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ARCHIVE -- SEPT. 2001
(I)
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September 10 --
"Group Sues Starbucks Over Tea Ingredient". A newly
formed group in Berkeley, Calif. by the name of Council for Education and
Research on Toxics charges that the Tazo Chai tea sold by the Seattle-based
coffee chain contains some quantity of ephedrine, a stimulant found in
the Chinese herb ephedra or ma huang whose use poses hazards to
health. ("Starbucks sued in LA court over alleged tea additive",
AP/KING-5 Seattle, Sept. 8; "Group Sues Starbucks Over Tea Ingredient",
Channel 2000, Sept. 6). Starbucks says that while it does not comment
on litigation, "Starbucks and Tazo believe it is important to confirm for
our customers that ephedrine has never been used as an ingredient in Tazo’s
Chai Tea or any other Tazo product". Lawyers have recently been making
a big business suing over alleged health effects of ephedra consumed as
a dietary supplement: searching
on terms like ephedra
and ma huang
results in a bountiful harvest of lawyer advertising and client-recruitment
pages. Ephedra has long been used in herbal teas and nutritional
supplements, sometimes in trace quantities, other times in high dosages
sought by dieters and athletes deliberately for its medicinal effects,
which are related to those of phenylpropanolamine (PPA), a stimulant long
ubiquitous in over-the-counter remedies until pulled off the market last
fall (see April 6).
"The only purpose of the suit is to get Starbucks to get the ephedrine
out of the product, not to get any money," claims attorney Raphael Metzger,
who filed the suit. While CERT is previously unknown, the same
is not true of attorney Metzger, based in Long Beach, who runs a large
"toxic-tort" practice whose website
is publicizing the Starbucks action (leads to complaint in long PDF document).
"The constitutional right of Californians to pursue and obtain safety could
be an untapped source of riches that plaintiffs' attorneys should consider
on behalf of their clients and the public," Metzger wrote a while back
in the San Francisco Daily Journal regarding the prospect of tort
claims based on the California Constitution's "inalienable rights" provision.
(Civil Justice Association of California "Balance", Q4
1997 -- scroll to "Deep Pocket Dreaming" near bottom).
September 10 --
Japan sued for $1 trillion in reparations. We only thought
there was a postwar treaty settling all claims against the Japanese --
law prof Anthony D'Amato
of Northwestern U. claims to have found a loophole that would let him reopen
the whole thing. "I think we're being conservative," he says of his
$1 trillion monetary demand. "This isn't the first unusual legal
action by D'Amato, who specializes in international law," reports the Chicago
Tribune.
"In 1999 he filed suit seeking unsuccessfully to halt U.S. bombing of the
former Yugoslavia to prevent damage to churches, shrines, monasteries and
sacred relics." (Matt O'Connor, "Suit seeks $1 trillion from Japan for
war", Chicago Tribune, Sept. 6 (reg); complaint
in PDF format; "Japan sued for $1 trillion in reparations", UPI/InfoSpace,
Sept. 6).
September 10 --
Employment class actions: EEOC to the rescue. For trial
lawyers pressing job bias cases, the
key to getting a big employer to offer a jumbo-sized settlement is to get
the case certified as a class action on behalf of minority or female workers
as a group: "Once it's certified, it's difficult for an employer to suck
it up and go to trial. The [financial] risk is too high," says management-side
attorney C. Geoffrey Weirich of the Atlanta office of Paul, Hastings, Janofsky
& Walker. But if plaintiff's lawyers are falling short
on the certification issue they can get a second bite at the apple by persuading
the federal Equal Employment Opportunity Commission to intervene in the
case; the EEOC is held to looser standards in class representation.
"[S]howing up to bail out a plaintiffs' lawyer who ran off the road doesn't
seem like a proper use of the process", according to Fred Alvarez, a former
EEOC commissioner who now represents employers at Palo Alto, Calif.'s Wilson
Sonsini. Plaintiff's lawyers counter that intervention on behalf
of groups of workers is an intended part of the agency's function and occurs
only occasionally, despite a 1996 Forbes article in which an official
of the EEOC's Chicago office endorsed class actions as offering the agency
"a much bigger bang for the buck". (Mike McKee, "Employment Bar at
War Over EEOC Intervention in Workplace Complaints", The Recorder,
Aug.
30). Sample case: Matt Gove, "Harris Teeter sued by black employees",
Atlanta
Business Chronicle, Sept.
7.
September 7-9 --
Judges overturning fewer huge verdicts. The litigation
lobby is always insisting that alarm about excessive damage awards is misplaced
because judges can be relied on to reduce or overturn anything really out
of line. But is that so? A new survey by the National Law
Journal of 100 jury awards exceeding $1 million dating back to 1997
that came under review by trial and appellate courts found that "the rate
of outright reversal has fallen, and the bar has been raised considerably
on what judges find offensive. "Federal and state judges are accepting
numbers that would have been rejected as excessive only a few years ago,"
notes the NLJ. "Jury awards that 'used to make you gag and
choke are being upheld,' says defense counsel Frank Daily of Milwaukee's
Quarles & Brady." Personal injury awards were least likely to
be reversed, while large awards won by businesses against other businesses
fared somewhat less well after trial. Somehow we doubt the folks
at ATLA are going to be ringing their friends in the press about this one
(Margaret Cronin Fisk, "Hard to Shock", "After the Jurors Go Home", National
Law Journal, Aug.
29).
September 7-9 --
Managed care bill: Do as we say.... Notable fact: "the
Patients'
Bill of Rights just passed by the House exempts the 9 million federal
workers, retirees and dependents covered by the federal health plan, including
Congressional employees. ... Tellingly, the House bill also exempts
the 41 million people insured through Medicaid and the more than 50 million
covered through Medicare and other federal programs from the potentially
expensive new mandates and protections." Proponents claim the new
scope for litigation won't drive up costs -- but they sure don't act as
if they believe that (Ira Carnahan, "Do As We Say ...", Forbes,
Sept.
3) (see also Dec. 6, 1999). And:
"Liberals are right: a patients' bill of rights is just a baby step.
But it's a step in the wrong direction," expanding access to pricey experimental
treatments for the middle class while pushing more poorer persons down
into the ranks of the uninsured. (Noam Scheiber, "Daily Express:
Stand Still", The New Republic Online, July
13).
September 7-9 --
Mosh pit mayhem. The mosh pit down front at the
rock concert is a great place to get yourself injured (but you probably
knew that). And it's an equally great place for briefcase-toting
lawyers to descend afterward filing "personal injury lawsuits with promoters,
producers, arenas and sometimes even the musicians themselves as defendants".
Concert promoters say part of the crowd is always eager to enter the mosh
area despite the known risks,
but one plaintiff's lawyer dismisses such talk: "The guy who controls the
microphone controls the crowd," he says. Among rock groups that have
reached confidential settlements after being sued in such cases is the
frenetically anti-capitalist group Rage
Against the Machine, which distributes Noam Chomsky tracts to its fans.
(Robert Wiener, "Rock And Roll Lawsuits", LexisOne, July 31; Anthony DeBarros,
"Injuries surge to high levels", USA Today, Aug. 8, 2000).
September 7-9 --
Watch what you say about lawyers (part XI). Aviation
trial lawyer Arthur Alan Wolk, after winning a record-breaking $480 million
jury verdict against Cessna last month, came in for heated criticism from
readers of AVweb and other general
aviation enthusiast websites (see Aug. 24-26,
Aug.
20-21). Now, reports AVweb, Wolk "has filed a lawsuit against
AVweb, two of its editors and four subscribers. Wolk's suit, filed in a
Pennsylvania court, is critical of statements
made on AVweb. The lawsuit seeks in excess of $100,000 in compensatory
and punitive damages." AVweb says it is evaluating the merits of the suit.
(AVweb Newswire, Sept.
6 (scroll to "On the Fly", near bottom of page)). Update Oct.
12-14 (more on suit). Further update Sept.
16-17, 2002: in July 2002 AVweb capitulated and published on its website
an extensive apology to Wolk, along with an apology from one of the individually
sued posters.
September 6 --
Red-light cameras. A San Diego judge has dismissed 300
traffic tickets issued under a system that "snaps a photo of a red-light
runner and mails a $271 citation to the registered owner of the vehicle,"
$70 of which is kept by a former Lockheed Martin subsidiary that operates
the enforcement system. Such systems have already spread to fifty
cities; critics charge that errors are common and very difficult for the
motorist to fight, and that the company running the computerized cameras
has no financial incentive to reduce the rate of erroneously issued tickets
-- quite the contrary, since it collects a share of the ill-gotten gains.
According to Rep. Dick Armey (R-Tex.), since red-light cameras became a
major source of municipal revenue, many cities have significantly shortened
the duration of yellow lights, a practice that profitably increases the
number of violations for the cameras to catch but worsens the risk of traffic
accidents themselves. It's another wrinkle on the bad old practice
of contingency-fee law enforcement
-- a sure recipe for injustice whether inflicted by public authorities,
private contractors, or the two in combination. ("Judge Dismisses
300 Tickets Spawned by Red-Light Cameras, FoxNews.com, Sept. 5; Alex Roth,
"Ex-worker says firm puts profits over safety; Man testifies that revenue
is main purpose of red-light cameras at intersections", San Diego Union-Tribune,
July
6; Ray Huard and Alex Roth, "Doubt focuses on red-light cameras", San Diego
Union-Tribune, Aug. 17; RedLightLawyers.com;
Eric Peters, "Rigging traffic lights hurts safety", Detroit News,
Aug.
12; OpinionJournal.com, "Big Brother's Camera" (editorial),
July
3) (see also Apr. 8-9, 2002).
September 6 --
Judge Kent: another helping. A Philadelphia environmental
litigator who asks to remain anonymous writes: "I love your stuff on Judge
Kent [the Hon. Samuel Kent, federal judge, S.D. Texas; see Aug.
2, Aug. 3]. I have in my grubby
lawyer hands a Judge Kent order dated June 7, 2001 (entered June 8, 2001)
in Labor Force, Inc. v. Jacintoport Corp. & James McPherson,
Civ. Action No. G-01-058 (opinion
in PDF form courtesy Green Bag). In that opinion, the judge,
among other things, calls the lawyer's motion 'obnoxiously ancient, boilerplate,
[and] inane.' He also refers to it as asinine. ... No URL as
yet, and I don't think it's on Westlaw.
"There are 38 uses of 'asinine' in the allfeds database in Westlaw.
Judge Kent has the vast majority of them. Thank God I'm in PA and
not Texas." (Corrected Aug. 15, 2004: fixed earlier erroneous spelling
of case name).
September 6 --
Reparations talk. "Reparations, so popular a topic in
black-radio discussions and in black newspapers, masquerade as a bonus
check for being black. They are a Trojan horse full of devastating consequences
for the future of black America. Reparations are a dangerous, evil
idea that has to be derailed now before emotions and momentum take American
race relations on a crash course". (Juan Williams, "Get a Check?
No, Thanks", GQ/FrontPage, Sept.)
East Indians, recently arrived, made themselves a power in small business
and science "with organization and planning. They certainly didn't do it
with reparations checks. Blacks could have done it, if for years
we hadn't been following leaders whose motto should be 'Ain't Too Proud
to Beg.'" (Gregory Kane, "Slavery reparations no fix for 'community in
disarray'", Baltimore Sun, Aug.
18). "Europe has indeed played a unique role in the history of slavery.
Slavery has been a universal feature of all societies throughout most of
history. ... What makes Europe unique is that it ended slavery." (Andrew
Kenny, "White is Right", The Spectator (UK), Aug.
25). And the King of Senegal has weighed in, pointing out that
the guilt for slavery as an institution in his part of Africa long antedated
Europeans' arrival (Ellen Knickmeyer, "Senegal's leader blasts idea of
slave reparations", AP/Nando, Aug. 29) (see Aug.
22 and links from there).
September 5 --
"New law would stem abuses in Disabilities Act". H.R.
914, the ADA Notification Act, is a bill introduced by Rep. Mark Foley
(R-Fla.); Sen. Daniel Inouye (D-Haw.) is sponsoring a Senate counterpart.
It would give businesses 90 days to make renovations to their facilities
demanded under the Americans with Disabilities
Act, thus putting a crimp (it's hoped) in the complaint mills by which
lawyers file accessibility complaints by the dozen and then collect legal
fees from target businesses (see Jan.
26, 2000). (Hector Florin, Miami Herald, Aug. 31).
Among South Florida lawyers who have filed many near-identical complaints,
collecting thousands of dollars per defendant in legal fees on settlement,
are William Tucker and Lawrence McGuinness. The Fort Lauderdale Sun-Sentinel
notes, however, that "Tucker works out of a Fort Lauderdale building that
has no disabled parking, a ramp steeper than the law allows, no landing
and a door with a round doorknob. McGuinness' office in Coral Gables
has a curb with no ramp to the front door." (Aug. 26). The
same paper editorializes: "The Americans with Disabilities Act has been
hijacked by trial lawyers who are using it to drum up legal fees." (editorial,
Aug. 28) (via OpinionJournal.com "Best
of the Web").
September 5 --
New York's crazy homeless program. It's the result of
litigation by advocacy groups that have been tying the city in courtroom
knots for years (Heather Mac Donald, "Forbidden Facts", New York Post,
Aug. 21).
September 5 --
Target: trade associations. Two appeals courts in
Washington state have upheld a verdict holding the National Spa and Pool
Institute liable for $6.6 million in damages to a man who broke his neck
diving into a below-ground pool and sued, saying the institute's voluntary
safety standards for pool design should have been stricter. "To protect
its assets, the pool group was forced to file for bankruptcy (it's now
out of it) and sell off its $3 million (net income) trade show. Until
this decision virtually all courts declined to extend product
liability to associations that develop voluntary safety standards in
good faith." (Matthew Swibel, "On the Docket: In Hot Water", Forbes,
July
9 (reg)).
September 3-4 --
"Lawsuit demands AOL stop anti-Islamic chat". "A Muslim
subscriber sued America Online yesterday, claiming that anti-Islamic insults
in AOL's chat rooms violate his civil rights. If successful, the
suit could force the world's largest Internet company to strictly limit
what 30 million members can say in
14,000 chat rooms. ... The suit alleges that by not kicking out the disrupters,
AOL violated its contract with users. But it also claims that under
the 1964 Civil Rights Act, an AOL chat room is a 'public accommodation,'
as is a restaurant or a hotel." (Hiawatha Bray, Boston Globe,
Aug. 31; AP/Yahoo, Aug. 30; Leef Smith, "Suit Says AOL Permits Insults",
Washington
Post,
Aug.
31; BBC;
Robyn Weisman, "AOL Stung by Hate Speech Lawsuit", NewsFactor.com, Aug.
31) (& see Dec. 5-6).
September 3-4 --
Not discriminatory to kick sleeping worker's chair. A
Pittsburgh federal jury has decided that it did not constitute race or
sex discrimination for a supervisor to kick the chair of a sleeping 911
emergency dispatcher to wake her up. The supervisor had said
that he had jostled the chairs of other workers who snoozed on the job.
("911 Boss Cleared In Woman's Kicking Lawsuit", WTAE/Yahoo, Aug. 28).
And Great Britain's Institute of Management has said that privacy provisions
of that country's newly enacted Human Rights Act may restrict an employer's
right to call its employees at home. "'An employer does not have
the right to demand an employee's telephone number unless it is specified
in the contract that the employee has a duty to be available outside normal
working hours,' the institute said. ... The body also said employees are
under no obligation to divulge their addresses except for the purpose of
receiving 'routine correspondence' in connection with their job, such as
salary slips." ("Plagued by calls from the boss at home? Sue
them", Yahoo/Reuters, Aug. 24).
September 3-4 --
Batch of reader letters. On
topics such as Miniver Cheevy's prospective wrongful-birth lawsuit,
the next Cessna, slavery reparations, should doctors turn away lawyers
as patients?; a 2-cent class action refund, and zero tolerance meets domestic
violence. Also: we
recommend a new book.
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