A horse is a horse, of course of course . . . that is, of course, unless the horse also raises First Amendment issues

Whether you are a regular at Saratoga or become an instant expert on horse racing in the days leading up to the Kentucky Derby, you have no doubt wondered how owners come up with their horses’ names. A recent decision from the U.S. Court of Appeals for the Ninth Circuit touches on this issue. The decision is mostly about procedural issues but the interesting part to me is the part about naming the horse.

In Jamgotchian v. Ferraro, plaintiffs owned a horse that they named Malpractice Meuser. They wanted to race the horse at California’s Los Alamitos Race Course. California, like other states, requires all thoroughbreds racing in the State to be registered with the Jockey Club of New York. The Jockey Club is a private organization that, among other things, promulgates the “Principal Rules and Requirements of the American Studbook” and sets the rules for naming horses.

In Jamgotchian, the Jockey Club refused to register Malpractice Meuser because the name violated the Principal Rules and Requirements. Specifically, the Jockey Club prohibits horse names that are “designed to harass, humiliate, or disparage a specific individual.” As the Ninth Circuit observed: “The Jockey Club believed that Malpractice Meuser was named for Michael D. Meuser, a Kentucky lawyer specializing in equine law.” So the Jockey Club instructed plaintiffs to register the horse under a different name.

Plaintiffs chose not to take the Jockey Club’s advise and instead sought to enter Malpractice Meuser in a race at Los Alamitos. The track’s stewards refused to allow plaintiffs to enter the horse because it was not registered with the Jockey Club in violation of California law.

Plaintiffs appealed the steward’s decision to the California Horse Racing Board (“CHRB”). They argued that the steward’s “enforcement of the Jockey Club registration requirement . . . resulted in impermissible viewpoint discrimination, contrary to the First Amendment.”

The CHRB affirmed the steward’s decision and “offered commentary on why it believed that [plaintiffs’] constitutional claims were not colorable,” but ultimately concluded that it lacked jurisdiction to decide plaintiffs’ constitutional claims. The CHRB “explained that, because the California Constitution bars state agencies from declaring a statute unconstitutional or refusing to enforce a statute on constitution grounds unless an appellate court has made that determination. [plaintiffs were] required to go to court for resolution of [their] constitutional claims.”

Plaintiffs went to court, but not to the California appellate courts as the CHRB appeared to anticipate. Instead, they went to the federal courts and filed a Section 1983 lawsuit against the individual stewards and CHRB members. (This is where the case takes a turn towards the procedural.) The district court dismissed the complaint, holding that plaintiffs were precluded from raising their constitutional issues in federal court because they had not challenged the CHRB decision in state court.

Plaintiffs appealed and the Ninth Circuit reversed. You will have to read the opinion for the heady procedural discussion. But suffice to say, plaintiffs will get a chance to raise their constitutional claims on the merits. Whether they succeed or not is an open question, but Malpractice Meuser will get his day in court!

A few other interesting facts.

First, in case you were wondering, First Amendment was registered as a thoroughbred with the Jockey Club in 2012 and Malpractice M.D. and Malpractice Mike are also registered.

Second, if you are looking to name your own horse, the Principal Rules and Requirements prohibit the following:

1. Names consisting of more than 18 letters (spaces and punctuation marks count as letters);

2. Names consisting entirely of initials, such as C.O.D., F.O.B., etc.;

3. Names ending in “filly,” “colt,” “stud,” “mare,” “stallion,” or any similar horse-related term;

4. Names consisting entirely of numbers. Numbers above 30 (thirty) may be used if they are spelled out;

5. Names ending with a numerical designation such as “2nd” or “3rd,” whether or not such a designation is spelled out;

6. Names of living persons unless written permission to use their name is on file with The Jockey Club;

7. Names of persons no longer living unless approval is granted by The Jockey Club based upon a satisfactory written explanation submitted to the registrar;

8. Names of racetracks or graded stakes races;

9. Names that in the judgment and discretion of the registrar:

a.         Have clear commercial, artistic or creative significance;

b.         Contain profanity or suggest a vulgar or obscene meaning;

c.         Are considered in poor taste;

d.         Are likely to be offensive or threatening based upon factors including, but not limited to, color, creed, disability, ethnicity, gender, national origin, race, religion, politics, or sexual orientation;

e.         Appear to be designed to harass, humiliate, or disparage a specific individual, group, or entity;

f.          Are inflammatory or are likely to invoke controversy;

g.         Are demeaning to the horse or Thoroughbred breeding or racing.

10. Names that are currently active either in racing or breeding (see Rule6(E));

11. Names of winners in the past 25 years of grade one stakes races;

12. Permanent names. The list of criteria to establish a permanent name is as follows:

a.         Horses in racing’s Hall of Fame;

b.         Horses that have been voted Horse of the Year;

c.         Horses that have won an Eclipse Award;

d.         Horses that have won a Sovereign Award (Canadian champions);

e.         Annual leading Sire and Broodmare Sire by progeny earnings;

f.          Cumulative money winners of $2 million or more;

g.         Horses that have won the Kentucky Derby, Preakness, Belmont Stakes, The Jockey Club Gold Cup, the Breeders’ Cup Classic, or the Breeders’ Cup Turf; and

h.         Horses included in the International List of Protected Names.

13. Names similar in spelling or pronunciation to the classes of names listed in Rule 6(F) 6 – 12 above;

14. Names of horses previously recorded in The American Stud Book by the same sire or out of the same dam as the foal for which the attempt is made; and

15. Names of horses appearing within the first five generations of the pedigree of the foal for which the attempt is made.

So can I call myself a Super Lawyer or not? Either way, can I still wear my cape?

By: Peter J. Gallagher (LinkedIn)

You know it’s “award season” – at least the legal world’s version of it – when your social media starts to fill up with posts that sound like this: “So honored to be included as one of the ‘Worlds Most Awesome Patent Lawyers’ with 43 other members of my firm.” The question for New Jersey lawyers is whether otherwise innocent humblebrags like this actually run afoul of our Rules of Professional Conduct. Somewhat surprisingly, most of these posts do.

Under RPC 7.1, lawyers cannot make false or misleading statements about their services. It used to be that any statements comparing one lawyer’s services to other lawyers’ services were deemed false and misleading. And since superlatives like “best,” “super,” “preeminent,” “distinguished,” “top,” “leading,” and “top-rated” are inherently comparative, this meant that no lawyer could advertise that they were included on a list of, for example, “New Jersey’s Best Lawyers.”

This changed about a decade ago when RPC 7.1 was amended to allow attorneys to advertise about winning comparative/superlative awards like this, but only if: “(i) the name of the comparing organization is stated, (ii) the basis for the comparison can be substantiated, and (iii) the communication includes the following disclaimer in a readily discernible manner: ‘No aspect of this advertisement has been approved by the Supreme Court of New Jersey.’”

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Jump Back! Parent Lacks Apparent Authority to Bind Someone Else’s Child To Trampoline Park Waiver

By: Peter J. Gallagher (LinkedIn)

When the history of arbitration agreements in New Jersey is written – OK, maybe that is an “if” more than a “when” – it will owe a great debt to trampoline parks. Over the past several years, New Jersey courts have issued numerous decisions regarding the enforceability of arbitration agreements at these parks. I have written about several of them – “Court Bounces Trampoline Park’s Arbitration Provision“, “Bounce Around the {Court}Room: Trampoline Park’s Arbitration Provision Deemed Unenforceable“, and “Arbitration Provision Bounced Again, Even After Kindred Nursing Decision“. (Note: These titles prove, if nothing else, that I am not very original.) In Gayles v. Sky Zone Trampoline Park, we have another entry on the list.

The plaintiff in Gayle was a child who attended a birthday party at the defendant trampoline park. The birthday boy invited several friends to the party, including plaintiff. The birthday boy’s parent told the other children’s parents that they could drop their children off and she would drive them to the party. Plaintiff’s parent took plaintiff’s mother up on the offer and dropped plaintiff off at the birthday boy’s house on the day of the party.

When the birthday boy’s mother arrived at the trampoline park with the children – her own and the other party-goers, including plaintiff – she was directed to a “waiver station,” where she completed and signed a waiver that included an arbitration provision. She testified at deposition that this process was “quick” and that she “completed the Agreement without reading it fully and without assistance from defendant’s staff.”

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On Amateur Chihuahua Breeding And Bailments

by: Peter J. Gallagher (LinkedIn)

After reading the opening paragraph of the Appellate Division’s decision in Rivera v. Canseo, I was hooked. Here it is:

[Plaintiff] owns a female chihuahua. Defendant . . . owns a male Chihuahua. [Plaintiff] and [defendant] reached an oral agreement to have their dogs mate. [Plaintiff] was to obtain puppies from the mating and [defendant] was to receive consideration for the use of his dog.

Interesting facts, check. Awkward references to uncomfortable subjects reminiscent of 1950’s health class videos – “obtain puppies from the mating” – check. And what exactly does it mean to “receive consideration for the use of his dog”? Needless to say, I was hooked.

[As it turns out, the consideration question was never answered. Plaintiff claimed that defendant was to receive “the pick of the litter if the mating ultimately resulted in the birth of puppies,” while defendant claimed he was to receive $500, “regardless of whether [plaintiff’s] dog was impregnated.” Because “[t]he exact nature of [defendant’s] expected consideration [was] not material” to the court’s decision, however, the dispute was never resolved.]

In Rivera, after plaintiff and defendant agreed to have their Chihuahuas mate, plaintiff brought her dog to defendant’s home, along with a supply of the dog food to which her dog was accustomed. According to plaintiff, her dog was in good health when she left her at defendant’s home. Clearly a hopeless romantic, “[defendant] placed [plaintiff’s] dog and his dog in the basement together” and locked the door.

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Fee Dispute Between Counsel Inspires Court To Bemoan The Death Of The Practice Of Law As A Profession

by: Peter J. Gallagher (LinkedIn)

In the final scene of the movie Scent of a Woman, Al Pacino’s character defends Chris O’Donnell’s character, who is about to be expelled from the (fictional) prestigious Baird School. Among many other things, Pacino’s character exclaims: “I don’t know who went to this place. William Howard Taft. William Jennings Bryant. William Tell, whoever. Their spirit is dead, if they ever had one.” Similarly, although slightly less dramatically, a fee dispute between counsel in Meister v. Verizon New Jersey Inc. led the trial court to eulogize the law as a profession:

This unfortunate fee dispute, coming as it does in the midst of seemingly final negotiations of a settlement, should resolve, with certainty, any lingering doubt that the practice of law, that storied profession of Marshall and Jefferson and Lincoln, is really now just another capitalist enterprise.

The court walked these comments back, slightly, by acknowledging that “[t]he practice of law is not a hobby” and “[h]ard working and industrious counsel who take risks to advance a client’s case and to maximize a client’s recovery should be rewarded.” But it then immediately returned to its original thesis:

However, while lawyers may indeed make a client’s life better through their advocacy and vigilant protection of that client’s interests, they are uniquely able to make it seem as though they are not doing so when quarreling, as they are here, over who gets to spell out how much they should be paid from their paralyzed client’s recovery and why one is more entitled to do so than another.

This is probably not how the lawyers in the case hoped the court would start its opinion.

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