By Matthew Catania

Dear Vandals,

While we understand that you feel strongly about your First Amendment rights, we felt it was our responsibility to explain to readers how a judge will likely view this case.

But the facts are the facts.  In return for not being sued by Reed Elsevier in 2004, you agreed to abridge your free speech rights in relation to the original “Hollywood Potato Chip” cover.   So your current dispute is one of contract law.

Contracts are not voidable for duress unless there is proof of unlawful coercion. Because parties who feel aggrieved have the ability to sue, Reed Elsevier’s threat to sue if you didn’t sign the settlement was not unlawful. Reed Elsevier wasn’t responsible for The Vandals’ inability to afford litigation, and so it is unlikely that a court will rule in your favor on this issue.

When my co-author and I were researching our original piece, we didn’t come across the interview with Reed Elsevier’s lead counsel that you point us to in your response. You suggest that this brief interview on the nature of the lawsuit was the first instance of the confidentiality clause being violated. You believe that this initial breach by your opponent opened the door for the band to release a more explicit video on the topic to the public without legal ramifications. That interview was posted on April 13, 2010, whereas The Vandals’ video is date stamped on You Tube with the date July 22, 2010.  If you can show that this means Reed Elsevier materially breached the confidentiality clause first, this will help your case.  But you might have sought a legal opinion about the matter before acting.   This is turning out, as you know, to be an expensive experiment in legal jurisprudence for your band.

Long-time Vandals fan Dawn Mikulastik and I both support your position.  It would be ridiculous to give Reed Elsevier an exclusive monopoly over a font.  And Reed Elsevier’s conduct doesn’t seem fair or reasonable with regard to the third party breaches. The original draft of our piece was slanted in favor of The Vandals, but our editor, quite rightly, reminded us that we are legal reporters, and must separate our sentiments from the facts.  We did so, and we stand by the legal analysis as set out in our original piece.

Still, we wish your band the best of luck in your legal battles.  We will follow your story.

UPDATE, February 15, 2012:   The Vandals can celebrate; the suit against the group was dismissed.