Friday, July 22, 2011
cfifruling
this is a placeholder for some thoughts on the ruling in cfif v tenant.
several days ago there was a ruling on dueling summary judgment motion that disposed of some but not all issues in the joint cases of cfif v tenant and wvrtl v tenant.
this is a case in which i had submitted an amicus brief on the issue of disclaimers.
the ruling noted some of the other amici in the case but did not mention mine; i wonder if the judge even read it. there had been a change of judge; this is a case that has been going on for a while.
i think that the case is erroneous in its decision upholding disclaimers.
it does two things. first, it says that disclaimers are not subject to strict scrutiny, but only "exacting scrutiny", which in practice is a far more permissive standard.
second, it says that disclaimers are now governed by citizens united,with no mention of four contrary prior precendents.
my own take on this is that i think citizens united only applies to cases of statutes regulating corporate speech, and does not overrule the prior precedents of talley mcintyre aclf and watchtower. i think if citizens united had intended to overrule those cases, it would have said so.however, the disclosure/disclaimer part of CU is badly written and incoherent, and did not explain itself well, so it is somewhat understandable that court here and in maine are making this error.
my amicus brief to the first circuit in the maine case was rejected; i do not know why.
the first circuit has not yet ruled.
jim bopp, counsel for wvrtl, has said that he favors disclaimers. i do not know whether he is engaged in collusive lawsuits or just what his strategy is; he didnt respond when i asked for clarification.
i know not know what the other party, cfif, intends to do in this case. i have not decided what role if any i should take.
this is a placeholder for some thoughts on the ruling in cfif v tenant.
several days ago there was a ruling on dueling summary judgment motion that disposed of some but not all issues in the joint cases of cfif v tenant and wvrtl v tenant.
this is a case in which i had submitted an amicus brief on the issue of disclaimers.
the ruling noted some of the other amici in the case but did not mention mine; i wonder if the judge even read it. there had been a change of judge; this is a case that has been going on for a while.
i think that the case is erroneous in its decision upholding disclaimers.
it does two things. first, it says that disclaimers are not subject to strict scrutiny, but only "exacting scrutiny", which in practice is a far more permissive standard.
second, it says that disclaimers are now governed by citizens united,with no mention of four contrary prior precendents.
my own take on this is that i think citizens united only applies to cases of statutes regulating corporate speech, and does not overrule the prior precedents of talley mcintyre aclf and watchtower. i think if citizens united had intended to overrule those cases, it would have said so.however, the disclosure/disclaimer part of CU is badly written and incoherent, and did not explain itself well, so it is somewhat understandable that court here and in maine are making this error.
my amicus brief to the first circuit in the maine case was rejected; i do not know why.
the first circuit has not yet ruled.
jim bopp, counsel for wvrtl, has said that he favors disclaimers. i do not know whether he is engaged in collusive lawsuits or just what his strategy is; he didnt respond when i asked for clarification.
i know not know what the other party, cfif, intends to do in this case. i have not decided what role if any i should take.
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