March 2002 archives, part 3


March 29-31 – British judge rejects hot-drink suits. U.K. lawyers had hoped to replicate the success of the celebrated American case in which a jury voted Stella Liebeck $2.7 million (later reduced to just under $500,000, and settled out of court) after she spilled coffee in her lap. However, on Mar. 27 High Court Justice Richard Field ruled against lawsuits by 36 patrons whose lawyers had claimed that the burger chain failed to warn of risks of scalding, “served drinks that were too hot, [or] used inadequate cups … ‘I am quite satisfied that McDonald’s was entitled to assume that the consumer would know that the drink was hot and there are numerous commonplace ways of speeding up cooling, such as stirring and blowing,’ the judge said.” (“British Judge Rules McDonald’s Not Liable for Hot Drinks That Scald”, AP/TBO, Mar. 28; “Judge rules against McDonald’s scalding victims”, Daily Telegraph, Mar. 27).

March 29-31 – Florida’s ADA filing mills grind away. The clutch of Miami lawyers who’ve been making a tidy living filing disabled-accommodation claims against local entrepreneurs are moving their way up into central Florida, where they are suing tourist businesses along interstate corridors, reports the St. Petersburg Times (see July 20, 2001 and links from there). One motel owner hit with a complaint has agreed to pay off the plaintiff lawyer’s hefty “fee” in installments, but can’t tell a reporter how big it is, because as part of the settlement he is forbidden to disclose the amount. (“Big winners in disabled crusade? Lawyers”, St. Petersburg Times, Mar. 24).

March 29-31 – The lawyers who invented spam. “On April 12, 1994, Laurence Canter and Martha Siegel, two immigration lawyers from Arizona, flooded the Internet with a mass mailing promoting their law firm’s advisory services.” Widely reviled at the time, Canter is still quite unapologetic: “Yes, we generated a lot of business. The best I can recall we probably made somewhere between $100,000 to $200,000 related to that — which wasn’t remarkable in itself, except that the cost of doing it was negligible.” (Sharael Feist, “Spam creator tackles the meaty issue”, ZDNet News, Mar. 26).

March 27-28 – Judge orders woman to stop smoking at home. In Utica, N.Y., Justice Robert Julian has ordered Johnita DeMatteo, if she wants to continue visitation rights with her 13-year-old son, to stop smoking in her home or car, even in the boy’s absence. “While similar rulings have been made in cases where children are in poor health, Julian’s ruling is apparently the first involving a healthy child who is not allergic to smoke” or suffer from a condition like asthma that would be worsened by it. (Dareh Gregorian, “Judge Bars Mom from Smoking”, New York Post, Mar. 26; Samuel Maull, “Judge Imposes Smoking Ban on Mother”, AP/Washington Post, Mar. 25)(see Oct. 5 and Nov. 26, 2001). Following the publication of a new study suggesting the possibility of a link between smoking and sudden infant death syndrome, anti-smoking activists are excited to think they may now have the leverage needed to obtain legal measures against smoking by parents in homes. “Ms. [Gail] Vandermeulen of [Ontario] Children’s Aid said attempts to curb smoking in the home have so far proved unworkable. In 1999, for example, the association drew up a policy trying to keep foster parents from smoking. ‘It caused quite a controversy; people felt they had a right to do what they want to do in their own homes,’ Ms. Vandermeulen said. (Carolyn Abraham, “Secondhand smoke linked to SIDS”, Toronto Globe & Mail, Feb. 21). And anti-smoking activists, in a report financed by the government of California, are demanding that an “R” rating be attached to movies in which anyone smokes, putting Golden Age Hollywood films off limits to the underage set unless they drag an adult to the theater with them (“Anti-smoking groups call for movie ratings to factor in tobacco”, Hollywood Reporter, Mar. 12; “The Marlboro woman” (editorial), The Oregonian, Jan. 28 (Univ. of Calif.’s Stanton Glantz)). (DURABLE LINK)

March 27-28 – “The American Way”. Thanks to James Taranto at WSJ “Best of the Web” (Mar. 26) for this pairing of quotes:

* “They evil ones didn’t know who they were attacking. They thought we would … roll over. They thought we were so materialistic and self-absorbed that we wouldn’t respond. They probably thought we were going to sue them.” — President George W. Bush, Mar. 21.

* “Whether or not we invade Iraq to topple Saddam Hussein, let’s go about this the American way. Let’s sue him.”– Nicholas Kristof, New York Times (reg), Mar. 26.

March 27-28 – Reparations suits: so rude to call them extortion. What happened on Wall Street when the first three major U.S. companies were named in lawsuits demanding reparations for slavery? “In afternoon New York Stock Exchange trading, Aetna shares were up 44 cents at $37.78, CSX shares were up 66 cents at 37.55, and FleetBoston shares were up 24 cents at $35.38.” Should we interpret that as a recognition of the frivolous nature of the suits, or as investors’ vote of sympathy for the first extortion targets among many more to come? (Christian Wiessner, “Reparations Sought From U.S. Firms for Slavery”, Reuters/Yahoo, Mar. 26; “Suit seeks billions in slave reparations”, CNN, Mar. 26; text of complaint in PDF format, courtesy FindLaw; James Cox, “Aetna, CSX, FleetBoston face slave reparations suit”, USA Today, Mar. 24). Reparations activists are shrewdly structuring their meritless suits as guilt-seeking missiles, aimed at corporations nervous about their image and, coming up, the juiciest target of all: elite colleges and universities. At Princeton, for example, an early president of the college was recorded as owning two slaves at his death, and “numerous trustees and antebellum-era graduates owned slaves.” Reason enough to expropriate Old Nassau — get out your wallets, alums. (Andrew Bosse, “Reparations scholars may name University in lawsuit”, Daily Princetonian, Mar. 12; Alex P. Kellogg, “Slavery’s Legacy Seen in the Ivory Tower and Elsewhere”. Africana.com, Aug. 28, 2001) (see Feb. 22).

“It’s never about money,” lawyer Alexander Pires of the Reparations Coordinating Committee said last month. (Michael Tremoglie, “Reparations — ‘It’s Never About Money'”, FrontPage, March 4). “To me it’s not fundamentally about the money,” said radical Columbia scholar Manning Marable, who is also helping the reparations effort. (Kelley Vlahos Beaucar, “Lawsuit Chases Companies Tied to Slavery”, FoxNews.com, Mar. 25). Translation: it’s about the money. And next time you are inclined to be overawed by the reputation of Harvard Law School, consider that an ornament of its faculty, Prof. Charles Ogletree, not only is a key adviser to the reparations team but also co-chairs the presidential exploration committee of buffoon/spoiler candidate Al Sharpton, whose name will be forever linked with that of defamation victim Steven Pagones (see Dec. 29, 2000). (Seth Gitell, “Al Sharpton for president?”, Boston Phoenix, Feb. 28 – Mar. 7). (DURABLE LINK)

March 27-28 – Why your insurance rates go up. To the Colorado Court of Appeals, it makes perfect sense to make an auto insurer pay for a sexual assault that took place in a car. (Howard Pankratz, “Court: Attack in car insured”, Denver Post, Mar. 15). Update Oct. 15, 2003: state’s Supreme Court reverses by 4-3 margin.

March 25-26 – Web speech roundup. The famously litigious Church of Scientology has had some success knocking a major anti-Scientology site off the Google search engine (the offshore Xenu.net, “Operation Clambake”) by informing Google’s operators that the site violates copyrighted church material under the Digital Millennium Copyright Act. (Declan McCullagh, Google Yanks Anti-Church Sites”, Wired News, Mar. 21; “Google Restores Church Links”, Mar. 22; John Hiler, “Church v Google, round 2″, Microcontent News, Mar. 22) (via Instapundit)(see Mar. 19, 2001). The National Drug Intelligence Center, a unit of the U.S. Department of Justice, acknowledged in December that it monitors more than 50 privately operated websites that provide information about illegal drugs. In a report, the Center warned that many such sites include material “glamorizing” such substances or are “operated by drug legalization groups” with an aim to “increase pressure on lawmakers to change or abolish drug control laws.” Yes, it’s called “speech” to you, buddy (Brad King, “DOJ’s Dot-Narc Rave Strategy”, Wired News, Mar. 13; “Government Admits Spying on Drug Reformers”, Alchemind Society, Mar. 15; National Drug Intelligence Center, “Drugs and the Internet”, Dec. 2001; more on what DoJ calls “offending” websites).

Companies continue to wield threats of litigation with success against individuals who criticize them on investor and other message boards: “Dan Whatley …lost a $450,000 defamation lawsuit for statements he had made about a company called Xybernaut on an Internet message board. He said he didn’t even know the suit existed.” (Jeffrey Benner, “Online Company-Flamers: Beware”, Wired News, Mar. 1). The Texas Republican Party recently threatened legal action against a parody website aimed at calling attention GOP links to the failed Enron Corp., but succeeded only in giving the site’s operators far more publicity than they could have gotten in any other way (Eric Sinrod (Duane Morris), “E-Legal: Republican Party of Texas Goes After Enron Parody Web Site”, Law.com, Mar. 5). The Canadian government has demanded that pro-tobacco website Forces Canada cease using a version of the national flag’s maple leaf (which turns out to be a trademarked logo) as a design feature, claiming it could confuse viewers into thinking the site is officially sanctioned (Joseph Brean, “Take Canadian flag off Web site, government tells smokers’ group”, National Post, Jan. 30). And the Electronic Frontier Foundation along with law school clinics at Harvard, Stanford, Berkeley, and the University of San Francisco have launched the new Chilling Effects Clearinghouse, aimed at assisting site owners worried about being accused of violating copyrights or trademarks. It includes special sections devoted to fan sites, poster anonymity and other issues, and publishes examples of lawyers’ letters commanding site owners to cease and desist, popularly known as nastygrams. (Gwendolyn Mariano, “Site reads Web surfers their rights”, Yahoo/CNet, Feb. 26). (DURABLE LINK)

March 25-26 – La. officials seek oyster judge recusal. “The Louisiana Department of Natural Resources is asking a state district judge to remove himself from hearing oyster lease damage cases because he has already awarded a former client and the client’s family almost $110 million from two previous cases. Monday, state District Judge Manny Fernandez is set to begin hearing more lawsuits claiming the Caernarvon Freshwater Diversion damaged oyster leases in St. Bernard Parish. The state says at least one plaintiff in the case is a former client of Fernandez’s and that man’s family and related companies received damage awards in recent Fernandez decisions. … The upcoming case is the latest in a string of oyster damage suits that, if upheld on appeal, will cost the state more than $1 billion, according to the state’s motion.” (Mike Dunne, “DNR asks judge to step down”, Baton Rouge Advocate, Mar. 16). (DURABLE LINK)

March 25-26 – Tribulations of the light prison sleeper. David Wild, serving a sentence for murder at a medium security prison in British Columbia, is asking C$3 million in damages over what he calls the prison’s “inhumane” practice of conducting head counts in the middle of the night, which “has caused him to lose a full night’s sleep 509 times over five years.” In particular, Wild’s suit “says prison guards acted thoughtlessly and carelessly by rattling door knobs, stomping down stairs, turning on lights and talking loudly on two-way radios in the middle of the night.” Federal Court Justice James Hugessen has already ruled that the case can go forward, rejecting the Canadian government’s attempt to get it thrown out as frivolous or vexatious. (Janice Tibbetts, “Prison guards wake me up too much, murderer claims in $3.1M lawsuit”, Southam/National Post, Mar. 12). (DURABLE LINK)

March 22-24 – “O’Connor Criticizes Disabilities Law as Too Vague”. Another noteworthy public speech from Supreme Court justice Sandra Day O’Connor on a topic dear to our heart, namely the way the Americans with Disabilities Act created a massive new edifice of rights to sue without making clear who was actually covered by the law or what potential defendants had to do to comply. Law professor Chai Feldblum, who played a key role in guiding the law to passage while with the American Civil Liberties Union’s Washington office, counters by saying that its backers were not rushed and devoted much care and attention to drafting the bill’s provisions. Note that this does not actually contradict the charge of vagueness, but only Justice O’Connor’s charitable assumption that the vagueness was inadvertent; it is consistent with our own long-voiced opinion that the bounds of the law were made unclear on purpose. (Charles Lane, Washington Post, Mar. 15). For the Justice’s comments last summer on the relation between contingency fees, class actions and the litigation explosion, and on zero-tolerance policies, see July 6, 2001. (DURABLE LINK)

March 22-24 – Lawyers stage sham trial aimed at inculpating third party. Arizona bar authorities say opposing lawyers in a medical malpractice case cut a secret deal in which the lawyers for the physician defendant “promised not to object to any of the plaintiffs’ evidence in return for the plaintiffs’ promise to dismiss the case before the jury began deliberations.” A second defendant, Scottsdale Memorial Hospital, had already been dismissed from the case on summary judgment, and for the plaintiffs the point of the maneuver “was to create a record that would help them in seeking reconsideration of the summary judgment in favor of the hospital”. Both parties were aware that the physician defendant’s resources were insufficient to pay the claim if successful. The trial judge had been suspicious of the plaintiffs’ motion to withdraw the case, and later discovered the secret agreement when considering their motion to reconsider the summary judgment in favor of the hospital.

The state bar of Arizona brought a disciplinary action against Richard A. Alcorn and Steven Feola, who had represented the doctor. (The plaintiff’s attorney involved in the deal, Timothy J. Hmielewski, is from Florida). A hearing officer recommended against punishing the two, “concluding that the lawyers had a ‘good faith belief’ that they had no duty to disclose the secret pact”. However, both a disciplinary panel and the Arizona Supreme Court disagreed, and the latter ordered Alcorn and Feola suspended from practice for six months. It “concluded that the scripted trial and prearranged dismissal worked a serious fraud on the court and the public.” The trial judge had also “ordered all the attorneys involved to pay a $15,000 fine each for committing a fraud on the court and duping the court into conducting ‘a mock trial at the taxpayers’ expense.’ That sanction was affirmed on appeal.” (“‘Sham Trial’ Slammed, ABA Journal eReport, Mar. 8; In re Alcorn, Ariz. No. SB-01-0075-D.) (DURABLE LINK)

March 22-24 – Arsenic: one last dose? Last year some environmental groups did their best to make the public think that by pulling back the Clinton administration’s last-minute arsenic rules the incoming Bush White House was trying to let “polluters”, specifically the mining industry, get away with dumping the poison into town drinking water supplies. “This decision suggests the Bush Administration is caving to the mining industry’s demands to allow continued use of dangerous mining techniques,” said Sierra Club executive director Carl Pope. (Sierra Club release, Mar. 20, 2001). “This outrageous act is just another example of how the polluters have taken over the government,” said Natural Resources Defense Council senior attorney Erik Olson. (NRDC release, Mar. 20, 2001). Critics of the stringent Clinton rule said its real victims would be ratepayers and taxpayers in the Southwest where municipal water systems would be forced to spend huge amounts to remove traces of naturally occurring arsenic that had been causing no evident health effects (see Sept. 11, 2001 and links from there).

So who was right? The Bush people ran into a p.r. disaster and soon backed down, but this week’s L.A. Times report from Albuquerque, N.M., which has more arsenic in its water than any other big American city, suggests that the enviros won their victory on the issue by misleading the public. Pretty much everyone the paper talked to in Albuquerque, from the Democratic mayor on down, dislikes the new standard: “many people here say the rule will do little more than cost the city $150 million, and Albuquerque and the state of New Mexico are suing to block it.” Did mining operations cause the city’s high arsenic levels? No, “volcanoes and lava flows are responsible”. (Elizabeth Shogren, “Albuquerque Battles to Leave Arsenic in the Water”, L.A. Times, Mar. 18). See also Robert McClure, “Mining, arsenic rules are next on Bush’s list”, Seattle Post-Intelligencer, Mar. 21, 2001: “Virtually all arsenic in drinking water is naturally occurring.” Mining companies wind up being affected indirectly by drinking water standards because of rules that treat mine runoff water as pollution if it flunks drinkability standards, even (absurdly) if the natural occurrence of substances like arsenic in the soil meant that the water would not have met the standard with or without mining operations. (More: Nick Schulz, “Greens vs. Poor People”, TechCentralStation, Nov. 6; Jonathan Adler, “Wrong way on water”, National Review Online, Nov. 13). (DURABLE LINK)