| Other resources: Websites “Freedom of Speech vs. Workplace Harassment Law” (highly informative site maintained by Prof. Eugene Volokh, UCLA Law School) Organizations Books The shelf of books critical of the overreach of harassment law got at least three important additions in 1999. Daphne Patai of the University of Massachusetts, known already as a co-author of Professing Feminism: Cautionary Tales From the Strange World of Women’s Studies, published Heterophobia: Sexual Harassment and the Future of Feminism. Cathy Young, columnist for the Detroit News, published Ceasefire: Why Women and Men Must Join Forces to Achieve True Equality. And Joan Kennedy Taylor, associated with the Cato Institute, published What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment. (Also see our editor’s 1997 contribution, The Excuse Factory.)
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December 30, 2002-January 2, 2003 – Happy New Year. We’ll be back Friday.
December 30, 2002-January 2, 2003 – Updates. Among cases that continued to develop while our attention was elsewhere:
* A panel of the Fourth Circuit threw out (PDF) the $2 million punitive damage award against Duke University under federal sex discrimination law to Heather Sue Mercer, “who was allowed a walk-on spot as a kicker on the school’s football team but [was] treated differently than other players.” (see Oct. 13, 2000) (Leslie Brown, “Court voids kicker’s award”, Raleigh News & Observer, undated circa Nov. 16) (The Mat forums)
* The Ohio Supreme Court’s pro-litigation majority, shortly before voters turned it into a minority, dealt Ford Motor Co. a setback by ordering a new trial in a case where the automaker had rebuffed charges of “sudden acceleration” in its Crown Victoria model (see Jun. 6, 2000) (Alan Fisk, “Videotape Revives Lawsuit Against Ford Motor Co.”, National Law Journal, Oct. 21).
* An Alaska federal judge cut the punitive damage award against Exxon Mobil in the Valdez spill case from $5 billion to $4 billion; the litigation could still drag on for years more (see Nov. 15, 2001) (Jason Hoppin, “Exxon Valdez Award Reduced — but Only to $4B”, The Recorder, Dec. 10).
* In the controversy over baseball bats that are allegedly too powerful (see Apr. 19, 2002), a California state appeals court has rejected assumption-of-risk defenses and ruled that a college baseball player can sue the University of Southern California, “the Pacific-10 Conference, the National Collegiate Athletic Association and the makers of the Louisville Slugger bat on the ground that the company’s Air Attack 2 bat substantially increases the dangers of America’s pastime by letting the ball be smacked at hair-raising speeds.” (Mike McKee, “Bat Ups Chance of Baseball Injuries, Appeals Court Rules”, The Recorder, Dec. 24). (DURABLE LINK)
December 27-29 – Receivers in bankruptcy. “In the bizarre yet lucrative world of Enron’s bankruptcy, everyone seems to have a complaint these days. The $300-an-hour lawyers complain that the $500-an-hour lawyers are charging exorbitant fees. … Already, lawyers and other professionals have billed Enron close to $300 million in what some critics say is an unparalleled fee bonanza,” some of it going to the same high-priced professionals who advised the company before its fall. (David Barboza, “The Meter Runs in Enron Case, as the Lawyers Retain Lawyers”, New York Times, Dec. 25). Some of the lawyers have submitted expense requests that included liquor purchases; other practices include “marking up the costs of photocopies and faxes, and charging for clerical work at lawyers’ steep hourly rates”. (Otis Bilodeau, “Enron Lawyers Face Fee Cuts”, Legal Times, Dec. 10). (DURABLE LINK)
December 27-29 – California’s hazardous holiday. Chestnuts-roasting menace averted, cont’d: taking a cue from Berkeley and other Bay Area cities, air quality regulators in California’s Central Valley are proposing a ban on traditional wood-burning fireplaces in homes, as well as regulations on how existing ones can be used. “Under proposed rules that would take effect next year, most wood-burning fireplaces and stoves would be banned in new homes. Masonry fireplaces would have to be permanently disabled, converted to natural gas or upgraded to expensive soot-containing models before homes could be sold. Also, on bad air days during the winter, many Central Californians would be prohibited from lighting up their existing wood-burning stoves and fireplaces in a concerted effort to get the smoggy valley to comply with the Clean Air Act.” (Kim Baca, “California air regulators propose fireplace ban”, Sacramento Bee, Dec. 6)(see Dec. 24-27, 2001). Also in California, environmentalist lawyers using a bounty-hunting statute recently sued restaurants serving French fries on the grounds that the fries contain measurable amounts of acrylamide, a potentially hazardous substance generated when starch is subjected to heat. A complicating factor, however, according to the food-industry-defense Center for Consumer Freedom, is that “A nationwide study carried out in Germany has found that gingerbread contains seven times the amount of acrylamide found in French fries.” Better enjoy that holiday baking binge while it’s still legal. (“Just when you thought the holidays were safe”, Center for Consumer Freedom, Dec. 9; “French fry lawsuit-mongers unmasked“, Sept. 9). (DURABLE LINK)
December 24-26 – Merry Christmas. We’ll take a couple of days off to celebrate the holiday, and see you Friday. (DURABLE LINK)
December 24-26 – “Court Waives Deadline as ‘Reasonable Accommodation’ for Disabled Litigator”. We figured this would happen, and now it has: “An upstate New York judge has held for the first time that the courts must reasonably accommodate a visually impaired attorney who breached the time restrictions for submitting a judgment. … Finding that the ‘courtroom and court system constitute the trial lawyer’s workplace,’ and that the workplace ‘logically extends to the preparation of documents associated with litigation,’ [New York State Supreme Court Justice Robert] Julian held that [attorney Norman] Deep is owed an accommodation.” (John Caher, “Court Waives Deadline as ‘Reasonable Accommodation’ for Disabled Litigator”, New York Law Journal, Dec. 2). (DURABLE LINK)
December 24-26 – “Britain sued for millions by Mau Mau terrorists”. “The families of soldiers who fought the Mau Mau uprising in Kenya reacted with fury last night to news that former terrorists are planning to sue the British Government over their treatment after being taken captive.” (Daniel Foggo and Christian Steenberg, Daily Telegraph, Nov. 10). (DURABLE LINK)
December 23 – Lawyers’ advertising, 25 years later. In 1977, by a 5 to 4 majority, the U.S. Supreme Court ruled that lawyers have a constitutional right to advertise for clients. A retrospective by the National Law Journal‘s Mark Ballard mentions some of the resulting low-water marks of taste, including “the one where 300 pounds of lawyer emerges from the water to the strains of ‘Swan Lake’ bedecked in gold chains and carrying a chest of cash with the message that he’ll bring the treasure home to you,” the one featuring “Robert Vaughn, former ‘Man from U.N.C.L.E.,’ in suspenders, sternly promising that whichever attorney was hired in that particular market was so fearsome that otherwise recalcitrant insurance companies will roll over and pay up big bucks,” and — no specifics given, alas, but deplored by a former Florida bar president — episodes in which lawyers have “drive[n] hearses to shill no-frill wills” and sponsored cars in demolition derbies to promote personal-injury practices. (Mark Ballard, “Coming to Terms With the $20,000 Ad”, National Law Journal, Sept. 25; “The Ad-Made Man and the Old-Line Firm”, National Law Journal, Oct. 3; “The Little Ad That Changed Everything”, National Law Journal, Oct. 10). (DURABLE LINK)
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February 20-21 – Updates. Further developments in stories familiar to our readers:
* Britain: “Five market traders — the so-called metric martyrs — have lost their High Court battle for the legal right to trade in pounds and ounces.” (see Dec. 15, 2001) (“Metric martyrs lose battle for pounds and ounces”, Ananova.com, Feb. 18)
* The Taco Bell chain has settled on undisclosed terms a lawsuit charging it with financial responsibility after several of its employees partied on their own time and one got into a fatal car crash; the suit charged that the employees had discussed liquor acquisition while working together at the restaurant (see Nov. 29, 2001) (Jeff Arnold, “Suit Against Taco Bell After Fatal Wreck Resolved”, Fort Smith (Ark.) Times-Record, Jan. 4; KTHV-TV (Little Rock), “Taco Bell Settles a Lawsuit Accusing Them of Contributing to the Death of a Teen”, Jan. 7).
* “Pacifiers, glow sticks and other paraphernalia associated with ‘rave’ parties cannot be banned from the gatherings,” federal judge Thomas Porteous has ruled in New Orleans, despite prosecutors’ contention that the funmakers are linked to drug use (see June 28, 2001) (“Rave Party Items Can’t be Banned Says Federal Judge”, WWL-TV (New Orleans), Feb. 4).
February 20-21 – Trial lawyer smackdown! According to Roll Call, Pascagoula, Miss. tort tycoon Dickie Scruggs has threatened never again to support Sen. John Edwards (D-N.C.) because of Edwards’ unfair treatment of federal appeals court nominee Charles Pickering. “If Scruggs follows through on his stated mission, it would deal a serious financial blow to Edwards, himself a former trial lawyer who has relied heavily on the legal industry to underwrite his burgeoning national ambitions. … While Scruggs himself has not been a direct financial backer of Edwards, lawyers have been the Senator’s single largest backer, and many of Scruggs’ friends are among Edwards’ supporters. In the 1998 election cycle he received $905,280 from lawyers and law firms, the fourth most of any candidate in that cycle, according to the Center for Responsive Politics.” (Paul Kane, “Edwards’ Tactics Draw Ire”, Roll Call, Feb. 18).
February 20-21 – Firehouse blues. Near Brighton, England, “A 5ft 1in firewoman who is too short to carry out some of her duties yesterday claimed sex discrimination after she was taken off active duty. … after a number of incidents in which she was not tall enough to handle equipment.” Katie Reid, 31, complained to an industrial tribunal that the East Sussex Fire Authority was sexually discriminatory in having “failed to accommodate her height when designing equipment and in the operation of fire appliances.” (Thomas Penny, “Tiny firewoman sues her brigade”, Daily Telegraph, Jan. 30) (via Bonehead of the Day). And authorities in Anchorage, Alaska have ordered the removal of girlie magazines from firehouses, explaining that the city could be at risk of losing a lawsuit if it lets them stay; a former firefighters union president said he was told that even tamer fare like Maxim has to go. (“Anchorage tells fire halls to eliminate risqué magazines”, JuneauEmpire.com, Feb. 18). (DURABLE LINK)
February 20-21 – “Bush Budget Surprise: $25M for Tobacco Suit”. Appalling: as part of a big increase sought for the budget of the Justice Department’s Civil Division (from $170 million to $240 million), the Bush administration has bowed to its enemies and endorsed the Clinton administration’s lawless federal expenditure recoupment suit against tobacco companies. Who knew John Ashcroft and the Bush White House were this easy to push around? (Vanessa Blum, Legal Times, Feb. 15). Plus: we highly recommend political scientist Martha Derthick’s new book on the tobacco litigation, Up in Smoke: From Legislation to Litigation in Tobacco Politics (order it from CQ Press). Derthick, professor emerita at U.Va. and also with the Brookings Institution for many years, assembles a truly damning indictment of the ways tobacco lawyers and state attorneys general managed to usurp powers constitutionally reserved to lawmakers. (DURABLE LINK)
February 18-19 – “The $200 Billion Miscarriage of Justice”. Best article we’ve seen in quite a while on the asbestos outrage: “the ultimate mass farce … The avalanche of new claims being brought by ever less impaired plaintiffs alleging ever more marginal medical conditions caused by ever more fleeting exposures to asbestos dust has triggered a new wave of bankruptcies … Like the employees of Enron, employees of [newly bankrupted big companies like Owens Corning and Federal-Mogul] have seen their retirement savings vanish in a flash. … But those employees’ losses have thus far gone unbemoaned by Congress.” (Roger Parloff, Fortune, March 4).
February 18-19 – Overprotecting the kids. “A significant body of research evidence now indicates that there has been a drastic decline in children’s outdoor activity and unsupervised play. For example, it has been calculated that the free play range of children — the radius around the home to which children can roam alone — has, for nine-year-olds in the UK, shrunk to a ninth of what it was in 1970. Evidence also shows that more and more of children’s activities are being organised or supervised by adults.” Yet the most often cited reasons for parental anxiety, road accidents and abduction by strangers, are rarer than ever.
“Local authorities, educational staff or outdoor activity instructors are too often blamed for accidents — which can only make them more cautious about providing challenging activities for children. There have been a rising number of litigations against providers of play facilities and organisers of adventure pursuits. Perhaps most damaging is that a climate has been created in which all unsupervised play is regarded as high risk, and parents or teachers who allow it are seen as irresponsible.” (Jenny Cunningham, “Play on”, Spiked Online, Jan. 3) (via InstaPundit).
February 18-19 – “Toyota buyers’ suit yields cash — for lawyers”. Under a newly approved class action settlement, thousands of customers will get $1,200 coupons, rather than cash, from a Memphis Toyota dealership charged with cheating buyers. “The lawyers who brought the suit — Richard Fields, Saul Belz and Earle Schwarz — get $1.3 million in legal fees.” Some customers have expressed indignation that in order to get any of their money back they have to patronize the dealership again. “The outcome also may provide fodder for federal lawmakers, including Rep. Ed Bryant (R-Tenn.), who are attempting to push reforms of the class-action system. … ‘Justice is there for the victim and the defendant and not just for the lawyers to make money,’ Bryant said Thursday.” (Louis Graham, Memphis Commercial Appeal, Feb. 15).
February 18-19 – Lawyers swallow lion’s share in estate dispute. A contest over the A$154,000 estate left by a 44-year-old Australian has ended with the following resolution: the decedent’s original family is to get $22,000, his live-in male partner is to get $10,000, $10,000 will go to the cost of selling his house, and lawyers and their expenses have swallowed up the remaining $112,000. (“Battle over gay partner’s estate won by lawyers”, AAP/The Age (Melbourne), Feb. 13).
February 15-17 – Kaiser Aluminum bankrupt. North America’s third-biggest aluminum producer “filed for Chapter 11 bankruptcy protection Tuesday, blaming depressed prices and asbestos litigation”. (“Kaiser Aluminum: Prices, asbestos suits force Chapter 11 filing”, Chicago Tribune, Feb. 13; “The Job-Eating Asbestos Blob” (editorial), Wall Street Journal/ OpinionJournal.com, Jan. 23).
February 15-17 – “The Enron mythos”. The story of the energy company’s collapse has been propelled by the conventions of pack journalism, with the New York Times the worst offender (see Kausfiles.com, scroll to Jan. 25). Employee benefits expert Tom Veal, on his Stromata site, dispels a few of the widely circulated misconceptions — check out for example Feb. 2, on the sinister-sounding practice of “locking down” 401(k) plans. (Jan. 15-date). The Times professes to be scandalized at the discovery that many, many investment banks and accounting firms cooperate with big-company clients to structure transactions in ways that dress up their balance sheets: “Actual accounting fraud may or may not be demonstrated in the Enron case — although media and political hysteria makes finding the truth difficult. … But this much is clear: The more widespread the Enron practices are shown to be, the more likely they were NOT malevolent.” (“Robert Musil”, Man Without Qualities blog, Feb. 14 (and see other entries))(& see Mar. 6).
February 15-17 – “‘Preserving’ History at Bayonet Point”. Yes, historic preservation of old buildings is a worthy goal, but the owner of an 1874 home in Midland, Mich. isn’t convinced it should be accomplished through legal compulsion: “One of my neighbors is an 85-year-old woman who has lived in her home for 35 years. She found working with the Historic District Commission (HDC) so distressing that she decided to live with the ongoing damage caused by roof leaks rather than seek approval for correcting the problem. ‘I will let my house fall down before I deal with those people again,’ she commonly says. Score one for the history police, but not for history.” (Paul Arends, Mackinac Institute, Dec. 3).
February 15-17 – Omit a peripheral defendant, get sued for legal malpractice. Here’s a classic way the system feeds on itself, threatening to punish lawyers if they hesitate before pushing lawsuits in cases of less than clear-cut liability: “A New Jersey appeals court reinstated a legal malpractice claim Dec. 27 against a firm whose medical negligence suit against a doctor prescribing tetracycline failed to include a challenge to a 1963 manufacturer warning about the drug’s side effects. The court ruled the adequacy of the warning has never been settled as a matter of law in New Jersey, and a jury can decide whether the lawyers committed malpractice for not raising it.” (Henry Gottlieb, “Malpractice Case Reinstated Against Lawyers for Not Suing Drug Maker”, New Jersey Law Journal, Jan. 4).
February 15-17 – Welcome bloggers. Among webloggers who link to us, besides biggies InstaPundit, Mickey Kaus, Virginia Postrel, and Andrew Sullivan, are: MBaceron, Breaching the Web, Despatches from Flyover Country, Gene Hoffman, Libertarian Rant, Megan McArdle, Sean McCray, Bob Owen, and Kyle Still, among others.
February 13-14 – Didn’t know cinema seats retracted. Australia: “A teacher’s aide who was unaware cinema seats retracted has won her case against Hoyts cinemas after hurting herself at a trip to the movies. The win could force cinemas, theatres, sports stadiums and even Sydney Opera House to warn the public of the possible dangers of their seating. … While sitting down in the cinema, the child she was caring for became rowdy. [Plaintiff Diane] Burns got up to calm him down, unaware, she claims, that her seat retracted after she left it.” Burns was described as “not a regular filmgoer”. (Sarah Crichton, “Warning: movie seats can harm your health”, Sydney Morning Herald, Feb. 9).
February 13-14 – British Telecom claims to own hyperlinks. Hey, this is getting serious! “A British company claimed in federal court Monday that it owns the patent on hyperlinks — the single-click conveniences that take a Web surfer from one Internet page to another — and should get paid for their daily use by millions of people. But a federal judge with a laptop on her desk warned that it may be difficult to prove that a patent filed in 1976, more than a decade before the World Wide Web was created, somehow applies to modern computers.” (Jim Fitzgerald, “British Company Claims Patent on Hyperlinks”, AP/Law.com, Feb. 12; Michelle Delio, “Judge Dubious About Link Patent”, Wired News, Feb. 11; “Why This Link Patent Case Is Weak”, Feb. 12). Update Oct. 1-2: court dismisses case.
February 13-14 – Blue-ribbon excuse syndromes: rough divorce predisposed him to hire hitman. After Bryan Boyd McGann’s wife filed for divorce, he “ranted and raved” to a police informant for months about his desire to have her killed, then met with a supposed hitman and agreed on a $10,000 murder-for-hire contract. At trial for solicitation of capital murder, McGann attempted to introduce the expert testimony of a psychiatrist, Dr. James Grigson, to support the theory that the stress of the divorce had made him more susceptible to being entrapped by police into such a scheme. Asked whether a normal, law-abiding citizen might under some circumstances be induced to pay money to a hitman who had promised to kill his wife, Grigson testified, “Absolutely …. Even though you’re a law abiding citizen, whenever you’re into a very nasty divorce or a very contested child custody case, your strongest emotions are — are going to be stimulated.” The court disallowed the doctor’s testimony. (David J. Rubin, J.D., “Psychiatrist Claims Divorce Is Deadly”, Forensic Panel Letter, Aug. 20, 2001) (appellate opinion, Texas v. McGann, Sept. 14, 2000 (PDF format)).
February 13-14 – Defend yourself in print and we’ll sue. The Nike Corporation had no sooner published advertisements defending its overseas labor practices than it was sued by a freelance lawyer, under the state’s “private attorney general” laws, for supposed inaccuracies which violated a state law against unfair business practices and false advertising. The case is now pending before the California Supreme Court. Writes a reader: “Amazing! Take out an ad arguing your own side of a public debate and get sued by a ‘private attorney general” looking for a bounty.’” (Mike McKee, “Nike Ads Not Actionable, California Justices Hint”, The Recorder, Feb. 8).
February 11-12 – New Yorkers officially back to normal. At least in one way, they’re suing like mad: Dana Gross of Manhattan is seeking $10 million in compensatory and $10 million in punitive damages against Ticketmaster and Madison Square Garden, saying that $100 tickets to a Michael Jackson concert (she bought six) had bad locations and obstructed views. The case seeks class action status (Dareh Gregorian, “‘Tick’ed-off Jacko Fan Sues for $20M”, New York Post, Feb. 8). (Update Oct. 23, 2004: judge allows suit to move forward as class action). “A Long Island woman who sued her former church for $4 million, claiming she suffered serious injuries when a minister pushed her to the floor while trying to bless her, settled her case yesterday for $80,000. … [Her lawyer Andrew] Siben said the woman was unavailable to discuss her case because the Almighty told her not to comment. … ‘If God told her not to speak, she’s not going to violate that’”. (Kieran Crowley, “80G from L.I. church heals pain in the apse”, New York Post, Feb. 5). And: “From rescue workers who say they have lung problems to business owners who say their shops were damaged, 1,300 people have given notice they may sue New York City for a total of $7.18 billion over the aftermath of the World Trade Center attack. … The vast majority are from firefighters who say the city gave them inadequate respiratory protection at the smoldering trade center site.” (Michael Weissenstein, “1,300 People Give Notice of Intent to Sue New York City”, AP/Law.com, Feb. 8).
February 11-12 – “Congress Looks to Change Class Action System”. Nationwide class actions, unless they are very small, belong in federal courts: “In addition to giving judges more leeway over settlements or awards, the Class Action Fairness Act 2001 would move all cases involving people in more than one state seeking $2 million or more in damages into federal court from the state courts.” (Kelley Beaucar Vlahos, “Congress Looks to Change Class Action System”, FoxNews.com, Feb. 7).
February 11-12 – Columnist-fest. All first-timers:
* “[C]opyright protection for ‘Let’s roll?’ If they get it, I’m going to register ‘Hurry up,’ ‘Pick up your socks’ and ‘Why didn’t you go before we left home?’” (Cory Farley, “Let’s roll right into court”, Reno Gazette-Journal, Feb. 9)(see Feb. 4).
* Upstate New York outdoors columnist J. Michael Kelly is unimpressed with the Consumer Product Safety Commission’s campaign against the Daisy airgun, saying that CPSC really seems to be objecting to features that are industry standards: “Gravity-feed magazines, for example, have been used in BB guns for more than 100 years.” (“BB gun recall appears suspicious”, Syracuse Post-Standard, Dec. 30)(see Dec. 21).
* The plaintiffs in New York Times v. Tasini acted like they were doing freelance writers some great favor by establishing that publications could not include their work in electronic databases such as Nexis without their explicit permission. It wasn’t such a great favor in practice: “Faced with the time-consuming and expensive chore of tracking down everybody who might have rights to the articles in their databases, publishers are just taking the articles out.” (Linda Seebach, “Writers win battle and everyone loses”, Minneapolis Star-Tribune, Feb. 2).
* Stop the presses, an Ellen Goodman column we agree with (on the stacked presidential bioethics panel headed by Leon Kass): “Cure or quest for perfection?”, Boston Globe, Jan. 24. For more on the panel, see Nick Gillespie, “Birthmarks and Bioethics”, Reason, Jan. 18; Jerome Groopman, “Science Fiction”, The New Yorker, Feb. 4; Virginia Postrel’s Dynamist.com, many entries in recent weeks; and Jonathan Rauch, “Therapeutic Cloning: Why Congress Should Butt Out”, National Journal, Dec. 15, reprinted at Reason.com.
February 11-12 – Setback for Lemelson estate. “Hundreds of companies facing infringement suits by inventor Jerome Lemelson’s estate won a victory Thursday when a federal appeals court ruled that unreasonable delay in prosecuting a patent may prevent its enforcement.” The panel of the U.S. Court of Appeals for the Federal Circuit was split 2-1. Foes of Lemelson patent claims (see May 10, 2001) complain that he filed many “submarine” patent claims which he did not pursue as inventions but which surfaced decades later in the form of royalty demands as companies opened up new technologies (Brenda Sandburg, “Lemelson Foes Win Key Patent Ruling”, The Recorder, Jan. 29).
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November 19-20 – New frontiers in discrimination law: Harleys among the cyclamens. Lawmakers in Ohio, South Carolina and several other states are pushing legislation that would prohibit businesses from turning away customers on motorcycles. Georgia state Sen. Joey Brush, who rides a Harley-Davidson, “introduced the legislation because of a long-running dispute with Calloway Gardens, a private, nonprofit horticultural garden that doesn’t allow bikers to drive onto the grounds. The ban, in place for the garden’s entire 49-year existence, is meant to protect the serenity and peace for which the grounds are known, said spokeswoman Rachel Crumbley. ‘We feel it’s not a civil right to ride a motorcycle wherever you please,’ Crumbley said.” An Ohio rider who supports such legislation “said a waitress at a restaurant near Cincinnati once placed him and his wife in a corner away from other patrons when the couple pulled up wearing leather boots, chaps and vests.” But the biker community, which in the past has often sided with libertarian causes such as opposition to mandatory helmet laws, is far from unanimous on this one: “As a business owner, they should have right to decide who they want,” says spokesman Steve Zimmer of Ohio’s pro-biker ABATE group — clearly someone who hasn’t forgotten that biking is supposed to be about freedom. (Andrew Welsh-Huggins, “Laws Seek to Protect U.S. Bikers”, AP/Yahoo, Nov. 14). (& letters to the editor, Feb. 28) (DURABLE LINK)
November 19-20 – Can’t find the arsonist? Sue the sofa-maker. “With the two-year statute of limitations almost up, lawyers representing victims of New Jersey’s Seton Hall University dormitory fire are working frantically to find parties to sue.
“The fire, which authorities believe was intentionally started, broke out in the Boland Hall dormitory on Jan. 19, 2000, killing three students and injuring 58 others. Seton Hall, which enjoys charitable immunity from suit, has settled out of court with some of the plaintiffs. Still, lawyers contemplate suits against other people who may have contributed to the conflagration — the arsonists, the maker of the sofa that ignited and any other potentially responsible parties.” (Charles Toutant, “Seton Hall Fire Victims’ Lawyers Still Scrambling to Identify Defendants”, New Jersey Law Journal, Nov. 14) (see June 1, 2000). (DURABLE LINK)
November 19-20 – By reader acclaim: football’s substance abuse policy challenged. “New England wide receiver Terry Glenn has sued the NFL, claiming a disability makes it difficult for him to adhere to certain rules in the league’s substance abuse policy. … Glenn filed the complaint under the Americans with Disabilities Act, but it did not specify what disability Glenn suffers. Glenn claims he should not have been suspended by the NFL for the first four games of the season for violation of the substance abuse policy.” (“Glenn’s suit doesn’t specify disabilities”, AP/ESPN, Nov. 4). Plus: reader Rick Derer, outraged by the Casey Martin episode, has put up an ADA horror stories website to call attention to what he terms “the worst law ever foisted on the American people”.
November 19-20 – Municipal gun suits on the run. Cause for thanksgiving indeed: the lawless and extortionate municipal gun-suit campaign has been encountering one setback after another. “In a major victory for gun manufacturers, the 3rd U.S. Circuit Court of Appeals on [Nov. 16] upheld the dismissal of a suit brought by Camden County, New Jersey, that accused gun makers of creating a ‘public nuisance’ and sought to recoup the governmental costs associated with gun-related crimes.” Arguing the losing side were radical law prof David Kairys and class-action firm Berger & Montague. The three-judge panel was unanimous. (Shannon P. Duffy, “3rd Circuit Shoots Down Gun Suit Theory”, The Legal Intelligencer, Nov. 19). The city of Atlanta is desperately trying to keep its anti-gun suit alive in the face of legislation enacted by its parent state of Georgia making it as explicit as humanly possible that the city has no authority to press such a suit (Richmond Eustis, “Atlanta Asks State Appeals Court to Keep Alive Suit Against Gun Makers”, Fulton County Daily Report, Nov. 15).
Yale law professor Peter Schuck describes the gun lawsuits as based on the “most tenuous” theories yet of government rights of recoupment (“subrogation”) and tort law as “one of the last places” we should look to resolve the policy issues of gun control (“Smoking Gun Lawsuits”, American Lawyer, Sept. 10). And Bridgeport, Conn. mayor Joseph Ganim, who had taken perhaps the highest profile among Northeastern mayors in support of the gun suits, is likely to be less heard from for a while given his indictment last month on two dozen felony counts including extortion, bribery and mail fraud. (He denies everything.) (John Christoffersen, “In Connecticut, a growing and unwelcome reputation for corruption”, AP/Charleston (W.V.) Gazette, Nov. 16; Chris Kanaracus et al, “Ganim on the Spot” (pre-indictment coverage), Fairfield County Weekly, undated). See also Kimberley A. Strassel, “Bummer for Sarah Brady”, OpinionJournal.com, Nov. 15 (expressing optimistic view that municipal gun suits have been contained). (DURABLE LINK)
November 16-18 – Profiling perfectly OK after all. “State highway safety officials said they have received a $700,000 federal grant to help them crack down on two groups of chronic violators of the state’s seat belt law: drivers and passengers of pick-up trucks, and all male drivers and passengers between 18 and 55. … [Louisiana Highway Safety Commission Executive Director James] Champagne said state and federal studies have consistently shown pickup drivers and all male drivers are less likely to buckle up than any other groups of drivers or front-seat passengers. State law requires both the driver and front-seat passengers of vans, sports utility vehicles, cars and trucks to use seat belts. … Asked if the targeting of males and pickup drivers and passengers is profiling of a certain group, Champagne said, ‘Absolutely.’” To recap, then: the federal government strictly bans giving extra attention to 25-year-old males from Saudi Arabia at airport check-in. While they’re driving to the airport, on the other hand, it positively encourages them to be profiled. Perhaps the explanation is that it’s willing to swallow its scruples in order to combat really antisocial behavior — like failing to wear seat belts, as opposed to hijacking planes into buildings. (Ed Anderson, “Police to harness seat belt scofflaws”, New Orleans Times-Picayune, Nov. 10 — via InstaPundit). Meanwhile, the American Civil Liberties Union is soliciting racial-profiling plaintiffs in New Jersey. “The ACLU billboard, which went up last month, shows a photograph of two minority men and between them the words ‘Stopped or searched by the New Jersey State Police? They admit to racial profiling. You might win money damages,’ the sign reads. The ad includes the ACLU’s toll-free number.” (“Billboards in New Jersey Ask for Trooper Praise, Not Profiling Complaints”, FoxNews.com, Nov. 14).
November 16-18 – EEOC approves evacuation questions for disabled. To the relief of many in the business community, the Equal Employment Opportunity Commission has announced that it is not unlawful to ask workers about the state of their health for the purpose of formulating plans for emergency building evacuations. The September attacks called attention to the difficulty experienced in disaster situations by evacuees with such conditions as blindness, paraplegia, extreme obesity, and asthma. While employers may ask about problems that might impede evacuation, they should not insist on getting actual answers; EEOC officials recommend that they let each worker elect whether to disclose the information. The Americans with Disabilities Act has generally been interpreted as conferring on employees a broad legal right to conceal health problems from their employers. (Kirsten Downey Grimsley, “EEOC Approves Health Queries”, Washington Post, Nov. 1).
November 16-18 – Et tu, UT? Perhaps envying California its litigious reputation, the Supreme Court of Utah has ruled that it will not enforce releases in which parents agree to waive their children’s right to sue for negligence. The case involved a child thrown from a rented horse; the mother had signed a release before the accident, but then decided she wanted it invalidated so she could sue anyway. Attorney James Jensen, who represented defendant Navajo Trails, “listed many activities that now may be affected or curtailed, including school field trips, religious organization youth activities, scouting programs, amusement parks and ski resorts. ‘Anybody that provides recreational activities to minors,’ he said.” (Andrew Harris, “Utah High Court Says No Release of Liability to Children”, National Law Journal, Nov. 12).
November 15– “Poor work tolerated, employees say”. We keep hearing that if we were really serious about airport security we’d kick out those ill-paid Argenbright bag screeners and swear in a new 28,000-strong corps of federal employees to replace them. But a “new study concludes that federal workers themselves view many of their co-workers as poor performers who are rarely disciplined. The survey of 1,051 federal workers, conducted for the Brookings Institution’s Center for Public Service prior to the Sept. 11 terrorist attacks, found that on average federal employees believe 23.5 percent of their colleagues are ‘not up to par.’ Meanwhile, only 30 percent believe their organization does a very or somewhat good job of disciplining poor performers.” Those numbers are worse than the ones you get when you poll employees of private firms. At least when Argenbright botches things you can kick it out in favor of another contractor (Ben White, Washington Post, Oct. 30; Gregg Easterbrook, “Fighting the Wrong Fight”, The New Republic Online, Nov. 13).
November 15 – Lawyers’ immunity confirmed. In a dispute arising out of a developer’s plan to buy Fisher Island, home to many celebrities and wealthy persons, a Florida court has ruled that the developer cannot pursue a countersuit for tortious interference against residents who filed lawsuits aimed at derailing the deal, even if it can show they knew the suits to be unmeritorious. The court relied on a 1994 case in which the Florida Supreme Court ruled that an attorney’s acts in the course of litigation are subject to an “absolute” privilege: “We find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” Or, as the Miami legal paper puts it, “litigation itself is immune from litigation”. Put differently, people engaged in litigation boast an “absolute immunity” to engage in injurious behavior that would have a remedy at law if you or I tried it (Julie Kay, “Lawsuits of the Rich and Famous — and Their Two Dozen Law Firms”, Miami Daily Business Review, Nov. 1).
November 15 – Exxon Brockovich vs. Erin Valdez. The Ninth Circuit has struck down as excessive an Alaska jury’s $5 billion punitive award against Exxon over the Valdez oil spill, sending the case back for further litigation; compensatory damages are unaffected by the ruling (Henry Weinstein & Kim Murphy, “Court Overturns $5-Billion Judgment Against Exxon in ’89 Alaska Oil Spill”, L.A. Times, Nov. 8; Yahoo Full Coverage)(update Dec. 30, 2002: judge cuts award to $4 billion). Meanwhile, toxic-tort celebrity Erin Brockovich is helping spearhead a new effort to recruit plaintiffs from among the more than 15,000 workers who took part in the cleanup effort a dozen years ago, some of whom believe that it caused their health to take a turn for the worse. A Los Angeles Times account, after sympathetically relaying what would seem to be the most striking such cases the plaintiff’s team could come up with, concedes that “most health officials remain unconvinced that the cleanup left anyone sick”. (Nick Schulz, “Busy Bee Brockovich Looking to Sting Again”, TechCentralStation, Nov. 9; Kim Murphy, “Exxon Oil Spill’s Cleanup Crews Share Years of Illness”, L.A. Times, Nov. 5; Mary Pemberton, “Erin Brockovich probes Exxon complaints”, AP/ Anchorage Daily News, Nov. 6).
November 14 – “Rejoice, rejoice”. “[Y]esterday’s liberation of Kabul and much of the rest of Afghanistan is a great victory. … The moving scenes from the Afghan capital remind us … that most believing Muslims reject the rigorist insanity that bin Laden and the Taliban promote in their name, and are happy to worship God without having to wear a beard or a burqa. They can sing and dance again; women can work, and children can learn. The Taliban’s scorched-earth devastation of so many Afghan villages reveals their contempt for their own people, and their desertion of so many of their own Arab and Pakistani jihadis shows their capacity to betray. … Today, though, everyone who cast doubt on the possibilities of success and everyone who sneered at American ‘gung-ho’ should observe a period of silence. The rest of us should, to use a famous phrase from another war, ‘just rejoice rejoice’”. ((editorial), Daily Telegraph, Nov. 14; Paul Watson, “Taliban torturers on the run”, L.A. Times, Nov. 14; Christopher Hitchens, “Ha ha ha to the pacifists”, The Guardian, Nov. 14; Dexter Filkins, “In Fallen Taliban City, a Busy, Busy Barber”, New York Times, Nov. 13).
November 14 – Insurance market was in trouble before 9/11. With alarms being heard about an impending crisis in the availability of commercial insurance, it’s worth noting for the record that conditions were deteriorating rapidly in that market even before Sept. 11, mostly because insurers were pulling back from liability exposures: “Among the lines tightening the most are products liability, umbrella liability, contractor liability and nursing home liability, insurers and brokers say,” reported the July 2 issue of the trade publication Business Insurance. Also in scarce supply was coverage for “anything with an occupational disease exposure, like insulation and cell phones,” said one industry observer, Tom Nazar of Near North. “Generally, premiums for most liability lines are increasing anywhere from 25% to 60%,” with transportation risks seeing rate hikes of 100-200 percent and nursing homes 150 percent, said another insurance exec — all this well before the WTC attacks hit carriers with the largest losses from a single insured event in history. (Joanne Wojcik, “Transportation takes biggest hit in hardening market”, Business Insurance, July 2 (online subscribers only), and other contemporaneous coverage in the same publication). Directors’ and officers’ liability was another big problem area, especially for companies in fields such as high tech and telecom, financial services and health care. “The risks facing the steepest premium increases are pharmaceutical companies, nursing homes and contractors, especially organizations located in the litigious markets of California, Illinois and New York, insurance executives said.” In workers’ comp, “loss severity continues to deteriorate”.
And then there was asbestos: an August Standard & Poor’s report indicated that insurers were setting aside an additional $5-10 billion this year for asbestos claims, above earlier amounts reserved. “The implications to the insurance community are potentially devastating,” says the report. “Other analysts and ratings agencies recently have estimated that the insurance industry would need to put up as much as $20 billion to $40 billion more to cover their asbestos exposure. In May, ratings firm A.M. Best Co. calculated that insurers have set aside $10.3 billion to pay additional asbestos claims, having already paid out $21.6 billion.” A not-insubstantial portion of those sums, as we know, will go to compensate persons who are not sick from asbestos and never will be — raising once again the question of why we don’t try harder as a society to reserve the limited pool represented by insurance for situations where it’s really needed (Christopher Oster, “Insurers to Set Aside Additional Billions For Asbestos Claims”, Wall Street Journal, Aug. 1 (online subscribers only)). On proposals to bail out insurance markets since the attacks, see Scott Harrington and Tom Miller, “Insuring against terror”, National Review Online, Nov. 5. (DURABLE LINK)
November 14 – “Diabetic German judge sues Coca-Cola for his health condition”. Why should American lawyers have all the fun? In a trial that began Monday in Essen, Germany, Hans-Josef Brinkmann, 46, a judge in the east German town of Neubrandenburg, says the beverage company is partly responsible for his developing diabetes after drinking two bottles of Coca-Cola a day for years. He further “disputes the contention of the drinks company that Coca Cola is a ‘flawless foodstuff’ … Brinkmann plans to bring a similar case against Masterfoods, manufacturers of Mars Bars, Snickers and Milky Way chocolate candy, in January.” Whether Herr Brinkmann wins or loses these suits, we hope he’ll come to America — we bet he’d have no trouble landing a job at one of our law schools. (AFP/Times of India, Nov. 14) (more).
November 13 – From the paint wars: a business’s demise, a school district’s hypocrisy. “Sherwin-Williams Co. acquired Mautz Paint Co. Thursday after the local company said it could no longer afford facing a costly lawsuit filed by the city of Milwaukee. Bernhard F. ‘Biff’ Mautz, the company’s chairman of the board, said negotiations to sell the [family-owned] firm intensified in April after the city of Milwaukee filed suit seeking more than $100 million in damages over the manufacture of lead-based paints decades ago.
“‘Although we believe the city’s case is meritless and Mautz will ultimately be absolved of any responsibility, for the first time in our history we were faced with years of litigation, which even if (the plaintiff was) unsuccessful, would destroy our small company,’ he said. …
“The sale price was not released, but Mautz President Dan Drury said it was discounted to reflect the costs of the lawsuit. Founded in 1892, Mautz employed 260 people at its 33 retail stores and manufacturing plant. It had sales of $32 million last year. …
“Wisconsin Manufacturers & Commerce said the sale of the one of Madison’s oldest businesses will make it more difficult for the state to attract new businesses. ‘This is a sad day in the state of Wisconsin,’ said James S. Haney, the organization’s president. ‘This is every business person’s worst nightmare. Mautz got in the gun sights of the contingency fee trial lawyers and the bureaucrats and now another homegrown locally owned business with strong ties to the community is gone.’” (“Mautz announces acquisition by Sherwin-Williams”, AP/Janesville (Wis.) Gazette, Nov. 9).
Meanwhile: In Houston, where contingency-fee lawyers have been recruiting local school districts to go after paint companies, the lawsuit filed by the Spring Branch School District claims that residual paint from decades past exposes students and teachers to “a substantial risk of lead poisoning” — a dramatic charge indeed. Which left Jon Opelt, executive director of Citizens Against Lawsuit Abuse Houston and the parent of a child in the district, wondering why “the school district has never notified me, as a parent, of the presence of any health or safety risks related to lead. No cautionary notes have been sent home with my children. No alarming studies have been released discussing the severity of the problem in our schools.’”
Which naturally raises the question: is there a genuine lead hazard, which the district has been covering up from parents, or just a phony hazard, which their lawyers are conjuring up in an effort to squeeze money from manufacturers? Opelt: “Ron Scott, a lawyer for the school district, is quoted in a Houston Chronicle article as saying: ‘This isn’t a panic issue. People don’t need to feel their schools are unsafe.’ Duncan Klussmann, a district administrator, told me, ‘Your child is not at risk.’ These are the very same people who signed onto a lawsuit that says there is a ‘substantial risk of lead poisoning.’ What are we to believe? District officials are telling parents their schools are safe but their lawsuit demands millions of dollars for addressing a dangerous situation caused by lead paint. Both cannot be true.” (CALA Houston website, “Parent Urges School District To “Get The Lead Out“, “Contrary to Other Reports“, David Waddell, “Why Should Safety Be a Secret?“, Annette Baird, “District: Lead-paint concerns in check”, Houston Chronicle, Oct. 17). (DURABLE LINK)
November 13 – Update: ousted quartet member wins damages. “A Pennsylvania judge has ordered three members of the Audubon Quartet to pay their former colleague David Ehrlich more than $600,000 in damages, adding yet another dramatic twist to the legal battle that has largely silenced the internationally acclaimed quartet since February 2000 and cost the group its home at Virginia Tech.” (Kevin Miller, “Ousted quartet member should receive damages, judge rules”, Roanoke Times, Oct. 16; “In Support of the Audubon Quartet“; summary of court opinion) (see June 5, 2000, June 14, 2001). Update May 10-12, 2002: defendants could lose house.
November 13 – Women’s rights: British law, or Islamic? According to columnist Theodore Dalrymple of The Spectator, a misguided multiculturalism has led authorities in the United Kingdom to adopt a hands-off policy toward some British Muslim families’ trampling of their young daughters’ rights (“The abuse of women”, Oct. 27).
November 12 – “Morales trying to ‘clear the air’ before campaign”. Many assumed the political career of former Texas attorney general Dan Morales was dead, dead, dead after allegations began flying in the papers about the circumstances under which he’d hired outside lawyers to represent the state in the tobacco affair and share one of the largest fee windfalls in history (see Sept. 1-3, 2000). But now Morales wants to run for the U.S. Senate seat being vacated by Phil Gramm and is insisting with new vehemence that he never acted improperly and that it’s all been a misunderstanding. Two of his lawyers have “asked a state district court in Austin to let Morales lay the groundwork for a possible defamation suit by taking the sworn testimony of four former associates. Morales wants to question John Eddie Williams Jr. of Houston — one of five trial lawyers who shared $3.3 billion in legal fees from the tobacco case — and three former assistants in the attorney general’s office — Harry Potter of Austin and Jorge Vega and Javier Aguilar of San Antonio. He indicated that Williams and Potter, who was actively involved in the tobacco suit, could be targets of any suit he may file.” Pull up a chair, this promises to be interesting (Clay Robison, Houston Chronicle, Nov. 7). Morales also continues to deny “allegations by Houston trial lawyer Joe Jamail that Morales improperly solicited $1 million from each of several lawyers he considered hiring for the tobacco suit.”
November 12 – Short-sellers had right to a drop in stock price. At least that’s the premise underlying this press release and lawsuit from a class action law firm seeking the right to sue on behalf of short-sellers who feel their speculative bets against the stock of Intelli-Check Inc. were stymied by the company’s allegedly over-sunny fiscal projections. (“Speziali, Greenwald & Hawkins, PC Announces the Filing of a Class Action Suit on Behalf of Short-Sellers of Intelli-Check, Inc. (Amex: IDN) Securities”, Yahoo/PR Newswire, Oct. 18).
November 12 – “U.S. Debates Info on Chemical Hazards”. “Separate hearings in the House and Senate [were] held this week to reassess the safety of chemical and industrial facilities in the light of recent terrorist attacks. A key policy at stake is the so-called ‘right to know’ law, which requires the federal government to publicly disclose sensitive information about facilities around the country that could be used by terrorists to target the most dangerous locations.” Jeremiah Baumann, a spokesman for the Nader-empire U.S. Public Interest Research Group, called for preserving public access to the sensitive information. “‘Let’s at least make the bad guys work for it,’ countered Amy E. Smithson, a chemical and biological weapons analyst for the Henry L. Stimson Center think tank.” Smithson said “[t]he Clinton EPA’s decision to post those plans for some 15,000 plants on the Internet in August 2000 ‘wasn’t just bad, it was colossally bad’.” (John Heilprin, AP/Yahoo, Nov. 8) (see Oct. 1). More: Carol D. Leonnig and Spencer S. Hsu, “Fearing Attack, Blue Plains Ceases Toxic Chemical Use”, Washington Post, Nov. 10 (chlorine use at Washington sewage treatment plant); Jonathan Adler, “How the EPA Helps Terrorists”, National Review Online, Sept. 27; “Environmental Danger”, Oct. 11; Angela Logomarsini, “Laws that Make Terror Easy”, New York Post, Oct. 12; “‘Right To Know’ Hearings – Taking Away Terrorist Tools”, Competitive Enterprise Institute press release, Nov. 7.
Tagged as:
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attorneys general,
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contingent fee,
Erin Brockovich,
Exxon,
Germany,
Houston,
Illinois,
Joe Jamail,
lead paint,
libel slander and defamation,
Louisiana,
New Jersey,
nursing home,
Ohio,
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South Carolina,
statutes of limitations,
tobacco,
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Wisconsin
August 10-12 – Smile-flag lawsuit. Dr. Patricia Sabers, a dentist in Sarasota, Fla., sometimes flies a colorful pennant adorned with smiles outside her office, but now a rival dentist, Mitchell Strumpf, is suing her, saying the smile on her flag is a distinctive design that he registered as a service mark some years ago and which he thus has the exclusive right to display in the area. “Sabers said her generic-looking flag comes from a dental supply company catalog”. Sabers “should get her own service mark,” said Strumpf’s attorney, Michael Taaffe. “It’s not a laughing matter.” (Kelly Cramer, “Smile logo brings frowns”, Venice Herald-Tribune, July 31).
August 10-12 – Perils of extraterritorial law. Elite opinion in the U.S. has been relatively uncritical toward the idea of putting unpopular foreign leaders on trial outside their home country for outrages committed in their official capacities, but the policy could easily backfire against us given that there are an awful lot of people and factions around the world aggrieved at the United States and its leaders, observes the former chief of staff of the Senate Foreign Relations Committee (Pat M. Holt, “The push for human rights could hurt Americans”, Christian Science Monitor, Aug. 2). And agitation continues for a lawsuit against the U.S. in international courts to blame us for global warming and our failure to back stronger steps against it (Andrew Simms, “Global Warming’s Victims Could Take U.S. to Court”, International Herald Tribune, Aug. 7).
August 10-12 – School email pranksters to Leavenworth? Sen. Robert Torricelli (D-N.J.) recently introduced a bill called the School Website Protection Act of 2001 which would provide that anyone who “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally affects or impairs without authorization a computer of an elementary school or secondary school or institution of higher education” will to go federal prison for up to 10 years.” Critics say the bill “is worded so vaguely it would turn commonplace activities into federal crimes to be investigated by the U.S. Secret Service.” “Sending one unsolicited e-mail affects a computer,” says Jim Dempsey, deputy director of the Center for Democracy and Technology. “If I send an e-mail to my student’s teacher and I didn’t have her permission, I violate the act.” (“Senator Targets School Hackers”, Declan McCullagh, Wired News, Aug. 1).
August 10-12 – New in Letters. The operator of an online pet store writes in to amplify our coverage of his recent suit against participants in a hobbyist listserv (more).
August 10-12 – U.K.: Labour government proposes curbs on malpractice awards. In Britain, the newly reelected Labour government of Tony Blair is proposing to limit skyrocketing awards in medical malpractice cases against the National Health Service. It wants to adopt “fixed tariffs of compensation”, i.e. prescheduled amounts for types of injury that can be looked up in tables in lieu of individualized argumentation. Also in the works is a shift to in-kind awards, such as the provision of future nursing services, instead of large lump sums. “The Government is keen to cut the amount paid in lawyers’ fees — which often exceed the damages awarded by the courts.”
“The tariff scheme is similar to one brought in by the previous Tory government — amid stiff Labour opposition — to cut the cost of criminal-injuries compensation. Mr Milburn [Health Secretary in the Blair Cabinet] is determined to take an axe to the spiralling cost to the health service of legal claims which he believes are being driven by profiteering lawyers. ‘We need to get the lawyers out of the operating theatres and off the backs of doctors — and get doctors out of the courts,’ said a Health Department aide. ‘The amount of litigation is rising and causing distress not only to NHS staff but also to patients who find themselves drawn into protracted and upsetting legal battles.’” The Bar Council, representing barristers, has already attacked the proposals. (Joe Murphy and Jenny Booth, “Labour blocks big payouts to victims of NHS blunders”, Sunday Telegraph (U.K.), July 8).
August 9 – Why we lose workplace privacy. Employers are monitoring their employees’ email, web surfing logs and hard drives more than ever these days, and the number one reason is to protect themselves from lawsuits. “Almost every workplace lawsuit today, especially a sexual harassment case, has an E-mail component,” says one expert. Plaintiffs’ lawyers subpoena hard drives in search of sexually oriented jokes or other material they can use to build a case, and rather than leave themselves vulnerable many companies conduct pre-emptive searches before disputes arise. (Dana Hawkins, “Lawsuits spur rise in employee monitoring”, U.S. News & World Report, Aug. 13).
August 9 – “Nudist burned while fire-walking files lawsuit”. “A nudist whose feet were burned while fire-walking has filed a lawsuit that accuses event organizers of leading participants to believe the stunt was safe.” The suit by Eli Tyler of El Cajon claims that the organizer “told participants the walk would be ‘a safe and spiritual experience’” but that seven participants were hospitalized with severe burns to their feet. The owner of the resort where the event took place, who is also named as a defendant in the action, “said participants were warned of the dangers and each agreed not to sue if they were injured.” (AP/Sacramento Bee, Aug. 8).
August 9 – Forbes on lead paint suits, cont’d. The “suits claim the companies misrepresented the paint as safe for use around children. Evidence? In 1920 National Lead told retailers to be nice to children because they might someday be customers. More: In 1930 the company distributed coloring books with poems and a cartoon drawing of its Dutch Boy character. Hard to imagine children having much influence on paint purchases.” (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14 (reg)).
August 7-8 – Victory in California. By a 5-1 margin, the California Supreme Court has ruled that crime victims cannot sue gun manufacturers over criminals’ misuse of their wares. In doing so it reinforces a trend so clear that some day it might even sink in to the folks over at the hyperlitigious Brady Campaign: “Every state high court and federal appellate court in the nation to consider such lawsuits has ruled that makers of legal, non-defective guns cannot be sued for their criminal misuse.” (“California Supreme Court Says Gunmaker Not Liable in Killing Spree”, AP/Fox News, Aug. 6).
August 7-8 – Wrong guy? Doesn’t seem to matter. Antonio Vargas, a bus driver in Northern California, has the same name as an Antonio Vargas who owes child support in San Bernardino County, in Southern California. He’s been trying to disentangle himself from attachments, process servers and other legalities aimed at the other Mr. Vargas, but with at best temporary success — and it’s been going on for twenty years, he says. An official with the desert county acknowledges that Mr. Vargas’s protestations of being the wrong guy were probably ignored for a while; so many men falsely use that excuse that why should they listen?, seems to be the official’s reasoning (Dan Evans, “It’s the wrong Vargas”, San Francisco Examiner, Aug. 2).
August 7-8 – Trial lawyers vs. OxyContin. The breakthrough pain medication, a timed-release opioid, has brought unprecedented relief to sufferers from advanced cancer and chronic disease but can result in addiction if improperly prescribed and is unusually easy to abuse on purpose: users crush the time-release capsules into a powder that yields a heroin-like high when snorted or injected. Now, amid public alarm about its emergence as “hillbilly heroin”, lawyers have filed billions of dollars in claims against the drug’s manufacturer, Purdue Pharma, distributor Abbott Labs, and other companies; they’re also advertising heavily for clients, and the state of West Virginia has stepped in with its own suit. Well-known Cincinnati tort lawyer Stanley Chesley, of breast-implant and hotel-fire fame, is “working with a group of lawyers from Ohio, Kentucky and West Virginia on similar cases.” If such litigation drives the drug off the market, a million or more legitimate users may be forced back to lives of agonizing pain, but that won’t be the lawyers’ problem, now, will it?
SOURCES: “Maker of OxyContin is hit with lawsuits”, AP/Baltimore Sun, July 27; Paul Tough, “The Alchemy of OxyContin: From Pain Relief to Drug Addiction”, New York Times Magazine, July 29 (reg); National Clearinghouse for Drug and Alcohol Information; Amanda York, “1st Ohioan named in Oxy suit”, Cincinnati Enquirer, July 10; Norah Vincent, “A New ‘Worst’ Drug Stirs Up the Snoops”, Los Angeles Times, July 19; Eric Chevlen, “A Bad Prescription from the DEA”, Weekly Standard, June 4; “W.Va. files first state suit against OxyContin firms”, AP/Charleston Daily Mail, June 12; Common Sense for Drug Policy; “Oxycontin Lawsuit Aims For Class-Action Status”, Roanoke Times, June 19; many more links (Google search on “Oxycontin + lawsuits”). If you click on “OxycontinInfoCenter.com“, a sponsored link on Google, you get “Oxycontin law info and lawyers who specialize in Oxycontin litigation” (see also July 25).
August 7-8 – Dotcom wreckage: sue ‘em all. Class action firms are suing not only investment banks and directors of failed dotcoms, but also executives and lenders. (Joanna Glasner, “Bankrupt? So What? Lawyers Ask”, Wired News, Aug. 6).
August 7-8 – “Judge orders parents to support 50-year-old son”. “In what could turn out to be a landmark decision, a Ventura County Superior Court judge ordered a Ventura couple to support their 50-year-old son indefinitely. Judge Melinda Johnson ruled two weeks ago that James and Bertha Culp of Ventura pay their son David Culp $3,500 a month for living expenses because he is incapable of supporting himself. Culp suffers from depression and bipolar disorder.” The son had practiced as an attorney for 19 yearss, but his practice fell apart and he went on disability. “Johnson based her ruling on state law, Family Code section 3910(a). It states that ‘the father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means,’” language which the judge called “unambiguous on its face”. Representatives of the National Alliance for the Mentally Ill called the decision a “bad judgment” that could “set a terrible precedent”. (Leslie Parrilla, Ventura County Star, Aug. 2).
August 6 – “Airline restricts children flying alone”. America West Airlines, changing its previous policy, has announced that it will no longer allow children of 11 years or less to fly alone on connecting (as opposed to nonstop) routes. Last month a young girl traveling from L.A. to Detroit was mistakenly allowed to board a connecting flight to Orlando, and it took nearly a day before she was reunited unharmed with her father. The father, Bill McDaniel, said he was thinking of hiring a lawyer and suing because the airline’s proffered free ticket and other compensation was not enough. So now all families, including those who believe their kids can handle the responsibility, stand to lose a freedom that saves them a lot of money as well as hassle (Channel 2000, Aug. 3; “Airline Puts Young Girl On Wrong Plane”, July 18).
August 6 – Big fish devour the little? After hobbyists on a listserv dealing with aquatic plants criticized one online pet store for allegedly “horrible” service and worse, its operator proceeded to sue various individual posters who he says defamed his company with such comments. His complaint asks for $15 million in compensatory and punitive damages. (Aquatic Plants Mailing List listserv; discussion; TheKrib.com; AquariaCentral forums; Usenet rec.aquaria.freshwater.plants) (see letter to the editor from Robert Novak, owner of PetsWarehouse.com, Aug. 10)(see extensive update on case May 22-23, 2002).
August 6 – When trial lawyers help redesign cars. Class action lawyers suing GM over its old C/K full-size pickup trucks are venturing onto what you might think is perilous ground by proposing a retrofit change to the vehicles’ design, with effects on performance that can’t be foreseen with complete certainty. Aren’t they worried that if the design turns out to malfunction in some way they’ll be held responsible for the consequences? (Well, no, they probably aren’t, since they’ll just find some way to blame the carmaker if that happens.) (Dick Thornburgh (former U.S. attorney general), “Designing Ambulances and Retrofitting Class Actions”, National Law Journal, July 18).
August 6 – Mailing list switch. If you’ve been on the list to receive our periodic announcements of what’s new on Overlawyered.com, you should by now have received an email from Topica.com, our new list-hosting service, inviting you to continue your subscription. To do so, just respond to their email. If you take no action you’ll automatically be dropped from the list as ListBot closes down. If you discarded or didn’t receive the Topica email, or would like to join the list for the first time (it’s free), just visit our mailing list page.
Another logistical note: we’ve now established a separate archives page that makes it easier to navigate Overlawyered.com‘s archives without repeatedly having to download large pages. Just as we encourage you to bookmark our search page if you expect to perform frequent searches at our site, so we encourage you to bookmark the new archives page if you expect to browse our archives often.
August 3-5 – “Lawyers pay price for cruel hoaxes”. “Two Florida lawyers, whose paternity hoaxes last year cost families of four Alaska Airlines crash victims hundreds of thousands of dollars to rebut, finally will have to pay for a smidgen of the damage they inflicted.” Attorneys Robert Parks and Edgar Miller of Coral Gables, Fla. filed suits on behalf of four distinct sets of supposed secret Guatemalan heirs claimed to have been fathered by men who perished on the doomed flight without direct heirs (see Nov. 29, 2000, April 10, 2001). The suspiciously multiple nature of the filings was noticed only by chance, and the outraged families of the deceased had to spend hundreds of thousands of dollars to fend off the phony heirs’ claims. Now, Parks and Miller have agreed in a court-ordered mediation to pay $225,000 toward the families’ costs; Seattle lawyer Harold Fardal, who assisted their claims, will help split the cost, though it doesn’t begin to cover the expense the families faced in rebutting the claims. “Miller, by his own admission, has [represented survivor claims] as many as 100 times before, mostly in Central and South America.”
To investigate the phony claims, the surviving Clemetson and Ryan families sent investigators to Guatemala, where the supposed secret heirs lived. “But an investigator and a court-appointed guardian found that the birth records were forged. They found that the alleged grandmothers couldn’t keep the girls’ names straight, couldn’t say where their own daughters were born or how they died, couldn’t remember their own addresses and had no knowledge of the details alleged in the inheritance claims. In February, DNA tests proved the girls weren’t related to the men.” The families now say they may file a complaint with the Florida bar against Parks and Miller. (Candy Hatcher, “Lawyers pay price for cruel hoaxes”, Seattle Post-Intelligencer, Aug. 2; “Claims against two Flight 261 victims thrown out” (AP), Feb. 7; “Heirs claimed in Flight 261 twist” (AP), Nov. 22, 2000).
According to Seattle Post-Intelligencer columnist Candy Hatcher, Seattle attorney Mark Vohr, who later withdrew from the case, sent the same photograph of two little Guatemalan girls to two different families against whom he was pursuing secret-heir claims. And: “The woman who was providing temporary housing for the girls and their ‘grandmothers’ said she was working with a ‘lawyer’ in Florida who had helped her when both her husbands died in aviation disasters in Central America. The ‘lawyer’ turned out to be an investigator for the Florida lawyers.” (“False claims add to the agony of a tragedy”, Feb. 26). See also Richard Marosi, “Unexpected ‘Heirs’ of Flight 261″, L.A. Times, Jan. 31, no longer online at Times site but Googlecached. (DURABLE LINK)
August 3-5 – More from Judge Kent. Yesterday we linked to a scorching opinion by Judge Samuel Kent of the U.S. District Court for the Southern District of Texas, excoriating what he saw as incompetent pleadings by the lawyers on both sides of a maritime injury case. Reader Keith Rahl points out that this is just the most recent in a series of colorful opinions from Judge Kent’s pen, and directs our attention to two of them that have been reprinted at The Smoking Gun: one in which he orders a change of venue (to the District of Columbia) for a suit that lawyers for the government of Bolivia had filed in his Galveston courtroom against the tobacco industry; and this one turning down a defendant’s request to transfer a case to Houston due to claimed travel inconveniences.
August 3-5 – Dra-clonian. By a margin of 265 to 162, the U.S. House of Representives has voted “to approve the Human Cloning Prohibition Act of 2001. It would impose steep criminal and civil penalties on any individual violating the ban — even scientists who create cloned human cells solely for research purposes. The penalties make participation in human cloning in any way — from creating cloned human cells to patients receiving medicine based on such research done abroad — subject to a felony conviction that could bring a 10-year prison term and, if done for profit, civil penalties of more than $1 million.” (Megan Garvey, “House Approves Strict Ban on Human Cloning”, L.A. Times, Aug. 1; Kristen Philipkoski, “What Side Effects to a Clone Ban?” Wired News, Aug. 1) The best critique we’ve seen of the stampede to legislate has come from Virginia Postrel at her VPostrel.com (several entries in recent weeks; also check out her new commentary on firearms and journalists).
August 2 – Fee fights. They’re worse than catfights, aren’t they? Lawyers are snapping and swatting at each other over the fee spoils of several dubious but lucrative mass-tort cases. “Wallace Bennett, former associate dean at the University of Utah’s law school, is suing well-known lawyer Robert DeBry, claiming his old friend is cheating him out of money he earned while they worked together on national breast implant litigation. … Bennett was part of a legal team that included former U.S. Sen. Frank E. Moss and former Utah Supreme Court Justice D. Frank Wilkins. … [He] alleges breach of contract, intentional breach of fiduciary duty, conversion and fraudulent transfer of assets, and usurpation of business opportunities.” (Elizabeth Neff, “Former U. of U. Dean Sues Ex-Law Partner Over Fees”, June 28, Salt Lake Tribune, no longer online on Tribune site but Googlecached). The breast implant campaign was based on charges of systemic illness soon refuted in scientific studies, which didn’t stop trial lawyers from cashing in a $7 billion settlement.
Meanwhile: “Several of the plaintiffs’ lawyers in the massive Orthopedic Bone Screw case are putting the screws to each other as an ugly battle has erupted” over how a court divided $12 million in fees deriving from a $100 million settlement by Acromed Corp. Among the charges flying: fraud, contempt of court and abuse of process. (More on the bone screw litigation: Oct. 24, 2000.) (Shannon P. Duffy, “Disgruntled Lawyers Sue in Louisiana to Get Bigger Share of Bone Screw Fees”, The Legal Intelligencer, July 18). Last but certainly not least, anti-tobacco prof. Richard Daynard has followed through on his pledge to sue legal sultans Richard Scruggs and Ron Motley, claiming they’d promised to cut him in on a 5% contingency share of the maybe $3 billion they stand to haul in from the tobacco caper. “In his role as intellectual godfather of tobacco litigation, Daynard has been quoted in news articles hundreds of times — though always as a public health advocate, never as a private litigator.” (see April 21, 2000). Scruggs and Motley “said that if Daynard had indeed been a member of their legal team, his attacks on a settlement proposal favored by their clients, the states, would have been a serious ethical lapse.” (Myron Levin, “Tobacco Wars’ Huge Legal Fees Ignite New Fight”, Los Angeles Times, May 20, reprinted at NYCClash.com)
August 2 – “Baskin-Robbins lawsuit puts family in dis-flavor”. The Janze family of Alamo, Calif. is surprised to have gotten such a disrespectful reception in the press and on the Web for its lawsuit against the ice cream chain over a frozen confection strewn with fizzy “Pop Rocks”, a scoop of which they say sent their 5-year-old daughter Fifi to the hospital. “Shrek Swirl” is “one of several ogre-related treats tied to the animated movie ‘Shrek’.” Baskin-Robbins spokeswoman Debra Newton “said the Janzes’ complaint has been the only one reported to the company. ‘What we can tell you is that we have absolutely no indication that there are any safety concerns whatsoever with Shrek Swirl,’” Newton said. (Claire Booth, Knight-Ridder/Bergen County (N.J.) Record, July 19).
August 2 – “Ouch”, they explained. It’s every lawyer’s nightmare: to be the target of a judicial opinion as scathing as this one from federal judge Samuel Kent (S.D. Tex.). Neither side’s attorney gets out unscorched (Bradshaw v. Unity Marine, June 26, reprinted at National Review Online).
August 1 – Batch of reader letters. Latest assortment covers everything from exploding Pop-Tarts and special-ed “mainstreaming” to small claims reform, IOLTA and zero tolerance, and includes an explanation of an unusual photograph sent in by a reader.
August 1 – “Businesses bracing for flood of lawsuits after state court ruling”. “If you wear glasses, use a hearing aid or take medication for high blood pressure, you now may be legally disabled in California.” Sacramento’s homegrown version of disabled-rights law is even more sweeping than the federal Americans with Disabilities Act, and the divergence has been widened by a new state law that “significantly broadens the definition of disabled and throws open the courthouse doors to workers with a wide range of diagnosable ailments — from depression to chronic back pain.” Things got even dicier “when a state appeals court in Los Angeles ruled that the new law applies retroactively to potentially thousands of cases that arose before Jan. 1, when the law went into effect. Employers are bracing for an onslaught of claims, warning that the statute signals open season on business.” (Harriet Chiang, “Businesses bracing for flood of lawsuits after state court ruling”, San Francisco Chronicle, July 29; Mike McKee, “California Disability Rules Declared Retroactive: State Supreme Court May Have to Referee”, The Recorder, July 27).
Tagged as:
Alaska,
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Baltimore,
Cincinnati,
Detroit,
global warming,
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Houston,
Kentucky,
lead paint,
Louisiana,
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Ohio,
Seattle,
tobacco,
Utah,
West Virginia,
zero tolerance
April 10 – “The love children of Flight 261″. “Families of four men killed in the crash of Alaska Airlines Flight 261 en route from Puerto Vallarta, Mexico, claim they are victims of a cruel scam. Attempting to cash in on multimillion-dollar wrongful-death lawsuits, claimants in Guatemala said the men had all secretly fathered children in that country. The families say the lawyers representing the phony heirs knew, or should have known, their clients’ claims were fraudulent.” We covered this story (via the San Francisco Chronicle and Aero News Network) back on Nov. 29, but this new piece adds some telling details: for example, two of the (genuine) survivor families say they had to spend $200,000 to fend off the supposed Guatemalan heirs, and they wonder why the American lawyers who represented those claimants shouldn’t be held financially accountable for the harm their lawyering inflicted, especially since two of these lawyers — Robert Parks and Edgar Miller of Coral Gables, Fla., — just happen to have represented all four sets of supposed secret Guatemalan children to file claims in connection with Flight 261 (Bob Van Voris, National Law Journal, Apr. 9). (& see Aug. 3).
April 10 – Canada’s secret legal aid. In the United States, the Legal Services Corporation subsidizes litigation efforts meant to push the law in a “good” or “progressive” ideological direction, and has accordingly long met with criticism from those of us who are not convinced that the proposed changes in the law are always so great and wonder why everyone’s tax dollars should be handed over to one side of these debates to pursue essentially ideological court struggles. Our neighbor to the north has hit on a handy way to keep its aid program for “law-reform” litigation from being as controversial as ours: it simply refuses to disclose the recipient list (Scott Edmunds, “Recipients of Ottawa’s legal aid kept secret”, Canadian Press/National Post, Feb. 26).
April 9 – By reader acclaim: “Clowns told to get custard pie insurance”. Clowns in Britain are “terrified to the tips of their red noses” that unappreciative patrons will sue them over injuries from thrown pies and water-squirting, or more hazardous acts such as those involving fire and unicycles. Ian James, who heads the performers’ trade union, says that while none of his colleagues in the United Kingdom have yet been sued, “we are worried now that British audiences may be becoming like American, ready to sue anyone for anything.” (Alan Hamilton, “Stop clowning around, clowns told”, The Times (UK), April 6; Reuters/Yahoo, Apr. 6).
April 9 – Plastic cup blamed for child’s autism. A “personal injury lawyer is threatening a lawsuit alleging a plastic drinking cup caused a child’s autism … Dallas-based lawyer Brian R. Arnold wrote Playtex Products, Inc. in January alleging that a toddler became seriously ill and, eventually, ‘began to exhibit autistic behavior,’ after drinking from a plastic spill-proof cup made by Playtex. Arnold claims the spill-proof cup was designed in a defective manner that allowed bacteria and mold to build in the cup. Alleging the bacteria caused the child’s condition, Arnold accused Playtex of negligence in distributing a defective cup and demanded $11 million in damages.” Although the causes of autism remain unknown, “there is a network of ‘experts’ who are ready, willing and able to support such a wild claim”. (Steven Milloy, “Quack Attack! The Case of the Dangerous Sippy Cup”, Fox News, Apr. 6).
April 6-8 – “Court upholds workers compensation for drunk, injured worker”. “A man who got drunk on a business trip and suffered severe frostbite after passing out in very low temperatures should be entitled to worker’s compensation, the Wisconsin Supreme Court ruled Wednesday. The court in a 4-3 decision upheld the ruling of the Wisconsin Industry Review Commission, which said William Larsen was in northern Wisconsin expressly for work, but it also reduced Larsen’s compensation by 15 percent, since he was injured while he was intoxicated.” (“Court upholds workers compensation for drunk, injured worker”, AP/Milwaukee Journal Sentinel, Apr. 4; Jessica McBride, “Worker prevails in frostbite case”, Apr. 4).
April 6-8 – Suing “The Sopranos”. “An Italian-American lawyers group says it will sue the makers of HBO’s ‘The Sopranos’ series today for offending the ‘dignity’ of Italian-Americans by implying most of them are mobsters. … [citing] Section 20 of Illinois’ Constitution [which] reads in part: ‘Communications that portray criminality, depravity or lack of virtue in . . . a group of persons by reason of or by reference to religious, racial, ethnic, national or religious affiliation are condemned.”" (Abdon M. Pallasch, “Stung by ‘Sopranos’”, Chicago Sun-Times, April 5; Matt Zoller Seitz, “Advocacy group claims series runs afoul of the law”, Newark Star-Ledger, Apr. 5) (Update Sept. 21-23: judge dismisses; Jul. 12-14, 2002: case dropped after appellate court upholds dismissal).
April 6-8 – Target: Alka-Seltzer. Until November, phenylpropanolamine (PPA) “was a ubiquitous ingredient in over-the-counter cold remedies and diet aids found in practically everyone’s medicine cabinet,” including Alka-Seltzer, Contac, Tavist-D, Robitussin, Acutrim and many more. Now it’s been withdrawn following a study suggesting that its use may correlate with a slightly elevated (though still very small) risk of stroke. Trial lawyers, who expect thousands of suits to result, are vigorously advertising for clients who suffered strokes and had previously used common over-the-counter remedies containing PPA — and if it isn’t easy to sort out the genuine propter hocs from a haystack of specious post hocs, well, that’s what we have jury trials for, right? (Bob Van Voris, “Plaintiffs Rev Up New PPA Drug Lawsuits”, National Law Journal, March 19; FDA information page; list of OTC products (Aphanet)).
April 5 – Selling out the class? “Angry plaintiffs’ lawyers have accused other members of the plaintiffs’ bar of colluding with H&R Block and Beneficial National Bank to settle litigation allegedly worth more than $1 billion for just $25 million.” The underlying litigation charged that Block violated federal truth-in-lending laws and state laws by not adequately disclosing to its customers that it got a referral fee and other financial benefits when they took out “Refund Anticipation Loans”. Now a group of plaintiffs’ lawyers allege that with the litigation reaching a dangerous stage in other courts, Block negotiated a quick and confidential settlement of the class claims with a group of Chicago plaintiffs’ lawyers who cut the deal without conducting discovery or consulting with experts. The Chicago lawyers heatedly deny that the settlement was collusive; a federal district judge found in their favor, rejecting the objectors’ arguments and approving the settlement, but the objectors have appealed to the Seventh Circuit. (Elizabeth Amon, “Class Action ‘Collusion’ Claimed in H&R Block Appeal”, National Law Journal, Mar. 26) (see also Dec. 3).
April 5 – “Lungren now a paid advocate for his former foes”. Former California Attorney General Dan Lungren since leaving office has been “doing something that has surprised detractors and admirers alike. He’s being paid to help his longtime political adversaries — a group of plaintiffs’ attorneys. Lungren, a Republican, testified late last month that he has earned $204,000 in 11 months as an expert witness and consultant to the Castano group of 60 law firms. The firms are trying to win billions of dollars in lawyer fees for their role in suing tobacco companies.” At the time, Lungren opposed having the state hire private tort firms to sue — “We are simply not selling tickets to a lottery for law firms,” he said in 1997 — but now he testifies that the lawyers’ efforts were vital. “It’s further proof that the tobacco fee awards are so astronomical that there’s enough money for everybody, even Lungren,” said John Sullivan, president of the Civil Justice Association of California, which criticizes litigation excesses. (Bill Ainsworth, San Diego Union-Tribune, March 14 — search on “Castano”).
April 3-4 – Patenting the web? A small Chicago firm named TechSearch holds a patent which it believes entitles it to exclusive rights over some of the basic image-serving processes underlying the World Wide Web, which means that it considers all the rest of us as infringing on its property by publishing sites like, well, like this one. It manufactures nothing and has no lab; instead, its business plan consists of demanding money from companies to “license” their web use, and it has extracted payments in the $30,000-$80,000 range from several big firms including Walgreen and Sara Lee. It has also sued Intel Corporation for libel and slander because an Intel spokesman told the Wall Street Journal that it “exists solely for the purpose of purchasing patents and extorting funds from another company.” (Ian Mount, “Would You Buy a Patent License From This Man?”, eCompanyNow, April). Critics “fault the PTO [Patent and Trademark Office] for approving ‘inventions’ that are obvious, trivial or simply representative of the Internet version of well-known business practices”. (William C. Smith, “Patent this!”, ABA Journal, March). The report that Bill Gates is staking an intellectual property claim to the numbers “0″ and “1″ is, however, a parody (Microsoft Patents Ones, Zeros”, The Onion). Not a parody: the St. Louis Business Journal purports to sell, for $5 a throw, the right to link to the articles it has made publicly accessible on the Web (iCopyright clearance form).
April 3-4 – Asbestos claims bankrupt W. R. Grace. Another historic name in American industry goes the way of Owens Corning, Armstrong World Industries, GAF and many others. According to the Washington Post, “Grace’s asbestos liabilities largely stem from commercially purchased asbestos added to some of its fire protection products. The company said it stopped adding any asbestos to its products in 1973. Grace to date has received more than 325,000 asbestos personal injury claims and has paid $1.9 billion to manage and resolve asbestos litigation. In 2000, asbestos claims against Grace increased 81 percent from 1999 with even higher increases for the first three months of 2001.” According to Grace and other defendants, most new claims entering the system are filed by persons who have no illness or impairment but seek financial compensation simply for having been exposed to the mineral. “We believe that the state court system for dealing with asbestos claims is broken, and that Grace cannot effectively defend itself against unmeritorious claims,” said company president Paul J. Norris.
As lawyers redirect claims against remaining defendants, each new bankruptcy increases pressure on those still solvent. Leading wallboard maker USG, which says it stopped making products containing asbestos 25 years ago, took an $850 million charge in January to cope with spiraling liability. Three years ago Sealed Air Corporation, maker of bubble wrap, bought a W.R. Grace subsidiary that made plastic packaging; although that subsidiary had never been involved with asbestos, lawyers are now going after Sealed Air on the theory that all of Grace’s liabilities should convey to it along with the business it bought. “To an indeterminate degree, the threat of lawsuits could be driving the widening of spreads between corporate and government bonds, says John Puchalla, a Moody’s economist.” The rising capital premium needed to overcome aversion to legal risk in turn raises the cost of doing business in the United States, the Economist of London points out, in a recent survey of rising American litigation costs (“The people v. America Inc.”, The Economist, March 22).
SOURCES: Sabrina Jones, “W.R. Grace files for bankruptcy”, Washington Post, April 2; “Asbestos Litigation Costs Burden Grace”, March 19; “Lawsuits Cloud Grace’s Future”, March 7; “Alarm Sounded Over Asbestos in Insulation”, Aug. 15, 2000; Tom Shean, “USG Corp. takes $1 billion hit from asbestos suits”, Norfolk Virginian-Pilot, Jan. 12. Among the many other companies facing widening claims are auto parts maker Dana Corp. and building materials maker Georgia-Pacific.
April 3-4 – Trademark litigation hall of fame. “The Detroit-based Love Your Neighbor Corp. has sued a charity, Love Thy Neighbor Fund Inc. of Fort Lauderdale, Fla., for trademark infringement. … Among the allegations is the complaint that Love Thy Neighbor caused Love Your Neighbor to suffer ‘lost sales and profits it would have made but for these wrongful acts.’ At least 40 U.S. organizations use ‘love thy neighbor’ in their names.” (National Law Journal, via Progressive Review, April 2). Update: June 20 (lawyer writes menacing letter to activist who criticized case)
April 3-4 – “State running background checks on new parents”. Bound to happen dept.: “A new state program intended to protect newborn babies runs background checks on their parents to determine whether they have a history of child abuse that resulted in termination of their parental rights.” “The whole idea here is prevention,” said an official with the state’s Family Independence Agency, which certainly boasts an Orwellian name. “We want to identify those parents who have been abusive in the past and try to head off any possible incidents of future abuse.” (AP/Detroit Free Press, March 23).
April 2 – Lawyers (and docs) block cleanup of Gotham crash fraud. New York’s wide-open climate of accident fraud (more) results in some of the highest car insurance rates in the country. But most ideas for doing something about it, such as stiffening penalties for fraud ringleaders and requiring timely notice of claims to automobile insurers so they can better investigate dubious allegations, face likely defeat in the state Assembly in Albany, where trial lawyers are leading donors to the Democratic majority. Nor does it help that organized doctors join with lawyers in resisting attempts to regulate the running up of hugely inflated bills for post-accident therapies, which are then foisted on auto insurers. (Steven Malanga (Manhattan Institute), “Albany’s War on Drivers”, New York Post, March 29).
April 2 – Priest can sue church over circumstances of suspension. A Massachusetts appeals court has reinstated several claims in a lawsuit by a former priest who “charged he was slandered when his diocese made public an alleged extramarital sexual relationship and subsequent suspension.” The Rev. James Hiles had sued the state’s Episcopal diocese after it suspended him following charges of sexual misconduct; a lower court judge threw out much of his suit, citing a longstanding doctrine by which courts are supposed to refrain from interfering in church administration. A state appeals court, while agreeing that Hiles could not sue over his removal as such, reinstated his action against church officials for allegedly conspiring to vilify him, Hiles’s attorney having argued that defamation is a “secular tort” which courts should feel at liberty to address even in a context of church administration. The case now goes back to the lower court. (Denise Lavoie, “Court says case not just a church matter”, AP/San Francisco Chronicle (SFGate.com), Mar. 28; Michael Paulson, “A Brockton ex-rector wins part of suit against diocese”, Boston Globe, Mar. 29).
Tagged as:
Alaska,
asbestos,
attorneys general,
bankruptcy,
Canada,
copyright,
Dallas,
Detroit,
Illinois,
Italian,
libel slander and defamation,
Manhattan Institute,
Massachusetts,
San Diego,
tobacco,
trademarks,
Wisconsin
March 30-April 1 – Gary to Gannett: pay up for that investigative reporting. In December 1998 the Pensacola, Fla. News Journal published a investigative series alleging that a Lake City business by the name of Anderson Columbia pulled political strings to evade environmental and other rules while obtaining lucrative state road contracts. Now noted plaintiff’s lawyer Willie Gary (key cases: Loewen, Disney, Coke, reparations 1, 2) has been retained by Anderson Columbia and is demanding $1.5 billion, which far exceeds the value of the newspaper itself, in a libel suit against the News Journal and its parent Gannett. The suit, filed downstate in Fort Lauderdale, “also cites two 1990 stories reporting allegations of environmental damage and poor-quality work and an editorial that last year criticized Escambia County commissioners for their dealings with Anderson Columbia.” (Bill Kaczor, “Gary client sues newspaper, Gannet [sic] Co. for libel, seeks $1.5 billion”, Mar. 23) In other pending cases, Gary is representing bias plaintiffs against Microsoft “and is seeking a $2.5 billion breach-of-contract judgment against beer giant Anheuser-Busch on behalf of the family of former home run king Roger Maris.” The Stuart, Fla. lawyer’s choice of clients in the past has not always matched his populist image: for example, he’s represented Florida’s “fabulously rich” Fanjul family in the defense of a suit charging that its mostly black sugar cane cutters were underpaid. (Harris Meyer, “Willie Gary’s Sugar Daddies”, New Times Broward/Palm Beach, Mar. 25, 1999)
March 30-April 1 – Dangers of complaining about lawyers. “Beware: Accusing your lawyer of wrongdoing soon could be even more intimidating. It could land you in court, running up a legal bill to defend yourself against a defamation lawsuit.” A pending change in Georgia rules would open clients and others who talk to lawyer-discipline authorities to defamation suits from the lawyers they criticize — even if the charges against the lawyer are upheld, and even if the statements are made in private to only a few investigators. Critics say the prospect of being sued for defamation, win or lose, would chill legitimate complaints, while bar official David Lipscomb says it’s a difference between two philosophies: “One is you allow a few lies to encourage people to file complaints,” he says. “And the other is you should hold people to a standard of truth, and if that chills some of the complaints, then that’s a price we are willing to pay.” Hmmm … when that same philosophical dispute comes up concerning litigation itself, doesn’t our legal establishment usually favor bending over backwards to keep from chilling dubious complaints? And isn’t it only fair to ask them to live with the same culture of easy accusation that so often results? (Lucy Soto, “Complain about a lawyer at your own risk of peril”, Atlanta Journal-Constitution, Mar. 26).
March 30-April 1 – No cause to be frightened. An Iowa court of appeals has ruled that a man who entered a convenience store at 4:30 a.m. wearing a disguise and ordered a clerk to empty the cash register did not commit robbery for legal purposes. James Edward Heard came in to a Davenport, Ia. Coastal Mart store “wearing a paper bag over his head and athletic socks on his hands” and, according to court records, “greeted cashier Aimee Hahn by saying either ‘Happy Halloween’ or ‘Trick or treat’ and then, in a soft voice, asked her to give him ‘the money.’” (The date was May, not October). After Ms. Hahn complied, he ordered her to lie down and fled. Mr. Heard admitted the facts of the case and was convicted of second-degree robbery, but the appeals court overturned his conviction, ruling that Heard’s actions did not imply a threat of “serious injury” as defined by law. The district attorney called the ruling “terrible”. (Clark Kauffman, “Court rules no threat, no robbery”, Des Moines Register, March 15) (via Jerry Lerman’s Bonehead of the Day Award).
March 29 – Putting the “special” in special sauce. A Toronto family claims its nine-year-old daughter found a severed rat’s head in her sandwich and wants C$17.5 million (U.S. $11.2 million) from McDonald’s Canada. According to her family’s lawyer, Ayan Abdi Jama, “having been enticed by McDonald’s pervasive child-focused advertising”, ordered a Big Mac which was “served in a paper wrapper bearing the Disney ‘Tarzan’ logo”, and proceeded to “partially ingest” the bewhiskered rodent portion, suffering as a result extensive psychiatric damage. Her mom was so shocked by the event that she can no longer carry on normal daily activities or earn a living, the suit further alleges, and her sister will quite likely be similarly affected when she grows up, so they deserve lots of money too. The complaint further alleges that “customers should be warned to inspect sandwiches prior to consumption” and that McDonald’s was negligent for not issuing such a warning. (“Alleged rat’s head in Big Mac triggers lawsuit”, CBC News, Mar. 27; “McDonald’s Canada lawsuit claims rat head in burger”, Reuters/FindLaw, Mar. 28; complaint in PDF format (very long), courtesy FindLaw).
March 29 – “Workers win more lawsuits, awards”. “Employees who claim they’ve been harassed or discriminated against are winning many of their cases, and the financial awards they’re receiving often far eclipse those of years past.” The new spate of layoffs is likely to push those numbers higher, and companies that have gone off chasing youthful New Economy workforces invite costly age-bias claims, according to our editor, who is quoted. (Stephanie Armour, USA Today, March 27).
March 28 – The malaria drug made him do it. Last week federal prosecutors indicted former Congressman Ed Mezvinsky on 66 counts of fraud, saying he bilked banks and investors out of more than $10 million trying to make up his losses after himself falling victim to an African advance-fee scam. Mezvinsky now says his errant conduct arose from psychiatric side effects of the anti-malaria medication Lariam, which he took while on his business trips to Africa, and he’s suing the giant drugmaker Roche, along with Philadelphia’s Presbyterian Medical Center, his physician and a pharmacy, saying they should reimburse the losses of the people who entrusted their money to him and also pay him damages. “Clearly the responsibility lies with the manufacturers,” said his lawyer, Michael F. Barrett. (“Mezvinsky files suit over drug”, AP/Philadelphia Daily News, Mar. 24; Jim Smith, “$10M classic swindle”, Philadelphia Daily News, Mar. 23)(more on advance-fee scams). (DURABLE LINK)
March 28 – Ideological pro bono. We should be grateful to lawyers for the idealistic work they do free (“pro bono“) on behalf of worthy causes, right? Well, that may depend on what causes you find worthy. A new Federalist Society survey confirms that pro bono work at the nation’s biggest law firms tilts heavily toward liberal-left causes, such as gun control and racial preferences, as opposed to conservative or libertarian ones. (Pro Bono Activity at the AmLaw 100; Peter Roff, “Pro Bono, Pro Liberal”, National Review Online, March 14).
March 27 – Junk-fax bonanza. An Augusta, Ga. jury has found that the Hooters restaurant chain unlawfully allowed an ad agency to send unsolicited ad faxes offering lunch coupons to businesses and individuals in the Augusta area. Because the Telephone Consumer Protection Act (TCPA) specifies that each sending of an improper fax incurs a $500 fine, which is tripled if the offense is willful, “attorney- turned-plaintiff Sam G. Nicholson and 1,320 class members … stand to share an estimated $4 million to $12 million from a suit Nicholson filed in 1995.” Each recipient of the six unsolicited faxes will be entitled to a minimum of $3,000 for the inconvenience, and $9,000 if damages are tripled. Hooters says its local manager signed up for a fax-ad service without realizing that its services were illegal or that federal law made advertisers as well as fax-senders liable for violations. (Janet L. Conley, “Just the Fax, Ma’am: Unsolicited Ad Spree May Cost Hooters Millions”, Fulton County Daily Report, Mar. 26). For earlier stages in the junk-fax saga, see Oct. 22, 1999 and Mar. 3, 2000.
March 27 – Shot, then sued. Batavia, Ill. police officer Chris Graver won numerous awards and accolades for bravery after surviving a shootout with a gunman in which he was critically injured and the gunman killed. He’s relieved that the gunman’s survivors have now finally agreed to drop their lawsuit against him. The legal action “was kind of aggravating. You get three bullets in you, almost die, and there’s still lawyers lining up to file a lawsuit against you.”(Sean D. Hamill, “Lawsuit dropped, but officer still tormented by shooting”, (suburban Chicago) Daily Herald, Mar. 23).
March 26 – “Teacher sues parent over handshake”. “A Utah elementary school teacher is suing a parent for allegedly shaking her hand so hard during a parent-teacher conference that she has had to wear a hand brace, undergo surgery and drop out of advanced teaching classes.” The suit, by teacher Traci R. England, says that parent Glenda Smith was irate and charges Smith with “vigorously pumping [England's] arm up and down,” with the result that England “missed work, incurred medical expenses of more than $3,000 and dropped a university class, making her ineligible for a pay raise of $2,000 per year. Her attorney, Michael T. McCoy, is seeking damages for his client, including pain and suffering, in excess of $250,000.” (Dawn House, Salt Lake Tribune, Mar. 23).
Update: we received the following email in November 2005:
I am the teacher in your post. The injury occurred November 20, 2000. Five years later, I have had 7 (yes, seven) surgeries. Each surgery resulted in a loss of 3 weeks of teaching. Over the years, I have suffered from the irresponsible choice an angry parent made over her son’s grades. My students were affected as a result of multiple and lengthy absences. I continue to take medication for inflammation and pain. I have ugly scars on my forearm, wrist, and palm. Did I receive the $250,000 originally asked for in the claim? Not even 10%. How’s that for justice? My lawsuit was never superfluous, nor was it irresponsible. I resent my name and litigation information being present on your site. Please remove it. It does not belong there. You have not done your homework. — Traci England
For our reply, see letters column of Nov. 18, 2005.
March 26 – California electricity linkfest. We’ve neglected this one, what with being on the other coast and all, but here are some catch-up highlights: “California policymakers … froze the retail price of electricity and utilities lost so much money as to face bankruptcy. They barred utilities from signing long-term supply contracts and saw spot prices soar. They dragged their feet on new power-plant construction and found electricity in short supply. They ignored the need for more long-distance transmission lines and then couldn’t import enough power to meet demand. They shielded consumers from higher utility bills and gave them rolling blackouts instead.” And with each round of failure they propose to push the state further into the power business. (William Kucewicz, “California’s Dreaming”, GeoInvestor.com, Feb. 12). The “major crisis could have been averted” had the state last summer allowed utilities to enter long-term contracts with slightly higher rates, but “it’s clear that [Gov. Gray] Davis didn’t act last summer because he was afraid. He feared that long-term contracts could have been criticized if power prices dropped in the future, and that even a minor increase in rates would bring fire from consumer activists.” (Dan Walters, “Crisis also one of leadership”, Capitol Alert/Sacramento Bee, March 25) (via Kausfiles). Pennsylvania, Texas and Ohio all show promising models of genuine deregulation, as opposed to the fake version paassed off by Golden State lawmakers (“California Dreamin’” (editorial), Christian Science Monitor, Jan. 19).
As for the supply side: “In the last decade the population [of California] has climbed 14%, to 34 million”, while peak demand for electricity has climbed 19%. “The number of big power plants built since 1990: zero.” (Lynn Cook, “My Kingdom for a Building Permit,” Forbes.com, Feb. 19). “In the 1970s California’s power regulators got all excited about renewables. The state is now littered with high-cost, low-efficiency wind and solar facilities that produce limited amounts of unreliable power, for which ratepayers have overpaid by at least $25 billion in the intervening years. In 1996 the regulators were persuaded by a cabal of efficiency mavens and end-of-growth pundits that demand for electrons was leveling off and would soon decline, while supply was plentiful and would soon become a glut. They regulated accordingly.” (Peter Huber, “Insights: The Kilowatt Casino”, Forbes.com, Feb. 19)(see also Oct. 11)
And we all knew the trial lawyers would manage to get into it somehow, didn’t we? Not long ago San Francisco launched what is apparently the first “affirmative litigation” office meant to turn suing businesses into an ongoing profit center for the city in partnership with private law firms (see Oct. 5). The political leadership of that city having been a voice for the worst possible policies at each step along the way to where we are now, now City Attorney Louise Renne has sued 13 energy producers for supposedly conspiring to create the crisis. “Joining the lawsuit as co-counsel is attorney Patrick Coughlin of Milberg Weiss Bershad Hynes & Lerach in San Francisco. Coughlin worked with the city in its successful litigation against the tobacco industry.” (Dennis Opatrny, “San Francisco City Attorney Lays Energy Crisis at Feet of Power Companies”, The Recorder, Jan. 22; Paul Pringle, “Power struggle: Finger-pointing intensifies as California woes grow”, Dallas Morning News, Jan. 29).
MORE: Victor Davis Hanson, “Paradise Lost”, Wall Street Journal/OpinionJournal.com, March 21; Gregg Easterbrook, “Brown and Out”, The New Republic, Feb. 19; Robert J. Michaels (California State Fullerton), “California’s Electrical Mess: The Deregulation That Wasn’t,” National Center for Policy Analysis Brief Analysis No. 348, Feb. 14; Paul Van Slambrouck, “How California lost its power”, Christian Science Monitor, Jan. 19 (“California actually has been a pioneer in energy conservation and is one of the most energy-efficient states in the nation, according to conservation experts like Ralph Cavanagh of the New York-based Natural Resources Defense Council”; so much for that proposed cure); Reason Public Policy Institute; Cato; NCPA.
March 23-25 – Non-gun control. “Two second-graders playing cops and robbers with a paper gun were charged with making terrorist threats. The boys’ parents said the situation should have been resolved in the principal’s office, but [Irvington, N.J.] Police Chief Steven Palamara on Wednesday defended school officials and the district’s zero-tolerance policy.” (“Second-graders face charges for paper gun”, AP/CNN, Mar. 21). And earlier this year Rep. Ed Towns (N.Y.) “introduced bill H.R. 215, a measure to ban ‘toys which in size, shape or overall appearance resemble real handguns,’” part of a spate of anti-toy-gun legislation in various jurisdictions. (Lance Jonn Romanoff, “Someone call the National Toy Rifle Association”, Liberzine, Feb. 19).
Meanwhile Ross Clark of the estimable Spectator of London notes in his regular column, “Banned wagon: a list of the things which our rulers wish to prohibit”, that a Labor MP has proposed banning the carrying of bottles and glasses on the street, because they are capable of use as offensive weapons in altercations: “It was never likely that our legislators would be happy banning just items purposely designed for killing people, such as handguns and samurai swords. There are some who will not be satisfied until the human environment is constructed entirely from soft substances which cannot conceivably be used as weapons” (Feb. 10).
March 23-25 – Brockovich a heroine? Julia really can act. One of the most entertaining aspects of that entertaining movie, “Erin Brockovich“, is the pretense that its script has more than a nodding acquaintance with the real-life history of the Hinkley case (Michael Fumento, “Erin Go Away!”, National Review Online, March 21)(our take: Reason, October).
March 23-25 – Guest editorial: ABA’s judicial role. “Good riddance to the American Bar Association’s judge-vetters. Who elected them? Now they can criticize and praise judicial nominees like any other lobby or trade association.” (Mickey Kaus, “Hit Parade”, Kausfiles.com, March 22; see David Stout, “Bush Ends A.B.A.’s Quasi-official Role in Helping to Pick Judges”, New York Times, Mar. 22).
March 23-25 – “Fired Transsexual Dancers Out for Justice”. “Two transsexuals say they were given walking papers from their go-go dancing jobs at a trendy Chelsea club because the nightspot decided they wanted to hire ‘real girls.’” Amanda Lepore and Sophia LaMar, post-operative transsexuals who used to dance at Twilo, are suing the West 27th Street club for $100,000, charging wrongful firing. “This was just a case of out-and-out discrimination,” said their lawyer, Tom Shanahan. The nightclub denies that it discriminates against gals who used to be guys. (Dareh Gregorian, New York Post, March 22). In other news, a “judge has peeled away more than half of stripper Vanessa Steele Inman’s $2.5 million verdict against a Georgia nightclub, the Pink Pony, and its owner.” (Richmond Eustis, “$1.6M Punitives Award Peeled From Stripper’s Legal Victory”, Fulton County Daily Report, March 8; see July 26, 2000). Update Apr. 17, 2004: court of appeals overturns Inman’s verdict (more exotic-dancer litigation: Dec. 4, Aug. 14, May 23, Jan. 28, 2000)
March 21-22 – Hostage-taker sues victims. “Richard Gable Stevens’ hostage-taking rampage at Santa Clara’s National Shooting Club 18 months ago will cost him the next 50 years of his life behind bars in state prison,” Judge Kevin Murphy ruled earlier this month. “Stevens, 23, was convicted of kidnapping, robbery, false imprisonment, threats and assault with a deadly weapon in connection with the July 5, 1999 incident. … Murphy questioned the sincerity of Stevens’ remorse, noting that he has filed a lawsuit for monetary damages against the very people he was convicted of having wronged.” (Bill Romano, “Man gets 50 years for rampage at gun club “, San Jose Mercury News, March 10 (search fee-based archive on “Richard Gable Stevens”, retrieval $1.95) The incident ended when Stevens was shot and wounded by one of his intended victims. According to columnist Vin Suprynowicz, police found a note in which Stevens told his parents he would get revenge on them because they would be bankrupted by lawsuits from the survivors of his intended victims (Vin Suprynowicz, “No serial killings this week in Santa Clara”, Las Vegas Review-Journal, July 11, 1999). (DURABLE LINK)
March 21-22 – Reparations-fest: give us Toronto. Among the latest claimant groups to attract notice with demands for reparations: descendants of early New Mexico settlers asserting land claims that predate the 1848 Treaty of Guadalupe Hidalgo, under which Mexico ceded much of its northern territory to the U.S. (Christian Science Monitor, March 6). In Canada, the Indian Claims Commission, a federal agency, “says it is handling roughly 480 land-claims cases. There are dozens more in the courts. ” Nearly 200 years after the fact, a band of Mississaugas “are seeking retroactive compensation from Ottawa for the Toronto Purchase, a quarter-million acres covering the whole of Toronto and into the suburbs. … Last summer, the Squamish Indians settled their claim to some prime real estate in North Vancouver for nearly C$92.5 (US$58) million.” (Ruth Walker, “Indian land claims flood Ottawa”, Christian Science Monitor, March 20).
At National Review Online, Jonah Goldberg wonders whether it might not after all be worth paying trillions if it actually got the racial-spoils lobby to cool it once and for all on preferences, quotas, set-asides and the rest of the list — as if it would ever do that (“Reparations Now”, March 19). And reparations lawyers in California have neatly arranged for their targets and the state’s taxpayers to conduct a lot of their research for them: “California Gov. Gray Davis this month signed the Slaveholder Insurance Policy law, which requires all insurers whose businesses date to the 19th Century to review their archives and make public the names of insured slaves and the slaveholders through the state’s insurance commissioner. … Davis also signed the University of California Slavery Colloquium law directing college officials to assemble a team of scholars to research slavery and report how some current California businesses benefited.” (V. Dion Haynes, “California Tells Insurers: Open Slave Records”, Chicago Tribune, Oct. 20.) See also Jeffrey Ghannam, “Repairing the Past”, ABA Journal , Nov.).
March 21-22 – (Another) “Monster Fee Award for Tobacco Fighters”. “New York’s Milberg Weiss Bershad Hynes & Lerach and San Francisco’s Lieff, Cabraser, Heimann & Bernstein are among 10 firms that will share $637.5 million in fees for their role in helping California cities and counties capture their share of a $206 billion settlement agreement with the tobacco industry. The Tobacco Fee Arbitration Panel announced Tuesday that private lawyers in California should be awarded the fees for the more than 130,000 hours they [say they -- ed.] worked in helping cities and counties grab half the $25 billion awarded California in the master settlement agreement. The state takes the other half. That works out to approximately $4,904 per hour for the lawyers.” (Kirsten Andelman, The Recorder, March 9).
March 21-22 – Welcome visitors. We’ve noticed this site being mentioned or linked to lately on weblogs Pie in the Sky (Mar. 17: “As a soon-to-be-lawyer, Overlawyered.com is going on my permanent bookmark list. Don’t worry, I’m going to be a transactional attorney- I won’t be doing any litigation (like the kind in the site linked to, or any other).”) and AFireInside; on the NetCool Users Group disclaimer; and on pages including Russell Shaw’s, Univ. of Calif. Libertarians, Swanson Group, LeaveThePackBehind.org (tobacco-Canadian), PelicanPolitics.com, UtterlyStupid.com, FoldingJonah, TheRightTrack.org (“Alaska’s Conservative Digest”), and Dave and Holly’s.
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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).
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