I am not much of a country music fan (sorry if that is your genre). But I had a news story hit my list yesterday that was intriguing. It involves someone who sings that music, and he is apparently well-known (I really need to get out more, perhaps; it seems I recognize very few of the "famous" in the news). But, my interest here is in the concept of due process that lies at the foundation of our constitutional republic and the way the adjudicatory process works.
The story that ran on Yahoo News (citing various publications as originators) began with local coverage of a Florida fan who was inspired at this performer's concert last year. She decided to produce a tumbler to sell through her online business, essentially celebrating this performer. But, she used the performer's name and likeness without his permission. WFLA reported that the performer "sued her in federal court in Illinois, along with various others, for selling counterfeit merchandise."
She recently found out that a federal court had ordered her to pay $250,000 to the performer. In the process, her access to her online store and all existing sales proceeds held there were somehow suspended. She reached out to the local news station, WFLA, for advice and they did a news story about it. The performer says that the news story is how he learned that he had sued this fan. He says he saw the local Florida newscast when he went to the bathroom one morning at 05:00. It made him sick to his stomach.
Once the singer found out about it, he responded by directly contacting the fan. They apparently apologized to each other, and he explained that he had contracted with someone to look out for his interests in this regard. Those he hired had independently filed the suit in his name. He stressed his original intention that those he hired were to go after the big counterfeiters, not people like this fan who sold less than $500.00 in merchandise with his name and likeness.
I know, Statler and Waldorf are rumbling by now about "what does this have to do with workers' compensation? I get it you two (Keep it down up there in the peanut gallery). You see, workers' compensation is a property right (like the money in your bank account, and the money in this fan's online store, and like many other things in our lives). And property is not supposed to be taken without due process of law.
See, we like due process. We like it so much that we put it in the Constitution twice. It was first in the Fifth Amendment (1791), and that worked so well that we reiterated it in the Fourteenth Amendment (1868). I query my students about that redundancy every semester. Occasionally one of them nails the answer as to the need for repeating ourselves. But it is rare. For more on the incorporation of the protections of the Bill of Rights as regards state action, see Marriage, the Law and Workers' Compensation (November 2014) and IMR and Due Process (December 2018).
So, this performer is sending the fan about $11,000 (double the funds she is unable to access in the online store account, though the sale of his likeness generated something less than $500). And he is designing his own cup to raise money for this fan (She is having some health issues). Maybe it is a heartwarming story. But, most importantly, we have an illustration of an intriguing process. Or lack of process.
You see, due process means that we do not take people's property without their rights being preserved. They are entitled to due process. How much due process, you ask? Well, it turns out that the answer is "enough." That is not a great answer, but it beats "it depends." And both are correct. If you are accused of a capital offense (murder, rape, etc.) you will deserve more process and protection than if you are accused of stealing a pack of Beemans from the newsstand (I know, look it up in your Funk and Wagnall's).
For more on due process, see Keep Your Profile Current (August 2012); Check Your Daily Filings (February 2015), Appropriate Service (April 2018), and A Wall of Willful Ignorance (May 2018). I have written a great deal about service and due process.
See, due process essentially comes down to (1) notice and (2) an opportunity to be heard. You don't have to be heard (you have the right to remain silent), but we have to give you that chance to speak. And, this fan says she never got that chance. The performer did not know he was suing and the fan did not know she was being sued. This is perhaps a comedy of errors. From some perspectives, it may also be a parade of failures, but more will be learned in days to come.
The fan acknowledges now that she was served with the lawsuit in an email. But it was not a regularly used email. She found this particular message, eventually, in her spam folder. Let me reiterate, the notice provided by the singer's "people" was sent by email. And the court in Illinois apparently concluded that was appropriate and sufficient. That is, reportedly, under Illinois law. Well, that may get interesting in itself. Can a Federal Court gain jurisdiction over a Floridian by serving a complaint by email? Does the Illinois law govern the process and procedure in federal court?
That question will be asked a few more times in the days to come. You may hear some discussion of the Erie Doctrine. In a great many federal cases, the court has jurisdiction through what is called "diversity" of citizenship. There, the substantive law of a state is applied in federal court. But not the procedural law. The procedural law in federal court is dictated by federal law.
So there may be a discussion of how this case got into federal court, diversity or otherwise? It does not appear to be a criminal case. How did the federal court have authority generally, and how did it apply Illinois procedural law? The news may have it wrong, it was perhaps in state court. If the case did not get to the federal court by "diversity" then perhaps by federal law being violated? How is it that the procedural law of Illinois (which apparently allows the service of a lawsuit by email) applies to a federal lawsuit?
But then, how did the state court gain jurisdiction over this Floridian? Perhaps a tumbler or two was sold in Illinois? Perhaps the online store company does enough business in Illinois to subject it (and thus her) to the jurisdiction of that state's courts? There will be various water cooler discussions of this in the coming days. Those who would do business on the Internet might consider some of the implications for the jurisdiction of courts hundreds of miles away.
Many legal curiosities above may become more clear as news evolves on this story. But, as important, what was the performer doing watching the Tampa, Florida news at 05:00 in his bathroom (that is an aside, but a valid question).
