Federal judge throws out wrongful-termination suit filed by pants suit judge Roy Pearson, he’ll probably appeal [D.C. Examiner] More: Lowering the Bar.
Next round of lawsuits against Dov Charney’s American Apparel may allege “looks discrimination”, though that’s probably not actually a relevant legal category [Gawker, Business Insider, earlier here, etc.]
Demand that Chicago set aside municipal contracts for gay-owned businesses [Sun-Times]
“Grandstanding anti-Craigslist politicians still not satisfied” [TechDirt, TG Daily]
Judge Kozinski: this is America, behaving disrespectfully toward a cop isn’t a crime [Greenfield]
Ending the brouhaha over Ninth Circuit Chief Judge Alex Kozinski’s having stored off-color cartoons, joke photos and other office humor on a private server inadvertently made available to public access, an 11-judge panel has now issued a unanimous 41-page opinion admonishing Kozinski for his error but declining to employ any reprimand or other discipline. Coverage is everywhere: Volokh, Above the Law, Legal Intelligencer. “A handful of prominent ethics experts, including NYU’s Stephen Gillers, Northwestern’s Steven Lubet and Hofstra’s Monroe Friedman, all sent letters in support of Kozinski.” (WSJ Law Blog). Our earlier coverage of the judge is here.
Readers may remember Cyrus Sanai as the litigant with the big grudge against Ninth Circuit Chief Judge Alex Kozinski who proceeded to launch a campaign trying to destroy Kozinski’s career (with some help from the Los Angeles Times). Now a California appeals court has issued the latest ruling in Sanai’s decade-long dispute with the owner of a Newport Beach apartment he once rented. Shaun Martin at California Appellate Report has details on the ruling, which sends the fight back to the lower courts. Martin calls it “a tale of litigation run amok. A tale that explains, in part, why some people hate lawyers; and, in particular, engaging in transactions with them.”
P.S. Sanai, in our comments section, says we’re wrong: for one thing, we described him as having sued the owner of the apartment he once rented when in fact “the complaint at issue is against UDR’s successor in interest, First Advantage Corporation, and UDR’s owner, Harvey Saltz”.
Chemerinsky, other critics should apologize to Second Circuit chief judge Dennis Jacobs over bogus “he doesn’t believe in pro bono!” outcry [Point of Law and update]
New York high court skeptical of ultra-high contingency fee in Alice Lawrence v. Graubard Miller case [NYLJ; earlier here and here]
Panel of legal journalists: press let itself be used in attack on Judge Kozinski [Above the Law]
Unfree campaign speech, cont’d: South Dakota anti-abortion group sues to suppress opponents’ ads as “patently false and misleading” [Feral Child]
Rare grant of fees in patent dispute, company had inflicted $2.5 million in cost on competitors and retailers by asserting rights over nursing mother garb [NJLJ]
Time to be afraid? Sen. Bingaman (D-N.M.) keen on reintroducing talk-radio-squelching Fairness Doctrine [Radio Equalizer]
“Yours, in litigious anticipation” — Frank McCourt as child in Angela’s Ashes drafted a nastygram with true literary flourish [Miriam Cherry, Concurring Opinions]
Judge Kozinski once told a crowd of Chicago Law students that he didn’t get to go to Mexico; the other contestant had a boyfriend, and asked to substitute him in the future judge’s stead.
Sure enough, former Milberg lawyers sue the convicted ex-Milberg lawyers for breach of fiduciary duty. I was wondering when that was going to happen. [WSJ Law Blog; NYLJ/law.com; earlier]
“Schneider said others in the legal community initially had a hard time understanding why he had filed a grievance against a fellow attorney.” After all, she had only stolen $200,000 from clients. [Las Vegas Review-Journal via ABA]
Judge: No evidence of wrongdoing by Kenneth Pasternak. Too bad he can’t get his three years back. Meanwhile SEC keeps bringing enforcement cases on same repeatedly rejected theory of liability. [WSJ; Law Blog]
“When judges act like politicians, the judicial selection process – elected or appointed – becomes increasingly political. Action and reaction. The politicization of the court led to the politicization of the elections for justices. … When justices arrogate political policymaking to themselves, they should not be surprised when they are held to the same standards as politicians.” [Wisconsin Policy Research Institute via American Courthouse; I said that, too]
Even Susan Estrich finds the Alex Kozinski web site mini-to-do as evidence of media bias. [Estrich; Patterico link roundup]
Senator McCaskill shows her ignorance on the Anheuser-Busch merger and corporate officer duties. [Hodak]
A clever attorney will already have a fill-in-the-blanks product liability complaint drafted against Lego. [Childs]
Hugo Chavez expropriates wealth to consolidate dictatorship. American lawyer helps. Somehow I don’t think we’ll see an Alien Tort Claims Act suit against his law firm. [AmLaw Daily]
Cyrus Sanai tells Patterico that his triggering an investigation of Judge Alex Kozinski’s web site is all “part of a litigation strategy” but does not reveal what the other two steps of his three-step strategy is, or more insight into his strategic genius.
The furor over the Kozinski web site pseudo-scandal over what Wonkette calls “the sort of naughtiness you’d find in the dirty birthday cards section at Spencer Gifts” has caused Judge Alex Kozinski to recuse himself from the obscenity trial, resulting in a mistrial. Kozinski is known for his ethical rectitude, which is perhaps why he did so, but one wishes that he didn’t permit the appalling LA Times coverage to create a perception of a perception of a bias, much less agree that that provides grounds for recusal. But with some implausibly calling for his resignation, discretion is perhaps the better part of valor. Still, as Jesse Walker notes, “There has been no shortage of free-speech trials in which the presiding judges had a moral objection to essentially innocuous material. I don’t see any reason why such a case shouldn’t be heard by a jurist with a history of tolerance.” And one wishes that the conservatives calling for Kozinski’s resignation would use that powder for Ninth Circuit judges who act ultra vires rather than for the jokes judges share in their own time.
The Patterico blog has details of some of the coarse humor that was available on Judge Alex Kozinski’s website. Kozinski can be criticized for indiscretion in failing to realize that his website was publicly accessible, and opening himself up to this politically-motivated silliness, but I fail to see why a judge’s e-mail habits should be a scandal. Yes, Kozinski apparently has an immature sense of humor, but we already knew that.
Of more interest is that the attorney peddling this, Cyrus Sanai, has been targeting Kozinski for years. Perhaps because of this Recorder article of September 23, 2005, responding to a Sanai op-ed criticizing the Ninth Circuit, and written by Kozinski:
It looks as if, barring intervention by the U.S. Supreme Court, serial ADA litigant Jarek Molski and his lawyer Thomas Frankovich, longtime Overlawyered favorites both, won’t be filing any more accessibility lawsuits in California’s populous Central District. The Ninth Circuit’s decision not to disturb an order to that effect by the late Judge Edward Rafeedie, however, came by a surprisingly narrow margin, with nine judges dissenting. Among them, Judge Marsha Berzon said Rafeedie should not have acted unilaterally to bar the two from suing throughout the district, while Alex Kozinski went so far as to maintain that Rafeedie had failed to offer evidence in suggesting “that Molski is a liar and a bit of a thief”. The majority of judges, however — and the Ninth is among the last circuits anyone would accuse of an excessive wish to shut down litigation — disagreed. (Dan Levine, “9th Circuit Judges Blast Order Barring ADA Lawyer”, The Recorder, Apr. 9). One final bit from the account in the Recorder might cause the reader’s jaw to drop open, as it did mine:
Rafeedie died of cancer late last month, but Frankovich still holds a grudge.
“What he did is morally reprehensible,” the attorney said Monday. “Acting morally reprehensible creates bad karma, and sometimes you have to pay the piper for bad karma.”
In other news of vexatious California litigants:
For years, self-described public-interest litigator Burton Wolfe has bragged that he was one of the few people to get off the state’s so-called vexatious litigant list for self-represented plaintiffs who file frivolous lawsuits. Those who are put on the list can file “pro per,” or do-it-yourself, lawsuits only with a judge’s permission. But after enjoying a few years off the blacklist, the 75-year-old Wolfe has sued his way back onto the roster. … [His name was restored to the list after] he sued the San Francisco Food Bank and America’s Second Harvest for setting up what he calls a food “racket” in the privately owned low-income senior-housing Eastern Park Apartments where he lives.
(Lauren Smiley, “Vexatious Litigant Burton Wolfe Fighting Eviction After Threatening More Lawsuits”, San Francisco Weekly, Feb. 20). Perhaps the most celebrated of modern San Francisco’s vexatious litigants is Patricia A. McColm, who has been profiled in a number of news stories including Ken Garcia, “Woman who sues at drop of hat may get hers”, San Francisco Chronicle, June 6, 2000, reprinted at Forensic Psychiatric Associates site. Incidentally, the British court system is thoughtful enough to post its list of vexatious litigants online, an obvious aid to persons who might find themselves the target of threatened suits by persons on the list. But although the California courts have a webpage discussing the fact of their having a list, I could find no sign that they had posted the list itself online. Have any U.S. states (or Canadian provinces, etc.) done so?
Ninth Circuit, Kozinski, J., rules 8-3 that Roommates.com can be found to have violated fair housing law by asking users to sort themselves according to their wish to room with males or other protected groups; the court distinguished the Craigslist cases [L.A. Times, Volokh, Drum]
Class-action claim: Apple says its 20-inch iMac displays millions of colors but the true number is a mere 262,144, the others being simulated [WaPo]
U.K.: compulsive gambler loses $2 million suit against his bookmakers, who are awarded hefty costs under loser-pays rule [BBC first, second, third, fourth stories]
Pittsburgh couple sue Google saying its Street Views invades their privacy by including pics of their house [The Smoking Gun via WSJ law blog]
U.S. labor unions keep going to International Labour Organization trying to get current federal ground rules on union organizing declared in violation of international law [PoL]
Illinois Supreme Court reverses $2 million jury award to woman who sued her fiance’s parents for not warning her he had AIDS [Chicago Tribune]
Italian family “preparing to sue the previous owners of their house for not telling them it was haunted”; perhaps most famous such case was in Nyack, N.Y. [Ananova, Cleverly]
Per their hired expert, Kentucky lawyers charged with fen-phen settlement fraud “relied heavily on the advice of famed trial lawyer Stan Chesley in the handling of” the $200 million deal [Lexington Herald-Leader]
Actor Hal Holbrook of Mark Twain fame doesn’t think much of those local anti-tobacco ordinances that ban smoking on stage even when needed for dramatic effect [Bruce Ramsey, Seattle Times]
Six U.S. cities so far have been caught “shortening the amber cycles below what is allowed by law on intersections equipped with cameras meant to catch red-light runners.” [Left Lane via Virtuous Republic and Asymmetrical Information]
We’ve extensively covered the various fair-housing complaints against Craiglist (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, Dec. 1, 2006) for that service’s hosting ads for housing and roommates that fall afoul of non-discrimination laws—it’s technically illegal for a woman to say that she’s looking for another woman to share her apartment with, much less a co-religionist or someone without kids. We somehow missed the Santa Clara and San Diego lawsuits against Roommates.com over the same issue. While a district threw out the case, an appeal went to the Ninth Circuit Court of Appeals, and that was that: the three judges, Kozinski, Reinhardt, and Ikuta, wrote three separate opinions, with two of them deciding that there was enough for a suit to go forward on the grounds that there may be a cause of action under the Fair Housing Act because Roommate.com makes it easier for their users to express discriminatory preferences by using questionnaires that are then translated into searchable advertisements, thus supposedly running outside the Communications Decency Act’s immunity provision by being an “information content provider” because it is “responsible, in whole or in part, for the creation or development of [the] information”:
“By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing.”
Worse, Judge Kozinski’s opinion issues irrelevant dicta, apparently aimed at a suit not being litigated before him:
Imagine, for example, www.harrassthem.com with the slogan “Don’t Get Mad, Get Even.” A visitor to this Web site would be encouraged to provide private, sensitive and/or defamatory information about others — all to be posted online for a fee.
Kozinski posits that this site—plainly based on dontdatehimgirl.com (Apr. 9 and links therein)—would also flunk the CDA protection. (Cal Law reporter/blogger Brian McDonough notes this passage, but apparently thinks it’s just a joke and thus misses its significance.) The administrators of Autoadmit/xoxohth.com (May 3) might also be concerned about this dicta. (Rebecca Tushnet makes this point independently.)
This substantial narrowing of § 230(c) protections is also bad because it now means that a number of Internet sites that were plainly protected before no longer have unambiguous protection, a problem exacerbated by the lack of a clear majority opinion. Creative lawyering can argue that these websites might be within Fair Housing Counsel’s fact-driven exception to the CDA exception, and thus get past the motion-to-dismiss stage, forcing defendants into expensive legal proceedings.
Apparently Carol Burnett doesn’t hold to that maxim; she’s suing the producers of the Fox cartoon Family Guy for $2 million for copyright infringement and violations of her right of publicity over an 18-second cartoon clip parodying her. Ron Coleman of Likelihood of Confusion has details.
Fox could have some trouble, particularly with the second claim; California’s right of publicity law, as interpreted by the Ninth Circuit, is extremely broad. Judge Alex Kozinski’s famous dissenting opinion explained the problem in a case filed by Vanna White against Samsung about an advertisement featuring a robot wearing a blond wig. Although this case doesn’t present the exact same issues as the Vanna White case — the Family Guy cartoon actually used Burnett’s name — it does point out the flaws in the Ninth Circuit’s approach, and illustrates how their interpretation is an invitation to celebrities to litigate.
In the Supreme Court November 29: Watters v. Wachovia. Also an AEI panel November 28, broadcast on C-SPAN1, 2pm to 4pm Eastern. [Point of Law; AEI; Zywicki @ Volokh]
Also in the Supreme Court November 29: Massachusetts v. EPA global warming regulation case. Previously an AEI panel November 21. [Adler @ Volokh; AEI; C-SPAN (Real Media)]
Legal cliche: If the facts are against you, pound the law; if the law is against you, pound the facts; if both are against you, pound the table. Table-pounding class of Gerry Spence protegee offers lessons in emotionally creating jury sympathy worth millions. [LATimes]
What judicial activism?, Part 7356: Indiana state court judge holds “Protection of Lawful Commerce in Arms Act” unconstitutional, complains gun industry supported the law. [Indianapolis Star via Bashman; Indiana Law Blog]
The New York Post has now picked up a slightly shortened version of my City Journal piece on the housing lawsuit that contributed to a voter revolt in Westchester.... […]
The Washington Times assails as "dishonest" and a "poison pill" the House health bill's provisions bribing states not to enact limits on malpractice awards and attorneys' fees.... […]
"Well, we changed our mind" doesn't strike Carter at ShopFloor as a very good reason for Congress to yank back a former liability protection. Earlier here, here, here, etc.... […]
From the Chronicle of Higher Education: Americans tend to have fewer close confidants today than they did two decades ago — but that isn’t because they’re all huddled over their computers playing World of Warcraft or reading the Volokh Conspiracy. In fact, we like to think that reading the Volokh Conspiracy will give you more close confidants, [...] […]
This fall is the 20th anniversary of the fall of the Berlin Wall and other events associated with the collapse of communism. Paul Hollander, a sociologist who has written numerous works on communism and Western attitudes towards it, has an op ed in the Washington Post, noting some of the lessons of the communist [...] […]
From Donovan v. Grand Victoria Casino & Resort (Oct. 30), in which the Indiana Court of Appeals so holds, and cites a 1982 New Jersey case so holding: [The casino] may not simply take refuge in the common law right of exclusion, inasmuch as it is the public policy of this State that gambling is subject [...] […]
All of us at the Institute for Justice want to thank Eugene for giving us an opportunity to discuss our latest case this week (previous posts here, here, here, and here). I want to use this last post to respond to a few comments. First, some people have argued in the comments that just because a [...] […]
Jeff Rowes (Institute for Justice), guest-blogging
