From London, an unsettling tale of zealous policing (Nicky Samengo-Turner, “The policeman found my penknife. ‘You’re going down, mate,’ he said”, Daily Telegraph, Nov. 28; “New Labour’s police state”, The Spectator, Nov. 27).
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From the monthly archives:
November 2004
One of the most justly unpopular of animal-rights groups is hoping to exploit the speech-suppressing potential of the California law invoked in Nike v. Kasky: “People for the Ethical Treatment of Animals Inc. accused the California Milk Advisory Board of violating the state’s unfair competition law by portraying an idyllic lifestyle for California dairy cows while knowing they endure a “harsh, uncomfortable and often painful existence.” The group is appealing a San Francisco judge’s ruling that the law’s false-advertising provisions cannot be invoked against a governmental entity such as the milk board. (Mike McKee, “PETA Cries Over Cow-Filled Milk Board Ads”, The Recorder, Nov. 18). For more on Nike v. Kasky, see Jul. 1, Jul. 9, Sept. 14, 2003. (Update Jan. 16, 2005: appeals court rules against PETA.)
Litigation against auto dealers has gotten better-organized and more entrepreneurial, according to a report in the trade publication FastTrack.
“We probably have 12 to 13 lawyers down here who make their living solely on suing auto dealers,” says Ted Smith, Executive Director of the Florida Auto Dealers Association. “The Florida litigation environment for dealers is an evolving nightmare. It is a norm to see an attorney bring a case for damages of $10,000 and a court award of $200,000 in attorneys’ fees. There is no way to stop the trial lawyer from churning fees even [in] small damages cases.”
California lawyers invoked the state’s famously broad consumer-protection laws to sue about 1,200 auto dealers for sins that included using the wrong font size in ads or using the acronym “A.P.R” instead of spelling out “Annual Percentage Rate”. Dealers were graciously afforded the chance to settle for $10,000 apiece. (Matt Pinnell, “Hunt for the Frivolous Lawsuit”, FastTrack (AIADA), Fall). And New Jersey lawyers have hit nearly every dealership in the state with class actions alleging excessive or poorly disclosed fees for vehicle registration and other services; settlements have been controversial, however, for providing juicy fees to the lawyers while affording consumers only coupons. (Charles Toutant, “Car-Dealer Class Actions: Coupons for Clients, Big Bucks for Lawyers”, New Jersey Law Journal, Nov. 3).
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“Women around the country are finding that more and more hospitals that once allowed vaginal birth after Caesarean, or VBAC (commonly pronounced VEE-back), are now banning it and insisting on repeat Caesareans. About 300,000 women a year have repeat Caesareans. The rate of vaginal births in women who have had Caesareans has fallen by more than half, from 28.3 percent in 1996 to 10.6 percent in 2003. …
“On a practical level, many women prefer vaginal birth because they recover more quickly and with less pain than they do from a Caesarean. In addition, each Caesarean increases the risk of complications in the next pregnancy, so women who want more than two or three children often hope to avoid the operation.
“Some doctors and hospitals freely acknowledge that fear of being sued has driven their decisions. Hospitals say they cannot comply with guidelines issued in 1999 by the American College of Obstetricians and Gynecologists, which call for a doctor to be available ‘immediately’ throughout active labor during such a birth, to perform an emergency Caesarean if needed. Previous guidelines had called for them to be ‘readily’ available.” (Denise Grady, New York Times, Nov. 29)(via Lone Star Times). We covered the issue Jul. 18, 2003.
The latest installment of our free periodic newsletter went out this afternoon to its c. 2300 subscribers, covering the last three or four weeks’ worth of postings in cryptic, occasionally droll style. It’s a great way to keep up with items you may have missed; when you’re finished, pass on the email to let a friend know about the site. Sign up today, right here.
It seems that getting involved in debates over Mideast politics counts as a high-risk activity, legally speaking. Aside from the defamation suits and threats of suits advanced by the Council for American-Islamic Relations (CAIR) (see Sept. 17, Nov. 24), the pro-Israel Middle East Media Research Institute has now threatened legal action against one of its ideological opposite numbers, University of Michigan professor and blogger Juan Cole. (Reason “Hit and Run”, Nov. 24; Cole blog, Nov. 24; Crooked Timber, Nov. 24). And Cole himself, it develops, has been known to menace his critics with threats of legal action (Martin Kramer, Nov. 25; Reason “Hit and Run”, Nov. 26). For more, see Mickey Kaus, Nov. 25 (scroll), and David Frum, Nov. 27.
John Green, accused of throwing the cup that sparked a mini-riot at a Pistons game (Nov. 24), appeared on Larry King Live with his attorney, who can’t be said to have done his client much good when he allowed him to go on the air, where he was bound to get asked an obvious question, with this result:
“We don’t want our courts turned into U.S-style media circuses,” insists the Blair government’s Lord Chancellor. In that case, maybe the British would be better off emulating our federal courts, which generally (unlike state courts) disallow televising of proceedings and have mostly managed to avoid the popcorn-justice syndrome. (”Should Trials Play on the Telly?”, AP/Law.com, Nov. 16).
And now, by way of giving our opposite numbers their say: the disabled-rights magazine Ragged Edge is out with a pair of articles defending the accessibility filing mills that roam the land grinding out lawsuits against restaurants and other small businesses, with demands for legal fees an important part of the negotiations (see Jul. 9, Mar. 9, Jan. 14 and links from there). The main article gives us a mention (Mary Johnson, “The Lawsuit Dilemma”, Nov.). A shorter companion piece includes the following interesting comments:
With a lawsuit, the disabled person has [a] lawyer (and the lawyer will, in the end, be paid by the defendant). With a lawsuit, their attorney can hire an ADA consultant, who will also be paid by the defendant. The costs of preparing for negotiating, the costs of drafting settlement agreements, the costs of mediation (including paying the mediator) can all be paid by the defendant. With a lawsuit, there is money to pay for these things. Without a lawsuit, there is no money. …By suing. we are in the driver’s seat. …
Nonprofit groups handling ADA compliance efforts can be funded through lawsuits. One of the more active disability rights plaintiff organizations in this country has been able [to] do its work because it receives donations from the lawyers who earn fees representing the organization’s members in ADA lawsuits.
(Fred Shotz, “Why Suing is Important”, Nov.)
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Elsewhere in dollar-sign-headlines in Thursday’s New York Post, Nicholas Malossi was ejected from a September 22 Yankees game when a player’s wife complained to security of being harassed. He and his friend, with their lawyer, David Brickman, are suing the Yankees, the security company for the Yankees, and the city for $6 million. A city lawyer called the suit frivolous. (Carl Campanile, “Fans $lug Yanks”, New York Post, Nov. 25). “In the coming weeks, Brickman is also expecting to file another lawsuit against the Yankees that involves a 14-year-old Clifton Park resident who was physically denied a ‘beanie buddy’ promotional gift at the stadium turnstile because he was thought to be too old.” (Robert Cristo, “Local fans drop Bronx bombshell”, Troy Record, Nov. 26).
Antoinette Millard told New Yorkers she was a Saudi princess, and ran up hundreds of thousands of dollars in debt, when she was actually Lisa Walker, a divorced investment banker from Buffalo who lived in a one-bedroom apartment on 89th Street and Third Avenue. (Photo of “Antoinette” at a January society party.) She got caught when she tried to make a fake insurance claim for stolen jewelry eleven days after purchasing the policy. From Rikers Island, she’s countersuing American Express for daring to seek to recover the $951,000 she charged without paying, claiming they “should have known that [she] was acting impulsively and irrationally” because of “anorexia, depression, panic attacks, [and] head tumors” and shouldn’t have been given credit in the first place. She seeks $2 million. (Samuel Maull, AP, Nov. 24; Dareh Gregorian, “The Gall-$tar”, New York Post, Nov. 25).
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I have much to be thankful for this year. I’ve had some remarkably good luck, some remarkably bad luck that is likely to seem fortuitous in hindsight, and walk away healthier and better adjusted because of it. I went four-for-four in summary judgment motions worth millions to my clients, tripled what I can bench press, and am that much closer to being able to credibly comment about obesity litigation without creating an obvious punchline. I have a roof over my head, food on my table, and I’m living in the future I dreamed about as a little boy.* I have friends and family, new and old, from coast to coast, whom I care about and who care about me, and who magnaminously forgive me my slights small and large. I have a wonderful co-blogger who’s generously given me this opportunity to speak to thousands of thoughtful readers on issues I care about. I’m thankful for the sacrifice of the men and women who have volunteered to take up arms to defend this nation. And I’m thankful that I live in the United States of America, which is not only the greatest country in the world, but a country that gives me the freedom to talk about ways to make it better.
I hope my readers also have what to be thankful for. Have a good, and lawsuit-free, holiday.
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Why are some Mississippi courts considered judicial hellholes? Witness the trial of the breach-of-contract dispute between local insurance businessman Carroll Hood and his HICO versus St. Paul Insurance. HICO remained profitable after they agreed to reduced commissions and raised rates for selling St. Paul insurance (and there’s no indication why they thought St. Paul didn’t have the right to raise rates), but then turned around and sued St. Paul for “tortious breach of contract.” Though the contract required disputes to be litigated in Texas, the court permitted the case to go to trial, permitted the plaintiffs to add a new theory of liability in the middle of trial without warning, permitted $1.2 million damages to be awarded for “mental distress” over a contract dispute between sophisticated businessmen, and then allowed a jury to award $75 million in punitive damages–thirty times the already-inflated compensatory damages. (The jury actually wrote $75,000,000,000 on their verdict form, but the judge decided that this was a confusion over how many zeroes were in a million.) St. Paul also complained that the judge encouraged the jury’s bias against out-of-state companies. The Mississippi Supreme Court threw out the verdict on the easiest of grounds: the Mississippi court never had jurisdiction over the case because of the explicit forum selection clause in the contract being sued on. (AP, “Miss. Supreme Court Overturns $80 Million Breach of Contract Verdict”, Insurance Journal, Nov. 22; Jimmie Gates, “Justices toss out $77.5M jury award”, Clarion-Ledger, Nov. 25; Titan Indemnity Co. v. Hood opinion).
Another sign of hope: on September 9, in Gallagher Bassett Services, Inc. v. Jeffcoat, the Mississippi Supreme Court threw out a $3.5 million verdict against an insurance adjuster that negligently failed to pay an uninsured motorist claim (with a policy limit of $10,000) for all of ten months. If this trend continues, Mississippians might find that insurance companies can more affordably offer insurance.
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The Council for American-Islamic Relations (CAIR) (Sep. 17) has continued their campaign of suing or threatening to sue for libel in an effort to silence critics who have alleged it to be soft on terrorism because of what Senator Schumer calls the organization’s “intimate links to Hamas.” David Frum comments on the notice he received. (”The Question of CAIR”, National Post, Nov. 23).
California, believe it or not, is in the forefront of tort reform by permitting defendants to recover attorneys’ fees when defamation suits are intended to chill protected free speech. Another twenty-two states have adopted similar laws, with bills pending in eight legislatures. See The California Anti-SLAPP Project, Nov. 11, and Mar. 12.
Another example of how personal injury attorneys and the “Center for Auto Safety” actually care very little about auto safety: In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives, a number that will almost certainly be reduced, but the entire verdict is inappropriate. “It is unfairly punishing DaimlerChrysler for a reasonable engineering decision that resulted in a product that met all federal standards,” DaimlerChrysler spokesman Jason Vines said. (Rob Johnson, “Jury awards $105.5 M in baby’s death”, The Tennesseean, Nov. 24; Matt Gouras, AP, Nov. 24; “DaimlerChrysler Is Told to Pay $98 Mln in Van Crash”, Bloomberg, Nov. 23; Sheila Burke, “Chrysler being sued over baby’s van death”, The Tennesseean, Nov. 4). More coverage: Dec. 21.
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Fark would mark this entry with an “Obvious”: Fans at the now-infamous Detroit-Indiana basketball game Friday night have started filing lawsuits. According to the Detroit Free Press, video shows season ticket holder William Paulson dousing Indiana Pacer Ron Artest with a drink after Artest charged the stands and pummeled an innocent bystander, but he’s suing three players, the Pacers, and the arena over a concussion he allegedly suffered in the brawl. John Ackerman also claims to have suffered a concussion; he’s told different reporters that he was hit by a chair and hit by Jermaine O’Neal. The lawyer is your friend and mine, Geoffrey Fieger (Aug. 31 and links therein). (Ben Schmitt and Frank Witsil, “Victims? Suspect? Prosecutor identifies fan who started brawl”, Detroit Free Press, Nov. 23; Mike Martindale, “Find chair-tosser, get cash”, Detroit News, Nov. 24; Daniel Howes, “Lawsuits over Palace fight show a culture of litigation”, Detroit News, Nov. 24; Bisi Onile-Ere, “Lawsuits come in Palace brawl”, ABC-12, Nov. 23).
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“Perfect 10″ is an unsuccessful California pornography business that has branched out into the litigation business with the same results. The company is justifiably upset that disreputable pornographers are stealing their copyrighted photos for their web sites. (We know you’re shocked to hear that some pornographers are disreputable, but we call ‘em like we see ‘em here at Overlawyered.) But unsatisfied with the results of suing fly-by-night operators, they tried to sue the billing services these sites used. These suits were mostly shut down; a federal court held that billing services that aren’t responsible for web site content are not, well, responsible for web site content. (A billing service that did regulate content did not fare so well. Perfect 10 Inc. v. Cybernet Ventures Inc., 213 F. Supp. 2d 1146.)
Then Perfect 10 took on credit card companies Visa and MasterCard. The credit card companies noted that they processed millions of transactions a day, and could not do so economically if they had to be responsible for enforcing property rights of third parties, and compared it to a company “send[ing] a notice to the electric company supplying power to people infringing its rights and say ’shut them off.’” The Northern District of California threw those cases out.
With this track record, you’d think the media would be more skeptical now that the company has sued Google for providing a search engine with which someone can find web sites that infringe Perfect 10’s copyright, instead of giving company president Norman Zada an unrebutted platform, but the idea of a lawsuit over pictures of naked women is apparently too titillating to resist. Because, of course, a search engine shouldn’t just index the web, but should have intelligent spiders that test the propriety of the web sites indexed. Perfect 10 seems to be trying to get around this problem with their lawsuit by alleging that Google prioritizes search engine results for participants in its Ad Sense program and is lying to the public when it says its search engine results are objective. One wonders why Google doesn’t more prominently feature this benefit of sending them money, as well as about the Rule 11 basis for this allegation. Meanwhile, I guess we should be happy that Bo Derek never sued Perfect 10. (Wendy Davis, “Adult Publisher Sues Google For Copyright Infringement”, MediaDailyNews, Nov. 23; AP, Nov. 23; Lisa Baertlein, Reuters, Nov. 22; Chris Gaither, “Porn Firm Sues Google Over Photos”, LA Times, Nov. 20; Brenda Sandburg, “Strange Bedfellows”, The Recorder, June 7; Gretchen Gallen, “Perfect 10 Sues Visa/MasterCard”, XBiz, Jan. 29). Other Google lawsuits: Nov. 9, Aug. 9, Mar. 28.
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Such suits are sufficiently common (e.g., Oct. 8, May 20, Jan. 31, 2003) that we can almost retire the category. Lawyers for Christopher Foster, a male prostitute who, while imprisoned, attempted to hang himself but only managed to self-inflict severe brain damage, argue that the mix-up in paperwork that resulted in his being put in a conventional cell instead of on suicide watch was a constitutional violation. While it’s perhaps too much to ask that suicides only blame themselves, most federal courts recognize that the standard for a constitutional violation is “deliberate indifference” rather than negligence. This case somehow got to trial and the City of Philadelphia is on the hook for $3.5 million (7% of the $50M Foster asked for) after a settlement. Foster won’t be conscious of the marginal difference in life-long nursing care (which one suspects is being shifted from one government expense account to another), but his lawyers, from the firm Kline & Specter (Jan. 24, 2003), will sure appreciate their seven-digit cut from taxpayers. (Joseph A. Slobodzian, “City abruptly settles suicide-prevention suit for $3.5 million”, Philadelphia Inquirer, Nov. 23; Jim Smith, “City to pay $3.5M in jail hanging case”, Philadelphia Daily News, Nov. 23).
