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 Jonathan Corbett, Civil Rights Attorney

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Nightlife Rights

Two Courts Destroy NY SLA’s Ban on Advertising and Ticketing Music

Four weeks ago, I filed a lawsuit on behalf of an industry association and several restaurants against New York’s State Liquor Authority for a curious new coronavirus-related rule that appeared on their Web site: a ban on advertising music offerings or charging admission at liquor-licensed establishments that sell food (i.e., restaurants). Licensees called the SLA to clarify, and were told in no uncertain terms that any advertising of any music whatsoever, or any attempt to charge an entrance fee — including table minimums — could result in a license suspension. The suit was filed in the U.S. District Court for the Southern District of New York, and a motion for a preliminary injunction (asking the judge to temporarily put a hold on the rule) was set for expedited briefing.

The state already allows only restaurants — not bars or clubs without a full menu — to operate, and only with seated dining, strict capacity limits, social distancing requirements, and other limitations. Dance parties, concerts, etc., were already prohibited, so what’s the difference for coronavirus mitigation purposes if your favorite eatery has a band playing while you have dinner? Or if you have to pay to enter?

It seems the state’s attorney’s couldn’t come up with an answer to that question, and so, contradicting the phone guidance from the SLA issued pre-lawsuit — surely developed at the demand of Governor Cuomo — the state conceded that the advertising and ticketing bans apply only to “performance events” — not to legal “incidental music” at restaurants. A federal judge today accepted that limitation and denied our motion for a preliminary injunction since the issue is essentially moot.

“And the government has explicitly clarified that advertising for incidental music is permitted. … The State’s representative confirmed that during our argument here.”

Hearing Transcript (.pdf)

The Erie County Supreme Court also heard a challenge to the matter, and on Tuesday took a bit of a different approach: the Court found that the rule did affect legal incidental music and therefore it was unconstitutional. The transcript of these proceedings is not yet published — I’ll seek to update when it is — but the effect of this is roughly similar: to the extent that a restaurant wants to advertise or charge to see its lawful music offerings, it may.

The courtroom drama comes as New York continues to have a “flat” curve, as it has for months. Despite this, upstate New York restaurants have opened only with substantial limits and New York City restaurants reopened indoor dining yesterday — with 25% capacity and a midnight food curfew, after 198 days of closure.

NY Coronavirus Curve
New York’s coronavirus curve has been flat for about 3 months. Source.

The Governor is playing politics with re-opening New York City, whether because of his ongoing feud with Mayor Bill de Blasio, because he does not want to relinquish his emergency authority, or maybe just because of a bias against those who live in the city. Slowly but surely, however, the Governor’s rules (and, let’s be real: there’s no way the SLA made this rule without a demand from Cuomo) are being dismantled.

Music Festival Attendees Reach Settlement with Third-Party Security Company Over Alleged Strip Search

In the beginning of September I was deluged with messages alerting me to a problematic security search at a well-attended New York City music festival:

I had to do a strip search...

Sexually Harassed and Humiliated by Festival Security

After speaking with several individuals who encountered abusive security, as well as one employee from the contracted third-party security company who came forward, attendees alleged security dogs picked people out of the security line to receive an invasive search in a tent the security company had set up just for that purpose.  Inside the tent, some attendees claimed they were ordered by security to take off their clothes, or had their clothing pulled away from their body so that security could look down their shirt or pants at their genitals and breasts.  Others alleged security simply reached their hands inside of their undergarments and directly touched their intimate areas.

Unfortunately, it was explained to me by the security guard who came forward to me that festival security company CSS Security was short-handed and brought in out-of-state security guards to fill the gaps.  It does not appear that those guards were properly licensed, and at least some of them would have been ineligible to be licensed because of criminal history.

I represented three individuals who claimed to have been subject to searches like these, and can say that a full and final settlement was reached on the matter with CSS Security to resolve all of my clients’ claims on the matter.

Stopped & Searched for No Reason by Bureau of Indian Affairs on Way to Burning Man? Here’s a Template to Sue Them!

BIA Lawsuit Template

Festival attendees, festival organizers, and the media are reporting that the U.S. Bureau of Indian Affairs, a part of the U.S. Department of the Interior, are indiscriminately stopping and, often, searching, vehicles as they pass through an Indian reservation en route to the event.  Numerous people have written about being told that they had “touched the center line,” were missing a front license plate (even when their vehicle was registered in a state that doesn’t require the same), or had been a few miles an hour over the speed limit, and then held up for a couple of hours while dogs were brought and then vehicles were searched.

If this happened to you, you should hire a lawyer.  But many simply can’t afford a lawyer or find a competent lawyer, so I’ve created a handy lawsuit template for you to sue the BIA officers who violated your rights, pro se, in federal court!

Here’s how it works:

  1. Download the template (below) and open in a recent version of Microsoft Word.  (OpenOffice or other freeware that supports .docx format are also fine.)
  2. Make sure “Show Comments” is on, because I’ve created little notes at each place you need to edit.  (How do I do that?)
  3. Fill out the form according to the little notes.
  4. Visit the U.S. District Court for the District of Nevada’s forms page and also fill out the following two short forms: Civil Cover Sheet (one for the whole case), Summons in a Civil Action (one for each officer you’re suing).
  5. The filing fee is $400.  If you legitimately do not have $400 to spare, you can file for free with this form (but the court will inquire as to your finances, so only do this if you legitimately cannot afford $400).
  6. Print 3 copies of everything and take them to the clerk’s office of the local federal court (address info here).
  7. After filing, you’ll need to serve the summons and complaint on the government.  The clerk’s office can provide you instructions, or you can just hire a process server.
  8. Also after filing, fill out and mail into the BIA a Form 95 (Federal Tort Claims Act claim form).  This isn’t required for the suit you just filed, but allows you a different kind of lawsuit if BIA doesn’t pay you within 6 months, and you can amend your complaint then to cover that new kind of suit too.

Bureau of Indian Affairs Lawsuit Template (.docx)

Remember, this template was designed only for BIA!  If other federal police stopped you, you can probably modify it on your own to state a claim.  But if local police stopped you, it requires modifications beyond just searching & replacing the name.  Also, if your incident resulted in the police finding drugs or otherwise arresting/citing you for a crime, please stop and seek a lawyer right away.

The publication of forms, guides, etc., does not constitute legal advice — see Dacey v. New York County Lawyers’ Association, 423 F.2d 188 (2nd Cir. 1970) — only a consult with an attorney can provide you legal advice because an attorney needs to hear your specific facts to provide advice specifically applicable to you.  As discussed, if you can afford to consult with an attorney before filing, that’s best.  If not, I’d rather see people make an attempt at seeking justice, even if imperfect, than allow their rights to be trampled.

Enjoy!

Flash Factory Pays $10K to Settle Groping Lawsuit

Flash Factory SettlementGoing out on a Friday night shouldn’t involve having a security guard grab you between your legs “for your safety.”  And when nightlife security does it without obtaining the informed consent of each patron before the search, it’s sexual assault.

Now-defunct New York City nightclub Flash Factory learned this lesson the hard way as it agrees to pay out a $10,000 legal settlement to civil rights advocate and yours truly Jonathan Corbett, and co-plaintiff Elise Domyan, on top of a $50,000 default judgment already levied against its security contractor Ward Security Inc., owned by Walter Degolyer of Lake Grove, N.Y.  A motion is pending before New York County Supreme Court to hold Mr. Degolyer personally liable in the 2017 lawsuit.

Ms. Domyan relayed the following to me in response to the case closure:

“Sexual assault happens every day, and it is quite common for survivors to feel like they don’t have any recourse or a chance for justice.  I know that one lawsuit won’t change the world, but maybe it will give nightclub owners and security firms a moment’s pause in the future, or encourage other survivors to pursue legal action against their attackers.”

The settlement and judgment indeed offer strong incentive for bars and clubs to respect the physical autonomy of their patrons.  Hiring an independent security company does not absolve the establishment of liabilitynot in the Court of Yelp, and not in a court of law.  It is unclear why Flash Factory owners Michael Satsky and Brian Gefter closed, and then sold, their establishment late last year, but having a 2 out of 5 rating due to abusive staff, absurd lines for pre-paid ticket-holders, and $18 drinks, probably didn’t help.

As for Ward Security and Mr. Degolyer, who also go by Alpha 1 Security Group, Inc. and “AAA Security,” so far we’ve collected $10,000 from their surety bond, which New York requires from all security companies, and we work to collect the remaining balance through a variety of means available.  (If I were Mr. Degolyer, I’d be getting in touch to work out a settlement of the matter ASAP.)

$50K Judgment Awarded Against NYC Nightclub Security Firm for Groping During “Security Search”

Default Judgment against Ward Security Inc.A year ago yesterday, I filed suit against now-defunct New York nightclub “Flash Factory” and their security firm “Ward Security Inc.” (of New York, no apparent relation to same-name security firms in Florida and England) for an invasive door search policy that involved full-hand grabbing of the genitals of male attendees and inside-the-bra searches for female attendees, all with no advanced warning of the nature of the search.  A girlfriend and I were shocked to encounter their “actually worse than TSA” pat-down on the way into a music event in December 2016 and were groped before we had a chance to refuse consent.  A search of the Internet showed at least a dozen complaints about this by others and they refused our attempts to try and settle the matter with a policy change, so we took it to the courthouse.

Last week, N.Y. Supreme Court Judge Gerald Lebovits awarded my co-plaintiff and I a default judgment of $50,000 against Ward Security after they refused to show up in court despite repeated service and notice.  The order, dated January 11th, 2018 but entered on February 8th, 2018, thanks to the efficiency of the New York court system, further orders that the case continue against Flash Factory itself, which has shown up to court and appears to be using the, “it’s not our fault what our own security did” defense.  As I previously posted, this defense simply doesn’t work, even if you call your security “independent contractors” and shut your eyes to what they do.  It doubly doesn’t work when you’re on notice that a dozen other people have complained about the same thing.

Our goal is to get these practices to stop, and the only tool at our disposal is a request for money damages, as an order requiring them to stop would require us to show potential future harm to us.  But, money damages have the same effect, as once one party gets a judgment, the company knows that if it doesn’t stop, it will have more of the same.

“I’m thankful for this partial victory. It’s good to know that someone is listening to us, but we’re not done fighting by any means. These practices have to change, and venues like Flash Factory need to know that.”

~ Elise Domyan, Co-Plaintiff

A word to the wise: if your business gets sued and has any assets, including accounts receivable (that is, it’s still doing any business whatsoever), ignoring a lawsuit is a bad way to go.  New York law allows a process for collection against businesses similar to the garnishment of wages against individuals, whereby I can require Ward Security’s clients to withhold payment for services, but the process against a business requires them to withhold 100% of the pay instead of a fraction as they do in wage garnishment.  Security firms are also required to post a surety bond at the time they apply for a license — I’ll be taking that, thank you very much.

Corbett & Domyan v. Flash Factory – Default Judgment Granted against Ward Security, Inc. (.pdf)

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

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