August 2002 archives, part 3


August 30-September 2 – Banish those desk photos of spouse at beach. A few years ago, when a Nebraska graduate student was targeted with a complaint from a university colleague for displaying a photo at his workplace of a woman in skimpy beachwear who happened to be his wife, some assumed it was a fluke case. But it wasn’t. “[D]esktop photographs of bikini-clad girlfriends or bare-chested husbands … could result in sexual harassment claims, lost productivity or a tarnished company image, say employment experts. ‘Employers have a duty to provide a work environment that is not objectionably and subjectively hostile, so the days of pinups in the locker room should be past,’ says John Lowe IV, an attorney in Kegler Brown Hill & Ritter’s Columbus labor and employment practice group.” Yep, they’re perfectly serious (Betsy Butler, “Dress code good strategy for desktop photo display”, Columbus Business First, Aug. 23). (DURABLE LINK)

August 30-September 2 – Intel sued in notorious county. Lawyers have filed a lawsuit seeking class-action status on behalf of personal computer owners “against Intel, Gateway, and Hewlett-Packard alleging the companies misled them into believing the Pentium 4 was a superior processor to Intel’s own Pentium III and AMD’s Athlon. The complaint — Neubauer et al v. Intel et al — was filed June 3 in the Third Judicial Circuit in Madison County, Illinois.” (Tom Mainelli, “Intel, PC Makers Sued Over P4 Performance”, PCWorld.com, Aug. 16; discussion, StorageReview forums). Litigation buffs will immediately recognize the chosen venue, Madison County, Ill., as being perhaps the most celebrated destination in the country for class-action “forum-shopping”, its courts recognized as unusually accommodating to the designs of the lawyers who file such suits. For one recent view of the county’s reputation, see: Adam Liptak, “Court Has Dubious Record as a Class-Action Leader”, New York Times, Aug. 15 (reg) (DURABLE LINK)

August 30-September 2 – Second Circuit: we mean business about stopping frivolous securities suits. The New York law firm of Jaroslawicz & Jaros “faces nearly $200,000 in sanctions after a federal appeals court said it had not received a severe enough penalty for an abusive securities fraud suit.” The 2nd U.S. Circuit Court of Appeals has weighed in three times on the case; among its rulings was that “the presence of some nonfrivolous claims in an otherwise frivolous complaint is not sufficient, standing alone, to establish that either the violation of Rule 11 [the main federal rule providing sanctions against meritless litigation] was de minimis or that the sanctions would create an unreasonable burden, for purposes of overcoming the statutory presumption of the PSLRA [Private Securities Litigation Reform Act of 1995].” (Tom Perrotta, “2nd Circuit Imposes Stiff Fine in Securities Fraud Case”, New York Law Journal, Aug. 27). Mr. David Jaroslawicz, of Jaroslawicz & Jaros, last figured in these chronicles on Jan. 17, 2000, after he was quoted in the New York Observer as hoping to spearhead a wave of sexual-harassment suits against the then-flush firms of New York’s Silicon Alley. (DURABLE LINK)

August 29 – 7.000 missing colors, many of them crisply green. Last week Palm, the handheld computer maker, conceded that although it had advertised its m130 model, introduced in March, as displaying 65,536 different colors or color combinations, the actual number is a mere 58,621 — “approximately 11 percent fewer color combinations than we had originally believed”, as a Palm spokeswoman said. Attorneys with the Philadelphia law firm of Sheller, Ludwig & Bailey promptly filed a lawsuit in Santa Clara, Calif. Superior Court seeking class-action status on behalf of Palm’s customers, traumatized as they no doubt were by this hue shortfall. Legal experts predict that Palm will most likely settle rather than face the legal uncertainties and bad publicity of a protracted suit, but that customers shouldn’t expect anything more than coupons, future discounts and the like. “It’s hard to put a dollar figure on how much you have been damaged because your computer won’t do some particular feat you might never ask it to do anyway,” said Norman Spaulding, a professor at the Boalt Hall School of Law at the University of California at Berkeley. (Elisa Batista, “Palm Handed Suit Over Colors”, Wired News, Aug. 24). (DURABLE LINK)

August 29 – Discrimination suit roundup. “The state of New Jersey has agreed to pay $250,000 to settle claims by three black men who said they were victims of racial profiling by the New Jersey state police. Attorney Stefan Presser of the American Civil Liberties Union of Pennsylvania said the settlement is the largest ever in a civil rights suit in which the victims were neither physically injured nor jailed” and says New Jersey should adopt it a model for other cases where black motorists were stopped and questioned without adequate justification. (Shannon P. Duffy, “New Jersey Settles Profiling Suit for $250,000″, The Legal Intelligencer, Aug. 22). The Taco Bell chain has agreed to pay $160,000 to settle the racial discrimination claims of a St. Louis family who, traveling 24-strong on a chartered bus through Cullman, Ala. in July 1998, waited about 15 minutes after requesting service. Each of the 24 will get about $1,000; the settlement “includes another $111,000 for attorney expenses and more than $17,000 in attorney fees.” (“Taco Bell settles discrimination lawsuit”, AP/NBC13.com, Aug. 26). And New York gubernatorial hopeful Andrew Cuomo, the former federal housing secretary and gun-suit backer, has called for legislation to make discrimination a felony — we’ll sleep a lot sounder knowing errant taco-chain managers are behind bars. (“Cuomo: Make Discrimination a Felony”, News12/The Bronx, Aug. 25). (DURABLE LINK)

August 28 – “Parents suing youth football league”. Texas: “Parents of a fifth-grade boy asked the courts Tuesday to throw a yellow penalty flag on Katy Youth Football over a rule change that switched players to different teams after practice started. In a lawsuit filed Tuesday, an attorney sued the Katy Youth Football league on behalf of his son. The boy had played with his grade-level team before being switched because of age to a junior high-level group with “significantly larger” players. Russell Van Beustring and his wife, Pamela Van Beustring, are asking a judge to order the league to revert to rules in place when children registered in May.” (Jo Ann Zuniga, Houston Chronicle, Aug. 20). (DURABLE LINK)

August 27 – Ford rollover verdict: you read it here first. We usually refrain from running items pointing out that we covered one or another litigation story before the major media picked it up. However, we can’t help noting for the record that we were three years (!) early in beating the New York Times to the facts of the case they gave front page treatment to yesterday, namely Romo v. Ford Motor, “the largest punitive award ever affirmed by an American court in a personal injury case: $290 million to the family of three people killed in the rollover of a Ford Bronco.” (Ford has asked the California Supreme Court to review an intermediate court’s upholding of the award.) We’re glad to see this case finally getting some attention, and glad to find the Times highlighting the same angle of the case that we found most striking, the very strange goings-on in the jury room: one juror recounted to her colleagues a gruesome, omen-like dream revealing Ford’s guilt, while another juror passed on to her colleagues the contents of a badly misremembered “60 Minutes” episode also supposedly establishing the carmaker’s malign state of mind. The Times sees all this as reason to hold a public debate about whether juries’ determinations of such issues as punitive damages are sufficiently reliable to count as law at all. We don’t mind having such a debate — we just wonder why we couldn’t have had it three years ago, when all the same facts were on the public record (see this site’s entries for Aug. 24, 1999 and Sept. 17-19, 1999). (Adam Liptak, “Debate Grows on Jury’s Role in Injury Cases”, New York Times, Aug. 26 (reg))(& update Oct. 24: California Supreme Court leaves verdict intact)

P.S. While on the subject of juror misconduct, Vanderbilt University law professor Nancy J. King found in a study “that modern-day judges, while acknowledging that sleeping jurors are a fairly common sight, do not see them as a serious threat to the fairness of trials.” So comforting! “In June, two members of the jury that convicted the accounting firm [Arthur Andersen] of obstruction of justice told Texas Lawyer, an affiliate of The National Law Journal and law.com, that two colleagues slept through parts of the six-week trial, and that the alleged nappers were in such a fog that one thought NASA was involved in the case and the other believed that prosecution star witness David Duncan was the one on trial.” In a 1987 case, Tanner v. United States, 483 U.S. 107, “a majority composed of the U.S. Supreme Court’s most conservative members” declined to overturn Anthony Tanner’s conviction for mail fraud despite testimony from two jurors that several of their colleagues had dozed off; one juror in his affidavit said “the jury was on one big party,” and that consumption of marijuana, liquor and cocaine at lunch all contributed to later drowsiness. (Gary Young, “Asleep at the Trial”, National Law Journal, Aug. 21). (DURABLE LINK)

August 27 – OxyContin wins one in West Virginia. A judge has dismissed a case filed against Purdue Pharma, maker of the pain medication, on behalf of the estate of a 41-year-old drug abuser who died after crushing the pills and injecting them into her bloodstream. The Charleston Daily Mail editorially draws some lessons about personal responsibility (Aug. 23)(see Apr. 10 and links from there). (DURABLE LINK)

August 26 – “Junk fax” suit demands $2 trillion. The Federal Communications Commission recently took enforcement action against the enterprise Fax.com for (it said) extensively violating the federal law banning unsolicited commercial fax-sending. Last week Silicon Valley entrepreneur Steve Kirsch (more) and another plaintiff filed suits demanding the federal statutory penalty of $500 for each unsolicited fax sent, trebled to a sum he estimates at $2.2 trillion; Kirsch says Fax.com boasts that it sends 3 million faxes a day. The gross national product of all countries on the globe stands at $29 trillion or thereabouts, which would leave the plaintiffs if successful with a claim on something like 7 percent of the earth’s annual output if they could collect it. And although it is not clear how many assets Fax.com will be found to have at the end of a suit, Kirsch is also suing for $500 per offending transmission Fax.com’s telecommunications provider, Cox Communications, as well as its advertisers. “‘We believe that there are companies with substantial assets in this group. We will seek treble damages of $1,500 per unsolicited fax from Fax.com and Cox Communications,’ Kirsch said in a statement.” (Bob Egelko, “2 trillion junk fax suit: Silicon Valley man demands Fax.com end unsolicited messages”, San Francisco Chronicle, Aug. 22; Andrew Quinn, “Lawsuits Seek $2.2 Trillion over ‘Junk’ Faxes”, Reuters/IEEE Spectrum, Aug. 23). Cox Communications is a NYSE-listed company with assets of $25 billion, according to Fortune. More on junk-fax suits as “Powerball for the clever”: July 24, 2001 and links from there. Fax.com’s own website seems to be doing its best to portray the company as dedicated to charitable endeavors for the recovery of missing children, with a remarkable lack of emphasis on how it actually makes its money. (DURABLE LINK)

August 26 – R.I.: no more cheap car leases? “A Rhode Island jury has held a car-leasing company vicariously liable for the negligence of a leased car driver, resulting in a $28 million personal injury award. The verdict against the Chase Manhattan Automotive Finance Corp. — one of the largest personal injury verdicts in the state’s history — followed the Rhode Island Supreme Court’s April ruling that long-term car-leasing companies can be held liable for the actions of leased car operators under the state’s owner and lessor liability statutes.” A lawyer for Chase warned of the impact on consumers: “‘There are about one million people in Rhode Island,’ he said. ‘Assuming only 50,000 people lease their cars, leasing can become prohibitively expensive’ if lessors have to pass on the cost of multimillion-dollar verdicts.” (Annie Hsia, “Car-Leasing Company Held Liable in Crash”, National Law Journal, Aug. 19). Updates: see Mar. 12-14 and May 21, 2003. (DURABLE LINK)

August 23-25 – Prominent French author sued for “insulting Islam”. In France, the latest chapter in the hate-speech-laws vs. free-speech saga: “Prize-winning French novelist Michel Houellebecq is being sued by four Islamic organisations in Paris after making ‘insulting’ remarks about the religion in an interview about his latest book. The action against Mr Houellebecq, 44, is being launched on 17 September by plaintiffs including Saudi Arabia’s World Islamic League and the Mosque of Paris.” The plaintiffs have also brought charges against a literary magazine, Lire, in which Mr. Houellebecq reportedly said that reading the Koran is “so depressing” and called Islam “the stupidest religion”. (“Author sued over Islam ‘insult’”, BBC, Aug. 22)(see Jun. 11-12). Update Oct. 25-27: Houellebecq acquitted. (DURABLE LINK)

August 23-25 – Canada: cash demanded for drug users and panhandlers inconvenienced by film crews. In Vancouver, B.C., which has become a popular site for Hollywood location filming, a group representing sex workers, drug users and homeless people has demanded compensation for film crews’ tendency to displace or disrupt illegal street activity. “The Vancouver Area Network of Drug Users, which represents about 1,000 residents of the seedy Downtown Eastside, has sent a letter demanding compensation to 30 production firms. They include Club Six Prods., currently filming MGM’s ‘Agent Cody Banks’ starring Frankie Muniz and Angie Harmon.” The letter states: “Sex trade workers must be compensated for displacement they experience at your hands in the same manner you would compensate a business if you were to use their locale during operating hours. The same must hold true for homeless people you push from beneath a bridge or doorway, and drug users you move from a park.” The letter also asks for financial compensation for loss of residents’ panhandling opportunities. (Don Townson, “Canadian Hookers Campaign Against Hollywood”, Variety/Yahoo, Aug. 21). (DURABLE LINK)

August 23-25 – Don’t ban peanut butter from schools. A small number of kids have serious peanut allergies, and schools — under pressure from activist parents and fearful of litigation — are beginning to ban the nutritious foodstuff from their cafeterias and halls. Don’t be stampeded, advises columnist Dennis Prager: there would be less overall disruption to children as a group if schools just made a point of keeping a stock of epinephrine, the antidote to allergic shock, on hand (syndicated/Town Hall, Aug. 21). (DURABLE LINK)

August 22 – Defying the link-banners. David Sorkin, “associate professor of law at The John Marshall Law School in Chicago, Ill., is the man behind Don’t Link to Us, a Web site that exists merely to flout what it terms ‘stupid linking policies.’ Sorkin’s site was launched in reaction to recent legal decisions in which courts upheld Web site terms and conditions that prohibited or restricted links,” including a decision in which a Danish court ruled that the NewsBooster site could not link to internal story pages within various news organizations’ sites. (Paul Festa, “Site fights ‘stupid linking’”, ZDNet News, Aug. 21). (DURABLE LINK)

August 22 – Jury clobbers NYC with $21 million slip/fall verdict. “A Manhattan jury has awarded more than $21 million to a woman who tripped over a four-inch protrusion of a broken parking sign and suffered serious head injuries as a result — the largest slip-and-fall verdict ever leveled against the city. Aides to Mayor Bloomberg are calling the verdict excessive, and have vowed to use it to illustrate why limits need to be placed on the city’s liability in personal injury cases.” (Errol Louis, “A Record Liability Verdict Is Brought In Against City”, New York Sun, Aug. 21). More coverage: Susan Huners, “Sidewalk Hazard Costs NYC $21 Million”, National Law Journal, Sept. 12. (DURABLE LINK)

August 22 – We did it all for the public health, cont’d. Although fewer than 300 acres of tobacco are grown in Alabama, “Tobacco farmers in Alabama have received $500,000 from the national tobacco settlement. … [Meanwhile,] only $350,000 is being spent for anti-smoking programs, with most of that aimed at young people. Let that sink in: More money from Alabama’s portion of the national tobacco settlement goes to people who grow tobacco than to those who are trying to get people to kick their tobacco habits.” (“Strange truths” (editorial), Birmingham News, Aug. 21). (DURABLE LINK)

August 21 – Judge questions “shotgun” naming of 282 defendants in trailer-mold case. According to a May 22 report in the Baton Rouge Advocate, the Fifth Circuit has agreed to examine a dispute between Lafayette, La. attorney Barry Domingue and U.S. District Judge Tucker Melancon, who is hearing a case filed by Domingue against no fewer than 282 manufacturers. The lawsuit, which seeks certification as a class action, purports to represent plaintiffs who “unknowingly bought poorly made manufactured homes defective in design, composition and construction. The lawsuit alleges that the defective design allowed condensation to create formation of a toxic mold in the walls, making occupants sick. The companies have denied that they produce an inferior product, and they are seeking dismissal of the case. During a hearing last month, Melancon ordered Domingue to disclose to the court all investigative files and any other materials used to develop the lawsuit. The judge said Domingue would have to explain why he included the 282 companies as defendants, even though many of them haven’t done business in Louisiana and many others have gone bankrupt. The judge said Domingue would be required to pay legal fees of any companies included in the lawsuit without proper justification.” The judge also expressed skepticism toward Domingue’s contention that the manufacturers had collectively conspired to conceal the dangers of mold in trailers and were thus each open to suit. Domingue contends that Judge Melancon has become an advocate for the defense side in the litigation. (Bruce Schultz, “Lawyer attacks critical judge in mobile-home suit”, Baton Rouge Advocate, May 22). (DURABLE LINK)