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Up Against a Deadline

I apologize, but I'm going to have to take one week off in order to meet a few rapidly approaching deadlines, including the deadline for the update for the West treatise that I co-author: Criminal Law in New York, 4th.

Blogging will resume during the last week of September.  Once I resume blogging, I expect to blog more frequently than I did this summer, since my schedule will most likely permit me to do so.

The New York Legal News Round Up

Latest_news It's Wednesday, and time for the weekly round up of New York law-related headlines:

Very Very Nice: Borat Takes Glorious Victory in Federal Court


This week's Daily Record column is entitled "Very Nice: Borat Takes Glorious Victory in Federal Court."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Very Nice: Borat Takes Glorious Victory in Federal Court

“[T]he movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewer. At its core, however, Borat attempts an ironic commentary of ‘modern’ American culture, contrasting the backwardness of its protagonist with the social ills [that] afflict supposedly sophisticated society. The movie challenges its viewers to confront not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from ‘ordinary’ Americans.”
—Psenicska v. Twentieth Century Fox, No. 07 Civ. 10972 (S.D.N.Y. Sept. 3).

In 2006, the satirical documentary “Borat: Cultural Learnings of America for Make Benefit Glorious Nation
of Kazakhstan” appeared in movie theaters, to the great amusement of most Americans.

British comedian Sacha Baron Cohen portrayed Borat Sagdiyev, a flamboyant Kazakh television personality who traveled across the United States in search of Pamela Anderson, leaving a trail of befuddled and bemused citizens in his wake.

While the vast majority of people found Borat to be highly entertaining, a few unwitting participants were anything but amused.

After learning they had participated in a film that would become a national phenomenon, they reinforced the very stereotypes Sacha Baron Cohen examines in the film. Angry and embarrassed, they called their lawyers.

Shortly thereafter, three separate lawsuits were filed in the U.S. District Court for the Southern District of New York on behalf of a driving school instructor and two etiquette training instructors. The complaints alleged the plaintiffs were fraudulently induced into signing an ambiguous agreement, which waived their right to pursue legal claims against the producer in relation to their voluntary
participation in the film.

Notably, each agreement included a merger clause stating that: “[T]he Participant acknowledges that in entering into [the Agreement], the Participant is not relying upon any promises or statements made by anyone about the nature of the Film or the identity of any other Participants or persons involved in the Film.”

Unfortunately for the disgruntled plaintiffs, in early September U.S. District Court Judge Loretta A. Preska issued a memorandum and order granting the defendants’ motion to dismiss the complaints. Judge Preska concluded “each Plaintiff has executed a valid agreement releasing the claims he or she now attempts to litigate.”

Her decision was based in large part upon the New York State Court of Appeals decision, Dannan Realty
Corp. v. Harris
, 5 N.Y.2d 217 (1959). In Dannan, the court held that a party is precluded from alleging the
defense of fraudulent inducement when the contract signed includes a disclaimer that no fraudulent statements were relied upon by the signor in entering into the contract.

Relying on Dannan, Judge Preska rejected the plaintiffs’ claims that the merger clause was too general, and likewise concluded the terms of the contract were not ambiguous.

Interestingly, like the prejudices examined in Borat, the decision to file suit in this case is an example of another inexplicable American phenomenon: litigate first, think later.

Embarrassed and humiliated, the unwitting and willing participants signed away their rights and then, defying both common sense and the terms of the contract, sued the production company.

Ironically, the slew of unsuccessful lawsuits filed in the wake of the blockbuster movie served only to further highlight the plaintiffs’ roles in the film.

So ended another chapter of Cohen’s ridiculously accurate commentary on our culture. As always, Cohen was wildly successful at exposing the sometimes sordid, and always hilarious, underbelly of America.

Very nice.

Apologies to My RSS Feed Subscribers

Checkmark I apologize to my many RSS feed subscribers for the now-shortened RSS feed posts and for the lengthy message following each post.

However, I had to to make a few changes to protect my blog content. It seems that this joker, Michael Rehm, a Legal Aid attorney in New York City, was posting my content (including my copyright protected Daily Record articles), in its entirety, on his blog without my permission. 

His blog appears to have no original content on it.

As of 9:14 a.m. this morning, he continues to do so despite my requests to remove it.  I'll be sending a DMCA Takedown notice later on today if he does not remove my content.

Again, I apologize that your RSS feed reader experience has been altered and I hope that this is resolved soon.

Updated: A few people have asked whether the Michael Rehm linked to above from California is the same as the Michael Rehm in Brooklyn.  They are one and the same.  If you look at his New York attorney registration and compare it to the biography on the blog and the website, you'll see it is the same person.

And, it appears that my posts have now been removed from his blog, so in the near future, I'll change the settings on the RSS feed so that the entire post once again appears in the feed.  Thanks for your patience.

The New York Legal Blog Round Up

Blawgs It's Monday, and a mellowed out Ike has now left the building here in Rochester, leaving minimal damage in its wake.  And, or course, it's time for the weekly round up of interesting posts from my fellow New York blawgers:

The Buffalo Lawyer:

Coverage Counsel:

New York Attorney Malpractice Blog:

New York Civil Law:

New York Federal Criminal Practice:

No-Fault Paradise:

Simple Justice:

Wait a Second!:

The New York Legal News Round Up

Latest_news It's already the middle of the week and time for the round up of New York law-related headlines from the past week:

Of Mountains and Molehills

Drlogo11 This week's Daily Record column is entitled "Of Mountains and Molehills."

My past Daily Record articles can be accessed here.


Of mountains and molehills

The difference between a mountain and a molehill is your perspective

-Al Neuharth

Although this is an op-ed column, I tend to avoid writing about politics, if only for the simple fact that I prefer to write about less contentious, law-related issues.

However, in the aftermath of the recent political party conventions and the election looming around the corner, my thoughts have been continuously drawn to the presidential race occurring in our midst.  And, with good reason.  It is a race unlike any other that we have seen in this country. 

This is an unprecedented election, in which American voters have been given an opportunity to vote for a groundbreaking line up in lieu of the usual, predictable cast of characters: 4 middle-aged, white men.

Voters face an historic choice of perspectives, with each candidate’s viewpoints arising from a unique combination of age, background, and life experience.

Of the four, Joe Biden, the Democratic nominee for Vice-President, is the least unusual candidate.  Biden is a dashing middle-aged lawyer turned career United States senator who generally towed the party line.  Many would agree that Joe Biden’s perspective is typical and predictable for a Democrat.

John McCain also looks the part, as an older, white man.  He is, however, anything but your typical Republican presidential nominee.  McCain, also a career politician, is known for challenging party leadership and occasionally breaking from the party line. 

And, of course, his time as a soldier and POW in the Vietnam War cannot be ignored.  His unique politics and wartime experiences are surefire indications that the perspective that he would bring to the Whitehouse would be anything but ordinary.

Which brings us to Barack Obama, who is anything but your typical presidential nominee.  Obama is the first African American candidate for a major political party.  His father was a Black Kenyan, his mother a White American.  Obama was born in Hawaii, and raised in both Hawaii and Indonesia.

At age 47, Obama appeals to the younger generation of voters, many of whom are stepping into the political arena for the first time.  His campaign staff has a far better grasp of Web 2.0 technologies than the McCain campaign and has successfully harnessed the viral potential of emerging technologies in a masterful and groundbreaking way.  The combination of his background and age would inarguably bring a novel perspective to the presidency.

And, last, but certainly not least, is Sarah Palin, the Republican nominee for Vice-President.  At 44, Palin, a staunch conservative, is the youngest of the four nominees.  She is the first woman candidate to run for vice-presidency on the Republican ticket, and only the second woman vice-presidential nominee for a major party. If elected, she would undoubtedly bring a unique and unparalleled perspective to Washington as the very first female vice-president in our history.

Regardless of political affiliation, on this we can agree:  this presidential election is an historical event for this country. Never before have we been presented with such a diverse group of nominees. The candidates are truly representative of a broad spectrum of Americans, both in their physical and philosophical manifestations.

Both tickets offer Americans the possibility of new and different perspectives in the Whitehouse.  And, with a change in perspective, anything is possible.  No matter which party wins, I suspect presidential politics, and our country, will never be the same again.

The New York Legal Blog Round Up

Blawgs It's time for the weekly round up of interesting posts from my fellow New York law bloggers:

Coverage Counsel:

Juz the Fax:

New York Civil Law:

New York Law Blog:

New York Public Personnel Law:

Simple Justice:

Wait a Second!:

Define That Term #295

Dictionary_2_2 Last week's term was Sunshine laws, which is defined as:

Statutes that provide public access to governmental agency meetings and records.

Roy Mura of the Coverage Counsel blog sent me an email with this guess--and got it right!

Sunshine laws = Freedom of Information Laws or FOIL statutes that provide access to “public records”, usually from municipal entities.  Like what the Buffalo News used to get the legal billings that formed the basis of this recent story:


This week's term is:


As always, educated guesses are welcome-dictionaries are not.