Archive for the 'Torts' Category

The House of Astor Scandal: Father Against Son

Greed, money, and power versus family. Who wins?

In this tale concerning one of the greatest philanthropic ladies in New York, greed definitely wins out.

Millionaire Brooke Astor ruled the New York social scene for decades. Her late husband, Vincent Astor was the last heir as the descendant of legendary John Jacob Astor who made an amazing fortune by trading fur and by his deals in the New York real estate market. The book The Last Mrs Astor: A New York Story was based on Brooke Astor’s life.

In a shocking lawsuit, Brooke Astor’s grandson Philip Marshall, a college professor, has sued his father Anthony Marshall. Father v. Son, sad sad sad.

Anthony, who was Brooke’s legal guardian, was sued by his son Philip in order to have him removed as guardian due to neglect.

“My father…has turned a blind eye to her, intentionally and repeatedly ignoring her health, safety, personal and household needs,” says Philip Marshall in court documents. He says his father was “engaging in a consistent pattern of enriching himself at the expense of my grandmother.”

Anthony Marshall, who’s a Tony-winning Broadway producer from a previous marriage of Brooke Astor, has denied any mistreatment of his mother. However, research has found a tax return form for that has shown a 2005 income of $2,384,999.92 while having Brooke Russell Astor listed as his employer.

Wife of Oscar de la Renta to be legal guardian

Their endorsement for legal guardian of the Astor estate is for fellow philanthropist Annette de la Renta, who is the wife of fashion designer Oscar de la Renta. Even Annette de la Renta has gotten into the act with her affidavit in the case file that claims that “because of the failure of Ms. Astor’s son, Anthony, to spend her money properly, the quality of life of Ms. Astor has been significantly eroded…her life is now restricted to one blue sitting room and her bedroom.”

What do the lawyers say in this House of Astor case?

They have a lot to say actually. Attorney Ira Salzman, who is representing Philip Marshall in the lawsuit, says that “Anthony Marshall has repeatedly refused to use his mother’s great wealth to provide for her basic needs. Mr. Marshall has refused to pay for any new clothing for his mother…the last time new underwear, brassieres, nightgowns and knee-high socks were purchased was in 2004.” He says that one of Astor’s servants would dress her in a scarf but was stopped “because Mr. Marshall was concerned about the $16.00 cleaning bill for each scarf.”

What do people close to Brooke Astor have to say? Who do they support?

Let’s hear from Christopher Ely, who was Astor’s former butler, country home manager, and driver who testified in this case in a written affidavit. “Mr. Anthony Marshall…would complain when he had to replace such things as the roof. He also objected to the costs of maintaining Ms. Astor. I think it is a tragedy that she is not being maintained in the style in which she has lived her entire life for whatever amount of time she has left.”

Fair Use Debate: People Posting Your Private Photos on Forums

From Rebecca Tushnet:

Two Yale Law School students have sued posters on a law school discussion board (AutoAdmit, also known as Xoxohth) for defamation, related torts, misappropriation of personality, and copyright infringement, for reposting candid photos that were part of one student’s online collection at her own page.

What happened (Wash. Post article) to these students was inexcusable — they were harassed, threatened and defamed, and I have subzero sympathy for the defendants, who may have thought that using pseudonyms exempted them from the ordinary requirements of humanity. But — I did write a whole article about this type of copyright issue. And I think copyright is the wrong tool, though privacy torts might be the right ones.

As Feministe summarizes, the misogynist posters on the site, among other things, suggest that a woman who has the temerity to post ordinary pictures of herself on a general webpage has to expect that others will post crude fantasies and threats about her. Their “asking for it” argument is nothing new, but it’s structurally similar to the argument the court accepted in Nunez v. Carribean International News Corp., 235 F.3d 18 (1st Cir. 2000): a debate over the existence and presence of the picture itself is at least a modestly transformative context for the copying. And here the individual posters’ use of it was noncommercial.

The middle two fair use factors (creative but published; entire picture copied) favor the plaintiff a little but rarely matter. The effect on the market depends on whether we analyze the market for photos as a whole or segment it; courts have inclined towards the latter, at least in transformative use cases. There’s not much market for uses of candid photos in discussion threads. The fact that they’re candid wouldn’t necessarily excuse the New York Times from paying if it used the shot to illustrate a story, but it makes copyright’s incentives less important. So: fair use and criticism of women’s bodies, once again joined.

Separately, there are barriers to the misappropriation claim, specifically the fact that the posters didn’t benefit commercially from their acts. The IP claims have the great virtue, from the plaintiffs’ perspective, of being available against the website because they’re exempt from section 230 of the CDA, but here the plaintiffs didn’t sue the site, so I’m not sure losing the IP claims would be all that harmful to the outcome. (Another relevant consideration: the copyright claim gets them into federal court.)

Question: Does Mediation Undermine Justice?

From MediationBlog

California decision bars evidence of legal malpractice in underlying mediationCritics of alternative dispute resolution have claimed that it undermines the rule of law and subverts justice. A court decision this week from California may lend support to these criticisms.

In a case titled “Wimsatt v. Superior Court” (PDF), the California Court of Appeals ruled on Monday that California laws barred a plaintiff from obtaining mediation briefs and related e-mails from an underlying lawsuit so that he could pursue a malpractice action against his former lawyer for conduct during the course of the mediation. The plaintiff alleged that his former lawyer had breached his fiduciary duty by reducing his settlement demand without his knowledge or consent.

California law shields from discovery communications made during the course of a mediation and provides no exceptions on public policy grounds. Although the law permitted no other outcome, the appeals court judge was clearly troubled by the result:

Our Supreme Court has clearly and unequivocably stated that we may not craft exceptions to mediation confidentiality. The Court has also stated that if an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts…

The stringent result we reach here means that when clients … participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. Certainly clients, who have a fiduciary relationship with their lawyers, do not understand that this result is a by-product of an agreement to mediate. We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.

The judge called upon the Legislature to act in the best interests of justice and the public:

Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.

Like California, Massachusetts law protects the confidentiality of mediation communications. It allows no exceptions. Last September, the mediation community in Massachusetts formed a committee known as the MassUMA Working Group to explore the adoption of the Uniform Mediation Act. The UMA specifies a number of exceptions from the privilege, including evidence of professional misconduct or malpractice by a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation. Enactment of the UMA in Massachusetts would prevent the kind of unjust and unintended consequence that California has just confronted.

Mediators, still not ready to support public policy exceptions to confidentiality in mediation? Then consider the damage a case like this can do to public confidence in the mediation process. One blogger, law professor Shaun Martin, sums it up in a few harsh words:

Feel like committing malpractice? Selling out your client?

Do it in a mediation.

That’s the lesson of the day. Justice Aldrich doesn’t appear especially happy about the result, but he says that he’s bound by precedent and that any changes are for the Legislature to make, not the judiciary. Even if the injustice is manifest.

Remember that the next time you agree to participate in a mediation.