiming that the segment was a planned ruthless character assassination intended to incite viewers to do harm to Mr. Murray and his company, as well as claiming that the statements made served as false light invasion of privacy and intentional infliction of emotional distress.  That's a lot to cover, but it all can be essentially boiled down to what is basically a slander or defamation claim against Oliver.

A first volley in the case did not go Oliver's way this week, as a motion to remove this case to federal court instead of local state court in West Virginia failed when a federal judge decided that the alleged defamatory statements made by Oliver about Murray would also likely negatively impact Murray's business based on Murray's high visibility and deep ties to the coal industry and this company.  Thus, Oliver and HBO will now need to fight this out in a jurisdiction that very well may not be favorable to them.

However, Oliver does have the national spotlight on this case and it invokes interesting questions of how far free speech protection goes.  The ACLU, always ready to defend free speech, has filed a hilarious amicus brief that you can find online if you want a good laugh at a legal document with section headings like "Anyone can legally say Eat [BLANK] Bob."  The ACLU makes strong arguments in defense of political satire and critical reporting, while also noting that Murray has unsuccessfully sued many other outlets for defamation type suits in the last decade when he didn't like what was expressed about him.  So this high profile case could help define just how far free speech protection goes when it comes to these types of shows.

The Bottom Line is, it really should come as no surprise that the strong comedic commentary of Oliver and other similar comedians sometimes leads to lawsuits like this one.  Oliver probably pushed the envelope a bit by pointing his ire so directly at Murray, but it's hard to see how a context like this is not protected by the broad free speech protections in the U.S.  If this case happens to go against Oliver, it could mean significant changes for many similar shows, and likely cause a chill in the commentary that most find valuable, even if we don't always agree with the views of the commentary.

----------------------------------

Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Legal Geek No. 111: The Switch Hitch and Liability Laws

Welcome back to Legal Geek. This week, we review an interesting trademark battle brewing for Nintendo and answer a listener's question from last week's main show.

https://archive.org/details/LegalGeekEp111

Nintendo is having its best year at retail since the release of the Wii, and while it may be hard to get your hands on their classic and new systems, there's no debating that the Nintendo Switch has been a positive development for this company.  Of course, as with any new huge product line, Nintendo has sought trademark registration for the Switch in the U.S. and other jurisdictions.

However, that trademark registration hit a snag recently in the U.S. when an opposition was filed against the allowed application for Switch.  Every allowed trademark application goes through a short publication period where third parties can oppose the mark before a final registration occurs, and that's what happened here.  The opposing party is Life Covenant Church Inc., an Oklahoma based chain of megachurches, which probably not exactly who you would expect.  Life Covenant has a registration from 2005 for the word Switch, a name used by the church network for youth programs aimed at teenagers.

Nintendo's application covers a wide sprawling list of goods and services in different classes, including video games, toys, office supplies, internet services, software, and the like.  Thus, Life Covenant has argued that the overlap between this sprawling list from Nintendo and their own trademark registration could lead to consumer confusion regarding these two parties being in some way connected, associated, or working together.  That may seem far fetched to a common man, but this is the risk when big companies try to lock down important marks in tons of fields, not just their primary field, in this case video games.

So how does this play out?  The parties could agree to co-exist, which might happen if Nintendo offers some compensation for use of the senior user's registered trademark.  Alternatively, some of the goods and services covered by Nintendo's application could be deleted out to try and avoid the overlap between the parties.  It's probably a minor hitch for the Switch branding, but perhaps this conflict could go to the courts as well if the parties don't become amicable.  A church against video games...it's made for TV court drama already!

The Bottom Line is, even big companies need to be careful when tailoring their description of goods and services in trademark applications.  If you shoot too broadly for the sake of branding, you risk some big expense and annoyances in the opposition process in the U.S. and other countries.

And now, this: (insert "Dave's not here, man" bumper)

MKB asked last week how we legally solve the local liability laws for self-driving cars.  Tom gave a great answer regarding the cars just sending money into the current insurance system, but there's other options as well.  Many states already allow for alternatives like posting an amount of bond money similar to minimum coverage limits, or self-insurance for fleets of vehicles.  If self-driving cars don't fit neatly into a current exception or alternative, we could write new ones in state or federal law.  Also, a different system could be made where cars pay taxes into a government fund that helps cover damages when accidents occur...it would dovetail with a government-assisted health care system, for example.  The short answer is, if the current laws don't work right, that's what legislators are elected for, to change them!  Thanks for your question.

----------------------------------

Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Legal Geek No. 110: Pokemon Go hits Anniversary and Legal Battles

Welcome back to Legal Geek. This week, we update you on a couple interesting legal battles for the software app Pokémon Go, which just celebrated it's one year anniversary.

https://archive.org/details/LegalGeekEp110
https://archive.org/details/LegalGeekEp110
As Pokémon Go reaches one year old, there is still a strong player base enjoying the augmented reality hunt, as evidenced by the popularity of the new raid system and recently-released legendaries.  While this may be good for Niantic and The Pokémon Company's profits, it also means the legal battles will continue.

We covered the novel virtual trespassing claims brought against Pokémon Go a couple months back, but there are another two lawsuits having recent progress.  First, the actual one-year anniversary of the app was celebrated with a Pokémon Go Fest celebration in Chicago.  Needless to say, it did not go well as the lines to enter stretched for hours, and the game's servers and local cell networks failed to meet the demand at this event, which was all about playing the game.  It went so poorly that Niantic gave all attendees their registration fee back as well as $100 in game currency.

Predictably, that was not enough to avoid a class action lawsuit that was filed this week on behalf of those who spent much more money traveling from far away places to attend the event in Chicago.  The theory is simple: Niantic advertised an event where playing the game was the main attraction, and then did not deliver, causing many to spend significant money and time they would not have spent if they knew the problems that were to occur.

Class action lawsuits are a messy tangle of procedure, so we will save those details for another segment.  However, this mechanism allows small parties to group together to take on a big company like Niantic when an grievance like this occurs to many people.  Given that Niantic tried to quell their consumers with in game currency and refunds, I would strongly suspect this one never goes to a full trial, but instead will be settled so that the plaintiffs all get a small sum of money, and Niantic can move on.  It likely won't cover their actual expenses, or anything close to it, but it will likely change Niantic's work in the future to make sure event faux pas like this do not happen again.

In addition to that lawsuit regarding the Chicago Go Fest, another legal conflict ongoing in Wisconsin had a major development this week.  As you'll recall, Milwaukee County enacted a regulation in February requiring augmented reality game developers to go through a rigorous approval process with several very expensive requirement to operate in Milwaukee's parks.  Although this targeted Niantic and Pokémon Go, another game developer Candy Labs challenged this in court and won an injunction this week from the court against enforcement of the regulation until a full trial, scheduled in early 2018.  For now, Niantic and others can operate for players in this area again.

The legal challenge to the regulation based on First Amendment free speech protections is a close call in my initial view.  But it's a good sign that the judge entered an injunction, as that typically means there's a good chance to prevail at trial also.

The Bottom Line is, many people may have moved on from Pokémon Go, but the app is still popular enough to have legal conflicts come up, especially in view of the money Niantic is making on the app.  These lawsuits have some significant cutting edge issues for VR and augmented reality that will set the table for those types of technology moving forward, so the court battles of Snorlax and Dragonite cannot be ignored!

----------------------------------

Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy