New York Law Blog

The 3rd Circuit court in Philadelphia recently ruled that a Spanish speaking individual is still responsible for any employment contracts they may sign, regardless whether they can read them or not. This particular case, Morales v. Sun Constructors Inc, judgement came down from 3rd Circuit Judge Michael A. Chagares which read the following:

"In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable," Chagares wrote in an opinion joined by 3rd Circuit Judge Marjorie O. Rendell.

But if the company takes steps to ensure that their employees understand completely what they are signing, are they then still responsible, or does the liability fall on the individual hired to translate?

But in dissent, 3rd Circuit Judge Julio M. Fuentes said he would have upheld the lower court’s refusal to enforce the arbitration agreement because the evidence showed that Sun Contractors had assigned a bilingual worker to translate the agreement for Juan Morales, and the translator had failed to read the arbitration agreement.

"When Sun made the decision to insert itself between Morales and the contract, it created a situation where lack of mutual assent could, and did, occur," Fuentes wrote.

"Because I do not believe it was negligent or otherwise improper for Morales to rely upon the translation provided by Sun, and because Morales was not informed in the course of that translation that the agreement contained an arbitration clause, I agree with the district court that Morales did not ‘manifest an intention’ to be bound by the arbitration clause," Fuentes wrote.

Judge Charges however did not interpret the law as Judge Fuentes, and had this to say when he overturned the case:

"It was Morales’ obligation to ensure he understood the agreement before signing," Chagares wrote.

"Morales did not ask Hodge to translate the document word-for-word or ask to take the agreement home and have it translated, notwithstanding the fact that he testified that, in the past, he had paid someone to translate documents for him," Chagares wrote.

Chagares found that the appeal raised fundamental issues of contract law, and that Morales was effectively asking the court to carve out an unprecedented exception.

Under the "Restatement (Second) of Contracts," Chagares said, the "mutual assent" of the parties is necessary for the formation of a contract.

But Chagares also found that "while mutual assent is sometimes referred to as a ‘meeting of the minds,’ this phrase must not be construed too literally."

Instead, Chagares said, courts have consistently held that "acceptance is measured not by the parties’ subjective intent, but rather by their outward expressions of assent."

Last week, senior TGL partner Jeffrey Lichtman was a guest on CNBC’s “Street Fight” speaking on the topic of websites that assist people in finding a lawyer. Here is the full transcript of the segment:

Mark Haines: People turning to the internet for all kinds of matches these days, even lawyers are getting in on the action. Time Magazine recently profiled a new website WhoCanISue.com set to launch next month to help people determine if they have a case, and even though that rarely stops them, and to hook them up with an attorney. Are sites like this making people more litigious? Should corporate America be worried? We have a Street Fight. Jeffrey Lichtman, plaintiff attorney at Trolman, Glaser and Lichtman, also the former president of the New York state trial lawyers association and Susan Dwyer, partner with Herrick, Feinstein joins us as well. Susan I’ll start with you. In the notes here, I was struck by this sentence: “Anytime you want to focus people on who can we blame as opposed to what happened that’s bad.” Who can we blame is the name of the game isn’t it though for lawyers?

Ms. Dwyer: It’s the name of the game unfortunately, if the big question is ‘should corporate America be worried?’ I think the answer is ‘all of America should be worried.’ If you have a legal system that is creating claims, finding ways to make a claim so that there has to be a response by a company in litigation, that drives up the cost of goods, it clogs the courthouses and denies access to legitimate claims and keeps the country from being able to compete in a global economy.

Mr Haines: And I’m sure Jeffery you agree.

Mr. Lichtman: Oh definitely. The constant refrain about how we’re supposed to be protecting corporate America from itself always amazes me. Really all we’re talking about here with a website is an opportunity for consumers to get information and possibly access if they’ve been injured i guess if we’re talking about personal injury and that’s germane to me because I represent people who have been seriously hurt in accidents. But the idea that we have something to fear that America should be afraid of its ability to compete in the global economy because someone is giving access…

Ms. Dwyer: The number one cost for corporate America though is tort. Frivolous lawsuits.

Mr. Lichtman: You have statistics to suggest that is true? I haven’t seen anything to suggest that.

Ms. Dwyer: Well a lot of wall street strategists do  believe that is true. They say that the cost of the system fighting litigation is some of which is merited, but a lot of which is not, is hampering competitiveness in this country.

Mr. Lichtman: It’s an argument that has been tried so many times, it fails, it’s not accurate, it’s not true. As a matter of fact, they talked about frivolous litigation back when plaintiff lawyers decided it was time for tobacco to own up to the fact that they were promoting a drug that was killing people. And if you’ll all recall back to the New York Times front page when they all stood up and said ‘we swear to tell the truth’ that tobacco isn’t killing people it’s just, can’t buy it. The idea that people can get information and get access to get help, that’s important.

Ms. Dwyer: You have to have to look at this like the gimmick that it is. People have lots of ways for people to get hooked up with lawyers who can represent them, and they should have access to the courts when they have legitimate claims. But when the premise of the website is, and by the way they can’t even get the english usage right, it should be whom can I sue and not who can I sue, you have to watch out that these guys are going to be the watchdogs for corporate america and keep them on the straight and narrow? No, this is about and by the way the advance for this website is that you’re going to answer five to ten questions it’ll take you two to three minutes and while you’re answering the questions, five ads from lawyers who have paid to have their ads flash in front of you are going to come up, and when you’ve hit the last question, boom, you can go to the lawyer that  paid the most for that practice area. That’s no way to determine do you have a legitimate claim. What kind of lawyer would ask ten questions and take on a lawsuit. It’s about shaking the trees, and signing up clients.

Erin Burnett: She’s got a fair point Jeffrey.

Mr. Lichtman: Susan, is that a fair point? The idea that an individual can go onto the computer, and have several questions answered and from that link get to a lawyer who is prepared to answer questions and give advice, I think that is pretty amazing in our society. What makes you think that just because someone is sitting back in their house or their apartment who’s had i guess we’re talking about accidents here, who is hurt, is necessarily going to have a claim? The whole concept of frivolous when it comes to these claims is silly. Lawyers, although we do good and we do a lot of good, we’re not in it as philanthropists, and lawyers aren’t taking on cases that are frivolous. The idea, as I sit here in the stock exchange, is to make money.

Mr. Haines: You instantly got Susan and me to twitch when you said that. But that leads me to a point though Susan. Isn’t part of the problem, to broaden out the discussion a little bit, isn’t part of the problem that the courts and the judges are very reluctant to use the tools already at their disposal to quash frivolous suits?

Ms. Dwyer: Very reluctant and if you look at the model of medical malpractice that is where we did something, we did something right. I think you’d have to agree Mr. Lichtman. That you no longer risk take frivolous medical malpractice cases that cost a lot of money for you to pursue and take a lot of your time. We’ve put in place tort reform, med malpractice reform in order to get to the step of bringing on a lawsuit you have to be vetted,  it isn’t two to five questions in three minutes, you have to satisfy a panel of experts that you have a viable claim. That’s what we need in this country. If we’re gonna have litigants who can find lawyers this way, we need some way to curb their ability to bring suits that just clog up the courthouse.

Ms. Burnett: Like the McDonalds coffee suit Jeff, the famous McDonalds coffee suit.

Mr. Lichtman: You know every time a lady says to me the McDonalds coffee suit no one understands just how seriously that woman’s private pars were damaged, seriously damaged and everyone wants to say McDonalds coffee…

Ms. Dwyer: But who’s fault was it? The question is who’s fault was it?

Mr. Lichtman: It was McDonalds fault. They were overheating their coffee they paid damages, what was it now Mark you’ll tell me? Less than what they make in coffee in a day. It’s a silly thing to bring up and it’s not fair.

Ms. Dwyer: But she put the coffee between her legs!

Mr. Lichtman: Oh please.

Mr. Haines: Our thanks to Jeff Lichtman and Susan Dwyer Thank you very much for joining us.

As technology evolves at near breakneck speeds, composition copyright holders are finding the laws over what a “derivative work” actually is quickly blurring. The trend of sampling (using a snippet of someone else’s recorded product) is nothing new, many revolutionary artists in the 1980’s did exactly the same thing, but now with computer technology enabling artists to sample another piece of music the terms “derivative work” and “fair use” are being picked apart like a fine toothed comb. The definition of each, according to Wikipedia:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test. It is based on free speech rights provided by the First Amendment to the United States Constitution. The term "fair use" is unique to the United States, and since lately to Israel as well; a similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.

The New York Times profiles music artist Girl Talk, which is the stage name for Gregg Gillis who has made a career out of pushing the boundaries of fair use. Mr. Gillis is a DJ who uses snippets from a wide variety of existing musical works and molds them into a creation that is for all intents and purposes his own.

 “I want to take these things you know and flip them, which is something I’ve always enjoyed in hip-hop,” Mr. Gillis said. “This project has always been about embracing pop.”

But this embrace may be an illicit one, according to music industry executives. In legal terms a musician who uses parts of other compositions creates what copyright law calls a derivative work, so the permission of the original song’s writer or current copyright holder is needed. Artists who sample a recording also need permission from the owner, in most cases the record label. Hip-hop artists who don’t get that permission have been sued, often successfully.

Mr. Gillis says his samples fall under fair use, which provides an exemption to copyright law under certain circumstances. Fair use allows book reviewers to quote from novels or online music reviewers to use short clips of songs. Because his samples are short, and his music sounds so little like the songs he takes from that it is unlikely to affect their sales, Mr. Gillis contends he should be covered under fair use.

The music industry doesn’t agree, and for as many opinions on the matter there are out there, there are different interpretations of fair use.

“Fair use is a means to allow people to comment on a pre-existing work, not a means to allow someone to take a pre-existing work and recreate it into their own work,” said Barry Slotnick, head of the intellectual property litigation group at the law firm Loeb & Loeb. “What you can’t do is substitute someone else’s creativity for your own.”

As more grey area surfaces with technology, the law may need to be revisited to keep up with the changes technology provides us with.