Accurate but true. But false. Or something.

And thats the way it is.

And that's the way it is.

New York’s Appellate Division to Dan “Time Travel Typist” Rather: It’s kind of hard to feel sorry for a guy disemployed for $6 million a year, but, sorry Charlie, you’re done:

At the outset, we find that Supreme Court erred in declining to dismiss Rather’s breach of contract claim against CBS. Rather alleges that he delivered his last broadcast as anchor of the CBS Evening News on March 9, 2005, and that, since he was only nominally assigned to 60 Minutes II and then 60 Minutes, he should have received the remainder of his compensation under the agreement in March 2005. Rather claims that, in effect, CBS “warehoused” him, and that, when he was finally terminated and paid in June 2006, CBS did not compensate him for the 15 months “when he could have worked elsewhere.” This claim attempts to gloss over the fact that Rather continued to be compensated at his normal CBS salary of approximately $6 million a year until June 2006 when the compensation was accelerated upon termination, consistent with his contract.

Contractually, CBS was under no obligation to “use [Rather’s] services or to broadcast any program” so long as it continued to pay him the applicable compensation. This “pay or play” provision of the original 1979 employment agreement was specifically reaffirmed in the 2002 Amendment to the employment agreement. . . .

Rather’s claim for lost business opportunities due to CBS’s failure to release him to seek other employment is insufficiently supported. Since, according to Rather’s own allegations, an immediate result of the September 8, 2004 broadcast was criticism that he was biased against Bush, it would be speculative to conclude that any action taken by CBS would have alone substantially affected his market value at that time. Rather’s claim for damages for loss of reputation arising from the alleged breach of contract is not actionable. Dember Constr. Corp. v. Staten Is. Mall, 56 A.D.2d 768, 392 N.Y.S.2d 299 (1st Dept. 1977).

Rather’s cause of action for breach of fiduciary duty must also be dismissed. Supreme Court held that the issue of “whether a fiduciary duty has been created in the course of the long relationship between Rather and CBS is really a question of fact.” Previously, the court determined that “the length of [Rather’s] contractual relationship with [CBS], and the nature of the service that [Rather] performed under his contracts” created an issue of fact that could not be resolved on motion. This was error.

Rather claims that his “four-decade history” with CBS constituted a “special relationship that imposed fiduciary duties upon CBS toward [Rather].” The law in this Department, and indeed enunciated in every reported appellate-division-level case, is that employment relationships do not create fiduciary relationships. Simply put, “[the employer] did not owe plaintiff, as employee, a fiduciary duty.” . . .

Wow. Some people will say anything in court papers, huh.  Or elsewhere.  Anyway, it’s as predicted here.

Courage!, Dan!  Or was it Kenneth?  (Hat tip to Insty, who says, “Loser loses again”!)

On the Final

I first posted this two years ago.  But it’s so good I’m posting it again (joke will become readily apparent).

I have been pondering this link from Instapundit for a couple of days now. It is about, in one sense, a cutesie trend on American campuses now called a “last lecture”:

Schools such as Stanford and the University of Alabama have mounted “Last Lecture Series,” in which top professors are asked to think deeply about what matters to them and to give hypothetical final talks. For the audience, the question to be mulled is this: What wisdom would we impart to the world if we knew it was our last chance?

Now the lecture in question in the article really was the last chance, for all practical purposes, for the professor involved, who is dying. I was, however, rather put off by this idea. The man was facing his end, I realized; how churlish could I be about such a topic?

On the eve of Yom Kippur, however — when among Jews the congregation as a whole admits to a state of sinfulness generically, but as individuals reserves the most intimate of confession for the private communication between Man and his Creator — I’ve had the chance to contemplate the matter some more. Regrettably for those among us who circulate heart-warming emails and who yet care about my opinion (uh, hi, Mom), I want to go with my initial instinct, at least as to the general trend; as to the case in the article, perhaps that requires more thought.

The “last lecture” trend is truly the emblem of ours, history’s most narcisstic era.

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My smarter half

Here’s something that’s kind of interesting, and instructive, about social media and professional, as well as online-social, relations. I published this on LIKELIHOOD OF CONFUSION® a couple of weeks ago (for good measure I just pinned it to the top again there, which I may do from time to time):

Secondary Trademark Infringement — the website:

This website is dedicated to an examination of the law of secondary liability for trademark infringement – the idea that someone other than a direct infringer can be liable for infringing another’s trademark. Secondary liability for trademark infringement is a relatively recent development in the law, and it has evolved entirely in the courts. . . .

Of all the contexts in which secondary liability has been raised, whether contributory or vicarious, the Internet has by far generated the most interest and attention. The advent of Internet commerce has created new problems for the law to address. On the Internet, buying and selling take place among a seemingly infinite number of parties at lightning speed, making it difficult both to police and remediate infringement. These issues came to light in Tiffany v. eBay, where the court observed that “more than six million new listings are posted on eBay daily, and at any given time, some 100 million listings appear on the website.”

That’s from the overview of Jane Coleman‘s new short treatise on contributory and vicarious liability for trademark infringement — those are the two different types of secondary liability, you know — which is the first work to analyze and digest thoroughly the entire law on this developing subject.

And talk about thorough! Be sure and read it through and through so you’ll be ready to comment incisively when the Second Circuit does its work on Tiffany v. eBay (oral argument was in mid July, by the way). You’ll be the hit of the party.

End of the post.   But here’s the point I want to make on this blog:

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Confusion, dispelled

This post was originally posted on my LIKELIHOOD OF CONFUSION® blog (where it was off topic, but in those days it was the only blog I had) almost exactly four years ago.  A friend reminded me of it today, and I thought it was perhaps appropriate to republish it in the season of solemn introspection between Rosh Hashana and Yom Kippur:

Last spring, I got a comment on the blog from a gentleman named Bunker Mulligan. I don’t get a lot of comments, which isn’t surprising; our content is so mind-numbing that few of our innumerable readers are in any sort of shape to do something so pedestrian as “comment.”

But Bunker did comment, and thanked me for stopping by his site. I hardly remember what I did when I was there and what sort of tracks I left. It was really two bloggers passing in the night of cyberspace.

And during this real night I was doing some routine maintenance on the site, and I saw Bunker’s comment, and I clicked through to his blog… and was reminded that blogs are people.Bunker Mulligan

Bunker — his real name was Michael Reed; he liked golf, so his pen name was Bunker Mulligan — died. He passed away at the beginning of the summer, a total surprise to everyone; he was only ten years older than I am and looked a lot more fit than I do now.

Here was his last post:

I really don’t understand why folks who dislike the military are often the same people who push for diversity. I can tell you from personal experience that the military is the most diverse group of people you will ever meet. We’ve got ’em all. Including members of a royal family. From Nigeria. Capt. Wisdom Osagiede-Ogbewekon. He is in Iraq, working to help get their nascent government operating. As he has a perspective they can respect.

“I tell them, ‘Look at me. What does that tell you? I’m an African who is an officer in the most powerful army in the world,'” says Osagiede-Ogbewekon, a member of the active Guard and reserve. “I’m a very good example of what America is.”

In fact, Bunker Mulligan was at least as good an example. This is a little about who Bunker was:

I have lived in many places. I am a Texan, and an American, and quite proud to be both. . . .

I support President Bush and see him as the embodiment of Teddy Roosevelt, who was also disparaged as a cowboy. I also support our troops, two of whom are my sons. One of them will go overseas soon, and the other one recently returned from Afghanistan. I have less concern for their safety than I do for my other son who is a police officer. He, unlike his brothers, can’t shoot first and ask questions later.

My daughter, the youngest, is in LA making her way in the entertainment business doing casting and production.

I’ve coached baseball at every level from T-ball to NCAA junior varsity, and football up to high school. I watch sports, but am not very serious about it above high school level. I play golf, and enjoy the game more than others due to the individuality, honor, and sense of community in it. . . .

I am NOT a celebrity watcher. I get frustrated to turn on the news. With everything of import going on in this country and around the world, the lead stories are Kobe Bryant, Scott Peterson, and Michael Jackson. It is easy TV, and not hard to put a story together around them, so something more important gets overlooked because it takes real work to get the story.

So, welcome to my site. I hope you find something you like!

I have little in common with Bunker. I don’t care much for golf; I was never in the service — he was an Air Force veteran, evidently with combat experience, though I can’t really tell; he was Christian, and I’m a Jew. I fancy myself something of an intellectual, and although Bunker had two degrees, including a Master’s in international relations, he seemed more down to earth than that. But for the love of God I can tell you that I was hit so hard when I saw this personal, honest, specimen of American life blog that I just broke down.

I like to say that some people have the ability to project personality on an Internet web page. What could be a more powerful projectile than, “So, welcome to my site. I hope you find something you like!” I don’t think anyone within 50 miles of where I am, on the crest of the ancient Passaic River basin overlooking New York City, could write a more earnest sentence.

And it has been a hard day that way, seeing as how earlier this afternoon I left my office and helped bury the father of a longtime friend and neighbor — he also died suddenly, scant months after the death of his wife after a long illness.

The dirt from the cemetery is still on my heavy-soled lawyering shoes. My friend, Mike the professor, spoke beautifully, passionately, eloquently at the graveside — eloquently as in I didn’t know Mike had it in him — about how his father knew so little peace during his lifetime, pursued as he was by hard knocks economically; and how he pursued his obligation to honor his own mother, especially after his father’s early death, to a degree beyond fashionable in our times; and then how his dad had to watch his wife get sick and then predecease him… and how his solace and his joy had been his children and his grandchildren — Mike, the professor; his brother, Eric, a Harvard graduate and succesful consultant, whose children attend the local Jewish school with mine…

Mike’s dad and Bunker Mulligan weren’t linked by anything but me and by being “good examples of what America is.”

It’s been a hard, hard day in real life, outside the blog world, separate from the Redweld folders whence come and whither go all the papers I analyze, generate and quote from while I generate more; separate from the adversaries, the clients, the judges; blogs, the politics; the trademarks and the copyrights alighting on the heads of pins. A hard day for a white-collar guy feeling the earth for a change.Springtime in Clifton

It’s Rosh Hashana in a few days, and God has done me the favor of shaking me up but good on the last Wednesday of the year. All it cost was a little sweat as I shoveled the dirt, and the cost of a shoeshine.

Solomon said, “It is better to go to the house of mourning, than to go to the house of feasting: for that is the end of all men; and the living will lay it to his heart.” Ecclesiastes 7:2.

It was better.


Morris County Courthouse

I’m trying a commercial case to a jury, in Morris County, New Jersey — it’s a wild and woolly one, believe me — so I can’t really blog much.

But did you know I once had a week-long stint on  It’s one of my proudest weeks of blogging.  (I had more time then.)

You may enjoy some of this stuff.  I know I did.

Oh, sure, when HE says it

President Obama on Letterman:

Addressing suggestions that recent criticism of his health care reform efforts has been grounded in racism, President Obama this afternoon quipped, “I think it’s important to realize that I was actually black before the election.” . . .

Mr. Obama said the notion that racism is playing a role in the criticism, which has been voiced by former President Jimmy Carter and others, is countered in part by the fact that he was elected in the first place – which, he said, “tells you a lot about where the country’s at.”

Thank you, Mr. President.

Thank.  You.

Attorney Ronald D. Coleman