By Simon Grey, on December 4th, 2012
Universal is suing a porn company:
The copyright owner of the mega-selling book, Fifty Shades of Grey, and Universal Studios, which owns movie rights, aren’t happy with a porn film titled Fifty Shades of Grey: A XXX Adaptation.
In the new lawsuit, Fifty Shades Ltd. and Universal point to that quote as proof of the defendants’ intentions to usurp copyright and trademark and confuse the source of origin.
“By lifting exact dialogue, characters, events, story and style from the Fifty Shades trilogy, Smash Pictures ensured that the first XXX adaptation was, in fact, as close as possible to the original works,” says the lawsuit, filed in federal court in California.
My guess is that Universal is upset that Smash beat them to the punch on this one, so to speak. I mean, I had assumed that whatever Universal produced was going to basically be porn, and this lawsuit confirms it.
More to the point, it is quite hilarious to see Universal complain about how Smash is defrauding them by shamelessly ripping off a book that is itself a rip-off of Twilight. How hypocritical is it for Universal to complain that Smash is violating copyright law for doing to Universal what E.L. James did to Stephanie Meyer. I guess this just goes to show how stupid IP is, and how it is obviously nothing more than a legal front for major entertainment businesses to act monopolistically.
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By Bron Suchecki, on December 13th, 2011
As usual, Zero Hedge and others hype a story way beyond the reality (see here for the Bloomberg story), such as: ZH: ”is whether or not MF Global was rehypothecating (there is that word again), or lending, or repoing, or whatever you want to call it, that one physical asset that it should not have been transferring ownership rights to under any circumstances.”
TF: “A lawsuit such as this one could easily bring about the total destruction of the Comex/LBMA-based, fractional bullion banking system”
1. Mr. Fane and MFGI entered into five COMEX gold contracts and three COMEX silver contracts relating to the Property. HSBC is the depository for the Property pursuant to a certain Gold Delivery Point Agreement and a certain Silver Delivery Point Agreement entered into between HSBC and the New York Mercantile Exchange, Inc.
2. By e-mail dated October 25, 2011, MFGI notified HSBC that “MF Global’s customer Mr. Fane would like to take possession of [the Property] and move [the Property] to his account at Brinks (sic). I have already canceled for load out. Customer will advise of date and time.”
3. Mr. Fane did not contact HSBC to request that the Property be transferred to his account at Brink’s prior to the Commencement Date.
4. By letter dated November 18, 2011, HSBC, through its undersigned counsel, notified the Trustee that it had possession of the Property. HSBC also notified the Trustee, in light of HSBC having received instructions from MFGI prior to the Commencement Date to transfer the property to Mr. Fane upon his request, that HSBC would act in accordance with MFGI’s prior instructions barring an injunction or contrary instructions from the Trustee.
5. By letter dated November 21, 2011, Mr. Fane requested that HSBC transfer the Property to his account at Brink’s.
6. By letter dated November 22, 2011, the Trustee, through his counsel, asserted to HSBC that the Property constitutes customer property under Part 190 Regulations of the Commodity Futures Trading Commission and that the treatment of the Property must be administered by the Trustee. The Trustee further instructed HSBC not to release the Property to Mr. Fane.
7. By letter dated November 22, 2011, HSBC notified Mr. Fane that the Trustee had instructed HSBC not to release the Property to him and that the Trustee asserted an interest in and claim to the Property.
Not being a lawyer, I read this as “before you went bankrupt, you said I could have my metal”, “yeah, well, you didn’t take it before I went bankrupt, so it is now part of the bankruptcy proceedings”.
So no rehypothecation or loaning, no “suing” by HSBC, no stealing or counterfeiting of the bars and certainly not the total destruction of bullion banking. Just another lesson in counterparty exposure and possession is nine tenths of the law.
By Thomas Knapp, on December 16th, 2009
I admit it. Back in the day (the day when I hiked and even did a bit of climbing, that is), I owned a couple of North Face™ shirts. I doubt they’re still around. If they are, I’ll find them and sock them away for a public burning if it comes to that. I sure as hell won’t ever wear them in public again, or buy another North Face™ product. And I’ll probably go out of my way to have a little discussion with any friend I notice wearing North Face™ rags.
In other words, I am (and have just announced that I am) negatively socially and economically preferencing* North Face™.
Here’s why.
Parody is clearly protected speech/commerce under US trademark laws. Even absent such laws, parody clearly does not constitute aggression, theft, etc.
South Butt™ is clearly parody. High school level parody, sure — it was in fact founded by a high schooler (he’s in college now) — but unmistakably parody.
Instead of taking the parody in good humor, or better yet taking up South Butt™ on its offer to sell, North Face™ decided to throw its weight around with churlish “cease and desist” demands and then a lawsuit.
North Face™ may “win” — in America’s “justice” system, being right and a pocketful of quarters will get you a cup of coffee from the vending machine in the hallway outside the courtroom — but they’re wrong. They know they’re wrong, I know they’re wrong, and now you know they’re wrong. They’re humorless bullies. So screw’em.
Even if they “win,” North Face™ has already lost. They’ve lost any and all future potential sales of their products to me and to anyone whom I have the opportunity/occasion to influence on the matter, yea unto the seventh generation, etc. (by which I mean, point your friends/readers at this post, please).
Negative social and economic preferencing does not strictly require an equal and opposite reaction (i.e. a matching positive social/economic preference), but in this particular instance I think one is justified. South Butt™ offers fun, attractive products at a reasonable price, and presumably buying from them will aid them in fending off the efforts of North Face™ to shut them down. I can always use a new t-shirt, and I expect I’ll get my next one from South Butt™. Consider yourself invited to go now and do likewise.
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Note: For more on social preferencing and other solutions (actually, a framework into which social preferencing and other solutions fit) to the problems of human interaction, see the writings of Paul Wakfer and Kitty Antonik Wakfer at Self-Sovereign Individual Project.
By G.L.C., on October 20th, 2008
The high-profile advertising partnership between Google and Yahoo announced in June after merger talks between Microsoft and Yahoo collapsed could run into a challenge from the U.S. Justice Department. The Association of National Advertisers, the American Association of Advertising Agencies, and the International Advertising Association have expressed concerns about the deal and asked the Justice Department to investigate and block the deal. Many advertisers have warned that the deal will limit competition, raise prices, and reduce choices.
Last month the Justice Department hired veteran antitrust attorney Sanford Litvack to help assess the evidence gathered by its lawyers in what many see as the clearest indication that the Justice Department could be planning to mount a legal challenge to the deal which allows Google to sell ads alongside some Yahoo search results on some of its Web sites. Google dominates the search advertising market. It is feared that the deal will reduce competition in the search advertising market and lead to higher prices. The real concern of antitrust law is to protect consumers–-the advertisers. Investigators trying to build a lawsuit to block the deal worried are that it could give Google too much power.
The two companies have maintained that the deal does not violate antitrust law and recently agreed to delay implementing the deal until at least October 22 to give the investigators–-federal and state–time to scrutinize the deal and complete their investigations. According to them, the deal would serve advertisers and users more effectively.
Both companies are in talks with the Justice Department in an effort to prevent any challenge to the deal. The negotiations are at an early stage and both companies have discussed concessions including capping the volume of Google ads Yahoo would use, assurances that Yahoo would continue to compete in search ads, and a reporting mechanism to ensure compliance. A reporting mechanism could require the companies to disclose details about their closely guarded search advertising technology. The disclosure requirement could require disclosing more than what they really want to disclose. The Justice Department will try to impose measures to ensure that advertisers won’t have to pay prices that are significantly higher.
Any settlement reached would likely be laid out in a consent decree that would be filed in court allowing the deal to go ahead. If the deal does go ahead, many feel it will be a formal recognition of Google’s market powers constraining its future conduct. It could draw private antitrust suits–opponents of the deal including Microsoft have been provided with documents and depositions for use in possible litigation.
Some experts are looking at the appointment of Mr. Litvack as an effort by the Justice Department, which in the past has been criticized by some in Congress for its approach to antitrust enforcement, to deflect any political fallout from its ultimate decision.
By Anthony Luafalealo, on October 16th, 2008
Former nurse and retired attorney S.J. Robinson, author of The Price of Death, has practiced law dealing with medical malpractice and insurance companies over the last 30 years. Her book focuses on issues such as health insurance reform, oversight for prescription drug production, and the growing power of healthcare conglomerates. For more information about Robinson and The Price of Death, visit www.sjrobinson.com. (Interview conducted by R. C. Anderson and Dr. J.C.)
In a capitalist healthcare system focused on profits, what is the most effective reimbursement structure to reward providers for care while also managing costs?
We need a regulated system – a private/public partnership [that…involves payment to the government for healthcare and government-monitored, private health insurance companies administering payment to privately employed doctors and privately run hospitals]. Over the last 20 years, we have been depending on the free enterprise system to bring costs down. Over that time, healthcare costs have risen faster than the rate of inflation. That is because we don’t really have a free enterprise system. The free market is skewed by politics. The large healthcare companies have huge amounts of money to pass along to Congress via lobbyists, who influence Congress to pass laws that benefit big business healthcare.
What we are not cognizant of is the tremendous amount of profit realized by these companies, healthcare insurance, managed care, and pharmaceutical companies. These companies drive up our healthcare costs. We have the most expensive healthcare in the world, spending 17% of our GDP. France, Italy, Germany, Japan, and Taiwan spend roughly 8-9% of their GDP on healthcare, cover everyone, and have extremely happy patients.
We are told that the only alternative to the system that we have is the Canadian style system. That is a false story put out by the beneficiaries of our current system, primarily the insurance companies.
One obvious consequence of bringing down big pharma and device companies is that they will no longer spend the huge R&D on blockbuster drugs if there is no capital reward via reimbursement. Thus one clear consequence of making healthcare more affordable is a slowing of discovery and advancement. How can we incentivize advancement in medicine while controlling costs?
Big pharma spends 10-15% of its profit on research and development and 30-40% on marketing. Professor Karl Lauterbach of Germany said in a PBS interview on Frontline, titled Sick Around the World, “I don’t know of a single economist who would buy into that argument. I think this is a lobbyist argument. A market works best if there are no inefficiencies, and higher-than-necessary prices are inefficiencies. And the drug companies now spend more for marketing the drugs than for innovating the drugs. This clearly is an artifact which comes across with this system of subsidized and too-high prices.”
Do you think that class-action lawsuits by providers against insurance companies are a good solution to balance the inequity of power insurance companies wield in the current healthcare climate? Or does this merely clog the judicial system and become a distraction from what providers should be doing: helping patients?
Class actions and lawsuits in general are very wasteful of resources because the outcome is extremely uncertain and the suits are very costly in time and money. They would take time away from healthcare and possibly put health care workers in an unfavorable light vis-à-vis the public. As I said, the outcome of lawsuits is uncertain, and I think they should be used as a last resort. The better approach in this case is to influence the public and Congress for the development of a new healthcare system: a public/private partnership which eliminates the excessive profits of health insurance companies, big pharma, and managed care.
In your August newsletter, you describe the many and varied problems the U.S. has had with contaminated or improperly supervised drugs coming from China. Would it not solve a lot of the U.S.’s problems as well as poor patient outcomes if we simply stopped accepting drugs from China and instead paid a bit more for drugs that are properly supervised in countries that care to ensure it? What do you think it would take to reduce consumerism from China, especially given that drugs are not the only problems we have had, but also melanin contaminated products and lead contaminated toys?
I don’t think it likely that world trade is going to be turned back, and it may not even be a good idea. We already pay two to three times more for pharmaceuticals than other developed countries, for example Canada. We have been told that we must pay more in order to safeguard our drug supply and promote the development of new drugs.
U.S. drug companies are making record profits but still want to make more. They are having their drugs made in China to increase profits. Because we pay a premium for pharmaceuticals, I believe that we are a target for counterfeit pharmaceuticals, not more protected. Counterfeiters have no compunction about who they kill and want to make the most money. In my book, The Price of Death, I discuss the point of view of the Chinese on counterfeiting. Because this administration has actually reduced funding for the FDA despite the fact that world trade has increased, we are at great risk. At its current rate, the FDA will be able to inspect the 700 plants now open in China in the next 40-50 years. What we should do is require importers to pay a government fee to have their imports inspected. There is no reason that they should be making record profits and putting the consumer at risk as they are.
There was a problem with Baxter International heparin earlier this year, which, according to the FDA, probably came from China. The FDA says that the manufacturer used oversulfated chondroitin sulfate (OCS) instead of chondroitin sulfate (CS). The relative cost of the bogus chemical was only $9 per unit vs. $900 for the correct ingredient. There had also been a reduction in the availability of other materials to make heparin because it comes from pigs, and there was a pig epidemic in China. While it is difficult to prove, one can speculate why the plants would have substituted the new ingredient when stocks of other ingredients fell short and became more expensive. I say that it is difficult to prove partly because the Chinese government had not admitted that the OCS was the cause of the problem even though the FDA has indicated so on its website. The bogus chemical fooled the standard tests [about the protein content of the product], impeding immediate discovery of the problem.
Now Here’s Your Chance to Ask the Questions (and Win One of Three Copies of The Price of Death, Too!)
Do you have a question that we didn’t ask? Here’s your chance to pick S.J. Robinson’s brain. Submit your questions for her in the comments section, and she’ll be available for a week to answer them. Also, by submitting your question, you will be automatically entered into a drawing next week in which three winners will receive a free copy of her book. (Sorry, you must be a U.S. or Canada resident to participate in the drawing.) Please see our Book Giveaways information page for complete details and ask away!
By J.C., on October 15th, 2008
I previously wrote about the EOB and how insurance companies try their many tricks to decrease reimbursement to physicians. Most physicians do not fight back. Some do. Medical Economics has highlighted the plight of one physician who has been fighting back. Their story is about a Chicago ENT surgeon who brought a lawsuit against an insurance company for bundling and downcoding claims. Apparently, the insurance company settled with him for $140,000.
As I mentioned in a previous post, bundling is when insurance companies downcode or combine multiple codes into one in order to reimburse the provider less. In this physician’s case, the insurance company was bundling endoscopies with office visits and was reimbursing for the least costly services only. Additionally, the insurer downcoded several codes based on software it uses and tried to say that the lowered reimbursement was a “negotiated write-off” as though the physician’s practice had agreed to it. This is exactly the type of thing I was referring to when I said that insurance companies “force” physician’s to accept lower payment. As this insurance company’s logic shows, failure to fight downcoding and bundling is equal to “acceptance” by the physician. Thus, if you do not correct it, it is assumed that you accept it.
Interestingly, the practice in question has a threshold for when to trigger legal action. When denials reach over $50,000 by one insurer, it triggers the next step in legal action.
Details are not given as to who actually pays for all of these legal costs. However, you can be sure that the addition of an attorney to your practice is probably prohibitively expensive. But when the potential windfall is large – this practice says that several hundred thousand dollars are collected each year via denial appeals – it may well be worth the investment.
If any reader out there knows of any stories like this, I would be interested to hear about them. It is not often that you find a provider willing to sue an insurer over downcoding. But I anticipate to see this gain popularity in the future.
By J.C., on October 10th, 2008
I previously posted about insurance companies and the EOB. I’ve been thinking more and more about this issue and have come to the conclusion that physicians must band together and file class action lawsuits against insurance companies in order to collect the reimbursements that they legally deserve. If you take a closer look at the dynamic between insurance companies and physicians, you will find that it is heavily skewed in favor of the insurance company.
Here is typically what happens. A patient sees a physician who has an agreement in place with an insurance company. The physician sends the bill or claim to the insurance company, and the insurance company remits payment along with an EOB. One hundred percent of the time, the insurance company does not pay the full amount of the bill. The physician typically accepts the payment and does not bother with trying to collect more. When the insurance company denies the claim, the physician may try to collect payment and resubmit the claim. But typically there is a huge loss by the physician who does not have expertise in collecting payment.
If you look closely at this you will find that essentially the insurance company short changes the doctor and does not pay the full bill. In any other consumer-vendor interaction, it would be a violation of payment contract. This would be equivalent to going out to dinner and then paying half the bill instead of the whole thing. I’ve never thought of doing that, and I doubt many readers have. In those situations, it would clearly be unacceptable. We know it, and the restaurant would know it.
What makes it any different if a doctor is not paid the amount of his bill? One could argue that doctors provide a community service, and that, if a patient is getting a free ride by the doctor, that is not such a bad thing. However, the reality is that it is the insurance company getting a free ride, not the patient.
What is going to change the system? Class action lawsuits. In my next post I will highlight some examples of how this could all work.
One could argue that taking such action would essentially bankrupt insurance companies and break the healthcare system. If I had to choose between squeezing doctors or insurance companies, you know who I would choose.
By G.L.C., on September 18th, 2008
The present financial crisis has resulted in an increase in the number of lawsuits filed in the country. The mortgage meltdown is forcing financial institutions to leave the negotiating table and turn to the courts to resolve subprime-related disputes with their partners. In the past, large financial institutions often shied away from suing each other, preferring to work out problems quietly because they did not want to jeopardize future business relationships. Now, if the cases filed in the courts are any indication, then these companies are dropping their reluctance to sue each other.
HSH Nordbank AG is suing UBS AG in a New York state court over losses HSH sustained on a $500 million portfolio of collateralized debt obligations linked to the U.S. mortgage market. M&T Bank Corp sued Deutsche Bank AG and others in June to recover more than $82 million it said it lost by investing in collateralized debt that had been billed as nearly risk free. Another lawsuit involved Barclays PLC and the now defunct Bear Stearns over the high-profile collapse of two mortgage-linked hedge funds.
The severity of the subprime losses means that more such corporate disputes are likely to land in court. The stakes involved are so high, and many experts are not surprised about the increase in the number of lawsuits.
The increase in litigation is not restricted to litigation between financial institutions. A study by Navigant Consulting found that the volume of private lawsuits in the U.S. stemming from the current financial crisis has already surpassed levels seen in the aftermath of the savings and loan debacle two decades ago when 559 lawsuits were filed over six years. From January 2007 to the end of June of this year, 607 civil cases were filed in federal courts. These cases related to the meltdown in the subprime mortgage market. More than half of the lawsuits were filed in the first six months of this year.
As the present crisis gets more serious, the litigation will also increase. The result of the study is scary – it shows only the lawsuits filed in federal courts and doesn’t reflect the number of lawsuit filed in the states.
As the present crisis deepens, we are likely to see an increasing number of bank failures resulting in another wave of lawsuits. Eleven banks have already been seized by regulators.
A study by Stanford Law School and Cornerstone Research found the number of class action lawsuits filed against Wall Street firms surged in the last year, fueled by the meltdown in the subprime mortgage market. There was a 43% jump in the number of securities fraud class action lawsuits last year. Forty-seven Wall Street firms sued in 2007, more than four times the number sued in 2006. New York City’s retirement and pension funds for city workers filed lawsuits against mortgage lender Countrywide Financial Corp., claiming the lender misrepresented the risk of its mortgage-backed securities.
An increase in volatility in the market, like the one that is now taking place as a result of the subprime mortgage problems, is directly correlated to an increase in the number of lawsuits filed. If economic conditions were to decline in the future, then a strong resurgence of lawsuits would likely follow.
By B.P.T., on July 18th, 2008
After this term’s recent Supreme Court case ruling slashing the punitive damages award that Exxon had been penalized in the disastrous Valdez spill, tort and maritime lawmakers, corporate lawyers, and CEO’s around the world are paying attention. What started as a $500 billion award in punitive damages (compared to $287 million in compensatory damages) was slashed first by the 9th Circuit Court of Appeals from $500 billion to $2.5 billion and again by the U.S. Supreme Court to about $500 million- closer to the 1:1 ratio Justice Souter argued for in his theory that punitive damages should be “reasonably predictable.”
So what does this mean in terms of basic economics for both consumers and corporations? While it may theoretically take away a bit of the incentive to bring big tort cases against large companies and some environmental groups are concerned that big oil and other companies are more likely to cut corners without the threat of enormous, unpredictable punitive awards over their heads, the larger impact may be for the companies themselves.
In what started as a Due Process debate under the 14th Amendment, several corporations with large pending or potential lawsuits could be directly impacted. This continues a trend started several years ago, which began the slicing and dicing of seemingly arbitrary punitive damages in BMW v Gore, an Alabama case in 1996, where a jury awarded Gore, a man whose car had been slightly damaged and repainted before he purchased it, $4000 in compensatory and $4million in punitive damages. This punitive damage control also includes awards like the 2003 Campbell v State Farm case, when the high court cut a $145 million damage, which was later reduced to approximately $9 million.
The immediate impact may be felt sooner rather than later by big corporations and shareholders alike, whose holdings often fluctuate based on the daily headlines and potential pending lawsuits. Chevron is facing a potential $16 billion lawsuit in Ecuador over environmental issues. And what about the big MTBE water cleanup settlement recently? Several oil companies (including Chevron) have settled 59 cases for $422 million dollars over cleanup. Exxon Mobil did not settle. An agreement was reached several weeks before the Valdez ruling. Perhaps the other oil companies were worried about the possibility of large punitive damages if they failed to settle. And maybe Exxon will come out smiling. Again.
By J.C., on July 6th, 2008
One of the reasons that the costs of medical care continue to escalate is the litigious society we live in. Physicians, leery of the litigious patient, must practice medicine in a defensive manner. Oftentimes, they must prescribe medications or order expensive tests to cover all bases. These expensive routine workups are a primary reason why hospital bills can be so expensive.
For example, the patient who complains of chest pain while in the hospital for some other minor reason will typically get a battery of tests such as an electrocardiogram, cardiac enzymes, electrolytes, pulse oximetry, and a chest x-ray even if he or she does clinically look like he is having a heart attack. If the physician fails to do all these things and the patient does indeed have a heart attack, the physician may be on the hook for that event.
Thus in such a litigious environment, every physician should obtain malpractice insurance. In many specialties, such as obstetrics, these costs can be prohibitively expensive in certain states, driving physicians out of those states. However, some states, such as Texas, have addressed tort reform. Texas has enacted a law several years ago that caps noneconomic damages at $250,000. This sort of policy limits liability for the physician and drives down the cost of malpractice insurance significantly. It is interesting to note that since the law went into effect, the number of physicians applying for medical licenses in Texas has increased every year.
Tort reform and capping of damages obviously has the significant benefit of allowing physicians to practice medicine with limited liability. Thus, it is significantly pro-physician and is cost-effective. However, from the patient’s perspective, putting a number on a possible outcome from malpractice may not be palatable. After all, we live in a society where people can successfully sue others for millions of dollars from other types of accidents.
Thus, malpractice will continue to be an issue at the forefront of the health economic and policy debate. From my perspective, the medical industry is regulated in almost every other area. It might as well regulate malpractice and make the health economy more financially viable.
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