Plaintiff’s lawyers have for years pursued a grudge match against the Allstate insurance company because of its “Do You Need An Attorney?” campaign, launched in the mid-1990s, by which the company suggests to persons with possible claims against its policyholders that it may not be absolutely necessary for them to sign up with a lawyer (see Apr. 18, 2000; Dec. 22, 1999). In the state of Connecticut, scene of some of the fiercest skirmishing, the attorneys’ fondest hopes have not been realized: in January a federal judge ruled in Allstate’s favor “on claims it breached an implied contract of good faith and fair dealing, and was engaging in unfair trade practice, unfair insurance practice, recklessness and fraud.” However, it’s not as if the insurer, which is based in Northbrook, Ill., is now free to say whatever it pleases in post-car-crash situations in the Nutmeg State: “In 1996, as president of the Connecticut Trial Lawyers Association, Reardon [New London plaintiffs' attorney Robert I. Reardon] successfully lobbied for a new law that forbids insurers from discouraging their adversaries from hiring a lawyer.” (Thomas B. Scheffey, “Allstate Victorious in Anti-Lawyer Campaign”, Connecticut Law Tribune, Feb. 2).
From the monthly archives:
April 2004
“‘I don’t think censorship is a bad word, but it has become a bad word because everybody associates it with some kind of restriction on liberty,’ said Mr. [Pat] Boone, who is in Washington making the rounds as the national spokesman for the 60-Plus Association, a conservative senior citizen lobby.” (Steve Miller, “Censorship in arts ‘healthy,’ Boone says”, Washington Times, Apr. 21)(via TMFTML).
That Kim Jong Il regime, so misunderstood — if the poor dears misbehave, it’s only because the evil United States drove them to it. That’s the gist of a new report (PDF) from the National Lawyers Guild’s “Delegation to the Democratic Peoples Republic Of Korea“. The NLG, which we last discussed Apr. 27, 2000 in connection with its similar views of Castro’s Cuba, is an Old Left remnant which no longer has much visibility (if it ever did) in the world of actual law practice. But it’s surprisingly well organized at law schools, as witness its directory of student chapters and contacts, which lists nearly 100 campuses. FrontPage magazine has run caustic coverage of the group and its latest venture: Shawn Macomber, “North Korean Lawyers Guild”, Apr. 22; Jesse Rigsby, “NLG: The Legal Fifth Column”, Apr. 25, 2003 (also mentions dissension within the group’s ranks). Newmark’s Door, CrosBlog and Milt Rosenberg (scroll) comment.
Amaani Lyle was fired four months into her job for Warner Brothers as a writers’ assistant on “Friends” because she couldn’t type fast enough to record the writers’ dictation accurately. She sued for sexual harassment because the comedy writers would regularly make jokes about women and sex in the process of writing a sitcom about the sexual adventures of six thirty-somethings. A California appeals court has decided that a jury should resolve whether the jokes made by the comedy writers were appropriate for writing a sitcom or whether they created an actionable “hostile working environment for women.” Summary judgment was affirmed with respect to the dismissal of her lawsuit against NBC, because NBC did not have the right to hire or fire writers’ assistants on the television show, but the court reversed the award of attorneys’ fees. (“C.A. Limits ?Creative Necessity? Defense in ?Friends? Harassment Case”, Metropolitan News-Enterprise, Apr. 22; AP, Apr. 22; Lyle v. Warner Bros. Television Prod. opinion). Updates: Jul. 19, Jul. 31.
Workers at the English National Opera have been banned from using the term of endearment “darling” to each other. “The policy, set out in a document called Dignity at Work, singles out the word ‘darling’ as part of a code of conduct which addresses workplace protocol. It tells employees: ‘The use of affectionate names such as ‘darling’ may constitute sexual harassment.’”. A grievance procedure is available for those who are made uncomfortable by hearing the word. (“‘Darling’ ban for opera workers”, BBC, Apr. 22). A spokesman, however, said there was a grandfather clause: “Existing staff who call each other ‘darling’ can continue to do so but, if someone started here on Monday, they could not.” (“‘Darling’ banned for new workers at English National Opera”, Ananova, Apr. 22). “This is simply guidance for employees — we are protecting ourselves and them,” said spokesman Anthony McNeill. “We live in a litigious society.” (AP/Andante, Apr. 22).
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By margins of more than 2-1, ensuring its enactment into law, both houses of the Virginia legislature have passed HB 751, which would declare null and void all “partnership agreements” between persons of the same sex that “bestow the privileges or obligations of marriage” and bar the enforcement of such agreements (including agreements reached between residents of other states). Critics (see Mar. 19, Apr. 18) and Gov. Mark Warner have warned that the bill may open the door to legal challenges to private contractual arrangements, powers of attorney and similar legal devices when employed between persons of the same sex. Religious right groups hailed the votes; the bill’s sponsor denied that it was intended to affect private contractual arrangements. The bill becomes the law of the Commonwealth July 1. (Christina Nuckols, “Lawmakers restore full ban on gay unions, partnerships”, The Virginian-Pilot, Apr. 22; Michael Sluss, “Warner’s amendments die in House”, Roanoke Times, Apr. 22). More: David Hill, Eric Scheie and Tim Hulsey comment. (Corrected/updated May 6 to clarify final status of bill.) Yet more: May 12, May 31.
A California court of appeal has rejected a lawsuit under the state’s s. 17200 (“unfair competition”) law (see Mar. 12, Dec. 8 and links from there) demanding class-action damages against the Ritz-Carlton hotel chain over its practice of adding an automatic gratuity to room service. Although the claimant conceded that the hotel’s room service menu did warn guests of the charge, he argued that the warning was not in big enough print. And Sacramento sole practitioner Brian Kindsvater, accused of abusing the law, has reached an agreement with the state attorney general’s office to return about $35,000 in settlements from various businesses he sued under s. 17200, including travel agency websites and video stores. “According to the AG’s complaint, Kindsvater helped form a shell corporation called Consumer Action League, which served as plaintiff in the suits. … [The agreement also] also forbids him from making false statements that settling 17200 cases protects defendants from similar actions.” (Jeff Chorney, “Attorney Agrees to Return Unfairly Won Settlements”, The Recorder/New York Lawyer, Mar. 25) (via Tim Sandefur, Apr. 21 and Mar. 25 respectively). Fresh from his resounding political victory in achieving workers’ compensation reform, Gov. Arnold Schwarzenegger is likely to turn his attention to other economic agenda items, among them whether to throw his weight behind an expected business-backed initiative on the November ballot to rein in s. 17200 lawsuits (Marc Lifsher, “Schwarzenegger Has Long To-Do List to Boost Business”. L.A. Times, Apr. 20). One case for s. 17200 reform: Lance T. Izumi (Pacific Research Institute), “Laws, courts unfair to businesses in state”, L.A. Daily News, Apr. 15.
Fresno, Calif.: Brandy Hurd, “a straight-A eighth-grader and a top athlete in her class, is suing a teacher and the Island Union Elementary School District in Lemoore for what a lawsuit filed in U.S. District Court in Fresno says was an unfair C in physical education last year. … In addition to asking a judge to order the grade changed, the lawsuit also is seeking unspecified financial damages.” The girl’s father, Ivan Hurd, “is not new to the federal court system in Fresno,” having last year obtained a settlement estimated at $700,000 in a seven-year-old dispute over false arrest and other claims. (Jerry Bier, “Lemoore student sues over C grade”, Fresno Bee, Apr. 16).
As we noted Apr. 15, Griffin Bell, who served as U.S. Attorney General in the Carter Administration, called last week for a federal law enforcement probe into the handling of asbestos litigation by the courts of Madison County, Ill. What happened next: state court judge Nicholas Byron (more: Mar. 24, Apr. 4-6, Apr. 30, 2003), who presides over Madison County’s asbestos docket, declared that lawyers from King & Spalding, the big Atlanta-based law firm with which Bell is associated, would be unwelcome in his courtroom. Reports the St. Louis Post-Dispatch: “A lawyer who was before Byron Friday morning said that Byron twice told a capacity crowd of lawyers in his courtroom for an asbestos lawsuit hearing that he was barring King & Spalding. The lawyer, who asked not to be identified, said Byron asked, ‘Is anyone here from the Atlanta firm of King & Spalding? I’m banning them from practicing in the county.’ ‘He clearly wasn’t joking,’ the lawyer said.” Bell, who served for many years as a federal judge before becoming Attorney General, appears to have taken the news in stride: “He can debar all the defense lawyers, but then again, he’d run into the constitutional problem that you are allowed to have a lawyer of your choice.” “Bell, 85, said that his firm does not handle asbestos litigation and to his knowledge had no cases in Madison County. ‘I don’t know that we would have lost anything by being barred anyway,’ Bell said. ‘If Judge Byron feels that way, I doubt he would give us a fair hearing.’” (Paul Hampel and Trisha Howard, “Criticism of court leads to ban on Atlanta law firm”, St. Louis Post-Dispatch, Apr. 17).
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According to the U.S. Department of Justice, running an ad for an offshore Internet casino may amount to “aiding and abetting” illegal gambling, a felony punishable by up to two years in prison. Rendering banking, computer-security or public-relations services to such a website — or maybe even mentioning its name — might constitute a violation as well, and it matters not that the site may be entirely lawful in the country from which it operates. Although it is far from clear that U.S. prosecutors could actually obtain convictions that would stand up on such charges, both Google and Yahoo have capitulated and agreed to stop running such ads, which “illustrates the chilling effect of vague laws in the hands of ambitious prosecutors,” writes Jacob Sullum. (“Abetting betting”, syndicated/Reason, Apr. 9). Update Aug. 9: and here come the class action suits.
“Dr. Eileen Murphy has been delivering babies for 18 years, including Governor [Rod] Blagojevich’s daughter, Anne. But on April 30 she’ll see her last patient. She just can’t afford to do it anymore. … The problem’s not her $170,000 a year salary. It’s her insurance premium which jumped to $138,000 this year. Without insurance she can’t get hospital privileges. ‘If anything goes wrong, even if it’s a possible complication, a possible natural outcome, you can almost guarantee that you are going to be sued,’ Murphy said.” (“Doctors Protest Malpractice Rates”, CBS 2 Chicago, Mar. 24). Murphy plans to become a junior high school teacher instead, according to news reports. “I am going on strike for tort reform,” she wrote in a letter to her patients. More: Spoons Experience, Capitol Grilling bulletin board. Even more: Chicago Tribune on state’s crisis (“The doctors are leaving”, Apr. 18) (editorial); Maureen Martin, Heartland Institute, Mar. 26; Patrick J. Powers, “Doctor laments loss of friends to other states”, Belleville News-Democrat, Jan. 14.
The Hartford Courant on Apr. 4 (reg) ran a guest commentary by an attorney named Henry Kopel (“My Colleagues Are Wrecking Health Care”) who is married to an obstetrician/gynecologist and who begins his column: “I am an attorney, and I am ashamed of what my profession is doing to health care in America.” (reprinted: Connecticut College of Emergency Physicians). And here are a couple more medical-liability sites we haven’t previously noted: Doctors for Medical Liability Reform (various physician specialty groups), Protect Access to Care & Treatment (American Academy of Orthopedic Surgeons).
Courts stoking the litigation explosion: “For years, companies that sponsor higher risk activities such as scuba diving and skydiving have asked participants to sign waivers designed to absolve them from lawsuits if injury or death results. Yesterday, a [New Jersey] state appeals court declared those release forms do not bar relatives from filing a wrongful death lawsuit. … The court said while [Eugene J.] Pietroluongo [who died in a scuba diving accident at age 44] had the power to sign away his right to sue, the law did not allow him to sign away the rights of his survivors to bring a wrongful death lawsuit.” The court declared the waiver, voluntary or no, to be unenforceable as a policy matter. Attorneys, presumably deadpan, said the decision “could result in more lawsuits”. (Kathy Barrett Carter, “Survivors can sue despite a waiver”, Newark Star-Ledger, Apr. 13)(& letters to the editor, Jul. 26: first, second).
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Our latest free newsletter, summing up the past 3 weeks’ or so worth of items on the site, went out today to its subscribers. If you’re not on the list, you can sign up here for future mailings and to read older newsletters. It’s a great way to keep up with items on the site you may have missed.
Update to our Apr. 16 story: Margit Kieske, 48, who says she developed heart problems after consuming nearly one pound of licorice per day, has lost her suit against the German confectioner Haribo for not posting a health warning on boxes of the candy. A court in Bonn ruled that the company had complied with the law, which provides that special labeling is needed only if licorice contains more than 0.2 percent of glycyrrhizin, a threshold not reached by the candies in question. (“Licorice Lawsuit Goes Down the Tubes”, Fox News, Apr. 20).
Still far from caught up, we’ve posted four more entries from our pipeline of reader letters on our letters page. Our favorite this time comes from a reader who was a class member in a class action suit filed against companies alleged to have sent out unsolicited (“junk”) faxes. How was the settlement notice sent out to the class? Why, via another unsolicited fax. Among topics of other letters: a $4.75 million settlement payable by a Massachusetts utility because its driver tried to be courteous and wave a pedestrian into traffic, where she was hit by another vehicle that failed to stop; the case of the fired Dallas police chief who, fragile of soul, wants $5 million for his emotional anguish at the episode; and finally, a letter from another trial lawyer who appears not to like us very much.
“The male cheerleaders who carried the 80-pound Tennessee Titans flag at every game and tossed the female cheerleaders in the air won’t be doing it this fall. The Titans and the Baltimore Ravens were the last two teams in the National Football League that still featured male cheerleaders, and now the Titans have decided to drop them because of liability concerns over the stunts.” (Jim Wyatt, “Titans male cheerleaders out of a job; who’ll hoist the flag?”, The Tennessean, Apr. 17).
“The mother of a 19-year-old killed in a traffic accident is suing Coors Brewing Co., claiming that it promotes underage drinking. Jodie Pisco, of Reno, contends Coors has failed in its duty to protect the country’s youth from drinking. Her son, Ryan, was killed in 2002 after he drank Coors at a party and drove his girlfriend’s car into a light pole at 90 mph, the lawsuit says.” (“Mother sues Coors for promoting underage drinking”, AP/Court TV, Apr. 19). For more on the escalating courtroom campaign against alcohol producers, see Mar. 29 (last item), and links from there. Update Jun. 13: case dropped.
British officialdom is debating whether to outlaw all spanking of children — even by their own parents. “Physical punishment by teachers was outlawed in Britain’s state-run schools in 1986 and in private schools in 1999. … Last year, the government committed itself to banning childminders from spanking children, even when they have permission to do so from the child’s parents.” The final step, now being urged by a highly mobilized lobby of purported child advocates, is to extend the ban to parents themselves. The “campaign has little to do with weighing the merits, or otherwise, of spanking as a form of discipline,” writes Brendan O’Neill, assistant editor of the journal Spiked-Online. “Rather, it is driven by a view of parents, and adults in general, as not being trustworthy enough to care for children.” (“Britain debates: to spank or not to spank “, Christian Science Monitor, Apr. 19).
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