Public Citizen’s blog announced that CSPI plans to sue the beverage sellers, asking for disgorgement of profits from flavored malt beverages, unless they agree to take them off the market. Their theory? By making flavored alcoholic beverages that taste good, they are effectively marketing to children. (Because, after all, adults don’t like beverages that taste good.) CSPI also claims that it violates FDA rules to sell alcoholic beverages that contain caffeine, which would be a surprise to every restaurant that offers Irish coffee.
Tagged as:
Anheuser-Busch,
beer and brewers,
CSPI,
Miller Brewing,
nanny state,
Public Citizen
Relevant to a recent comment discussion, words of wisdom from Judge Easterbrook in IFC Credit Corp. v. United Business & Indus. Federal Credit Union:
Ever since Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), enforced a forum-selection clause printed in tiny type on the back of a cruise-ship ticket, it has been hard to find decisions holding terms invalid on the ground that something is wrong with non-negotiable terms in form contracts. See also, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32 (1991) (unequal bargaining power does not justify refusal to enforce an arbitration clause in a form contract); Seawright v. American General Financial Services, Inc., 507 F.3d 967 (6th Cir.2007). As long as the market is competitive, sellers must adopt terms that buyers find acceptable; onerous terms just lead to lower prices. See, e.g., Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir.1997); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir.1996); George L. Priest, A Theory of the Consumer Product Warranty, 90 Yale L.J. 1297 (1981). If buyers prefer juries, then an agreement waiving a jury comes with a lower price to compensate buyers for the loss-though if bench trials reduce the cost of litigation, then sellers may be better off even at the lower price, for they may save more in legal expenses than they forego in receipts from customers.
There is no difference in principle between the content of a seller’s form contract and the content of that seller’s products. The judiciary does not monitor the content of the products, demanding that a telecom switch provide 50 circuits even though the seller promised (and delivered) 40 circuits. It does not matter that the seller’s offer was non-negotiable (if, say, it offered 40-circuit boxes and 100-circuit boxes, but nothing in between); just so with procedural clauses, such as jury waivers. As long as the price is negotiable and the customer may shop elsewhere, consumer protection comes from competition rather than judicial intervention. Making the institution of contract unreliable by trying to adjust matters ex post in favor of the weaker party will just make weaker parties worse off in the long run. Original Great American Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d 273, 282 (7th Cir.1992) (“The idea that favoring one side or the other in a class of contract disputes can redistribute wealth is one of the most persistent illusions of judicial power. It comes from failing to consider the full consequences of legal decisions. Courts deciding contract cases cannot durably shift the balance of advantages to the weaker side of the market; they can only make contracts more costly to that side in the future, because [the other side] will demand compensation for bearing onerous terms.”).
Tagged as:
arbitration,
contracts of adhesion,
Frank Easterbrook
Howie Mandel’s stunningly successful Deal Or No Deal television game show had an amusing little side-show.
Viewers were invited to play the “Lucky Case Game” by choosing which of six on-screen gold briefcases was the lucky case. Viewers submitted their choice on the Internet for free or through a text message that cost 99 cents. At the end of the program, the winning briefcase was revealed, and the winners were entered into a random drawing. The winner of that drawing received a prize of as much as $10,000.
One enterprising Georgia lawyer claims that this amounts to illegal gambling and has filed a class action lawsuit to obtain refunds of the 99 cent text message fees (plus attorneys fees, of course):
When a Forsyth County couple sent 99-cent text messages trying to win a prize on the NBC game show “Deal or No Deal,” they engaged in illegal gambling and should get their money back, a lawyer told the Georgia Supreme Court on Tuesday.
So should all other Georgians who sent text messages in the show’s “Lucky Case Game” and lost, lawyer Jerry Buchanan said. A judge hearing the case has estimated the bounty could reach tens of millions of dollars.
The case has been report to the state Supreme Court for the answers to two questions:
1. Does Georgia law allow losers of an illegal lottery to recover the money they lost?
2. And, if so, may the losers recover that money from the lottery’s promoter or organizer?
No mention of the third question.
(Atlanta Journal & Constitution, ajc.com, Feb. 27)
Since the suit was filed, the game has stopped.
Tagged as:
Atlanta,
class actions,
Deal or No Deal
The mother of a teen killed by a drunken driver was standing at his casket during his wake when lawyers Robert D’Amico and Jimmy Burchfield sidled up next to her and offered their services.
Kathleen Gemma filed a complaint with the Supreme Court’s attorney disciplinary board, saying the two should have left her alone while she was saying her last goodbyes to her son Anthony Gemma. Gemma said one of the lawyers talked about his billboard.
D’Amico and Burchfield say that Gemma brought up the idea of pursuing legal action.
Not difficult to figure out which story is true here, is it?
(Providence WPRI, February 26)
In the height of irony, the wesbite for the law firm of D’Amico & Burchfield contains this slogan:
We’ll Take Care of You Like Family Would
N.B. — This story recently ran on WPRI television, but Anthony Gemma’s accidental death occurred in December of 2006. There is no public report of whether any disciplinary action was taken against either lawyer.
Tagged as:
chasing clients,
D'Amico & Burchfield
Family members of the children Banita Jacks murdered, who apparently cared so much about the children that they didn’t notice Jacks had starved them to death months before they were discovered, “have hired lawyers to pursue claims against the D.C. government for failing to prevent months of neglect and abuse. … In interviews yesterday, the grandmothers’ lawyers declined to say when their clients last saw Jacks or her daughters.”
DC taxpayers will be thrilled to note that the city is refusing to rehire three workers fired in a scapegoating frenzy after the Jacks revelations, even after a hearing officer has held that the firings were unwarranted. More lawsuits to come. (Keith L. Alexander and Petula Dvorak, “D.C. Could Have Done More To Help 4 Sisters, Families Say”, Washington Post, Feb. 28).
For an example of the post-Jacks overreaction, see Hans Bader at POL, who has beat me to the Greg and Julianna Caplan story, which was also extensively covered in the Marc Fisher blog.
Tagged as:
absent parents who sue,
Banita Jacks,
child abuse,
family law,
taxpayers
Bizarro-Overlawyered hasn’t quite gotten the hang of how to put forward their propaganda campaign to deprive consumers of the choice of arbitrating disputes.
A New Orleans woman, Patricia Dicorte, says she got ripped off by her contractor in May 2007, so she took him to an arbitrator, and in July 2007—a fraction of the time it would take in a civil suit of that magnitude—she had an arbitration ruling in her favor for $219 thousand. Unfortunately for her, she then took it to the cesspool of Orleans Parish Courts for enforcement, and Democratic Judge Yada Magee—a colleague of the cousin of the contractor—violated the Federal Arbitration Act and threw out the arbitrator’s ruling. (Dennis Woltering, “Despite arbitrator’s ruling woman still fighting contractor”, WWL-TV, Feb. 25). This will eventually be reinstated on appeal at some unnecessary expense, but somehow Kia Franklin is advertising this fiasco as an example of problems with arbitration (!), rather than as a problem with the judicial hellhole of New Orleans. (If the judge isn’t willing to give a fair ruling for the consumer in something as straightforward and administrative as arbitration judgment enforcement, what makes Franklin think that the consumer would have had a better chance with that judge in a civil trial?)
Judge Magee is best known for railroading negligence findings for 1800 plaintiffs against Dow Chemical in bogus silicone breast implant litigation in 1997, a decision thrown out by a Louisiana appellate court in 2002. Spitzfaden v. Dow Corning Corp., 833 So.2d 512 (La. App. 2002).
Tagged as:
arbitration,
Dow Chemical,
Kia Franklin,
Louisiana,
New Orleans,
silicone breast implants
Is Southwest Airline discriminating against the Pretty Girls again?
“I think they were just discriminating against because we were young decent-looking girls. I mean, nobody else on the plane looked like us except us,” she said. “[The flight attendants] were like older ladies. We were younger. Who knows, they could have been just jealous of us because we were younger.”
You can’t make this stuff up.
(Tampabays.com, Feb. 27)
H/T Wizbang (with video)
Tagged as:
airlines,
Southwest Airlines
Sean Dubowik is a Phoenix strip club owner who had the words “Hot Rod” tattooed to a most private (and sensitive) part of the male anatomy.
This feature was noted with some degree of amazement, although probably not by the type of person Dubowik intended. His gall bladder surgeon, one Sean Hansen, made the observation during surgery prep, and made use of his cell phone to record the artwork. He then showed it around the hospital a bit, resulting in one of the surgical staff (the one with the conscience) calling Dubowik.
Dubowik said he’d gotten the tattoo on a $1,000 bet.
“It was the most horrible thing I ever went though in my life,” Dubowik said. He said he chose Mayo Clinic for treatment because his mother had five surgeries there.
“They were supposedly the best of the best. I have no complaints about the medical care I was given,” he said. “But now I feel violated, betrayed and disgusted.”
Query: can one who has his penis tattooed with “Hot Rod” on a $1,000 bet convince a jury — any jury — that he could be “violated, betrayed and disgusted”?
(AP, Dec. 17, 2007)
Tagged as:
hospitals
Overlawyered reported last summer on William Ross’s findings about the double billing of clients, and Ted opined on it at Point of Law.
Cameron Stracher’s book (his second) entitled Double Billing: A Young Lawyer’s Tale Of Greed, Sex, Lies, And The Pursuit Of A Swivel Chair is careful not to assert that there was double billing going on in his fictional New York white shoe law firm, but there was certainly plenty of churning, redundant/unnecessary work, etc., the ethics of which is comparably impugned by the principles behind the rule against double billing.
In light of Judge Matsch’s repudiation of Big City trial counsel’s conduct in the Medtronic Case, I got to thinking about unethical lawyer conduct, and asked myself this:
Aside from the obvious business remedy available to the client, does trial counsels’ misconduct excuse the client from paying their bill (or enable them to recover the fees paid)? Does the answer to that depend on whether the client was complicit in the unethical strategy?
Tagged as:
ethics,
feeing frenzy
U. S District Court Judge Robert Matsch recently got so infuriated by the conduct of McDermott, Will and Emery attorneys Terrance McMahon and Vera Elson that he overturned a jury’s $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars. (Denver Post, Feb. 25)
From the decision (Medtronic Navigation, Inc. v. BrainLAB Medizinische, 2008 WL 410413):
In essence, the response from the plaintiff and MWE, through new counsel, is that the Court had the obligation to stop any trial conduct that stepped over the line of zealous advocacy. In short, they argue that they should not be held responsible for what they were able to get away with during the trial presentation. The adamant denial that there was any abuse of advocacy in this case is in disregard of what this Court has already concluded and displays the same arrogance that has colored this case almost from its inception. Throughout these proceedings Medtronic and the MWE lawyers have demonstrated that when they are faced with adverse court rulings, they proceed undeterred, with only superficial observance of the court’s determinations. Such conduct supports the conclusion that after the Markman rulings, Medtronic’s primary objective in pursuing this litigation was to put economic pressure on its competitor in the market.
Medtronic’s counsel proceeded cavalierly, with reckless indifference to the merits of Medtronic’s infringement claims. The continued prosecution of a claim after its lack of merit has become apparent warrants sanctions under § 1927. At trial, MWE’s conduct was in disregard for the duty of candor, reflecting an attitude of “what can I get away with?” Throughout the trial, the MWE lawyers artfully avoided the limitations of the patent claims and created an illusion of infringement. They did so with full awareness that their case was without merit.
Tagged as:
closing arguments,
competition through litigation,
Denver,
loser pays,
sanctions
Just as I was about to say I needed to revise my top-ten blog list to include the excellent anony-blogger Patent Troll-Tracker, I learned from today’s Recorder and WSJ that he has revealed himself as Rick Frenkel, Cisco IP attorney.
When I started the blog, I did so mainly out of frustration. I was shocked to learn that a huge portion of the tech industry’s patent disputes were with companies that were shells, with little cash and assets other than patents and a desire to litigate, and did not make and had never made any products. Yet when I would search the Internet for information about these putative licensors, I could find nothing. I was frustrated by the lack of information, and also by the vast array of anti-patent-reform bloggers out there, without a voice supporting what I did believe and still believe is meaningful reform.
(For the record, I liked the blog even before they praised me.) Plaintiffs’ attorney Ray Niro had put a bounty on the identity of the Troll Tracker, who had been critical of Niro’s tactics (as have Walter and I). Frenkel is considering shutting down his blog now that he is out of the closet; one hopes someone else picks up the torch, because he was performing a valuable service, to the extent that I had limited my blogging about it because he had the subject-area covered so well.
I missed the debate in November among Dennis Crouch, Michael Smith, and Frenkel on whether the Eastern District of Texas is “waning” as a magnet jurisdiction for patent plaintiffs (May 2006, Dec. 2005, Jan. 2005), or I might have made reference to it in my latest Liability Outlook on patent reform. Frenkel seems to have the best of that debate, and follows up:
Let’s highlight one really outstanding statistic from November: The number of defendants sued in the Eastern District of Texas in November 2007: 244. The number of defendants sued in Los Angeles, San Francisco/Silicon Valley, New York City, Chicago, Delaware, and New Jersey combined in November 2007: 162.
Patent lawyers often seem to be of a different stripe than other lawyers, and there is a similar patent-law-blogging community largely separate from the other law-bloggers. The commenters go mad at Crouch’s blog over the Frenkel revelation because Cisco is a strong patent reform supporter. Elsewhere: IPBiz; TechDailyDose; NetworkWorld; 271Blog; Mises Blog; and the anti-reform Patent Prospector.
Tagged as:
Cisco,
Delaware,
Eastern District of Texas,
forum shopping,
legal blogs,
New Jersey,
Patent Troll Tracker,
patent trolls,
problem jurisdictions,
Raymond Niro,
Rick Frenkel,
technology
In the state of Mississippi during the last 5 years, 27 law firms have been retained by Mississippi Attorney General James Hood to purse state lawsuits on contingency. Those firms have collectively donated more than a half-million dollars to Hood in the last two election cycles. Apparently, the legislature is troubled by this combination of for-profit motivation and campaign fundraising, and has passed a bill to pursue competitive bidding before signing contracts of more than $500,000 with private lawyers. It also requires a review board to examine contracts, and it limits contingency fees to $1 million.
Hood isn’t pleased — and the WSJ has his number:
Should state Attorneys General be able to outsource their legal work to for-profit tort lawyers, who then funnel a share of their winnings back to the AGs? That’s become a sleazy practice in many states, and it is finally coming under scrutiny — notably in Mississippi, home of Dickie Scruggs, Attorney General Jim Hood, and other legal pillars…
This kind of quid pro quo is legal in Mississippi and most other states. However, if this kind of sweetheart arrangement existed between a public official and business interests, you can bet Mr. Hood would be screaming about corruption. . . . A decision to prosecute is an awesome power, and it ought to be motivated by evidence and the law, not by the profit motives of private tort lawyers and the campaign needs of an ambitious Attorney General.”
That leaves a mark.
Tagged as:
attorneys general,
contingent fee,
Dickie Scruggs,
Jim Hood,
Mississippi,
politics,
taxpayers
One of the justifications for FDA preemption is the fear of overwarning; warning overload can be counterproductive, causing people to ignore important warnings. Thus, failure-to-warn litigation impedes safety. See “Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products,” 71 Fed. Reg. 3922 (Jan. 24, 2006); Larkin v. Pfizer, Inc., 153 S.W.3d 758, 764 (Ky. 2004).
Further evidence comes from a CNNMoney.com report (Aaron Smith, “Consumers tune out FDA warnings”, Feb. 25) suggesting that the FDA’s post-Vioxx caution has already caused the agency to be at the point of diminishing returns, as it is averaging 50% more safety alerts a year for 2005-2007 than it did in 2004, the year Vioxx was withdrawn from the market.
I discussed overwarning in other contexts on Overlawyered in Sep. 2006.
Tagged as:
failure to warn,
FDA,
overwarning,
pharmaceuticals,
product liability
A family court judge who was shot in his chambers by a man whose bitter divorce he was handling has sued the gunman, seeking damages totaling more than $100,000.
…Mack’s civil lawyer, Mark Wray, said the suit “mystified” him. Mack has long since lost the fortune he earned from the pawn shop, and his client’s 9-year-old daughter is getting the last of it, Wray said.
Mystified, is he? Maybe it has something to do with the conspirators.
(News Observer Feb. 23)
Tagged as:
divorce
With a deadline looming for me, I expect to be posting less this week. Fortunately Peter Morin, who’s guestblogged here before, has agreed to step in to fill the gap. Check out Peter’s regular site, WaveMaker.
Tagged as:
guestbloggers
The “National Whistleblower Center” wants folks to send a message to their congresspeople protesting the lack of whistleblower provision in the new Consumer Product Safety Commission reform bill (S.2045):
“The CPSC reform bill needs to provide vital protections for honest employees who report safety violations–such as toxins in toothpaste and poisonous lead in our children’s toys. Without these protections, whistleblowers may not come forward to report dangers of products until it is too late.”
(Whistleblower Blog)
What will those damn Democrats do next!?
Clarification: In my haste to produce some content before I got too busy this morning, it seems that I failed to project my usual degree of irony and sarcasm on this particular post — and in all candor, I did not check archives to see what OL had published before. The Whistleblower Center action alert that the Whistleblower Blog links to reports that “The House version of the CPSC reform bill does not include whistleblower protections,” and exhorts supporters to “Take Action Today! It is crucial that you contact your representative and let him/her know that you expect them to support American workers and families – NOT the interests of big business.”
Now that I have had time to check Thomas, it appears that there is no House version of the bill after all, and therefore the “action alert” is (characteristically?) deceptive.
Correction: (I’ll get this one right if it kills me) — Ted corrects me that a House version did in fact pass the House in December.
Assuming you are a litigator, tort reform has crippled plaintiff’s practice. Hanging out your own shingle is more difficult than ever before. Unless you have an established reputation, you’ll find very little business “coming in the door.” You’ll need to market yourself extensively. If you can survive and thrive, all the power to you.
(Infirmation.com )
Sounds like progress to me.
