I love comics so much, but like other media, the results can be confusing and just plain wrong when wandering into the legal world. Scott at Polite Dissent does an fantastic job of looking at the medical snafus of comics, and inspired by his work, I wanted to look at a recent comic that often has legal overtones—She-Hulk.
This comic is just plain fun in so many ways, and writer Dan Slott justly deserves the praises he’s garnered for the “real world” take on the life of a superhero—in this case, Jennifer Walters, an attorney who happens to be the cousin of the Hulk. (Although I think we all miss the cartoony work of Juan Bobillo).
In issue 9, “The Big Reveal,” Shulkie is arguing with her new father-in-law, the Spider-Man hating Jonah Jameson. Jonah had purchased photos taken by Peter Parker (the now not-secret identity of Spider-Man) that supposedly showed Spidey in action—but the photos were consciously faked by Peter with the help of his friend, John Jameson—Jonah’s own son.
Jonah’s still smarting from the deception, and wants to get back at Peter, but his lawyers have told him that there’s likely no recourse. Shulkie wins Jonah over by telling him he can sue Spidey for fraud.
Query: Can Jonah sue? Is She-Hulk right, or Jonah’s lawyers?
“The essential elements of a cause of action for fraud are representation of a material existing fact, falsity, scienter, deception and injury.” New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318 (N.Y. 1995) (internal quotation and citation omitted). Let’s look at those five elements separately, and closely, since “[t]he elements of fraud are narrowly defined, requiring proof by clear and convincing evidence.” Gaidon v. Guardian Life Ins. Co. of Am., 725 N.E.2d 598, 607 (N.Y. 1999).
First, “representation of a material existing fact.” The photos were supposed to be of Spidey, Peter represented them as such, and they were only purchased by Jonah because they were supposed to be of Spidey. That’s a representation made by Peter on a critical subject of the business transaction.
Second, falsity. The photos were supposed to be of Spidey—but they weren’t.
Third, scienter. This is just an old Latin word meaning “having knowledge.” Did Peter know he was selling a bogus photo to Jonah? Yes, because he’s Spidey and he rigged the shots.
Fourth, deception. Did Peter deceive Jonah? Again, yes.
Fifth—did Jonah suffer an injury? This is where he’s going to have the biggest problem, and where I think his case falls apart. Jonah paid a hefty sum for the pictures, yes—but he also published them in the Daily Bugle and likely made oodles off the photos (if Jonah paid that much, you know it was worth triple). It was only later that the pictures were revealed as fake, once Peter made his identity public.
Jonah could argue that Peter has injured his reputation, but this is going to be a hard path, I think. If the recent Reuters scandal has taught us anything, it’s that with the rise of technology even savvy editors may miss obviously fake photos under deadline and competitive pressure. I just don’t think Jonah has suffered any injury he could put a dollar value on, although it is certainly a novel argument (bonus query: should Reuters attempt to sue their fraudulent former photographer for the injury to their business reputation?).
This doesn’t mean Jonah can’t sue, it just means his chances of recovery are slim. (This also assumes there wasn’t a contract between Peter and Jonah that explicitly granted the right to sue or pursue damages if the photos were faked).
She-Hulk is also possibly making a gigantic mistake in encouraging Jonah to sue. Let’s say Peter gets the complaint; Matt Murdock (every good superhero’s lawyer, although I can never tell if he’s been disbarred or he’s in jail for being a crime lord or what) would likely move to bring in John Jameson as a necessary party. John helped Peter rig the photos, and knew why he was doing it—any good defense lawyer would want to defray costs and lessen their liability of their client.
And, as we know, John and She-Hulk are now married, which in may mean their financial affairs are intertwined in many ways. So she may have just brought a lawsuit down on her own husband, from his crazy father! John would have to get his own lawyer—or knowingly waive the conflict of interest that would arise from Matt repping him and Peter—and that costs money. Money which I’m assuming would come from attorney Jennifer Walters’ pocket, as opposed to the salary of an Air Force colonel who also happens to have a predilection for turning into a white-furred wolf-man.
Conclusion: Shulkie, shush! You’re opening a can of worms for yourself, your husband, and—not to mention—Spidey! All to woo Jonah Jameson? For shame!
No-Prize! (wherein I attempt explain the legal advice) Shulkie only said this to Jonah to get him to calm down and quit being mad at her. By focusing his anger back on Peter, she shored up their relationship.
She also knows that once Jonah goes to his lawyers (whom he hates), they’ll ask for a retainer fee to handle the case (even though it’s a plaintiff’s action, it’s unlikely they’ll take this one on contingency, given its low chance of success and possible “zeroing out” by a judge or jury even if successful). Jonah will balk at the price, and continue to seethe in his hatred of Spidey, now feeling even more aggrieved.
Join us next time for an examination of She-Hulk #10!