| ARCHIVE -- DEC. 2000 (III) |
December 29, 2000-January
2, 2001 -- Gambler rebuffed. Reversing a
lower court, the Mississippi Supreme Court has ruled that Robert Shindler
has no cause of action to sue the Grand Casino Tunica for extra winnings
he said he was due "for a series of mini-baccarat games he played on August
22, 1997. Shindler claims that although he wanted to bet $20,000
per hand, casino personnel would only let him bet $5,000 at a time."
(Grand Casino Tunica v. Robert Shindler, Dec.
14).
December 29, 2000-January
2, 2001 -- Makes others pay, doesn't pay himself.
Civil rights activist Al Sharpton says he is planning a class-action lawsuit
against the Burger King Corporation as well as "acts of civil disobedience
that will be organized at targeted Burger Kings across the country."
The vow came after federal court cleared the hamburger chain of charges
that it discriminated against Detroit-based black franchisee La-Van Hawkins
(May 11), who had hired high-profile
litigator Willie Gary to press his case. "U.S. District Court Judge
Marianne Battani in Ann Arbor, Mich., ruled that Hawkins and Burger King
signed a 'clear and unambiguous' agreement in July 1999 barring Hawkins
from suing the company for any problems that arose before then. Battani
also wrote that Hawkins failed to state a claim for relief. " ("Sharpton
Plans Lawsuit Against Burger King", FoxNews.com, Dec.
18).
However, the wherewithal for Sharpton's hyperactive litigation posture
is somewhat mysterious since he claims not to have the money on hand to
pay the $65,000 a jury says he owes former prosecutor Steven Pagones for
defaming him during the Tawana Brawley affair 13 years ago. During
a seven-hour deposition in the ongoing Pagones case, it recently emerged
that Sharpton, a leading New York power broker whose publicity machine
gets him into the papers approximately daily, and whose daughters attend
an expensive private school, "says he owns no suits, but has 'access' to
a dozen or so. He says he owns no television set because the one
he watches in his home was purchased by a company he runs. He says
he has no checking accounts, no savings accounts, no credit cards, no debit
cards ... The only thing he admits to owning is a $300 wristwatch and a
20-year-old wedding ring." ("Sharpton says he has no assets to pay slander
victim", AP/CNN, Dec. 7; Alan Feuer, "Asking How Sharpton Pays for Those
Suits", New York
Times, Dec.
21; "It Depends on What You Mean by 'Own'" (sidebar), Dec.
21). (Update June 22-24,
2001: he finally pays Pagones).
December 29, 2000-January
2, 2001 -- Seats in all parts. "Tiered" stadium-style
seating has been a boon to countless moviegoers who no longer fear having
their view blocked by a tall person in the row in front of them.
But wheelchair activists are targeting such arrangements as a violation
of their right to sit in all parts of
a theater, and the U.S. Justice Department is backing their complaints.
"The ADA has proved a powerful tool on a similar issue -- handicapped seating
in sports stadiums. In 1996, a U.S. District Court judge in Washington
forced builders of MCI Center to halt work in mid-construction to add spaces
so that wheelchair users could see beyond standing spectators and to adequately
disperse wheelchair spaces throughout the arena." (Matthew Mosk,
Ian Shapira, "Buying a Ticket to Court", Washington Post, Dec.
8; Mark Pratt, "Theaters Sued Over Disabled Seating", AP/FindLaw,
Dec.
18). And: "Country music star Garth Brooks is being sued for allegedly
limiting wheelchair seating at a concert so 'pretty women' could sit in
the first two rows. Brooks' attorney denied the allegation, saying
people in the front rows are generally Brooks' friends. A judge ruled
Friday that the complaint can proceed to trial, but said Brooks' liability
is limited because he had no control over concert operations at Seattle's
Key Arena." ("Brooks accused of discrimination", AP/Washington
Post,
Dec.
17).
December 29, 2000-January
2, 2001 -- Enviro litigator: debate belongs in Congress, not courts.
We promise we didn't make up the following quote, though we understand
why it might astound readers familiar with the environmental
movement's record over the past three decades of heading for court
in quest of victories it couldn't win in Congress: "Howard Fox, a lawyer
with the Earthjustice Legal Defense Fund [commenting on a pending high
court case which could invoke the "nondelegation" doctrine to strike down
EPA-set air standards], said that industry should take its battles over
national environmental policy to Congress rather than pressing the Supreme
Court to overturn half a century of legal precedents that allowed Congress
to delegate authority to the regulatory agencies. 'We think EPA's
policy on this issue is a good policy,' said Fox, who is representing the
American Lung Association in the case. 'But if someone wants to have
a debate on public policy, it should be in the Congress, not the courts.'"
(Margaret Kriz, "Trying to Roll Back the Regulators", National Journal,
Nov. 4, not online). See also Gregg Easterbrook, "Green values",
The
New Republic, Nov.
13).
December 26-28 --
That'll teach 'em. In the largest personal-injury
verdict ever handed down against the city of Chicago, a jury has ordered
the city to pay $50 million to the parents of 19-year-old Douglas Gant,
who died of an asthma attack. The ambulance
arrived eight and a half minutes after the mother's 911 call, but lawyers
argued that it should have come sooner and that in the mean time operators
should have given the family instructions on resuscitation, all of which
"constituted 'willful and wanton misconduct,' the standard for erasing
municipal immunity." Just the sort of development sure to attract
talent into the emergency services, at least if you believe the law schools'
invisible-fist theory. (Margaret Cronin Fisk, "911 Incident Brings
$50 Million Award", National Law Journal, Dec.
13)(& letter to the editor from lawyer for Gant, May
7, 2004).
December 26-28 --
Appearance-blind hiring? Green-haired Santas, take
hope! A popular marketing strategy among hotels, restaurants and
other hospitality businesses is to differentiate themselves by style, with
some going for a hip look, others dignified, others conveying a mood of
family fun, and so forth. "But when hoteliers try to control the
look and feel of their personnel, they can run into big legal trouble."
They may be violating employment law
if they want to hire only "lithe" or "athletic-looking" personnel, for
example. However, Colonial Williamsburg, the historical re-creation
in Virginia, did manage to escape being sued after it asked an employee
with a wild dye job to redo the look of her hair to something more "natural-looking".
(Virginia Postrel, "When the 'Cool' Look Is Illegal", Forbes, Nov.
27).
December 26-28 --
Updates. Further developments in stories already
covered in this space:
* The tactic that occurred to various businesses of demanding that their
insurance companies pay the cost of their Y2K
remediation efforts, under "sue and labor" clauses originally arising from
maritime emergencies (Sept. 16, 1999),
has met with a setback in the first court to rule on the issue. Justice
Charles E. Ramos of State Supreme Court in Manhattan ruled that the Xerox
Corp. should not have waited for three years, during which it spent $138
million on the Y2K problem, before notifying its insurer that it was hoping
to pass the costs along. (Barnaby J. Feder, "Court Rules on Year
2000 Claim", New York Times, Dec.
22 (reg)).
* Cameras in the hospital: a New Jersey appeals court has set aside
Cooper Medical Center's rule against legal photography (see Oct.
18) so as to allow a lawyer into its trauma
unit to take pictures of a client (Randall J. Peach, "Court Overrides
Hospital's Ban on Photographs in Intensive Care Unit", New Jersey Law
Journal/Law.com, Dec. 4).
* In the latest sign that "baby Castano" (statewide class action) tobacco
cases are not faring well, a New York court has rejected the idea of certifying
a statewide class of ill smokers to sue tobacco
companies ("NY court rejects smokers' class-action certification",
Reuters/FindLaw, Nov. 30).
December 22-25 --
Victory in Philadelphia. "A federal judge yesterday
dismissed Philadelphia's lawsuit against gun
manufacturers, ruling that the city and several civic groups that joined
the suit did not have legal standing to sue." Even if the plaintiffs
had survived the standing issue, declared federal judge Berle M. Schiller,
their "novel legal theories" would have failed as a matter of law.
"The city's drive to sue gun manufacturers began three years ago, under
Mayor Edward G. Rendell. However, Rendell, who has ambitions to run for
governor in 2002 in a state [Pennsylvania] that is famously pro-gun rights,
eventually balked at filing a suit." His successor as mayor, John
Street, did proceed to sue. Many other cities' gun suits have also
been dismissed, most recently Chicago's. (Frederick Cusick, "Court rejects
city gun lawsuit", Philadelphia Inquirer, Dec. 21).
December 22-25 --
Suits even ATLA admits are frivolous dept. An inmate
at a Texas prison sued Penthouse magazine, saying its recent photo
spread of presidential accuser Paula Jones was insufficiently pornographic.
Federal judge Sam Sparks dismissed the suit and fined the prisoner $250
for frivolous litigation, adding to his opinion a 12-line poem which concluded:
"Life has its disappointments. Some come out of the blue/ But that doesn’t
mean a prisoner should sue." ("Dissatisfied Customer", Reuters/ABCNews.com,
Dec.
20)
December 22-25 --
Britain's delicate soldiery. The chief of the British
military staff, General Sir Charles Guthrie, has delivered a stinging attack
on "what he called a culture of 'risk aversion', warning of the prospect
of young officers being sued by their platoons for leading men into action
which could lead to death or injury. ... In a swipe at the 'litigious nation'
Britain was becoming, Sir Charles expressed surprise that policemen involved
in the Hillsborough football disaster were awarded compensation for the
horrors they had to cope with. ... He added: 'But what really concerns
me about the creeping advance of litigation is that it will breed a cautious
group of leaders who may step back from courageous decisions for fear that
they will be pursued through the courts if it all goes wrong. ... There
is a culture of risk aversion developing in society which is anathema to
servicemen. We are not foolhardy but our profession requires a degree of
decisiveness, flair and courage which sits badly with some of the more
restrictive practices of modern employment legislation.'" In particular,
Guthrie assailed the idea recently floated by figures within British officialdom
(see Sept. 29, Oct.
16) that the military should be compelled to accept disabled
recruits: "we need to guard against such ill-conceived ideas in future".
(Richard Norton Taylor, "Defence chief lays into culture of 'risk aversion'",
The
Guardian (UK), Dec.
20). ("Armed Forces 'under threat from human rights legislation'" (text
of speech), Daily Telegraph, Dec. 21; Michael Smith, "Guthrie attacked
over ban on disabled", Daily Telegraph, Dec. 21; "General alert"
(leader/editorial), Dec. 21). And the U.K. defense ministry has announced
that the noise of military brass bands, as well as that from gunfire during
infantry training exercises, is in violation of occupational-safety regulations
safeguarding workers from excessive noise. "'One solution would be
to provide ear protectors during training, but then soldiers couldn't hear
their sergeant major giving orders,'" said a spokesman. ("British
Army Bands May Have to Pipe Down", Reuters/Excite, Dec. 21).
December 22-25 --
Not pro bono, not nohow. The roundtable discussion
in the November Harper's on slave reparations lawsuits (see Oct.
25, July 14) was going along quite
merrily, and then, as American Lawyer tells the tale, "came a conversation-stopper,
when one panelist had the nerve to suggest that the lawyers toil without
pay:"
Alexander Pires, Jr.: So would you all work for free?
Dennis Sweet: What?
Richard Scruggs: Um.
Willie Gary: Clients sometimes try to negotiate me down to 10 percent
on a case, and I say, "Why would you want me working unhappy for you?
[If I'm unhappy,] I'll get you 100,000 bucks. If you got me happy,
I'll get you 2 million."
Pires: Maybe I'm wrong.
Jack Hitt (moderator): I guess that issue's resolved. (Harper's,
November; quoted in American Lawyer, Dec. 2000)
December 22-25 --
Welcome visitors. Among the many personal websites
linking to Overlawyered.com: Ellen's
Place, Jocelyn Payne, Whoozyerdaddy (Oct. 10), Carl
Riegel and Melissa Dallas, Paul Falstad, and Frank Cross (Siskiyou
County (Calif.) Amateur Radio -- Aug. 3).
December 21 --
Errin' Brockovich? "An arbitrator in Ventura
County, Calif., ruling on a legal malpractice case involving a law firm
made famous by the film 'Erin Brockovich',
found that Brockovich's testimony in the arbitration proceeding 'was hardly
credible'," notes the Wall Street Journal's Opinion
Journal. Former client Bilal Baroody had sued the law firm of
Masry and Vititoe after losing more than $400,000 in a real estate deal
on which it had represented him. Arbitrator Jeffrey Krivis wrote
that the Masry/Brockovich firm had been "preoccupied with other significant
matters" during the episode, which occurred while the firm was litigating
the Hinkley, Calif. toxic case portrayed in the Julia Roberts movie.
"[Faulty representation] is evidenced not only by the poor result, but
also by the firm's overall lack of professionalism; by the firm's putting
its own interests above those of the client; and by the firm playing fast
and loose with the rules of professional conduct," wrote Krivis.
Partner Ed Masry criticized the findings as mistaken and as reflecting
the arbitrator's excessive credence in Baroody's witnesses; it is not known
whether his professional liability insurer will appeal. Moreover,
"a claim isn't necessarily because you did something wrong," Cathy Hastings,
insurance manager for the State Bar of California, told a reporter. "It's
only because someone decided to sue you." That last strikes us as
a noteworthy concession from a bar association, and we just wish it would
be forthcoming more often when the topic was something other than claims
against lawyers themselves. (Brad Smith, "Law firm made famous by
film ruled negligent in case", Ventura County Star, Dec.
13).
December 21 --
ADA requires renting to addiction facility. A jury
has found that the port of Baltimore violated the Americans
with Disabilities Act when it declined to lease berth space to a ship
housing a residential treatment program for recovering drug addicts.
Officials of the Maryland Port Administration had considered a working
port an unsuitable location for such a facility. The jury did turn
down the drug program's request for millions of dollars in damages, however.
Drug users in treatment programs are deemed disabled under the ADA and
enjoy its protection. (Kate Shatzkin, "Judge orders long-term lease
for ship treating drug addicts", Baltimore Sun, Dec. 12).
