Monthly Archives: March 2013

Mutant Discrimination: GINA, Genetics and How Professor Xavier is Breaking the Law

This guest column was contributed by Dan Vorhaus, an attorney at Robinson, Bradshaw & Hinson, P.A. and Editor of the Genomics Law Report.

Previous posts here at Law and the Multiverse have discussed the status of mutants under several of our nation’s anti-discrimination laws, including the applicability of constitutional protections afforded by the Equal Protection and Due Process clauses of the 14th amendment and statutory protections afforded by the Americans with Disabilities Act (ADA).

There remains, however, one key piece of important anti-discrimination legislation that has yet to be considered in evaluating the legal protections afforded mutants under the law: the Genetic Information Nondiscrimination Act, or GINA.

I. GINA and Mutant Genetics: A Primer.

GINA represents a historic achievement. Enacted in 2008 after 13 years of debate, many have called it the “first civil rights bill of the 21st century.” Five years later it remains the first and only piece of federal legislation to specifically address the use and effects of genetic information.

Broadly speaking, GINA is divided into two parts. Title I of GINA prohibits health insurers from using genetic information to deny coverage or to set premiums or payment rates. Title II prohibits employers from requesting genetic information or using genetic information in hiring, firing and other employment-related decisions.

GINA’s unique focus on genetic information makes the law of particular relevance to mutants. “Mutants,” as we now know thanks to decades of research by devoted and largely off-panel comic book scientists, are individuals who possess at least one mutated copy of the so-called “X-Gene.” The gene appears to promote the development of superhuman powers and abilities, typically post-puberty.

While much remains unknown about the X-Gene’s structure and function, scientists specializing in mutant genetics have isolated its protein product(s) as evidenced by the deployment of mutant suppression drugs in X-Men: The Last Stand (the drug in question is derived from the mutant Leech). From this we can extrapolate that the location of the X-Gene in the Homo sapiens genome is known and, importantly, that mutations within the gene can be identified through genotyping or even targeted sequencing of the X-Gene itself.

With the identification of the X-Gene and the subsequent decline in cost of genomic sequencing technology, there are a number of scenarios in which a genetic test to “diagnose” a mutant at an early stage, particularly before he or she has developed any superhuman (and frequently super-destructive) abilities, might be desirable. But in light of GINA’s passage, are such genetic tests legal?

II. Mutant Discrimination in a Post-GINA World.

We start with a pair of scenarios in which genetic testing for the X-Gene might be of interest.

First, a health insurer could require applicants to submit to testing in an attempt to screen in individuals with beneficial mutations (e.g., those resulting in unique healing abilities) or screen out individuals with X-Gene mutations capable of generating catastrophic levels of claims exposure (e.g., as a result of an at-times-uncontrollable ability to rearrange matter), thereby helping to more accurately project the insurer’s exposure.

Second, an employer might use the X-Gene test to gain valuable insight about a prospective hire. For instance, a research laboratory might use the X-Gene diagnostic test to double-check that the reserved but well-qualified physicist it is considering for an open position won’t demolish the lab – and everyone and everything within it – if an experiment goes awry.

Prior to GINA’s passage, testing in either scenario would have at least been arguably permissible, although various other anti-discrimination laws, including those discussed in previous posts, might have served as the basis for an effective challenge. Post-GINA, however, the analysis is crystal clear: both of the above examples of X-Gene screening are illegal.

The text of the statute itself offers no ambiguity:

  • A health insurer “...shall not request, require, or purchase genetic information for underwriting purposes.” (§ 101)
  • It is unlawful for an employer “to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions or privileges of employment of the employee, because of genetic information with respect to the employee.” (§ 202)

 Although Congress did provide limited exceptions to the general prohibition on requesting and using genetic information in the insurance and employment contexts, none of the exceptions are targeted at mutants, tests specifically designed to test for X-Gene mutations or are otherwise applicable to the scenarios discussed above.

III. Professor Xavier and Pro-Mutant Genetic Discrimination

While GINA may operate to protect mutants from certain forms of genetic discrimination, we should not forget that the statute is crafted broadly and protects against the misuse of any individual’s genetic information. In other words, just as mutants are protected by GINA, so too are they bound by it.

Consider the case of Professor Xavier’s world-renowned school, variously referred to as “Xavier’s School for Gifted Youngsters” and the “Xavier Institute for Higher Learning.”

While little is known of Xavier’s closely-guarded school, it appears to satisfy the definition of an employer subject to Title II of GINA. (GINA applies to all private employers with 15 or more employees. With roughly a dozen identified faculty members, and likely additional faculty members and administrative and support staff on the payroll, Xavier’s school likely crosses the 15-person threshold.)

Xavier’s school also has an unbroken track record of employing mutants as faculty. While it may seem logical and even desirable to employ mutants in a school dedicated to the education and training of mutants, GINA prohibits the use of genetic information in hiring and other job-related decisions without exception. Even in situations where genetic information might appear to be a legitimate criterion for assessing fitness to perform a particular job, GINA forbids its use by an employer.

Of course, it is highly unlikely that Xavier requires prospective faculty members to submit to a traditional genetic test as a condition of their application and/or hiring. In addition to his well-known psionic powers which allow him to identify mutants using only his mind, many or all of the individuals applying to work at the school have manifest mutant powers. Nevertheless, GINA is clear that genetic information, however acquired, may not be used “in regard to hiring, discharge, compensation, terms, conditions, or privileges of employment.” 29 CFR § 1635.4. No matter how he comes by the information, if Xavier is indeed using genetic information in employment-related decisions, this would be a clear violation of GINA.

Since none of Xavier’s existing faculty members are likely to bring a discrimination claim, how might one arise? The most likely scenario: a gifted but non-mutant individual, perhaps one even possessed of other superpowers derived from, for example, an alien genesis or technological enhancements, seeks a position at Xavier’s school as an instructor but is turned away. Such an individual would be well-positioned to bring a successful genetic discrimination claim under GINA against Professor Xavier and his school. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title II of GINA, provides detailed instructions for filing just such a charge.

As with any new piece of legislation, it will take some time before GINA’s full implications for both mutants and humans become clear. Final regulations for Title II of GINA were published in 2010, but public examples of GINA-in-action remain few and far between, and illustrate the many uncertainties and difficulties of enforcement.  For example, given the EEOC’s difficulty subpoenaing documents from Nestle in a recent enforcement action, one can only imagine the considerable challenges that would await the Commission in attempting to gather the evidence needed to successfully establish a claim of discrimination under GINA.

Nonetheless, the law of GINA is clear, and the coming years may require the Commission and other regulatory bodies to overcome those challenges in order to appropriately enforce GINA both for and against the mutant population. Count on Law and the Multiverse and the Genomics Law Report to continue to keep you apprised of all the latest in GINA, mutants and genetic discrimination law.

Huffington Post Article

Ryan and I and the doctors from Broadcast Thought were interviewed for an article in The Huffington Post on zombies and the insanity defense, which is also part of our presentation at WonderCon tomorrow.  Check it out!

Silence & Co.: Money Is Power

Earlier this month, I was fortunate enough to receive an advance copy of Silence & Co.: Money Is Power from its author, Gur Benschemesh. This is his first graphic novel, but the artist (Ron Randall) and letterer (John Workman) both have a long list of titles to their name, many with DC and Marvel. Silence is the story of Alexander Maranzano, the illegitimate but acknowledged youngest son of a major New York crime boss. After getting out of the Marines (for reasons which turn out to be important), he starts working as a hit man for the family. It’s a complete work in three acts, it avoids many of the common pitfalls in crime graphic novels, and it’s got one of the most realistic takes on the process of surveillance I’ve seen so far. Silence is scheduled to hit stores this May, but we’re taking an advance look at its handling of legal issues now. Continue reading

Quick Questions from the Mailbag

In today’s mailbag we have a couple of quick questions from a couple of Christophers.

I. Batman and Bats

The first Christopher had two questions about Batman and actual bats:

In Batman: Year One, and in the film Batman Begins, Bruce has that little gadget that essentially summons swarms of bats, which always looks really cool. But is he responsible for any of those bats dying? Because you just -know- some of them got smushed, or died somehow in the confusion. Also, if someone gets rabies or otherwise gets seriously injured by said bats, is that Bruce’s responsibility?

A. Injuries to the Bats

With regard to the bats themselves: it depends on the kind of bats and the laws of the state.  There are some federally protected bat species, and messing with an endangered species in that way would almost certainly run afoul of the Endangered Species Act, which  makes it a crime to “harass, harm, pursue, … trap, capture, or collect [an endangered species], or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

Even if the bats weren’t endangered, state animal welfare laws may prohibit what Batman was doing.  If any of the bats were “unjustifiably injured”, for example, then under New York law that would constitute “overdriving, torturing, and injuring animals.”  N.Y. Agriculture & Markets Law § 353. Whether summoning a swarm of bats to confuse or evade criminals makes any resulting bat injuries unjustifiable is a difficult question to answer, but one has to wonder if someone has smart and well-connected as Bruce Wayne couldn’t have come up with a less risky alternative.

B. Injuries to Others

By ‘others’ I mean innocent bystanders.  We’ll assume self-defense, defense of others, or some other justification applied to any injuries inflicted on the criminals.

Ordinarily the owners of wild animals (such as bats) are strictly liable for injuries caused by those animals, assuming the injury is a result of the kind of danger that the animal poses.  Bites and rabies transmission from bats certainly fall into that category.  The trick is that Batman isn’t necessarily the owner of these bats.  There is a bat cave on the Wayne Manor property, but I don’t remember if it’s clear that these particular bats came from there.  Merely exercising some degree of control over the wild animal may not be enough to result in strict liability.

However, even if a more typical negligence standard were applied, Batman could still lose out.  He may be justified in using force against his attackers, self-defense will not necessarily prevent a negligence claim.  Would a reasonable person exercising ordinary care summon a swarm of wild bats in a crowded city?  I think a reasonable person might have opted for a less risky method.

II. Animal Transformations

The second Christopher had a question about the magician Zatanna turning people into animals:

I was reading Zatanna and she has a habit of turning people into animals (briefly, in one case, just to get rid of annoying guests.).  Later her father transforms someone into an inanimate doll?  This seems like assault … Can she be arrested and/or sued?

I think the answer is yes, such a transformation would be both a tort and a crime.  If the transformation were effectively permanent—it could not be treated and the responsible magician refused to undo it—it would be murder, particularly if the animal form was truly an ordinary animal and not the person’s mind trapped in an animal’s body.  From a legal point of view, the person would be dead.  Their cardiopulmonary and brain functions would have permanently ceased, since their body had been effectively destroyed.

In the case of a temporary transformation, that would be a very serious injury, albeit one that the victim recovered from.  That would affect the sentencing or damages, but it would still be a crime.  You might think: hey, she changed the victim back, no (permanent) harm, no foul, right?  But what if Zatanna had performed the transformation and then been killed or incapacitated?  Or if Zatanna and the victim had been separated?  We don’t want to encourage her to take the risk that she might not be able to change someone back.  This is similar to why factual impossibility is not a defense to an attempted crime: the defendant could not actually have committed the crime they were trying to, but we don’t want to let them off the hook just because they got lucky.

And then there’s the psychological harm of being turned into an animal, even temporarily.  So even a temporary transformation would be a criminal assault or battery (depending on the term the particular state uses) and a tortious battery.

WonderCon 2013 Update

In case you missed our earlier announcement: Ryan and I will be giving a presentation at WonderCon 2013 next week with the forensic psychiatrists from Broadcast Thought.  We now have a confirmed room assignment, and our panel has been scheduled for Friday, March 29th from 6:30pm to 8:00pm in Room 213:

Not Guilty by Reason of Zombification? Law and Forensic Psychiatry After the Zombie Apocalypse

During a “zombie apocalypse,” humans play by a new set of rules — or no rules at all. Zombies kill humans, humans hunt zombies, and humans murder other humans — with no legal repercussions. But suppose the zombie apocalypse ended after eradication of the zombies or the discovery of a cure that rejoined the dead with the living. When society’s laws are restored, what would happen if humans, zombies, and former zombies alike stood trial for their actions? Would any of them be found guilty, or would the circumstances of the apocalypse excuse crimes like theft, breaking and entering, misuse of a corpse, murder, and cannibalism? What legal defenses might apply? Join the forensic psychiatrists of Broadcast Thought, H. Eric Bender, M.D.Praveen R. Kambam, M.D., and Vasilis K. Pozios, M.D., and the lawyers of Law and the Multiverse, James Daily, J.D. and Ryan Davidson, J.D. (The Law of Superheroes) as they examine the legal issues faced by a post-zombie-apocalyptic world. In a mock trial, the lawyers will be the prosecution and defense, the doctors will be the expert witnesses, and you will be the jury. Will the walking dead be found guilty, or will they walk free?

Badges are still available, so if you can make it to Anaheim next week, we hope you can join us!

Mind Control and Sexual Assault

This post was inspired by an email from Cameron, who asks whether vampires with the ability to glamour people could potentially be liable for rape or sexual assault. That is a really good question, and we’re going to take a look at it here.

But before we do, a few preliminaries. First, we understand that sexual assault is a really touchy subject, personally, emotionally, and even politically. Please do not think that by examining the fictional issue of mind control that we’re taking this lightly. We aren’t. Second, the way the criminal justice system deals with sexual assault charges is widely recognized to be problematic. We understand this too. Indeed, it’s perhaps the single most conspicuous area of dysfunction in the criminal legal system. It’s far from the only area in which injustice is routine, but in most of the rest of the legal system, the laws are basically doing what they were passed to do. Not so here. So when we conclude that something is/is not legal or will/will not lead to a conviction, understand that we are not thereby saying that this is a desirable outcome. But the fact is that in real life, sex crime cases rarely go well for anyone involved. If we’re going to look at the implications of something like mind control in this context, we need to be able to discuss things the way they are, even if we wish they were different.

Further, there really isn’t any way of talking about these issues without being fairly graphic. We will attempt to be sensitive and circumspect about this where possible, but this is necessarily going to be one of our more family-unfriendly posts. We think this is an important enough subject to be worth posting about, but those who don’t want to read about this sort of thing should feel free to come back on Wednesday, when we’ll return to our usual fare.

With those things in mind, let’s think about this. Continue reading

Pirate Cinema by Cory Doctorow

This guest post was written by Stuart Langley, an intellectual property attorney.  Thanks to Stuart for this fantastic post!  If you are a legal professional (e.g. an attorney, judge, or law professor) or a comic book professional (e.g. an author, editor, or illustrator) and  you have an idea for a post that would be a good fit for Law and the Multiverse, feel free to contact us!  

Cory Doctorow’s novel Pirate Cinema is a 2012 young adult speculative fiction novel set in near-future England that follows roughly a year in the life of a band of footloose youths living in, around, and outside traditional London society.  The story is told from the perspective of 16-year old filmmaker Trent McCauley (a.k.a. Cecil B. deVille) who’s obsession is creating mashups using images from the net.  Guided by his vagabond friends Jem, Dodger and a young woman named “26”, Trent matures from filmmaker to copyright activist.  

If you haven’t read Pirate Cinema, as always with Doctorow’s books you can download it for free, or you can do as I did and buy a copy.

Cory Doctorow is well-known for both his fiction and his informed, thoughtful copyright activism.  Pirate Cinema takes clear positions on copyright issues, but what is exceptionally fun about Pirate Cinema is the energy Doctorow puts forth to set out the whole cornucopia of property issues so we may consider law and theory.  Rather than steadfastly advocating a position, Pirate Cinema advocates advocacy itself; advocacy informed by human needs, respectful of human institutions created to meet those needs, and appreciative that these systems are changeable to satisfy our needs.  I will focus not on copyright issues per se, but the much more interesting context Pirate Cinema creates for understanding copyrights in the scheme of property law.  Pirate Cinema asks us to wonder about whether the way we treat intellectual property follows how we treat other kinds of property.

But first, Trent’s adventure begins when his family’s internet access is disconnected because of his downloading activity.  Is internet access a public utility subject to a higher “obligation to serve” standard, or merely a contractual service that can be denied for violation of any agreed upon term of service?

I. Is Internet Access a Public Utility?

Trent’s home has received a series of notices telling them their IP address has been associated with illegal downloading.  These notices go unheeded because Trent has intercepted them.  The third notice is accompanied by an appealable, but immediate one-year suspension of the family’s internet access.  The appeal process is portrayed as too burdensome and slow to pursue.

The McCauley’s internet access has been disconnected consistently with what appears to be an implementation of the United Kingdom Digital Economy Act 2010.  Implementation of this act has been slow, but is expected to lead to notices and service disruption as early as 2014.  The implementing code of this act obligates ISPs to respond to copyright infringement reports by notice to subscribers, maintain a list of subscribers that have received notices which can be disclosed to copyright owners under court order, and degrade or deny service to repeat offenders.  The technical measures imposed by the law will be appealable; on paper the appeal processes appear designed to protect subscribers, however, the regulations on the appeal process have not yet been published.  This foundational scenario in Pirate Cinema is plausible.

But whether it is acceptable to cut off internet access as punishment for violating how that service is used is another question.  Because of the disconnection Trent’s father cannot find work, his mother cannot find medical care, and his sister’s schooling suffers.  Is internet access is a public utility that should be more difficult to disconnect than summary and unilateral administrative action?  As explained in Jim Rossi’s article Universal Service in Competitive Retail Electric Power Markets: Whither the Duty to Serve? 21 Energy L.J. 27 (2000), common law principles express a public utility having a higher obligation to provide service—to provide extraordinary levels of service, especially to small residential customers.  These obligations include the duty to extend service, provide continuing reliable service, provide advanced notice of disconnection and to continue service even though a customer cannot make full payment.  Public utilities can have terms of service and can terminate service for violations, commonly payment and safety related transgressions.  One U.S. city proposed to cut off utility service for failure to pay speeding tickets, although using utility service as a tool to enforce other regulations seems very unusual and inconsistent with the common law “duty to serve”.  The question posed by Pirate Cinema is timely as governments try to regulate internet access, they do so by treating it as a public utility.  This will be a double edged sword in that one treated as a utility, society should, perhaps, have a higher duty to provide internet access and similarly higher barriers before disconnecting service, including greater due process and evidentiary protections for subscribers.

II. Property Rights in Pirate Cinema

Trent learns quickly how to live without money.  He needs food, he needs shelter, he needs comforts of water and electricity and, significantly, he needs to create films.  Without money the satisfaction of these needs brings Trent face-to-face with all types of property theory and practice.

The origin of property rights–the question of how something moves out of “the commons” to become the exclusive property of an individual is found in variations of “first possession theory” and the more thorough Natural Rights theory advocated by John Locke.  According to these theories property rights arise from the human ability to take something from nature, or the commons, and improve it and put it to use.  This act of taking from the commons gives the taker ownership in the thing taken.

Laws and social institutions have evolved to manage property rights, how they are granted and retained, and what privileges are granted to those that possess them.  These institutions and laws are the creation of man as well, and in spite of the strength of our belief that they are immutable, these institutions change over time to meet the needs of society.  Pirate Cinema asserts that property rights are enforced by political entities and powerful corporations and asks us to think about whether our existing institutions and laws are adequate with the reminder that we can change them to better meet society’s needs.  Paramount of those societal needs is the efficient and effective distribution of resources in our quest to satisfy human needs such as the need to eat, the need for shelter, and the more abstract needs to be comfortable, to share knowledge, and to be creative.

A. Tangible Property: Discarded Goods

Pirate Cinema’s society is characterized by great poverty and apparent abundance of resources being wasted.  At Waitrose, an upmarket grocer in London, Trent has a sinking feeling they might be about to shoplift.  Shoplifting is a crime and Trent is no thief.  Instead, his guide Jem teaches him to gather discarded food from the skips (dumpsters) behind the grocery which provide such abundance that they share this bounty with the less fortunate.  Similarly, they acquire all manner of computer and audiovisual equipment, all discarded.  This contrast—the repulsion of stealing against the acceptance of taking discarded goods—lets us think about when tangible property rights make sense and when they do not.  But is this a difference recognized in law?

Trent is right, people found guilty of shoplifting in the UK are charged with theft under the Theft Act 1968 and repeat offenders risk jail time.  However, can he take those same goods from a skip when discarded?  In the UK, no.  Dumpster diving in England and Wales may qualify as theft within the Theft Act 1968 as well.  However, there is little enforcement in practice.  In England, unless aggravated, theft from a skip will only be a civil wrong.  This non-uniform enforcement suggest that society, like Trent, views these acts differently, with a higher regard for personal property in some circumstances (e.g., when it is inside a store, while the owner is exercising dominion, and when taking property would cause loss to the property owner) than in other circumstances (e.g., once the owner has abandoned the property and would no longer suffer loss by the property being taken).

B. Real Property: Adverse Possession

Later, Trent and Jem take up residence in an abandoned pub they name Zeroday and claim it as their own under adverse possession laws.  Can they hope to own the pub where they take up residence?  Their actions to improve the property and put it to better use appeal to the natural law theory of property.  Acquiring real property by “adverse possession” is the process by which a person who is not the legal owner of real property can become its owner after having occupied it for a specified period of time.  The Land Registration Act 2002 provides a legal scheme by which a person wishing to claim adverse possession of registered land would need to continuously occupy the land for ten years, or for a period of twelve years if the land is unregistered.  Pirate Cinema accurately describes the adverse possession law, although the youth’s rigid interpretation of notice provisions and continuous occupation are likely overstated.  Just as importantly, when the pub’s new owner appears, destroying the adverse possession claim, Trent readily yields to the new owner, apparently acknowledging both the new owner’s claim in law and the natural rights principle that although he could claim property from the commons, he could not claim property owned by another.  Once again, the contrast presented suggests our laws and culture give high regard to real property rights in some circumstances and less regard in other circumstances such as when the property is abandoned and can be put to better use.

C. Abstraction of Electricity

In a third property-like scenario, the pub’s power is originally restored by Dodger, Jem’s friend who bypasses the meter.  Not long after, the authorities forcibly remove the residents of Zeroday for “abstraction electricity”.  Electricity is not property in the UK and cannot therefore be stolen.  See the Crown Prosecution Service citing Low v. Blease Crim L.R. 513 (1975).  However, under section 13 of the Theft Act 1968, electricity used without due authority, or dishonestly wasted or diverted is charged with the offense of abstracting electricity.  Trent and the inhabitants of Zeroday unwillingly recognize this authority, vacating Zeroday as punishment for this crime.  Later, when they wish to re-habit the pub, the youths avoid this problem by installing a pay as you go service.  Consistent with the “duty to serve” notion, so long as the youths pay for their service the utility did not deny them service even though they do not own the property.  The contrast presented here is not in conflicting views of the law, but in that Trent does reluctantly but willingly commit the crime, and then agrees with the terms of service and his obligation to pay for services.  Trent acknowledges his needs alone do not justify theft, or abstraction, of what is rightfully “owned” by another.

III. Conclusion

So now our table is set; we have before us examples of when property rights systems work, and when they don’t.  We have examples of when it is right to acknowledge the rights of an owner and when we should question the scope of the powers conferred by those property rights.  Is internet access more like electricity we should be hesitant to withhold, or is it more like tangible or real property where theft laws are rigorously enforced?  Are downloaded clips more like real and tangible property in which we consistently recognize broad rights of owners, or discards from the skips where society implicitly or explicitly accepts that in spite of laws to the contrary, we restrain our enforcement of owner rights in favor of more effective ways of meeting human needs?

Pirate Cinema does not answer these questions for us.  It urges us to appreciate our own responsibility in defining property rights and systems of crime and punishment that meet human needs, including and most dearly the human need to create.  More than anything, the tale urges us to decide, and to learn about the law and regulation being created to regulate society, and take an active part in how those laws are made.

Futurama: Future Stock

This guest post was written by Craig Messing, an attorney from New York, who contacted us with this excellent idea for a post.  If you are a legal professional (e.g. an attorney, judge, or law professor) or a comic book professional (e.g. an author, editor, or illustrator) and  you have an idea for a post that would be a good fit for Law and the Multiverse, feel free to contact us!  


Future Stock is the 21st episode of the third season of Futurama.  While somewhat outside this blog’s normal purview of comic-related media (even if there are Futurama comics), the episode touches on some unique, obscure, and even speculative issues of corporate governance and probate law.  As most of the series takes place in “New New York,” we will assume New York law applies, albeit 1000 years into the future.  It should go without saying, but spoilers to follow.

I. Background

In the episode, a shareholder meeting of Planet Express leads to an “80’s guy” (referred to throughout the episode only as “That Guy”) being named chairman of the corporation.  This eventually leads to That Guy trying to sell the company and gut it for profit, and a shareholder vote over the sale.  That Guy wins the shareholder vote, but then dies (fairly gruesomely) before the transaction is concluded.  Control of his shares passes to Fry, as vice-chairman of Planet Express, who votes down the sale.  (This ignores the fact that the vote had already been cast and approved by both companies, and thus should be binding, even after That Guy’s death.)  The issues here are multiple, but we will look at two.  First, we will examine what recourse the other shareholders of Planet Express might have had to block the sale, and the likelihood of success of those efforts.  Second, we will look at whether control of That Guy’s shares should have passed to Fry, and the potential consequences if they had not.

II. Oppressed Shareholders

In the episode, That Guy purchases 51 percent of the voting rights from Zoidberg (“The shares were worthless, and he kept asking for toilet paper!”), and imposes his will on the other shareholders, all of whom vote against the sale.  The remaining shareholders are outraged, but are powerless to affect the situation.  At face value, this would seem to be textbook shareholder oppression, in which the majority shareholder(s) imposes his will, to the detriment of the other minority shareholders.  Oppression can be especially prevalent in close corporations, where there are only a limited number of shareholders – as appears to be the case with Planet Express.  (Note: after the sale is completed, all outstanding shares of Planet Express are said to be purchased “at the current market price.”  But as a close corporation, there would not be a “market” price.  This is likely an oversight of convenience by the writers, however.) 

Oppressed minority shareholders may sue to prevent the oppressive actions of majority shareholder(s).  However, New York courts have defined “oppression” as “conduct that substantially defeats the reasonable expectations held by minority shareholders in committing their capital to the particular enterprise,” and held that oppression exists “only when the majority conduct substantially defeats expectations that, objectively viewed, were both reasonable under the circumstances and were central to the petitioner’s decision to join the venture.”  In re Matter of Kemp & Beatley, Inc., 473 N.E.2d 1173, 1179 (N.Y. 1984) (internal quotations omitted).   In other words, shareholder oppression will be found only if a “reasonable person” in the shareholders’ situation would be unhappy.

In this case, a “reasonable” Planet Express shareholder would likely be ecstatic at the results of the sale.  In the initial shareholder meeting, where That Guy is named chairman of Planet Express, the company’s dismal financial state is firmly established: a pie chart is shown, illustrating the company’s revenues; a minority of the pie accounts for revenue from business operations, while the majority is made up by “an eight-dollar bank error in our favor.”  After the vote on the sale is finalized, however, the market (“purchase”) price of Planet Express is given as $107.  It would be very difficult to argue that a “reasonable” minority shareholder would disapprove of a transaction that so drastically increased shareholder value, and thus the oppression argument would likely fail.

III. Descendability, Intestacy, and Escheat

Almost immediately after the vote approving the sale, That Guy dies, Fry takes control of his voting shares as vice-chairman, and negates the sale.  However, the corporation could only assert control of these shares if there was some sort of repurchase agreement with Planet Express, under which it could buy back the shares upon That Guy’s death.  Further, even if such an agreement did exist, That Guy’s shares would be either retired or turned into treasury stock; in either case, the shares would no longer have any voting rights, and if the sale of Planet Express had not already been finalized, the minority shareholder votes against the deal would carry the day without Fry’s last-minute heroics.  However, there is no mention of such an agreement in the episode, and thus there is no reason why That Guy’s shares couldn’t pass under his will, or failing that, under the law of intestacy … except that, again, there is no mention of That Guy having a will, nor any heirs, – nor is there any indication of That Guy having a family in the 1980s that might have propagated and survived into the year 3000.

More importantly, New York law might not allow for such distant relations to inherit through intestacy, even if they did exist.  Article 4 of the New York Estates, Powers and Trusts Law (EPT) governs intestate estates, and section 4-1.1 of the EPT enumerates the various classes of individuals who can take under New York law, allowing only for the decedent’s spouse, issue, parents, “issue of parents” (i.e. brothers and sisters of the decedent), grandparents (as well as “the issue of grandparents,” i.e. aunts and uncles), and “great-grandchildren of grandparents” (i.e. nieces and nephews) to take.  There is no provision for an individual outside of that closed list to take under intestacy, and as such, even if an heir does exist, it would be a very distant relation, well outside the purview of the EPT.  Apparently, New York has yet to account for time-travel and cryogenics (both of which appear to be fairly common in the future) in its probate code.  Quite the oversight.

Presuming that New New York law has not yet corrected this oversight, then That Guy’s apparent lack of both a will and eligible intestate heirs would cause the doctrine of escheat to come into effect.  Under escheat, a state acts as a sort of heir of last resort, and may take property if no other heir can be ascertained, or if property is abandoned.  See, e.g. N.Y. ABP § 102 (“It is hereby declared to be the policy of the state … to utilize escheated lands and unclaimed property for the benefit of all the people of the state, and this chapter shall be liberally construed to accomplish such purpose”).  It is not unheard of for a state to take corporate stock under escheat; in fact, such an action was expressly upheld in Standard Oil Co. v. New Jersey, 341 U.S. 428 (1951).

Escheat in New York is governed by the New York Abandoned Property Law; escheat of securities is specifically addressed in Article 5.  However, for a security to be “abandoned” – which was an implicit requirement under the Standard Oil case –  payments due to the security holder have been unclaimed by, and no written communication received from, the rightful holder, for a period of three years.  N.Y. ABP § 501(2)(a).  Only after the security has been found to be abandoned is it to be delivered to the state.  N.Y. ABP § 502.  Therefore, for purposes of the sale of Planet Express, it would seem that the 51 percent shares owned by That Guy would be in limbo for a three year period, while eligible heirs were searched for (likely in vain).  During this time, as they could not be voted, the minority shareholders would have been able to defeat the merger of their own accord.

IV. Escheat of a Majority Stake, and the Public Policy of the Future

Unfortunately, even THIS is not the end of the matter, because if escheat is exercised in this case, it would effectively transfer a majority interest in a private corporation to the state of New New York, as That Guy controlled 51 percent of Planet Express’s stock.  While seizure and nationalization of private businesses by the federal government is not unheard of, seizure is usually predicated on great turmoil, such as a World War – though even war is not always sufficient cause for nationalization, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), which held that President Truman’s attempted nationalization of the steel industry during the Korean War, by executive order, was authorized neither by the Constitution, nor by Congress, and was thus illegal – but no such circumstance is present here.  There is precedent of the nationalization of a private business due to severe financial hardship (most recently General Motors), and it is undisputed that there were severe hardships facing Planet Express; however, it would be very difficult to argue (despite the many dealings the company has had with the President of Earth), that Planet Express was such a vital cog in the economy as compared with GM.

For fairly obvious reasons – it is rare for any individual to die both intestate and without any heirs to take under intestacy, and it is borderline inconceivable that an individual who is intellectually capable of obtaining majority control of a company would also die intestate – there is no precedent for a state obtaining a majority share of a company via escheat.  As such, any analysis here will be speculative.  However, I believe that the guidance of the Supreme Court in Youngstown Sheet & Tube, and Standard Oil v. New Jersey, allows us a fairly clear indication as to the public policy rationale that might guide a New New York court in rendering a decision in this matter.  Youngstown provides that nationalization (or, in a more general sense, public takeover of a private business) can occur only when expressly provided for, either by the Constitution or under the law, and Standard Oil allows for corporate stock to be taken by the state under escheat, but provides only for the delivery of the securities, and for the payment of moneys due the holder of the securities.  Similarly, Article 5 of the ABP appears more concerned with obtaining payments due under the securities than with voting rights, and in fact no mention is made in the law of the state’s exercise of voting rights.  Moreover, much like the federal government under Youngstown, it would appear that a state can only take control of a private company under specific conditions provided for under the law, such as a state banking regulator taking control of a struggling bank.  Therefore, I believe that New New York would be able to take possession of That Guy’s 51 percent stake in Planet Express under escheat, but only for purposes of taking any dividends due (or, in the event the sale did go through, its share of the proceeds from the sale).  However, as no law expressly allows the exercise of voting control on securities taken under escheat, an attempt to do so would be illegal.

V. Conclusion

While “Future Stock” does not address the option of minority shareholders to enjoin a majority action, the episode does address the reasonableness standard fairly well.  When the minority shareholders realize how much their shares have appreciated due to the impending sale, each of them (except Fry) immediately voice happiness over their being overruled, thus acting “reasonably” and defeating any notion of an oppression suit.  The episode handles the issue of That Guy’s estate (namely his 51 percent stake in Planet Express) less well.  The episode ignores both the securities and estates law on point, instead assuming that control of the shares would pass from chairman to vice-chairman.  Even if the shares were repurchased by Planet Express, regardless of how the corporation chose to treat them, they would not be voting shares unless and until they were re-issued by the corporation.  And if they passed into That Guy’s estate … as discussed at length above, that opens up a considerable can of worms, to say the least.

That said, while this particular episode might not have handled the law exceptionally well, there are at least two instances from Futurama’s current run where the show has addressed novel legal implications of its futuristic setting, in a serious, thought-provoking manner.  And besides, Futurama is a spectacular show.  You should watch it.  The hypnotoad commands youAll glory to the hypnotoad.

Comedians at Law Podcast

And now for a different kind of legal comic: the Comedians at Law interviewed me for their podcast this week. Check it out!

Superman’s Diamonds Revisited

Just over two years ago I discussed Superman’s (lack of) tax liability for crushing coal into diamonds and (actual) gift tax liability if he gave those diamonds to another person.  In the comments to that post I mentioned that Superman could theoretically avoid gift tax liability by performing the gratuitous service of crushing coal into diamonds rather than giving a finished diamond.  In this post I’d like to expand on that topic briefly.

I. Form Over Substance

Although it is true that gratuitous services are not taxed, it is also true that the IRS and the courts frown on tax avoidance schemes that attempt to exalt form over substance.  Gregory v. Helvering, 293 U.S. 465 (1935).  So a scheme by which Superman handed someone a piece of coal, fully intending to turn it into a diamond, then did so, would be tantamount to simply giving them a diamond.  The IRS would focus on the substance of the transaction, not the form, and consider it a taxable gift of property.

But if, for example, Superman were at someone’s house for a barbecue and decided to thank them for dinner by crushing a lump of their own charcoal into a diamond, that would be different.  In that case Superman really would be performing a gratuitous service.

This may seem like a fine distinction, but think of it in terms of a famous baseball player.  If the baseball player hands someone a baseball (retail value $3) and then signs it (market value $500), that’s not really a gratuitous service.  They’re really just giving the person a signed baseball.  But if the baseball player signs a baseball that the recipient already owns, then that is more clearly a service rather than a gift of property.

II. Engagement Rings

Superman has crushed coal into diamonds for various reasons, but one of the best known was his gift of a ring to Lana Lang in Superman III.  This raises an interesting question: is an engagement ring subject to gift tax?  There is, subject to certain qualifications, an unlimited marital deduction for gifts between spouses, but what about an engagement ring, which is given in anticipation of marriage?

The law surrounding engagement rings and other pre-nuptial gifts has a long and complex history, dating back to at least the Romans.  Most of the law has to do with who owns such gifts, particularly if the marriage is called off.  But it turns out that none of that matters for tax purposes.  If the donor and donee aren’t married at the time of the gift, then the marital deduction doesn’t apply.  26 U.S.C. § 2523(a).  So an engagement ring is subject to gift tax, even if the donor and donee get married later that same year.  In practice I suspect that few people actually report such gifts, even in the rare case where it would make a difference in their ultimate tax liability, but maybe Superman would actually be moral enough to do so.

III. Conclusion

Crushing coal into diamonds still doesn’t create tax liability for Superman, and he still has some ways to avoid liability if he crushes coal into diamonds for other people, but he has to be careful about it.  And strictly speaking he probably should have reported that ring he gave to Lana.