- Many of our readers liked the ruling, but someone didn’t: “Judge censured for ordering class-action lawyer to take pay in $125,000 worth of gift-cards” [BoingBoing, ABA Journal, Leonard/L.A. Times, Lowering the Bar]
- “NFL Concedes In Who Dat Battle” [Lowering the Bar, more, earlier; here's a protest t-shirt, and more on those]
- Some plaintiff’s lawyers give their side of the story, disputing fraud allegations in Dole banana-worker pesticide cases [Bronstad, NLJ, earlier]
- “Google Blog Bundle — 42 criminal defense blogs” [Mark Bennett] And while you’re at it, why not take a moment right now to put Overlawyered in your RSS blog reader?
- Massachusetts hardball: state lawmaker says private law schools might be breaking antitrust laws in working to oppose state school proposed in his district [ABA Journal via Above the Law; public law school plan OK'd]
- Making the rounds: why medieval trial by ordeal may not have been so crazy after all [Peter Leeson, Boston Globe and full paper (PDF) via Volokh]
- “Rothstein E-Mails Reveal Role of Former Plaintiffs’ Lawyer” [Brian Baxter, AmLaw Litigation Daily]
- Obama: I tried to reach across aisle on medical liability reform but GOP wasn’t nibbling. Fact check please [Wood, PoL]
Posts tagged as:
antitrust
“The American Booksellers Association loves people who buy books. It loves them so much that it wants to protect them from wicked retailers who sell popular titles at affordable prices.” [Jeff Jacoby, Boston Globe] More: Mark Perry.
Related: antitrust laws mostly “used today by one group of competitors to try to hamstring another competitor in their business” [Coyote on IBM mainframe investigation]
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Susan Taylor Martin writes in the St. Petersburg Times on problems with class-action settlements, including a recent one in Florida that seems basically to have pitted Florida drivers against Florida taxpayers (she quotes me on how this can empower lawyers to move money from our left pockets to our right pockets at a high overhead cost). She also reports on the national cosmetics giveaway that recently took place following a class-action antitrust suit (see Jan. 29, etc.) A highlight:
I also asked Saveri [San Francisco class-action attorney Guido Saveri, one of the lead counsel] if he thought the giveaway program had been rather loosely administered. Customers didn’t have to prove they were part of the class, and there was nothing to stop them from getting as many cosmetics as they could. The result: Stores quickly ran out and a lot of people who were members of the class didn’t get anything.
“I think it was very well administered,” Saveri said, a bit huffily. “Each person had to file a piece of paper that they were entitled to one product — whether you want to lie about it I can’t control that.”
Before we hung up I asked Saveri if any of his female relatives got free cosmetics. Turns out the giveaway was off limits to attorneys’ families.
But with $24 million, they can afford to shop at Neiman-Marcus. As for me, I’ll wait until L’Oreal goes on sale at my local CVS.
Back in November 2006, we called it a “no-blush, high-gloss, invisible-foundation antitrust class action”.
We hear frequently that the medical profession doesn’t do enough to police its own. Cases like that of Lawrence Poliner might explain why. In 1997, in response to complaints by nurses at Presbyterian Hospital of Dallas, and the allegation by a doctor that Poliner had performed an angioplasty on the wrong artery, the hospital asked Poliner to stop work while they investigated. These limited privileges lasted 29 days, followed by a unanimous decision to suspend, a five-month suspension from echocardiography privileges, and then reinstated Poliner five months later subject to conditions that he consult with other cardiologists.
For this, Poliner sued for defamation and under federal antitrust law, alleging that other cardiologists were trying to dominate the market and prevent his competition. The five-month suspension had federal immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. (just one of many federal tort reforms that promote safety), but the trial court held that the 29-day limited-privileges created a cause of action that should go to a jury. Poliner lost $10,000 in income over that time “but was awarded more than $90 million in defamation damages, nearly all for mental anguish and injury to career. The jury also awarded $110 million in punitive damages”–despite the fact that Poliner would have to prove damages were caused by the allegedly unprivileged temporary limitation rather than by the five-month suspension. We covered the initial $366 million verdict in 2004, the outraged medical blogosphere reaction, and the remittitur to a still ludicrous $22.5 million in 2006.
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- To hold a party in the public parks of Bergenfield, N.J., you’ll need homeowner’s or renter’s insurance to throw on the line [Bergen Record]
- More on suits against Victoria’s Secret over allegedly hazardous bras, thongs, and undergarments, including an aspiring class action over contact rashes [Heller/On Point News]
- Supreme Court will review Navy sonar controversy, which we’ve long covered in this space [Adler @ Volokh]
- Hope of legalized online gambling fades, and you can blame Republicans on Capitol Hill for that [Stuttaford, NRO "Corner"]
- Disney said to be behind bad proposal to soak foreign tourists to fund visit-America promotions [Crooked Timber]
- “Squishier than most”: Nocera on A.M.D.’s predatory-pricing antitrust suit against Intel [NYT]
- Process serving company lied about delivering SEC witness subpoena and falsified later document, judge rules, awarding victim $3 million [Boston Globe]
- Revisiting the false-accusation ordeal of Dr. Patrick Griffin, and how it relates to pressure to have needless chaperones at medical procedures [Buckeye Surgeon, Dorothy Rabinowitz Pulitzer piece]
- Overlawyered turns nine years old tomorrow (more). Commenters: how long have you been reading the site? Any of you go back to its first year?
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Jonathan Rauch:
Unfortunately, however, it is probably illegal for newspapers to form a subscription consortium [enabling consumers to pay for web content through a one-stop subscription to hundreds of newspaper sites]. Antitrust law was written generations ago, when newspapers were local monopolies or duopolies. Today, of course, they compete with the whole Internet. The problem now is that they have too little market power, not too much.Even so, antitrust law regards collective pricing as collusion. “There is a well-established tunnel vision in applying antitrust laws,” says Lee Simowitz, a media lawyer with Baker Hostetler in Washington. “Broader values don’t enter the equation.” Allowing newspapers to combine forces, he says, is “really up to Congress.” …
Sooner or later, newspapers will need to get their acts together — literally — and charge collectively for content, and it will be in the public’s interest to let them do so.
(“How to Save Newspapers–and Why”, National Journal, Jun. 14; will rotate off site).
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“[Then Congress] went off and passed by 324 to 82 votes the so-called NOPEC bill. The NOPEC bill is, in effect, a suit against OPEC, which, if I recall correctly, stands for the Oil Price-Exploiting Club. “No War For Oil!,” as the bumper stickers say. But a massive suit for oil — now that’s the American way! …
“Congress hauls Big Oil execs in for the dinner-theatre version of a Soviet show trial and then passes irrelevant poseur legislation like the NOPEC bill. Plus ca change you can believe in, plus c’est la meme chose. The NOPEC bill is really the NO PECS bill — a waste of photocopier paper passed by what C. S. Lewis called ‘men without chests’.” (“Fill Her Up with Hot Air”, National Review Online, May 24)(via Lindgren @ Volokh).
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Antitrust law trips up pillar-of-counterculture-journalism Village Voice Media, cont’d: “San Francisco Superior Court Judge Marla Miller raised the amount the Weekly [SF Weekly] must pay in damages to the Bay Guardian — from $6.3 million to $15.9 million — for undercutting its rival with below-cost ads.” (Meredith May, “Judge raises damages in case against SF Weekly”, San Francisco Chronicle, May 21; earlier; sample SF Weekly business-bashing piece, channeling plaintiff’s lawyers’ contentions in Parmalat case). “Predatory pricing — selling ads below cost with the goal of putting your competition out of business — is typically something alt weeklies cover, not something they get caught and fined for.” (Josh Feit, TheStranger.com (which competes with VVM’s Seattle Weekly), Mar. 5).
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This wretched proposal to pursue sensitive foreign policy goals by way of treble-damage antitrust suits against sovereign nations is met by a hail of dead cats from Below the Beltway, Gateway Pundit, Liberty Reborn, Buffalog, Coalition of the Swilling, Sense of Events, Q and O, Coyote, Politics in the Zeros, Socrates’ Academy, It’s a Funny Thing, Bronze Blog, Discerning Texan, Blog About Nothing, It Looks Obvious, NoBrainer’s, Wheeling Intelligencer, and Collideoscope, among others. Earlier here.
And yet more: Perry de Havilland, Samizdata (“a derangement of legislators”)(via ASI).
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- “Of all the body parts to Xerox!” Another round of stories on efforts to reduce liabilities from office holiday parties [ABA Journal, Above the Law, and relatedly Megan McArdle]
- New edition of Tillinghast/Towers Perrin study on insurance costs of liability system finds they went down last year, which doesn’t happen often [2007 update, PDF]
- Vermont student sues Burger King over indelicate object found in his sandwich; one wonders whether he’s ruled out it being a latex finger cot, sometimes used by bakery workers [AP/FoxNews.com]
- Good discussions of “human rights commission” complaints against columnist Mark Steyn in Canada [Volokh, David Warren and again @ RCP, Dan Gardner; for a contrasting view, see Wise Law Blog]
- Having trousered $60-odd million in fees suing Microsoft in Minnesota and Iowa antitrust cases, Zelle Hofmann now upset after judge says $4 million in fees should suffice for Wisconsin me-too action [Star-Tribune, PheistyBlog]
- Australian rail operator will appeal order to pay $A600,000 to man who illegally jumped tracks, spat at ticket inspectors, hurt himself fleeing when detained [Herald Sun]
- Lawyers’ fees in Kia brake class action (Oct. 29, Oct. 30) defended by judge who assails honesty of chief defense witness [Legal Intelligencer]
- Who deserves credit for founding Facebook? Question is headed for court [02138 mag]
- Yes, jury verdicts do sometimes bankrupt defendants, as did this $8 million class action award against a Kansas City car dealer [KC Star, KC Business Journal]
- Dispute over Burt Neuborne’s Holocaust fees is finally over, he’ll get $3.1 million [NY Sun]
- So long as we’re only fifty votes behind in the race for this “best general legal blog” honor, we’re going to keep nagging you to vote for Overlawyered [if you haven't already]
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- Joe Nocera’s recent column on the Vioxx settlement infuriated loyalists of the plaintiff’s bar, and they won’t like his new one on lead paint litigation much better [NY Times]
- Trial of Overlawyered favorite Jack Thompson over ethical charges leveled by Florida bar wraps up, but judge won’t rule right away [GamePolitics earlier, more recent posts]
- Two joggers hit by driver alongside Pacific Coast Highway will share $49 million from city of Dana Point — allegedly the bike lane was too wide — so now here come the concrete barriers [LA Times]
- Do makers of anti-PC documentary “Indoctrinate U.” owe cash to Indiana U. for infringing on its logo? [Maloney, OpinionJournal, Coleman] Update Dec. 11: settled.
- Casselberry, Fla. cop who sued parents after boy’s near-drowning in pool has now lost her job following public outcry over the incident [Orlando Sentinel; earlier]
- Lawyer who says he was defamed by commenters on DontDateHimGirl.com is back in court [Pittsburgh Post-Gazette, Ambrogi, On Point; earlier here, here, etc.]
- Outspoken blog of BU prof Dr. Michael Siegel ticks off “tobacco control” activists [Beam, Globe]
- Warning label alert: old Sesame Street episodes unsafe for children? [Stier, Wash. Times]
- Furor mounts in and out of Canada over “human rights” complaint against Maclean’s over Mark Steyn book excerpt [Wente, Globe and Mail; Eteraz, UK Guardian; Steyn, NRO; Kimball]
- Judge rejects lawsuit by animal rights group challenging UCSF animal testing [SF Chronicle]
- New at Point of Law: How do all those big cases wind up in Judge Jack Weinstein’s court, anyway?; latest Richard Epstein podcast is on antitrust, Microsoft, AT&T, etc.; abuse of the Family and Medical Leave Act; welcome new contributor Marie Gryphon; Yale Law clinic sues Yale-New Haven Hospital; bar official dismisses concerns about cy pres slush funds; breastfeeding accommodation on the job, via lawsuit?; just what New York needs, a new state law school at Binghamton; and much more.
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In the latest issue of the Federalist Society’s Class Action Watch, Mark Behrens and Christopher Appel look at recent rulings from the New Jersey and Missouri Supreme Courts that reject lead paint public nuisance claims. James Beck looks at the American Law Institute’s “Principles” projects. Brian D. Boyle and Julia A. Berman look at fact-based scrutiny in securities and antitrust actions. Jessica D. Miller and Nina Ramos look at fluid recovery. Kenneth J. Reilly and Frank Cruz-Alvarez look at an Eleventh Circuit case that may have set a new standard for federal diversity jurisdiction. Last, but not least, there is a front-page article from me analyzing an omission in the Fair Credit Transactions Act (FACTA) that might provide a substantial windfall for the plaintiffs’ bar.
- Pearson Pants update: dry cleaners offered to drop their fee demand if Pearson would end case, but he declined [Marc Fisher, other Washington Post coverage, Beldar]
- Check your oil, ma’am? On second thought, if it’s going to get us sued, never mind [Reiland/Pittsburgh Tribune-Review]
- “Surprising and uncommon” resolution of med-mal case: Nebraska Methodist Health System admits error, cooperates with family on video memorializing victim and educating other hospitals about aortic dissection [Omaha World-Herald, Chamber reprint]
- Heated email exchange between perennial Overlawyered favorite Jack Thompson and Take Two game company exec [Ambrogi]
- Putting her image on a Hallmark card? Now that’s degrading and exploitative enough to make Paris Hilton want to sue [K.C. Star]
- Uncle sues nephew over season tickets to Chicago Bears at 40-yard line [Crain's Chicago Business]
- Hurt her teeth on McDonald’s cherry pie, hurt her teeth on cheeseburger soon after — and what’s this about forged dental-work receipts? [Seattle Times]
- Wisconsin snuff users may soon be rolling in coupons following settlement of antitrust class action, lawyers to pocket $17 million [AP/Green Bay Press-Gazette]
- New at Point of Law: fiasco of UC Irvine’s withdrawn offer to Chemerinsky; judge says $500/hr is enough for lawyers in Northwest bankruptcy; law firm advertises for heart attack victims to sue over lack of defibrillators in public places; Astroturf detected in Washington-state insurance-suit referendum fight; NY Times takes skeptical look at Mount Sinai’s Selikoff Center; Jerry Brown sure fooled us, says San Diego paper; Ted expands his empire; and much more;
- A topic on which we’ve had a lot to say over the years — to what extent does the Americans with Disabilities Act apply to websites? — may be heating up again [Corporate Counsel]
- Thanks for the incoming links from, among others, Instapundit (on Ted’s reclining-car-seat post, which has drawn a bodacious number of comments), Patterico (on Jarek Molski), Bainbridge (on animal welfare laws), and Adam Smith Institute (on lawyers suing each other: “Such a pity that only one side can lose”.)
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Josh Wright expands on my line “we all know darn well that many ‘pro-business’ legal rules favor consumers and employees as a group ex ante,” and is even harsher with Chemerinsky than I was:
[W]hat gets me about this section is the heading: “Supreme Court favors businesses over consumers.” Is that really what these cases are about? I have read political accounts of the Supreme Court opinions in newspapers and periodicals or blogs that read this way (”The Roberts Court wants to stick it to the consumer — I can prove it: the Defendant won in all 4 cases this term”). But I’ve not heard law professors take this route too often, and never an antitrust commentator. In fact, a reasonable reading of the Court’s antitrust output this year suggests that the issues are much more nuanced than this oversimplified soundbite that pits business against consumers.Is Leegin a pro-business and anti-consumer decision? I’m not sure I even know what that means in this context. … Justice Kennedy’s opinion on behalf of the majority does allow manufacturers to engage in behavior that was previously constrained. Perhaps that is a sufficient condition for a pro-business label? On the other hand, the very reason the Court overturned the per se rule was the result of evidence that minimum resale price maintenance made consumers better off! Now, one might think that the Court got it wrong and that RPM actually harms consumers. … But to argue that the Court got there by favoring business over consumers is not accurate, and obvious from reading the opinion.
Earlier on Leegin: Skip Oliva, Jul. 26.
It’s time to end my week of guest-blogging here. Thanks again to Walter Olson and Ted Frank for indulging my ramblings. Since I’ve used most of my posts to dwell on the evils of antitrust regulation, I’d like to try and go out on a more positive note.
