Class Action Madness: Jonathan Tasini v. Huffington Post

I have never written a blog for the Huffington Post.  Indeed I have to report that I have never been asked to do so.  But I am tempted to volunteer my services to that deservedly successful web site free of charge.  Why?  Because it is the best way to cure the acute case of indigestion that I suffered once I glanced at the first sections of Jonathan Tasini’s novel—that is novel as in untenable—class action complaint.

In many cases the wrath that one has against class actions is based on an unenviable combination of unsound legal theory with a dubious procedural device.  That was my beef with the employment discrimination complaint brought against Wal-Mart.  

In this instance, there is nothing wrong with having all the unpaid bloggers at HuffPo lumped into a class.  They all have the right to opt out if they so choose. But it is the substantive approach that is so off base.  The key question involves the interaction between theories of restitution, or unjust enrichment, on the one side and theories of contract on the other.

Tasini reveals his strong authoritarian tendencies by insisting that he is only using the common law theory of restitution to get a return benefit for all the distinguished authors and bloggers that made the Huffington Post what it is.  And it is just there that he goes wrong.  The theory of unjust enrichment has been since the earliest of time a gap filler.  It covers those cases where there is no agreement, in which it is appropriate to require that the party who receives a benefit pay for it.  The usual kinds of situations are where someone pays the government a fee to make sure that it does not confiscate your goods.  A second class of cases is overpayments of bills, where it is unjust for the payee to keep money that he knows was not intended as a gift.

But what do we have here?  A group of highly intelligent bloggers all of whom have made the decision that they prefer the exposure that the HuffPo affords them to payment from some lesser outfit.  There is no way that a common law theory of restitution can override those voluntary choices.  The authors have decided that the nonpecuniary benefits outweigh any prospect of financial gain.  The tragedy is that busybodies like Tasini are so imperious that they cannot let sensible people make their own choices.  This suit should be tossed out on its ear.  And Tasini should be regarded as a fair target for legal sanctions for filing a frivolous complaint under the Federal Rules.  May the Southern District of New York protect the legal system and the Huffington Post from this officious intermeddler.

  1. Tommy De Seno
    C

    I agree with you 100% Richard.  Unjust enrichment involves the initial expectation of money when the service was rendered.

    These bloggers never expected any money. 

    Of course if this guy wins, I’m going to start a union, Ricochet Local 1776, and start a class action lawsuit against this website.  I hear the owners have deep pockets, which will be my jurisdictional statement of facts in the complaint.

    Are you with me, Richard?

  2. EJHill

    Two quick points… 1) Wouldn’t Mr. Tasini have to prove that some one visited the HuffPo specifically for the work he produced (other than his own mother)?

    And 2) I don’t believe I ever met a person who could casually drop the word “nonpecuniary” into a sentence.

  3. Blue Yeti
    C

    Good dramatization, courtesy of Marco Arment:

    (The internet, circa 2008.)

    Huffington Post: “Write for us, and we’ll give you ‘exposure’ on our popular site!”

    Writers: “How much will you pay us?

    HuffPo: “Nothing, but we’ll put your name on your posts, so you can become famous and make money from someone else someday!”

    Most Writers: “Bye.”

    The Other Writers: “Sounds great! We want to break into the industry!”

    (Some time later…)

    AOL: “We have more money than relevance! Here, HuffPo, take a bunch of the former and try to give us more of the latter.”

    HuffPo: “Gladly!” (rolls in a pile of money)

    The Other Writers: “We did all of that writing for free, and now that you made a bunch of money, we’re entitled to some of it!”

    AOLHuffPo: “LOL!”

  4. Sisyphus

    I think that would be Ricochet Global 1776 under the circumstances. I once tried to use nonpecuniary in a sentence, but I injured myself and was on the bench for a month afterword.

  5. Chris Johnson

     I am of the opinion that they were properly compensated.

  6. Stuart Creque

    It makes sense that HuffPo writers would suffer from the delusion that they’re entitled to compensation they explicitly forswore when they wrote for the site.  They’re mostly liberals, and thus live under the other enabling delusion that life is supposed to be fair.

    This gets back to the reason the White House is calling its “deficit reduction plan” balanced.  It knows that most Americans understand that life is unfair, but it also knows that Americans think balance is a good thing — a balanced breakfast, a balanced 401(k) portfolio, balanced wheels — whereas unbalanced is very, very bad.

  7. KC Mulville

    This is on the same wavelength as people who argue that bloggers aren’t journalists, therefore they have no right to contribute to any public debate. That has several false premises. First, that only journalists (i.e., anyone with a press pass) should be allowed to comment on public affairs. Second, that journalism school gives its graduates keen insight into the issues of the day. (Pause for laughter to subside.) Third, that major news organizations methodically weed out writers who reason poorly. (Another pause.) The list goes on …

    Unless you have a signed contract to be paid beforehand, writing for a website is simply a citizen trying to contribute to the public debate. Leave it at that. 

  8. MBF
    Stuart Creque: They’re mostly liberals, and thus live under the other enabling delusion that life is supposed to be fair.

    Of course life is supposed to be fair. The President said so today in his speech.

    “Part of this American belief that we are all connected also expresses itself in a conviction that each one of us deserves some basic measure of security.”

  9. Severely Ltd.

    Kenneth, impersonating “a highly intelligent blogger” (I kid, Kenneth, I kid), made much the same point in a post on the member feed. He stressed that his expectations concerning the coming Ricochet Sell-out, while nonpecuniary, are of a decidedly inebriating nature.

    See there, Sisyphus. Easy as pie, I didn’t feel a thing. Just injured a few Ricochet grammarians.

  10. Kenneth
    Severely Ltd.: Kenneth, impersonating “a highly intelligent blogger” (I kid, Kenneth, I kid), made much the same point in a post on the member feed. He stressed that his expectations concerning the coming Ricochet Sell-out, while nonpecuniary, are of a decidedly inebriating nature.

    See there, Sisyphus. Easy as pie, I didn’t feel a thing. Just injured a few Ricochet grammarians. · Apr 13 at 2:56pm

    Thanks for the hat tip, Severely.  Here is yesterday’s post.

  11. Tommy De Seno
    C
    Sisyphus: I think that would be Ricochet Global 1776 under the circumstances. I once tried to use nonpecuniary in a sentence, but I injured myself and was on the bench for a month afterword. · Apr 13 at 2:07pm

    I confess I don’t know how unions work so you are probably right.