Lindsay Lohan, good-for-nothing, is suing E*TRADE for $100million in damages for it's Super Bowl ad where the baby calls the other baby a milkaholic. I can't possibly list all of the reasons why I'm disgusted with this story, but I'll give you my top 3:
1. Lindsay Lohan can still afford a lawyer? We still pay her to do things? I can't express my disappointment in learning this today.
2. Are we obligated to allow her to bring this suit to court? Is that a right? Looking to Senior The Coughing Dog Legal Consultant Mr. Piper out there to school me on her rights.
3. She is claiming in her lawsuit that everyone (and I mean everyone) knows her as Lindsay and only think of HER when they hear that name. The alleged milkaholic in the commercial is also named Lindsay (a common name) and in real life Lohan is/was an alcoholic anyway. So, she's claiming that they MUST have been talking about her. I actively try to remove this woman from my brain because she contributes so little to society unless the fines she's paid from D.U.I. arrests are funding state aid programs in California - that I'll have to look into.
This is just bananas.
One last point, it appears she was convinced to sue E*TRADE after her Twitter followers told her to do so. Unfortunately for her, she didn't delete her Tweets, so any real claim of anger or emotional distress would be hard to prove from her published statements on that site.
Read about it for yourself here.
Absolutely ridiculous. There is a body of law that bars anyone from using one's likeness without permission. I don't know the nuances of that law, but the bottom line is that people do not associate the name Lindsay with Lindsay Lohan. If the milkaholic had been named "Madonna" or "Oprah" the case would have a shot.
ReplyDeleteThis case has no chance, but there are some procedural hurdles that E-Trade will have to jump through before it's off the hook. Whenever someone files a lawsuit, the opposing party has to respond with an answer. In this case they will surely also file a 12(b)(6) motion, seeking dismissal of the case because the plaintiff's complaint has failed to state a claim upon which relief can be granted. Therefore, Lohan's complaint will have to have alleged basic facts that support her assertion that her likeness was used. Whether or not these facts are true, she will win the motion if the allegations are properly pled. Hard to say whether she will win here. Depends on the details on the details of the complaint and somewhat on the judge and the lawyering of the two parties.
However, even if Lindsay wins that motion, I can't imagine she could get past the next stage, summary judgment. A motion for summary judgment allows a party to get a judgment without a trial if there is no triable issue of material fact in question (legalese). So basically, after the 12(b)(6) motion, the parties will go ahead with discovery, in which they exchange documents, depose (interview) witnesses, and generally accumulate a factual background for the case. E-Trade will presumably use these facts to demonstrate that there is no triable issue of fact that they used her likness (i.e. no reasonable jury could find that they used her likeness). I can't imagine Lohan could get beyond this point.
So I don't think E-Trade will have to go to trial or pay a dime in settlement. They will of course have to pay legal fees. To limit those legal fees and to unburden the already clogged dockets of courts, I hope this case is dismissed at 12(b)(6). E-Trade could employ the rarely used Rule 11 motion, in which a defendant can recover attorney's fees and the plaintiff's attorney can be sanctioned if the judge rules the plaintiff has filed a frivolous lawsuit. I would love to see Lohan's attorney get slapped with one of those.
This is a very general statement of a surprisingly complex body of procedure. But that's where I see this case going based on my limited knowledge of the facts and basic familiarity with the rules of civil procedure. If anyone wants a great read that accomplishes the mind-bending feat of keeping you riveted while taking you through the rules of civil procedure, read A Civil Action by Jonathan Harr.