January 10 — Dangers of tax farming. Attorney Nicholas Panarella, billed as the “tax commando”, was hailed as a savior of big-city finances in the early 1990s: cities like Philadelphia would let him collect their delinquent taxes, he would keep a contingency fee for his “Municipal Tax Bureau” firm of between 15 and 33 percent, and everyone (except the people he dunned) would be happy. He also made himself into a huge source of donations and consulting fees for public officials, Democratic and Republican alike, and eventually sold his firm to municipal bond insurer MBIA. But last month the Philadelphia Inquirer reported that Panarella was expected to plead guilty to a felony charge of aiding and abetting a scheme to defraud the constituents of former Pennsylvania Senate Majority Leader F. Joseph Loeper, who resigned his seat after pleading guilty in October to obstructing a tax investigation. (Ken Dilanian, “Lawyer will admit playing felony role in Loeper case”, Philadelphia Inquirer, Dec. 13; U.S. Attorney’s office, E.D. Pa., news release, Oct. 24).
One of the reasons Panarella’s work proved controversial, per AP, was that (in good contingency-fee fashion) he tended to take extremely aggressive positions as to who owed his clients money and how much: “The company sent out 78,500 letters on behalf of New Jersey in 1995; at least half of the recipients owed the state no taxes.” Jurisdictions that signed up for his services included Detroit, Kansas City, Pittsburgh, Oklahoma and at least 35 others. (David Kinney, “Computers and can-do creativity: The new face of tax enforcement”, AP/Detroit News, Sept. 1, 1997; complaint by taxpayer Samuel Lonky raising the due process implications of letting a law enforcement official’s income depend on the severity of his enforcement efforts). Didn’t we learn from the Roman Empire about the dangers of contingency-fee tax collection, otherwise known as tax farming? (more on bounty hunting) (& letter to the editor, Jan. 16).
January 10 — Do as the Douglases do. Western Australia “couples are signing legally binding pre-nuptial agreements with ‘no-cheating’ clauses. Family lawyers refer to it as the Michael Douglas clause, after the film star’s pre-nuptial agreement, which promised wife Catherine Zeta Jones millions if he cheated on her.” Last month a newly passed law made pre-nuptial agreements legally enforceable in Australia. (Bruce Butler, “No-cheating clauses in pre-nuptials”, Sunday Times (Australia), Dec. 31; “Zeta-Jones ‘backs down over pre-nuptial terms'”, The Age (Melbourne), Oct. 9).
January 9 — Drive 60K miles, collect $273K. A jury has ordered DaimlerChrysler and one of its dealerships to pay $273,000 for not adequately bringing to a customer’s attention that the used car she was buying had had prior mechanical problems. “‘I am so happy. Now people will know that not all car dealers are honest,’ said Angela L. Pearn, 30, of Akron.” The dealership said Pearn had signed a document disclosing the prior repairs, but she testified that she just breezed through the stack of papers without paying attention to what she was signing, and the dealership had apparently held onto the lemon-disclosure form she had signed without providing her with a copy. Pearn’s attorney pulled the German-owned automaker into the case on the theory that it should have supervised its dealers more closely; he unsuccessfully asked for $50 million to teach the company a lesson. The car never actually broke down during its 60,000 miles under her ownership, but Pearn said there were times when she thought the brakes weren’t working properly. (Christopher Jensen, “Jury lets car buyer squeeze $273,000 from a lemon”, Cleveland Plain Dealer, Dec. 21).
January 9 — Dot-bomb blame. Following the NASDAQ rout of the past year, lawyers representing individual investors are going to be casting about for ways to shift their clients’ losses onto someone whose name ends with an Inc. Some may pursue claims against Wall Street firms whose analysts touted tech stocks, pointing out the conflict of interest to which many such firms are subject, when they receive investment banking and other fees from the same companies whose stock they recommend. (Gretchen Morgenson, “How Did So Many Get It So Wrong?”, New York Times, Dec. 31 (reg); “Sue to reverse your loss?”, CNNfn video, Jan. 5).
January 8 — Sen. Kennedy flies the trial-lawyer skies. Sen. Edward Kennedy (D-Mass.) has accepted private-jet rides from, among others, “a powerful Texas trial lawyer with a huge stake in bills limiting liability lawsuits. … Under a well-known campaign law loophole, Kennedy was able to use the luxury jets for a fraction of their actual cost … During a western fund-raising swing last year, Kennedy hitched a ride aboard a jet provided by prominent trial lawyer John Eddie Williams Jr. (Sept. 1, May 22, Oct. 12, 2000), whose successful Houston firm has been a leader in the high-stakes tort reform fight on Capitol Hill. … Kennedy in recent years used jets from Ness Motley Loadholt Richardson and Poole (Nov. 1, 1999, Oct. 6, 2000, July 17, 2000) whose partners have been active in the liability lawsuit battle, reimbursing the firm $4,856.” (Andrew Miga, “Ted K flies on wings of high rollers”, Boston Herald, Dec. 26).
January 8 — Postrel online. Reason editor-at-large Virginia Postrel, whose commentaries are often cited in this space, has launched a weblog commentary at her “Dynamist” site. Among recent items she’s added are links that help explain why it’s too facile simply to blame “deregulation” for California’s electricity crisis (USA Today, “Prices spike as Calif. bungles deregulation”, Jan. 3; Michael Lynch, “California Scheming”, Reason Online, Jan. 4). Postrel follows a number of well-known commentators who have who have embraced the weblog format, including Mickey Kaus and Andrew Sullivan.
January 5-7 — A judge speaks his mind. Following a one-car crash on the service road of the Grand Central Parkway in New York City’s borough of Queens, an injured passenger in the car sued Shu Cheuk Ng, a homeowner whose property abutted the parkway, arguing that leaves from trees on her property fell onto the roadway and that she had a duty to clean away those leaves before they became wet and developed into an accident hazard. Dismissing the case on a summary judgment motion as “wholly without merit”, Justice Arthur Lonschein described as “astonishing” the plaintiff’s contention that “liability may be placed on [Ms. Ng] on the grounds that she was observed and videotaped, one year after the accident, cleaning up leaves from the roadway in front of her property. ” The judge began his opinion as follows: “The nature of the plaintiff’s claim and the facts of the accident giving rise to the claim rests on the theory held by some cognoscenti at the bar (a theory not entirely without some foundation) that if an injury is severe enough, a case of liability can be made with creative lawyering to fit the facts of the accident whereby a generous jury will be given the opportunity to award substantial damages or that some insurance company for some unfathomable reason may offer to settle the case. The theory also rests on the proposition that the ‘unfortunate but unavoidable fact of life in the courts that cases are sometimes decided wrongly by both judges and juries’ and based upon that reality, insurance companies will sometimes settle a worthless liability case in order to avoid the possibility of a large verdict against its insured. (Orion Insurance Co. v. General Electric Co., 129 Misc. 2d 466, aff’d sub nom. US Aviation Underwriters, Inc. v. General Electric, 125 AD 2d 567 ‘for reasons stated by Justice Lonschein at Special Term’ app. dismissed 69 NY 2d 1037, lv. to app. den. 70 NY 2d 612.)” (Celestin v. City of New York, New York Law Journal, Dec. 12).
January 5-7 — “Boy faces jail for slapping girl’s bottom”. “A schoolboy who slapped a girl on the bottom for a joke is facing two years in a juvenile prison for sexual harassment. The 13-year-old girl, a classmate, did not complain but a teacher who saw the incident at Espanola Middle School in northern New Mexico reported it to the police. ” (Simon Davis, Daily Telegraph (London), Jan. 3).
January 5-7 — Ecology and economy. Notwithstanding an insta-campaign by the Sierra Club and some other groups to demonize Interior Secretary-designate Gale Norton as a “property rights advocate” (no! anything but that!) a growing school of thought is exploring the chances for compatibility between property rights and the interests of conservation. “Or as Aldo Leopold, conservationist and author of ‘A Sand County Almanac,’ once wrote: ‘Conservation will ultimately boil down to rewarding the private landowner who conserves the public interest.'” (Brad Knickerbocker, “Natural capitalism”, Christian Science Monitor, Jan. 4; “Environmental balance” (editorial), Jan. 4).
January 4 — Cribbage menace averted. Authorities have busted the cribbage-playing club that met regularly in Anchorage, Alaska’s American Legion hall. It seems they were gambling, which you mustn’t do in an establishment where liquor is served (if you do it at all). (Sheila Toomey, “Cribbage club on the street”, Anchorage Daily News, Dec. 21)
January 4 — “The Rise of Antisocial Law”. America has replaced the Hidden Law of custom, convention and ritualized conflict avoidance with today’s madly excessive legalism, argues Jonathan Rauch of the Brookings Institution in this Bradley Lecture before the American Enterprise Institute. The speech describes this website as “marvelous”. (Jonathan Rauch, “Courting Danger: The Rise of Antisocial Law”, AEI Bradley Lecture Series, Dec. 11; see George Will, “When Laws Replace Common Sense”, Washington Post, Dec. 22)
January 4 — Stressed out in New Hampshire. The state of New Hampshire’s Compensation Appeals Board has ruled that an employee of the state Department of Health and Human Services is entitled to workers’ comp benefits to cover job-related disability “caused by employment-related stress arising from her supervisor’s legitimate criticism of her work performance,” to quote the state’s high court, which upheld the award of the benefits. (Appeal of N.H. DHHS, Compensation Appeals Board No. 97-712, Aug. 23).
January 3 — OK to apologize in California. “Living in California means never having to admit guilt when you say you’re sorry. As of Jan. 1, a new state law will allow residents to apologize after an accident and avoid having their statements used against them in civil court. So-called benevolent gestures of sympathy will be considered simple acts of charity, not admissions of guilt.” In California, as elsewhere, some insurance companies advise their insureds not to say they’re sorry after a road mishap for fear of having the statement interpreted as an admission of guilt. The law is modeled after similar statutes in Massachusetts and Vermont. (“Saying ‘Sorry’ Now OK in California”, APBNews/FindLaw, Dec. 29).
January 3 — Saves her friend’s life, then sues her. Six years ago Kerry-Jo Klingbeil, then 11, pushed her seven-year-old friend Amanda Horne out of the path of a truck in Ontario, sustaining injuries from the truck in doing so; she subsequently received one of Canada’s highest bravery awards. Now she and her family are suing Amanda for $5-million (Canadian), saying she sustained lasting injuries after being “compelled” to rescue her friend. (“Girl sues friend for $5M after saving her life”, Canadian Press/National Post, Dec. 29).
January 3 — Apartment smoking targeted. In the Los Angeles suburb of West Hollywood, “the City Council in November passed an ordinance allowing nonsmoking apartment dwellers to file complaints when tobacco smoke drifts into their windows or doors from a neighbor’s unit. Tenants who refuse city arbitration will face fines and eviction.” (Thomas D. Elias, “Apartment smoking may be banned”, Washington Times, Jan. 2) (via FindLaw Legal Grounds).
January 19-21 — “Wacky warning label” winners. First place in the fourth annual Wacky Warning Label contest sponsored by Michigan Lawsuit Abuse Watch went to “a label on a pair of shin guards for bicyclists: “Shin pads cannot protect any part of the body they do not cover.” Second place? a “label on a toilet at a public sports facility in Ann Arbor, Michigan warning ‘Recycled flush water unsafe for drinking’ … Honorable mention went to a Texan who found a label on an electric wood router made for carpenters which cautions: ‘This product not intended for use as a dental drill.'” (Jan. 17; M-LAW site; Andrea Cecil, “Wacky warnings”, FoxNews.com, Jan. 17).
January 19-21 — Come to America and sue. Lawyers representing survivors of German victims of last summer’s Concorde crash near Paris airport have now sued Air France, Continental Airlines and several other defendants. And where have they filed their suit? Why, in the United States, naturally — which is thousands of miles from the crash site, but where we hand out much bigger tort awards than they do in France. (“Victims’ families file suit in Concorde crash”, CNN, Jan. 9; see Sept. 29).
January 19-21 — Turn off those registers. The Lemelson Foundation, famously hyperactive in patent assertion (see Aug. 28, 1999), has sued 135 national retail chains claiming that its patents have been infringed by their use of bar-code scanning technology. Representing defendants, Kenneth Chiate of Pillsbury, Madison & Sutro says that if the foundation prevails it could get a court to issue an injunction against using the familiar check-out method: “They could put a stop to the whole retail industry in this country… it could be devastating.” (Kirsten Andelman, “Pillsbury Wins Beauty Contest”, The Recorder (San Francisco), Nov. 7).
January 18 — Annals of zero tolerance: gun-shaped medallion. “School officials have suspended a third-grade student under the state’s zero-tolerance weapons law after he brought a 1 1/2-inch-long gun-shaped medallion to class. The boy apparently found the piece of jewelry in a snowbank and brought it to Owen Elementary School on Wednesday, school officials said. ‘State law takes precedence and requires us to take action even though it was a toy,’ said Donna Poag, director of elementary education for the Pontiac [Mich.] School District.” (“Third-grader suspended for gun-shaped medallion in school”, AP/CNN, Jan. 13).
January 18 — “Bogus” assault on Norton. Opponents of Interior Secretary-designate Gale Norton (Jan. 15, Jan. 5) have absurdly sought to depict her as pro-Confederacy based on a 1996 speech she gave to the Independence Institute. But as Mickey Kaus points out at Kausfiles.com: “The more inflammatory charges against Norton based on this speech appear to be almost totally bogus …. Norton’s opponents ask ‘Who is “we” in the phrase “we lost too much”‘? But ‘we’ clearly means ‘we Americans who should believe in states’ rights,’ not ‘we Americans who believe in the Confederate cause.’ …You might not find her speech convincing, but only a willful misreading turns it into any sort of secret embrace of the Confederate cause.” (left column, dated Jan. 17).
Meanwhile, the Sierra Club, in what may be another sign of an emerging working relationship between the more extreme environmental groups and activist trial lawyers (see Dec. 7), has made it an explicit part of its case against Norton’s confirmation that while a lawyer in private practice she “worked to dissuade state attorneys general” from turning paint companies (one of which she was representing) into the “next tobacco”. Other public figures who get in the way of this kind of retroactive expropriation through litigation should be duly warned: they, too, may turn up on the Sierra Club’s hit list (“NH Sierra Club opposes Norton confirmation”, AP/FindLaw, Jan. 17). (DURABLE LINK)
January 18 — What they did for lead-plaintiff status? A brief filed by New York’s Sullivan & Cromwell last fall alleged that class-action powerhouse Milberg Weiss Bershad Hynes & Lerach engaged in some fancy footwork in an attempt to gain the lucrative lead counsel position in a huge securities class action against Sullivan’s client, Oxford Health Plans Inc. “According to the brief, Milberg Weiss clients filed ‘misleading’ affidavits to ‘create the appearance that they had suffered substantial losses’ from trading in Oxford stock. In fact, one of Milberg’s two clients reaped a huge profit from his trading, while the other suffered much smaller losses than others vying to become ‘lead plaintiff’ and seize control of the litigation under the Private Securities Litigation Reform Act of 1995, the brief alleges. … Milberg Weiss’ response … contends that Sullivan & Cromwell ‘distorted the facts and ignored the law, all the while peppering their papers with outrageous and unfounded allegations.'” (Karen Donovan, “A Case of Ill-fitting Oxfords?”, National Law Journal, Oct. 3). More on the case: Peter Elkind, “The King of Pain Is Courting New Trouble”, Fortune, Oct. 2; Cameron Stracher, “Attorneys’ Fee-for-All”, New York, Oct. 23 (“S&C is just mad,” claims one lawyer, “because Milberg partners make more money than they do.”); Scott Gottlieb, “Presidency or Health Care Giant, There’s a Lawsuit in There Somewhere”, WebMD, Nov. 17. Update: a federal judge rejected the charges; see Feb. 21-22.
January 17 — “Coming soon to a school near you”. In Washington’s alt-weekly City Paper (Jan. 12-18), “Loose Lips” columnist Jonetta Rose Barras reprints the following letter, which “leaves even [her] speechless”:
District of Columbia Public Schools
Office of the General Counsel
Labor Management and Employee Relations
November 16, 2000
Dear Ms. [name withheld]:
On June 23, 2000, you were informed by letter that you would not receive an offer of employment with the District of Columbia Public Schools (DCPS) based on the results of your criminal background check. Based on your subsequent presentation of documentation that your 1984 charge for Uniformed Controlled Substance Act, Cannabis was no papered; that your 1984 charge for shoplifting was nolle prosequi; that your 1984 charge for assault with a dangerous weapon, razor was no papered; that your 1984 charge for destruction of government property was nolle prosequi; that your 1986 charge for assault with a deadly weapon was dismissed; that your 1987 charge for soliciting for prostitution was nolle prosequi; that your 1989 charge for assault with a dangerous weapon, razor was no papered; and that your 1992 Uniform Controlled Substance Act, possession with intent to distribute cocaine was dismissed. You are eligible for employment with DCPS.
If you have any questions or concerns, kindly contact Labor Management and Employee Relations at (202) 442-5373.
Acting Director of Human Resources
cc: Alfred Winder
Employee Services and Staffing
Office of the General Counsel
Labor Management and Employee Relations
Division of Security
Official Personnel File
January 17 — ABA’s toothless ethics proposals. The American Bar Association’s “Ethics 2000” commission wants to revise lawyers’ ethical code, the Model Rules of Professional Conduct. But don’t get your hopes up: the panel shows little enthusiasm for requiring lawyers to observe basic consumer protection precepts such as the disclosure to clients of the billing methods they use or of the existence of alternatives to contemplated legal work. Public comments must be submitted before May. (David A. Giacalone, “Counselors Oughtta Counsel (Not Conceal)”, PrairieLaw, Dec. 7).
January 16 — “Holocaust Reparations — A Growing Scandal”. Back in the September issue of the American Jewish Committee’s journal Commentary, senior editor Gabriel Schoenfeld laid down a courageous challenge to the prevailing view of the World War II reparations crusade, pointing out the difficulties of resolving old title claims to bank accounts, insurance and real estate even when the holders of financial trusts are acting in good faith; questioning some reparations activists’ insistence on portraying in the worst possible light the actions during the war of such nations as the Netherlands and Switzerland; and exploring the often far from constructive role played by ambitious American lawyers and politicians. Now, in its January issue, the magazine publishes a “Controversy” in which numerous readers, including Deputy Secretary of the Treasury and key reparations negotiator Stuart Eizenstat, react to Schoenfeld’s article, and he responds to their criticisms.
January 16 — Batch of reader mail. The latest additions to our letters page discuss tax farming, things hospital staff do to so as not to risk being sued, lawyers’ monopoly on real estate transactions (and the state of the courts generally), and where to buy hallucinogens other than on eBay. Also, an attorney from Louisiana is really upset with us for our coverage of his client’s suit over racetrack payouts.
January 15 — The Times vs. Gale Norton. “The New York Times, for reasons that must be assumed to be political, has attempted to smear Gale Norton, President-elect George W. Bush’s choice for secretary of Interior,” writes Al Knight, columnist with the generally liberal Denver Post. Times reporter Timothy Egan sought to link Norton, who served as Attorney General of the state of Colorado, with inadequate law enforcement efforts in response to contamination from a gold mine in the town of Summitville, which allegedly led to the “death” of the Alamosa river. Don’t miss Knight’s devastating point-by-point correction of Egan’s numerous misimpressions: Knight concludes that “[a]ny mishandling of the [four-year-old] Summitville litigation can be directly traced to the EPA and to the Justice Department.” (Timothy Egan, “The Death of a River Looms Over Choice for Interior Post”, New York Times, Jan. 7 (reg); “Summitville gold mine is cast as a political boogeyman”, Denver Post, Jan. 10; “The blame for Summitville” (editorial), Jan. 11; via WSJ OpinionJournal.com).
National environmental groups’ jihad against Norton may have found a ready ear among some editors in cities like New York where, to quote Fran Lebowitz, the outdoors consists of the distance between one’s apartment lobby and a taxicab. But it exasperates many who actually worked with Norton in Colorado, to judge by a report in Denver’s other major paper, the Rocky Mountain News. “‘There was never one iota of reticence to pursue polluters on (Norton’s) part,’ said Patrick Teegarden, policy director for the Colorado Department of Public Health and Environment and himself a Democrat. ‘She took her role in enforcing our laws very, very seriously and did an excellent job on behalf of this agency.'” On the much-misrepresented “self-audit” issue (see July 19, 1999 and link to Schulte, Roth and Zabel article there), Norton’s position was backed by Democratic Gov. Roy Romer and by the state legislature. (Todd Hartman, “Ex-cohorts deny Norton was patsy for polluters”, Rocky Mountain News, Jan. 14). Some trial lawyers, meanwhile, have it in for Norton because as a private attorney she counseled a major paint manufacturer on how to resist the courtroom assault aimed at turning the decades-ago sale of lead paint into the next tobacco (Douglas Jehl, “Environmental Groups Join in Opposing Choice for Interior Secretary”, New York Times, Jan. 12 (reg)).
A Jan. 13 Times report, meanwhile, darkly announces that Norton “has repeatedly challenged some of the laws that she would be obligated to enforce.” As one example, it offers the famous case of Adarand Contractors v. Pena, in which Norton as AG declined to represent the state against a suit that “challenged Colorado’s support of a law setting aside some highway contracts for businesses headed by members of minority racial groups, a provision that Ms. Norton has opposed as unfair.” But Times reporter Douglas Jehl fails to note that higher courts, including the U.S. Supreme Court, proceeded to rule in Adarand’s favor, confirming Norton’s view. Writes Ira Stoll of the invaluable daily Times-watchdog newsletter, SmarterTimes: “It’s just flat-out false for the New York Times to report this Adarand matter as proof that Ms. Norton ‘has repeatedly challenged some of the laws that she would be obligated to enforce.’ She’d be under no obligation to enforce those racial set-aside laws as secretary of the interior — they are illegal and unconstitutional, as federal courts have repeatedly ruled. She was right to have challenged them.” And Stoll observes that the Denver Post‘s Al Knight “noted in a column that in opposing some of the state’s affirmative action policies in 1995, Ms. Norton was ‘doing precisely what the law requires her to do, make sure that the state is behaving in a lawful manner with minimal exposure to discrimination lawsuits.'” (Douglas Jehl, “Norton Record Often at Odds With Laws She Would Enforce”, New York Times, Jan. 13 (reg); SmarterTimes, Jan. 13) (write a letter to the Times). (DURABLE LINK)
January 15 — “Killer’s suit alleges job discrimination”. Committed to state psychiatric care since the 1978 killing of his wife and stabbing of his daughter and grandmother, Richard L. Greist is now suing the hospital where he’s a resident for allegedly discriminating against him by refusing to hire him for a job as clerk. His suit charges that Norristown State Hospital and the Pennsylvania Department of Public Welfare violated the Americans with Disabilities Act as well as the Constitution’s Equal Protection Clause. “Greist has been found to have paranoid schizophrenia and mixed-personality disorder.” He is being represented by attorney Neil O’Leary. (Kristin E. Holmes, “Killer’s suit alleges job discrimination”, Philadelphia Inquirer, Jan. 4) (more on killers’ rights: Jan. 7, 2000, Sept. 24, 1999).
January 12-14 — Hunter sues store over camouflage mask. Gregory Abshier, 42, of Kent City, Michigan, was paralyzed three years ago when he fell out of a tree stand used for bow hunting. He’s now suing retailer Meijer Inc. for selling him the camouflage mask he was using at the time, claiming he was overcome by fumes from its dyes. He’s being represented by the Southfield law firm of well-known litigator Geoffrey Fieger. Also named in the suit is Hunter’s Specialties Inc., of Cedar Rapids, Iowa, makers of the mask. (Doug Guthrie, “Paralyzed hunter sues Meijer over camouflage mask”, Grand Rapids Press, Dec. 26).
January 12-14 — The Kessler agenda. Critics used to say former food and drug chief David Kessler had a more extreme antilibertarian agenda on tobacco than he let on at the time, and you know what? They were right. He’s now out with a new book (A Question of Intent) arguing that the government should prohibit the sale of cigarettes to persons not already confirmed smokers (after all, wasn’t alcohol prohibition a roaring success?) and that it should establish a nonprofit monopoly enterprise to sell the things. (Duncan Campbell, “US call to ban cigarette sales”, Guardian (UK), Jan. 8).
January 11 — By reader acclaim. Among recent stories submitted by multiple correspondents:
* Latest McDonald’s coffee lawsuit: Teresa Reed of Murphysboro, Ill. says her ankle was burned on New Year’s Eve 1998 when the hot beverage spilled out of a cup holder in her mother’s car. She’s suing the local McDonald’s operator, along with Wal-Mart for selling the cup holder, another company for making it, and — best detail — her mom, asking $450,000. What, no suit against the automaker? (Karen Binder, “McDonald’s Being Sued; Couple Allege Coffee Was Served Too Hot”, Southern Illinoisan, Jan. 8; “McDonald’s Sued Over Spilled Coffee”, AP/Washington Post, Jan. 9) (more on hot beverage suits: Aug. 10 and list at end).
* In Vancouver, B.C., a “man who became a slave to crack cocaine is suing his alleged dealers, claiming they ‘owed a duty of care’ to their customers and should have known their activities could cause harm. ” (Greg Joyce, “Cocaine-addicted man files court claim, suing alleged dealers for damages”, CP/Ottawa Citizen, Jan. 3; “Crack addict sues dealers for lack of care”, Ananova.com, Jan. 4).
* As expected, Baltimore lawyer-Orioles owner Peter Angelos (asbestos, tobacco, lead paint) has sued companies connected with the cellular phone industry charging that radiation from the devices causes cancer, despite a further ebbing of the always-tenuous scientific backing for that proposition (National Cancer Institute, “No Association Found Between Cellular Phone Use and Risk of Brain Tumors”, press release, Dec. 21; Steven Milloy, “Junk science: Studies steal cell phone lawyer’s Christmas”, FoxNews.com, Dec. 22; Chris Ayres, “Vodafone sued over brain cancer”, The Times (London), Dec. 28; “Cancer scare hits cell firms”, CNNfn, Dec. 28; Richard Baum, “Mobile phone firms face fresh suits over tumours”, Reuters/ FindLaw, Dec. 28). Update Oct. 1-2, 2002: court dismisses case.
January 11 — In the gall department. Napster Inc., the company that made a huge success by encouraging its users to take a casual approach toward other people’s intellectual property, went to court last month to file a trademark-infringement suit. It’s suing a souvenir apparel-maker for allegedly selling T-shirts and other items bearing its well-known logo without its consent. (Benny Evangelista, “Napster Sues Firm for Trademark Violations”, San Francisco Chronicle, Dec. 30).
January 31-February 1 — “All you can drink” winner sues over fall. John Remley won an “all you can drink” contest at Super Bowl time a year ago and proceeded to pack away so much liquor that he fell and hurt his head. He’s suing for a sum in excess of $1 million, saying the bar should have seen he was drunk and cut him off. (Kimball Perry, “Man drinks his way into $1 million lawsuit”, Cincinnati Post, Jan. 24).
January 31-February 1 — “A No-Win Numbers Game”. Colleges cut men’s sports teams, and cut, and cut, trying to achieve the artificial “proportionality” pressed for by the federal Title IX law. Then they get sued anyway. “Last year, in pursuit of ‘gender equity’, the University of Miami eliminated the men’s swimming and diving program that produced Olympic gold medalist Greg Louganis. Brigham Young University eliminated its top ten ranked men’s gymnastic team and its top 25 ranked wrestling team. The University of New Mexico slashed three men’s teams. Miami University in Ohio eliminated 30 wrestlers, 25 men’s soccer players and 10 men’s tennis players — not just to save money (the men shared a total of eight scholarships among them) but to get the numbers right.” (Jessica Gavora, Washington Post, Jan. 14) (more).
January 31-February 1 — Unfairness of mandatory IOLTA. Such a clever idea: scoop up the interest on lawyers’ trust accounts (“IOLTA”) and use it to finance lawyering for the poor. However, the Ninth Circuit recently ruled that the interest in the trust accounts rightfully belongs to the lawyers’ clients and can’t be hijacked for the benefit of others without compensation. The sums at stake are too small to “really” matter to clients, say proponents. “But mandatory IOLTA programs also violate client First Amendment rights,” argues George Kraw. “Individual legal consumers aid programs arguing public positions that some oppose.” (“A Matter of Principle”, The Recorder (San Francisco), Jan. 26).
January 31-February 1 — An anything-but-civil juror. Five days into jury deliberations in the two-month trial of a highly publicized suit by the Manville asbestos-plaintiff trust demanding that tobacco companies pay for the contribution of cigarette smoking to asbestos workers’ lung maladies, federal judge Jack Weinstein declared a mistrial after he was sent a handwritten note: “Juror has made threat against other juror to kill” if they have to be “here much longer.” (Tom Hays, “Tobacco-Asbestos Mistrial Declared”, Yahoo/AP, Jan. 25).
January 31-February 1 — Batch of readers’ letters. Our correspondents take issue with our handling of Holocaust reparations litigation, update the saga of antitobacco professor Richard Daynard and the conflicts he didn’t disclose in the British Medical Journal, and recount one man’s experience of being solicited by lawyers after a car crash.
January 30 — By reader acclaim: patented PB&J. Orrville, Ohio-based jam magnates J.M. Smucker have managed to patent the venerable peanut butter and jelly sandwich, or at least a particular crustless version of same. So discovered Albie’s, a food manufacturer and restaurant in Gaylord and Grayling, Mich., best known for its version of Michigan’s most famous delicacy, pasties. Albie’s started making crustless PB&Js for their customers last summer but have now been hit with a cease and desist letter saying that they are infringing on a patent # 6,004,596 issued in December 1999, to a Smucker unit for the “sealed crustless sandwich.” The Smucker people say the crimped edge makes all the difference. (Crystal Harmon, “Food company hopes to resolve jam over crustless sandwiches”, Bay City (Mich.) Times, Jan. 20; “Smucker protects peanut butter-jelly sandwich patent”, Reuters/FindLaw, Jan. 25) (& see letter to the editor, Feb. 12). Update: Albie’s prevails (Apr. 9 and May 31, 2005)
January 30 — Annals of zero tolerance: fateful fiction. Leading lights of the Canadian literary establishment are lending their moral support to the latest youngster to run afoul of zero-tolerance policies: “Within days of performing for his 11th-grade drama class a monologue he had written about a harassed student preparing to blow up his school, the young author, from a village near Cornwall, Ontario, was arrested, strip-searched, and incarcerated. His detention lasted 34 days — through his 16th birthday as well as the Christmas and New Year’s holidays. He’s out of jail on $2,500 bail now, but has become a cause célèbre here.” (Ruth Walker, “Writers rally for Canadian boy jailed for tale”, Christian Science Monitor, Jan. 26).
January 29 — Getting around small-aircraft lawsuit reform. “The General Aviation Revitalization Act of 1994 (GARA) immunized makers of GA aircraft against lawsuits for defects in products older than 18 years and is credited — along with a strong economy — for breathing new life into non-commercial aviation in the U.S. But, if manufacturers are no longer liable, who is? … If you’re a pilot, an owner or a parts manufacturer, you may not like the answer.” Moreover, the ever-inventive Ninth Circuit U.S. Court of Appeals in California has “carved a hole in GARA by ruling that an aircraft’s flight manual is a part of the aircraft. Thus, any post-sale revisions or deletions to an aircraft manual may restart the 18-year clock each time they are made.” (Phillip J. Kolczynski, “GARA: A Status Report”, AvWeb).
January 29 — Homemade cookie menace averted. Rachel Wray vowed to be the kind of mom who prepares home-baked goodies for her kids to take to school, but discovered the district had a policy: “No treat can be distributed to children on school grounds unless it’s sealed in packaging from a grocery store or retail bakery.” (“I wanted to be a mother who bakes”, Salon, Jan. 2). And the Washington Post reports that officials in Loudoun County, Virginia, are insisting that all bakers and canners take a food safety course before selling their homemade pies and jams at small town fairs. “They’re taking the country out of country” complains the director of the Lucketts Fair. (Christine B. Whelan, “Home Cooks Gag on Rules for Fairs in Loudoun”, Washington Post, Sept. 15 (fee-based archive — search on “Lucketts Fair”)) (via Max Schulz, CEI Update, Oct./Nov.) See “Pie Menace Averted”, Dec. 13, 1999.
January 26-28 — “The litigation machine”. Business Week‘s cover story explores some of the methods by which mass litigation gets ever more effective at extracting money from its targets. Among them: mass production of claims, sophisticated document-sharing, and financing arrangements by private firms that now finance actions in exchange for a slice of the proceeds. (Jan. 29).
January 26-28 — Anorexia as disability. Keri Krissik is suing Stonehill College in Massachusetts “for refusing to let her register on the grounds of her anorexia,” in violation, she says, of the Americans with Disabilities Act. “Miss Krissik stands 5-feet-six-inches and weighs less than 100 pounds.” (“Anorexia as a disability?”, Washington Times (editorial), Jan. 18).
January 26-28 — Solomon’s child. “In Victoria[, B.C. in December], a seven-year-old boy was at the centre of a legal battle after his father refused written consent for a three-week car trip to Arizona and Disneyland. Jason Arsenault, the 28-year-old father, was prepared to deny his son this experience because Elizabeth Howse, his 27-year-old former common-law wife, wouldn’t agree to refrain from smoking in the car. … There is something worse than growing up in a household where your parents are constantly at each other’s throats — spending your childhood in a legal war zone, torn between adults whose petty courtroom battles never end.” (Donna LaFramboise, “Courts often encourage parents to keep bickering”, National Post (Canada), Dec. 19).
January 26-28 — Digital serfs? Contrary to what some commentators seem to imagine, the “vast majority of high-tech workers are not independent contractors or agency temps, and those who are overwhelmingly prefer their status, according to a new analysis by the Employment Policy Foundation of government data. ” Moreover, according to EPF, the average annual income of high-tech independent contractors and agency temps “is just over $51,000 — a figure not significantly different from high-tech professionals who are regular, traditional employees.” (“High Tech Independent Contractors and Agency Temps: Who They Are and How They Work” (PDF document), Jan. 23).
January 24-25 — Philadelphia juries pummel doctors. Southeastern Pennsylvania’s medical community is still reeling from a $118 million jury award last fall against St. Luke’s Hospital in Bethlehem and St. Christopher’s Hospital for Children in Philadelphia. That topped verdicts of $55 million and $49.6 million in other malpractice cases within the same three-month span, the latter awarded to a client of Shanin Specter, one of the city’s most successful personal-injury lawyers. Specter also won a $158 million product-liability case against Ford Motor in 1998, as well as huge verdicts in cases involving motorcycle helmets and swimming pools; he happens to be the son of U.S. Senator Arlen Specter of Pennsylvania, a Republican who often breaks from his party on issues of litigation reform. (Karl Stark, “In Phila., malpractice awards have ‘gone haywire'”, Philadelphia Inquirer, Dec. 10; Hudson Sangree, “Jury Slams Ford with $153 Million Verdict for death of 3-year-old boy”, Lawyers Weekly USA, Jan. 11, 1999, reprinted at Kline & Specter site).
January 24-25 — Perils of regulatory discretion. “Flexible” rules, regulatory arrangements based on “reasonableness” — what could be better as a way of handling an issue like building permits? But actually it’s an invitation to whimsical delay, as one New Englander discovers when his quest to enlarge a house turns into a months-long ordeal: “the bureaucrats had plenty of discretion and were very reasonable, yet we were worse off than if what we wanted to do were simply forbidden. In that case we just wouldn’t have purchased the property. Instead, we had months of uncertainty after the purchase.” Prescription: clear rules, mechanically applied. (Gene Callahan, “Shaky ground”, Reason, Jan.).
January 24-25 — “Suicide-Attempt Survivor Sues”. “A former Suffolk deputy police inspector who tried to kill himself has filed a $45-million federal lawsuit, blaming the county for giving him back his service pistol, one day after stripping him of the weapon, fearing he might hurt himself or others.” Dominick Steo of Holbrook shot himself in the head in 1999. (Rick Brand, Newsday, Jan. 6).
January 24-25 — “Sex shop is fined because its videos are ‘too tame'”. Consumer protection authorities in York, England, have fined a sex shop owner £5,826 for selling as “hard-core” videos that were actually quite tame, such as a comedy starring Sixties sexpot Ursula Andress. Irate buyers “felt cheated”. (Sally Pook, Daily Telegraph (UK), Jan. 19).
January 22-23 — Metric martyr goes on trial. In a Sunderland, England, magistrates’ court, trial has begun for the greengrocer accused of selling bananas in pounds and ounces instead of Euro-directed measurements, in the first such prosecution for metric noncompliance (see “Don’t Give an Inch”, Nov. 13). The opposition Conservative Party registered sympathy with defendant Steven Thoburn by sending its shadow trade and industry minister to take him to lunch during a leave from the courtroom, provocatively sitting down to a McDonald’s “Quarter Pounder”. (David Graves, “Case of Metric Martyr ‘echoes trial of witches'”, Daily Telegraph (London), Jan. 17; “Quarterpounder adds to troubles”, Jan. 17; “Sunderland Metric Martyrs” website. Plus: James Bond parody of undercover metric enforcement (best detail: “Miss Moneycent”): Tom Utley, “An honest man is charged while criminals are freed,” Daily Telegraph, Jan. 17. Update: Thoburn convicted (April 11, 2001)
January 22-23 — “Firms mum on troubled workers”. You might hope companies would warn each other about employees like Michael McDermott, the man police say murdered seven co-workers last month at Edgewater Technology in Wakefield, Mass. But the reality, the Boston Globe finds, is that human resource managers tend to keep mum about even serious problems with former personnel, rather than risk getting sued. ”Silence is golden,” says law professor Markita Cooper. ”Silence is protection.” Although most states have passed laws protecting reference-givers, and very few cases have ultimately gone against them, facing suit is itself perceived as the punishment, win or lose. Edgewater itself says that when other companies call to ask for references on its ex-workers, it goes no farther than verifying employment: ‘there are a number of sticky laws in place about what a company can and can’t say,” says a spokesman. (Michael Rosenwald, “Firms mum on troubled workers”, Boston Globe, Jan. 9).
January 22-23 — Someone might get confused. “Just when you think the battle over domain names and trademarks can get no more ridiculous, Pillsbury goes and ups the ante. Universities and companies as large as Sun Microsystems received cease-and-desist letters this week ordering engineers to stop holding what the [giant flour maker] considers illegal ‘bake-offs.’ But it’s not as if the engineers are huddling together around the oven trading stolen recipes — in techie lingo, a ‘bake-off’ is a get-together in which software programmers test their creations against network protocols to see if they will work correctly. … No matter: The geeks are infringing on Pillsbury’s ‘bake-off trademark,’ the letters argued.” (Damien Cave, “Pillsbury Doughboy mauls techies”, Salon, Jan. 20)(Slashdot thread).
January 22-23 — CBS among asbestos litigation targets. “Viacom, which became one of the largest media companies in the world with its acquisition of CBS Inc. in May, is facing 140,872 unresolved asbestos-related claims from discontinued operations of Westinghouse Electric Corp. as of Sept. 30. Westinghouse Electric purchased CBS in 1995 and took on the name CBS Corp.” On the other hand, Warren Buffett has been buying up stocks of some besieged companies, perhaps betting that Congress will attempt to resolve the issue. (Gregory Zuckerman, “Specter of Costly Asbestos Litigation Haunts Old Economy Companies”, Wall Street Journal, Dec. 27 (sub)). An exec with auto parts maker Federal-Mogul “said 90% of [its asbestos] claims are now paid to people who show no serious ill effects. Still, Federal-Mogul expects to make payments of $350 million this year and a further $550 million by 2004.” (Paul M. Sherer, “Federal-Mogul Gets New Credit Lines, Plans to Fight Against Asbestos Litigation”, Wall Street Journal, Jan. 4) (sub).