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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

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Nightlife Rights

Is An Event Producer Liable for Event Security?

bouncerIt seems to be quite common for large nightclubs and events to hire third-party security companies in an attempt to reduce their liability in the event that things go wrong and security injures a patron.  New York nightclub Flash Factory, who I sued with a co-plaintiff last month for battery stemming from a “security search” that apparently involves gratuitous touching the breasts and genitals of their patrons, denies in their answer that they are liable for the torts (civil wrongs) of their contractors.

Will Flash Factory’s argument get them off the hook?

Not a chance.

Let’s look at 3 kinds of liability that could be alleged against one who throws parties secured by abusive security, using general principles of agency law common among the 50 states.  Agency law, by the way, determines when one party (the “principal”) is liable for the acts of another acting on his or her behalf (the “agent”).

Direct Liability

Direct liability is imposed on the person who actually commits a tort.  Obviously the bouncer herself whose hands were actually on my body is directly liable, so the nightclub is therefore not directly liable, right?  Well…

“A principal is subject to liability to a third party harmed by an agent’s conduct when the agent’s conduct is within the scope of the agent’s actual authority or ratified by the principal; and (1) the agent’s conduct is tortious, or (2) the agent’s conduct, if that of the principal, would subject the principal to tort liability.”  Restatement (Third) of Agency, § 7.04.  (The “Restatements” are documents put out by the American Law Institute that reflect the general policies found in the United States regarding specific areas of law.)

The problem for Flash Factory and other event producers comes when they direct security to perform a specific kind of search (give them “actual authority”), or knowingly allow it to continue (“ratification”).  Given that complaints about Flash Factory’s search methods have persisted for at least a year — and even after they had notice of my lawsuit — Flash Factory will have an uphill battle to show that that they didn’t direct their security to behave in this way, or at least ratify it.

Vicarious Liability

“An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment.”  Restatement (Third) of Agency, § 7.07(1).  Further, an employer is not generally liable for the intentional torts of his employees, because the scope of their employment generally does not include intentionally harming others.  Since independent contractors are not “employees,” and since battery is an intentional tort, I guess Flash Factory’s off the hook on this one, right?

Nope.  While, in general, an employer is not liable for the torts — especially intentional torts — of his or her independent contractors, it is often stated that this rule is merely the “preamble to a list of exceptions.”

Before we get to the true exceptions, we should note that under agency law, “employee” doesn’t mean the exact same thing it means to the IRS.  Rather, “an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work.”  Restatement (Third) of Agency, § 7.07(3)(a).  Can Flash Factory seriously argue that they had no right to direct the bouncers of their nightclub as to how they want a security search to be conducted?  Good luck convincing a judge and jury of that.  But, it should be noted that for an event producer who does not control the venue — that is, one who throws parties at a premises owned and secured by someone else — they would likely not have vicarious liability under this rule, because a nightclub does not generally concede control of security to the third-party producer or promoter (but, read on).

Now, the classic exceptions to non-liability for torts of independent contractors that any law student will be familiar with: (1) the conduct was authorized by the principal, (2) the conduct was a natural incident to carrying out the employer’s directions, or (3) the conduct was motivated by a desire to serve the principal.

We discussed the first above under direct liability. Regarding the second and third, which very much go hand-in-hand, the quintessential example in law school textbooks is the bouncer.  One who is employed for a job under which their duties include physical and hostile contact with others naturally may cause injury to the others, and that physical and hostile contact is in service to the employer.  Think of it this way: if a bartender sees an unruly customer and uses excessive force to eject that customer, we would not be able to apply this exception because battery is not naturally incident to serving drinks.  But a bouncer’s job is literally to do the same, and if he or she does so with excessive force, it will be considered incident to the service of the employer.  Again, the third-party producer or promoter will likely escape liability (it’s less a service to the third-party than to the venue owner), but a venue owner such as Flash Factory will find themselves on the receiving end of a judgment, regardless of whether the offending bouncer was an employee or a contractor.

Negligence

The third way the party thrower may find themselves liable for the acts of their bouncer is in negligence.  Under negligence law, the employer is not liable for the battery, either directly or vicariously, but is liable because they had a duty to provide a safe environment and failed to do so.

A simply-put formula for negligence is: (1) the existence of a duty, (2) which was breached, (3) which caused, (4) injury to the plaintiff.  Duty, breach, causation, injury/damages.  “Injury” doesn’t necessarily mean physical injury, but rather injury to any legal right (including the right to be free from non-consensual contact).

A full examination of the duties of a club owner would be lengthy, but they include maintaining a reasonably safe premises and using reasonable hiring practices.  If the nightclub was unsafe or a person was injured by someone hired by the club that should not have been (or, e.g., because the club failed to hire enough security), this duty was breached.  And, as long as the injury was traceable to the breach (i.e., wouldn’t have happened anyway), we have causation.

It will be interesting to see Flash Factory’s argument as to which of these elements is missing to avoid liability in negligence.  I certainly wouldn’t want to be the lawyer arguing it, but I suspect they will try to attack breach.  That is, they will say that any injury that happened to me happened despite the fact that they acted reasonably.  Will they be able to show evidence of specific things they have done that were sufficient to reasonably ensure that the harm that happened would not happen?  I think it is unlikely.

They may also try to attack breach by saying that their search was reasonable because they need to stop drugs from entering the venue.  This ignores the fact that they have a duty to both avoid battering their customers and not be a drug den.  This will be problematic for Flash Factory given that drug use is obviously rampant within the venue despite their door search.  You can’t claim that it’s “reasonable” to inspect my crotch when you allow people to wander around inside that are clearly obliterated, and even if a groin search of every customer were somehow “necessary,” failing to obtain the consent of those entering, and instead just grabbing at their breasts and genitals without warning, is negligent.

But what of the third-party event producer?  Well, they didn’t hire security, nor do they have control over the safety of the premises, so they are unlikely to be subjected to negligence liability for the same duties as the venue owner.  But, they do have a choice over where to host their events, and if they do so at a venue that is well-known for injuring its customers, they may face liability for negligently selecting the venue. So, for example, if you host an event at Flash Factory now, knowing that they regularly molest their customers in the security line, you may be running a risk of being liable for their wandering hands.

The Bottom Line

The key to determining liability is right to control.  If you have the ability to mitigate a harm that may arise in the course of running your business, but fail to do so, you’re probably liable.  Likewise, if you pay a contractor to do a task and they screw it up on their own, without your knowledge or reason to have knowledge, you’re probably not liable.  But hiring an outside company to do your dirty work for you is not an automatic free pass.

This means if you’re a venue owner, choose your security wisely and monitor them carefully.  It’s not only good for avoiding liability, but also customer frustration.  Why not choose a security team that deescalates situations, treats customers with respect, and makes your venue a place that is both comfortable and safe?

If you’re a third-party event producer — a role I’ve indeed played — having the right venue is key, and it’s important to remember that everything is negotiable, including security.  There’s no reason not to discuss the details of how your customers will be interacted with when they first arrive at the venue.  And if a venue is well-known for assholery at the door, find a new venue.  Regardless of whether you’re taking a legal risk, you don’t want to be associated with that.

Insomniac Lawsuit Dismissed on Technicality, Policy Changed (For Now), Open Offer for Help

For those following my lawsuit against music festival producer and Live Nation subsidiary Insomniac, filed last year against their policy banning all OTC medicine and requiring a “consultation” to bring in prescriptions, some updates…

First, the lawsuit was tossed by U.S. District Judge Philip Gutierrez because, he says, I didn’t provide evidence that I asked Insomniac to change their policy before suing, which he reads as a prerequisite to a federal ADA suit.  There were also state discrimination law claims, but the law allows a federal judge to decline to hear a state claim after the related federal claim is dismissed, so he tossed that too.  No ruling was made on the true merits of the case: whether the medicine policy was legal.

I think Judge G misread the law regarding notice, and he certainly misread my filings alleging that I *did* give notice.  As I wrote about before, this judge is famous among federal judges for seeking ways to get cases out of his courtroom.  I could appeal, or I could re-file the state law claims in state court, but I won’t (in favor of a better plan… keep reading!) for 2 reasons:

  1. Insomniac ran up a fucking massive legal bill.  If the appeal failed, the attorneys have some likelihood of asking me to pay at least a part of that — plus whatever additional amounts they spend defending the appeal.  Insomniac agreed to pay their own bill in exchange for not appealing or re-filing.
  2. Insomniac removed the offending medicine policy from their Web site… for now.  This may be a sign that they are changing their ways, which would be mission accomplished.  But, even if it’s not, it makes it harder to sue them because they are no longer advertising discrimination.

So here’s the new, better plan: an open call for anyone who is ever refused entry over medicine or has their medicine thrown out at the gates of EDC to contact me.  If I think you have a good case, I will find and fund an attorney to fight the case, and offer my assistance to your attorney as his paralegal without cost to you.  If Insomniac did indeed decide to fix their policy, then this won’t be necessary, and if they didn’t, I’ll be able to get a second fight against it, with the benefit of the knowledge I gained the first time, with a different judge, without the “you didn’t give them notice” issue, and without the attorney’s fees and costs from this case able to be threatened.

Flash Factory Nightclub in NYC Sued for Groping Guests During Security Search

flash_factory_sued
The scene inside Flash Factory hosting Elrow on 12/23/2016

Continuing my quest to call out music and nightlife companies that think their patrons should bend over and accept any rule dreamed up, however offensive and illegal, today a friend of mine and I filed suit against New York nightclub “Flash Factory,” located in the Chelsea neighborhood in Manhattan.

The basis of the suit is this: we were heading to a concert at Flash Factory, never before having been to this relatively new venue.  On the way in there was a pat-down, which we assumed was just a quick check of pockets for weapons as some New York nightclubs do.  But, both of us were shocked when a security guard, without warning, lifted my friend’s bra off her chest to feel her breasts, and likewise, decided to flat-out grab my genitals.  I don’t mean TSA-style “sliding hands up your legs until they ‘meet resistance,'” often bumping the sides of their hands into your crotch.  I mean straight-up, full palm and fingertips checking out my junk.

After the incident, I immediately wrote to, and my friend called, Flash Factory, and both of us were entirely ignored.  No apology, no acknowledgement, no response at all.  No one should have to deal with sexual assault to get into a nightclub.  It is atrocious that they feel the need to treat their customers this way, so, a new lawsuit against them for battery and negligence was filed in New York County Supreme Court.

Corbett & Domyan v. Flash Factory et al. – Verified Complaint (.pdf)

Good luck ignoring that, Flash Factory.

[Edit – Since posting, numerous people have shared their story of being molested by Flash Factory.  I’ve created a separate Web site dedicated to posting stories of abuse at Flash Factory.]

Insomniac Attorney Flat-Out Calls Me a Drug Dealer for Lawsuit Over Medicine Policy

Last May, I filed suit against Live Nation subsidiary Insomniac, the producer of the Electric Daisy Carnival (EDC) music festival, because they refuse to allow OTC medicine into their music festivals and they require festival-goers to “consult” with a “safety officer” to carry Rx medicine, effectively requiring the disclosure of one’s medical condition without any privacy protections.

I wrote previously about how their attorney, Greg Hurley of Sheppard Mullin, has been extraordinarily unprofessional throughout litigation.  But, the filing they just submitted a few minutes ago takes the cake:

“Plaintiff has failed to put forward any evidence that he is disabled or how the alleged policy denied him access. Instead, this entire lawsuit appears to be motivated by a desire to make it easier for him to smuggle illegal drugs into future music festivals.”

This is, apparently, Insomniac’s and Sheppard Mullin’s position on disabled people who need medicine: that they are probably just drug dealers who are faking it.  Their claim of a lack of “any evidence” is belied by the fact that I’ve submitted a sworn declaration to the contrary, and quite simply, Mr. Hurley appears to wish to use the immunity he enjoys when he falsely calls someone a criminal in a court document that, were he to say it anywhere else, would be actionable defamation.

greg-hurley-is-unprofessional

Source Document: Corbett v. Insomniac – Motion for Summary Judgment Reply

Live Nation’s Insomniac Doubles Down on Discriminatory Medicine Policy

medicineIn May, I wrote that I filed suit against Insomniac, the subsidiary of Live Nation that puts on Electric Daisy Carnival (EDC), a 3-day music festival in Nevada that is the largest in the country.  The basis of the suit is that Insomniac prohibits all over-the-counter medicines from entering its festival, then sells the same medicines inside the festival at an inflated price, and additionally requires anyone bringing in prescription medications to show their prescription during a “consult” with a “safety officer” who has no medical qualifications nor any legal obligation to keep your info private.  All in the name of the “war on drugs,” of course.

Insomniac’s attorney, Greg Hurley of Sheppard Mullin, started off our lovely relationship with an unexpected 8:30 AM phone call yelling about how law students don’t know what they’re talking about and shouldn’t file lawsuits.  (Thanks for the tip, Greg!)  The tone of our relationship has continued to this day, with the Sheppard Mullin team refusing to participate in the case like good-faith officers of the court until motions for sanctions or other court intervention is threatened, and even just this month told me I’d be sanctioned for my frivolous lawsuit if I refuse to dismiss it.  (Good luck with that!)

Greg’s hot-headed temper notwithstanding, the interesting part of the legal side of the case is that Insomniac has doubled down, arguing to the court in a motion for summary judgment that what it’s doing is perfectly acceptable, and that if I don’t publicly disclose what my medical conditions are that require medicine (as they have, thus far, refused to agree to any confidentiality), or testify that I’ve never taken an illegal drug in my lifetime, I must just be a drug dealer:

In responses to Defendants’ discovery, Plaintiff has refused to disclose a medical condition impacted by these 2016 policies. Moreover, as Plaintiff has
refused to disclose whether or not Plaintiff uses, or intends to use, illegal drugs, it is reasonable to assume that this is merely an attempt to have a federal court strike a reasonable safety policy designed to protect against deaths from illegal drugs. It is hard to envision a clearer abuse of the ADA statute and the jurisdiction of this Court.

It is simply astounding that after filing suit over them treating those with medicine like drug dealers at the gates of EDC, their attorneys now give me the same treatment at the courthouse.  The Americans with Disabilities Act was designed to protect those with disabilities against being denied full access to public accommodations to whatever extent is reasonably possible.  Confiscating or harassing people over their medication at the festival gate is exactly the kind of thing the ADA prohibits.

I fully expect their motion to be denied.

Corbett v. Insomniac – Motion for Summary Judgment (.pdf)
Corbett v. Insomniac – Motion for Summary Judgment Opposition (.pdf)

What Is Wrong in the U.S. District Court for the Central District of California?

My latest lawsuit, against EDC music festival promoter Insomniac, was filed in the U.S District Court located in Los Angeles (each state is divided into 1 or more federal districts, and Los Angeles is in one of California’s 4 districts called the “Central District of California”).  Last Tuesday, I filed that complaint as well as a motion for a temporary restraining order, and was shocked (and somewhat impressed) that the judge ruled on the motion the same day it was filed.  His ruling was that there is enough time to give the opposing party time to reply before the music festival, and so a temporary restraining order (which is a type of injunction heard without the other side) was inappropriate.

Fair enough — so I re-filed 2 days later, serving the motion on the other parties and asking the judge to reconsider the motion as a preliminary injunction (which is a type of injunction heard with the other side).  Again, a same day reply, but this time less impressive: motion denied with no reason given.

I was a bit surprised, as this kind of rapid bouncing of all documents was not typical of my experience in other U.S. District Courts (by my count, this is the 16th case I’ve filed in these courts).  So, I went to look up what other people had to say about the judge on The Robing Room — basically, Yelp for judges, where litigants who appear before (mostly) federal judges can rate their judge and write feedback.  But, right on the front page, I see this:

bad-usdc-cdca-judges

There are over 600 U.S. district judges, and while the federal courts up by San Francisco in the Northern District of California (N.D. Cal.) are ranked at the top, 5 of the 10 worst ranked federal judges in the country are in the Central District of California (C.D. Cal.).  The judge assigned to my case is the Hon. Philip S. Gutierrez, who ranks the 8th worst federal judge in country according to The Robing Room’s users.

Why have people ranked these 5 judges so low?  Here’s a look at some of the choice commentary:

“As a former colleague of Judge Keller’s, who observed him behind the scenes of the bench, I am very sorry to say that he lacks intellect, patience, and impartiality, and always has been arrogant and ill-tempered. He was, and continues to be, a disgrace to the bench on which he stubbornly continues to serve.”

–Anonymous Criminal Defense lawyer regarding the Hon. William D. Keller (ranked #1 worst), posted September 6th, 2012.  Judge Keller is a Reagan appointee who has been on the bench since 1984.

“I sat in the courtroom as an observer to a trial regarding securities laws. I was appalled at the behavior, conduct, and knowledge of the law (or rather the lack thereof) of this ‘judge.’ He is rude, and sleeps most of the time, only to open his mean eyes occasionally to bark at the lawyers or those who testify. At times he is completely disoriented and does not understand or follow the details of the case.”

–Anonymous Unspecified Commenter regarding the Hon. Manuel L. Real (ranked #2 worst), posted October 24th, 2013.  Judge Real is an LBJ appointee who has been on the bench since 1966 (!!). By my calculations he is 92 years old, and has apparently been removed from several cases for bias.

“Judge Wright bullied the defendants’ counsel, no retrain in exhibiting his blatant bias towards the prosecution, paraded around the courtroom waving a baseball bat, pushing said bat into his crotch while facing defendants female counsel, acting if he was about to strike the lawyers with it all outside the presents of a jury, referred to the people of California as ‘morons’, said marijuana defendants should be slapped around for a bit before being forced into a boot camp until they would no longer break the law.”

–Anonymous Unspecified Commenter regarding the Hon. Otis D. Wright, II (ranked #3 worst), posted June 7th, 2014.  Judge Wright is a Bush 43 appointee who has been on the bench since 2007.  The bat comment was corroborated by a second commenter the next day.

“I’ve been a litigator in state and federal courts for 37 years. Without question, Judge Anderson is the most offensive, laziest, most arrogant, insulting and imbalanced judge that I have ever had the misfortune to stand before.”

— Anonymous Civil Litigator regarding the Hon. Percy Anderson (ranked #6 worst), posted December 12th, 2013.  Judge Anderson is a Bush 43 appointee who has been on the bench since 2002.

…and finally, the judge assigned to my case:

“He is a very nice man, but he is not a very good judge. He looks for any excuse to get rid of civil cases and doesn’t care about the effect that has on the litigants and counsel. If you draw him, good luck.”

— Anonymous Civil Litigator regarding the Hon. Philip S. Gutierrez (ranked #8 worst), posted August 25th, 2015.  Judge Gutierrez is another Bush 43 appointee who has been on the bench since 2007.  This comment is corroborated by other posters who say that he “comes up with wacky ways to get rid of cases” and “[l]ooks for any reason to get rid of a case no matter how flimsy.”

Ah, that explains my motion being promptly denied without actual consideration.

Well, I filed the fastest Notice of Appeal in my experience on Friday, just 3 days after opening the case.  Now the U.S. Court of Appeals for the Ninth Circuit will have a look at the motion for preliminary injunction and Judge Gutierrez’ rapid denial of it without explanation.

Still, what’s with the concentration of low-ranked judges in this district?

Corbett v. Insomniac – Emergency Motion for Injunction Pending Appeal (.pdf)

Corbett Sues Music Festival Producer Insomniac Over Discriminatory Search

EDC 2015
EDC 2015 was a blast!

As some of you know, in addition to my civil rights advocacy, I’m a music fanatic, and I create and perform electronic music, as well as seek out the best music events across the world. The Electric Daisy Carnival music festival, held annually in Las Vegas, NV, has been one of my favorites because of the massive attention paid to creating an experience, rather than just a set of stages.

So it was much to my disappointment this year to read that EDC producer Insomniac has decided that it will not only search every attendee entering the venue with a self-described “TSA-style search,” but it will prohibit all over-the-counter medicine and require festival-goers to “explain” their prescription medication.

Music events since Woodstock have had drug usage, and I appreciate that Insomniac feels an obligation to minimize unlawful drug usage at its events.  However, this policy, beyond being invasive, is downright dangerous.  Many people need over-the-counter drugs to avoid serious medical issues.  Consider, for example, the person with allergies who carries Benadryl (diphenhydramine) to counter a reaction.  With the 18+ crowd that EDC attracts, will a teen with an allergy decide to leave his medication behind so he can go party, risking, well, death?

It’s also downright discriminatory.  No one should have to “explain” their HIV meds, schizophrenia drugs, or Irritable Bowel Syndrome in order to enter a place of public accommodation.  And unfortunately, Insomniac isn’t the only one to do it.  I’ve personally seen many nightclubs in America refuse entry to people with lawful medicine.  However, Insomniac is the first I’ve seen so blatantly publish such a policy for such a massive event.  As such, today I filed suit against Insomniac and the owner of the Las Vegas Motor Speedway where EDC takes place, alleging discrimination as prohibited by the Americans with Disabilities Act and related state laws.

The case is Corbett v. Insomniac, 16-CV-3604, filed in U.S. District Court for the Central District of California, where Insomniac is headquartered.

Corbett v. Insomniac – Complaint with Exhibit (.pdf)

Corbett v. Insomniac – Motion for TRO (.pdf)

Corbett v. Insomniac – Motion for TRO Affidavit (.pdf)


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