OFT Retained in Salmonella Outbreak Traced to Red Onions.

The OFT Food Safety & Injury firm has been retained in this widespread and ongoing outbreak of Salmonella Newport tied to red onions from Thomson International, Inc.

Just thought you should know.

My New Firm is All Over This Romaine Lettuce E. Coli Outbreak

As regular Reader(s)™ of this erstwhile blog may know, I have joined a new law firm—OFT Food Safety & Injury Lawyers—with Ryan Osterholm, Brendan Flaherty, and Lindsay Lien Rinholen.

One of the many things I'm excited about in this new venture is that it will give me occasion to visit Minneapolis (OFT World Headquarters) more than every couple of years. Now it will be more like every couple of months. I even saw Mr. Gillette there last week, in the flesh. Sparks flew.

It may also give me occasion to blog a little more. Not to blog for reader(s) necessarily, but at least to potentially seed the Internet with backlinks to my new firm's website in the hopes that it may convince Google that the new venture is indeed a real thing. (See numerous links above.) Given that this is one of the more prestigious blogs I've ever been a part of, it seems like this should definitely work.

As you know, Mr. Gillette, the focus of the new firm is on food safety. Basically, when people get sick from eating food, we try to get them compensation for their suffering. Unfortunately people get sick from eating food quite a bit in our country, and it seems that the producers and sellers of food tend to treat this as a cost of doing business. As long as that cost is low enough, they're going to keep making people sick. So we're trying to make them pay. Hopefully they'll stop making so many people so sick.

Almost immediately after we started the firm, dozens of people all over the country got sick with E. coli infections. The outbreak has been traced back to romaine lettuce from Salinas, California, and it seems to have caused at least three different clusters of cases. One of them is in Wisconsin and Minnesota, related to a product sold by Fresh Express, Inc. called "Sunflower Crisp Salad Kit." We've filed an E. coli lawsuit on behalf of a college professor who became gravely ill and was hospitalized for weeks. Other lawsuits have been filed in Illinois and Iowa. More will surely come.

This seems to happen every year with lettuce and leafy greens. It will probably keep happening—but maybe we'll make them pay enough so that the people who can actually prevent these outbreaks do what they need to do.

A return? Maybe.

A friend of mine, who clearly has an outsized influence on me, suggested that I should start writing on the Gillette-Torvik blog again. I should do lots of things, of course. I do not do a lot of things I should do. Anyway, I guess my tweets were not particularly satisfying reading. I can understand that sentiment given that most of my tweets are simply using this gif in response to political statements with which I disagree.


via GIPHY

I know my using that gif is not witty. Nevertheless, I find using that gif deeply satisfying. Twitter brings out my worst self.

No, Arizona will not owe Sean Miller $10 million if they fire him with cause

Word broke yesterday that Sean Miller is on tape talking about paying DeAndre Ayton to come to Arizona.

Today, there are reports that Arizona will owe Miller the balance of his base salary even if they fire him "with cause," but only 50% of that if they fire him without cause. Can that possibly be correct?

Spoiler alert: No. The argument based on this language in his contract:

And here is Section III, where Base Salary is defined:

This is being interpreted to mean that even if Miller is fired with cause, Arizona will owe him his Base Salary—the yearly salary, plus the $700k in "peripheral duties compensation"—for all those years left on his contract. Even though he won't be working, and indeed will have been fired in disgrace (presumably).

No. Arizona does not have to pay Sean Miller not to work if he's been fired with cause. What the language actually means is that Arizona's only obligation to Miller in the event of a firing with cause will be to pay him the Base Salary that he has earned. In other words, what is actually owed as of the date of termination.

That is the most reasonable interpretation of the language. A salary is not due until it is earned, and Miller will not be earning any salary after the date of the termination.

Moreover, the contract language on what Miller would be owed in the case of a termination of without cause shows the parties used different language when talking about payments that would have been earned in the absence of a termination:

This language shows the parties understood that no further Base Salary would be owed after termination. They needed the "would have ... but for" language to identify those additional funds. That language isn't in the termination with cause provision.

Darren Rovell and others have interpreted these provisions to mean that after termination with cause Miller is owed 100% of his Base Salary that would have been owed to him but for termination and upon termination without cause he would only be owed 50%. That is just obviously incorrect. The "would have ... but for" language would have to be in the termination-for-clause provision for that interpretation to hold water.

Finally, even if it were reasonable and fair to interpret the contract to insert the language that Miller is entitled to 100% of what he would have been owed but for termination with cause, that interpretation would lead to obviously absurd results, and no court would countenance it. Imagine that Miller had just decided to move to Costa Rica and stop coaching. What could the university do? Surely they could terminate him with cause, but that would mean paying him everything he's owed. Ridiculous. 

Or say he had decided to take another job. The contract says explicitly what would happen in that scenario:

Supposedly, Miller would have to pay Arizona $500,000 in liquidated damages if he left for another job. But why would he do that? Why not just stop showing up for work, and show up for the other job instead? All Arizona could do is fire him, with cause, in which case they'd supposedly owe him all the base salary he would have earned but for the termination. Absurd.

Now, Miller may sue and advance this theory. It's plausible enough and there's enough money at stake that a lawyer may take the case. But probably not on contingency. [Cross-posted from Adam's WI Sports Blog]

A Little Light

Well, a 19-year-old kid went to the Florida high school he used to attend and killed seventeen people by shooting them with an semi-automatic gun. CNN reports that this is the ninth-deadliest mass shooting is "modern" United States history (as this CNN article points out, we say "modern" because it's hard to get data on mass shootings before 1949). ABC News points out that six weeks in to 2018, there have been 18 shootings at a school in the United States. That averages out to three shootings a week! This needs to stop.

I am thankful for these things (part 2)

Given that this post should appear directly above part 1 of this series, I am just going to jump into the second half of list.

I am thankful for these things (part 1)

In July, writer Joe Posnanski wrote a blog post about 50 things that make him happy. The concept of the post was to list 50 “non-cynical” things that, obviously, make Mr. Posnanski happy. I enjoyed reading the post a lot. Since imitation is the greatest form of flattery, here is my list of 50 things that make me happy. I am not going to say my happiness is cynical or non-cynical. Cynicism is in the eye the beholder, after all. What I will say, is that these things make me happy regardless of context.  Mr. Posnanski says his things are listed in no order. I suppose that is true for my list too. Mostly because I do not want to have to rate things that make me happy. But, it is fair to say that these things are generally listed in the order that they occurred to me. That may indicate a ranking of a sort. Reader(s)™ might notice that this list does not include many people I know and love. That is because most long-term relationships contain a mixture of emotions, sort of like we see in the movie “Inside Out.” Put another way, if you are not on the list, it is because you were 51.

Earth 1 and Earth 2.

So the New York Times published a story about how movie executive Harvey Weinstein has allegedly been sexually harassing women for many years. I could link to a number of other news reports about other powerful men allegedly doing similar things. Without resorting to Google, Bill O'Reilly and Roger Ailes lost their positions at Fox News recently for similar allegations. Moreover, I think everybody knows about the allegations against Bill Cosby by now.

Don't buy the myth

As is my custom, I did not look at the news Monday morning before I walked to work. So I was in a good mood when I passed the security guard in lobby of the building where I work. My mood got even better when I noticed the guard had set out sugar cookies with pink frosting. When I asked why the cookies were out, the guard said they were to remind folks that October is breast cancer awareness month. I took a cookie and ate it. It was delicious.

Things I learned on my recent trip to North Dakota.

I was in Bismarck, North Dakota, for a couple of days this week. Bismarck, as Reader(s)™ may know, is the capitol of North Dakota. One thinks of North Dakota as being flat and treeless, but Bismarck has more hills than Minneapolis and a lot of trees. Here is a picture I took from a hill on the eastern edge of town.