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Aramark

December 5 roundup

by Walter Olson on December 5, 2008

  • You are cordially invited to a fishing expedition for lawsuits over energy drink/alcohol mixes. RSVP: Center for Science in the Public Interest [Balko, Reason "Hit and Run"]
  • Recent Overlawyered guestblogger Victoria Pynchon mediates an ADA claim against a Long Beach motel owner. Extortion? Fair compromise? Both? Neither? [Settle It Now, scroll]
  • 19-year-old Ciara Sauro of Pittsburgh is disabled, in medical debt, and waiting for transplant, crowning touch is the $8,000 default judgment RIAA got against her for downloading 10 songs [Ambrogi]
  • “It does not take a graduate degree to understand that it is unacceptable to hide evidence and lie in a deposition” — Seventh Circuit sanctions Amtrak worker for dodgery in workplace-injury suit [Ohio Employers' Law; Negrete v. Nat’l Railroad Pass, PDF]
  • New Richard Nixon tapes: “I can’t have a high-minded lawyer … I want a son-of-a-b—-.” [Althouse]
  • Aramark suit documents unsealed: girl paralyzed by drunk driver got $25 million in suit against New York Giants stadium beer vendor [AP/Vineland, N.J. Daily Journal, earlier]
  • New York high court bounces Alice Lawrence/Graubard Miller fee suit back to lower courts, says more info needed [NYLJ, earlier]
  • Couple claims retention of $1,075 rental security deposit was racially motivated, seeks $20 million [WV Record; Martinsburg, W.Va.]

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May 28 roundup

by Walter Olson on May 28, 2008

  • More on that New Mexico claim of “electro-sensitive” Wi-Fi allergy: quoted complainant is a longtime activist who’s written an anti-microwave book [VNUNet, USA Today "On Deadline" via ABA Journal]
  • Your wisecracks belong to us: “Giant Wall of Legal Disclaimers” at Monsters Inc. Laugh Floor at Disneyland [Lileks; h/t Carter Wood]
  • New at Point of Law: AAJ commissions a poll on arbitration and gets the results it wants; carbon nanotubes, tomorrow’s asbestos? California will require lawyers operating without professional liability insurance to inform clients of that fact (earlier here and here); and much more.
  • Actuaries being sued for underestimating funding woes of public pension plans [NY Times via ABA Journal]
  • City of Santa Monica and other defendants will pay $21 million to wrap up lawsuits from elderly driver’s 2003 rampage through downtown farmers’ market [L.A. Times; earlier]
  • Sequel to Giants Stadium/Aramark dramshop case, which won a gigantic award later set aside, is fee claim by fired lawyer for plaintiff [NJLJ; Rosemarie Arnold site]
  • Privacy law with an asterisk: federal law curbing access to drivers license databases has exemption that lets lawyers purchase personal data to help in litigation [Daily Business Review]
  • Terror of FEMA: formaldehyde in Katrina trailers looks to emerge as mass toxic injury claim, and maybe we’ll find out fifteen years hence whether there was anything to it [AP/NOCB]
  • Suit by “ABC” firm alleges that Yellow Book let other advertisers improperly sneak in with earlier alphabetical entries [Madison County Record]
  • Gun law compliance, something for the little people? A tale from Chicago’s Board of Aldermen [Sun-Times, Ald. Richard Mell]
  • Think twice about commissioning a mural for your building since federal law may restrain you from reclaiming the wall at a later date [four years ago on Overlawyered]

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November 26 roundup

by Walter Olson on November 26, 2007

All-automotive edition:

  • Court won’t unseal settlement arising from $105 million Aramark/Giants Stadium dramshop case for fear girl’s father will try to get his hands on money [NJLJ, NorthJersey.com, Childs; earlier]
  • Great moments in insurance defense law: you mean it wasn’t a good idea to infiltrate that church meeting to investigate the crash claim? [Turkewitz first, second posts]
  • Columnist Paul Mulshine rejoices: Ninth Circuit decision “if it stands, will lead to the end of the SUV as we know it” [Newark Star-Ledger]
  • Is it unfair — and should it be unlawful? — for insurers to settle crash victims’ claims too early? [Maryland Injury Lawyer Blog]
  • If Ron Krist prevails in shoot-out of Texas plaintiff titans, he vows to have sheriff seize John O’Quinn’s Batmobile [American Lawyer; see also Ted's take earlier]
  • In much-watched case, Australian high court by 3-2 split upholds highway authority against claim defective bridge design was blameworthy after youth’s dive into shallow water [RTA NSW v. Dederer, Aug. 30]
  • Redesigning Toyota’s occupant restraint system? Clearly another job for the Marshall, Texas courts [SE Texas Record; Point of Law; more]
  • Bench trial results in $55 million verdict against U.S. government after Army employee on business runs red light and paralyzes small child [OC Register]
  • Vision in a purple Gremlin: her Yale Law days shaped Hillary in many ways [Stearns/McClatchy]
  • Zero tolerance for motorists’ blood-alcohol — are we sure we want to go there? [Harsanyi, Reason]
  • Driver falls asleep, so of course Ford must pay [two years ago on Overlawyered; much more on our automotive page]

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February 8 Roundup

by Ted Frank on February 8, 2007

  • New Jersey Supreme Court won’t touch appellate court reversal of $105M dram-shop verdict against Aramark Corp. Not noted in our earlier coverage: Aramark was held liable as a deep pocket through illegitimate piercing of the corporate veil, adding yet another problem to an appalling series of problems with the trial. [New Jersey Law Journal; earlier on Overlawyered; Point of Law]
  • Half-trillion-dollar class certified against Wal-Mart in lawless Ninth Circuit decision. [Point of Law]
  • Court papers show direct link to Lerach in Milberg probe. Most entertaining: a letter by Lerach saying “Dr. Cooperman’s reputation and character are impeccable.” Cooperman has since pled guilty to taking kickbacks, and Milberg Weiss now says he has no credibility. [National Law Journal; WSJ Law Blog]
  • Slip and fall worth $5.7M [Atlantic City Press]
  • Cardiologists doing Brazilians: “Graduating med students aren’t blind; they see established physicians with busy practices dropping out. Looking ahead they see more headaches–more controls and regulations, more scrutiny, more liability, less money.” [TIME via Kevin MD]
  • Florida law may allow men to get out of paying fraudulent paternity when DNA shows they’re not the father. [Miami Herald; see also Parker v. Parker; earlier on Overlawyered]
  • Editorial: Alabama Supreme Court ruling on illegal multi-billion-dollar punitive damages award in Exxon contract dispute can prove state is no longer tort hell. [Press-Register]
  • Update to earlier Overlawyered post: Danny Cuesta pleads guilty, sentenced to fifteen months; Melissa Cuesta, whose claim we covered, arrested for perjury, pleads not guilty. [EmpireStateNews.net via Teacher trash blog]
  • Incomes and inequality: what the numbers don’t tell us. [Marginal Revolution]
  • India and the drug patent wars. [AEI]
  • I (along with John Beisner, Michael Hausfeld, and John Stoia) am speaking on a panel on the Class Action Fairness Act at the National Press Club February 14. [Federalist Society]

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The New Jersey court’s opinion yesterday in Verni v. Harry M. Stevens ordered a new trial because of the unfairly prejudicial evidence introduced at trial. (Laura Mansnerus, “Court Overturns Jury Award Against Stadium Concessionaire”, NY Times, Aug. 4; Kibret Markos, “Paralyzed Cliffside girl may have to go through new trial”, NorthJersey.com, Aug. 4).

Plaintiffs sought to blame a drunk-driving accident several hours after a Giants game on stadium beer vendors, a feat eased when the drunk driver, Daniel Lanzano, settled with plaintiffs and changed his testimony to be consistent with their theory of the case. Lanzano drank at two go-go bars after the game. The court also noted the failure of the jury to be instructed to consider the relative liability of other settling parties that the plaintiffs had sued in a shotgun complaint, including the NFL, the Giants, Toyota, and Michael Holder, who committed the sin of drinking with Lanzano that day. We had provided extensive coverage from the beginnings of the suit: Oct. 10, 2003; Jan. 21, 2005; a must-read Feb. 2, 2005 post; Jun. 6.

Update: another aspect of the appellate court opinion is that it recognized corporate boundaries. The trial court sought to hold Aramark liable for alleged negligence of its subsidiaries.

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Prof. Childs has an update (May 31) on Aramark’s appeal of the $105 million verdict (see Jan. 21 and Feb. 2, 2005) awarded by a jury because its Giants Stadium concession allegedly negligently sold beer to a football patron who later drove drunk into a catastrophic accident.

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We previously reported (Jan. 21) on Daniel Lanzaro’s drunk driving accident litigation; the little girl he paralyzed won a $105 million verdict against Aramark over beer sales at Giants Stadium because Lanzaro did some of his drinking there that day, in part by bribing a beer vendor to ignore Aramark’s two-beer-per-purchase rules. (Before the game, Lanzaro purchased a six-pack of Heineken; he did some drinking at two strip-clubs after the game, as well.) The New Jersey Law Journal has more on the case:

  • The NFL defendants settled for $700,000, despite prevailing on a summary judgment motion;
  • Judge Richard Donohue excluded evidence that Antonia Verni’s father might have prevented the injuries to his daughter had he put the two-year-old in a car seat rather than an adult seat-belt;
  • Verni also sued Toyota; Verni’s Corolla didn’t fare well when Lanzaro’s pickup slammed into it head-on, and Toyota paid $190,000 to get out of the case;
  • There’s collateral litigation to be had among plaintiffs’ family members and sets of lawyers over who gets the money. And, of course, there will be an appeal.

As previously reported, the judge also excluded evidence of Lanzaro’s two previous drunk-driving arrests. (Henry Gottlieb, “In Wake of Record $105M Verdict, Fee Fights and Coverage Contests Emerge”, Feb. 2; Wayne Coffey, “Wasted Innocence”, NY Daily News, Jan. 30; Kibret Markos, “Expert backs beer vendor”, The Record, Jan. 12). As famous sportswriter/treacle-author Mitch Albom notes, “Either your stadium goes dry, or people will leave drunk.”

A correction: we previously reported that the entire $135 million verdict was awarded against Aramark; in fact, $30 million of the verdict is damages against the drunk driver, Daniel Lanzaro, who had already settled for the limits of his insurance coverage. Aramark’s share is $30 million compensatory, $75 million punitive, and about $6-7 million in interest, with the interest continuing to accumulate. After he settled with the plaintiffs, Lanzaro changed his story to be more favorable to the Vernis’ case. (Ana M. Alaya, “Lawyer for Giants Stadium beer vendor loses bid for mistrial”, Newark Star-Ledger, Jan. 13).

An additional thought: A big argument for plaintiffs at trial was the claim that Aramark, which serves to the two million or so fans who attend football games at Giants stadium each year, had been averaging about seven complaints a year for selling beer to drunks, but only took disciplinary action a fraction of the time. The press hasn’t covered Aramark’s response to this assertion, but one wonders if fear of employment litigation stayed its hand. Earlier damned-if-you, damned-if-you-don’t files include Aug. 30.

Another point: A reader writes to note that Aramark was probably selling watered-down beer, which would be further evidence that post-game drinking was responsible for Lanzaro’s .266 blood-alcohol level, though, again, it shouldn’t matter: Aramark didn’t make the guy drive drunk.

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Servers at Giants Stadium in northern New Jersey sold beer to a highly intoxicated patron, so a jury has ordered Aramark, the beer concessionaire, to pay $30 million in compensatory and $75 million in punitive damages to pay for the later acts of the drunkard, who after leaving the game drove off into a catastrophic accident. (Ana M. Alaya, “Jury adds $75 million penalty for beer seller”, Newark Star-Ledger, Jan. 20; David Voreacos, “Aramark loses big in lawsuit”, Bloomberg/Philadelphia Inquirer, Jan. 20). The plaintiff’s lawyer in the case (see Oct. 10, 2003) had asked for damages against the National Football League and the Giants as well, but according to KipEsquire (Jan. 20) those claims were dismissed, or else the award might have been really big. Correction: the jury’s compensatory verdict was split $30 million against Aramark and $30 million against the drunk driver; we originally reported that the entire award was against Aramark, but have fixed the references above.

More: New Jersey Law Journal, Jan. 21, reports that the NFL and Giants paid an undisclosed settlement to be let out of the case, though they also prevailed on a summary judgment motion; and it turns out that Daniel Lanzaro of Cresskill, N.J., the drunk driver, drank at a club with friends after leaving the stadium but before getting into the crash. Yet more: AP adds that “The NFL forbids beer sales after the third quarter, and the Giants close beer concessions at the start of the third quarter. The stadium also mandates that fans can buy only two beers at a time, but the Vernis’ lawyers contend that Lanzaro sidestepped that rule by giving the vendor a $10 tip and was allowed to buy six beers.” And according to the New York Post, “Giants Stadium officials intend to aggressively monitor tailgating and drinking” (emphasis added) in the aftermath of the verdict. Update: Feb. 2.

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Suing NFL over fan’s DWI

by Walter Olson on October 10, 2003

A fan downed 14 beers at a New York Giants game and drove off, causing a crash that left a child paralyzed. Now the family’s lawyers want the league to pay. “I understand they are searching for a deep pocket,” said Rutgers law prof Howard Latin. “But at a certain point, people have to be responsible for their own behavior.” (Peter Pochna, “Family sues NFL for fan’s DWI that left child paralyzed”, NorthJersey.com, Oct. 10)(reg) (& see “Sports Betting: The National Football League Versus the Trial Lawyers” (commentary), Center for Individual Freedom, Oct. 16). Update Jan. 21, 2005: jury returns $105 million award against beer concessionaire Aramark after dismissal of claims against team and league.


December 20 – New York guardianship scandals. “Cronyism, politics, and nepotism” run rife in New York’s notorious system of court-appointed guardianships, a report released by the state’s chief judge, Judith Kaye, has found after a two-year investigation (see Jan. 12, 2000). “In one case, a lawyer appointed to be a guardian for a woman who could not handle her own affairs billed her estate $850 after he and an assistant took a cake and flowers to her nursing home on her birthday. On another day, the lawyer and an employee took her out for a walk and bought her an ice cream cone. Their bill was $1,275.” And much, much more (Jane Fritsch, “Guardianship Abuses Noted, Including a $1,275 Ice Cream”, New York Times, Dec. 4; Daniel Wise, “Investigation Finds ‘Cronyism’ Abounds in New York Court Appointments”, New York Law Journal, Dec. 5; “Report of the Commission on Fiduciary Appointments”, December; “Fiduciary Appointments in New York“).

December 20 – “Firms Hit Hard as Asbestos Claims Rise”. L.A. Times looks at asbestos litigation and finds abuses and overreaching have gone so far that even some prominent plaintiff’s lawyers agree on the need for action. “An Oakland-based attorney who has represented asbestos victims for 27 years is leading a renegade faction of the plaintiffs’ bar that has joined with many of the corporations they sue in calling for limits on claims from people without serious illnesses. ‘It’s too far gone to do anything else,’ Steve Kazan said. ‘The asbestos companies are really cash cows that we should care for and cultivate so we can milk them for years as we need to. But I have colleagues who’d rather kill them, cut them up and put them on the grill now. We’d all have a great time, but there are people who will be hungry in five years.’” Over 15 years, now-bankrupt boilermaker Babcock & Wilcox “spent $1.6 billion on 317,000 claims that took paralegals five to 10 minutes each to prepare.” (Lisa Girion, “Firms Hit Hard as Asbestos Claims Rise”, L.A. Times, Dec. 17). According to a letter sent by the Manville Trust to federal judge Jack Weinstein on Dec. 2, asbestos claimants with cancer or other grave illness are receiving reduced payments because “disproportionate amount of Trust settlement dollars have gone to the least injured claimants — many with no discernible asbestos-related physical impairment whatsoever.” As usual, a key problem is the submission of questionable x-rays. (Queena Sook Kim, “Asbestos Trust Says Assets Are Reduced As the Medically Unimpaired File Claims”, Wall Street Journal, Dec. 14)(online subscribers only).

December 20 – Accused WTC bombing participant won’t get $110K. “In a decision that comments extensively on the war on terrorism, the 3rd U.S. Circuit Court of Appeals overturned an award of more than $110,000 in attorney fees to a Palestinian man who successfully avoided deportation after the government accused him of involvement in the 1993 bombing of the World Trade Center … the court found that the government’s efforts to deport Hany Mahmoud Kiareldeen were ‘substantially justified’ even though it was ultimately unable to prove its case against him to the satisfaction of the trial judge” by clear, convincing and unequivocal evidence. (Shannon P. Duffy, “3rd Circuit Takes Away Attorney Fee Award in ’93 WTC Bombing Case”, The Legal Intelligencer, Dec. 7).

December 19 – Texas jury clears drugmaker in first Rezulin case. Back to the drawing board for plaintiff’s lawyers trying to take down the Warner-Lambert division of Pfizer over side effects from its diabetes drug Rezulin. “‘It was a good drug. It helped a lot of people,’ said one juror, who asked not to be identified. ‘There just wasn’t enough evidence to show the drug was defective.’” Attorney George Fleming had demanded $25 million in damages and “emphasized Warner-Lambert’s interest in profits, flashing excerpts from internal memos before the jury.” Lawyers have many more Rezulin cases in the pipeline, so they’ll be able to try again and again before other juries. (Leigh Hopper, “Firm wins 1st Rezulin suit in court”, Houston Chronicle, Dec. 17). UpdateJan. 9-10, 2002: second trial goes against drugmaker with $43 million actual damages.

December 19 – “$3 million awarded in harassment”. “A federal jury Wednesday awarded a woman patrol officer for the Cook County Forest Preserve District $3 million in damages — $1 million more than her lawyer sought from the district–for years of sexual harassment and retaliation on the job … One member of the five-woman, three-man jury said he didn’t find the harassment egregious but felt a need to send the Forest Preserve District a message for its inaction regarding Spina’s complaints. ‘The county didn’t respond,’ juror Christopher Calgaro, an insurance claims supervisor from Homewood, said after the verdict. ‘They need to change, I mean catch up to the times.’” (Matt O’Connor and Robert Becker, Chicago Tribune, Dec. 13).

December 19 – Sued if you do dept.: language in the workplace. “Any worker offended by the words of a single employee can sue his employer for damages. Accordingly, many employers have adopted ‘English-only’ rules for their employees, in order to better supervise employee comments. Yet the EEOC also insists that employers can be sued by any employee who takes offense to an ‘English-only’ policy.” (Jim Boulet Jr., , “Catch-22 on Language”, National Review Online, Nov. 14) (see Nov. 17, 1999).

December 18 – False trail of missing lynx. “Federal and state wildlife biologists planted false evidence of a rare cat species in two national forests, officials told The Washington Times. Had the deception not been discovered, the government likely would have banned many forms of recreation and use of natural resources in the Gifford Pinchot National Forest and Wenatchee National Forest in Washington state.” After a Forest Service employee blew the whistle on colleagues, officials discovered that seven government employees, five from federal agencies and two from Washington state, “planted three separate samples of Canadian lynx hair on rubbing posts used to identify existence of the creatures in the two national forests.” The employees were given no serious discipline, merely counseling and being taken off the lynx survey project, and federal officials would not even release their names, “citing privacy concerns.” (Audrey Hudson, “Rare lynx hairs found in forests exposed as hoax”, Washington Times, Dec. 17; InstaPundit, Dec. 17).

December 18 – For client-chasers, daytime TV gets results. “Princeton, N.J. lawyer John Sakson … spends up to $80,000 a month soliciting potential plaintiffs. Some of his advertising is aimed at slip-and-fall and medical-malpractice victims. But these days he’s also trawling for much bigger fish — plaintiffs for deep-pocket attacks on big corporations, especially pharmaceutical companies. … the nation’s largest legal- advertising agency … says one-third of its $20 million in legal billings comes from pharmaceutical litigation ads, compared with maybe 1% a decade ago.” Poor, unemployed and disabled people disproportionately watch daytime TV: “Real-life judge shows like Judge Mills Lane and Judge Judy are jackpots.” (Michael Freedman, “New Techniques in Ambulance Chasing”, Forbes, Nov. 11).

December 18 – Compulsory chapel for Minn. lawyers. “Since 1996, the Minnesota Supreme Court has required attorneys to participate in its version of diversity training — called ‘elimination of bias’ education — as a condition of holding a license to practice law.” The point is less to regulate attorneys’ conduct than to instill in them opinions that the authorities consider correct about complex political and moral questions, and many of the resulting seminars have had a tendentious, preachy anti- white- male tone. (Katherine Kersten, “Court-ordered ‘elimination of bias’ seminars threaten freedom of thought”, Minneapolis Star-Tribune, Dec. 12). See update Nov. 21, 2003 (lawyer challenges requirement).

December 17 – “Suing the City for Sept. 11? Oh, Why Not?”. Giuliani or Bloomberg, New York City’s tort crisis just keeps getting worse: “Settlements cost the city $459 million that year [fiscal 2000], the latest for which statistics are available. … You might expect the litigation to slow down as a hurt and financially damaged city looks to rebuild and weather a recession. You would be wrong. … Interviews with lawyers for the city and prospective plaintiffs indicate that the attack will generate substantially more than 1,000 notices of claim.” (Joyce Purnick, New York Times, Dec. 13).

December 17 – Slouching toward Marin? Every conservative commentator in the country, it seems, has by now told us where to pin the blame for Tali-boy John Walker’s descent into Islamic extremism: it’s all because of his permissive, religiously liberal suburban upbringing. Steve Chapman offers a corrective to all the Culture War axe-grinding (“Is John Walker a failure of liberalism?”, Chicago Tribune, Dec. 16).

December 17 – Daynard watch. It sure did take a long time, but the British Medical Journal has finally admitted to its readers that tobacco-baiting Northeastern University law prof Richard Daynard failed to disclose competing interests in litigation to BMJ readers as per the journal’s policy (see our earlier reports). The correction states that Daynard “has been involved as counsel in suing tobacco companies and has received grants for research into the use of litigation to control tobacco use”. Because this formulation is so terse and artfully worded, however, readers in the United Kingdom (where lawyers are generally not allowed to claim percentage stakes in litigation) may not realize that the competing interest Daynard concealed consisted not in routine hourly fees but a contingency stake that, per his claims, may top $100 million (“Correction: Tobacco litigation worldwide”, Oct. 6). Connecticut activist Martha Perske deserves the credit for getting the BMJ to semi-’fess up. Meanwhile, Daynard’s division- of- the- spoils suit against former anti-tobacco colleagues Ron Motley and Richard Scruggs “is providing an inside look at the way lawyers finagled fees in the tobacco litigation — and the lengths they’ll go to protect their hoard.” (Elizabeth Preis, “A Piece of the Action”, The American Lawyer, Sept. 7).

December 15-16 – Criminal defense attorneys, doing what they do best. “While it may seem like the ultimate smoking gun, defense lawyers said there would be ways to try to undercut the videotape of Osama bin Laden if he were to go on trial for the Sept. 11 terrorist attacks. … ‘I would argue as a defense lawyer that the tape is puffery, celebration and bragging,’ said Robert E. Precht, director of public interest law at the University of Michigan Law School who was a defense lawyer in the trial of the World Trade Center bombers in 1994′ … several defense lawyers suggested that a creative defense team might claim that the damning translation from Arabic was misleading or that the tape was doctored. ‘The reality is you can make a tampering argument with any tape,’ Barry I. Slotnick, a New York defense lawyer, said.” And: “with tapes that are transcribed from a different language, there are interpreters you can find who can come up with a different transcript,” offered New York’s Benjamin Brafman. Then there’d be attacks on the tape’s admissibility, since “it was not clear how the government obtained it”, which might in turn force the CIA to reveal sensitive information — great tactical leverage. (William Glaberson, “Defense Lawyers See Ways to Attack Tape, if Not Win”, New York Times, Dec. 15). On the role of the O.J. Simpson case in convincing much of the American public that our court system cannot be trusted to deliver even rough justice in a high-profile criminal trial, see, among many others, Glenn Reynolds, InstaPundit.com, Dec. 13.

December 15-16 – Updates. Further developments in cases that were bound to develop further:

* The Canadian Transportation Agency has ruled that obesity in itself is not a disability and that airlines are not therefore obliged by law to offer extra seats to severely overweight passengers, although it suggested they consider doing so voluntarily (see June 7, Dec. 20, 2000)(“Canadian tribunal rules obesity is not a disability”, Reuters/FindLaw, Dec. 13).

* In New South Wales, Australia, an appeals court has ordered a new trial after finding that an award of almost $3 million (Aust.) was “excessively high” in the case of a man who sued over having been subjected to strapping as punishment twice at a Catholic school seventeen years ago (see Feb. 20). (Ellen Connolly, “Compensation takes a caning as $3m payment revoked”, Sydney Morning Herald, Nov. 1).

* Sitting en banc, the Ninth Circuit has held that grabbing the interest on clients’ trust accounts at law firms to finance poverty law does not entail any “taking” for which the clients need be compensated; the 7-4 decision comes over a dissent by Judge Alex Kozinski, whose earlier opinion for a three-judge panel (see Jan. 31) the court reversed. The Ninth now officially disagrees with the Fifth Circuit (so what else is new?) on this issue, and the circuit split may attract the attention of the U.S. Supreme Court. The court did not resolve the question of whether such programs violate the First Amendment. (Jason Hoppin, “IOLTA: 9th Circuit Says IOLTA Programs OK”, The Recorder, Nov. 15) (opinion in PDF format courtesy FindLaw).

* “Five shopkeepers prosecuted for weighing food in British Imperial measurements instead of the metric system demanded by European law appealed to London’s High Court Tuesday to quash their convictions.” After greengrocer Steven Thoburn of Sunderland, the original “metric martyr”, was brought up on charges for weighing bananas in pounds (see Jan. 22, April 11), authorities collared four more shopkeepers who were using the forbidden measures to weigh such items as mackerel and pumpkins. Some 200 protesters demonstrated outside the court in support of the merchants. (“Shopkeepers Battle for Right to Use British Weight” , Reuters/Yahoo, Nov. 23). Update Feb. 20, 2002: they lose High Court appeal.

December 13-14 – “Father seeks $1.5 million after son misses varsity spot”. By reader acclaim: “The father of a high school sophomore seeks $1.5 million in damages and the dismissal of the school’s basketball coach after his son did not make the varsity. Lynn Rubin sued the New Haven Unified School District on Nov. 27 because his son, Jawaan Rubin, was told to return to the junior varsity after being asked to try out for varsity.” The youngster attends James Logan High School in Union City, Calif. (AP/SFGate.com, Dec. 11; Contra Costa Times, Dec. 12).

December 13-14 – SCTLA’s homegrown Chomsky. We’re familiar with the tendency of politically active injury lawyers to espouse opinions farther to the left than those of the communities they live in. Still, we’re a bit amazed at a commentary that appeared last month on CommonDreams.org, a left-leaning website that has vehemently opposed U.S. military action before and after September 11. The commentary, in headlong Noam Chomsky/Robert Fisk rant mode, claims that “the United States is making war on children” in its efforts against the Taliban and al Qaeda, declares that the American military is delivering a “message of greed and violence” to Afghanis, and even puts scare quotes around the word “evil-doers” in referring to those responsible for Sept. 11. The screed’s author? Columbia, S.C. plaintiff’s lawyer Tom Turnipseed, a well-known figure in his state’s Democratic politics (most recently as its 1998 attorney general candidate; he’s now mulling a run for U.S. Senate) who’s often described as a leader of the state party’s progressive wing. Can this sort of thing really play with the voting public and in the jury box in a conservative, pro-military state like S.C.?

The “message of greed” that Turnipseed claims the U.S. is conveying to Afghanis, incidentally, consists of our offer of $25 million for the apprehension of Osama bin Laden. Presumably this is quite different from the message conveyed by Turnipseed’s own web site, which assures prospective clients that he has resolved numerous cases for sums in excess of $1 million. (“Broadcasting and Bombing”, CommonDreams.org, Nov. 22; Turnipseed’s law firm website and “mission“; via Matt Welch). (DURABLE LINK)

December 13-14 – Competitor can file RICO suit over hiring of illegal aliens. A really odd one from the Second Circuit: the court says a commercial cleaning service in Hartford has standing to sue a competitor for racketeering under federal law over the second firm’s alleged hiring of undocumented workers. If the decision stands, expect all sorts of new business-on-business litigation, underscoring the need to roll back RICO’s many overexpansive provisions, or repeal the law entirely. (Elizabeth Amon, “New RICO Target: Hiring Illegal Aliens”, National Law Journal, Nov. 27). Update: see Point Of Law, Jul. 12, 2004.

December 13-14 – Segway, the super-wheelchair and the FDA. The much-publicized new mobility device, known variously as “It”, “Ginger” and the “Segway”, originated as a spinoff of a quest for a truly powerful and versatile wheelchair that would allow disabled users to climb and descend stairs and curbs, traverse rough terrain and surmount other kinds of barriers. The IBot wheelchair project is still considered extremely promising, but progress on it has been less rapid than hoped: genuine safety concerns are part of the problem, but they’re magnified by various legal worries including the arduous process of getting the Food and Drug Administration to approve a new “medical device”. Meanwhile some disabled persons, frustrated at seeing years of their lives slip by without the yearned-for mobility advance, are now considering hacking the “Segway” to meet their needs. (Michelle Delio, “What About Kamen’s Other Machine?”, Wired News, Dec. 7).

As for the Segway itself: “No matter how inherently safe Segways may be, someone, somewhere is going to kill himself on one. ‘It’s inevitable,’ says Gary Bridge, Segway’s marketing chief. ‘I dread that day.’ Never mind that people die every day on bicycles, in crosswalks, on skateboards, in cars. The Segway is the newest new thing, and nothing does more to set hearts afire on the contingency-fee bar. ‘There are some very deep pockets around this thing,’ remarks Andy Grove. ‘I fear this could be a litigation lightning rod.’” (John Heilemann, “Reinventing the wheel”, Time, Dec. 2 (see p. 4)). Update: see Aug. 1, 2002.

December 13-14 – Menace of office-park geese. We knew they were sinister: an Illinois panel has approved a $17,000 settlement for Aramark Corp. deliveryman Nolan Lett, who was attacked by Canada geese on his employer’s property in suburban Oak Brook, and filed a workers’ comp claim “under the theory that Aramark had a duty to warn employees of the dangers of the geese because the building was in an area that attracted them.” Lett broke his wrist trying to fend off the pesky creatures. (“Workers’ compensation: Victim of wild goose attack settles for $17,000″, National Law Journal, Oct. 22). (DURABLE LINK)

December 12 – By reader acclaim: “Teen hit by train while asleep on tracks sues railroad”. Cameron Clapp of Grover Beach, Calif. has sued the Union Pacific railroad and its conductor and engineer, saying that they should have sounded the train’s horn or bell as well as engaged the emergency brake when they saw him asleep on the tracks. Clapp’s blood alcohol level after the accident was measured at .229, nearly three times the permissible level for operating a motor vehicle. “According to Grover Beach police, the engineer and conductor did not sound the horn because they were focused on activating the train’s emergency brakes.” Notwithstanding his client’s having been passed out at the time, Clapp’s attorney, Jim Murphy, claims that ‘These horns are enormously powerful and can literally* wake the dead.’” (Leila Knox, San Luis Obispo Tribune, Dec. 8) (*usage note)

December 12 – A bargain at $700/hour. New York law firms Weil, Gotshal and Manges and Wachtell, Lipton, Rosen & Katz “have each asked for a $1 million bonus, on top of their regular rates and costs, as an ‘enhancement’” for advising United Companies Financial Corp. of Baton Rouge, La. and its creditors during its bankruptcy. Under bankruptcy law, judges must approve the payment of fees in such cases. “Ultimately, any such fees come out of the estate of the debtor, leaving less money to go around. … Weil, Gotshal’s [attorney Harvey] Miller says that while shareholders were wiped out, his firm, which represented the debtor, still deserves a bonus for ‘creating value.’ Weil is seeking $7.3 million in fees in the case. But he says that hourly rates do not always do justice to a lawyer’s contributions. He considers his $700 hourly rate, which he increased from $675 over the summer, ‘a bargain.’”

“In another case, a small firm, Dann Pecar Newman & Kleiman of Indianapolis, has requested $5 million in fees for representing consumers in a two-year-old Chapter 11 proceeding against a defunct satellite-dish financing unit of Houston-based American General Corp. The fee request includes a $3 million bonus, which would put the 22-lawyer firm’s effective rate in the case at roughly $650 an hour — on a par with top New York firms. The consumers ultimately collected about $28 million from the company. David Kleiman, a partner, says he considers the case more akin to a far-flung class-action suit, where courts have long rewarded lawyers a multiple of their hourly rates. The fees were ‘remarkably low,’ he says.” (Richard B. Schmitt, “Bankruptcy Lawyers Seek Big ‘Enhancement’ Bonuses”, Wall Street Journal, Nov. 1 (online subscribers only)).

December 12 – Ready, aim … consult counsel. It seems that situation described by Seymour Hersh in his New Yorker story a few weeks back (see Oct. 19) — of U.S. forces hesitating to destroy a hostile target until they could consult a Pentagon lawyer — is not as unusual as might be assumed. “To many outside of military life, the idea of a judge advocate whispering in the ear of a four-star general [during mission planning and in battlefield decisionmaking] is startling. But nowadays it is standard procedure,” writes Vanessa Blum in Legal Times. “Modern judge advocates literally sit at the side of commanders, drafting rules of engagement, weighing in on targeting decisions, and even helping to prepare special operations forces for risky missions.” (“JAG Goes to War”, Nov. 15).

December 11 – “Lawyers on trial”. In what was originally planned as a cover story, U.S. News in this week’s issue asks: “Are lawyers out of control? Or, more important: Has litigation become more of a burden to society than a safeguard?”. Our editor, who provided considerable assistance (readers of this site will recognize many stories), is quoted. (Pamela Sherrid, U.S. News, Dec. 17) (links to sidebars on class action recruitment, asbestos, forum-shopping, shareholder suits). Also, an account of a recusal controversy in a New York securities-law case quotes our editor to the effect that lawyers are taking a risk when they demand that judges recuse themselves, since such demands tend to annoy not only the target judge but also his colleagues on the bench. (Heidi Moore, “IPO Recusal Motion Backfires”, The Deal, Dec. 7).

December 11 – “Wrongful life” comes to France. A court in Paris has ruled that some disabled children can sue doctors for not having aborted them, a development that OpinionJournal.com‘s “Best of the Web” takes as evidence of specifically French barbarity, apparently unaware that American lawyers have been advancing such theories for years in our courts with some success (see Aug. 22). (Nanette van der Laan, “France debates right not to be born”, Christian Science Monitor, Dec. 7; James Taranto, “Best of the Web”, Dec. 10 (last item)). Update Jan. 9-10, 2002: French doctors stage job action in protest.

December 11 –KPMG. This international services firm (no longer affiliated with the consulting firm of the same name) seems to think it has a legal right to prevent people from linking to its website without its permission, so of course any number of websites are doing just that. Like this: KPMG. Actually, our advice is to skip the company’s tedious site and just check out the Wired News account of the controversy: Farhad Manjoo, “Big Stink Over a Simple Link”, Dec. 6. (& see Blogdex)

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May 10 – Another billion, snuffed. You don’t have to be a Microsoft shareholder to wonder whether antitrust law has become a destabilizing influence on the business world. In late March a Paducah, Ky. federal jury ordered U.S. Tobacco, the number one maker of snuff and chewing tobacco, to pay a staggering $1.05 billion to its smaller competitor Conwood in an antitrust dispute. UST, whose annual sales are $1.5 billion — meaning that the verdict equals the entire gross revenue it takes in over eight months of a year — makes such brands as Skoal and Copenhagen, while Conwood manufactures the Kodiak brand. The finding of $350 million in damages will be automatically trebled under antitrust law if not overturned. “Both companies accused each other of removing display racks from stores, making under-the-table cash rebates to win retailers and holding strategy sessions to plot out how to eliminate the other from the lucrative retail-checkout market.” (No! Not strategy sessions!) In addition, “Conwood attorneys accused U.S. Tobacco of spreading rumors that Conwood’s snuff contained stems and was stale.” (“U.S. Tobacco Co. Faces $1.05B Payout”, AP/Milwaukee Journal Sentinel, March 29; Andrew Edgecliffe-Johnson, “US tobacco group faces possible $1bn payout”, Financial Times, March 30)

May 10 – Court okays suit against “flagging” of test conditions. In San Francisco, federal judge William Orrick Jr. has rejected a motion to dismiss a case in which Oakland-based Disability Rights Advocates is suing the Educational Testing Service, charging that it’s discriminatory for ETS to “flag” test scores taken under special conditions. “Accommodations” such as extra or unlimited time, the right to have questions explained, and the right to use calculators have become common in recent years following the aggressive use of disabled-rights law by test-takers; in a majority of cases the operative diagnosis is not a traditional disability such as blindness or paraplegia, but one such as learning disability or attention deficit disorder. If the lawsuit succeeds in banishing the loathed asterisk, test-takers will win the right to conceal from downstream institutions, such as medical schools and employers, the fact that a particular result was achieved with extra time or other assistance. (Michael Breen, “ETS Discrimination Case Goes Forward”, The Recorder/CalLaw, April 14).

DRA director of litigation Sid Wolinsky is also representing parents in a challenge to the state of Oregon’s refusal to allow test-takers to use automatic spell-check on statewide exams. “I see an enormous amount of potential litigation” ahead on such issues, he says. In Woburn, Mass., some special-needs students are given the whole day to complete a writing exam normally administered in ninety minutes, another indication that “two national movements [are] on a collision course: disability rights and educational standards.” (Daniel Golden, “Meet Edith, 16; She Plans to Spell-Check Her State Writing Test”, Wall Street Journal, Jan. 21 (fee-based archive)).

May 10 – This side of parodies. Infant wins one-billionth-litigant prize as America adopts as new motto “It’s not my fault” (Paul Campos, “Everyone suits up for latest litigation”, Rocky Mountain News, May 2). Grim news you always feared about “gateway sodas”: (“Mountain Dew Users May Go On To Use Harder Beverages”, The Onion, April 26). And the colorless, odorless, tasteless industrial solvent and prominent component in acid rain that kills thousands of people each year, most through inhalation but also from withdrawal symptoms given its evident addictiveness. Contamination is reaching epidemic levels — the horror must be stopped! (“Ban dihydrogen monoxide!”, Donald Simanek site, undatedstored Google search).

May 9 – Mother’s Day special: Arizona unwanted-birth trial. At a trial under way in Phoenix, Ruth Ann Burns is suing her family physician and obstetrician for failing to diagnose her pregnancy as early as they should have. She says she’d have aborted her two-year-old toddler Nicholas had she known in time that he was on the way, though he is perfectly healthy and she claims to dote on him now. The doctors say Burns herself didn’t think she was pregnant when she first sought medical attention and say when the pregnancy was discovered she still had time to pursue an abortion, but chose not to. (Senta Scarborough, “Doctors sued for unwanted pregnancy”, Arizona Republic, May 4). A columnist for the Arizona Republic wonders what the boy will think when he grows up and learns that his mother swore out oaths as to his unwanted, impositional nature (E.J. Montini, “Unwanted boy blooms in the future”, May 7).

May 9 – Not with our lives you don’t. More evidence that rank-and-file police aren’t happy about Clintonites’ scheme to skew city gun procurement to punish manufacturers that don’t capitulate to lawsuits (see April 14-16). Many cities presently allow officers a choice of which gun to carry, and Smith & Wesson hasn’t been a popular choice in recent years. “Local officials acknowledge they are reluctant to risk hurting morale by ending officers’ ability to choose their weapon,” the news-side Wall Street Journal reports — “morale” being a bit of a dodge here, since the risks at issue go beyond the merely psychological. In Flint, Mich., the mayor has asked the police department to buy S&Ws, “but the chief’s firearm experts have rated the Sig Sauer as more durable and accurate, and the police rank-and-file prefer the better-known and easier-to-shoot Glock.” Miami-Dade is “considering offering a $100 rebate for selecting a Smith & Wesson”, in effect establishing the kind of experiment of which cost-benefit analysts are so fond, measuring people’s willingness to accept cash payment in exchange for giving up a degree of perceived personal safety. A second obstacle to the scheme is that most jurisdictions have open-bidding laws aimed precisely at keeping politicos from pitching public business to favored contractors on a basis other than price and quality, but Sen. Charles Schumer (Democrat, New York) helpfully plans to introduce legislation to allow bypass of such laws. (Vanessa O’Connell, “Plan to Pressure Gun Makers Hits Some Snags”, Wall Street Journal, April 11, subscription site).

Plus: The gun lawsuits have become an issue in the presidential contest, with Vice President Al Gore, one of their ardent supporters, assailing Texas Governor George W. Bush for not pledging to veto legislation that would curtail them (“Bush, Gore camp trade questions on guns, credibility”, AP/FindLaw, May 5). And: this weekend’s pro-gun-control “Million Mom March” in Washington, D.C. has picked up endorsements ranging from President Bill Clinton to plaintiff’s class-action firm Bernstein, Litowitz, Berger & Grossmann LLP and the Association of Trial Lawyers of America — if that’s much of a range, politically speaking (March sponsors list, link now dead; ATLA endorsement; Terence Hunt, “Clinton Endorses Million Mom March”, AP/Yahoo, May 8, no longer online).

May 9 – In Michigan, important judicial races. Eyes of knowledgeable litigation reformers this fall will be on Michigan where three Supreme Court justices appointed by Republican Gov. John Engler — Clifford Taylor, Robert Young and Stephen Markman — are up for election (see Jan. 31). The trio enjoy a growing reputation as thoughtful jurists who share a skepticism toward expansive new liability doctrines; the state’s trial bar is expected to pour almost limitless funds into its attempt to defeat them. “The head of the Michigan Trial Lawyers’ Association has said privately that individual law firms have pledged as much as $500,000 each for the effort”. (Abigail Thernstrom, “Rule of Law: Trial Lawyers Target Three Michigan Judges Up for Election”, Wall Street Journal, May 8, reprinted at MI site).

May 8 – No more Fenway peanut-throwing? For nineteen years Rob Barry has worked in the stands at Boston’s Fenway Park, tossing bags of peanuts to hungry Red Sox fans. Grown-ups gasp and children cheer at his sure aim in lobbing the bags across intervening rows of spectators, but now he’s in trouble with management: “Aramark, the company that provides remarkably mediocre hot dogs and $4.50 cups of beer, has a rule, and that rule prohibits vendors from throwing food in the stadium.” Although admittedly “there are no recorded cases of catastrophic injury caused by a bag of peanuts,” you can never be too safe: before long some other food vendor might follow his example, “and soon you’ll have a cotton candy spear sticking through some young fan’s eye and a cash settlement that could cost the Red Sox Nomar Garciaparra.” Barry says he’s thinking of just retiring if he can no longer practice the peanut-tosser’s art: his father worked at Fenway for 45 years, while two beer-serving sisters have put in a combined 44 years. (Brian McCrory, “Vendor tossed from the game”, Boston Globe, May 5, link now dead).

May 8 – “Lilly’s legal strategy disarmed Prozac lawyers”. Little-noted story of how drugmaker Eli Lilly & Co. has managed so far to fight off a wave of lawsuits over its antidepressant Prozac, quietly settling some stronger cases while maneuvering aggressively to win a favorable jury ruling in the relatively weak one arising from the Wesbecker (Standard Gravure) shooting-spree in Louisville. (Jeff Swiatek, Indianapolis Star, April 22).

May 8 – Trial lawyers’ political clout. “Invited Speaker: President William Jefferson Clinton” — highlight of the brochure in last week’s mail promoting the Association of Trial Lawyers of America’s 2000 annual convention in Chicago. (Does not currently appear in online version (PDF)). Among other scheduled speakers: Sens. Richard Durbin (D-Illinois) and Max Cleland (D-Georgia). “Who will be the most influential political player making independent expenditures in this year’s presidential election?” asks Wall Street Journal editorialist John Fund. The AFL-CIO, the religious right, the NRA? More likely lawyers flush with new tobacco fees: “a comprehensive study by Citizens Against Lawsuit Abuse found that trial lawyers gave 78 percent of all contributions to the Texas Democratic Party in the 1998 election cycle, when Bush was running for re-election.” (“Invasion of the Party Snatchers”, MSNBC, May 2). Last year by a 4-3 majority, the Ohio Supreme Court tossed out a 3-year-old tort reform package. Per Ohio Citizens against Lawsuit Abuse, “since 1992 the four justices in the majority received $1,528,054 from personal injury attorneys”, compared with $70,704 for the three dissenting justices. Doug Bandow, “Buying Justice: Plaintiffs’ Lawyers Reap Huge Dividends by Investing in Judges and Politicians”, syndicated column, Dec. 16, 1999, reprinted in Cato Daily Commentary, Dec. 28, 1999.

May 8 – Atlantic City mulls bond issuance to finance lawsuit payouts. The New Jersey resort city is so frequently sued, especially in employment and police cases, that it’s considering issuing special bonds to cover a possible $12.3 million exposure from 23 lawsuits. (Henry Gottlieb, “Suit City, Here We Come”, New Jersey Law Journal, April 4).

May 5-7 – Pro malo publico. Elite law firms endlessly congratulate themselves on the pro bono publico work they perform, seeing it as the “penance they pay for serving a capitalist system”, in Judge Laurence Silberman’s words. Too bad so much supposedly public-interest litigation is in reality actively harmful to the public interest as well as to the persons and institutions on its receiving end, argues Heather Mac Donald. Despite its reputation for being done gratis, pro bono work often brings in very rich court-ordered fee awards from opposing parties, and it also helps shape the legal profession’s continuing impulse to use the courtrooms for feats of social engineering. Homeless advocate Robert Hayes, who has fought for a new right of shelter-on-demand for the homeless, was asked why he litigated rather than taking his case to the legislature. “Personally, I don’t like politics,” he replied. “It’s really hard.” (Heather Mac Donald, “What Good Is Pro Bono?”, City Journal, Spring).

May 5-7 – Lion’s share. Tangled class action litigation against commodities brokerage, now the subject of a petition for review before the Supreme Court, in which plaintiffs’ lawyers were accorded $13 million in fees, twice the $6.5 million that their clients wound up getting. “The system stinks,” says Paul Dodyk of Cravath Swaine and Moore. “The class gets screwed.” Also mentions this website (Bernard Condon, “Conspiracy of Silence”, Forbes, May 1).

May 5-7 – Comment of the day. Accepting an award for general excellence at the National Magazine Awards on Wednesday, William L. Allen, editor in chief of National Geographic, said: “I would hug my staff, but our legal department has advised me not to.” (Alex Kuczynski, “Levity Prevails as Awards Are Handed to Magazines”, New York Times, May 4, no longer online).

May 5-7 – Liked your car so much we kept it. Last year New York City seized Pavel Grinberg’s 1988 Acura, Joe Bonilla’s brand-new Ford Expedition, and Robert Morris’s 1989 Grand Prix, on suspicion of their owners’ drunken driving. However, all three men were cleared of the charges in a court of law. So of course the city gave them their cars back, right? Don’t be naive…. (Gersh Kuntzman, “Rudy Driven To Excess in His DWI Crackdown”, New York Post, Feb. 7).

May 4 – Sports lawsuits proliferate. “More and more, the sports section looks like the rest of the newspaper. First commerce swallowed chunks and now the law has come along to take a bite. In the last few days, we’ve read stories about coaches suing players, fans suing players and now another player preparing to sue his league.” Toronto coach Butch Carter has now dropped his suit against Knick forward Marcus Camby (see April 25-26), but it’s still “getting tougher by the minute for pro sports leagues to call their own shots…. The chain of command in sports is being yanked at every opportunity, from all sides, often with the aid of the court system.” (Jim Litke, AP/Excite, April 27; “Raptors’ coach doesn’t get apology”, AP/ESPN, undated).

May 4 – Splash of reality. A judge has imposed sanctions of $10,000 each against New Rochelle, N.Y. attorney Gordon Locke and client Kenneth Lariviere “for bringing a frivolous breach-of-contract action against members of a board that refused to authenticate a work the two men claimed was painted by Jackson Pollock. Justice Emily Jane Goodman dismissed the action as a ‘laughable and clumsy attempt at fraud, by an individual who, like everyone familiar with the artist’s work, wishes he owned a Jackson Pollock painting.’” Cerisse Anderson, “Lawyer Fined for Frivolous Suit Over Artwork”, New York Law Journal, April 12).

May 4 – Harassment-law roundup. “The Internet start-up community is going to be a major target for sexual harassment litigation,” says management-side attorney Gregory I. Rasin of Jackson Lewis Schnitzler & Krupman, though the progress of such legal action is for the moment impeded by a job market so robust that would-be plaintiffs are “getting six job offers on the way to their lawyers’ offices,” as his colleague Garry Mathiason puts it. (Melinda Ligos, “Harassment Suits Hit the Dot-Coms”, New York Times, April 12). The Equal Employment Opportunity Commission has been filing enforcement actions to back up its position that employers violate the law if they fail to move quickly enough in cleaning up sexually and racially offensive graffiti in employee restrooms and preventing recurrence (“Chicago EEOC Makes Second Move Against On-the-Job Racist Graffiti”, Employment Law Weekly, Jan. 20). The case of Boston bar owner Tom English, subject to charges of “hostile public accommodations environment” by the Massachusetts Commission Against Discrimination for putting up allegedly insensitive seasonal bar decorations, calls attention to a troubling collision between bias law and free speech, writes UCLA First Amendment specialist Eugene Volokh (“Watch What You Say, Or Be Ready to Pay”, Jewish World Review, April 13; Federalist Society Free Speech and Election Law Newsletter, sixth March item). And a jury has awarded Staten Island cop Susan Techky $50,000 after she “testified that male officers wouldn’t talk to her, left pornographic magazines in the co-ed bathroom and watched sex videos in her presence in their quarters,” as well as keeping nude pin-ups in their locker area, which she had to walk through to get to hers. “Island cop wins discrimination suit”, Staten Island Advance, April 21).

May 3 – Ministry of love-discouragement. Complete bans on dating among office-mates are “unrealistic and difficult to enforce,” according to an attorney’s advice column on how lawyers representing management can ward off possible harassment-law liability for their firms. “More practical is to prohibit dating between management and nonmanagement personnel and to discourage, but not completely prohibit, romantic relationships between co-workers. This may require co-workers to disclose immediately any relationship to their immediate supervisor.” To reduce the likelihood of later invasion-of-privacy claims against the employer, such policies “should put employees on notice that the company reserves the right to inquire into employees’ personal lives if necessary to determine whether a relationship exists…. [A]n employer may want to include in its nonfraternization policy a statement indicating that in the event of an office relationship, the company may request that employees execute an agreement attesting to the voluntary nature of their relationship” — this to forestall the pattern now becoming familiar in which “an employee may decide, after an unpleasant breakup, that the relationship was not consensual after all.” (Nicole C. Rivas, “Employment law: ‘love contracts’”, National Law Journal, Feb. 7, not online).

May 3 – eBay yanks e-meter auctions. “E-meters” are electrical devices employed by practitioners of the Church of Scientology in counseling church adherents. Although previously used devices have been resold by private owners for years and were apparently not the subject of licensing agreements that would limit resale, the Church now asserts a copyright interest in the objects that would allow it to legally restrict their distribution, and eBay has recently begun pulling auctions of e-meters to avoid a legal run-in with the church, known in the past for frequent court clashes with its opponents. Critics say it’s another example of how the Digital Millennium Copyright Act encourages online providers to err on the side of timidity when presented with copyright assertions. (“eBay E-Meter Auctions Yanked”, Slashdot, April 28).

May 3 – Fee shrinkage. The Second Circuit U.S. Court of Appeals has upheld a federal court’s ruling that two class-action firms representing plaintiffs burned in the Drexel Burnham Lambert fiasco of the 1980s should receive $2.1 million in fees, less than 20 percent of the $13.5 million they sought. The two law firms — Milberg Weiss Bershad Hynes & Lerach and Abbey, Gardy & Squitieri — had argued that it was appropriate to apply a “multiplier” of six to the otherwise going rate for legal fees because a fee recovery of 25 percent was a “benchmark” in the practice of class action law (the recovery for the class was $54 million). However, the appeals panel upheld Judge Shirley Wohl Kram’s reasoning that the case was a promising one with almost certain prospects of a large recovery, so that enhancing rates “would likely result in [counsel's] overcompensation.” (Mark Hamblett, “Cut in Drexel Case Attorneys’ Fees OK’d”, New York Law Journal, March 31).

May 3 – Little League lawsuits. No, they’re not just figments of tort reformers’ imaginations. In Waynesboro, N.C., Nicolas and Alina Rothenberg are suing the national and local Little League, along with local game officials, over an incident where their son was hit in the mouth with a ball, losing two teeth and experiencing “extreme pain and suffering” and emotional distress. “It was an accident,” said Tammy Meissner, the wife of defendant Michael Meissner. “My husband was hitting the ball just like he’s been hitting the ball for years and years and years.” (“Accident prompts Little League lawsuit”, AP/Winston-Salem Journal, April 23, no longer online). Another clip from mid-1998, datelined Naugatuck, Ct., describes how two teammates, both 8 years old at the time of the incident, wound up in court after Michael Albert swung his bat in the dugout and hit Brittany Gauvin in the head. (“Little League lawsuit pits 10-year-olds against each other”, AP/Danbury News-Times, June 8, 1998).

May 2 – “Access excess”. Our editor’s May Reason column explores the dangers posed by the Americans with Disabilities Act to the freedom of the Net: countless private websites are currently considered “inaccessible” and will apparently be obliged to undergo systematic redesign, an expensive and cumbersome process that will go far to stifle creative freedom in HTML design (see earlier commentaries). This column has already drawn one of the biggest reader reactions of anything we’ve published in a long time — in future updates we’ll try to share highlights from some of the many thoughtful letters that have come in. (Walter Olson, “Access Excess”, Reason, May; also reprinted at Jim Glassman’s Tech Central Station).

May 2 – North Carolina (& Kentucky & Tennessee) tobacco fees. The three leaf-growing states were among the last of the fifty to sign onto the Medicaid reimbursement lawsuits against cigarette companies, and by necessity did little of the heavy lifting in developing the case. North Carolina attorney general Mike Easley picked private lawyer John McArthur to handle the state’s grower-advocacy role in the tobacco negotiations, a task McArthur also performed for the other two states; conveniently, he happened at the time to be coming off a stint as counsel to Easley himself. Now he’s rumored to be in line for $1.5 million in fees, concededly far lower than the take of lawyers who represented other states. Why aren’t more precise figures public? McArthur says it’s because of lawyer-client confidentiality. Easley is favored for the state’s gubernatorial nomination in today’s Democratic primary, and a spokesman for his primary rival, Lt. Gov. Dennis Wicker, has called for more light to be shed on the fee details: “Certainly the people have a right to know if the attorney general’s office is North Carolina’s version of ‘Who Wants to Be a Millionaire’”. Reporter David Rice of the Winston-Salem Journal writes that “Easley has repeatedly talked about his role in the tobacco settlement, but reporters and others always got the impression that the state hired no outside lawyers in the case”; now Easley says his earlier statements indicating that no outside lawyers had been hired were mischaracterized. (David Rice, “Wicker aide calls for the disclosure of attorney’s fee”, Winston-Salem Journal, April 25; Ben White, “Primary Season Resumes in N.C., Ind.”, Washington Post, May 1, links now dead).

May 2 – IRS drops penny-collection efforts. “The Internal Revenue Service has stopped collection procedures against a Roswell[, N.M.] businessman who inadvertently came up 1 penny short on his tax return. Ernest Spence, owner of Valley Glass Co., had been required to pay $286.50 in penalties and interest for the mistake.” Mr. Spence says the error was unintended and resulted from not carrying the fractional penny while doing the arithmetic on the return. (“IRS backs off man’s penalty for 1-cent mistake”, AP/Dallas Morning News, April 30).

May 2 – Columnist-fest. More to catch up on:

* “It’s not about money, most of the plaintiffs or their lawyers will say, it’s about the healing process. Baloney.” Anne Roiphe on the prospect of Columbine litigation (“Feeling Tired? Blue? Cranky? Just Sue!”, New York Observer, May 1, link now dead).

* George Will invokes the many sound arguments against the Victim’s Rights Amendment to the Constitution (“Tinkering Again”, Washington Post, April 23). Will has been on a roll recently with columns on death row innocents, campaign regulation and the First Amendment, the Boy Scouts case, and campaign regulation again.

* Jacob Sullum on S&W’s hapless attempt at a “clarification” of its HUD-brokered settlement: “Perhaps it is dawning on Smith & Wesson’s executives that it can be dangerous to show weakness in the face of statist demands. Too bad they didn’t pay closer attention to the fate of the tobacco companies, whose efforts at appeasement have only whetted their opponents’ appetites.” (syndicated column, April 19).

May 1 – Tort city, USA. Other cities face a handful of slip-fall cases each year, but New York City gets 3,500, paying out $57 million plus large legal defense costs. When all types of injury litigation are included, the total reaches a staggering $420 million plus defense costs. What makes the political climate in New York so hostile to the city’s interest as a lawsuit defendant? One reason is the number of powerful Gotham politicians with ties to tort practice, such as Bronx Republican state senator Guy Velella, whose law firm’s successful cases against New York City include two separate injury suits on behalf of his parents. Or Assembly Speaker Sheldon Silver, who rents office space from well-connected tort firm Schneider, Kleinick, Weitz, Damashek & Shoot. Or Brooklyn Democrat Helene Weinstein, who chairs the state assembly’s Judiciary committee and “is of counsel to her father’s personal-injury firm … It’s rather like having a Microsoft lawyer in charge of the Congressional committee overseeing antitrust policy.” A jury recently took just an hour to reject a $10 million suit against the city by assemblyman John Brian Murtaugh, who had slipped on ice in a city park while walking his dog and broke his wrist. (John Tierney, “In Tort City, Falling Down Can Pay Off”, New York Times, April 15).

May 1 – “Jury flipped coin to convict man of murder”. You think this sort of thing doesn’t really happen, but it did happen last week in Louisville: “A jury unable to decide on a verdict tossed a coin last week to convict a man of murder, prompting a judge to declare a mistrial … The Jefferson County Circuit Court jury of five men and seven women deliberated about nine hours over two days last week before finding Phillip J. Givens II guilty of murder for killing his girlfriend, Monica Briggs, 29, last May.” Givens faced life in prison on the murder rap, but Judge Kenneth Conliffe declared a mistrial after word reached him of the method the jury had used to break its deadlock: one of the jurors told someone, who told a court employee, who told the judge. (Kim Wessel, Louisville Courier-Journal, April 25).

May 1 – Funny hats and creative drawing. As part of a discrimination settlement, employees of Detroit Edison now have been given an in-house “Learning Zone” where they can “map out their careers, create personal Web sites and even work on their resumes.” A reporter notes that the room “looks like a preschool for adults,” with “puzzles, funny hats, puppets and wall-mounted drawing boards.” One of the plaintiffs in the lawsuit, who has now been installed as “facilitator” of the zone, says that it makes “people feel safe, warm and creative … It’s about the employees.” (Brenda Rios, “Building Careers”, Detroit Free Press, April 27).

May 1 – In praise of bugs. “[Computers] should just work, all the time”, opines one popular tech columnist, and many others (including advocates of more stringent bug liability) likewise promote the view that “defects are a moral failing, and a complete absence of defects must be assured, whatever achieving this goal does to the cost and the schedule. But is achieving bug-free software always in the customer’s best interest?” (Gene Callahan, “Those Damned Bugs!”, Dr. Dobb’s Journal, Dec. 3, 1999, adapted as “In Praise of Bugs”, Mises Institute, March 27).