October 2002 archives, part 2


October 18-20 – EEOC: employer must accommodate “Church of Body Modification” beliefs. Massachusetts: “Last year Costco Wholesale Corp. fired Kimberly M. Cloutier of West Springfield for refusing to remove [her eyebrow] ring. She filed a $2 million suit against the corporation. Cloutier, 27, belongs to the Church of Body Modification, and maintains that her piercings, which include several earrings in each ear and a recently acquired lip ring, are worn as a sign of faith and help to unite her mind, body and soul. ‘It’s not just an aesthetic thing,’ Cloutier said. ‘It’s your body; you’re taking control of it.’

“Cloutier filed suit against Costco in Springfield’s U.S. District Court after a finding in May by the U.S. Equal Employment Opportunity Commission that Costco probably violated religious discrimination laws when its West Springfield store fired Cloutier in July 2001. The commission’s area director in Boston, Robert L. Sanders, determined that Cloutier’s wearing of an eyebrow ring qualified as a religious practice under federal law, and that Costco refused to accommodate Cloutier.” (Marla A. Goldberg, “Eyebrow ring, firing spark $2 million suit”, MassLive/ Springfield Union-News, Oct. 16) (& see Megan McArdle, Oct. 21, and reader comments).Update Dec. 11, 2004: First Circuit federal appeals court grants summary judgment in favor of store. (DURABLE LINK)

October 18-20 – U.K.: “Dr. Botch” sues hospital for wrongful dismissal. “A surgeon who was struck off the medical register after being held responsible for the deaths of four women and the maiming of six others is suing his former hospital for wrongful dismissal. Steven Walker, nicknamed ‘Dr Botch’, is claiming up to £100,000 in compensation for lost wages and ‘unfair’ treatment after being sacked by the Victoria Blackpool Hospital in Lancashire last November.” (Rajeev Syal and Hazel Scotland, “‘Dr Botch’ issues writ against hospital in claim for £100,000″, Daily Telegraph (UK), Sept. 22). (DURABLE LINK)

October 18-20 – Enron: “Who Enabled the Enablers?”. “Congressional investigators and plaintiffs’ lawyers are closing in on Enron Corp.’s so-called enablers — the banks that made Enron’s suspect deals possible. But the lawyers on those deals haven’t received much attention. Yet.” (Paul Braverman, “Who Enabled the Enablers?”, The American Lawyer, Oct. 8). See also Otis Bilodeau, “Enron Report Casts Harsh Light on Lawyers”, Legal Times, Sept. 30; Otis Bilodeau, “More Lawyers Snared in Enron Trap”, Legal Times, Sept. 3; Susan Koniak, “Who Gave Lawyers a Pass?”, Forbes, Aug. 12. (DURABLE LINK)

October 16-17 – Ohio’s high-stakes court race. A key race to be decided at the polls next month could challenge the four-to-three margin by which a bloc of activist (to say the least) judges currently control the Ohio Supreme Court. Legal reformers’ hopes are riding on Republican Lt. Gov. Maureen O’Connor, running for a vacant seat on the court. Her opponent, Democrat Tim Black, “backed heavily by trial lawyers and labor unions,” is considered likely to vote with the current court majority (its deplorable record) which has expanded liability in many unprecedented ways, struck down democratically enacted tort reform and revived the city of Cincinnati’s lawsuit against the gun industry. (Jim Siegel, “Black vs. O’Connor could change Ohio Supreme Court”, Gannett/Newark, Ohio Advocate, Oct. 14). (DURABLE LINK)

October 16-17 – “Inundations of Electronic Resumes Pose Problems for Employers”. Employers are deluged with resumes arriving by email as well as on paper, each of which represents both a paperwork obligation and a potential source of liability. “Under the current federal standard, anyone who submits a resume electronically is a job applicant. Even people who are not looking at any job in particular or are clearly unsuited — say, a high school student applying for the position of chief executive — qualify. In and of itself, this would not be a concern, but the government also requires every company with more than 100 employees to track the race, gender and ethnicity of every one of these so-called job applicants.” Plaintiff’s lawyers can also demand that a defendant company produce these applications, and then proceed to troll through them for patterns suggesting disparate rejection of protected groups.

With the rise of Internet job postings, the numbers have exploded: “The Boeing Co. has projected that it will receive about 1.3 million resumes this year, compared with last year’s mere 790,000 resumes. Lockheed Martin Corp. has said it gets about 4,000 resumes a day, or upwards of 1.4 million annually.” “I know of a company that keeps a warehouse in Salt Lake City just to store resumes,” says chairwoman Cari Dominguez of the Equal Employment Opportunity Commission. “They’re just so afraid of throwing them away.” For two years the EEOC has been studying how to ease employers’ retention burdens by updating the definition of applicant, but it still hasn’t acted. (Tamara Loomis, New York Law Journal, Sept. 25). (DURABLE LINK)

October 16-17 – “Patient sues hospital for letting him out on night he killed”. Australia: “A man who stabbed his prospective sister-in-law to death hours after being discharged from a psychiatric hospital is suing Newcastle health authorities for damages.” Attorney Mark Lynch said that his client “should be ‘compensated for his premature discharge’ and the tragic events that followed.” After murdering Kelley-Anne Laws in 1995, Kevin William Presland, now 44, spent 2 years in jail and a psychiatric institution. (Leonie Lamont, “Patient sues hospital for letting him out on night he killed”, Sydney Morning Herald, Oct. 15). (DURABLE LINK)

October 16-17 – “Law to Protect Debtors Can Be a Windfall for Lawyers”. Mutiny among the bounty-hunted dept.: The Fair Debt Collection Practices Act is a federal law passed in 1977 to combat harassment and other abuses in debt collection. “In the last decade, the law has also given rise to what some say is an unintended consequence: thousands of federal lawsuits taking issue with the wording of collection letters. …..Successful plaintiffs in these cases are entitled to $1,000, but their lawyers can collect vastly larger sums,” such as $40,000 or $50,000 if the defendant resists, even if the dispute concerns only an arcane matter of wording. Federal judge Gerard L. Goettel has criticized the trend, noting, “There is nothing in the act to suggest that it was intended to create a cottage industry for the production of attorneys’ fees.” “Plaintiffs’ lawyers obtain leads for such suits by scouring the dockets in small claims courts for collection actions and by savvy questioning of people seeking to file bankruptcy actions, [Indianapolis lawyer Dean R. Brackenridge, who represents collection agencies and lawyers,] said. ‘It is oftentimes like Christmas morning,’ he said, imagining the scene in the bankruptcy lawyers’ offices. ‘They’re opening up a grocery sack of collection letters that may give rise to these lawsuits.'” (Adam Liptak, “Law to Protect Debtors Can Be a Windfall for Lawyers”, New York Times, Oct. 6). (DURABLE LINK)

October 16-17 – New York tobacco-fee challenge, cont’d. The Albany paper reports on Judge Charles Ramos’s probe into whether lawyers who helped handle the state of New York’s copycat suit in the tobacco litigation are entitled to an arbitration award of $625 million in fees (see Jul. 30-31). “The New York firms [asking a collective $14,000 an hour for their services] were politically well connected and regular campaign contributors to both Democrats, trial lawyers’ traditional allies, and to Republicans, including [former attorney general Dennis] Vacco and Gov. George Pataki. The Albany firm’s senior partner, Dale Thuillez, represented Pataki’s first inaugural committee. … Since the settlement, the firms have given a total of more than $200,000 to the campaign war chests of both parties.” (Andrew Tilghman, “Tobacco case legal fees under fire”, Albany Times-Union, Oct. 14). (DURABLE LINK)

October 15 – Incoherence of sexual harassment law. The case of men subjected to sexual taunts at the workplace by other men — have they suffered sexual harassment in the law’s eyes, or no? — reveals the lack of any real logical coherence in our current scheme of sexual harassment law. Several law profs seem to think that by taking due note of this incoherence they demonstrate the need to extend the scope of harassment law yet further, to suppress yet more forms of workplace speech and social interaction than currently. (Margaret Talbot, “Men Behaving Badly,” New York Times Magazine, Oct. 13)(reg)(see also Mark Kleiman blog, Oct. 13). In the case of Burns v. City of Detroit, still working its way through the courts per the latest we can find on Google, Michigan judges are expected to address the question of whether some forms of speech penalized by the current state of harassment law are in fact protected by the First Amendment to the Constitution. (Kingsley Browne, “Harassment law chills free speech”, Detroit News, Jul. 9, reprinted at Center for Individual Freedom site; Brian Dickerson, “Harassment law becomes a hot potato”, Detroit Free Press, Jun. 14 and “Harassment law headed for a tune-up”, Jun. 17; more from Center for Individual Freedom) (via Howard Bashman this summer, #1, 2, 3). (DURABLE LINK)

October 15 – Chocolate, gas-pump fumes, playground sand and so much more. Unanticipated (at least to non-lawyers) consequences of California’s Proposition 65, passed in 1986, mandating warning labels on all hazardous chemicals: “The last two years have seen bounty hunter lawsuits claiming that Californians are exposed to toxins from products such as picture frames, lightbulbs, Christmas lights, electrical tape, braces, game darts, stained-glass lamps, fire logs, exercise weights, hammers, terrariums, tools, cue chalk, cosmetics, even Slim-Fast,” according to attorney Jeffrey B. Margulies. Yes, cue chalk has always terrified us. (“New legal target: chocolate”, Orange County Register, Oct. 8). (DURABLE LINK)

October 15 – Judicial selection, the Gotham way. New York stands alone in its method of picking basic-level trial judges: “closed judicial nominating conventions followed by partisan elections. Party bosses rule.” The parties then engage in collusive cross-endorsements which operate to deny most City voters a meaningful choice. The results? According to the editorialists of the New York Daily News, an unusually high number of mediocre or downright bad jurists make it to the bench, while in Brooklyn, 10 of 60 sitting judges currently face ethics questions or actual charges. (“N.Y.’s unnatural selection” (editorial), Oct. 2). (DURABLE LINK)

October 14 – Australia on the front lines. The island nation, one of the staunchest members of the worldwide coalition fighting the battle against terrorism, now finds itself on the front lines of that battle, with more than 200 of its citizens still missing following the Bali attacks. “[T]his time terrorism has come to our doorstep, to the holiday home away from home that is Bali. The tourist destination familiar to most of us as a safe, cheap and friendly island of tolerance and fun has been turned into a charred graveyard. Horrifying images of bodies burned beyond description, seriously injured young men and women, and the street scenes of utter devastation recall a war zone….Certainly more Australians have been killed in Bali than in any other international disaster. … The Bali bombings expose the lie that the act of war on September 11, 2001, was simply an attack on Americans and American values. Bali proves that all freedom-loving peoples are at risk from terrorism, at home and abroad.” (“We must remain firm in face of terror” (editorial), The Australian, Oct. 14). More: “Thirteen Australians confirmed dead, 220 missing in Bali”, ABC.au, Oct. 14; Ben Martin, “Australia terror: Fearful wait”, The West Australian, Oct. 14; Matthew Moore, “US ambassador saw writing on wall a month ago”, Sydney Morning Herald, Oct. 14; Simon Kearney & Sarah Blake, “Terror Warning: Targets Named”, Sunday Telegraph, Oct. 13. For hard-hitting commentary on the ideological implications, check out maverick Aussie journalist Tim Blair. More good links: zem blog, Gweilo Diaries (mid-October entries). Update: As of Oct. 21 the likely death toll of the blasts was thought to be 190, including 103 Australians as well as numerous Indonesian nationals and citizens of such countries as Germany, Sweden, New Zealand and the United States. See Melbourne Age, Oct. 21. (DURABLE LINK)

October 14 – Rather die than commit profiling, cont’d. “A federal judge has cleared the way for a discrimination lawsuit filed by an Arab-American who was removed from a United Airlines flight three months after the Sept. 11 attacks. U.S. District Judge Florence-Marie Cooper ruled airlines do have a legal right to remove passengers who pose a security threat, but that does not allow them to discriminate on the basis of race, ethnicity or national origin.” (“Judge rules Arab-American taken off plane can sue United Airlines”, AP/Sacramento Bee, Oct. 12). The American Civil Liberties Union helped organize the suit. See also Eugene Volokh, Oct. 14. (DURABLE LINK)

October 14 – Macaulay on copyright law. In two speeches given in Parliament in 1841, the historian and statesman anticipated most of the issues worth thinking about on the issue of whether lawmakers should extend copyright long past the natural life of authors and other creators (courtesy Eric Flint, “Prime Palaver”)(more on TBM). (DURABLE LINK)

October 14 – “‘Pay-before-pumping rule called racist'”. Ohio: “North Randall Mayor Shelton Richardson fumes when he sees gas stations in his community that demand that customers pay before they pump, a practice he calls racist. The requirement is insulting and implies a presumption that customers will steal, he says. He wants to outlaw it. … No gas station in North Randall could require payment first if City Council adopts Richardson’s proposal to ban pay-first policies Monday night. … Prepayment is required around the clock at the 24-hour Shell station at the corner of Warrensville and Emery roads in North Randall. Manager Mike Jadallah said he would comply if the new law is approved. But he thinks he should be able to decide how he runs his business. ‘Is the city going to cover our losses?’ he asked.” (Kaye Spector, “Pay-before-pumping rule called racist”, Cleveland Plain Dealer, Oct. 12). (DURABLE LINK)

October 11-13 – “High court judge had use of condo owned by group that includes trial lawyer”. More eyebrow-raising allegations in the Mississippi favors-for-judges flap reported earlier this week: “A Gulf Coast condo owned by a partnership that includes prominent trial lawyer Richard ‘Dickie’ Scruggs has been used by Supreme Court Justice Oliver Diaz Jr., reports say.” “Mark Lumpkin, an associate in the firm of prominent Mississippi lawyer Paul Minor, said Wednesday that he lives in the condominium and has allowed Diaz to use it.” It seems the judge had recently divorced and needed a base for visitation with his kids, so it’s just good Southern hospitality, don’t you know. AP/Alabama Live, Oct. 10) See also Jerry Mitchell, “Probe could sway voters”, Jackson Clarion-Ledger, Oct. 9. More: Scruggs “denies that he repaid loans for Diaz or any other judge.” (“Investigation Targets Lawyers, Judges & Loans”, WLOX, Oct. 7; see Oct. 9-10). See also Nikki Davis Maute, “McRae won’t accept donation from lawyer”, Hattiesburg American, Oct. 10. (DURABLE LINK)

October 11-13 – Malpractice: Pennsylvania House votes to curb venue-shopping. The measure, which has yet to be approved by the state Senate or governor, requires plaintiffs in medical liability cases to file their suits in the county where the alleged negligent conduct occurred, rather than just heading to Philadelphia with its generous juries and indulgent judges. Doctors say it’s a start, while the state trial lawyers association is already promising a constitutional challenge — doesn’t this kind of measure violate the constitutional right to high verdicts, or something? (M. Bradford Grabowski, “Physicians react to ‘venue shopping’ bill”, Bucks County (Pa.) Courier Times, Oct. 9). (DURABLE LINK)

October 11-13 – “Wealthy candidates give Democrats hope”. Trial lawyer Harry Jacobs, who is reported to have a net worth of $42 million mostly from filing malpractice suits, is running for a Congressional seat in northern Florida. Jacksonville’s Wayne Hogan, who bagged $54 million in the state of Florida’s highly aromatic suit against the tobacco industry, “is trying to unseat Rep. John Mica, R-Winter Park. In West Virginia, attorney Jim Humphreys is running against incumbent Republican Shelley Moore Capito” in a rematch after her year-2000 upset win. (Bill Adair, St. Petersburg Times, Oct. 7). Update Nov. 7: all lose by wide margins. (DURABLE LINK)

October 11-13 – Quote of the day. “I have a few (trial lawyer) friends, but most of them abuse the system” — Ohio Supreme Court Justice Evelyn Stratton, quoted in David Benson, Mansfield (Ohio) News Journal, Oct. 9. (DURABLE LINK)

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