Thursday, October 23, 2014

Heather and the Alfalfa Sprouts

“If the law supposes that,” said Mr. Bumble. . . “the law is a ass, a idiot.”
— Charles Dickens, Oliver Twist

As a reward for those who read my musings faithfully, I am always pleased when I can give them information that may prove to be of financial benefit to them. This week’s offering falls into that category. It will benefit those who (a) do not read legal notices in their local newspapers carefully or (b) those who live in areas where the legal notice I describe, did not appear. It pertains to the class action settlement that has been entered into by a company known as Jimmy John’s LLC and Heather Starks. Heather was the plaintiff in the lawsuit that has now been settled who, with the of help lawyers, vindicated the rights of all those, who like her, were outrageously treated by a Jimmy John’s in Los Angeles.

Jimmy John’s Gourmet Sandwiches is a store that sells gourmet sandwiches of all sorts. A review of its menus online discloses that it has such tempting offerings as “The J.J. Gargantuan® that was invented by Jimmy John’s brother Huey and is huge enough to feed the hungriest of all humans. Tons of Genoa salami, sliced smoked ham. . . .” In addition to the huge sandwich it also has an array of 8” subsandwiches” and “Plain Slims.” Summoning pictures of the sandwiches on the computer screen discloses an array of mouthwatering sandwiches that cannot fail but appeal not only to the hungry but to the viewer who anticipates being hungry at some undefined time in the future. Sad to say, one of the descriptions of its vegetarian sandwich had what turned out to be a costly error. The description said that the vegetarian sandwich it was offering customers included, among other vegetarian delicacies, alfalfa sprouts.

On a fateful day in February 2012, Heather Starks entered a Jimmy John’s looking for a vegetarian sandwich that included alfalfa sprouts. To her delight, she saw such a sandwich on the menu and proceeded to order it. Then a bad thing happened. Heather was given the vegetarian sandwich and to her surprise and dismay THERE WERE NO ALFALFA SPROUTS in the sandwich. Only someone who likes alfalfa sprouts and has ordered a vegetarian sandwich because that sandwich contained alfalfa sprouts can imagine her distress. I do not know if she ate the sandwich notwithstanding her distress or simply refused to accept it and left the store. There is one thing we do know, thanks to the legal notice in the newspaper. She went to see the law firm of Shenkman and Hughes in Malibu, California.

When Heather met the lawyers, she described the terrible thing that had happened to her at Jimmy John’s. It is not clear whether the lawyers were vegetarians but they related to Heather’s distress. Just as Jimmy John’s was creative in creating sandwiches, the lawyers she consulted were creative in deciding how best to help Heather. They concluded that if Heather’s sandwich did not include alfalfa sprouts, there were probably hundreds, if not thousands, of other customers who had ordered vegetarian sandwiches expecting to find alfalfa sprouts who had been disappointed by their absence. As soon as the lawyers came to that conclusion they did what any good lawyer would do. They filed a class action suit on behalf of everyone who had ordered a vegetarian sandwich at Jimmy John’s and not received alfalfa sprouts. According to a description of the suit and its settlement in the “National Law Journal”, they alleged that Jimmy John’s had engaged in intentional and negligent misrepresentation, interference with contract, fraud and, in addition, had violated certain California statutes. Because the lawyers were good lawyers, the suit has now been settled on terms very favorable to Heather and the lawyers who represented her, as well as all the disappointed alfalfa sprouts customers.

According to the report in the National Law Journal, the lawyers will be paid $385,000 for fees and expenses. Heather, whose righteous sense of indignation is what brought this egregious omission to the world’s attention, will receive $5000. None of that is the best part of the settlement, however. Since this was a class action, anyone who submits a claim to the court showing that he or she ordered a sandwich “listed on the menu as containing alfalfa sprouts at a Jimmy John’s between February 1, 2012 and July 21, 2014” will share in the settlement. If the claim is approved the person making the claim will “receive a voucher good for the purchase of a side order (pickle, chips, or cookie) or soda.” Readers wanting more details about the settlement and the notice they need to file can go to

Although I am sure that Jimmy John’s was represented by excellent lawyers I would, nonetheless, offer Jimmy Johns one piece of free legal advice that will help it avoid future lawsuits like the one involving the sprouts. It should change the description of the Gargantuan® so that it refers to “lots of salami” rather than “tons of salami.” Without such a change, Jimmy Johns may find itself back in court defending a claim by another dissatisfied customer.

Thursday, October 16, 2014

Democracy in Action

As long as I count the votes, what are you going to do about it? — William Marcy Tweed, November 1871.

Recent events cause some to wonder whether the literacy tests that voters in some states were required to pass, before voting, from the early 1890s until the 1960s, are preferable to the methods used today to disenfranchise minority voters. Literacy tests were used so that those who were elected to high office could be sure that those who voted for them were literate and fully understood the issues and were not voting on the basis of what they saw in the popular media. A literacy test in Louisiana, for example, consisted of six questions that the prospective voter was given 10 minutes to answer. The instructions advised the test taker to “Be careful as one wrong answer denotes failure of the test.” One of the questions was :“Draw a line under the last word in this line.” Of course the real purpose of literacy tests was to keep the African American and other minority populations from voting. They succeeded. In 1940 only 3% of African Americans in the south were registered to vote.

Ever since passage of the 1965 Voting Rights Act and the disappearance of the literacy tests, Republicans have been fearful that African Americans and other minority voters would not support their candidates. That concern has grown as an increasing number of Hispanic immigrants have moved into the United States. Since literacy tests are no longer allowed, Republicans have come up with three new approaches to dilute the minority vote and, where possible, prevent minorities from voting.

One involves creating voting districts that place, for example, African American voters in highly concentrated districts so that their votes will not dilute votes in the adjoining mostly white districts. On October 7, 2014, a federal appeals court said Virginia’s newly drawn congressional map was unconstitutional because it packed blacks into the 3d District thus diminishing their influence in neighboring districts and violating the equal protection guaranteed by the 14th Amendment. On October 1, 2014, it was learned that the Florida Supreme Court would hear an appeal pertaining to a Florida Circuit judge’s approval of redrawn maps prepared by the Florida legislature that opponents believe prejudice minority voters.. On June 1, 2014, it was announced that the U.S. Supreme Court would hear two appeals from Alabama in which appellants argue that Republican legislators drew district lines that intentionally marginalized African American voters.

Redrawing districts is not the only substitute for literacy tests used by Republicans to marginalize the effect of increasingly enfranchised minorities. Reducing the number of days for voting is another. Ohio’s secretary of state reduced early voting for the November 2014 elections by one week and eliminated one day of Sunday voting, a day when black churches have traditionally taken congregants to the polls. He also eliminated the week during which voters were permitted to register and vote at the same time. The secretary of state explained that these changes were to reduce the opportunity for “fraud and abuse”. He did, however say that election fraud was “very rare.” On September 29, 2014, the U.S. Supreme Court said his changes were fine. That Court also approved North Carolina’s elimination of same-day voter registration and said a lower court was wrong when it ruled that refusal to count votes cast in the wrong precinct would harm minority-voting rights.

Voter ID laws are the third weapon of choice used by Republicans to disenfranchise minority voters while at the same time solving the non-existent problem of voter fraud. In Texas the legislature enacted what is considered the most restrictive voter ID law in the country. It addressed the problem exposed by two convictions for voter impersonation that took place in a 10-year period in Texas during which 20 million non-fraudulent votes were cast. Wisconsin, too, has enacted voter ID laws even though there is no evidence that voter fraud is a problem in that state. In a vigorous dissent from the majority opinion of the 7th U.S. Circuit Court of Appeals ruling in favor of Wisconsin’s new strict voter ID law, Judge Richard Posner said that the requirement that voters present photo IDs of themselves in order to vote “has placed an undue burden on the right to vote. . . . Some of the ‘evidence’ of voter-impersonation fraud is downright goofy, if not paranoid. . . . As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? . . . . There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burden.”

Judge Posner got it right. Republicans have it wrong. Perhaps they should see if, with the passage of many years since they were last used, literacy tests would once again pass muster. Here is one question they could use from the old Louisiana test: “Draw a line around the shortest word in this line.” They might even want to impose a requirement that all their candidates pass such a test. Many would not.

Thursday, September 18, 2014

Syria and the Ukraine

Preachers say: Do as I say, not as I do.
—John Selden, Preaching

Today’s question is what is the difference between what the United States may or may not do in Syria and what Russia may or may not have done in the Ukraine. The main difference is that according to Vladimir Putin what happened in Crimea and eastern Ukraine has nothing to do with anything Mr. Putin or Russia did whereas what’s about to happen in Syria has a great deal to do with what the United States plans to do. If Mr. Putin were not credible, the differences between what’s happening would be less pronounced.

Russia now owns Crimea and rebel forces in eastern Ukraine are trying to take over that part of Ukraine. This is all being done without any help from Vladimir Putin. If anyone has any doubts about that they were put to bed by a spokesman for the foreign ministry, Alexander Lukashevich. On September 11 he reaffirmed that: “No Russian troops are fighting in south-eastern Ukraine. There were no and there are no Russian troops in Ukraine. The Russian army is not fighting there. There are volunteers who cannot stay away from the suffering and events unfolding in the Donetsk and Luhansk regions.”

NATO members and non-NATO members are of course upset with Mr. Putin because (a) they don’t believe him or his spokesman and (b) they don’t think he has a right to engage in military action in a sovereign country irrespective of his reasons for doing so. That is why sanctions are being placed on Russia.

What Mr. Obama proposes to do in Syria is quite different. Syria is governed by Bashar al-Assad. Three years ago Syrian Sunnis began a revolt against Mr. Assad and the result has been three years of a brutal and bloody civil war. During the war Mr. Assad has used poison gas, barrel bombs and other cruel methods of waging war to kill some of the 88.7% of the people who reelected him as president on June 3, 2014. The Sunnis being less well armed have been unable to drive Mr. Assad from power and as a result of the conflict more than 200,000 Syrians have been killed, and more than 1 million have become refugees. The Sunnis who began the revolt have been joined by some exceptionally violent Sunni types known as ISIS or Islamic State who have been fighting the less extreme Sunnis as well as Mr. Assad and his forces. When ISIS captured a government base near the Syrian city of Raqqa in July 2014 it beheaded the officers and soldiers it had captured and placed the severed heads on posts in the central town square for all to see. In September and August ISIS beheaded two American journalists and one British journalist and posted videos of the beheadings on line. Those three beheadings (but not the earlier ones) galvanized the west. Although the United States had been flying bombing missions over Iraq to fight Islamic State, following release of the videos of the beheadings it determined to do more. In an address to the nation on September 10, 2014, President Obama announced that in order to defeat ISIS he will authorize direct attacks against ISIS not only in Iraq but also in Syria.

Bombs may be dropped inside Syria without the permission of its president. As Mr. Obama explained in his speech to the nation: “I will not hesitate to take action against ISIS in Syria, as well as Iraq. . . . . If you threaten America, you will find no safe haven.” Mr. Lukashevich commented on the president’s plan saying: “This step (bombing in Syria) in the absence of a UN Security Council decision, would be an act of aggression, a gross violation of international law.” (Since Russia was uninvolved in the Ukraine he did not need to explain why Russia had not taken those steps or why what it did was not a similar violation.) So here is how it all is working out.

Mr. Putin invaded Crimea and is engaged in efforts to take over eastern Ukraine but says he did not do that. Mr. Obama acknowledges that he plans to bomb a country that has not given consent to being bombed because Islamic State is taking refuge there. Mr. Obama does not plan to put any U.S. troops in combat operations in Iraq or Syria although less than a week after he offered that assurance, General Martin Dempsey, the chairman of the joint chief of staffs, said at some point he might recommend to the president that the United States have troops involved in attacks on Islamic State when accompanying Iraqi troops. His remarks were followed the next day by Mr. Obama saying there would be no American troops engaged in combat in Iraq. Neither Mr. Obama nor General Dempsey mentioned the possibility of ground troops in Syria. It will only be subject to bombing-at least for the next few weeks.