CITE: USA Today, Oct. 2, 2013, page 34.
FACTS: Katherine Jackson, mother to Michael Jackson brought a suit on negligence against AEG Live LLC. AEG Live LLC was a concert promotion company that produced Jackson’s comeback concerts. Katherine argued that AEG Live LLC acted negligently in hiring the physician responsible for administering the medication that killed Michael. Conrad Murray, the physician, was found guilty of involuntary manslaughter in November 2011 for administering a propofol overdose that lead to the death of the singer.
In their negligence claim, the family sought to show that AEG Live LLC was responsible for hiring the physician who was at fault for the singer’s death. A ruling by the jury stated that although AEG hired the physician, he was hired on the basis of being competent to perform his duty. Brian Panish, Katherine’s lawyer urged the jury to find that there was a joint responsibility between Michael Jackson and AEG in the hiring of Murray. AEG argued that Jackson pressured them to hire Murray as his personal physician. AEG also argued that Murray and Jackson deceived them by concealing the fact that Jackson used anesthetic proforol as a sleep aid.
The arguement by Panish was that AEG hired Murray without consideration of his ability to perform his duty. The argued that a if Jackson had a competent doctor, the Propofol use would not have resulted in his death. Putam, AEG’s lawyer, told the jury that if the company knew of Jackson’s use of the powerful medication, it would have cancelled the concert. Panish demanded $85 million in personal damages for each of the singer’s three children, and $35 million for the mother. He also argued that potential economic damages were larger as the comeback had the potential to raise as much as $1.5 billion for the singer.
AEG dismissed the claim and put potential economic damages at about $21 million. AEG also provided evidence to show that Jackson had a history of erratic behaviour and show cancellation. The jury six men six women jury returned a not guilty verdict after three days of deliberations. The case required a vote of only nine out of twelve jurors to reach a verdict and did not require a unanimous verdict.
LAW: Negligence under tort refers the failure by an individual to exercise due the care that a reasonable person would if in the same situation thereby resulting in unintentional harm. Negligence cases are common in civil litigation. Plaintiffs sue for damages for reasons such as physical injury, property damage, and business errors. To obtain damages under negligence, injured party must show:
- The defendant had a duty of care towards the injured party
- Action or inaction by the defendant was not what a reasonable person would do
- There was proximate cause or the injury was as a direct result of the negligence
Elements of Negligence
- Duty of Care: The case in Caparo vs Dickman  established a threefold test for duty of care. First, the harm should be reasonably foreseeable. Second, there should be a proximate relationship between the plaintiff and defendant. Third, the imposition of liability must be fair, just and reasonable. These act as guidelines for courts to establish a duty of care but it is up to the judge to determine it.
- Breach of Duty: After it is established that a defendant owed the claimant a duty of care, the next objective is to find out if there was breach of that duty. If the defendant knowingly exposes the claimant to a substantial risk of injury or loss, the duty of care is breached. Also failure by the defendant to notice substantial risk of injury or loss to the claimant that would have been noticed by a reasonable person in the same situation, there is breach of duty of care.
- Factual Causation: It must be shown that the acts or omissions of a defendant caused the loss or injury sustained by the claimant for liability to hold. It is often a question of whether the loss or injury would have occurred without the breach of duty of care by the accused.
- Scope of Liability: Even with a breach of duty and injury to the claimant, damages will only be paid when the claimant proves that the defendant's breach of duty is what caused the caused pecuniary injury. A plaintiff can win a case without proof of loss suffered if damages are not a necessary element. In such a case, nominal damages are awarded.
- Damages: This is the quantification of injury into monetary value. It follows the principle of restitution in integrum. Compensation is paid after establishment of the breach of duty.
COMMENT: The law on negligence is meant to ensure that people exercise reasonable care in their actions by considering the potential harm to other people that may result from their actions. The issuance of damages in meant to remedy any injury caused through negligence. Negligence cases are fact-specific and require proof of harm for the award of damages. In the case of Katherine Jackson vs. AEG, the claimant sought to prove that AEG’s negligence in the appointment of Michael Jackson’s physician is what caused his death. The claimant was not able to prove this as a fact as even the jury concluded that the physician was capable of conducting his duty. The failure to prove negligence in on the part of AEG meant that the case did not have sufficient cause for award of damages.
JUDGE RULES AGAINS JPMORGAN IN SUIT OVER BILLIONAINRE’S LOSSES
CITE: New York Times, Aug. 26, 2013, page B4.
FACTS: Russian-American billionaire Leonard Blavatnik sued JPMorgan Chase for breach of contract. The company placed risky subprime mortgage securities in his investment account which was in violation of his contact with the bank. In 2009, Mr. Blavatnik sued JPMorgan to recover a $100 million loss lost by the bank on a fund named CMMF L.L.C. that he established under his company Access Industries valued at approximately $1 billion.
Justice Schweitzer finds JPMorgan liable for exceeding the 20% limit on mortgage-backed securities. In his ruling, Justice Schweitzer rejects the bank’s argument that “based on industry practice, home equity loans were a separate classification from mortgage securities their risks were different”. On the negligence claim ruling, Justice Schweitzer stated that mortgage securities are considered “relatively safe and desirable” on their purchase and JPMorgan’s advice to CMMF was reasonable in light on the prevailing conditions at the time.
A Federal Judge found the company liable for breach of contract. In his ruling, the Judge ordered the bank to pay in excess of $50 million in damages inclusive of interest. Manhattan State Supreme Court Justice Melvin Schweitzer ordered payment of $42.5 million in damages for breach of contract. In addition to this, JPMorgan is to pay 5% interest backdated to May 2008. On the case of negligence, the judge found JPMorgan not liable. The case was a nonjury trial.
LAW: A contract is an agreement between two individuals that is legally binding. Breach of contract occurs when a party in a contract fails to honour the binding agreement through non-performance or interference. A breach of contract may be actual or anticipatory. All types of breach of contract entitle the innocent party to seek for damages. The general practice in contract is that an aggrieved party can only terminate a contract under only three situations.
- Renunciation: This occurs when there is a refusal by a party to perform the obligations stipulated in the contract. Renunciation can either be express or implied. An example of express renunciation is the case of Hochster v De La Tour. Implied renunciation occurs where the defendant’s conduct gives a reasonable inference of unwillingness to fulfil the contract as in the case Omnium D’Enterprises v Sutherland.
- Breach of condition: This occurs when there is failure to fulfil a condition in the contract. In the case of Poussard v Spiers, the termination of employment for the employee is justified by her failure to appear for performances.
- Fundamental breach: This is the total failure of contract performance or the non performance of a fundamental aspect of the contract.
The basic remedy for contract breach is an award of damages. Damages refer to monetary sums set by a court as compensation to an injured party. The objective of damages is to put the affected party in the position he would have been if the contract was performed. The recovery of substantial damages depends on the ability of an injured party to show actual loss suffered. In case actual loss cannot be shown, the injured party may be awarded nominal damages. In cases where damages do not provide adequate remedy, equitable remedies such as injunction and specific performance are awarded. There are two main considerations in the award of damages.
- Remoteness of loss: These are aspects of the breach that can be legally attributed to the defendant. The case in Hadley v Baxendale established the principle of remoteness of loss. Under the principle, where one party breaches the contract, the injured party should receive damages that can reasonably be contemplated to be within expectation of the parties when making contract as payment for breach.
- The measure of damages: This refers to the principles applied in quantifying damage or loss in monetary terms. Measure of damages occurs only after the first condition is fulfilled. Measurement of damages applies the following principles:
- The damages are meant as compensation to the claimant for loss suffered and not as punishment to the defendant.
- Damages are for compensation and not restitution. Compensatory damages put the injured party at the financial position he would have been if breach had not occurred. This is also known as the expectation loss principle.
COMMENT: The breach of contract by JPMorgan is a breach of condition as the bank exceeded the 20 % limit imposed on investment in mortgage-backed securities through misclassification of securities. This action by the bank brought a lot of financial loss to Mr. Blavatnik. In seeking damages, Mr. Blavatnik aims to recover the loss made due to the breach. Ideally, Mr. Blavatnik seeks compensatory damages for his losses in order to attain the financial position he would have been in if breach had not occurred. Mr. Blavatnik’s company also closed the CMMF account in May 2008 which was basically a termination of the contract between his company and JPMorgan. This is also an aspect that can be attributed to the breach of contract.
FORMER BENGALS CHEERLEADER AWARDED $338,000 IN DEFAMATION LAW SUIT
CITE: USA Today, July. 11, 2013, page 23.
FACTS: Sarah Jones sued gossip website TheDirty.com for defamation. Jones, a former Cincinnati Bengals cheerleader filed the suit in 2009 after a publication in the website alleged that she was promiscuous and had sexually transmitted diseases. In the first trial conducted in January, the jury was unable to reach a unanimous verdict on whether the posts which alleged that Jones had sex with all Bengals players and it likely to have sexually transmitted diseases contained a substantial degree of falsehood. Reports indicated that the Jury voted in favour of Jones 8-2.
There was a unanimous agreement among the Jurors that the submissions by Nik Richie, owner of TheDirty.com were not posted with malice. The implication of this at the time would have been a zero award of damages had all the Jurors come to a unanimous agreement that the website submissions were substantially false. The case gained a lot of interest from Technology and First Amendment experts after a ruling by U.S. District Judge William Bertelsman that declared the website as not shielded from liability under the provisions of the Communications Decency Act of 1996. The January 2012 decision was a departure from many previous rulings that protected websites which used third party content on their sites. Judge Bertelsman stated that Richie’s comments on the posts made about Jones’s sexual promiscuity meant that he lost the privilege to seek protection under the Communications Decency Act.
In his defence, he argued that his comments were satirical. Attoney David Gingras who represented TheDirty.com argued that a reasonable person would not think Jones slept with the whole Bengals team. Jones won the defamation lawsuit and was awarded $338,000 by the Federal Court. The jury comprised of two men and eight women listen to the facts of the case for about 10½ hours over a period of two days. The jury then delivered a unanimous guilty verdict.
LAW: Defamation refers to a statement which injures a person’s reputation through exposure to ridicule, contempt, or hatred, or that lowers a person’s esteem in the society. (Sim vs. Stretch  2 All ER 1237, 1240, per Lord Atkin. Defamations can be categorized either as libel (written) or slander (oral). In the case of Jones, libel was committed. For a case to be considered for defamation, the claimant must prove:
- Statements made were defamatory
- The statements were a direct reference to the claimant
- The statements were communicated to a third party
- The statements were false
- The statements caused injury to the claimant
As a defense, the defendant has to prove one or a combination of the defenses below.
- The statement was true or justified: A true statement is not actionable in a court of law. The burden of proof lies with the defendant. The claimant does not have to prove that the statement is false. Truth when used a defense is quite risky as failure to prove truth by the defendant may be interpreted as an aggravation of the defamation
- The statement was a fair comment on an issue of interest to the public: This is a common defense for press members. It only applied to matters of public interest. If a publication or statement is noted to be malicious, it destroys the defense of fair comment.
- The statement was made on a privileged occasion. There are certain occasions in which freedom of speech is essential. Statements made in parliament or congress have absolute defense under privilege. In court proceedings a witness is allowed to speak freely without worry of defamation as long as statements made are in good faith.
- Doctrine of Public Figure: There are special rules applied for press statements made about public figures that are applicable as a defence. In the United States, for a public figure to win a libel case, there must be actual malice as established in New York Times vs Suiiivan, 376 U.S. 254 (1964).
COMMENT: The purpose of defamation laws is to protect the reputation of individuals. It is common for defamation laws to conflict with people’s freedom of speech. In some cases, it is advisable to limit people’s freedom of speech in order to protect the rights and reputation of other people. Dissemination of information through the internet has brought a new challenge on how to handle defamation cases especially in the determination of burden of proof. In the United States, press is shielded from liability when information from third parties is used to make statements under the Communications Decency Act of 1996. In the case of Jones, Nik Richie, owner of TheDirty.com seeks protection under this Act but fails to qualify due to comments made on the publication. The ruling on the case can be considered as just and fair as the defendant is not able to prove any of the defences under defamation.
Andrews, N. Contractual duties: Performance, breach, termination and remedies.
London: Sweet & Maxwell. 2012. Print.
Hannah, Jim. "Former Bengals Cheerleader Awarded $338,000 In Defamation Lawsuit." USA
Today 11 July 2013: P23. Print.
Simon Deakin, A Johnston and Basil Markesinis. Markesinis and Deakin’s Tort Law.
London: Oxford University Press 2012. Print.
Sisario, Ben. "Judge Rules Against JPMorgan in Suit Over Billionaire’s Losses." New York
Times 26 Aug 2013: B4. Print.
William M. Welch. "Jury: Concert Promoter Not Negligent in Jackson Death." USA Today 2 Oct
2013: P34. Print.
Jury: Concert promoter not negligent in Jackson death
Jurors have reached a verdict in the Michael Jackson wrongful death civil trial.
(Photo: Joel Ryan, AP)
- Jackson died in June 2009 of an overdose of the drug propofol
- Murray was found guilty in November 2011 of involuntary manslaughter in the death
- AEG Live contends it was pressured by Jackson to hire Murray as his personal physician
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LOS ANGELES – A jury ruled Wednesday in favor of concert promoter AEG Live, finding it was not liable in the death of singer Michael Jackson.
Katherine Jackson, Michael Jackson's mother, brought the case against AEG Live LLC, the giant concert promoter that was producing the singer's comeback concerts, arguing that the promoter was negligent in hiring the physician who administered the drug that killed him.
The jury of six men and six women returned their verdict on the third full day of deliberations after a bitterly contested trial that lasted five months in a Los Angeles courtroom.
Jackson died in June 2009 of an overdose of the drug propofol, which is intended for use in surgery at hospitals.
Following a trial, Conrad Murray was found guilty in November 2011 of involuntary manslaughter in Jackson's death for giving the singer an overdose of propofol as a sleep aid. Just who was responsible for hiring Murray to take care of Jackson before his comeback concerts was at the heart of the family's negligence claim.
The jury ruled that AEG did hire Murray, but also ruled that Murray was not unfit or incompetent to perform the job he was hired to do. Under a series of questions the judge presented to the jury as a way of arriving at a verdict, that finding led directly to a verdict in favor of the promoter.
"Michael Jackson was used to getting his way,'' juror Kevin Smith said outside the courthouse after the verdict.
"He could pretty much get what he wanted Anybody that said 'no,' they were out of the mix and he'd find somebody else.''
AEG Live General Counsel Shawn Trell voiced relief at the verdict. "It's nice to have this in the rear-view mirror,'' he said.
Marvin Putnam, attorney for AEG Live, said his client never considered trying to end the case by negotiating a settlement with the Jackson family because "They werent going to allow themselves to be shaken down.''
He said Jackson had a long struggle with addiction, and ultimately what he did in the privacy of his home was beyond the promoter's control.
"What really happened behind those locked doors? That was between Michael Jackson and his physician,'' Putnam said.
Kevin Boyle, attorney for Katherine Jackson, said they would consider a next step.
"We, of course, are not happy with the result as it stands now," Boyle said. "We will be exploring all options legally and factually and make a decision about anything at a later time."
Jackson's lawyers depicted the company as being more concerned with the profits a successful concert run could generate than the singer's well-being.
Brian Panish, lawyer for Jackson's mother, urged the jury to find that defendant AEG Live LLC and Jackson shared responsibility for hiring Murray, who is serving a prison sentence.
AEG Live contends it was pressured by Jackson to hire Murray as his personal physician. Attorneys for the promoter argued that Jackson and Murray deceived the promoter by concealing that Jackson, who complained of chronic insomnia, was receiving the anesthetic propofol nightly in his home as a sleep aid.
Panish urged the jury to find that AEG hired Murray without considering whether he was fit for the job.
"Propofol might not be the best idea," Panish said. "But if you have a competent doctor, you're not going to die."
Panish contended that AEG executives including CEO Randy Phillips and co-CEO Paul Gongaware disdained Jackson and pointed to an e-mail in which an AEG attorney referred to Jackson as "the freak."
"They're a money-making machine," Panish said. "All they care about is how much money is this freak going to make for them."
Both executives were initially named as defendants but were dismissed from the case during the trial.
Panish showed jurors details of a contract that was drafted by AEG Live but only signed by Murray. He said it proved that AEG wanted to control the doctor.
AEG Live attorney Marvin Putnam told jurors that Jackson insisted on hiring Murray despite objections from AEG Live. The company told Jackson there were great doctors in London, where his concerts would be held, but the singer insisted, Putnam said.
"It was his money and he certainly wasn't going to take no for an answer," he said.
AEG attorneys showed the jury excerpts from the documentary film about the failed Jackson comeback, This Is It, to demonstrate that Jackson appeared in top form just 12 hours before he died.
"AEG Live did not have a crystal ball," Putnam said. "Dr. Murray and Mr. Jackson fooled everyone. They want to blame AEG for something no one saw."
He contended AEG would have pulled the plug on the concerts had it been aware Jackson was receiving the powerful drug.
"AEG would have never agreed to finance this tour if they knew Mr. Jackson was playing Russian roulette in his bedroom every night," Putnam told jurors.
Panish said AEG should pay $85 million in personal damages to each of Michael Jackson's three children, and $35 million to the singer's mother.
But potential economic damages could be larger. Attorneys for the Jackson family argued that had he lived, the singer could have made as much as $1.5 billion from the concerts, music, endorsements and related revenue streams.
Putnam, the AEG attorney, dismissed those calculations and presented expert testimony putting economic damages far lower, at close to $21 million. AEG also presented testimony showing Jackson had a history of erratic behavior and canceled shows.
Judge Rules Against JPMorgan in Suit Over Billionaire’s Losses
Published: August 26, 2013
A New York state judge found JPMorgan Chase liable to the Russian-American billionaire Leonard Blavatnik for breach of contract for placing risky subprime mortgage securities in an investment account he held, and ordered the bank to pay more than $50 million in damages, including interest.
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In a decision made public on Monday, Justice Melvin Schweitzer of the State Supreme Court in Manhattan ordered JPMorgan to pay $42.5 million on the breach of contract claim, plus 5 percent annual interest starting in May 2008.
The judge found JPMorgan was not liable for negligence. His decision was dated Aug. 21, about seven months after the three-week, nonjury trial.
Separately, JPMorgan faces other litigation and investigations involving its handling of mortgage-related businesses during the financial crisis.
According to Mr. Blavatnik, JPMorgan Investment Management promised that it would invest Access’s money conservatively after opening the account in 2006.
Instead, according to Mr. Blavatnik, the bank breached a 20 percent limit for mortgage-backed securities by misclassifying securities that were backed by a pool of subprime loans, known as ABS-home equity loans, as asset-backed rather than mortgage-backed securities.
Access also accused JPMorgan of continuing to hold the troubled securities despite knowing they were inappropriate for the portfolio. CMMF closed the account in May 2008.
In finding JPMorgan liable for exceeding the 20 percent cap, Justice Schweitzer rejected the bank’s argument that “industry practice” was to classify the home equity loans separately from mortgage securities because they carried different risks.
In ruling for JPMorgan on the negligence claim, Justice Schweitzer said that the mortgage securities were considered “relatively safe and desirable” when they were bought, and that JPMorgan acted reasonably in light of current conditions when it advised CMMF to “wait out the storm” rather than sell at depressed prices.
A JPMorgan spokesman, Doug Morris, said: “We are pleased that the court rejected CMMF’s negligence claims, and found that our investment professionals lived up to their responsibilities. We respectfully disagree with the court’s interpretation of our agreement with CMMF, and we are considering our options regarding that finding.”
David Elsberg, a partner at Quinn Emanuel Urquhart & Sullivan representing Mr. Blavatnik, said: “Hopefully it signals that banks need to live up to their obligations to clients, and as the court makes clear, not hide behind what they often try to refer to as industry practice.”
Former Bengals cheerleader awarded $338,000 in defamation lawsuit
Jim Hannah, USA TODAY Sports 6:25 p.m. EDT July 11, 2013
(Photo: Mark Zerof, USA TODAY Sports)
- Sarah Jones fought back tears after verdict was announced in her suit against TheDirty.com
- Previous district court ruling determined website was not shielded from liability by the Communications Decency Act
- Jones, formerly a teacher, is also known for sexual misconduct case involving a former student whom she's now engaged to
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COVINGTON, Ky. — Former Cincinnati Bengals cheerleader Sarah Jones won her defamation lawsuit against the gossip website TheDirty.com on Thursday in federal court, winning an award of $338,000.
A jury of eight women and two men took about 10½ hours over two days hour before delivering the unanimous verdict at the federal courthouse.
Jones appeared to be fighting back tears and could be heard whispering towards the jury. The lead attorney for Jones, Eric Deters, who was in another trial when the verdict was announced, tweeted and posted on Facebook the following: "Today. A wise jury. A fair judge. A brave woman. Changed America for the better. This is historic. I am honored to be part of it."
Jones, 28, sued in 2009 after the website published comments alleging she was promiscuous and had sexually transmitted diseases.
During the first trial in January, jurors were unable to unanimously agree whether the posts about Jones having sex with all the Bengals players and likely having sexually transmitted diseases were substantially false. The Associated Press reported jurors were deadlocked 8-2 in favor of Jones.
Jurors did unanimously agree that Nik Richie, owner of TheDirty.com, did not act with malice when he posted the submissions, the AP reported. That means jurors would not have awarded Jones any money had they all been able to agree that the posts were substantially false.
First Amendment and technology experts began closely watching Jones' defamation case after U.S. District Judge William Bertelsman ruled the website was not shielded from liability by the Communications Decency Act of 1996. The decision, issued in January 2012, was seen as a departure from numerous other rulings protecting website operators who use material provided to them, known as third-party content.
Bertelsman found that Richie lost protection from the decency act because he commented on posts about her alleged sexual promiscuity.
His defense was that his comments were satire. TheDirty.com attorney David Gingras told jurors that no reasonable person would think Jones slept with the whole team.
The website trial was unrelated to Jones' sexual relationship with a student when she taught at Dixie Heights High School in Edgewood.
Jones pleaded guilty in October 2012 in state court to misdemeanor sexual misconduct and felony custodial interference and was sentenced to two years in prison. Her plea agreement allows her to avoid any confinement as long as she follows the terms of her probation for five years.
After her plea in the criminal case, Jones walked out of the courtroom at the end of that case holding hands with the student, Cody York. In June, Jones and York, now 18, announced on social media sites that they were engaged to be married.