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It’s behind a paywall, but the WSJ columnist looks into a question touched on repeatedly in this space and connects it to the unpredictability with which juries may credit expert testimony, as an Oklahoma jury recently did in Toyota litigation:

Toyota had been vigorously fighting hundreds of complaints that its cars are prone to unintended acceleration. Now it’s moving toward a global settlement as a consequence of a single Oklahoma lawsuit that appears to establish that Toyota can’t prevail if it can’t prove a negative—that its software didn’t go haywire in some untraceable and unreplicable manner. …

The Bookout jury was apparently impressed by the testimony of software expert Michael Barr. He said a single “bit flip” (the smallest instance of data corruption) could cause uncontrolled acceleration when the driver had been using cruise control, stopped using cruise control, then resumed using cruise control to let the car accelerate back to its selected speed. …

The connection to Ms. Bookout’s crash, which didn’t involve cruise control and took place on an exit ramp? None, except Mr. Barr claimed that “software failure is consistent with the description of the [Bookout] accident” and “more likely than not” a factor.

Jenkins notes, as have others, that if some mysterious and unreplicable bug is causing Toyotas to accelerate suddenly while disabling the brakes, it seems to differentially appear in cars being driven by elderly drivers, which are greatly overrepresented in the crash statistics.

More: Kyle Graham on whether vaccine liability limits make a plausible precedent for limits on liability for driverless cars.

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Driverless-car chasing

by Walter Olson on September 13, 2013

The driverless car, it’s increasingly clear, is a technology with transformative potential, and among its key advantages would be its promise in reducing accident rates. Yet without attention to liability reform the progress could stall, according to Megan McArdle. “Even if the overall number of accidents drops, the number of accidents where the automaker is perceived to be at fault will approach 100 percent.” Would a massive, New Zealand-style effort to replace the whole tort system do better? [Bloomberg; more on New Zealand no-fault compensation here, here; the original 1967 Woodhouse report here]

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Randal O’Toole doesn’t share the concerns of Greg Beato and others.

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Ryan Calo at Concurring Opinions asks whether, if self-driving cars turn out to reduce overall road risk markedly but also create some new kinds of accidents, the makers will be ready for the public backlash (with its inevitable legal and legislative repercussions).

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Product liability roundup

by Walter Olson on January 25, 2013

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Self-driving cars

by Walter Olson on June 7, 2011

The technology is advancing rapidly, and promises a vast emancipation from drudgery — if punitive/prohibitive liability and regulatory rules don’t block its path. [Tyler Cowen] More: Ryan Calo.

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November 15 – Class-action coupon-clippers. Hard-hitting page-one Washington Post dissection of class-action abuse, specifically the “coupon settlements” by which lawyers claim large but notional face-value benefits for the represented class, which can serve as a predicate for high fees even if few consumers ever take advantage of the benefits. “The record in one case, against ITT Financial Corp., showed that consumers redeemed only two of 96,754 coupons issued, a redemption rate of 0.002 percent.” Settlement-confidentiality rules often make it impossible to learn how many coupons were redeemed. Groups like Public Citizen and Trial Lawyers for Public Justice, normally closely aligned with plaintiffs’-side interests, are crusading against the coupon abuses, fearing they’ll erode public support for the class action device and “sour the public” on the whole system.

The piece includes a profile of Chicago lawyer Daniel Edelman, who’s won millions in fees in about thirty consumer lawsuits, and is variously called by consumerist critics “the Darth Vader of class action settlements” and “the poster child for how to rip off consumers under the guise of helping them”: “I can think of no plague worse than to have a court impose the likes of Daniel Edelman…on absent and unsuspecting members of a class,” said one judge in a lawsuit against Citibank. Edelman was among the plaintiff’s lawyers in the famed BancBoston Mortgage case, whose outcome was described by federal judge Milton Shadur (who was not involved in it) as “appalling” and “astonishing”: “The principal real-money beneficiaries of the settlement,” Judge Shadur wrote, “turned out to be the class counsel themselves.” The consumer who originally objected to that settlement, Dexter Kamilewicz of Maine, “chose not to comment for this article, noting that Edelman’s firm had countersued him for $25 million. That case is settled, but he said he feared landing in court yet again.” (For more on lawsuits filed by class action lawyers against their critics, see Nov. 4 commentary). (Joe Stephens, “Coupons Create Cash for Lawyers”, Washington Post, Nov. 14, link now dead)

November 15 – Link your way to liability? Daniel Curzon-Brown, a professor of English, has sued TeacherReview.com, a student-run “course critique” site that provides a forum for anonymous praise and criticism of faculty at City College of San Francisco (CCSF) and San Francisco State University. “Free speech is great, but this is not about free speech,” said Brown’s lawyer, Geoffrey Kors, saying his client had been falsely labeled racist and mentally ill, among other damaging charges. (“Other teachers were called ‘womanizers,’ ‘reportedly homicidal’ and ‘drugged out.’”) In one of the suit’s more ambitious angles, the lawyers have joined CCSF as a defendant on the grounds that it “allow[ed] one of its student clubs to provide a link to the review site on a college-hosted Web page” which “helped to create the appearance of official backing for the site”. (“Teacher sues over ‘racist’ Web review”, Reuters/ZDNet, Oct. 21 — full story). Update Oct. 10, 2000: Curzon-Brown agrees to drop suit.

November 15 – Are they kidding, or not-kidding? We’ve read over both these opinion pieces carefully, and here are our tentative conclusions. We think Nancy Giuriati, writing in the Chicago Tribune‘s “Voice of the People”, probably is kidding when she suggests overeating be addressed as a public health problem through lawsuits against food companies along the lines of the anti-smoking crusade. (“Treat Eaters Like Smokers”, Nov. 9). On the other hand, we think Ted Allen, writing in the Legal Times of Washington, probably isn’t kidding when he suggests fans file class-action suits against hard-luck sports teams like the Boston Red Sox and New Orleans Saints. (“Sue da Bums?”, Nov. 1). It could be, however, that we’ve got things upside down — that Mr. Allen is kidding, while Ms. Giuriati isn’t. If you think you can help us out, or wish to call our attention to other who-knows-whether-they’re-joking proposals for the further extension of litigation (entries from law reviews especially welcome!), send your emails to AreTheyKidding -at -overlawyered – dot – com. Update Apr. 11, 2002: Ms. Giuriati writes in to say she wasn’t kidding.

November 15 – Gimme an “S”, “U”, “E”. Latest lawsuit over not making the high school cheerleading squad filed by Merissa D. Brindisi and her father, Richard, who claim it was arbitrary and unfair for Solon, Ohio, school officials to have used teacher evaluations as one factor in deciding who got on the squad. Another suit by an unsuccessful cheerleader contender was filed last month in nearby Lorain County, but was dismissed. (Mark Gillispie, “Solon ex-cheerleader, father file suit”, Cleveland Plain Dealer, Nov. 10 — full story.)

November 13-14 – Fins circle in water. Hoping to piggyback on Judge Jackson’s Microsoft findings of fact and attracted by the treble damages provided by antitrust law, “veterans from the cigarette wars are plotting to sue the company in a wave of private litigation. If the onslaught unfolds as expected, teams of lawyers will turn Microsoft into the next Philip Morris, tangling the company in courts across the country.” David Segal, “New Legal Guns Train on Microsoft”, Washington Post, Nov. 12 — link now dead). Same day, same paper, same byline: another profile of emerging trial lawyer strategy of mounting assault on their targets’ stock price in order to force them to the negotiating table (see “Deal with us or we’ll tank your stock“, Oct. 21). The announcement of a major trial lawyer offensive against HMOs destroyed $12 billion of value in a single day as the market reacted. “Most of the companies have yet to recover.” (David Segal, “Lawyers pool resources, leverage settlements”, Washington Post, Nov. 12, link now dead).

On Friday the stock of big New Orleans-based engineering and construction company, McDermott International Inc., important in the offshore oil business, fell by 35.5 percent following a 26.7 percent drop the previous day to hit a 10-year low. The company disclosed lower earnings and “said in its earnings statement that the settlement of asbestos claims was using up a growing amount of the cash flow of its Babcock & Wilcox (B&W) subsidiary”, one of the nation’s best known makers of power plants. “This unquantifiable asbestos liability puts a whole new spin on things. [McDermott] becomes an asbestos liability valuation play rather than an earnings recovery play,” said analyst Arvind Sanger of brokerage firm Donaldson Lufkin & Jenrette, who added that he thought the market had overreacted to the uncertainty. (“Asbestos Claim Worries Hurt McDermott”, FindLaw/Reuters, Nov. 12, link now dead)

November 13-14 – Update: ADA youth soccer case. Bang! Ouch! As reported here a week ago, parents insisted that 9-year-old Ryan Taylor, who suffers from cerebral palsy, be allowed onto soccer team despite administrators’ fears of injuries from his metal walker. Now they’ve filed suit under federal Americans with Disabilities Act (see “After Casey Martin, the deluge“, Nov. 5-7). (“Parents Sue Over Son’s Soccer Ban”, AP/FindLaw, Nov. 12, link now dead).

November 13-14 – Risks of harm. “One woman manager whom I spoke to, an architect who has worked in construction for a number of years, put it this way: ‘When a woman comes to me with a complaint, I want first of all to make sure that no harm comes to the woman. But I want to make sure that no harm comes to the man, too. Because if a charge of sexual harassment goes into his folder, he may never get another promotion in his entire life.’ [emphasis in original] — from the forthcoming book What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment, by Joan Kennedy Taylor (see yesterday’s entry).

November 12 – Turning the tables. Automaker DaimlerChrysler has sued plaintiff’s attorneys and a individual named client who it says cost it millions of dollars and harmed its reputation by naming it in what is says was a meritless suit. In June, the locally based law firm of Greitzer & Locks and Maryland attorney William Askinazi filed a class-action suit in Philadelphia against DaimlerChrysler, Ford, General Motors and GM’s subsidiary Saturn alleging that the companies’ seat design was defective and unsafe. Similar suits were filed in other states, and lawyers were quoted in one story as claiming the aggregate value of their claims could amount to $5 billion. But DaimlerChrysler and Ford say they were dropped from the Philadelphia case after the named plaintiff, Brian Lipscomb, was shown never to have owned cars manufactured by either automaker.

The German-U.S. company has been on something of a mission recently to fight what it sees as abusive litigation. It recently secured dismissal of an Illinois class action over allegedly excessive engine noise and in 1996 unsuccessfully sought fees after securing dismissal of a Seattle class action that turned out to have been filed without client permission. It succeeded last year in winning an $850,000 judgment against two lawyers in St. Louis who it alleged had taken confidential documents while working for one of its outside law firms and then used that information to file class-action suits against the automaker. “Class-action lawsuits should be used to resolve legitimate claims and not serve as a rigged lottery for trial lawyers,” said Lew Goldfarb, DaimlerChrysler vice president and associate general counsel, in a statement this week. “For too long, trial lawyers have been exploiting class actions, turning these lawsuits into a form of legalized blackmail. They launch frivolous cases because they believe that just the threat of massive class actions filed in many states can coerce a company into settlement. It’s time they started paying for some of the costs of abusing our legal system.” “DaimlerChrysler sues lawyers over lawsuit”, Reuters/Findlaw, Nov. 10, link now dead; “Automakers sued for allegedly defective seats”, Detroit News, Jun. 26)

November 12 – Suppression of conversation vs. improvement of conversation. “Another difficulty in dealing with sexual harassment as a legal problem is that almost all people accused of harassment, from the one whose joke is misunderstood to the hard-core opportunistic harasser…don’t believe they are hurting anyone. [emphasis in original] And we know from our experiences with alcohol and drug prohibition that people whose behavior is regulated and who don’t believe they are hurting anyone else overwhelmingly evade and resent the regulations….If you tell people that the way in which they relate to each other naturally is against the law, their immediate reaction is to think the law intrusive. If, by contrast, you tell people that they may have misunderstood each other but that they can learn to communicate more clearly, you are offering them a new skill without blaming half of them in advance.” — from What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment, by Joan Kennedy Taylor, a book to be published this month by New York University Press and the Cato Institute.

November 11 – We didn’t mean those preferences! At Boalt Hall, the law school of U.C. Berkeley, it’s de rigueur to consider race, gender and various other official preferences as entirely constitutional as a way of balancing out past collective hardship. However, there’s one form of official preference you’d better not speak well of lest you risk ostracism: veterans’ preference. “If you, despite your well-intentioned, fine-toothed combing of the Constitution, just can’t find a legal rule that says that veterans’ preferences are impermissible gender discrimination, then that is sexism. If you think that these veterans’ preferences are acceptable as a matter of policy — for the liberals who are willing to concede that there is a difference between constitutional permissibility and policy advisability — then that is extreme sexism.” — contributor Heather McCormick in The Diversity Hoax: Law Students Report from Berkeley, edited by David Wienir and Marc Berley (Foundation for Academic Standards and Tradition, 1999).

November 11 – Microsoft roundup. Peter Huber of the Manhattan Institute, author of Law and Disorder in Cyberspace, argues in yesterday’s Wall Street Journal that a breakup of the company would in fact be less destructive of value than seemingly more modest remedies that might require the company to prenegotiate its future business relationships or even its software revisions with competitors’ lawyers: “Complex remedial decrees invariably kick off endless rounds of follow-up bickering. Costs mount quickly. Private lawsuits follow. And antitrust law awards triple damages.” (“Breaking Up Isn’t hard to Do”, Wall Street Journal, Nov. 10 — requires online subscription). “Two branches of the federal government, which is a case study in institutional sclerosis, are lecturing Microsoft on the virtues and modalities of innovation,” notes George Will (“Risks of Restraining”, Washington Post, Nov. 9, link now dead). “The dynamism of technology long ago rendered the entire case moot,” argues a Detroit News editorial. “…It is doubtful, for example, that America Online would have paid $10 billion for Netscape if Microsoft’s Bill Gates had indeed rendered the Navigator [browser] worthless.” (“Microsoft: Punishing Success”, Nov. 9). Declan McCullagh at Wired News finds it surprising that the judge was so dismissive of the prospects of Linux, the open-source competitor to Windows (“Judge Jackson: Linux Won’t Last”, Nov. 8).

November 11 – Accommodating theft. In New Jersey, the Office of Attorney Ethics is seeking the disbarment of Tenafly lawyer Charles Meaden, who was arrested in 1996 for trying to buy $5,600 worth of golf clubs with a stolen credit card number. Mr. Meaden’s attorney, Linda Wong, argues that her client suffered from bipolar illness and was in a manic state at the time of the theft due to a change in his medication. “The panel has to send a signal to the public that disabilities can be accommodated.” The ethics body counters that Mr. Meaden’s use of the stolen number showed considerable planning, and added that he’d applied for guns four times in the two years before the arrest, each time denying that he’d been treated for psychiatric conditions. His lawyer’s response? Mr. Meaden, she said, was relying on his doctor’s assurance that depression was “not a psychiatric condition”, besides which “it was understandable that Meaden did not disclose his psychiatric history because the mentally ill face discrimination.” (Wendy Davis, “The Case of the Stolen Credit Card: Mental Illness or Well-Planned Heist?”, New Jersey Law Journal, Oct. 21 — full story)

November 10 – $625,000 an hour asked for time on stopped elevator. Nicholas White, 34, a production manager at Business Week, has filed suit asking $25 million from the owners of Rockefeller Center over an incident last month in which he got stuck on an elevator late one Friday and remained there, pushing buttons and banging on the door, for 40 hours before any building employees noticed. He had only a pack of Life Savers and three cigarettes to see him through the ordeal. “When he had to go to the bathroom, he would pry open the doors a little,” a friend of his told the New York Post. White’s lawyer, Kenneth P. Nolan, said last week that his client was “still in a state of shock” and “has not gone back to work”. (“Floor, please”, Fox News/Reuters, Oct. 21 (link now dead); “Man Trapped in Elevator Wants $25M”, AP/Washington Post, Nov. 3, link now dead; “Man, trapped in New York elevator 40 hours, sues”, Reuters/San Jose Mercury News, Nov. 4, (link now dead; Philip Delves Broughton, “Editor sues for $25-million after 40-hour elevator terror”, National Post (Canada) (originally Daily Telegraph, London), Nov. 6, link now dead)

November 10 – Annals of zero tolerance: more nail clippers cases. The Marshall Elementary School in Granite City, Ill. has suspended second-grader Derek Moss for three days after a custodian found him with a nail clipper. Earlier this fall in Cahokia, Ill., 7-year-old second-grader Lamont Agnew drew a 10-day suspension for possession of the same contraband. (Robert Kelly, “Another nail clippers incident reported”, St. Louis Post-Dispatch, Nov. 2 (link now dead)) Earlier this year Pensacola, Fla. administrators recommended the expulsion of 15-year-old sophomore Tawana Dawson for possession of a clipper with a two-inch attached blade; she’d lent it to a classmate to trim her nails. (“School calls nail clipper a weapon”, AP/APB News, June 7). In recent California cases, a 12-year-old Corona boy was expelled over a nail clipper, a decision later reversed; a Mission Viejo 10-year-old was suspended over a three-inch cap-gun toy on her key chain, and a Buena Park 5-year-old was transferred to another school after he brought into school a disposable shaver he’d found at a bus stop. (Oblivion.net)

November 10 – Welcome Progressive Review and Cal-NRA visitors. Haunted-house story is here; gun lawsuits vs. national security story, here.

November 10 – “The Dutch Boy isn’t Joe Camel.” The companies recently sued by Rhode Island “voluntarily stopped marketing lead-based paint for interior use in the 1950s — a generation before the federal government decided to ban interior lead paint in 1978,” writes Judy Pendell of the Manhattan Institute’s Center for Legal Policy (with which our editor is affiliated). You’d think withdrawing your product before you were obliged to would count as socially responsible, but no good deed escapes punishment. Nor, it seems, does any incorporated bystander with deep pockets: “Many of the defendants acquired their companies long after they had stopped making lead paint…If you can sue an industry that essentially shut itself down almost a half century ago, who’s next?” (“Trial lawyers’ next target: the paint industry”, Wall Street Journal, Oct. 18 — now online at the Manhattan Institute site, which boasts a growing collection of online reports on legal issues (link now dead)).

November 10 – Correction: the difference one letter makes. On Sept. 2 we ran an item about the role of charitable and social-service groups in efforts to take down the gun industry, and included the YMCA on the list of such groups. That was off base: it’s the YWCA that’s a participant in the Coalition to Stop Gun Violence, not its male counterpart. The mistake is one the anti-gun coalition itself unleashed on the world when it erroneously listed the YMCA on its list of supporting organizations. The Capital Research Center took the claim at face value in its report on anti-gun philanthropy, whence it made its way to our summary. Patrick Reilly of the Capital Research Center tells us he’s spoken with the coalition, which acknowledges its mistake and says it’s replaced the “M” version with the correct “W”. In the mean time, the poor YMCA has gotten calls from outraged supporters of the Second Amendment. Send those outraged calls to the YWCA instead.

November 9 – Gun jihad menaces national security. Colt Manufacturing is an important current, as well as historic, defense resource to this country: “We are one of the two suppliers of the M16 rifle and the sole supplier of the M4 carbine to the United States military, as well as many of our allies.” Yet the courtroom assault masterminded by American trial lawyers and carried out by their friends at city hall is quickly running the enterprise into the ground: legal defense costs are “astronomical”, financing and insurance are drying up, and managers have scant time to do anything but respond to legal demands.

“In connection with these lawsuits, Colt has been served with extraordinarily expansive and burdensome discovery requests seeking virtually every document in Colt’s possession related to the design, manufacture and marketing of firearms — military and otherwise. In our defense, waves of lawyers have descended on Colt and other legitimate gun manufacturers, scouring every corner and aspect of our business in an effort to respond to these unreasonable requests.”

If the municipal firearms litigation “forces us out of business, it also will leave the military without an experienced base to turn to during a time of crisis. In the opinion of the Department of Defense, it would take two to five years and significant government investment to return any of today’s weapon systems to their current level of operational reliability should we lose this present capability.”

“We are uneasy and troubled by the fact that we and other companies in the future may be driven out of business by a wave of lawsuits, even if the courts eventually find out that the plaintiff’s cases have no merit.” — Lt. Gen. William M. Keys U.S.M.C. (ret.), chief executive officer of the New Colt’s Holding Company, in testimony before the Senate Judiciary Committee Nov. 2. (full testimony) (overall hearings page).

November 9 – Hold your e-tongue. Though employees may still fondly imagine their screen banter to be somehow entitled to privacy, “e-mails not only are subject to discovery, but also can kill you in a courtroom,” explain two lawyers with Miami’s Becker & Poliakoff. The problem for companies that get sued is that “people who are normally careful of what they say in writing seem to feel that e-mail doesn’t count, and…say things in e-mails they would never say in person or by telephone.” All of which leads up to the following rather startling advice: “Businesses should have an e-mail policy. Consider such rules as ‘No e-mail may contain derogatory information about individuals or the competition.’” (Mark Grossman and Luis Konski, “Digital Discovery: Decoding Your Adversary”, Legal Times (Wash., D.C.), Oct. 20 — full column).

November 9 – “Banks’ good deeds won’t go unpunished”. Good Steve Chapman column on ill-advised laws adopted in San Francisco and Santa Monica, and under consideration for U.S. military bases, that forbid banks from charging a fee for non-customers’ ATM withdrawals; currently banks put automatic machines “in all sorts of relatively low-traffic, out-of-the-way places”, a trend likely to halt abruptly if the business becomes a legislated money-loser. (Chicago Tribune, Nov. 7 — full column).

November 8 – Microsoft ruling: guest editorials. Venture capitalist Jay Freidrichs of Cypress Growth Fund: “My gut is, this is not positive for the industry. The less government involvement, the better.” Peter Ausnit of San Francisco brokerage Volpe Brown Whelan & Co. is alarmed that the ruling could “open up Microsoft to thousands of lawsuits from every belly-up software firm in the world….Are they going to be set upon like the cigarette industry?” George Zachary, a partner at Mohr Davidow Ventures: “a scary reminder that if you make it to the top, someone will try to pull you down.” Venture capitalist Tim Draper: “Silicon Valley should be furious with the way our government is treating successful companies…Any would-be entrepreneur is getting a message from Washington that says: ‘Become successful but not too successful, or we’ll ruin your life.’” (David Streitfeld, “Glee, Gloom in Silicon Valley”, Washington Post, Nov. 6 (link now dead); Duncan Martell, “Silicon Valley Cheers Microsoft Ruling”, Yahoo/Reuters, Nov. 6 (link now dead)). Plus: Virginia Postrel, “What Really Scares Microsoft”, New York Times, Nov. 8; George Priest, “Judge Jackson’s Findings of Fact: A Feeble Case”, Wall Street Journal, Nov. 8 (requires online subscription).

November 8 – Ohio tobacco-settlement booty. A private firm with close links to prominent Columbus lobbyists has been angling for the contract to handle Ohio’s anti-tobacco ad campaign, financed from its share of the state’s settlement loot. It just so happens the next CEO of this firm is State Rep. E.J. Thomas, a key player in the divvying up of the tobacco spoils as chair of the House Finance-Appropriations Committee. “Does Mr. Thomas really believe nobody would have questioned his neutrality while voting to award tobacco contracts when he has been holding hands with one of the parties playing to win the jackpot?” editorializes the Toledo Blade. (“The smoking cigarette”, Oct. 24 — link now dead).

November 8 – Who loves trust-and-estates lawyers? Well, auction houses, for one, since these attorneys control so much asset-disposition business. And so a lot of buttering-up goes on: “At one of the largest annual gatherings of trust and estate lawyers in the U.S., held each year in Miami, Christie’s brings down hundreds of thousands of dollars in jewels so that the lawyers, or their spouses, can try them on. ‘I am not that easily swayed,’ says Carol Harrington, an estate lawyer from the Chicago law firm McDermott Will & Emery, who deals regularly with the auction houses. ‘But what woman doesn’t like having $40,000 in jewels around her neck?’” (Daniel Costello, “An Art Collection to Die For”, Wall Street Journal, Sept. 24).

November 8 – “Police storm raucous party to find members of anti-noise squad”. Moral of this report from southwest England: if you’re hoping to keep your job on the town noise-abatement committee, don’t hire three bands and throw a bash late into the night at city hall; after annoyed neighbors called in to report loud whoops and shrieks, police descended on the venue only to find the mayor and local dignitaries in attendance. (AP/CNN, Oct. 26, link now dead).

November 5-7 – “Scared out of business”. Boston Globe reports on decline of a Halloween tradition, the community haunted house, under pressure from building and safety codes (No emergency sprinklers! Combustible material! And children present, no less!) “In the future, the only option will be to drive to a big, slick venue and pay your $23.50 for a corporatized event that has nothing to do with community,” said Douglas Smith, an illustrator who used to help design the haunted house at Hyde Community Center in Newton Highlands, which has lately been discontinued along with two other haunted houses in Newton. “Only they have the resources. Only they can build to these codes.” “I’m very disappointed,” said 10-year-old David Olesky, who had been looking foward to the outing. “They can make rules, but they can’t drain all the fun out of everything. It’s unfair.” Now “the skull’s mouth, the body parts, and dozens of eyeballs remain packed in boxes” at the community center. “Within a few years, I imagine all amateur haunted houses will get shut down,” Smith told the Globe‘s Marcella Bombardieri. “Society is getting so concerned about liability that there’s no way to have fun.” (Oct. 29 — link now dead).

November 5-7 – Public by 2-1 margin disapproves of tobacco suits. New ABC News poll of 1,010 adults finds that by a 60-to-34 percent margin public doesn’t believe tobacco companies should have to pay damages for smoking-related illnesses. But not one of the fifty state attorneys general held back from filing such a suit — an indication these AGs are taking their policy cues from something other than their states’ electorates. As for trial lawyers, they know the luck of the draw will eventually assure them a certain number or juries and judges around the country willing to go along with the 34 percent view. That’s enough to cash in no matter what the majority may think. (ABC News.com, “Cigarette Makers Absolved: Six in 10 Reject Liability for Tobacco Companies”, Nov. 3).

November 5-7 – AOL sued for failure to accommodate blind users. Yes, AOL is big, but the legal theories being advanced under the Americans with Disabilities Act have the potential to redefine all sorts of websites, including publishing and opinion sites, as “public accommodations”. If you’re looking for a way to slow down the growth of the Web, try menacing page designers with liability unless they set aside their to-do list of other site improvements in favor of trooping off to seminars on how to fix nonaccommodative coding choices. (“Blind Group Sues AOL Over Internet Access”, Excite/Reuters, Nov. 5; case settled August 2000)..

November 5-7 – More details on Toshiba. Last Saturday’s L.A. Times, not in our hands before, adds a number of salient details to the story covered in this space November 3. Number of laptops involved: 5.5 million. The company agreed to settle “even though no consumer ever complained of losing data as a result of the glitch”. Company officials “said they had been unable to re-create the problem in the lab, except when trying to save something to a disk while simultaneously doing one or two other intensive tasks, such as playing a game or watching a video.” However, Toshiba was tipped toward settling when it heard that NEC Corp. considered the glitch a genuine one and learned moreover that there’d been an earlier advisory from NEC, thus opening up scenarios in which lawyers could argue that warnings had been callously ignored etc. The coupons will be much more valuable than the usual style of settlement coupons because owners “will be able to sell their coupons or use multiple coupons toward a single purchase.” But the public goodwill fund that will bulk out the rest of the $1 billion settlement if claims fall short may consist of donations of older hardware to charitable groups, a notoriously soft accounting category (Joseph Menn, “Toshiba OKs Settlement of $1 Billion Over Laptops”, Oct. 30, link now dead). Jodi Kantor, Slate “Today’s Papers”, also Oct. 30, reports: “The company’s credit rating was immediately downgraded, and its share price slipped 9%.” (Toshiba site)

November 5-7 – After Casey Martin, the deluge. Latest handicap-accommodation demand from the playing field: family of 9-year-old Ryan Taylor, who’s afflicted with cerebral palsy, asks for his right to play soccer in a metal walker. David Dalton, volunteer president of the Lawton [Okla.] Optimist Soccer Association league, says the walker is hazardous and a violation of the game rules. In addition, the league could get sued if another player smashed into it while trying to contest Taylor’s control of the ball, if any were so unsporting as to try that. However, “in 1996 a federal court in California ruled that a youth baseball league violated the Americans With Disabilities Act by excluding an 11-year-old with cerebral palsy who used crutches” and Houston disability-rights lawyer Wendy Wilkinson is rattling the saber, saying the ruling “definitely applies to this situation”. (Danny M. Boyd, “Disabled boy is barred from playing soccer with a walker”, AP/Fox News, Nov. 3, link now dead).

November 5-7 – “Land of the free…or the lawyers?” Nice editorial in Investors Business Daily on the deepening litigation crisis: “No industry or company is safe.” It even quotes our editor (Oct. 21, link now dead).

November 5-7 – Toffee maker sued for tooth irritation. Spreading across the Atlantic?, cont’d: Former Miss Scotland Eileen Catterson, a runway fashion model for ten years, has sued the makers of Irn-Bru toffee bars saying the sticky confection has left her with discolored teeth and sore gums. She is demanding £5,000 damages in Paisley Sheriff Court, which itself sounds like a fashion establishment. (Gillian Harris, “Model sues sweets firm over teeth”, The Times (London), Oct. 28).

November 4 – Criticizing lawyers proves hazardous. In July Publishers Clearing House, the magazines-by-mail company whose sweepstakes is promoted by Ed McMahon, agreed to settle a class action charging it with deceptive practices. The settlement provided for a maximum of $10 million in outlays by the company, to be divided roughly as follows: $1.5 million to send a notice of settlement to an estimated 48 million households in the class; $5.5 million or less to be refunded to dissatisfied magazine buyers that could muster the required paperwork, the exact sum to depend on how many did so; and $3 million in legal fees for the lawyers who filed the suit, sister-and-brother attorneys Judy Cates and Steven Katz of Swansea, Ill. and a third colleague.

The announcement did not sit well with St. Louis Post-Dispatch columnist Bill McClellan, who wrote August 27 that Cates and Katz “represent the modern version of the James Gang….They recently gained renown by galloping into the little town of Publishers Clearing House. They robbed the bank there, and rode away.” He added that “the way these class-action lawsuits usually work” is that “members of the class get very little. Usually nothing. Our lawyers get a lot. Always….It will be considered a cost of doing business, and like all such costs, it will be passed on to the consumers, who are, of course, the very same people who are allegedly benefiting from the lawsuit.”

And with that, almost before the popular columnist could tell what hit him, he was staring down the barrel of a writ. On August 30 Cates and Katz filed suit against McClellan in federal court in East St. Louis, Ill., seeking $1 million in damages for the libel of having been compared to bank robbers.

Unrepentant, McClellan followed up with a second and equally jocular effort, explaining that the lawyers had misunderstood: although upstanding Illinois might object to bank robbery, “Here in Missouri, we like the James Gang,” as folk heroes from the state’s Great Plains heritage. “So it is with the gallant class-action lawsuit lawyers. Close your eyes and see them the way I see them. They ride into town, file their lawsuits, reach their settlements and then, their saddlebags stuffed with money, they gallop into the night, but as they go, they throw coins to the cheering populace.

“And coins is the operative word, too,” McClellan added, pointing out that on average each of the represented households stood to gain something on the order of 12 cents, compared with $3 million for their lawyers. It is not recorded that Cates and Katz have dropped their suit or been in any other way mollified by this response. Bill McClellan, “Only Ones Who Gain From Class-Action Suits Are The Lawyers”, St. Louis Post-Dispatch, Aug. 27; “Missourians love James Gang and today’s robbers, too”, Sept. 1). Update: Nov. 30 (he criticizes them again, though case is still pending); Feb. 29, 2000 (they agree to drop suit).

November 4 – Bring a long book. It takes New York, on average, seven years to fully adjudicate discrimination cases filed with its Division of Human Rights. One woman in Orleans County spent 14 years in the system before obtaining a $20,000 award, while a complainant against Columbia University was still waiting for a hearing after 11 years. A federal judge has sided with the National Organization for Women in a suit demanding that the agency hire more employees on top of its current 190 to handle the case load; NOW wants that number tripled. (Yancey Roy, “State faulted on rights cases”, Rochester Democrat and Chronicle, Nov. 2 — link now dead).

November 3 – Toshiba flops over. Last Friday’s announcement by Toshiba Corp. that it had agreed to pay a class-action settlement nominally valued at $2 billion over alleged defects in the floppy-drive operation of its laptop computers appears to represent a genuine breakthrough for plaintiff’s lawyers who’ve for years been gearing up a push to extract cash from high-tech companies over crashes, glitches and other subpar aspects of the computing experience. Many still unanswered questions about the new developments:

* Has the glitch led to any problems at all in real-world use? Conspicuously absent from the coverage of recent days has been any word from victims of the glitch saying that on such and such a date they lost important data because of it. Yet if the plaintiffs’ side had such witnesses available, it’s hard to see why they wouldn’t have pushed them forward to public notice by now. Apparently the lawyers, through their expert, have found a way to configure Toshiba laptops so as to replicate data loss under carefully controlled demonstration conditions, but news coverage has not yet probed into the question of how artificial these conditions are or how likely they are to occur to real users who aren’t trying on purpose to get their computers to lose data. The plaintiffs’ theory, which seems rather convenient, is that the data loss is so subtle that people don’t know it’s happening or can’t trace it to the glitch afterward.

* Given the above, who if anyone has suffered damages? Next week Toshiba “will post on its Web site a free and downloadable software patch that eliminates the problem.” And a large percentage of laptop owners never or almost never use their floppy drive, preferring modem transmission of files. Yet all will be entitled to prizes.

* How valuable are those prizes? There’s some talk of refunds for recent purchasers, but presumably most would rather download a software patch than return a computer they like. (Toshibas are popular.) Others will get coupons mostly valued at $100-$225 “for the purchase of Toshiba computer products sold through Toshiba’s U.S. subsidiary”. Usually the face value of a coupon settlement is a highly unreliable guide to what the settlement is actually costing; otherwise a Sunday paper with $30 in grocery coupons in it would sell for $30. Yet Toshiba is taking a $1 billion accounting charge, and pledges to donate unclaimed amounts from the settlement fund to “a newly created charitable organization”. And it’s also agreed to pay a very non-imaginary $147.5 million to a not-so-charitable organization, the lawyers that brought the suit.

* Can the lawyers take their act industry-wide? “On Sunday night, four new suits were filed in U.S. District Court in Beaumont, Texas [where the Toshiba case had been filed only six months ago], against PC makers Hewlett-Packard Co. Compaq, NEC Packard-Bell and e-Machines Inc.” Compaq says there are specific diferences between its machines and Toshiba’s which render the case against it meritless. Pattie Adams, a spokeswoman for eMachines, said her company still hadn’t seen the suit but expressed the view that it. “doesn’t really apply to us…It appears to be about laptops, which we do not have, and the technology is from before we were even established.” As if that would save them in our current legal system! Another news report suggests the lawyers are busily trying to rope in governments as plaintiffs, à la guns-tobacco-lead paint: “federal investigators have attended laboratory demonstrations sponsored by plaintiffs’ lawyers intended to show the occurrence of the alleged defect, these people said. State and local agencies can opt to assert damage claims on their own.”

The law firm involved, Reaud, Morgan & Quinn, of Beaumont, Texas, may not be a familiar name to tech-beat reporters, but it’s quite familiar to those who follow high-stakes litigation. After growing rich on asbestos claims it moved into the tobacco-Medicaid suit on behalf of Texas (Forbes, July 7, 1997; Sept. 21, 1998 and sidebar). It also made the Houston Chronicle‘s list of top ten political donors in Texas (five of whom, all consistent Democratic donors, happen to have represented the state in tobacco litigation for $3.3 billion in fees). Beaumont, which also is home to another of the Big Five Texas tobacco firms, is sometimes considered the most plaintiff-dominated town in the United States. (DISCUSS)

Sources: Toshiba press release, Oct. 29; Terho Uimonen, “Toshiba Settles Floppy Disk Lawsuit”, IDG /PC World News, Oct. 29; Andy Pasztor and Peter Landers, “Toshiba to pay $2B settlement on laptops”, Wall Street Journal Interactive/ZDNet, Nov. 1; Michael Fitzgerald and Michael R. Zimmerman, “PC makers hit with ‘copycat’ suits”, PC Week/ZDNet News, Nov. 1; “More PC lawsuits filed”, AP/CNNfn, Nov. 2 (link now dead); “Laptop Illogic”, Wall Street Journal, Nov. 3.

November 3 – Flag-burning protest requires environmental permits. You’re so angry you want to burn a flag in public? You’ll have to fill out these two environmental permissions first, please, one for the smoke aspect and one for the fire aspect. We don’t think this is a parody. (Vin Suprynowicz, “Levying a Free-Speech Fee”, Las Vegas Review-Journal, Oct. 28 — full column)

November 3 – Welcome RiskVue and Latex Allergy Links readers. Coverage of EEOC protection of illegal aliens is here, and of possible Rhode Island-led suits against glove makers, here.

November 2 – School shootings: descent of the blame counselors. It may seem incredible to Americans, but after the 1996 massacre at Dunblane, Scotland, in which 16 kindergarteners and their teacher were killed, “not a single lawsuit was filed”. How different in Littleton, Colo., West Paducah, Ky., and Jonesboro, Ark., where busy litigators — call them blame counselors? — seem to outnumber grief counselors, aiming suits in all directions: at school districts, entertainment companies, gunmakers, and most controversially the parents of the killers. Many victim families still decline to sue, taking the older view of litigation as an obstacle to forgiveness and community reconciliation; others throw themselves vigorously into their suits as a cause, believing they’re helping expose deep-seated evils of today’s America or at least the negligence of certain bad parents; and then there’s the middle ground represented by one Columbine High School mother who says she’s forgiven the shooters’ parents, but, frankly, now needs the money. (Lisa Belkin, “Parents Suing Parents”, New York Times Magazine, Oct. 31) (see also July 22, 1999 and April 13, 2000 commentaries).

November 2 – “Responsibility, RIP”. Columnist Mona Charen comments on two auto safety suits, one of them the child-left-in-hot-van case discussed in this space Oct. 20. In the other case, $2 million went to the survivors of a Texas man who’d left a truck running on a hill and walked behind it. “You don’t need an owner’s manual to tell you that it’s dangerous to walk behind a running, driverless vehicle on a steep hill. This used to be known as common sense. But so long as juries return such verdicts, the concept of individual responsibility gets hammered ever lower…the trial lawyers’ wallets grow corpulent, and the populace is increasingly infantilized.” (Jewish World Review, Oct. 25 — full column)

November 2 – How the tobacco settlement works. “‘There’ll be adjustments each year based on inflation,’ said Brett DeLange, head of the Idaho attorney general’s consumer protection unit. Plus, ‘If cigarette volume goes down, our payments will go down. If volume goes up, our payments will go up even more.’” Why, it’s like Christmas come early! Of course DeLange denies that this arrangement will in any way dampen the state’s enthusiasm for reducing tobacco use. (Betsy Z. Russell, “Tobacco money gets closer to Idaho”, Spokane Spokesman-Review, Oct. 24 — full story) (see also July 29 commentary)

November 2 – Lockyer vs. keys. “October 12, 1999 (Sacramento) — Attorney General Bill Lockyer today sued 13 key manufacturers and distributors for allegedly failing to warn that their products expose consumers to the toxic chemical lead in violation of Proposition 65.” — thus a press release from the office of the California AG. From time immemorial, it seems, house keys have been made of brass, and brass contains lead. Whatever you do, don’t tell him about the knocker on your front door, or those robe hooks in the bathroom. (press release link now dead)

November 2 – Perkiness a prerequisite? Lawsuit charges local outlet of Just for Feet shoe chain with bias against black workers. Among evidence alleged: store “policy dictating employees should look like Doris Day or ‘the boy next door.’ Company representatives deny the existence of such a policy.” (“Shoe store accused of discrimination”, AP, Las Vegas Sun, Oct. 26 — full story)

November 2 – 80,000 pages served on Overlawyered.com. With help from our Canadian visitors, we hit a new daily traffic record last Thursday. New weekly and monthly records, too. Thanks for your support!

November 1 – New topical page on Overlawyered.com : family law resources. Divorce, custody, visitation, child support, adoptions gone wrong, and other occasions for overlawyering of the worst kind.

November 1 – Not-so-Kool omen for NAACP suit. Apparently unconcerned about retaining the good will of Second Amendment advocates, the National Association for the Advancement of Colored People is suing gunmakers for having catered to strong demand for their product in inner cities (see Aug. 19 commentary). Its potential case, however, is widely regarded as weak — so desperately weak that back on July 19 the National Law Journal reported the civil-rights group as angling to get the suit heard by Brooklyn’s very liberal senior-status federal judge Jack Weinstein because the underlying theories “might not succeed in any other courtroom in America”.

Now there’s another omen that the much-publicized lawsuit is unlikely to prevail: in Philadelphia, federal judge John Padova has dismissed a proposed class action which charged cigarette makers with selling in unusually high volume to black customers and targeting them with menthol brands and billboard ads. To bring a civil rights claim, the judge wrote, “[p]laintiffs would have to contend that the tobacco products defendants offer for sale to African Americans were defective in a way that the products they offer for sale to whites were not.” If a racial angle can’t be grafted onto the legal jihad against cigarette makers, is the same tactic likely to be any more successful when directed at gun makers?

Sources: Sabrina Rubin, “Holy Smokes!”, Philadelphia Magazine, February 1999; Shannon P. Duffy, “Court Urged to Dismiss Menthol Cigarette Class Action”, The Legal Intelligencer, April 8; Joseph A. Slobodzian, “A novel civil-rights lawsuit vs. tobacco industry is dismissed”, Philadelphia Inquirer, Sept. 24, link now dead; Shannon P. Duffy, “Judge Dismisses Smoking Suit”, The Legal Intelligencer, Sept. 24.

November 1 – Mounties vs. your dish. About a million Canadians are said to defy their country’s ban on the use of satellite dishes to receive international programming, though the Mounties’ website warns that violators “can face fines of up to $5,000 and/or up to 12 months in prison”. The ban applies not only to “pirate” watching (where viewers buy stolen code that lets them unscramble signals without compensating the satellite provider) but even to straightforward paid subscriptions to foreign satellite services. The only lawful option is to go through one of a duopoly of Ottawa-approved suppliers (Bell Express Vu and Star Choice). Good news on another front, though: Internet radio is letting listeners bypass the absurd and oppressive laws requiring Canadian content in that medium. Bring Internet TV soon, please! (Ian Harvey, “RCMP threatens a clean-up of illegal dishes”, Toronto Sun, Oct. 13 — full column)

November 1 – “Shoot the middle-aged”. That’s the title of a Detroit News editorial responding to the Michigan House’s unanimous approval of a bill allowing for doubling of criminal penalties when offenses are committed against the young or elderly. (Oct. 23 — full editorial).

November 1 – World according to Ron Motley. Even before tobacco fees, the Charleston-based plaintiff’s lawyer was “worth tens, maybe hundreds, of millions of dollars. But he’s about to get much richer. A billion or two or three richer….Sketching plans that would alarm many corporate executives, the 53-year-old lawyer will reinvest most of his newfound money to finance lawsuits against the makers of lead paint, operators of nursing homes, health maintenance organizations and prescription drug makers.” He calls the businesses he sues “crooks”. “Mr. Motley’s windfall [from tobacco] is likely to exceed $3 billion…’If I don’t bring the entire lead paint industry to its knees within three years, I will give them my [120-foot] boat,’ he says”.

In its flattering profile of the 53-year-old South Carolinian, yesterday’s Dallas Morning News quotes a pair of law profs who hint that the public should really be glad Motley is now personally reaping billions for representing government clients, because next time he sues some huge business it’ll be more of an even match. By that logic, we’d be better off if we let every lawyer who argues a case against, say, Microsoft, amass as much wealth as Bill Gates. Maybe the trial lawyers will figure out a way to make that happen too before long (Mark Curriden, “Tobacco fees give plaintiffs’ lawyers new muscle”, Oct. 31 — full story)

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