The road to Overlawyered

by Walter Olson on August 16, 2014

Best search engine query of the day that led someone to Overlawyered: “i parked.my.car drunk and.forgot.where it is”. We don’t have it!

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Even as the FDA prepares ambitious new rules pressuring food makers to reduce the amount of salt in their wares — recipe regulation, as we’ve called it — a new study questions whether most people in Western countries really need to cut salt after all. The study, led by Dr. Salim Yusuf of McMaster University, finds evidence consistent with sodium being a health risk for person with hypertension and those with the highest salt intake, but also suggests that most of the population is in the optimal zone for salt intake and that adding potassium-rich fruits and vegetables to the diet may be a superior way for many to fend off bad effects from sodium. The study ran jointly in the New England Journal of Medicine with a second which lays more emphasis on hazards of salt intake. [Yahoo News] More: Just One Minute, ACSH.

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Above: Cato podcast, interviewed by Caleb Brown.

The events in Ferguson, Mo. have vaulted police militarization to the top of the national news. I’ve spent a lot of the past 48 hours talking with the press, covering the issue on Twitter and other social media, and fielding reactions to my blog post (reprinted at the Cato blog), which has gotten considerable attention. Highlights:

P.S. Finally some good news from Ferguson. Newly assigned cops from the Missouri Highway Patrol wear blue not camo, mingle and talk to protesters with respect — and suddenly there’s calm. And the Rand Paul piece is making news.

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That’s putting it mildly. But issues like litigation holds and charges of spoliation, and discovery generally, are where much of the action is in mass torts. Beck explains at Drug and Device Law.

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We’ve warned many times that the Food Safety Modernization Act of 2011 is sure to drive up food prices, make life hard for small farmers, and encourage the substitution of industrial farm methods for the traditional and local. Now the FDA is rumbling that wooden onion crates may need to give way to plastic, although defenders say wooden crates have a good safety record in actual use. “Replacing a million wooden crates would cost about $200 million. … plastic crates can only hold about half the weight of wooden ones and they cost nearly three times as much.” [Economics 21]

In June, after an outcry, the FDA backed off hints that it would end the age-old practice of aging cheese on wooden boards.

P.S. Interesting discussion in comments on whether the cited cost figures are plausible. One thing I like about Overlawyered readers is that they know so much about onion crates.

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In an update on ADA filing mills more than two years ago we noted the case of Alfredo Garcia, one of the busy class of serial plaintiffs who’ve sued hundreds of California businesses demanding money for accommodations violations, often represented by attorney Morse Mehrban, a longtime Overlawyered favorite. Garcia has also been described as an “illegal immigrant and convicted felon,” and KABC Los Angeles says that after filing more than 800 lawsuits, Garcia has actually been deported:

Based on previously disclosed settlements, Eyewitness News can estimate that Garcia has collected approximately $1.2 million from business owners since he began filing lawsuits in 2007.

At the same time, Garcia applies for and receives fee waivers from the courts by claiming he is too poor to pay the court fees associated with the lawsuits. That means taxpayers pick up the tab. …

[By 2010] he’d sued more than 500 businesses, including La Casita Mexicana in Bell. The restaurant owners were able to prove that Garcia had not been at their restaurant on the dates he claimed to have been there.

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$6,500 a ticket

by Walter Olson on August 14, 2014

Salt Lake City is slapping some rather hefty fines on ridesharing drivers [Salt Lake Tribune]

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Why armored vehicles in a Midwestern inner suburb? Why would cops wear camouflage gear against a terrain patterned by convenience stores and beauty parlors? Why are the authorities in Ferguson, Mo. so given to quasi-martial crowd control methods (such as bans on walking on the street) and, per the reporting of Riverfront Times, the firing of tear gas at people in their own yards? (“‘This my property!’ he shouted, prompting police to fire a tear gas canister directly at his face.”) Why would someone identifying himself as an 82nd Airborne Army veteran, observing the Ferguson police scene, comment that “We rolled lighter than that in an actual warzone“?

As most readers have reason to know by now, the town of Ferguson, Mo. outside St. Louis, numbering around 21,000 residents, is the scene of an unfolding drama that will be cited for years to come as a what-not-to-do manual for police forces. After police shot and killed an unarmed black teenager on the street, then left his body on the pavement for four hours, rioters destroyed many local stores. Since then, reportedly, police have refused to disclose either the name of the cop involved or the autopsy results on young Michael Brown; have not managed to interview a key eyewitness even as he has told his story repeatedly on camera to the national press; have revealed that dashcams for police cars were in the city’s possession but never installed; have obtained restrictions on journalists, including on news-gathering overflights of the area; and more.

The dominant visual aspect of the story, however, has been the sight of overpowering police forces confronting unarmed protesters who are seen waving signs or just their hands.

If you’re new to the issue of police militarization, which Overlawyered has covered occasionally over the past few years, the key book is Radley Balko’s, discussed at this Cato forum:

Federal grants drive police militarization. In 2012, as I was able to establish in moments through an online search, St. Louis County (of which Ferguson is a part) got a Bearcat armored vehicle and other goodies this way. The practice can serve to dispose of military surplus (though I’m told the Bearcat is not military surplus, but typically purchased new — W.O.) and it sometimes wins the gratitude of local governments, even if they are too strapped for cash to afford more ordinary civic supplies (and even if they are soon destined to be surprised by the high cost of maintaining gear intended for overseas combat).

As to the costs, some of those are visible in Ferguson, Mo. this week.

[edited to add/update links and to clarify the issues of military surplus and the un-interviewed witness; cross-posted at Cato at Liberty]

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Many organizations and individuals have now filed amicus briefs in the case filed by climate scientist Michael Mann against bloggers, journalists and a think tank (the Competitive Enterprise Institute) that had published or linked to hostile commentary about him. Among them is a brief filed on behalf of the Cato Institute, Reason Foundation, Individual Rights Foundation, and Goldwater Institute whose point, as Ilya Shapiro explains, is to “urge the court to stay out of the business of refereeing scientific debates.” Among filers of other briefs just entered: Reporters Committee for Freedom of the Press and 26 other organizations, online publishers and the Electronic Frontier Foundation, and defendant/commentator Mark Steyn. Earlier here, etc. More: Alison Frankel, Reuters.

Unrelatedly, a Maryland judge has ruled in favor of a large group of defendant-bloggers and entered a directed verdict against Brett Kimberlin’s defamation suit; claims he has filed in federal court remain unresolved. Reporter Dave Weigel was there, and tweeted: “Kimberlin says the bloggers will face ‘endless lawsuits for the rest of their lives.’” [Legal Insurrection, Ken White, Popehat; recent background on federal-court side of case from Paul Alan Levy and more, earlier] (Updated to clarify which of the matters Levy was writing about).

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August 13 roundup

by Walter Olson on August 13, 2014

  • Texas jury awards $27 million against McDonald’s in negligent security case [Bloomberg]
  • NYC cop sues after being acquitted on rape charges, and from the difference in coverage between the NY Daily News and Slate, you might not realize it was the same case;
  • “Obamacare was no inartful compromise; it was a brutal cramdown.” [Michael Greve, Law and Liberty, on Halbig]
  • American Tort Reform Foundation nominations of “judicial hellholes” this year include Louisiana, South Florida and NYC [Abnormal Use]
  • Antitrust’s awful academics [Tom Bowden, Ayn Rand Institute]
  • New York Assembly Speaker Silver “earned up to $750,000 in 2013 working a few hours per week” at prominent tort firm [NY Daily News]
  • Europe: Gardeners with sit-on lawnmowers face buying motor insurance [Telegraph]

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“Get rid of children”

by Walter Olson on August 12, 2014

Bob Dorigo Jones has a winner in his 2014 Wacky Warning Labels Contest. [Let's Be Fair!, earlier] My own favorite of this year’s entrants, a warning that peel-and-stick sports decals do not themselves provide protection against injury, placed third.

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Inevitably, Felix Salmon draws different policy conclusions than would I from the story, but this essay explains at length how state governments’ wish to enjoy the extorted legal proceeds of the tobacco settlement up front, rather than stretched out over time as was the original idea, did not work out quite as planned. [Medium]

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  • Did feds try to pass off bogus paperwork in Maryland forfeiture case? [Van Smith, my two cents at Free State Notes, Radley Balko (and thanks for mention)]
  • “I’m not saying that warrants are completely useless.” [Ken at Popehat]
  • “Massachusetts is the only state that incarcerates people suffering from addiction who have not been convicted of crimes” [ACLU of Massachusetts]
  • “Where Would We Be If Not For Police In SWAT Gear Raiding Poker Games?” [Amy Alkon]
  • Class of federal crimes that shows the biggest racial disparity isn’t drug offenses, it’s gun offenses [Balko on Shaneen Allen case in New Jersey]
  • Our merciful laws: “I Saw a Man Get Arrested For a Sex Crime Because He Made a Scheduling Error” [Lenore Skenazy, Reason] “Sex Offender Laws Have Gone Too Far” [Matt Mellema, Chanakya Sethi, and Jane Shim, Slate]
  • Police chief seeks to arrest one of own officers on brutality charge, state’s attorney says no [Scott Greenfield; Ed Krayewski, Reason; Enfield, Ct.]

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Comments lost

by Walter Olson on August 11, 2014

Like Lois Lerner and so many others in Washington, we’ve suffered a computer data loss. In our case we were able to recover most of it, the only gap being some data that was entered onto the site over the course of the day today, which unfortunately includes most of today’s reader comments. Where appropriate, I’ll plan on emailing persons who left comments to propose re-posting them, but there are no guarantees that comments responding to other comments will wind up in the right order.

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[cross-posted and slightly adapted from Cato at Liberty]

I’ve got a guest post up at Reason on how bounty-seeking informants are bypassing the Internal Revenue Service tipster-reward program in favor of selected state False Claims Acts, such as New York’s, which enable richer recoveries for disloyal employees and others who charge defendants with underpaying taxes. Excerpt:

Will the spread of a culture of informants sow distrust and disloyalty in the workplace, while encouraging dissident executives and their lawyers to shake settlements out of risk- and publicity-averse targets by seizing on doubtful, gray-area legal theories? That’s part of the game too. Lately hedge funds and litigation finance firms have moved in to bankroll the filing of likely “whistleblower” cases. …

…by getting pro-plaintiff laws through the legislature in just a few states—New York liberalized its law four years ago—advocates can set the stage for a nationwide informant push.

In Illinois, a single Chicago lawyer was reported in 2012 to have used that state’s whistleblower law to file at least 238 lawsuits against retailers, pocketing millions in settlements, over alleged failure to charge sales tax on shipping-and-handling.

Whole thing here.

P.S. More recent coverage of the runaway False Claims Act train: “Repeat whistleblowers reap millions of dollars in false-claims suits” [ABA Journal] David Ogden testifies for the U.S. Chamber on what needs to happen with the federal FCA [House Judiciary] “UK Commission Takes A Pass On U.S.-Style Whistleblower Bounties” [Daniel Fisher, Forbes]

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“The suit, filed by three mobility-impaired plaintiffs from San Antonio and Houston, claims that Uber and Lyft have violated the Americans With Disabilities Act, or ADA, by failing to provide a way for wheelchair users to take advantage of their services.” [Ted Troutman, Next City] Both services serve as intermediaries for users to offer rides in their vehicles.

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Torts roundup

by Walter Olson on August 11, 2014

  • Celebrated as the “most insane amusement park ever,” New Jersey’s notorious Action Park reopens, minus some of its most extreme hazards [National Post]
  • Insurance industry study finds attorneys getting into higher share of auto crash claims [IJ]
  • Medical monitoring cases, once seen as wave of future, have not fared well in court [Steven Boranian, DDL]
  • “Florida high court’s irrational ‘rational basis’ rejection of state tort reform undermines Rule of Law” [William W. Large, Washington Legal Foundation]
  • For a sense of where tort pressure is being felt, list of litigation groups at AAJ (including newly formed groups) often provides clues;
  • Los Angeles jury finds team partly liable in $14 million negligent security award for man beaten in Dodger Stadium parking lot [AP]
  • “Perhaps this is the first of a wave of hose-entanglement cases” [Lowering the Bar, Louisiana]

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Demolition phase begins on construction of planned Ralph Nader tort museum in Winsted, Connecticut [Waterbury Republican-American; earlier here, etc.]

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