Pittsburgh Legal Back Talk

Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

1181 Posts and Counting

Celebrating Marriage in America.

Posted by Cliff Tuttle| June 28, 2015 | © 2015

No. 1,181

Image: religionnews.com

Image: religionnews.com

Everybody says that it has been a historic week.  The Obergefell decision was, of course, the culmination of a trend that has picked up momentum over the past few years until the outcome became all but inevitable.  So, in reality, it has been a historic decade.

To those among us who grieve that the institution of marriage has suffered a deadly blow, may I offer the following consolation.  This phenomenon could not have occurred if there had not been a large number of gay couples who ardently desired to be married. I cannot believe for a minute that this groundswell was primarily about health care benefits or financial considerations.  It was about love.

If personal commitment without marriage had been enough, this development would never have happened.  And it would never have happened if the desire to be formally and officially married in the eyes of the world had not been so strong in the hearts of so many.

Not too long ago, I was handling a case at a District Magistrate’s office where it had been a long-time practice to post galleries of photographs of couples that came there to be married.  There was so much joy in the faces of those couples.  Many of the recent ones (more than I would have expected) were same sex couples.  In their faces, you could see the same exuberant happiness.

The past five decades have been rough on the institution of marriage.  Somewhere in the 60’s it began to go out of style.  And the divorce rate rose so rapidly that domestic practice became the number one growth industry for lawyers. Married households now comprise a minority, although the reasons are complicated.  Now, suddenly, there is this unexpected reaffirmation of marriage.

Yes, I know this is not the kind of marriage affirmation that people with strong religious convictions would have wished for.  But, despite what some Presidential candidates may tell us, there will be no going back. American law and the American way of life are founded on freedom and tolerance.  We have graphic evidence of what goes on today in other societies which are neither free nor tolerant.  Let us celebrate our Independence Day with a renewed appreciation of how wonderful it is to live in America.

CLT

 

Justice Don Willett, Tweeter Laureate of Texas, is Worth the Follow on Twitter.

Posted by Cliff Tuttle| June 24, 2015 | © 2015

No. 1,180

LaureateAnother member of the Bench who is savvy about social media is Texas Justice Don Willett, who was recently name Tweeter Laureate by the Texas Legislature.

So what does a State Supreme Court Justice tweet about?

See for yourself.

Hercules and the Umpire — a small sample

Posted by Cliff Tuttle| June 23, 2015 | © 2015

No. 1,179

Kopf

Federal Judge Richard G. Kopf is a fearless blogger, as this partial reprint will attest.  Does he mean all the stuff he says below?  I don’t know.  Some of it, I guess.  But judges are pretty fearsome, even if they don’t offer to shoot you if you plan an unscheduled home visit.

By the way, the roof of his house looks like it might be ready to be replaced. Plus, in Pittsburgh, you could buy a house like that for a lot less.

Read more at Hercules and the Umpire.com.

Hercules

Symbolic Speech: What Are You Saying When You Fly the Confederate Flag?

Posted by Cliff Tuttle| June 21, 2015 | © 2015

No. 1,178

WALKER, CHAIRMAN, TEXAS DEPARTMENT OF MOTOR VEHICLES BOARD , et al. v. TEXAS DIVISION, SONS OF CONFEDERATE VETERANS INC., at al., 567 U.S. ______ (2015); No. 14-144.

Image: cnn.com

Image: cnn.com

The Texas Department of Motor Vehicles has a specialty license plate program, in which a party may propose a design, slogan and graphic.  Applications are approved by the Texas Department of Motor Vehicles Board (Board). The Texas Division of the Sons of Confederate Veterans (SCV) made a design proposal in 2009 containing a Confederate battle flag.  Public comments were solicited, and there were many negative ones, including responses from elected officials.  The Board rejected the proposal.

In 2012, the SCV brought a lawsuit against the Board alleging violation of the First Amendment and sought an injunction requiring the Board to approve the proposed design.  The U.S. District Court upheld the Board’s decision. A divided Fifth Circuit Court of Appeals reversed, holding that the specialty license plate design constituted private speech and that the Board, in refusing to approve this design, engaged in constitutionally forbidden viewpoint discrimination. The dissent argued that license plate designs are government speech, the content of which the state was free to control.

In holding that license plate design constitutes government speech and is therefore not controlled by the First Amendment, the Court relied upon its decision in Pleasant Grove City v. Summum, 555 U. S. 460, 467–468 (2009). This case involved a religious organization’s request to erect a monument in the City Park setting forth the organization’s religious tenets.  There were 15 permanent displays, at least 11 of which had been donated by private organizations.  “The religious organization argued that the Free Speech Clause required the city to display the organization’s proposed monument because, by accepting a broad range of permanent exhibitions at the park, the city had created a forum for private speech in the form of monuments.” Although there had been private donations of these monuments, the Supreme Court held that the City had adopted the message conveyed by the monuments and that they represented government speech.  The government could choose whatever suggested message it wished to adopt.  It obviously could not, and would not wish to adopt every suggested message as its own.  As government speech, rather than private speech, the monument was not governed by the First Amendment. The Court held that the state had no duty to display messages with which it did not wish to be associated.

If the Sons of Confederate Veterans wish to express pride in their ancestry, the Supreme Court suggests the use bumper sticks, which constitute  protected speech.

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Although the foregoing decision, that the government can pick and choose what messages it wishes to adopt, is undoubtedly correct, it doesn’t reach the point where it is required to analyze the difference between the message intended and the message perceived.

The message depends upon context.  A Confederate battle flag in a painting depicting Picket’s charge at the Battle of Gettysburg has one meaning.  A hand-drawing of the Stars and Bars passed from a white student to a black student in a school that has experienced racial strife is quite another. But a license plate has little context to explain the meaning.

The presence of the Stars and Bars in front of the South Carolina State Capital has again become an issue in the presidential campaign.  The proponents have always stated that the intended message is one of pride in their history.

But the momentum seems to be shifting to those who view that the perceived message is the one that counts.  When the meaning is ambiguous, including a negative connotation, it is better to revise the message?  Clear expression of intended meaning is what communication is all about.  Since the flag flying in the front yard of the state capital constitutes government speech, does the State of South Carolina still wish to communicate such an ambiguous message?

That’s what the two Floridian candidates for Presidency said this week.  Moving the Confederate Flag from the Capital in Tallahassee to a museum better communicated the intended message. The message: “we haven’t forgotten, but we’re moving on.”

CLT

 

 

 

 

TRID Implementation Apparently (Probably) to be Delayed to October 1, 2015.

Posted by Cliff Tuttle| June 20, 2015 | © 2015

No. 1,177

Image: An imaginative ad for compliance webinars by elliemae.com

Image: An imaginative ad for compliance webinars by elliemae.com

On Wednesday, this past week, the Consumer Financial Protection Bureau (CFPB) announced that it had made an administrative error that would require the use of the new combined Truth in Lending/RESPA Disclosure document and new procedures by two weeks.  But rather than institute a two week delay from the scheduled August 1 start date, the agency is “proposing” a delay until October 1.  Of course, the fact that almost the entire Congress had risen up as one person to demand delay had nothing (pronounced “everything”) to do with it.

Although the proposal has apparently not been formally adopted, it is about as close to a sure thing as exists in this world.

CLT

What Woman is More Important in American History than Alexander Hamilton?

Posted by Cliff Tuttle| June 18, 2015 | © 2015

No. 1,176

Image: ijreview

Image: ijreview

There isn’t one, actually. At least not yet. And that is the answer to the question: “Why aren’t there any women on American paper currency?”

Hamilton was the de facto Chief of Staff for George Washington during the Revolution.  He was a leader in the first rank during the process of framing and adoption of the Constitution. As the first Secretary of the Treasury, he was primarily responsible for the establishment of the banking system in the young United States. Hamilton belongs on United States currency. That is the problem.

It has been suggested that Andrew Jackson, who appears on the Twenty, could go.  Jackson was pretty important, too.  There may not be any women more important to American history than Jackson, either.

This is of course not the first recent effort to put a woman on legal tender of the United States.  There was the Susan B. Anthony silver dollar, followed by the Sacagawea Dollar. But neither were very popular.

The triggering event is the centennial of women’s suffrage in 1920.  The Treasury Department is asking for suggestions because, very frankly, there are no obvious choices.  In another 100 years, probably.  But not now.

Susan B. Anthony may, by default, be the leading candidate.  She is, after all, the acknowledged leader of the women’s suffrage movement. The highest ranking woman ever serving in the United States Government would be either Nancy Pelosi, Speaker of the House, or Hillary Clinton, Secretary of State. Bad politics, that.

Of course, there also aren’t any black people on American currency either, and there are some strong candidates in that category, too.

So why not do this:  Print two Tens and two Twenties.  Keep the Hamilton and Jackson bills and add a Ten with a woman on it and a Twenty with Martin Luther King, Jr.  Will it be confusing to have two designs for each bill circulating at the same time?  Not really.  Will it be more expensive?  Maybe, but if cost is the prime consideration, we could just keep what we have.

Then again, how about a plastic U.S. Treasury debit card that could be used to pay debts public and private electronically and could be recharged at the Post Office or on line?  We could put the portrait of a woman on that card. Problem solved.

Just an idea.

CLT

Does a Consumer Have a Remedy When He Learns that a Used Computer Was Grossly Overpriced?

Posted by Cliff Tuttle| June 17, 2015 | © 2015

Image: network world.com

Image: network world.com

No. 1,175

Is there anything I can do about a rent-a-center agreement?

Q:I went to rent a center for a computer, the retail price they advertised was $1199. I thought that meant that is what it was worth, maybe a little extra for the fact that it’s rent to own. Anyways i found out the computer is only worth $300+ used up to $600 brand new. This computer has been used a lot before they had to redo everything before i took it home. So i mentioned hey this is bull and an associate told me they would see if there was anything they could do about the price, so i kept it otherwise i was going to trade for one that is actually worth that much. Now apparently that person is no longer with the company, how convienent right? I just don’t know how they can advertise such an unfair retail price?

A: In Pennsylvania we have a statute called the Unfair Trade Practices Consumer Protection Law. It was designed to enable consumers to sue businesses for a wide variety of deceptive practices. Because the amount of your damages is small, I suggest you contact the Pennsylvania Attorney General’s Office. They might file suit under this statute or attempt to settle with the company. You might also call the Better Business Bureau, which also attempts to settle similar cases. 

CLT

Magna Carta Translated.

Posted by Cliff Tuttle| June 17, 2015 | © 2015

No. 1,174

Magna Carta Memorial Image: American Bar Association

Magna Carta Memorial
Image: American Bar Association

We just passed the 800th Anniversary of Magna Carta, the document sealed (not signed) by King John in 1215 in Runnymede.  They used to say “as every schoolboy knows”  but my guess is that you would have a hard time finding a schoolboy who could identify Magna Carta, at least before all of the fuss was made about the anniversary.

Actually, it is Americans, particularly American lawyers, who get excited about Magna Carta, since many of us view it as a precursor of our own Declaration and Constitution.  It was the American Bar Association that built the memorial pictured above and is sponsoring many events to celebrate this anniversary.

There are several originals of Magna Carta in existence.  I saw one of them in 1957 at the Jamestown Festival, commemorating the 350th Anniversary of the settlement in Virginia.  I remember being impressed by what a medieval document actually looked like.  While others whizzed by it, I stood and looked for quite a while.  I remember having a conversation with the armed guard, who told me I would be learning about Magna Carta in school.

If you are curious to learn what the Great Charter said, here is an interactive translation.

CLT

 

Can the practice of “Astroturfing” be prosecuted under the UTPCPL?

Posted by Cliff Tuttle| June 14, 2015 | © 2015

No. 1,173

Sharyl Attkisson The Anti-astroturfer Image: the blaze.com

Sharyl Attkisson
The Anti-astroturfer
Image: the blaze.com

 

 

 

 

 

 

 

 

 

According to Dictionary.com:

“Astroturfing is the deceptive tactic of simulating grassroots support for a product, cause, etc., undertaken by people or organizations with an interest in shaping public opinion.” When artificial grass came on the scene, it was used in the enclosed Astrodome.  Hence the name.

Astroturfing can include paying people to write favorable on-line reviews in websites where customers report on products and services for the benefit of potential future customers. It can also involve actors posing as real consumers in advertising, delivering fake testimonials. Television commercials involving celebrity look-alikes, without a proper disclaimer, might also qualify.

While astroturfing is not limited to the internet, it thrives there.  Microsoft was apparently behind an astroturfing program last year to promote a new version of its now-defunct Internet Explorer.  PC World.com reported that this was not first or even the second such campaign. Among them, Microsoft, together with Google and Yahoo, recently admitted they were the secret backers of the European Privacy Association, which was formed to influence the debate on privacy issues in the EU through blog posts, comments to blog posts and advertising which was not attributed to the real source.

It has also been extensively used by drug manufacturers in campaigns to promote new prescription drugs.  In this TED presentation, investigative journalist Sharyl Attkisson explains how a well-constructed campaign can weave a fabric of information, such as studies and endorsements, so tightly that it completely eclipses a contrary points of view.

Always unethical, individual instances of astroturfing may violate federal and state unfair competition and consumer protection laws. The FTC has been active in prosecuting violators of  its “Guides Concerning the Use of Endorsements and Testimonials in Advertising.” The Attorney General of New York has aggressively pursued companies that utilized fake online reviews.  In September 2013, it announced agreement with 19 companies to cease the practice and pay a total of $350,000.00 in fines.

The Attorney General of Florida has also been active in this field. It reached an agreement with Lifestyle Lift, a promoter of a mini-facelift procedure in 2013. The company agreed to disclose whether the models in their commercials had actually had the procedure and whether they had been paid for their endorsement.

Yelp, Inc., an online publication which publishes consumer endorsements, has adopted screening software to detect fakery.  It cooperated with the New York Attorney Generals’s investigations and recently sued several people who have attempted to foil Yelp’s security measures.  In its suit, Yelp has plead causes of action under, inter alia, California’s Unfair Competition and False Advertising statutes.

The specter of astroturfing has even surfaced in the 2016 Presidential Campaign. An article in the Washington Times dated April 19, 2015, alleges that a campaign video that purports to capture candid interviews with voters was instead orchestrated with volunteers and donors from the last campaign, complete with scripts. In addition, astroturfing has been employed by both sides in the environmental arena, recruiting supporters for their position to appear at public hearings.

Although I am not aware of any cases in Pennsylvania involving astroturfing, either brought by the Attorney General or by private litigants, it appears that such litigation could be brought, either by the AG or an individual, under the Unfair Trade Practices Consumer Protection Law. (UTPCPL)

A number of sections from Section 4 of the UTPCPL seem to fit, including:

“(ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;

(iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by another;

(viii) Disparaging the goods, services or business of another by false or misleading representation of facts;”

And of course, the reliable catch-all:

“(xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”

While it is easy to imagine the Attorney General bringing such a claim, a private litigant may wish to file a class action suit, since the harm to any single consumer would usually be minimal.

Unfortunately, in the case of Kern et al.  v Lehigh Valley Hospital, 2015 Pa. Super 19 (2015), the Superior Court held that UTPCPL required proof of reliance for each claim, making it virtually impossible to fulfill the requirement of commonality to obtain a class action determination.

Thus, private UTPCPL cases will be limited to those cases where the Plaintiff has significant damages or desires to make law, despite the cost.  This does happen.  In Calvalli v. Pet City, the Plaintiff brought a claim involving a single violation of the section regarding the duty of the seller of a pedigreed dog to provide proper documentation.  The case started at the Magisterial District Court, but was appealed by the defendant to arbitration, a judge and finally to Superior Court.  Each time the defendant raise the bet by appealing, the plaintiff  stayed in the game.  The statutory damages were minimal, but the case was important enough to both parties that they paid significantly more than the settlement value of the case in attorneys fees.

CLT

Please Read Somebody Else’s Blog Post about Former Justice John Paul Stevens.

Posted by Cliff Tuttle| June 13, 2015 | © 2015

No. 1,172

Image: acslaw.org

Image: acslaw.org

This Blog Post about former Justice John Paul Stevens will brighten your day. It appears in Neil Steinberg’s Blog: Every Goddamn Day.  There is no point in me embellishing on Steinberg’s riveting story.  Just read it.

CLT

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Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 40 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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