| Articles by Overlawyered.com editor Walter Olson: “The Law on Trial“, Wall Street Journal, October 14, 1997 (review of Beyond all Reason by Daniel Farber and Suzanna Sherry). “Shut Up, They Explained” (”zero-tolerance” harassment policies), Reason, June 1997. “Judge Dread” (on Robert Bork, Slouching Toward Gomorrah), Reason, April 1997.
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June 10-11 – New Orleans cleanup continues. “It was bad enough that New Orleans personal injury attorney Curtis Coney Jr. was illegally paying ‘runners’ to solicit accident victims, paying them $500 for each ambulance-chasing referral. When his secretary was subpoenaed to testify before a federal grand jury, Coney compounded his problems by urging her to lie about the payments, even though she was the one who usually doled them out. … In a plea agreement unveiled in federal court Wednesday, Coney, 58, pleaded guilty to 10 counts of ’structuring’ referral payments to hide them from the state and federal governments, one count of conspiracy and one count of obstruction of justice for pressuring [the secretary] to lie. As part of the deal, lead prosecutor Irene Gonzalez recommended a 33-month jail sentence for Coney.” The lawyer’s guilty plea is among the fruits of “a 4-year federal investigation of personal injury attorneys, a quietly unfolding case that has resulted in more than 20 convictions”. Targeted along with attorneys and “runners” are “medical providers who exaggerated or falsified injury claims in order to secure lucrative insurance settlements.” (Michael Perlstein, “Lawyer guilty in referral scheme”, New Orleans Times-Picayune, May 16). (DURABLE LINK)
June 10-11 – Bounty-hunting in New Jersey. The administration of Gov. Jim McGreevey has retained a flamboyant private plaintiff’s lawyer to pursue claims seeking to hold businesses legally liable for wastes left over from the state’s industrial past. Although Allen Kanner is initially donating his services for free, it is expected that he will take a contingency stake in some or many of the state’s financial recoveries. Also being hired is a politically well-connected law firm named Lynch Martin Kroll, associated with one of the state’s Democratic power brokers. Together, Kanner and the Lynch firm “are scouring state files for possible ‘natural resource damage’ claims. Such claims — little used in the state’s past — require polluters to go far beyond simple cleanups by making them pay the public for things such as lost fishing time, lost tap water, injured wildlife and soiled scenery.” (Alexander Lane, “State retains enviro-lawyer who gets polluters’ attention”, Newark Star-Ledger, May 11). More: PointOfLaw.com, Sept. 5, 2004. (DURABLE LINK)
June 10-11 – The Rule of Lawyers reviewed. In the June Commentary, Washington attorney and Findlaw columnist Barton Aronson contributes a very generous appraisal of our editor’s latest book. (DURABLE LINK)
June 9 – “Silver’s wreck”. Our editor has an op-ed piece in today’s New York Post on the impending demise of auto leasing in New York state, wrecked by the state’s archaic “vicarious liability” law whose chief defenders include the state trial lawyers’ association and Assembly Speaker Sheldon Silver (Walter Olson, New York Post, Jun. 9). Our earlier coverage of the issue is here. More: Sept. 5, 2004. (DURABLE LINK)
June 9 – “Families of teens killed in crash after rave sue U.S. government”. “Family members of five teens who died when their car careened off a cliff after an all-night rave party have filed a suit against the U.S. government for issuing the event’s permit. ‘If you knowingly allow use of your land for a drug party and people get killed, we allege you are partially responsible,’ said Andrew Spielberger, a West Hollywood-based attorney representing the families.” (AP/Sacramento Bee, Jun. 1). (DURABLE LINK)
June 9 – The intimidation tactics of Madison County. Four business groups held a press event in Madison County, Ill., last week to unveil the latest report depicting the county’s courts as a paradise for plaintiff’s lawyers (U.S. Chamber of Commerce, “The Rogue Courts of Madison County” (PDF)). What happened next? Local plaintiff’s attorney Bradley M. Lakin promptly slapped them with a subpoena demanding that their executives testify in a would-be class action case against Ford Motor on alleged paint defects. “Subpoenas are for witnesses who know something about the case,” said Victor E. Schwartz, general counsel of the American Tort Reform Association. “In this situation, ATRA knows nothing. It is clear the subpoena power is being used to squelch ATRA from speaking out about Madison County and its inequities as one of the leading ‘judicial hellholes’ in the United States.” Last year ATRA published a report entitled “Justice for Sale: The Judges of Madison County“. (”ATRA Says Subpoena Power Should Not Be Used To Squelch First Amendment Rights”, ATRA press release, Jun. 6; Illinois Civil Justice League, which was one of the subpoenaed groups along with ATRA and the national and Illinois Chambers of Commerce, has links). Updates Jul. 12: subpoenas dropped and Jul. 26: sanctions motions dropped.
And St. Louis Post-Dispatch columnist Bill McClellan turns the spotlight on a recent Madison County class action settlement involving Sears tires: “If you have a receipt showing you purchased an AccuBalance from a Sears auto center between 1989 and 1994 and are willing to take the time to request a claims form and fill it out and send it in, you could get $2.50 for each tire, up to a total of $10. Of course, who keeps receipts from 1989? You still might be eligible for $1.25 a tire, up to a total of $5. If Sears does not have a record of your purchase, you will be eligible only for a $3 Sears coupon. Of course, there will be forms to fill out under threat of perjury. Things are a little better for the lawyers who ‘represented’ you. The settlement says that their legal fees cannot exceed $2.45 million.” McClellan is bold to tackle this subject, since when he criticized lawyers from the same class-action firm in 1999 they came after him with a lawsuit, later dropped (see Nov. 4, 1999)(Bill McClellan, “Just like your tires, wheels of justice may be out of balance”, St. Louis Post-Dispatch, Jun. 4). (DURABLE LINK)
June 6-8 – New legal ethics weblog. David Giacalone, formerly of PrairieLaw, has started a new weblog, ethicalEsq?, specializing in “client-centered legal ethics”. He’s already posted on several issues of interest, including Common Good’s early-offers proposal (May 30 and Jun. 3), the case for requiring lawyers to disclose more fully to clients the circumstances of their representation (Jun. 3), and (citing this website) the still-unfolding battle in a New York courtroom over whether Judge Charles Ramos has authority to review and correct outrageous tobacco fees (May 31; on tobacco fees, see Daniel Wise, “Judge’s Power to Review $625M Tobacco Fee Award Challenged”, New York Law Journal, May 28). (DURABLE LINK)
June 6-8 – Claims consciousness in Utah. To promote a contemplated April Fool’s Day festival, Mayor Gerald R. Sherratt of Cedar City, Utah, published in local papers a tall tale about how wandering Vikings had left precious ancient artifacts in a local cave. Most residents seem to have gotten the joke, but various readers in the nearby town of St. George stepped forward to lay claim to the supposed treasure found in the cave, several of them saying “their ancestors had been part of the settlement and had owned some of the artifacts. …When Sherratt explained the whole story was made up to promote the festival, the St. George residents accused him and other officials of a cover-up.” (Paul Rolly and JoAnn Jacobsen-Wells, “Ad Flap Is Stranger Than Fiction”, Salt Lake Tribune, May 26). (DURABLE LINK)
June 6-8 – Hiker cuts off use of his name. Equipped to Survive, a wilderness gear site, recommended a pocket-sized emergency beacon by referring to a recent survival story that received worldwide publicity: “Your survival should not require you to amputate your own arm, as Aron Ralston was recently forced to do in order to escape being trapped by an 800-lb. boulder.” Before long the site’s proprietor received this cease and desist letter (PDF format) dated June 5 from Ralston’s lawyer demanding that the reference be removed as in violation of the hiker’s “right of publicity” under state statutes. There followed this rude reply from the website proprietor, inviting the lawyer to “stick your ridiculous cease and desist demand where the sun don’t shine”. Now cut that out, boys, there’s no reason we can’t be polite. (DURABLE LINK)
June 4-5 – Blaming murder on flat tire. A 19-year-old woman, having stopped to change a flat tire at the side of the road, is taken away and murdered by a local man. According to a lawyer for her family, the Ford Motor Co. and tiremaker Bridgestone/Firestone should be made to pay for the murder. A court dismissed the case against the two companies on grounds that they could not have found harm of this sort foreseeable enough to trigger a legal duty of care, but the family’s lawyer, Richard Rensch, is appealing to the Nebraska Supreme Court. (AP/KETV, Jun. 3; “Murder victim’s parents say flat set off tragic events”, Fremont (Neb.) Tribune, Jun. 3). (DURABLE LINK)
June 4-5 – Fox News “The Big Story”. Our editor was interviewed on screen for a piece that Fox News’s “The Big Story” is preparing on the search for deep pockets in litigation. It’s tentatively scheduled to run Wednesday, but these things are always subject to change. Update: it did run Wednesday, Jun. 4. (DURABLE LINK)
June 4-5 – Malpractice: juggling the stats. In the course of an otherwise standard feature package on the medical malpractice crisis (Daniel Eisenberg and Maggie Sieger, “The Doctor is Out”, Time, Jun. 9, and sidebars) Time gives credence to a newly issued report asserting that doctors’ malpractice premiums are actually rising fastest in states without damage caps (Jyoti Thottam, “A Chastened Insurer”, Jun. 1). Very curiously, the new report (from Weiss Ratings, “an independent insurance-rating agency in Palm Beach Gardens, Fla.”) is described as compiling figures for median premiums and payouts (the numbers compared with which half of the data points are higher and half lower) rather than averages, even though this is a field where the outliers (giant awards, unusually litigious specialties) drive the debate and the dollar figures. CalPundit (Jun. 2) spots this anomaly and opines: “this is so obviously the wrong statistic to use in this case that there must be some kind of axe to grind here” (via Jonathan Adler, NR Corner).
A table laying out the (very large) differences between malpractice premiums between Los Angeles (where doctors practice under California’s MICRA damages cap) and three litigious jurisdictions elsewhere in the country (Miami, Long Island, Detroit) indicates that MICRA confers its greatest benefit by far on the most litigation-prone specialties: for example, the average savings from MICRA for a neurosurgeon is $ 145,813 and for an ob/gyn $ 88,593, but it’s only $24,599 for an internist and $15,639 for a dermatologist (”2003 Malpractice Premium Comparison“, California Physician (California Medical Association)) (PDF format)(CMA’s MICRA Resource Center). For a more reliable reading of the crisis and its relation to damage caps and the insurance market, check out the report issued by the U.S. Department of Health and Human Services this spring (”Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care”, Mar. 3; Senate testimony by Deputy Secretary Claude A. Allen, Mar. 13).
How big an impact do the “outlier” cases have, the small number of gigantic verdicts that almost vanish from the calculation when per-case outlays are calculated as a median? Among recent examples are the $78.5-million verdict against an Orlando hospital for failing to figure out that a woman visiting its emergency room was suffering from a bizarre undiagnosed tumor; thought to be the largest medical malpractice award in Florida history, it has “become the symbol of juries run amok” in the view of critics of the system. (William R. Levesque, “Tremors still felt from whopping jury award”, St. Petersburg Times, Jun. 2). And in a result vocally criticized by appeals judges even as they felt obliged to uphold it, a Manhattan jury’s $40 million malpractice award against one of the city’s premier hospitals, New York-Presbyterian, has been blown up to $140 million by a law mandating that annual interest of 4 percent be added to awards “even if the jury has already adjusted the annual amount for inflation. Critics say that means a double adjustment for inflation in some cases, like this one.” (Richard Perez-Pena, “New York Hospitals Fearing Malpractice Crisis”, New York Times, Jun. 3). (DURABLE LINK)
June 4-5 – “Rape defendant asks $20,000; found fly in mashed potatoes”. “If convicted later this year of raping a 16-year-old girl, [Kenneth] Williams could be sentenced to 112 years to life in prison. It would be his third, and last, trip to state prison, authorities say.” What has upset Williams recently, however, is the insect impurity he says he found in his prison dinner. He “is seeking $20,000 to ease the ‘mental stress and anguish’ he said finding the fly inflicted upon him. ‘It’s been almost a month since this occurred,’ Williams wrote last week in the claim, ‘and I still only pick at my food …. I’m losing weight and am unable to eat properly.’” The sum demanded was fair, according to his complaint, since public venting of the allegations “would cost the county ‘a great deal more both financially and in bad publicity.’” (J. Harry Jones, San Diego Union-Tribune, Jun. 3). (DURABLE LINK)
June 3 – An important litigation skill. From Gail Diane Cox’s “Voir Dire” column in the National Law Journal, Nov. 4, 2002 (scroll down to “Jargon Watch”): “Blamestorming: Variant of brainstorming. Sitting around in a group discussing a mistake and how to make someone responsible for it, preferably a deep-pocket defendant. Synonym: Litigation initiation.” Maybe a session of this sort was responsible for the naming of Shell Oil as a defendant in the Rhode Island nightclub fire (see May 30-Jun. 1). (DURABLE LINK)
June 3 – “Resumé spam saddles employers”. It’s common these days for employers to receive hundreds, thousands or even milllions of resumés via email from hopeful job-seekers. Federal regulations on the books since the 1970s, however, require most larger companies to preserve records of all job applications, the most important reason being to furnish evidence in case they are someday investigated for possible discrimination. Under the strictest interpretation of the rules, companies with more than fifteen employees must keep on file any resumé sent to them — even if “the applicant misspells the company’s name, applies for a job not listed or is simply not qualified.” The result: a large and ever-growing paperwork/compliance burden on American business. (Bill Atkinson, “Resume spam saddles employers”, Baltimore Sun, May 22; Michelle Martinez, “Who Really Is An Applicant When Recruiting Online?”, PeopleClick.com, undated). See Shirleen Holt, “Résumé spam is tiring those hiring”, Seattle Times, Jan. 19; Katherine Harding, “The new scourge: Résumé spam”, GlobeTechnology.com (Globe & Mail, Canada), Jan. 8 (”Companies that advertise jobs on-line are finding their e-mail boxes crammed with irrelevant responses”, some from applicants who blast out responses to every job listed on a posting board). (DURABLE LINK)
June 2 – Updates. Further developments in cases we’ve covered:
* Citing its recent jurisprudence bringing constitutional due process limits to bear on punitive damages, the U.S. Supreme Court has instructed lower courts to reduce a $290 million award against Ford Motor in the Romo case; the case arose from a Bronco rollover in central California, and we’ve had quite a bit to say about it over the four years since it went to trial (see Oct. 24, 2002 and links from there) (David Kravets, “High Court Reduces Damages in Car Crash”, AP/Yahoo, May 19; Bob Egelko, “Key ruling on punitive damages”, San Francisco Chronicle, May 19);
* The Los Angeles Zoo has transferred Ruby, its female African elephant, to a Tennessee zoo notwithstanding a pending lawsuit (see May 16-18) complaining that the move would disrupt Ruby’s bond with her elephant “best friend”; an attorney who had gone to court seeking a temporary restraining order against splitting the two elephants complained that zoo authorities had acted “like thieves in the middle of the night”. (Carla Hall, “Despite Protests, L.A. Zoo Sends Elephant to Tennessee”, Los Angeles Times, May 27) (via SoCalLaw, May 27);
* The Supreme Court of Hawaii has reversed a jury’s award of $2 million to an auto service manager fired over what his employer considered credible charges of sexual harassment (see Mar. 10-12, 2000) (Gonsalves v. Nissan Motor Corp. in Hawaii, Ltd., Supreme Court of Hawaii, Nov. 27, 2002; see Jeffrey Harris, “Law Watch: Preventing Harassment Trumps Keeping Promises”, Hawaii Business, Feb. 20);
* In a humiliating defeat for backers of anti-gun litigation, a federal “advisory” jury in Brooklyn has refused to hold manufacturers liable for inner-city gun crime in the much-publicized case brought by the NAACP before judge Jack Weinstein. “The panel of 12 jurors issued a finding of no liability for 45 of the defendants and was unable to reach a verdict for the remaining 23 manufacturers or gun dealers”. (Mark Hamblett, “Federal Advisory Jury Declines to Find Gun Industry Liable”, New York Law Journal, May 15; Katherine Mangu-Ward, “No Smoking Gun”, WeeklyStandard.com, May 8). Update Jul. 20: judge dismisses lawsuit entirely. (DURABLE LINK)
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June 8-10 – Parted from his money. Philadelphia-area businessman David Piscitelli has settled his lawsuit against Sole Mio Balaam Nicola, 90, a resident of Egg Harbor City, N.J. who worked for many years as an astrologer at the Woolworth’s on the Atlantic City Boardwalk. Piscitelli said “he was the victim of a ‘gypsy scam’ from 1978 to 1991 that prompted him to turn over about $200,000, leave his wife, sell his real-estate business, and move to Brigantine to avoid snake attacks and other evil curses.” It all began, he told the court, when he found Nicola’s ad in the Yellow Pages and arrived at her establishment where she “instructed him to hand her $400 under her desk for the purchase of candles that, when burned, would remove his curse.” However, Nicola averred that he had been a willing financial supporter of her “pyramid-shaped Temple of Hope and Knowledge, a house of worship she founded on the White Horse Pike in Galloway Township.” Moreover, she “denied ever demanding cash to remove curses from Piscitelli’s family members, forcing him to turn over his wedding ring, depositing a beheaded bat at his home, or throwing his Christmas presents into the bay, as he claims.” (Amy S. Rosenberg, “Fortune teller or taker: Boardwalk astrologer got $200,000 and lawsuit”, Philadelphia Inquirer, May 17).
June 8-10 – Tobacco plunder in Los Angeles. Its anger whipped up by a sharp trial lawyer, an L.A. jury has voted $3 billion in punitive damages against Philip Morris in a case brought by an individual smoker. (CNNfn, June 6; Robert Jablon, “Los Angeles Jury Orders Philip Morris to Pay $3 Billion to Lifelong Smoker”, AP/Law.com, June 7). Our take on the earlier Engle case appeared in the Wall Street Journal: July 18, 2000 and July 12, 1999. Update Oct. 2, 2004: appeals court orders punitive award cut to a sum not to exceed $50 million.
June 8-10 – Lockyer should go. We weren’t the only ones who concluded (June 1-3) that California attorney general Bill Lockyer was unfit for public office after hearing him express a hope that an energy-company adversary would be jailed and suffer prison rape: Tom G. Palmer (Cato Institute), “‘Hi, My Name Isn’t Justice, Honey’, and Shame on Bill Lockyer”, Los Angeles Times, June 6; see also Steve Chapman, “Since when does rape equal justice?”, Chicago Tribune, June 7; Larry Elder, “Blame-shifting in California”, FrontPage, June 1. (See update, June 22-24).
June 8-10 – Forbes on lead paint suits, cont’d. There seems to be no dispute that some, if not many, cases of classic lead poisoning continue to occur among children who literally eat chips of old paint in dilapidated housing in inner-city areas like South Providence (see yesterday’s post). A key factual premise of the mass suits, however, is that the paint is causing learning deficits and behavioral problems among a wider class of children whose blood-lead levels might not have been considered particularly high by medical science through most of the twentieth century (when ambient lead levels in the human environment were far higher) but which are now viewed as triggers for concern or even as “poisoning” following a drastic downward revision of definitional thresholds some years back.
As Forbes’s cover story points out, this leaves a question of how to account for why the symptoms now causing concern were not observed more widely during the long period when lead-based interior paints were commonly found in American homes. “If traces of lead near such levels have something to do with learning disabilities, the sweeping decline in blood-lead levels in the U.S. in the past half-century should have given us a generation of geniuses in our elementary schools. But test scores have scarcely been going up …. Even as blood-levels in children dropped drastically, IQ scores have increased a consistent 3% a decade for 100 years — possibly because of media exposure and better nutrition.” Nor, one might add, does one observe a big “absence of lead effect” if one compares the learning and behavioral problems of kids growing up in modern housing projects, most of which were built after the discontinuance of lead pigments in paint, with those of similarly disadvantaged kids growing up in older housing stock. (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14 (reg)).
MORE: For a contrary view, accepting the premise that lead paint in older housing is causing widespread as opposed to exceptional harm to children, see the recent series in the Providence Journal: Peter Lord, “Poisoned”, May 13-18. For more on the course of the litigation, see Bob Van Voris, “Paint suit’s a lead balloon (so far)”, National Law Journal, May 8; “San Jose: Judge gives counties OK to sue paint firms”, San Francisco Chronicle, June 4; Tom Kertscher, “Suing Just 2 Paint Firms Helps Case, Lawyers Say”, Milwaukee Journal Sentinel, April 9. (DURABLE LINK)
June 7 – “‘Pseudologia Fantastica’ Won’t Fly”. Contrary to what he claimed during the screening process that led up to his appointment to the bench, “Los Angeles Superior Court Judge Patrick Couwenberg never earned a Purple Heart. He didn’t fight in Vietnam or work for the CIA. Nor did he attend Loyola Law School or earn a master’s degree in psychology or any other subject.” Now a disciplinary panel has rejected the judge’s plea in mitigation of his fibs that he suffers from “a recently diagnosed condition called ‘pseudologia fantastica,’ which doctors say causes people to tell tall tales and mix fantasy with facts.” (Sonia Giordani, The Recorder, May 18). Update: state panel orders him removed from bench (see Aug. 20-21).
June 7 – Ness monster sighted in Narragansett Bay. Bad enough that Rhode Island, with its insider-dominated political system, has failed to shake its reputation as the “Louisiana of the North”. (See, e.g., Mark Sappenfield, “Legacy of scandal mars Rhode Island”, Christian Science Monitor, April 11). But will Little Rhody become the first state to auction itself off to out-of-state trial lawyers? You start wondering after reading Forbes’s recent cover story on the nation’s richest tort law firm, Charleston, S.C.-based powerhouse Ness Motley (tobacco, asbestos, etc.), and its branch office in Providence, opened some years ago by partner John J. McConnell Jr. Ness Motley has quickly made itself “Rhode Island’s largest political contributor, at $540,950 for the 2000 national elections”, and its local partner McConnell has become treasurer of the Democratic party in the tiny state. By one of these coincidences that are so rare in novels but so common in real life, Rhode Island Democratic attorney general Sheldon Whitehouse, considered ambitious for a gubernatorial run, in 1999 awarded the Ness firm a contingency fee contract to sue on behalf of the state seeking money from former makers of lead paint — the only one of the fifty state AGs thus far to take such a step. If the firm and its superlawyer Ron Motley succeed in convincing cities, school districts and other governmental units to follow suit, they might extract billions from such companies as Arco, ICI Glidden, and American Cyanamid. “In April, in a major victory for Motley, a Rhode Island Superior Court judge rejected the defendants’ motion to dismiss, and Sherwin-Williams’ stock dropped 21%.” (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14 (reg)). Dueling websites: leadlawsuits.com (defendants) and aboutlead.com (Ness Motley)[more on lead paint litigation tomorrow] (DURABLE LINK)
June 7 – “Sorry, Slimbo, you’re in my seats”. Columnist Peter Simpson isn’t impressed with the opinion of the Canadian government that, as a matter of handicapped rights, severely overweight airline passengers should be given an extra seat free of charge (Ottawa Citizen/National Post, May 11; Glen McGregor, Treat the obese as disabled, airlines told”, Ottawa Citizen, Dec. 10; see Dec. 20, 2000). (Update Dec. 15-16: Canadian transportation agency backs off policy)
June 7 – Welcome WSJ OpinionJournal.com readers. We’ve figured in their “Best of the Web” feature quite a few times recently, including yesterday. Also: KRLD Dallas, “Eye on the Internet” with Katie Pruett (interviewed our editor last night); Good Clean Fun June 2; LynnLynn’s Links June 4; links lists Ennazus, Brian Tebeau’s, Breaching the Web, Stop Lawsuit Abuse — Mississippi, Amy Welborn’s, ChinaLawInfo.com, YouDontSay.org (”too many lawyers?”), Washington State University at Spokane, Eruditum.org, Joseph DeMartino’s (see “something we have no shortage of”), Weaverlane LogB2K, Univ. of Georgia Sagan Society, Baltimore Citizens Against Lawsuit Abuse, Snakebite’s, and Mr. Linck’s social studies class in Morrisville, N.Y. (gun debate).
June 6 – Intellectual-property dispute Hall of Fame. San Francisco Bay area artists Emily Duffy and Ron Nicolino have each retained lawyers and have exchanged threatening letters in a dispute over who owns the concept underlying their art, which consists of giant bundles of brassieres: hers weighs 650 pounds, his twice as much. Both bra assemblages “keep growing — huge spheres of lace, silk, padding and underwire bras of all colors, shapes and sizes.” Nicolino “has used 14,000 bras from an abandoned project to hook them across the Grand Canyon. Now he’s pulling his ball to Los Angeles behind his 1963 flamingo pink Cadillac, looking for someone to sponsor a worldwide tour and eventually, a showcase where people can continue hooking on their own bras.” “I think it’s a major important part of American art,” he said. Duffy says he swiped the idea from her. (Margie Mason, “Bay Area artists battle over giant bra balls”, Modesto Bee, May 29). They both have websites: braball.com and nicolinosbraball.com.
June 6 – “Risks of the crime”. A Florida appeals court has dealt a setback to two men who sued a hotel for damages after they were shot in its parking lot during a suspected drug deal. The appeals court said the hotel chain should not be held responsible for injuries incurred by visitors engaged in criminal acts. A jury had ruled for the men to the tune of $1.7 million (see Dec. 15, 1999) after Judge Celeste Muir “excluded all evidence of the suspected drug deal — including the previous drug conviction of one of the men suing, an electronic scale and $38,000 in cash found at the scene. All the jury heard was that two hotel guests who were shot in a dimly lit Ramada Inn parking lot in Hialeah wanted damages from the hotel.” The case is still pending. (”Risks of the crime” (editorial), Miami Herald, June 5).
June 6 – To destroy a doctor. Laparoscopic (small-incision) surgery counts as one of the major medical advances of recent years, and among its internationally famed practitioners have been the three Iranian-born Nezhat brothers, all of whom are on the faculty at Stanford Medical School. For more than seven years Cleveland lawyer James Neal has been pursuing medical malpractice complaints against the Nezhats, accusing them “of, among other things: lying about their credentials; systematically overbilling their patients; threatening witnesses; conducting unauthorized experimental surgeries; sexually assaulting patients; kidnapping at gunpoint; and faking their research in order to promote devices [used in surgery] in exchange for consulting fees and royalties from manufacturers. ” Although he hasn’t made much progress in getting courts to accept his charges, Neal’s pursuit of the numerous lawsuits has taken over his life and, say the Nezhats, has ruined theirs. (Alison Frankel, “Obsession” (cover story), The American Lawyer, June 4).
June 5 – Prisoners stay acoustic. The First Amendment does not confer on federal prisoners a right to practice on electric guitars, ruled U.S. District Judge Emmet Sullivan May 22. “[C]onvicted bomber and frequent litigant Brett Kimberlin … who’s in federal prison in Petersburg, Va., on parole violations”, had sued the federal Bureau of Prisons over a rule restricting inmates to acoustic instruments, saying it inhibited his rights of expression. (Jonathan Groner, “Inadmissible: Unplugged”, Legal Times, May 28) (second item).
June 5 – NFL satellite ticket class action. The National Football League has agreed to settle a class action lawsuit filed four years ago over its practice of selling only season packages to its satellite-TV televised games. Under the settlement, subscribers will get cash payments of between $8.33 and $20.83, and will be able to buy individual weeks at $29.99 each instead of the whole season at $169.99 for the last two years of existing contracts; two named plaintiffs will get $1,000 each, and the lawyers will enjoy an appetizing $3.7 million in fees. Counting administrative costs as well as the legal payouts, the settlement is expected to cost the league more than $13 million, and if you think fans may wind up footing much of the bill for such legally inflicted outlays over the long run as ticket prices go up to cover them, why, shame on you for being such a cynic (”Lawsuit settlement with DSS allows fans to buy single weekend games”, AP/Detroit News, June 1; ValkyrieRiders.net discussion, May 31) Update Aug. 20-21: judge disallows settlement.
June 5 – Missouri’s tagalong tobacco fees. When it came to the role it played in the multistate tobacco litigation, Missouri “didn’t need red-hot lawyers. Our lawsuit was what’s called a tagalong suit. We were the 27th state to sue the tobacco companies. A national settlement was already in the works. … Five months after Team Missouri was assembled, [it] was reached.” But that didn’t stop the lawyers who represented the state — some of whom “were distinguished more for their political connections than their legal track records”– from asking for a cool $480 million in fees, though they later declared themselves willing to settle for $100 million (see Sept. 21, 2000). Readers will recall that not long ago popular St. Louis Post-Dispatch columnist Bill McClellan had the temerity to criticize the high fees trial lawyers were getting in another case, and they promptly slapped him with an intimidating $1 million lawsuit (Nov. 4, 1999; Nov. 30, 1999; Feb. 29, 2000). But he still goes right on writing these sorts of columns, even though he must know it’s bound to get more lawyers mad at him. Hasn’t he learned his lesson yet? (Bill McClellan, “Just what did our tobacco legal team do for $100 million?”, St. Louis Post-Dispatch, May 16). Update Oct. 5, 2003: Missouri Supreme Court refuses to entertain challenge to tobacco fees.
June 4 – “Dad Sues After Girl Fails to Make Cheerleading Squad”. In Vestavia Hills, Ala., the father of Laura Brooke Smith “has sued [the] school district, saying his daughter’s rejection from the high school cheerleading squad despite professional coaching has caused her humiliation and mental anguish.” (Fox News, May 31). And in North Haven, Ct., the “families of two high school sophomores have filed a federal lawsuit over the school’s decision to drop them from the drum majorette squad.” Stephanie Tata and Rebecca Mickolyczk and their mothers filed the suit in U.S. District Court April 30. Town attorney Robert K. Ciulla says the schools get “many” disputes over after-school activities, but this is the first involving baton twirling. (Ann DiMatteo, “Families Sue Over Unfair Twirl Tryouts”, New Haven Register, May 18).
June 4 – Maori tribes v. Lego. “Three New Zealand Maori tribes are considering a legal challenge to Danish toy company Lego over the use of Maori words and Polynesian culture in a new computer game. New Zealand-based barrister Solomon Maui has written to Lego asking for sales of the game to be suspended, saying it infringed the Polynesian people’s intellectual property rights to their language and culture.” (”Maori challenge Lego over use of culture”, CNN, June 1; Slashdot thread).
June 4 – EEOC: unfiltered computers “harass” librarians. In a “blockbuster” ruling, the Equal Employment Opportunity Commission declared on May 23 that the Minneapolis Public Library may have subjected its librarians to unlawful “hostile work environment” sexual harassment by exposing them to sexually explicit images called up by patrons on unfiltered computers. The pro-censorship religious-right Family Research Council hailed the ruling, which is likely to intensify legal pressure on institutions of all sorts (including libraries at private universities and research institutions, and indeed all enterprises with employees) to install “filtering” software which excludes a wide variety of websites deemed obscene, hateful or otherwise improper.
Public libraries like the one in Minneapolis are likely to be sued if they do, sued if they don’t, given the precedent of a 1998 federal district court decision finding that the filtering policy of a public library in Loudoun County, Va., was unconstitutional. However, UCLA’s Eugene Volokh predicts that the balance of legal pressure will tilt toward website blocking, because losing a First Amendment lawsuit filed by patrons will subject a library to only “nominal damages”, while losing a Title VII discrimination suit can result in a damage figure “with lots of zeros in it”. In the Minneapolis case, “[Librarian Wendy] Adamson said the E.E.O.C. had privately suggested to the library that it pay each of the 12 employees $75,000 in damages,” which would add up to $900,000. (Carl S. Kaplan, “Cyber Law Journal: Controversial Ruling on Library Filters”, New York Times, June 1)(reg).
June 1-3 – Sweetness and light from Bill Lockyer. As the state’s power crisis continues, California attorney general Bill Lockyer provokes a few gasps with his recent comments about Enron Corp. chairman Kenneth Lay: “I would love to personally escort Lay to an 8-by-10 cell that he could share with a tattooed dude who says, ‘Hi my name is Spike, honey,’” Lockyer told the Wall Street Journal. While the state’s top law enforcement officer thus quips about subjecting a prominent adversary to prison rape, the Los Angeles Times notes that “neither Lockyer’s office nor any investigative panel has filed charges against Enron or other companies”. (Jenifer Warren, “Lockyer Fires Earthy Attack at Energy Exec”, L.A. Times, May 23, fee-based archive; “Lockyer lockdown”, L.A. Daily News, May 29). Lockyer, who’s promised a bounty of millions of dollars to any informant who can nail the generating firms, was elected AG in a well-funded campaign after serving for many years as head of the Judiciary Committee and chief guardian of litigation-lobby interests in the state Senate; The Recorder (S.F.), Dec. 11, 1992, described him as “the darling of trial lawyers…a part time plaintiff’s attorney”.
Other California politicos have also stepped up the business-bashing to an intensity not heard since the 1970s, to judge from an account by Chris Weinkopf in the Los Angeles Daily News. At a press conference, state senate president pro tem John Burton “announced the solution is for Sacramento to ‘terrorize the bastards’ [electricity generators] by seizing their power plants. If he were governor, he said, he ‘would have taken them yesterday.’ The actual governor, Gray Davis, is more subtle in his attacks. He’s only called the generators ‘marauders,’ ‘pirates’ and ‘the biggest snakes on the planet Earth.’ … Lt. Gov. Cruz Bustamante has called for empowering the state to put energy executives in jail. …Treasurer Phil Angelides has suggested that if generators ‘don’t take their foot off our throat,’ the state should ’seize a plant or two to sober them up.’” (Chris Weinkopf, “California’s Assault on Energy Producers”, Los Angeles Daily News, April 24, reprinted at FrontPage magazine).
MORE: In San Francisco Weekly, Jeremy Mullman makes the case that the key error in California’s electricity restructuring was to proceed with government-supervised “Reliability Must-Run” (RMR) contracts (he explains what these are) which perversely rewarded generators for unreliability and supply shortfalls (”Contract Killings”, May 30). See also William Tucker, “California Unplugged”, The American Spectator, April; Rob Wherry, “Crossed Wires,” Forbes, March 5 (reg); “Power Scramble”, Forbes, April 23. (DURABLE LINK)(& welcome visitors from AndrewSullivan.com; Sullivan nominates Lockyer for his “Paul Begala Award” for intemperate rhetoric, linking to our item)
June 1-3 – Old-hairstyle photo prompts lawsuit. Speaking of the unlamented 1970s: Skip Johnson, a production manager who once toured with Jefferson Airplane and the Eagles and was married to singer Grace Slick, has sued a dotcom, its advertising firm, and photo firm Corbis over an ad prominently displaying an old photo of him and implicitly poking fun at the unruly 1970s-vintage hairstyle he then wore. He now sports a more conservative ‘do; suits over commercial use of people’s pictures without their permission go back at least as far as 1902, according to his lawyers. (Peter Hartlaub, “S.F. dot-com is sued over big hair ad”, San Francisco Chronicle, May 29). And the latest tattoo-misspelling lawsuit comes from Tucson where a parlor left out one of the “n”s in the motto 22-year-old West Hill had asked to have inscribed on his arm, thus rendering it as “New Beginings”. (Maureen O’Connell, “A major tattoo miscue”, Arizona Daily Star, May 29).
June 1-3 – “A disabling verdict for organized sports”. Steve Chapman’s take on the high court’s ruling in the Casey Martin case; quotes our editor (Chicago Tribune, May 31). Also: Lance Morrow, “PGA, not SCOTUS, Should Have Decided the Casey Martin Case”, Time.com, May 31; Paul Campos, “Martin ruling only further handicaps us”, Rocky Mountain News, June 2; “The court’s errant shot” (editorial), Chicago Tribune, May 31.
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February 29 – Update: Publishers Clearing House case. Turning aside objections from state attorneys general who viewed the deal as offering more prizes to lawyers than to magazine subscribers, federal judge G. Patrick Murphy approved a settlement of a class-action suit against Publishers Clearing House for allegedly misleading sweepstakes claims. He also approved as fair and reasonable the payment of $3 million in legal fees to the class lawyers, a sum criticized as excessive by objectors and by commentators such as the St. Louis Post-Dispatch’s Bill McClellan. (”Publishers Clearing House Deal OKd”, AP/FindLaw, Feb. 22).
As readers of this space will recall (see Nov. 30, Nov. 4 commentaries) McClellan in his column on the suit jocularly compared class-action lawyers to bank robbers and then corrected himself, saying the comparison wasn’t fair to bank robbers, who don’t pretend they’re in business for our good. Class-action lawyers Judy Cates and Stephen Katz then proceeded to sue him for $1 million, charging that these sentiments had defamed them. Among the discovery demands they proceeded to make was that McClellan turn over everything he’d written in the past decade that was “in any way critical or mocking to lawyers or lawsuits.” In another of their discovery forays, McClellan advises readers in a recent column, “Cates and Katz were demanding all correspondence I have received relating to their lawsuit. In other words, if you sent me a letter or an e-mail concerning this case, they wanted it. They wanted to see who has written what about them.” Now an agreement has been reached to end the lawsuit — on what terms is not immediately apparent. (Bill McClellan, “This is a situation where even when you win, you lose”, St. Louis Post-Dispatch, Feb. 23).
February 29 – Feds’ mission: target Silicon Valley for race complaints. The federal Equal Employment Opportunity Commission has decided that Silicon Valley employers would make a suitably high-profile target for a series of race discrimination complaints, and now is “scouring” the Valley for likely defendants. A likely charge is that despite the strong representation in high-tech employment of ethnic groups from around the world, local blacks and Hispanics are underrepresented in professional and managerial slots. “We’ve been beefing up our staffing in every place that we see significant economic growth related to high technology,” says EEOC vice chairman Paul Igasaki, a long-time civil rights attorney: “this is an industry in which a message may need to be sent.” A source within the agency puts it more bluntly: “We’re busy looking under every rock we can, looking for a couple of high-profile companies we can hit with a suit.” (Gary Rivlin, “Busting the Myth of the Meritocracy”, The Industry Standard, Feb. 21).
February 29 – Tobacco lawyers’ lien leverage. While states are salivating at the vast new revenue banquet promised by the tobacco settlement — with no need to do anything unpopular, like raise taxes! — some are finding that the trial lawyers who seemed so helpful at first are now proving obstreperous, slapping the states with liens that may prevent the distribution of some or all settlement booty until the lawyers’ share is resolved. In New Jersey, Bergen County plaintiff’s attorneys Terry Bottinelli and Marc Saperstein blocked access to upwards of $92 million in funds, then relented when the state agreed to help document their case for sharing in the fee payday, though in the end it merely made short mention of their work in a press release. (Matt Ackermann, “New Jersey’s Tobacco-Suit Dividends Delayed by Hold-Out Attorneys”, New Jersey Law Journal, Jan. 11; “Holdout Tobacco Lawyers Will Relent If State Documents Their Case for Fees”, Jan. 18; “N.J. Tobacco Settlement Holdouts Drop Appeal”, Feb. 17) (more N.J. tobacco-fee coverage: Oct. 1). In Illinois, Seattle attorney Steve Berman’s Hagens & Berman, San Francisco’s Lieff, Cabraser, Heimann & Bernstein, and two other firms slapped a lien on the state’s $9.1 billion windfall; last fall a national arbitration panel ruled that while the Berman firm had been an important player in tobacco litigation on the national scene, “relatively little was done to advance the case to trial in Illinois”. Berman, quoted in the Chicago Tribune, conceded that not everyone sympathized with his position that he and the other lawyers are nonetheless entitled to as much as $910 million for their Illinois work: “Some people say lawyers have got a lot of money and are overpaid and are bad guys anyway”. (Rick Pearson, “Lawyers demand a bigger piece of tobacco cash pie”, Chicago Tribune, Nov. 23) (more Illinois tobacco-fee coverage: Oct. 16; more on Berman: Feb. 28, Aug. 21).
February 28 – “Medical errors” study. Malpractice lawyers have already seized on a recent federal study (see Feb. 22 commentary) which extrapolated from a study of hospitals in three states to the conclusion that between 44,000 and 98,000 patients die each year nationally because of mistakes in medical care. In a short paper for the Statistical Assessment Service, Iain Murray and Howard Fienberg point out a few of the study’s questionable premises. For example, the study’s definition of medication-related errors, a significant share of the total, “is based on errors that resulted ‘from acknowledged errors by patients and medical personnel’” (emphasis added). “In other words, if a patient takes an overdose or fails to inform their medical advisers of other conflicting medications they are taking, that is regarded as a medical error, rather than misadventure.” (Iain Murray and Howard Fienberg, “Doctoring the Data, Nursing the News?”, “STATS Spotlight”, Feb. 24) (via Junk Science). Plus: a Chicago Tribune editorial urges caution: “Don’t Compound Medical Errors”, Feb. 27.
February 28 – Fifteen years locked away. If you think the day-care-abuse mania of the 1980s has mostly run its course, consider the case of Bernard Baran, convicted of mass molestation in 1985 in Pittsfield, Mass. under the sorts of dubious circumstances that were later to become familiar in such cases. Katha Pollitt’s Nation account mentions in passing that the mother who initiated the accusations, a drug addict living in troubled circumstances, proceeded to file a suit against the center demanding $3.2 million (the case “was settled out of court, reputedly for a small sum”), and that one of the children, whose mother was a friend of the original accuser, “told a therapist after the trial that her mother had told her to say Baran had molested her so they could get toys and money”. Since Baran still insists on his innocence he’s ineligible for parole. (Katha Pollitt, “Subject to Debate: Justice for Bernard Baran”, The Nation, March 13) (via Arts & Letters Daily) (”The Appalling Case of Bernard Baran”, website about the case).
February 28 – Hiring talent from the opposing camp. Seattle plaintiff’s lawyer Steven Berman is among the most feared in the country; a class-action securities specialist, he went on to assume a prominent role in the tobacco litigation (see August 21; his fee from that has been estimated at $2 billion). But now the city’s best known corporate citizen, Microsoft, has quietly hired Berman to help it fend off the wave of class-action lawsuits it’s facing over its antitrust troubles. According to Forbes’s “The Informer”, Berman and Microsoft chairman Bill Gates have become personal friends — notwithstanding a 1989 incident in which, following a sudden drop in the company’s stock price, Berman filed a lawsuit against the company and won $1.5 million. (Elizabeth Corcoran and Tomas Kellner, “The Informer”, Forbes, Feb. 7) (fourth item).
February 28 – Welcome Duke Law visitors. Overlawyered.com is the featured “site of the week” on the Duke Law School “Faculty and Staff Gateway” page.
February 26-27 – Legal ethics meet medical ethics. Two weeks ago, in preparation for his second murder trial on charges of pushing Kendra Webdale to her death on the New York subway last January, Andrew Goldstein went off his antipsychotic medication. Mr. Goldstein’s court-appointed lawyers “advised him to go off his drugs in an effort to demonstrate to the jury the debilitating effects of his mental illness”. Doctors treating the 30-year-old schizophrenic at Bellevue were strongly opposed to the tactic, and some outside observers were also skeptical, such as Columbia law professor Richard Uviller, who said “a lawyer’s first duty is to preserve his client’s health.” However, schizophrenia expert Dr. E. Fuller Torrey called the move legitimate and said he himself “had intentionally given homeless mentally ill patients less medication than they needed before court competency hearings to keep them from being released back onto the street.” Justice Carol Berkman of State Supreme Court in Manhattan “has said she would allow Mr. Goldstein to stop taking his medication for as long as he appeared competent to stand trial. If he appeared not to understand his surroundings, she ruled, he would be forcibly given his medication.” The new trial is expected to last at least a month; the first ended in a jury deadlock and mistrial. (David Rohde, “For Retrial, Subway Defendant Goes Off Medication”, New York Times, Feb. 23 — fee-based archive).
February 26-27 – “Judgment reversed in Seinfeld case”. “An appeals court on Tuesday reversed a $25 million judgment awarded to a man who was fired after a female co-worker complained that he harassed her by discussing a racy episode of ‘Seinfeld.’ … The ‘Seinfeld’ element of the case eventually became secondary and a Milwaukee County Circuit court dismissed a wrongful-firing claim.” Jerold Mackenzie had argued that his bosses at Miller Brewing Co. were already plotting to fire him from his $95,000-a-year management job at a time when they told him his position was safe. (Jenny Price, AP/Washington Post, Feb. 22, link now dead).
February 26-27 – Deep pockets blameable for denial of service attacks? PBS commentator Robert X. Cringely has posted a bunch of emails from his readers concerning the coordinated “distributed denial of service” attacks on major web sites earlier this month. Among them was the following from Jay Kangel: “At some point one of these hacking events is going to cost someone who can hire lots of lawyers with real money. At that point the victim, or the victim’s insurance company, will want to sue for damages. The actual hacker will likely have little or no money. Even if the victim wins such a suit the damages cannot be recovered. The deep pockets are the owners of the zombie machines. Is it negligence if a machine owner does not promptly install security patches and, as a result, hackers take over the machine? I don’t know….” (”The Cat is Out of the Bag”, I, Cringely: The Pulpit, Feb. 24).
February 26-27 – Mayors: liability fears stalling “brownfields” development. A report from the U.S. Conference of Mayors finds that liability fears are among major factors stalling redevelopment of “brownfields” (abandoned or underused industrial sites) in American cities. Environmentalists and urbanists consider brownfields an attractive alternative for new industrial development near the existing workforce, remedying eyesores and bolstering urban tax bases while avoiding development of peripheral vacant land around cities (”sprawl”). The open-ended liability inflicted by the Superfund program, however, menaces new developers, lenders, realtors and users with potential responsibility for the environmental sins of long-departed actors. (”Traci Watson, “Report finds more than 80,000 acres of polluted land in USA”, USA Today, Feb. 25, link now dead; report and news release).
February 25 – Music stores sue Sony. Candidate for the distinction of lamest business-vs.-business suit of the year? You be the judge. The National Association of Recording Merchandisers has filed suit against Sony for the purported offense of including hyperlinks and promotional inserts in or with its music products that enable/encourage consumers to use its online store, thus “diverting” them away from their destined role as future purchasers at the retail outlet. “Few retailers are happy about having to stock Ricky Martin CD’s with hyperlinks to Sonymusic.com [where customers can buy more CDs], but Sony hasn’t provided any alternative,” complains Pamela Horovitz of NARM. This practice amounts, says Horovitz, to “forcing retailers to steer their own customers to competitive sites”. “Forcing”? Well, it seems, the latest Ricky Martin album was just too darn popular for record stores to consider not stocking it by way of punishing Sony for its hyperlink policy.
The retailers insist that Sony has a legal obligation to make available to them CDs stripped of the capability to hyperlink to an online store, much as if newsstand distributors demanded that publishers supply magazines that were free of subscription cards (which of course tend to “divert” readers’ business from further newsstand purchases of the magazine). The complaint also charges Sony with “copyright misuse, illegal price discrimination by favoring its own record club and on-line music retailer (CDNow/ Columbia House) over other retailers, unfair competition, and false advertising.” (”Retailers Sue Sony”, Reuters/Wired News, Jan. 31; NARM press release, Jan. 31; Pamela Horovitz, commentary, Billboard, July 1999 (reprinted at NARM site, second item)).
February 25 – Not to be dismissed. Item from a recent (Jan. 27) edition of Chuck Shepherd’s News of the Weird, under the heading “Fireproof Workers“: “An arbitration panel ruled in July that Toronto Transit Commission janitor Winston Ruhle had been improperly fired and deserved about $115,000 (U.S.) in damages; he was fired in 1995 for padding his recuperation time after surgery, improperly missing 203 days during a 244-day period. And English chauffeur John Forbes, 55, won an employment tribunal ruling in September that it was unfair to fire him simply because he had twice dressed in women’s clothing on the job and flashed his underwear to passing motorists.”
February 25 – Secrets of class action defense. “Some companies facing a multitude of class actions have been accused of shopping for the cheapest settlements by choosing to deal with lawyers willing to seek less for class members, sometimes in return for a hefty legal fee,” reports the Mobile Register in its investigative series (see Feb. 7 commentary). For example, Norwest Financial was accused of overcharging for credit life insurance in a class action filed in Birmingham; it offered a settlement, which was rejected. It then struck a similar deal with a Mobile lawyer to settle the case on behalf of the same class. “‘Defendants can to some degree get different plaintiffs’ lawyers to bid against each other,’ said John Coffee, a professor at Columbia University in New York and expert on class action law. … If one plaintiffs’ lawyer drives a hard bargain and seeks a truly beneficial settlement for a class, a company may seek another lawyer and ask him to file a suit for the purpose of settling, and on terms the company dictates.
“Coffee said it’s ‘a game’ by which a defendant arranges for a plaintiffs’ attorney to agree to a ‘modest settlement for the class but very lucrative attorney’s fees. The defendant might even write up the complaint to make sure it’s competent and covers everything,’ Coffee said.” (Eddie Curran, “Judge: Mobile deal a ‘cheap ticket out of trouble’”, Dec. 27 (full series).
February 24 – Columnist-fest: liberal aims, illiberal means. Three variations on a theme, namely how progressive social goals aren’t always well served by handing ever-greater authority to those who run the legal process:
* Wendy Kaminer understands why feminists would rally behind the Violence Against Women Act, currently up before the Supreme Court in Brzonkala v. Virginia Tech, but wonders whether liberals should really be comfortable arguing for an expansive view of federal police power. “We need to combat sexual violence without making a federal case of it.” (”Sexual Congress”, American Prospect, Feb. 14).
* Stuart Taylor welcomes the idea of extending legal recognition in Vermont to same-sex relationships, but asks: should this advance really be put over by way of a unilateral assertion of power by the state’s Supreme Court? (”A Vote For Gay Marriage — But Not By Judicial Fiat”, National Journal, Feb. 21).
* William Raspberry agrees that loving relatives should be a part of kids’ lives, but still is mystified by the law under review in the Supreme Court’s pending Troxel v. Granville: “If you stipulate the mother’s parental fitness (as both sides seemed to do in last week’s questioning by the justices) then how can you insist that she bow to the grandparents’ desires — or even that she has to explain why she chooses not to?” (”Grandparents’ visitation rights case misses boat”, Detroit News, Jan. 18).
February 24 – House passes liability reforms. President Clinton is going to huff and puff and use his veto to blow down anything that looks like a shelter from the incursions of his good friends in the trial bar, which hasn’t deterred the House from passing two bills this month aimed at extending modest degrees of such protection to small businesses and manufacturers of long-lived capital goods. (”GOP makes little headway in reining in lawsuits”, AP/CNN, Feb. 22, link now dead). The small business bill would restrict punitive damages levied against enterprises with fewer than 25 employees to $250,000 or three times actual damages, whichever is less, and would require plaintiffs seeking punitive damages to show that a defendant acted with “willful misconduct and was flagrantly indifferent to the rights and safety of others.” (”House Passes Bill Shielding Small Businesses From Liability Suits”, DowJones.com, Feb. 16.) The durable-goods bill would bar suits against makers of factory equipment that were filed more than 18 years after the delivery of the equipment to its original user; it would not apply to workers who are ineligible for workers’ compensation. (Paul Barton, “House passes cap on makers’ liability”, Cincinnati Enquirer, Feb. 3). The two bills passed by almost identical margins — 221-193 for the small business bill, and 222-194 for the statute of repose bill — with about two dozen Democrats crossing over to join the GOP majority in favor, and about one dozen Republicans crossing the other way.
February 24 – Blaming good pilots. One of the first lawsuits arising from the Jan. 31 Alaska Airlines crash over the Pacific claims that “the pilots should have ‘immediately … land(ed) the aircraft upon first notice of difficulty in operation.’ … But the second-guessing, and the widow’s lawsuit, are wrong. The pilots did what they were supposed to: Analyze the situation, take corrective action, land as soon as practicable. Hurtling through the skies in a pressurized metal tube has its risks. Slapping the airline with a lawsuit won’t make those risks magically disappear. … The pilots were heroes, keeping their crippled plane over the ocean instead of slamming it into suburban Los Angeles.” (Phaedra Hise, “Aerial ambulance chasing”, Salon, Feb. 18) (more on overlawyered skies: Oct. 8, July 19, Dec. 1, Dec. 9, “Kingdom of the One-Eyed“, “Life, Liberty, and the Pursuit of a Good Beer“)
February 23 – Crime does pay, cont’d. A federal judge last week refused to dismiss a civil rights lawsuit by family members of a bank robber killed in a spectacular televised shootout with police in North Hollywood, Calif. Emil Matasareanu and Larry Eugene Phillips Jr. “fired more than 1,200 rounds from automatic weapons during a 44-minute battle on Feb. 28, 1997. Both men died, and 11 officers and a half-dozen civilians were wounded.” Attorney Stephen Yagman, representing the family, alleges that police violated Matasareanu’s rights by deliberately “keeping paramedics away from him for an hour as he died on the street….The city has contended that paramedics were needed elsewhere and that authorities initially feared Matasareanu might be booby-trapped.” (”Judge allows lawsuit to go forward in North Hollywood shootout case”, AP/FindLaw, Feb. 16).
February 23 – “How’s the pool?” “It’s okay, but what’s amazing about it is that its construction predates massive lawsuits, so it actually has a deep end. Where most new Las Vegas pools are only three feet deep, this one goes to twelve feet. The diving board has been removed, however.” — from a review of the Frontier Hotel on the website CheapoVegas.com. Better hurry, though: the review advises that “The Frontier is scheduled to be demolished in the summer of 2000″.
February 23 – That Hager case. The Washington Post’s David Segal, who covered the lawyer beat for three years and has now moved on to write about music, last month penned a valedictory column which mentioned one of his regrets: not having taken a harder look at the disciplinary process for D.C. lawyers and in particular “the tale of Mark Hager, the American University Law professor and sometime plaintiffs lawyer.
“He represented a pair of Virginia mothers who wanted to sue Warner Lambert, makers of a lice shampoo, for creating an environmental hazard and for failing to rid critters from their children’s heads. In an out-of-court deal, Warner Lambert offered refunds to the moms and some 90 other buyers of Nix shampoo, a sum that totaled less than $10,000. Hager and a partner, meanwhile, ended up splitting the $225,000 that Warner Lambert paid on condition that the lawyers not bring another, similar suit and — here’s the kicker — not tell their clients about the bargain. (Hager countered that the deal was legit, in part because it doesn’t prevent his clients from suing Warner Lambert in the future. He also said the moms’ demand for a toxic tort-style suit was unreasonable.)
“The moms filed an ethics grievance and a hearing before a committee of the D.C. Board of Professional Responsibility — which recommends disciplinary action — occurred in January. Not a peep has been heard from that committee since, even though it’s supposed to cough up a recommendation within 60 days.”
Concludes Segal: “That’s an outrage. If Washington lawyers want the trust of their clients and abiding respect from the rest of us, devising a more efficient policing mechanism might be a good start.” (Update May 3, 2001: disciplinary panel in Nov. 2000 called Hager’s conduct “shockingly outrageous” and recommended three-year suspension) (Update Jul. 19, 2003: Hager resigns AU post in April 2003).
SOURCES: David Segal, “Hearsay: Verdicts Rendered, a Beat Surrendered”, Washington Post, Jan. 17; David Segal, “Group Says Lawyer Made Secret Deal”, Washington Post, November 4, 1998, and Siobhan Roth, “American University Professor Faces Ethics Charges, Legal Times, Jan. 18, 1999, both reprinted at headlice.org site; “‘Settlement’ in lice shampoo case probed”, AP, Jan. 27, 1999, reprinted at “Safe 2 Use” commercial page; Goldie H. Gider, “Law Professor Faces Ethics Charges”, The Legal Reformer (HALT), Spring 1999 (second item); Deborah Kelly, “Lice infestations on the rise”, Richmond Times-Dispatch, May 29, 1997. In addition to publishing in such outlets as Monthly Review and Z Magazine, Prof. Hager has also distinguished himself for the vehemence of his attacks on liability reformers; see, for example, “Civil Compensation and Its Discontents: A Response to [Peter] Huber,” 42 Stanford Law Review 539 (1990) (not online).
February 23 – “Quadriplegic is given 7 years in prison for selling marijuana”. In another triumph for the drug war, a federal court has sentenced Louis E. Covar Jr., 51, to prison for seven years. Covar, a wheelchair user who cannot control his muscles beneath his shoulders, says he uses marijuana for medicinal purposes but police testified that he was selling it, in violation of probation terms for a conviction for marijuana possession last March. “According to the Department of Corrections, the special care Covar will need will cost $258.33 a day — or more than $660,000 if he serves his full seven years. A typical prisoner costs taxpayers $47.63 per day.” Federal judge J. Carlisle Overstreet said he was aware of the cost-of-custody problem but said Covar had showed “blatant disregard for the law”. (AP/Deseret News, Feb. 19).
February 23 –Overlawyered.com sets new visitor record. Yesterday was our busiest day ever, thanks in large part to the Wall Street Journal’s generous editorial mention and the live link in its interactive edition.
February 22 – Welcome Wall Street Journal readers. In an editorial (”Virtual Sanity“) hailing the anti-food-scare Guest Choice Network, the Journal says that “overlawyered.com, a site run by Walter Olson to track the excesses of the lawsuit industry” is one of “a new breed of Websites… cropping up to keep tabs on the army of lawyers and activists”. (”Virtual Sanity”, Wall Street Journal, Feb. 22 (online subscription required)).
February 22 – Against medical advice. Ignoring the advice of both his own subordinates and the medical profession, President Clinton is expected today to unveil a package of measures aimed at combating “medical errors” among doctors, hospitals and other medical providers. The most controversial measure would subject providers to legal sanctions if they fail to report such errors. Since there’s often much doubt as to whether a particular incident constituted error and whether it contributed to a patient’s bad outcome, institutions could stay out of legal danger only by reporting as “error” many incidents that they might not be convinced are such. Despite supposed safeguards for privacy, the New York Times reports, it will often be possible for outsiders to identify the names of patients and doctors involved, and “public reports could be used to strengthen the hand of plaintiffs’ lawyers in malpractice lawsuits.”
The proposals follow a stampede set off by the release of a federally sponsored study which found high rates of avoidable injury to patients in the medical system. (For skeptical looks at the same Harvard-based researchers’ earlier allegations of an “epidemic” of medical malpractice, see Richard Anderson, 1996, and Peter Huber, 1990 and 1997). Both the American Medical Association and the American Hospital Association have warned that, to quote the Times, “if doctors and hospital employees fear being sued…they will be reluctant to discuss the lessons that could be learned from their mistakes.” Also conspicuous by its absence is any evidence that federally managed health care facilities, such as Veterans’ Administration hospitals, are presently achieving more success at avoiding errors than private hospitals, or any demonstration of why Washington should be imposing untried changes on private hospital management when it has as yet done nothing to demonstrate the workability of the proposed changes in its own facilities.
Indeed, “[e]ven Mr. Clinton’s own advisers had suggested that the administration move cautiously.” Instead, Clinton — fresh from a $500,000 trial-lawyer-hosted fund-raiser in Dallas two weeks ago — overrode their advice. He also insisted that an additional principle be part of the package: no matter how many rights doctors and hospitals are made to give up, no jot or tittle of the right to sue doctors or hospitals for malpractice may be interfered with. (Robert Pear, “Clinton to Propose a System to Reduce Medical Mistakes”, New York Times, Feb. 22 (requires registration)).
P.S.: For the past year, having abruptly reversed its earlier stance of resisting the expansion of litigation, organized American medicine has been cheerleading the trial lawyers’ assault on HMOs; the Connecticut State Medical Society, for example, recently sponsored trial lawyer bigwig Richard Scruggs to come to the state to talk up the subject. This could be seen as a kind of experiment: with the trial lawyers receiving such extraordinary and unexpected assistance from their old enemy, would they ease off on their litigation war against the doctors themselves? The Clinton initiative provides a definitive answer to that question: no, they won’t. (Edward J. Croder, “$300 million lawyer revs up to take on HMOs” (Scruggs speech at Quinnipiac College School of Law), New Haven Register, Feb. 11 — not online)
February 19-21 – “Deaf group files lawsuit against movie theaters.” Invoking the Americans with Disabilities Act, eight hearing-impaired persons in Portland, Oregon have filed what aspires to the status of a national class action seeking to force three large cinema chains, Regal, Century, and Carmike, to install closed captioning devices for films in their theaters. The technology, called MoPix, displays captions in a patron’s cupholder; the plaintiffs say it costs about $12,000 a screen to install. A spokesman for the suit, attorney Dennis Steinman, said the country’s biggest cinema chain, Cinemark, was likely to be added soon to the case as a defendant. (Ashbel Green, “Suit seeks to aid deaf moviegoers”, The Oregonian, Feb. 4).
February 19-21 – Bountiful NYC taxpayers come through again. It happened in 1989: Driver Jack Goldberg, under the influence of heroin, cocaine and methadone, lost control of his car and ran onto a Brooklyn sidewalk, gravely injuring Linda Davis, who’d been waiting with her daughter and grandson to catch a bus. Pleading guilty to assault, Goldberg was sent to prison for two years. But the blame could hardly be allowed to stop there, especially not when a far deeper pocket was on hand. Mr. Goldberg proceeded to aver that he’d swerved to avoid a city sanitation truck that was entering the intersection against the light. This theory outraged city officials, who according to the New York Law Journal “contended that Mr. Goldberg admitted at his deposition that he did not recall even seeing the truck in the area and that he had swerved to avoid striking a boy who had run into the street half a block away.” Nonetheless, on December 16 a Kings County jury proceeded to find the city 23 percent culpable for the incident and hand down a $16 million verdict in the suit brought by Ms. Davis and her relatives; joint and several liability should do the rest. (”Verdicts and Settlements”, New York Law Journal, Jan. 28, not online).
February 19-21 – Harassment-law roundup. A new product called Disappearing Email is set to launch next month which automatically “shreds” and destroys email after a certain length of time as determined by company policy; the target market is companies worried that internal emails will be used against them by lawyers in harassment or other types of litigation. (”Email’s Vanishing Act”, Wired News, Feb. 7). Meanwhile, the Industry Standard takes a look at the widely publicized sexual harassment lawsuits filed by two employees against Juno, the Internet start-up. (Susan Orenstein, “What happened at Juno”, The Standard, Feb. 7). And at Intellectual Capital, reader discussion is in progress about Joan Kennedy Taylor’s book What to Do When You Don’t Want to Call the Cops: A Non-Adversarial Approach to Sexual Harassment, excerpted briefly in this space in November. (Jaime Sneider, “Above the Law?”, Intellectual Capital, Feb. 17).
February 19-21 – Welcome Lucianne.com, Crikey.com.au readers. Readers of Lucianne.com, the popular news forum presided over by Zippergate stalwart Lucianne Goldberg, recently discussed our commentaries “Bill Clinton among friendly crowd” and “Thanks for the memories” (links now dead). And an influx of visitors from Australia over the last week or so owes much to our inclusion as a link on Crikey.com.au, an irreverent investigative site that covers media, government and business down under.
February 19-21 – “Motorists speed more, but fewer die”. When Congress did away with the national 55-mph highway speed limit, opponents called it a “killer bill”; Advocates for Highway and Auto Safety — a be-safe-or-else coalition backed by both insurance companies and the trial-lawyer-allied Ralph Nader complex — predicted that the move “will be the death knell for thousands of American men, women and children“. But in fact “the national crash fatality rate, determined by the number of fatalities for every 100 million vehicle miles driven, has fallen by 11 percent since the United States lifted the national 55 mph speed limit in 1995″. (Tom Greenwood, “Motorists speed more, but fewer die”, Detroit News, Jan. 4; Brock Yates, “Just when you thought bigger was better”, Car and Driver, Oct. 1999, reprinted at Steve Hartford site).
February 19-21 – Update: Cayuga land claim. A Syracuse, N.Y. jury has recommended an amount of $36.9 million as appropriate compensation to the Cayuga Indian tribe for its sale of 64,015 acres to the state of New York two centuries ago. The sum was far below the $335 million sought by the Cayugas and below even the $51 million recommended by appraisers for the state, which was the defendant in the suit. Cayuga attorney Martin Gold lashed out at the ruling as “ridiculous…Apparently nine people didn’t pay attention to the evidence.” The 1795 and 1807 sales were recently declared invalid because they were not approved by the federal government, as required by law (see Feb. 1 commentary). Jim Memmott, “Verdict saddens Cayugas”, Rochester Democrat & Chronicle, Feb. 18.)
February 18 – Bush unveils legal reform plan. On the campaign trail last week, Texas Gov. George W. Bush unveiled proposals for reforming the civil justice system if he’s elected President. (Disclosure: this site’s editor has served as an unpaid advisor to the Bush campaign on the issue.) The proposals include: tougher sanctions for meritless lawsuits and motions; a “Fair Settlement Rule” under which parties who reject a bona fide settlement offer and then do worse at trial will be liable for the reasonable legal fees their opponents expended after the offer; curbs on lawyers’ power to steer actions into courts they view as favorable (”forum-shopping”); a “Client’s Bill of Rights” prescribing more disclosure about fees to be charged and enhanced supervision by federal courts of fees charged in the cases they oversee; and controls on unreasonable fees charged by lawyers representing government bodies. (”Bush proposes higher standards for lawyers”, Reuters/FindLaw, Feb. 9; campaign news release, Feb. 9; fact sheets on tort reform and on Texas record (PDF format); Morton Kondracke, “Bush’s Trial with the Trial Lawyers”, June 28, 1999 (reprinted at Citizens Against Lawsuit Abuse Houston site)).
February 18 – I see riches in your future. ABC has confirmed that it has paid $933,992 to an employee of the Psychic Services Network who sued the network over its 1993 airing of a secretly made videotape on its newsmagazine “PrimeTime Live”. Mark Sanders charged that ABC had ruined his reputation by covertly videotaping him and his colleagues working the telephones in a show aimed at depicting the call-a-psychic business as “a scam and illegitimate”. In 1994 a jury awarded Sanders $335,000 in compensatory and $300,000 in punitive damages, and the total sum owing has mounted through the accumulation of interest as ABC has pursued unsuccessful appeals. (Yahoo/AP, “ABC Pays Damages to Psychic Network”, Feb. 15, link now dead).
February 18 – Lawsuit reform helps Michigan taxpayers. The state’s payout in judgments and settlements, which had been running around $25 to $35 million a year, declined to $12.7 million last year. Democratic state attorney general Jennifer Granholm credited skillful legal work and good economic times for the favorable trend but also, significantly, acknowledged the helpful role of 1995 reforms which bolstered sovereign immunity and curbed the application of joint and several liability, the deep-pocket doctrine by which a defendant one percent responsible for an accident can be made to pay all the damages. (”Tort reform pays off” (editorial), Detroit News, Feb. 2).
February 18 – The trouble with bounty-hunting. “Porcupines [in New England] have never enjoyed the popular status of, say, the armadillo in Texas. They were particularly unpopular earlier in this century, when they returned to reforested areas ahead of their natural predators and consequently boomed. John Barrows, a district forester with the state of Vermont, recalls that Vermont used to offer a bounty of fifty cents for a set of porcupine ears, and in 1952 paid out $90,000. Remarkably, it still had a porcupine problem in 1953 and for several decades thereafter. Barrows explains: ‘There was a time when we thought the state had a lot of money, and a trapper who knew how to use his knife could get ten or twelve sets of ears out of a single animal.’” — from Richard Conniff, Every Creeping Thing: True Tales of Faintly Repulsive Wildlife (Henry Holt & Co., 1998).
February 17 – And so now everybody’s happy. “Last month, the Supreme Court decided not to review an appeals court decision that temporary Microsoft workers must receive the same retirement benefits, including discounted stock, as regular employees…. Already, some companies have reacted to the original Microsoft decision by getting rid of temporary workers before they can be considered permanent, lawyers said.” (David Leonhardt, “Who’s the Boss? Who’s a Worker?”, New York Times, Feb. 16) (& see letters, Dec. 20).
February 17 – Barrel pointing backward. “President Clinton enthusiastically backs the current wave of municipal lawsuits against the gun industry“, yet he’s also proposed giving $10 million in taxpayer money to some of the same manufacturers for the sake of developing so-called smart guns. Some litigation advocates are upset about the inconsistency, including Kristen Rand of the Violence Policy Center, who says: “It makes the lawsuits seem like a charade.” Yes, now she’s getting the idea.
The litigation onslaught may in fact have retarded progress toward smart-gun technology. Colt’s Manufacturing Co. had been at work on a smart-gun venture but folded its effort late last year; the Wall Street Journal’s Paul Barrett quotes John Rigas, a partner in the company’s controlling owner, the New York investment group Zilkha & Co., as saying that “potential punitive damages scared away needed outside investors”. (Paul M. Barrett, “‘Smart’ Guns Trigger a Debate”, Wall Street Journal, Jan. 27 (requires online subscription).)
February 17 – Welcome Kausfiles.com readers. Mickey Kaus’s commentaries on politics, journalism and social policy, among the high points of Slate, are also collected on this freestanding website. He’s just added new features including a desktop-style assortment of columnist and policy links. Check out the ultrabrief descriptions (for this page: “Daily horror stories”.)
February 17 – The fine print. The Boston Globe has backed off at least temporarily from a short-lived effort to save money, trees and ink by reducing the type size of its articles, thus squeezing more onto a page. Readers had protested vociferously, and at least one threatened to sue under the Americans with Disabilities Act: “The Globe cannot simply refuse to serve readers with aging eyes and poor eyesight.” (Jack Thomas, “The incredible shrinking type irks Globe readers”, Boston Globe, Feb. 14, link now dead (via Romenesko, Media News)).
February 17 – Let your fingers do the suing. The Yellow Pages contain many entries for businesses like the A-ABC Locksmith Service and AAA Affordable Auto Glass, and now you can add to that list of eagerly promotional trade monickers the AAAA Legal Center, run by Detroit-area trial lawyer Robert D. Mouradian, though its website has not been updated since April 1999 and could use a spell-check.
February 16 – Welcome Fox News Channel visitors. Our editor was interviewed for a story on how the Americans with Disabilities Act may require the redesign of websites so as to provide “reasonable accommodation” to blind, deaf and other handicapped users. For more details, see his prepared statement presented to a House Judiciary Committee hearing last week; our Dec. 21 commentary, and our subpages on disabled-rights law and Internet law.
February 16 – Update: Connecticut tobacco-fee bonanza. Not long after Connecticut attorney general Richard Blumenthal said last winter he had “no idea” whether law firms were going to rake in excessive fees representing the state in the tobacco settlement (see Feb. 3 commentary), a total fee haul was announced: a handsome $65 million. As previously reported in this space, the three lucky firms selected to handle the in-state work included Blumenthal’s own former law firm of Silver, Golub & Teitell of Stamford. The other two firms? One was Carmody & Torrance of Waterbury, whose managing partner James K. Robertson is personal counsel and counselor to the state’s governor, John Rowland. And the third was Stamford’s Emmett & Glander, whose name partner, Kathryn Emmett, happens to be married to partner David S. Golub of Silver, Golub & Teitell. “I know how it [looks]“, concedes Golub.
A number of other firms that wanted to be considered for the work were cut out; Robert Reardon of New London, a former president of the Connecticut Trial Lawyers Association, couldn’t get even get in the door for a meeting. Though Attorney General Blumenthal was later to disclaim knowledge of the firms’ fee entitlements, the Connecticut Law Tribune reports that he “was extraordinarily active in the litigation and settlement — more so than any other attorney general”. (Thomas Scheffey, “Winning the $65 Million Gamble”, Connecticut Law Tribune, Dec. 8; “After the Lion’s Share”, Feb. 5).
February 16 – Disabled test-accommodation roundup. Salon is the latest to notice this issue. While the share of students getting extra time on the SAT — typically an extra hour and a half on a three-hour exam — is still only 1.9 percent nationwide, “the number jumps to nearly 10 percent in some New England prep schools and wealthy districts in California.” Michael Scott Moore, “Buying Time”, Salon, Feb. 9). AP reports that the percentage of college freshmen describing themselves as disabled more than tripled between 1978 and 1998, from less than 3 percent to 9.4 percent. Forty-one percent of the disabled freshmen in 1998 identified their impediment as a learning disability, up from 15 percent ten years earlier. More chances to attend college for kids who’d have been classified as disabled all along — or just more students being classified as disabled? (”Learning Disabled Advance in School”, AP/FindLaw, Feb. 10). In a case closely watched by college officials, a Boston College senior with attention deficit disorder and a 3.35 grade point average “has sued the Law School Admissions Council, charging the national testing giant violated her rights by denying her extra time to take the all-important exam.” (Andrea Estes, “BC student sues test firm: Wants more time for law school exam”, Boston Herald, Jan. 12).
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November 30 – Class-action fee control: it’s not just a good idea, it’s the law. A panel of the Ninth Circuit U.S. Court of Appeals has ruled that judges have a positive duty to scrutinize and, where appropriate, reduce attorneys’ fees in class actions, independently of whether anyone with appropriate standing raises an objection. The case arose after a Los Angeles federal district judge approved nearly $3 million in legal fees to the plaintiff’s firm of Weiss & Yourman in a shareholder class action against Occidental Petroleum, which had cut its dividend in alleged breach of an earlier promise not to do that. The case was settled by Occidental’s agreement to maintain more lucrative dividend payouts in the future and pay legal fees to the plaintiff’s firm; no cash recovery was had by shareholders.
Noted class-action objector Lawrence Schonbrun then appeared on behalf of a class member to challenge the fee payout as excessive; his arguments proved sufficiently persuasive that the judge eventually cut Weiss & Yourman’s fee by more than half, to $1.15 million. The law firm appealed, arguing that because its fee was the result of a separate side-deal with Occidental, rather than being deducted from a payout to the class, an individual class member (such as Schonbrun’s client) had no standing to object. This line of argument has been routinely offered in defense of “separately negotiated fee” class-action settlements, and it has a remarkable implication, namely that once the two sides’ lawyers have cut their deal behind closed doors, no one in the client class has any right to raise an objection to the fees obtained for representing them. Fees for representing a class, yet with no worry that anyone in the class will be able to bring a challenge to those fees — why, it’s like magic!
A little too magical for the Ninth Circuit: a “client whose attorney accepts payment, without his consent, from the defendants he is suing, may have a remedy,” wrote Judge Andrew Kleinfeld last month on behalf of a unanimous panel that also included Judge Alex Kozinski and Oregon district judge Owen Panner, sitting by designation. “The absence of individual clients controlling the litigation for their own benefit creates opportunities for collusive arrangements in which defendants can pay the attorneys for the plaintiff classes enough money to induce them to settle the class action for too little benefit to the class”. That’s where “the supervisory power of the district court” should come in, as “a mechanism for assuring loyal performance of the attorneys’ fiduciary duty to the class.” (Paul Elias, “$2 Million Fee Reduction Stands in Securities Case”, The Recorder/Cal Law, Oct. 20 — full story).
November 30 – Leave that mildew alone. It’s illegal to market “mildew-proof” paint for bathrooms and damp basements unless you go through the (extremely expensive) process of registering the paint as a pesticide, claims the federal Environmental Protection Agency, which is seeking $82,500 in penalties from William Zinsser & Co., Inc., a Somerset, N.J.-based paint manufacturer. (EPA Region 2 press release, Nov. 10).
November 30 – Update: sued columnist still disrespecting local attorneys. As reported earlier in this space, Swansea, Ill. lawyers Judy Cates and Steven Katz have filed a lawsuit demanding $1 million from St. Louis Post-Dispatch columnist Bill McClellan after a column in which he criticized their handling of a class-action suit against Publisher’s Clearing House and jocularly compared them to the James Gang of bank robbers (see Nov. 4 commentary). You’d think McClellan would have learned his lesson by now, especially with the case still pending, but no, he’s had the temerity to write another column criticizing the same lawyers, this time pointing out that numerous state attorneys general have intervened to fault their proposed settlement of the magazine-subscription suit. (”Regardless of suit result, my lawyers will have work”, Nov. 21 — full column)
November 29 – New subpage: Our overlawyered schools. Compiling news clips and commentaries on the legal headaches that beset teachers, students, principals, faculty and university administrators. Highlights include our ever-popular Annals of Zero Tolerance, special ed and the ADA, Title IX (From Outer Space), the role of litigiousness in undermining supervised recreation, the paralytic contribution of tenure laws, and other trends that tend toward the merger of schoolhouse, courthouse and madhouse.
November 29 – “Some lawyers try to make nice”. “Soon after EgyptAir Flight 990 plunged into the Atlantic Ocean, the personal-injury lawyers at R. Jack Clapp and Associates marshaled their resources and mobilized their forces. Faster than you can say class-action lawsuit, the Washington, D.C., firm, which specializes in aviation disasters, launched EgyptAir990.com — a Web site that at first blush appears primarily concerned with helping the bereaved deal with loss, but on closer examination is all about financial gain.” New York Times writer David Wallis devotes a “Week in Review” roundup to the legal profession’s efforts to repair its “sorry” image, lately impaired “by tacky late-night commercials for ambulance chasers; the legal lobby’s opposition to tort reform; and the one-two punch of the O.J. Simpson trial and the Monica Lewinsky scandal.”
The Ohio Bar, meanwhile, has sponsored a TV spot in which two children explain at school what their parent does for a living: one says his father “protects people”, like a police officer, and another says her mom “helps sick and hurt people”, like a doctor. It turns out that they’re . . . lawyers. So what is it that the opposing side’s lawyers do for a living? (David Wallis, “Some Lawyers Try To Make Nice”, New York Times, Nov. 28 — full story)(free, but registration required).
November 29 – “Wretched excesses of liability lawsuits”. Op-ed by the Philadelphia Inquirer’s David Boldt looks at “the ever-expanding litigation explosion” by way of some recent automotive cases, including the class action against DaimlerChrysler that recently resulted in a countersuit by the company (see November 12 commentary). On this summer’s Chevy Malibu verdict in Los Angeles, in which a jury voted $4.8 billion against General Motors, later reduced by a judge to $1.1 billion, Boldt offers a point of comparison we hadn’t previously seen: “The impact [of the Chevy's 70 mph rear-ending by a drunk driver] was the equivalent of dropping the car from the top of a 16-story building.”
Many accept the idea that the litigation boom offers compensating benefits — for example, “that our lives are made safer by the system because it makes companies more careful. Interestingly, there is no known evidence for this.” Boldt cites the Brookings Institution’s study “The Liability Maze” of eight years ago. “The editors — Peter Huber of the Manhattan Institute and Robert Litan of Brookings — wrote that none of the authors had found a demonstrable improvement in safety for Americans compared with nations that have less stringent liability-law systems. Nor did the authors find that the increase in liability suits had accelerated a decline in U.S. accident rates. I can find no subsequent study that has contradicted these conclusions.” (David Boldt, “We all end up paying for a litigious society”, reprinted in Baltimore Sun, Nov. 24).
November 26-28 – Oh, well, better luck next time. Illinois courts reviewing capital sentences “have repeatedly expressed dismay at the representation received by Death Row inmates at trial,” and this Chicago Tribune investigation brings to light a sad array of ways lawyers can drop the ball at a time when clients need their help most: missing deadlines, failing to develop exculpatory evidence, alienating judges, neglecting to disclose conflicts of interest, and much more. “Since Illinois reinstated capital punishment in 1977 . . . 33 defendants sentenced to death were represented at trial by an attorney who had been, or was later, disbarred or suspended — disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney’s license should be taken away.” If lawyers can perform this sloppily even when a client’s life is at stake, what must they be getting away with in lesser cases? (Ken Armstrong and Steve Mills, “Inept Defenses Cloud Verdicts”, Chicago Tribune, Nov. 15).
November 26-28 – Beware of market crashes. “Online brokerages are ‘probably’ financially responsible for computer outages that leave their customers unable to trade,” Securities and Exchange Commission Arthur Levitt said this week. Executives at online trading firms, reports the New York Post’s Jesse Angelo, “are terrified of lawsuits from customers claiming they lost money due to computer glitches. E*Trade has already been slapped with such a suit by an Ohio woman who attributes $40,000 in losses to computer problems at the online trading site. The suit seeks class-action status”. (Jesse Angelo, “Levitt: Web Brokers May Be on the Hook for Computer Crash”, New York Post, Nov. 23).
November 26-28 – Update: cannon shot OK. Administrators at Nevis High School in Minnesota have relented and agreed to permit a yearbook photo of Army enlistee Samantha Jones perched on a cannon draped with a U.S. flag, despite a policy of “zero tolerance” of depictions of weapons (see Oct. 30-31 commentary). “More than 100 students walked out of class Nov. 3 to protest the ban on the photo, leading to 50 suspensions,” AP reports. (”Fight over yearbook photo ends”, AP/Washington Post, Nov. 25 (link now dead)).
November 26-28 – Weekend reading: evergreens. Pixels to take to the mall or to peruse while resting off the big meal:
* Out-of-state defendants sued for more than $75,000 in a state court should be able to choose removal of the suit to a U.S. district court with its greater objectivity between local and nonlocal litigants, argues Phelps Dunbar partner Michael Wallace in one of the more promising proposals for liability reform we’ve heard in a while (Michael Wallace, “A Modest Proposal for Tort Reform“, from vol. 1, issue 3 of Federalist Society Litigation Working Group newsletter; at Federalist Society website).
* How to tell you’ve been the victim of a staged car accident: tips from a local CBS-TV affiliate’s story on “Los Angeles’ most unlucky driver” (you’re driving alone in a newer car, someone in one vehicle distracts your attention, a second older car with several passengers gets in front of you and suddenly slams brakes, none of the alleged victims carry photo IDs) and from investigator Jack Murray’s book on the subject (the incident occurred midblock, not in rush hour and with no eyewitnesses, struck vehicle “has had tire pressure in the rear tires lowered (causes more taillight damage and stops more quickly)”. (”Special Assignment: Staged Accidents“, Channel2000.com, March 28, 1998; Jack Murray, “Red flags: a 14 point checklist“, not dated, National Association of Investigative Specialists website).
* “Procedures And Rules Regarding Suits Against Public Entities” — well, okay, it’s a dry title for an undeniably dry outline of the steps involved in extracting money from City Hall, but you’ve got to admit it bears an interesting byline: Johnnie L. Cochran, Jr., whose success in litigating personal-injury cases both preceded and followed his better-known role in assisting O.J. Simpson to walk free of murder charges (website of California law firm Kiesel, Boucher and Larson LLP — full paper, undated).
November 24-25 – Don’t redeem that coupon! Under the heading, “Free money for doing nothing”, financial commentator Andrew Tobias writes, “If you’ve ever owned a Toshiba laptop — I’ve owned two — apparently you’re in line for $200-$400 because Toshiba has to pay us $2 billion because . . . well, because . . . I’m actually not going to claim my prize, because it doesn’t feel right. But, as noted over on overlawyered.com, it makes an interesting story.” (AndrewTobias.com, Nov. 24). Our coverage of the Toshiba laptop settlement ran Nov. 3, Nov. 5, Nov. 17 and Nov. 23.
November 24-25 – From our mail sack: memoir of a morsel. We’ve generally refrained from publishing on this site the many letters people send us describing their horrible personal experiences in court. Just this once, we’re going to break that rule and run this one from Paul Boyce of Tustin, Calif.:
“I am a small businessman, owner of a 3-employee business helping companies with their carpool programs (one of those employees is my wife). We were sued by an employee for wrongful termination 5 years ago, at a time when we had six employees. She had been working for me for only 6 months when I let her go. We went into binding arbitration, supposedly a low cost alternative to a jury trial. I lost. With penalties and interest, the judgment came to over $240,000. In 1998, I filed for Chapter 7 liquidation bankruptcy — there was no way I could pay that much! In fact, business revenues were down to 1/5 of what they were when she sued me. Last year I earned $60,000. My lawyer’s fees came to $55,000.
“In the bankruptcy, the only asset we had was our small-business retirement plan savings, amounting to about $350,000. What was astonishing was that the judge said that because my wife and I are in our mid 40s, we didn’t need the $350,000 — we could easily make it up! He based this on tables showing how long we could be expected to live versus how much we could be expected to make at hypothetical government jobs. So he ordered our retirement plan be handed over to the contingency fee lawyers to be split up. We’ve asked around and the best we can tell, the employee who sued us 5 years ago will get maybe $35,000 for her efforts. We counted a total of 4 contingency fee lawyers on her side.
“The result of all this is that I’ve decided to close the office and lay off my only employee. It’s just a lot easier and less risky to run the business out of our home.
“The legal system, with its strong preference for feeding the lawyers at the expense of morsels like me, shows me how far astray from the constitution our great country has strayed. It’s a parody of what the founding fathers had in mind when they clearly expressed their historic vision. Today, it’s all about the lawyers and how clever they are at shifting even more wealth their way.”
Paul and Sandy Boyce can be reached at Commuter Services Group, Tustin, CA.
November 24-25 – CNN “Moneyline”. Watch for our editor as a likely guest on this evening’s (Wed., Nov. 24) CNN Moneyline, discussing the continuing lawsuit boom.
November 23 – Class actions vs. high tech. “It had to happen: America’s most successful industry, high technology, is under sustained assault from America’s second-most successful industry, litigation.” The editor of this website has an op-ed in this morning’s New York Times, tackling the Microsoft and Toshiba class actions. (Walter Olson, “A Microsoft Suit with a Sure Winner”, New York Times, Nov. 23).
November 23 – Soros as bully. Add another prominent name to the list of philanthropists (see September 2 commentary) bankrolling the lawsuits that are fast driving family-owned gunmakers into bankruptcy: wealthy financier George Soros, who according to a Wall Street Journal report last month has donated $300,000 to keep the Hamilton v. Accu-Tek litigation going and also provided financing for the NAACP’s suit against gunmakers. (Paul M. Barrett, “Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21)
November 23 – Update: too obnoxious to practice law. The Nebraska Supreme Court has now heard the case of Paul Converse, who wants to become a lawyer though the state bar commission says he’s behaved in an “abusive, disruptive, hostile, intemperate, intimidating, irresponsible, threatening or turbulent” manner in the past (see Oct. 13 commentary). Last week the court agreed that Converse “seeks to resolve disputes not in a peaceful manner, but by personally attacking those who oppose him in any way and then resorting to arenas outside the field of law to publicly humiliate and intimidate those opponents.” Notwithstanding these high qualifications to practice in certain fields of American law, it turned down his application. They sure do things differently out in Cornhusker land (Leslie Reed, “Court: Law Grad Unfit for Nebraska Bar”, Omaha World-Herald, Nov. 20, link now dead)
November 23 – Get off my jury. “To win a decent verdict, Mr. Rogers [Chicago attorney Larry R. Rogers, Sr., who won $10.4 million for a client after a serious traffic accident] had to select the right jury…He never wants people from the banking industry, accountants and people in investment professions on his juries: ‘These people tend to think about the power of money, that if you give someone $100,000 and they invest it, it will earn something. They won’t give you full compensation for the injury.’ He was also sensitive to keeping off jurors who are anti-lawsuit: ‘I ask them is there anything they’ve heard in the media, in newspapers, about tort reform.’ …’They liked [his client], and juries tend to award damages to people they like.” (”Proving worth isn’t age-related” (profile of Larry R. Rogers Sr.), National Law Journal, Oct. 4.)
November 22 – From the planet Litigation. Courtroom jousting continues between a group that calls itself Citizens Against UFO Secrecy and the U.S. Department of Defense over CAUS’s charges that DoD has covered up incidents of possible intrusion by extraterrestrial spacecraft. CAUS has sued the government a half-dozen times over its alleged unresponsiveness to Freedom of Information Act (FOIA) requests regarding UFO sightings; on September 1 it added a complaint that the government has fallen short of its responsibilities under Article IV, Section 4 of the Constitution to defend the nation’s territory against foreign invasion. CAUS executive director Peter Gersten filed the action in his home state of Arizona, which “is definitely a targeted area for the clandestine intruders,” and is contemplating follow-on suits in New York and California. “I can prove in a court of law, and beyond a reasonable doubt, that we are in contact with another form of intelligence,” he says. CAUS’s site reprints affidavits, motions and other documents from the case, including illustrations of UFO sightings in Corpus Christi, Tex., Pahrump, Nev. (link now dead), and Seattle. (Robert Scott Martin, “CAUS Sues U.S. Over Secrecy”, Space.com, Sept. 1, link now dead; CAUS Sept. 1 press release.)
In a separate action, UFO researcher Larry Bryant of Alexandria, Va., who’s served as CAUS’s Washington, D.C. coordinator, has prepared a petition charging Virginia authorities with shirking their constitutional obligation to safeguard citizens from invasion by foreign powers. Bryant says Virginia governor James Gilmore III “knows that it’s against the law to abduct, torture, falsely imprison, wantonly impregnate and unconsensually surgically alter (via implants) a person. He also knows that he has the power to repel these invasive activities of apparently alien-originated UFO encounters.” Described by Space.com as a retired writer and editor of military publications, Bryant “takes pride in having ‘filed more UFO-related lawsuits in federal court than has anyone else in the entire universe.’” (Robert Scott Martin, “UFO Invasion Outcry Spreads to Virginia”, Space.com, Sept. 10, link now dead.)
CAUS’s Gersten has also described as “gratuitously demeaning”, probably “defamatory” and “actionable” an ad for Winston cigarettes this summer which made fun of alien-abduction believers, but declined to pursue legal action against the cigarettes’ maker, R.J. Reynolds. (”Cigarette Ad Sparks UFO Controversy”, Space.com, Sept. 28; “UFO Lawyer Unlikely To Sue Tobacco Company over Ad”, Oct. 1, links now dead).
November 22 –Vice President gets an earful. “One employee summed up the anguish over the case, saying, ‘when I read what the government says about Microsoft, I don’t recognize the company I work for.’ Another bitterly complained that the many subpoenas of Microsoft e-mail had invaded employees’ privacy more than any government wiretap, ’so that sharp lawyers can cut and snip bits of e-mail to construct whatever story they want’ in court. ‘We bugged ourselves’.” John R. Wilke, “Gore, Addressing Microsoft Staff, Defends Nation’s Antitrust Laws”, Wall Street Journal, Nov. 16).
The New York Times is reporting that class-action lawyers on the West Coast will sue Microsoft as early as today on behalf of a class of California end-users of Windows 95 and 98. The suit, which will ask treble damages for alleged overcharges, will be filed on behalf of a statewide rather than nationwide class because the U.S. Supreme Court’s 1977 Illinois Brick decision disallows federal antitrust actions on behalf of indirect purchasers of goods (most Windows users buy it preloaded on their machines, rather than direct from Microsoft). However, 18 states including California and New York have enacted statewide laws allowing such suits. (Steve Lohr, “Microsoft Faces a Class Action on ‘Monopoly’”, New York Times, Nov. 22 — free, but registration required).
November 22 – Great moments in zoning law. Officials in Millstone, N.J. have issued a summons to Lorraine Zdeb, a professional pet-sitter who took in nearly 100 animals from neighbors, clients and strangers to save them from the flooding of Tropical Storm Floyd, charging her with operating a temporary animal shelter in a residential neighborhood. (”Somerset County woman charged for taking in animals during storm”, AP/CNN, Nov. 20, link now dead).
November 22 – Repetitive motion injury Hall of Fame. Delicacy prevents us from describing exactly how this Fort Lauderdale, Fla. woman acquired carpal tunnel syndrome in the course of providing paid telephone companionship for lonely gentlemen, but it did not prevent her from applying for workers’ compensation benefits for which she obtained a “minimal settlement” this month. (Reuters/ABC News, Nov. 19, link now dead).
November 20-21 – Annals of zero tolerance: the fateful thumb. MeShelle Locke’s problems at North Thurston High School near Tacoma, Washington began Nov. 5 when she pointed her finger and thumb at a classmate in the shape of a gun and said “bang”. Asked if that was a threat, she saucily quoted a line from the 1992 movie “The Buttercream Gang”: “No, it’s a promise.” Before long, she was hauled up on charges of having threatened violence, drawing a four-day suspension and a disciplinary record that may affect her chances of getting into a competitive college.
A budding writer whose work appeared in the high-selling anthology Chicken Soup for the Kid’s Soul, and who says she’d never been in trouble with the school before, MeShelle might seem an unlikely source of menace, but school officials told her father that his daughter “fit the profile” of a potentially dangerous student: “For example, she often eats lunch alone or in a small group.” (Karen Hucks, “Gunlike gesture results in suspension”, Tacoma News-Tribune, Nov. 13; “School is no place for ‘bang-bang’ jokes”, Nov. 16, links now dead)
November 20-21 – From the evergreen file: L.A. probate horror. Wealthy art collector Fred Weisman was lucky he didn’t live to see the proceedings in a Santa Monica courthouse after his death “as his will and his estate are picked apart like a slab of pork thrown to buzzards.” (Jill Stewart, “Shredded Fred”, New Times L.A., Nov. 19, 1998, link now dead).
November 20-21 – No, honey, nothing special happened today. In early 1997 Denise Rossi startled her husband by announcing that she wanted a divorce. In the ensuing legal proceedings she forgot to mention — it just slipped her mind! — that eleven days before filing she’d happened to win the California lottery for $1.3 million. Two years later, her husband learned the truth when a misdirected Dear-Lottery-Winner letter arrived offering to turn his ex-wife’s winnings into ready cash. And this Monday a judge ruled that she’d have to hand it all over to her ex-husband, as a penalty for committing a fraud on him and on the court. She has since filed for bankruptcy proteciton. (Ann O’Neill, L.A. Times, reprinted in San Jose Mercury News, link now dead).
November 20-21 – Judge to lawyers in Miami gun suit: you’re trying to ban ‘em, right? “If you were to get exactly what you wanted, they’d be taken off the market entirely,” Circuit Court Judge Amy Dean told lawyers representing Dade County in its recoupment lawsuit against major gunmakers, by way of clarifying their position. (Jane Sutton, “Miami Gun Suit Could Take Firearms Off Market”, Reuters (link now dead), Nov. 16). Last month attorney John Coale, a spokesman for the municipal suits, “dismissed claims that the lawsuits could ever shut down the entire handgun industry. ‘It can’t be done, and it’s not a motive, because as long as lawful citizens want to buy handguns, and as long as the market’s there, there’s going to be someone filling it,’ Coale said.” (Hans H. Chen, “Colt’s Handgun Plan Heats Up Debate”, APBNews.com, Oct. 11) (see Oct. 12 commentary).
Dade County-Miami Mayor Alex Penelas, quoted in the new Reuters report, seemed to view the anti-democratic nature of the county’s lawsuit almost as a point in its favor: he “said he was using the courts in an attempt to crack down on the gun industry because the Florida legislature refused to do so. ‘Every year that I’ve gone to the legislature we have basically been told to take our case elsewhere,’ he said.” Much the same sentiment was expressed last month by Elisa Barnes, the chief lawyer behind the Hamilton v. Accu-Tek lawsuit in Brooklyn, N.Y. against gunmakers: “‘You don’t need a legislative majority to file a lawsuit,’ says Ms. Barnes.”" (”Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21 (requires online subscription))
November 20-21 – National Anxiety Center “Favorite Web Sites of the Week”. “I recommend a visit to www.overlawyered.com where you can get tons of data regarding how trial lawyers are destroying this nation out of nothing more than greed, greed, and greed. This excellent site will help you understand what’s happening to Microsoft, to the tobacco industry, the gun manufacturers, and much more.” — “Warning Signs”, the weekly commentary of Alan Caruba’s National Anxiety Center, for Nov. 19. Unabashedly conservative, Mr. Caruba’s popular site specializes in refuting environmental scares in outspoken style.
November 20-21 – 100,000 pages served on Overlawyered.com. We’d have hit this milestone earlier but our counter went on the fritz for a few days…thanks for your support!
November 18-19 – Worse than Y2K? “If the EPA succeeds in forcing a shutdown of the 17 coal-fired power generating plants it claims are illegally polluting,” editorializes the Indianapolis Star regarding the Clinton Administration’s recently filed lawsuit, “chances are very good the Midwest will experience major brownouts and rolling power outages on the next hot summer day.” Moreover, the “lawsuits were filed without warning [Nov. 3] by the Justice Department on behalf of the EPA. It was, quite simply, an unprecedented sneak attack on the electrical power industry” — yet one to which private environmental groups may have been tipped off in advance, given how ready they were to fire off a flurry of supportive press releases. EPA administrator Carol Browner and Janet Reno’s Justice Department now contend that utilities disguised expansions and upgrades of the grandfathered plants as routine maintenance, but a Chicago Tribune editorial says the modernizations were carried out with “the knowledge of federal environmental inspectors” whose superiors are now seeking to change the game’s rules after many innings have been played. If a looming Y2K glitch threatened to shut down a large share of the electric capacity of the Midwest and South, there’d be widespread alarm; when aggressive lawyering threatens to do so, few seem to care. (”EPA sneak attack”, editorial, Indianapolis Star, Nov. 5, link now dead; “A costly U-turn by the federal EPA”, editorial, Chicago Tribune, Nov. 13).
November 18-19 – Golf ball class action. Golf Digest is “disgusted” over a class-action suit that lawyers filed against the Acushnet Company because, after running out of a promotional glove sent free to customers of Pinnacle golf balls, it sent the remaining customers a free sleeve of golf balls instead. Fraud! Deception! Shock-horror! “In the end, the plaintiffs’ attorneys were awarded as much as $100,000 in fees for their heroic efforts, [Allen] Riebman and [Lawrence] Bober (as the two named plaintiffs) themselves received payments of $2,500 apiece, and everyone else received what the lawsuit claimed was unacceptable in the first place: another free sleeve of Pinnacles. That’s justice at work.” (”The Bunker”, Golf Digest, October 1 — link now dead)
November 18-19 – Skittish Colt. According to Colt Manufacturing, the historic American gunmaker battered by the trial lawyers’ onslaught, Newsweek got some things wrong in its report last month, which was summarized in this space Oct. 12 (see also Nov. 9 commentary). Colt denies that its dropping of various handgun lines constitutes an exit from the consumer market, and says “it will continue its most popular models, such as the single-action revolver called the Cowboy and the O Model .45-caliber automatics.” It gave a number for layoffs of 120-200 rather than 300, and suggested that the lines would have been dropped at some point even without the litigation pressure. (Robin Stansbury, “Arms Reduction at Colt’s”, Hartford Courant, Oct. 13, reprinted at Colt site). A statement by the company did not, however, dispute a quote attributed to an executive in the original reports: “It’s extremely painful when you have to withdraw from a business for irrational reasons.”
According to Paul M. Barrett in the Oct. 21 Wall Street Journal, Colt’s legal bills for defending the suits “are expected to reach a total of about $3 million in 1999 alone. Insurance will cover two-thirds of that, says [New Colt Holdings chairman Donald] Zilkha, but the remaining $1 million is a significant hit for a still-struggling company that expects to have net income of only about $2 million this year.” (”Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21). Update: for a closer look at Colt, see Matt Bai, “Unmaking a Gunmaker”, Newsweek, April 17, 2000.
November 18-19 – Law-firm bill padding? Say it isn’t so! Law professor Lisa Lerman of Catholic University in D.C. thinks lots and lots of overbilling goes on, even at big-name firms. “There’s a complete disconnect between the occurrence of misconduct and the rate of discipline,” she says. (Michael D. Goldhaber, “Overbilling Is a Big-Firm Problem Too”, National Law Journal, Oct. 4). One of Lerman’s case histories, if accurate, indicates systematic malfeasance in the methods by which an unnamed Eastern law firm generated time sheets to submit to its insurance-company clients. (Michael D. Goldhaber, “Welcome to Moral Wasteland LLC”, National Law Journal, Oct. 11).
November 18-19 – A lovable liability risk. Zoe, a golden retriever who for the past two years has accompanied Principal Jill Spanheimer at her office at West Broad Elementary School, and has made friends with practically all the kids over that time, has been banished by an administrative order of the Columbus, Ohio public schools. The school system’s letter to Ms. Spanheimer “cited ‘possible allergic reactions,’ ‘liability issues’ and ‘an uncomfortableness of some students and staff’ as reasons Zoe was expelled.” See if your heart doesn’t melt at the picture (Julie R. Bailey, “Principal’s dog expelled from elementary school”, Columbus Dispatch, Nov. 11). On Tuesday the board agreed to review the policy (Bill Bush, “Policy on animals in schools becomes pet project for board”, Columbus Dispatch, Nov. 17).
November 18-19 – Aetna chairman disrespects Scruggs. No love lost, clearly, between Richard Huber, chairman of Aetna, and Mississippi tobacco-fee tycoon Richard Scruggs, prominent in the much-hyped legal assault on managed care. Scroll down about halfway through this interview to find the bracketed “Editor’s Note” where the interviewer asks the chairman of the nation’s largest health insurer whether it was “by intention or mistake” that he’d consistently misreferred to Mr. Scruggs’ surname as “Slugs”. Knock it off, kids (MCO Executives Online, Oct. 27 — full interview).
November 18-19 – Welcome WTIC News Talk visitors (”Ray and Robin’s picks“). We’ve even got a few Hartford-related items for you: see the Colt and Aetna bits above, and this report summarizing an article from the Courant about how lawsuits are making it hard for towns around Connecticut to run playgrounds.
November 17 – “How I Hit The Class Action Jackpot”. “As the lucky co-owner of a Toshiba laptop computer, I should be tickled pink: I apparently qualify for a cash rebate of $309.90….And the beauty of it is that my Toshiba works just fine!….[S]o remote is the possibility that our laptop will ever seriously malfunction that I may not get around to downloading the free software ‘patch’ that Toshiba has provided as part of the settlement.” Don’t miss this scathing Stuart Taylor column on the mounting scandal of the $147.5-million (legal fees) laptop settlement. (National Journal, Nov. 15 — link now dead).
November 17 – Who needs communication? The Equal Employment Opportunity Commission steps up its campaign of complaint-filing over employer rules requiring employees to use English on the job. Synchro-Start Products Inc. of suburban Chicago has agreed to pay $55,000 to settle one such agency complaint; native speakers of Polish and Spanish make up much of its 200-strong workforce, and the company said it adopted such a policy after the use of languages not understood by co-workers had led to miscommunication and morale problems. The EEOC, however, pursues what the National Law Journal terms a “presumed-guilty” approach toward employer rules of this sort, permitting narrowly drafted exceptions only when managers can muster “compelling business necessity”, as on health or safety grounds. Earlier this year, a California nursing home agreed to pay $52,500 in another such case. In some early cases, employers adopted English-only policies after fielding complaints from customers who felt they were being bantered about in their presence or that non-English-speaking customers were getting preferential service — a problem which, like that of co-worker morale, may not necessarily rise in Washington’s view to the level of “business necessity”. (”EEOC Settles ‘English Only’ Workplace Suit For $55,000″, DowJones.com newswire, Nov. 12; Darryl Van Duch, “English-Only Rules Land In Court”, National Law Journal, Oct. 26.)
November 17 – Microsoft roundup. A critic of the giant company explains, not without glee, why the findings of fact mean so much as a template for private lawsuits: “Before last Friday, telling a jury that Microsoft is an evil, predatory organization that drove you out of business was a long, protracted procedure of walking a jury, step by step, through a crash course of how a technology company works; the importance of core technologies and leveraging them into a larger space, the nature of operating systems and related licensing and agreements, how Microsoft was able to exploit its position in the marketplace; and why this means that the plaintiff’s company was hoodwinked and not simply outmaneuvered. Today, you just have to call the jury’s attention to the document which your, their, and Bill Gates’ tax dollars helped to prepare.” (Andy Ihnatko, “The Wicked Witch Is Seeking Positive Spin”, MacCentral Online, Nov. 9).
Also: why bungling by IBM (especially) and Apple helped clear the way for Redmond’s dominance (Jerry Pournelle, “Jerry’s take on the Microsoft decision: Wrong!”, Byte, Nov. 8). And a Gallup Poll shows the public viewing Bill Gates favorably by more than three to one, siding with Microsoft on the trial by a 12-point margin, and opposing breakup of the company by a solid majority — as if any of that will matter to the folks in Washington (Ted Bridis, “Despite court loss, Microsoft moving ahead in public opinion”, AP/SFGate Tech, Nov. 10).
November 16 – What a mess! New Overlawyered.com subpage on environmental law. Our latest topical page assembles commentaries and links on the slowest and most expensive method yet invented to clean up fouled industrial sites, pay due respect to irreplaceable natural wonders, and bring science to bear on distinguishing serious from trivial toxic risks — namely, turning everything over to lawyers at $325 an hour. Also included are commentaries on animal rights, including our ever-popular drunken-parrot, crushed-insect, rattlesnake-habitat and eagle-feather reports — though at some point the menagerie of legally protected critters will probably get its own page.
November 16 – Baleful blurbs. Under well-established First Amendment precedent, it’s still nearly impossible to prevail in lawsuits against book publishers alleging that their wares are false and misleading — that, e.g., the diet book didn’t really make the pounds melt away, the relationship book resulted in heartbreak rather than nuptials, the religion book led the reader into spiritual error, and the celebrity autobiography bore only a passing relationship to strict historical truth. Were it otherwise, whole categories of book might never appear on bookstore shelves in the first place for fear of liability, including not a few works of public policy interest, such as, for example, the writings of certain early enviro-alarmists who predicted famine and exhaustion of world nonrenewable resources by 1985.
However, a recent decision in a California court may represent a breakthrough for plaintiff’s lawyers who’ve long hoped to expand publisher liability for printed untruths. The “Beardstown Ladies” were a mid-1990s publishing phenomenon in the well-worn genre of commonsense investment advice: a group of grandmothers in a small Midwestern town whose investment club was widely reported to have achieved stellar annual returns. Eventually a reporter for Chicago magazine investigated and found the Ladies had inadvertently inflated their returns, which turned out to be not especially stellar. Disney, their publisher, sent correction slips to booksellers, and the Beardstown craze was soon but a memory. The San Francisco law firm of Bayer, August & Belote, however, went to court on behalf of a customer to say that Disney had behaved falsely and deceptively by not yanking the book or at least its cover, which repeated the discredited claims.
Last month, reversing a lower court’s ruling, the state’s First District Court of Appeal ruled that although First Amendment law concededly protected the contents of the book, its cover blurbs were entitled to no such protection — even though the blurbs were in fact quoted verbatim from the book’s text. “Because the state has a legitimate interest in regulating false commercial speech, we conclude that the statements, as alleged, are not entitled to First Amendment protection,” wrote Justice Herbert “Wes” Walker. The Association of American Publishers had filed an amicus brief warning that such a ruling would “impose an affirmative obligation on publishers to investigate independently and guarantee the accuracy of the contents of the books if those contents are repeated on book covers and promotional materials.” (Rinat Fried, “Panel: You Can Judge Book by Cover”, The Recorder/Cal Law, Oct. 29). (DISCUSS)
November 16 – ‘Bama bucks. Per financial disclosure reports, six plaintiff’s law firms “donated about $4 million last year to six candidates through the state Democratic Party and political action committees”, according to the pro-tort reform Alabama Citizens for a Sound Economy. Tops was the firm of Jere Beasley of Montgomery, which gave “more than $1 million — $633,000 to the Democratic Party and $389,000 to two political action committees, Pro-Pac and Trial-Pac”. Other distributors of largesse included Cunningham, Bounds, Yance, Crowder & Brown of Mobile ($955,000), Hare, Wynn, Newell & Newton of Birmingham ($636,000); Pittman, Hooks, Dutton & Hollis of Birmingham ($526,000); Morris, Haynes, Ingram & Hornsby of Alexander City ($476,000); and King, Warren & Ivey of Jasper ($250,000). The money went to four judicial candidates, of whom two won, and to losing candidates for attorney general and lieutenant goveror. (Stan Bailey, “Group: 6 law firms gave $4 million to Demos’ run”, Birmingham News, Nov. 10) (earlier coverage of Alabama tort politics: Aug. 26, Sept. 1).
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November 15 – Class-action coupon-clippers. Hard-hitting page-one Washington Post dissection of class-action abuse, specifically the “coupon settlements” by which lawyers claim large but notional face-value benefits for the represented class, which can serve as a predicate for high fees even if few consumers ever take advantage of the benefits. “The record in one case, against ITT Financial Corp., showed that consumers redeemed only two of 96,754 coupons issued, a redemption rate of 0.002 percent.” Settlement-confidentiality rules often make it impossible to learn how many coupons were redeemed. Groups like Public Citizen and Trial Lawyers for Public Justice, normally closely aligned with plaintiffs’-side interests, are crusading against the coupon abuses, fearing they’ll erode public support for the class action device and “sour the public” on the whole system.
The piece includes a profile of Chicago lawyer Daniel Edelman, who’s won millions in fees in about thirty consumer lawsuits, and is variously called by consumerist critics “the Darth Vader of class action settlements” and “the poster child for how to rip off consumers under the guise of helping them”: “I can think of no plague worse than to have a court impose the likes of Daniel Edelman…on absent and unsuspecting members of a class,” said one judge in a lawsuit against Citibank. Edelman was among the plaintiff’s lawyers in the famed BancBoston Mortgage case, whose outcome was described by federal judge Milton Shadur (who was not involved in it) as “appalling” and “astonishing”: “The principal real-money beneficiaries of the settlement,” Judge Shadur wrote, “turned out to be the class counsel themselves.” The consumer who originally objected to that settlement, Dexter Kamilewicz of Maine, “chose not to comment for this article, noting that Edelman’s firm had countersued him for $25 million. That case is settled, but he said he feared landing in court yet again.” (For more on lawsuits filed by class action lawyers against their critics, see Nov. 4 commentary). (Joe Stephens, “Coupons Create Cash for Lawyers”, Washington Post, Nov. 14, link now dead)
November 15 – Link your way to liability? Daniel Curzon-Brown, a professor of English, has sued TeacherReview.com, a student-run “course critique” site that provides a forum for anonymous praise and criticism of faculty at City College of San Francisco (CCSF) and San Francisco State University. “Free speech is great, but this is not about free speech,” said Brown’s lawyer, Geoffrey Kors, saying his client had been falsely labeled racist and mentally ill, among other damaging charges. (”Other teachers were called ‘womanizers,’ ‘reportedly homicidal’ and ‘drugged out.’”) In one of the suit’s more ambitious angles, the lawyers have joined CCSF as a defendant on the grounds that it “allow[ed] one of its student clubs to provide a link to the review site on a college-hosted Web page” which “helped to create the appearance of official backing for the site”. (”Teacher sues over ‘racist’ Web review”, Reuters/ZDNet, Oct. 21 — full story). Update Oct. 10, 2000: Curzon-Brown agrees to drop suit.
November 15 – Are they kidding, or not-kidding? We’ve read over both these opinion pieces carefully, and here are our tentative conclusions. We think Nancy Giuriati, writing in the Chicago Tribune’s “Voice of the People”, probably is kidding when she suggests overeating be addressed as a public health problem through lawsuits against food companies along the lines of the anti-smoking crusade. (”Treat Eaters Like Smokers”, Nov. 9). On the other hand, we think Ted Allen, writing in the Legal Times of Washington, probably isn’t kidding when he suggests fans file class-action suits against hard-luck sports teams like the Boston Red Sox and New Orleans Saints. (”Sue da Bums?”, Nov. 1). It could be, however, that we’ve got things upside down — that Mr. Allen is kidding, while Ms. Giuriati isn’t. If you think you can help us out, or wish to call our attention to other who-knows-whether-they’re-joking proposals for the further extension of litigation (entries from law reviews especially welcome!), send your emails to AreTheyKidding -at -overlawyered – dot – com. Update Apr. 11, 2002: Ms. Giuriati writes in to say she wasn’t kidding.
November 15 – Gimme an “S”, “U”, “E”. Latest lawsuit over not making the high school cheerleading squad filed by Merissa D. Brindisi and her father, Richard, who claim it was arbitrary and unfair for Solon, Ohio, school officials to have used teacher evaluations as one factor in deciding who got on the squad. Another suit by an unsuccessful cheerleader contender was filed last month in nearby Lorain County, but was dismissed. (Mark Gillispie, “Solon ex-cheerleader, father file suit”, Cleveland Plain Dealer, Nov. 10 — full story.)
November 13-14 – Fins circle in water. Hoping to piggyback on Judge Jackson’s Microsoft findings of fact and attracted by the treble damages provided by antitrust law, “veterans from the cigarette wars are plotting to sue the company in a wave of private litigation. If the onslaught unfolds as expected, teams of lawyers will turn Microsoft into the next Philip Morris, tangling the company in courts across the country.” David Segal, “New Legal Guns Train on Microsoft”, Washington Post, Nov. 12 — link now dead). Same day, same paper, same byline: another profile of emerging trial lawyer strategy of mounting assault on their targets’ stock price in order to force them to the negotiating table (see “Deal with us or we’ll tank your stock“, Oct. 21). The announcement of a major trial lawyer offensive against HMOs destroyed $12 billion of value in a single day as the market reacted. “Most of the companies have yet to recover.” (David Segal, “Lawyers pool resources, leverage settlements”, Washington Post, Nov. 12, link now dead).
On Friday the stock of big New Orleans-based engineering and construction company, McDermott International Inc., important in the offshore oil business, fell by 35.5 percent following a 26.7 percent drop the previous day to hit a 10-year low. The company disclosed lower earnings and “said in its earnings statement that the settlement of asbestos claims was using up a growing amount of the cash flow of its Babcock & Wilcox (B&W) subsidiary”, one of the nation’s best known makers of power plants. “This unquantifiable asbestos liability puts a whole new spin on things. [McDermott] becomes an asbestos liability valuation play rather than an earnings recovery play,” said analyst Arvind Sanger of brokerage firm Donaldson Lufkin & Jenrette, who added that he thought the market had overreacted to the uncertainty. (”Asbestos Claim Worries Hurt McDermott”, FindLaw/Reuters, Nov. 12, link now dead)
November 13-14 – Update: ADA youth soccer case. Bang! Ouch! As reported here a week ago, parents insisted that 9-year-old Ryan Taylor, who suffers from cerebral palsy, be allowed onto soccer team despite administrators’ fears of injuries from his metal walker. Now they’ve filed suit under federal Americans with Disabilities Act (see “After Casey Martin, the deluge“, Nov. 5-7). (”Parents Sue Over Son’s Soccer Ban”, AP/FindLaw, Nov. 12, link now dead).
November 13-14 – Risks of harm. “One woman manager whom I spoke to, an architect who has worked in construction for a number of years, put it this way: ‘When a woman comes to me with a complaint, I want first of all to make sure that no harm comes to the woman. But I want to make sure that no harm comes to the man, too. Because if a charge of sexual harassment goes into his folder, he may never get another promotion in his entire life.’ [emphasis in original] — from the forthcoming book What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment, by Joan Kennedy Taylor (see yesterday’s entry).
November 12 – Turning the tables. Automaker DaimlerChrysler has sued plaintiff’s attorneys and a individual named client who it says cost it millions of dollars and harmed its reputation by naming it in what is says was a meritless suit. In June, the locally based law firm of Greitzer & Locks and Maryland attorney William Askinazi filed a class-action suit in Philadelphia against DaimlerChrysler, Ford, General Motors and GM’s subsidiary Saturn alleging that the companies’ seat design was defective and unsafe. Similar suits were filed in other states, and lawyers were quoted in one story as claiming the aggregate value of their claims could amount to $5 billion. But DaimlerChrysler and Ford say they were dropped from the Philadelphia case after the named plaintiff, Brian Lipscomb, was shown never to have owned cars manufactured by either automaker.
The German-U.S. company has been on something of a mission recently to fight what it sees as abusive litigation. It recently secured dismissal of an Illinois class action over allegedly excessive engine noise and in 1996 unsuccessfully sought fees after securing dismissal of a Seattle class action that turned out to have been filed without client permission. It succeeded last year in winning an $850,000 judgment against two lawyers in St. Louis who it alleged had taken confidential documents while working for one of its outside law firms and then used that information to file class-action suits against the automaker. “Class-action lawsuits should be used to resolve legitimate claims and not serve as a rigged lottery for trial lawyers,” said Lew Goldfarb, DaimlerChrysler vice president and associate general counsel, in a statement this week. “For too long, trial lawyers have been exploiting class actions, turning these lawsuits into a form of legalized blackmail. They launch frivolous cases because they believe that just the threat of massive class actions filed in many states can coerce a company into settlement. It’s time they started paying for some of the costs of abusing our legal system.” “DaimlerChrysler sues lawyers over lawsuit”, Reuters/Findlaw, Nov. 10, link now dead; “Automakers sued for allegedly defective seats”, Detroit News, Jun. 26)
November 12 – Suppression of conversation vs. improvement of conversation. “Another difficulty in dealing with sexual harassment as a legal problem is that almost all people accused of harassment, from the one whose joke is misunderstood to the hard-core opportunistic harasser…don’t believe they are hurting anyone. [emphasis in original] And we know from our experiences with alcohol and drug prohibition that people whose behavior is regulated and who don’t believe they are hurting anyone else overwhelmingly evade and resent the regulations….If you tell people that the way in which they relate to each other naturally is against the law, their immediate reaction is to think the law intrusive. If, by contrast, you tell people that they may have misunderstood each other but that they can learn to communicate more clearly, you are offering them a new skill without blaming half of them in advance.” — from What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment, by Joan Kennedy Taylor, a book to be published this month by New York University Press and the Cato Institute.
November 11 – We didn’t mean those preferences! At Boalt Hall, the law school of U.C. Berkeley, it’s de rigueur to consider race, gender and various other official preferences as entirely constitutional as a way of balancing out past collective hardship. However, there’s one form of official preference you’d better not speak well of lest you risk ostracism: veterans’ preference. “If you, despite your well-intentioned, fine-toothed combing of the Constitution, just can’t find a legal rule that says that veterans’ preferences are impermissible gender discrimination, then that is sexism. If you think that these veterans’ preferences are acceptable as a matter of policy — for the liberals who are willing to concede that there is a difference between constitutional permissibility and policy advisability — then that is extreme sexism.” — contributor Heather McCormick in The Diversity Hoax: Law Students Report from Berkeley, edited by David Wienir and Marc Berley (Foundation for Academic Standards and Tradition, 1999).
November 11 – Microsoft roundup. Peter Huber of the Manhattan Institute, author of Law and Disorder in Cyberspace, argues in yesterday’s Wall Street Journal that a breakup of the company would in fact be less destructive of value than seemingly more modest remedies that might require the company to prenegotiate its future business relationships or even its software revisions with competitors’ lawyers: “Complex remedial decrees invariably kick off endless rounds of follow-up bickering. Costs mount quickly. Private lawsuits follow. And antitrust law awards triple damages.” (”Breaking Up Isn’t hard to Do”, Wall Street Journal, Nov. 10 — requires online subscription). “Two branches of the federal government, which is a case study in institutional sclerosis, are lecturing Microsoft on the virtues and modalities of innovation,” notes George Will (”Risks of Restraining”, Washington Post, Nov. 9, link now dead). “The dynamism of technology long ago rendered the entire case moot,” argues a Detroit News editorial. “…It is doubtful, for example, that America Online would have paid $10 billion for Netscape if Microsoft’s Bill Gates had indeed rendered the Navigator [browser] worthless.” (”Microsoft: Punishing Success”, Nov. 9). Declan McCullagh at Wired News finds it surprising that the judge was so dismissive of the prospects of Linux, the open-source competitor to Windows (”Judge Jackson: Linux Won’t Last”, Nov. 8).
November 11 – Accommodating theft. In New Jersey, the Office of Attorney Ethics is seeking the disbarment of Tenafly lawyer Charles Meaden, who was arrested in 1996 for trying to buy $5,600 worth of golf clubs with a stolen credit card number. Mr. Meaden’s attorney, Linda Wong, argues that her client suffered from bipolar illness and was in a manic state at the time of the theft due to a change in his medication. “The panel has to send a signal to the public that disabilities can be accommodated.” The ethics body counters that Mr. Meaden’s use of the stolen number showed considerable planning, and added that he’d applied for guns four times in the two years before the arrest, each time denying that he’d been treated for psychiatric conditions. His lawyer’s response? Mr. Meaden, she said, was relying on his doctor’s assurance that depression was “not a psychiatric condition”, besides which “it was understandable that Meaden did not disclose his psychiatric history because the mentally ill face discrimination.” (Wendy Davis, “The Case of the Stolen Credit Card: Mental Illness or Well-Planned Heist?”, New Jersey Law Journal, Oct. 21 — full story)
November 10 – $625,000 an hour asked for time on stopped elevator. Nicholas White, 34, a production manager at Business Week, has filed suit asking $25 million from the owners of Rockefeller Center over an incident last month in which he got stuck on an elevator late one Friday and remained there, pushing buttons and banging on the door, for 40 hours before any building employees noticed. He had only a pack of Life Savers and three cigarettes to see him through the ordeal. “When he had to go to the bathroom, he would pry open the doors a little,” a friend of his told the New York Post. White’s lawyer, Kenneth P. Nolan, said last week that his client was “still in a state of shock” and “has not gone back to work”. (”Floor, please”, Fox News/Reuters, Oct. 21 (link now dead); “Man Trapped in Elevator Wants $25M”, AP/Washington Post, Nov. 3, link now dead; “Man, trapped in New York elevator 40 hours, sues”, Reuters/San Jose Mercury News, Nov. 4, (link now dead; Philip Delves Broughton, “Editor sues for $25-million after 40-hour elevator terror”, National Post (Canada) (originally Daily Telegraph, London), Nov. 6, link now dead)
November 10 – Annals of zero tolerance: more nail clippers cases. The Marshall Elementary School in Granite City, Ill. has suspended second-grader Derek Moss for three days after a custodian found him with a nail clipper. Earlier this fall in Cahokia, Ill., 7-year-old second-grader Lamont Agnew drew a 10-day suspension for possession of the same contraband. (Robert Kelly, “Another nail clippers incident reported”, St. Louis Post-Dispatch, Nov. 2 (link now dead)) Earlier this year Pensacola, Fla. administrators recommended the expulsion of 15-year-old sophomore Tawana Dawson for possession of a clipper with a two-inch attached blade; she’d lent it to a classmate to trim her nails. (”School calls nail clipper a weapon”, AP/APB News, June 7). In recent California cases, a 12-year-old Corona boy was expelled over a nail clipper, a decision later reversed; a Mission Viejo 10-year-old was suspended over a three-inch cap-gun toy on her key chain, and a Buena Park 5-year-old was transferred to another school after he brought into school a disposable shaver he’d found at a bus stop. (Oblivion.net)
November 10 – Welcome Progressive Review and Cal-NRA visitors. Haunted-house story is here; gun lawsuits vs. national security story, here.
November 10 – “The Dutch Boy isn’t Joe Camel.” The companies recently sued by Rhode Island “voluntarily stopped marketing lead-based paint for interior use in the 1950s — a generation before the federal government decided to ban interior lead paint in 1978,” writes Judy Pendell of the Manhattan Institute’s Center for Legal Policy (with which our editor is affiliated). You’d think withdrawing your product before you were obliged to would count as socially responsible, but no good deed escapes punishment. Nor, it seems, does any incorporated bystander with deep pockets: “Many of the defendants acquired their companies long after they had stopped making lead paint…If you can sue an industry that essentially shut itself down almost a half century ago, who’s next?” (”Trial lawyers’ next target: the paint industry”, Wall Street Journal, Oct. 18 — now online at the Manhattan Institute site, which boasts a growing collection of online reports on legal issues (link now dead)).
November 10 – Correction: the difference one letter makes. On Sept. 2 we ran an item about the role of charitable and social-service groups in efforts to take down the gun industry, and included the YMCA on the list of such groups. That was off base: it’s the YWCA that’s a participant in the Coalition to Stop Gun Violence, not its male counterpart. The mistake is one the anti-gun coalition itself unleashed on the world when it erroneously listed the YMCA on its list of supporting organizations. The Capital Research Center took the claim at face value in its report on anti-gun philanthropy, whence it made its way to our summary. Patrick Reilly of the Capital Research Center tells us he’s spoken with the coalition, which acknowledges its mistake and says it’s replaced the “M” version with the correct “W”. In the mean time, the poor YMCA has gotten calls from outraged supporters of the Second Amendment. Send those outraged calls to the YWCA instead.
November 9 – Gun jihad menaces national security. Colt Manufacturing is an important current, as well as historic, defense resource to this country: “We are one of the two suppliers of the M16 rifle and the sole supplier of the M4 carbine to the United States military, as well as many of our allies.” Yet the courtroom assault masterminded by American trial lawyers and carried out by their friends at city hall is quickly running the enterprise into the ground: legal defense costs are “astronomical”, financing and insurance are drying up, and managers have scant time to do anything but respond to legal demands.
“In connection with these lawsuits, Colt has been served with extraordinarily expansive and burdensome discovery requests seeking virtually every document in Colt’s possession related to the design, manufacture and marketing of firearms — military and otherwise. In our defense, waves of lawyers have descended on Colt and other legitimate gun manufacturers, scouring every corner and aspect of our business in an effort to respond to these unreasonable requests.”
If the municipal firearms litigation “forces us out of business, it also will leave the military without an experienced base to turn to during a time of crisis. In the opinion of the Department of Defense, it would take two to five years and significant government investment to return any of today’s weapon systems to their current level of operational reliability should we lose this present capability.”
“We are uneasy and troubled by the fact that we and other companies in the future may be driven out of business by a wave of lawsuits, even if the courts eventually find out that the plaintiff’s cases have no merit.” — Lt. Gen. William M. Keys U.S.M.C. (ret.), chief executive officer of the New Colt’s Holding Company, in testimony before the Senate Judiciary Committee Nov. 2. (full testimony) (overall hearings page).
November 9 – Hold your e-tongue. Though employees may still fondly imagine their screen banter to be somehow entitled to privacy, “e-mails not only are subject to discovery, but also can kill you in a courtroom,” explain two lawyers with Miami’s Becker & Poliakoff. The problem for companies that get sued is that “people who are normally careful of what they say in writing seem to feel that e-mail doesn’t count, and…say things in e-mails they would never say in person or by telephone.” All of which leads up to the following rather startling advice: “Businesses should have an e-mail policy. Consider such rules as ‘No e-mail may contain derogatory information about individuals or the competition.’” (Mark Grossman and Luis Konski, “Digital Discovery: Decoding Your Adversary”, Legal Times (Wash., D.C.), Oct. 20 — full column).
November 9 – “Banks’ good deeds won’t go unpunished”. Good Steve Chapman column on ill-advised laws adopted in San Francisco and Santa Monica, and under consideration for U.S. military bases, that forbid banks from charging a fee for non-customers’ ATM withdrawals; currently banks put automatic machines “in all sorts of relatively low-traffic, out-of-the-way places”, a trend likely to halt abruptly if the business becomes a legislated money-loser. (Chicago Tribune, Nov. 7 — full column).
November 8 – Microsoft ruling: guest editorials. Venture capitalist Jay Freidrichs of Cypress Growth Fund: “My gut is, this is not positive for the industry. The less government involvement, the better.” Peter Ausnit of San Francisco brokerage Volpe Brown Whelan & Co. is alarmed that the ruling could “open up Microsoft to thousands of lawsuits from every belly-up software firm in the world….Are they going to be set upon like the cigarette industry?” George Zachary, a partner at Mohr Davidow Ventures: “a scary reminder that if you make it to the top, someone will try to pull you down.” Venture capitalist Tim Draper: “Silicon Valley should be furious with the way our government is treating successful companies…Any would-be entrepreneur is getting a message from Washington that says: ‘Become successful but not too successful, or we’ll ruin your life.’” (David Streitfeld, “Glee, Gloom in Silicon Valley”, Washington Post, Nov. 6 (link now dead); Duncan Martell, “Silicon Valley Cheers Microsoft Ruling”, Yahoo/Reuters, Nov. 6 (link now dead)). Plus: Virginia Postrel, “What Really Scares Microsoft”, New York Times, Nov. 8; George Priest, “Judge Jackson’s Findings of Fact: A Feeble Case”, Wall Street Journal, Nov. 8 (requires online subscription).
November 8 – Ohio tobacco-settlement booty. A private firm with close links to prominent Columbus lobbyists has been angling for the contract to handle Ohio’s anti-tobacco ad campaign, financed from its share of the state’s settlement loot. It just so happens the next CEO of this firm is State Rep. E.J. Thomas, a key player in the divvying up of the tobacco spoils as chair of the House Finance-Appropriations Committee. “Does Mr. Thomas really believe nobody would have questioned his neutrality while voting to award tobacco contracts when he has been holding hands with one of the parties playing to win the jackpot?” editorializes the Toledo Blade. (”The smoking cigarette”, Oct. 24 — link now dead).
November 8 – Who loves trust-and-estates lawyers? Well, auction houses, for one, since these attorneys control so much asset-disposition business. And so a lot of buttering-up goes on: “At one of the largest annual gatherings of trust and estate lawyers in the U.S., held each year in Miami, Christie’s brings down hundreds of thousands of dollars in jewels so that the lawyers, or their spouses, can try them on. ‘I am not that easily swayed,’ says Carol Harrington, an estate lawyer from the Chicago law firm McDermott Will & Emery, who deals regularly with the auction houses. ‘But what woman doesn’t like having $40,000 in jewels around her neck?’” (Daniel Costello, “An Art Collection to Die For”, Wall Street Journal, Sept. 24).
November 8 – “Police storm raucous party to find members of anti-noise squad”. Moral of this report from southwest England: if you’re hoping to keep your job on the town noise-abatement committee, don’t hire three bands and throw a bash late into the night at city hall; after annoyed neighbors called in to report loud whoops and shrieks, police descended on the venue only to find the mayor and local dignitaries in attendance. (AP/CNN, Oct. 26, link now dead).
November 5-7 – “Scared out of business”. Boston Globe reports on decline of a Halloween tradition, the community haunted house, under pressure from building and safety codes (No emergency sprinklers! Combustible material! And children present, no less!) “In the future, the only option will be to drive to a big, slick venue and pay your $23.50 for a corporatized event that has nothing to do with community,” said Douglas Smith, an illustrator who used to help design the haunted house at Hyde Community Center in Newton Highlands, which has lately been discontinued along with two other haunted houses in Newton. “Only they have the resources. Only they can build to these codes.” “I’m very disappointed,” said 10-year-old David Olesky, who had been looking foward to the outing. “They can make rules, but they can’t drain all the fun out of everything. It’s unfair.” Now “the skull’s mouth, the body parts, and dozens of eyeballs remain packed in boxes” at the community center. “Within a few years, I imagine all amateur haunted houses will get shut down,” Smith told the Globe’s Marcella Bombardieri. “Society is getting so concerned about liability that there’s no way to have fun.” (Oct. 29 — link now dead).
November 5-7 – Public by 2-1 margin disapproves of tobacco suits. New ABC News poll of 1,010 adults finds that by a 60-to-34 percent margin public doesn’t believe tobacco companies should have to pay damages for smoking-related illnesses. But not one of the fifty state attorneys general held back from filing such a suit — an indication these AGs are taking their policy cues from something other than their states’ electorates. As for trial lawyers, they know the luck of the draw will eventually assure them a certain number or juries and judges around the country willing to go along with the 34 percent view. That’s enough to cash in no matter what the majority may think. (ABC News.com, “Cigarette Makers Absolved: Six in 10 Reject Liability for Tobacco Companies”, Nov. 3).
November 5-7 – AOL sued for failure to accommodate blind users. Yes, AOL is big, but the legal theories being advanced under the Americans with Disabilities Act have the potential to redefine all sorts of websites, including publishing and opinion sites, as “public accommodations”. If you’re looking for a way to slow down the growth of the Web, try menacing page designers with liability unless they set aside their to-do list of other site improvements in favor of trooping off to seminars on how to fix nonaccommodative coding choices. (”Blind Group Sues AOL Over Internet Access”, Excite/Reuters, Nov. 5; case settled August 2000)..
November 5-7 – More details on Toshiba. Last Saturday’s L.A. Times, not in our hands before, adds a number of salient details to the story covered in this space November 3. Number of laptops involved: 5.5 million. The company agreed to settle “even though no consumer ever complained of losing data as a result of the glitch”. Company officials “said they had been unable to re-create the problem in the lab, except when trying to save something to a disk while simultaneously doing one or two other intensive tasks, such as playing a game or watching a video.” However, Toshiba was tipped toward settling when it heard that NEC Corp. considered the glitch a genuine one and learned moreover that there’d been an earlier advisory from NEC, thus opening up scenarios in which lawyers could argue that warnings had been callously ignored etc. The coupons will be much more valuable than the usual style of settlement coupons because owners “will be able to sell their coupons or use multiple coupons toward a single purchase.” But the public goodwill fund that will bulk out the rest of the $1 billion settlement if claims fall short may consist of donations of older hardware to charitable groups, a notoriously soft accounting category (Joseph Menn, “Toshiba OKs Settlement of $1 Billion Over Laptops”, Oct. 30, link now dead). Jodi Kantor, Slate “Today’s Papers”, also Oct. 30, reports: “The company’s credit rating was immediately downgraded, and its share price slipped 9%.” (Toshiba site)
November 5-7 – After Casey Martin, the deluge. Latest handicap-accommodation demand from the playing field: family of 9-year-old Ryan Taylor, who’s afflicted with cerebral palsy, asks for his right to play soccer in a metal walker. David Dalton, volunteer president of the Lawton [Okla.] Optimist Soccer Association league, says the walker is hazardous and a violation of the game rules. In addition, the league could get sued if another player smashed into it while trying to contest Taylor’s control of the ball, if any were so unsporting as to try that. However, “in 1996 a federal court in California ruled that a youth baseball league violated the Americans With Disabilities Act by excluding an 11-year-old with cerebral palsy who used crutches” and Houston disability-rights lawyer Wendy Wilkinson is rattling the saber, saying the ruling “definitely applies to this situation”. (Danny M. Boyd, “Disabled boy is barred from playing soccer with a walker”, AP/Fox News, Nov. 3, link now dead).
November 5-7 – “Land of the free…or the lawyers?” Nice editorial in Investors Business Daily on the deepening litigation crisis: “No industry or company is safe.” It even quotes our editor (Oct. 21, link now dead).
November 5-7 – Toffee maker sued for tooth irritation. Spreading across the Atlantic?, cont’d: Former Miss Scotland Eileen Catterson, a runway fashion model for ten years, has sued the makers of Irn-Bru toffee bars saying the sticky confection has left her with discolored teeth and sore gums. She is demanding £5,000 damages in Paisley Sheriff Court, which itself sounds like a fashion establishment. (Gillian Harris, “Model sues sweets firm over teeth”, The Times (London), Oct. 28).
November 4 – Criticizing lawyers proves hazardous. In July Publishers Clearing House, the magazines-by-mail company whose sweepstakes is promoted by Ed McMahon, agreed to settle a class action charging it with deceptive practices. The settlement provided for a maximum of $10 million in outlays by the company, to be divided roughly as follows: $1.5 million to send a notice of settlement to an estimated 48 million households in the class; $5.5 million or less to be refunded to dissatisfied magazine buyers that could muster the required paperwork, the exact sum to depend on how many did so; and $3 million in legal fees for the lawyers who filed the suit, sister-and-brother attorneys Judy Cates and Steven Katz of Swansea, Ill. and a third colleague.
The announcement did not sit well with St. Louis Post-Dispatch columnist Bill McClellan, who wrote August 27 that Cates and Katz “represent the modern version of the James Gang….They recently gained renown by galloping into the little town of Publishers Clearing House. They robbed the bank there, and rode away.” He added that “the way these class-action lawsuits usually work” is that “members of the class get very little. Usually nothing. Our lawyers get a lot. Always….It will be considered a cost of doing business, and like all such costs, it will be passed on to the consumers, who are, of course, the very same people who are allegedly benefiting from the lawsuit.”
And with that, almost before the popular columnist could tell what hit him, he was staring down the barrel of a writ. On August 30 Cates and Katz filed suit against McClellan in federal court in East St. Louis, Ill., seeking $1 million in damages for the libel of having been compared to bank robbers.
Unrepentant, McClellan followed up with a second and equally jocular effort, explaining that the lawyers had misunderstood: although upstanding Illinois might object to bank robbery, “Here in Missouri, we like the James Gang,” as folk heroes from the state’s Great Plains heritage. “So it is with the gallant class-action lawsuit lawyers. Close your eyes and see them the way I see them. They ride into town, file their lawsuits, reach their settlements and then, their saddlebags stuffed with money, they gallop into the night, but as they go, they throw coins to the cheering populace.
“And coins is the operative word, too,” McClellan added, pointing out that on average each of the represented households stood to gain something on the order of 12 cents, compared with $3 million for their lawyers. It is not recorded that Cates and Katz have dropped their suit or been in any other way mollified by this response. Bill McClellan, “Only Ones Who Gain From Class-Action Suits Are The Lawyers”, St. Louis Post-Dispatch, Aug. 27; “Missourians love James Gang and today’s robbers, too”, Sept. 1). Update: Nov. 30 (he criticizes them again, though case is still pending); Feb. 29, 2000 (they agree to drop suit).
November 4 – Bring a long book. It takes New York, on average, seven years to fully adjudicate discrimination cases filed with its Division of Human Rights. One woman in Orleans County spent 14 years in the system before obtaining a $20,000 award, while a complainant against Columbia University was still waiting for a hearing after 11 years. A federal judge has sided with the National Organization for Women in a suit demanding that the agency hire more employees on top of its current 190 to handle the case load; NOW wants that number tripled. (Yancey Roy, “State faulted on rights cases”, Rochester Democrat and Chronicle, Nov. 2 — link now dead).
November 3 – Toshiba flops over. Last Friday’s announcement by Toshiba Corp. that it had agreed to pay a class-action settlement nominally valued at $2 billion over alleged defects in the floppy-drive operation of its laptop computers appears to represent a genuine breakthrough for plaintiff’s lawyers who’ve for years been gearing up a push to extract cash from high-tech companies over crashes, glitches and other subpar aspects of the computing experience. Many still unanswered questions about the new developments:
* Has the glitch led to any problems at all in real-world use? Conspicuously absent from the coverage of recent days has been any word from victims of the glitch saying that on such and such a date they lost important data because of it. Yet if the plaintiffs’ side had such witnesses available, it’s hard to see why they wouldn’t have pushed them forward to public notice by now. Apparently the lawyers, through their expert, have found a way to configure Toshiba laptops so as to replicate data loss under carefully controlled demonstration conditions, but news coverage has not yet probed into the question of how artificial these conditions are or how likely they are to occur to real users who aren’t trying on purpose to get their computers to lose data. The plaintiffs’ theory, which seems rather convenient, is that the data loss is so subtle that people don’t know it’s happening or can’t trace it to the glitch afterward.
* Given the above, who if anyone has suffered damages? Next week Toshiba “will post on its Web site a free and downloadable software patch that eliminates the problem.” And a large percentage of laptop owners never or almost never use their floppy drive, preferring modem transmission of files. Yet all will be entitled to prizes.
* How valuable are those prizes? There’s some talk of refunds for recent purchasers, but presumably most would rather download a software patch than return a computer they like. (Toshibas are popular.) Others will get coupons mostly valued at $100-$225 “for the purchase of Toshiba computer products sold through Toshiba’s U.S. subsidiary”. Usually the face value of a coupon settlement is a highly unreliable guide to what the settlement is actually costing; otherwise a Sunday paper with $30 in grocery coupons in it would sell for $30. Yet Toshiba is taking a $1 billion accounting charge, and pledges to donate unclaimed amounts from the settlement fund to “a newly created charitable organization”. And it’s also agreed to pay a very non-imaginary $147.5 million to a not-so-charitable organization, the lawyers that brought the suit.
* Can the lawyers take their act industry-wide? “On Sunday night, four new suits were filed in U.S. District Court in Beaumont, Texas [where the Toshiba case had been filed only six months ago], against PC makers Hewlett-Packard Co. Compaq, NEC Packard-Bell and e-Machines Inc.” Compaq says there are specific diferences between its machines and Toshiba’s which render the case against it meritless. Pattie Adams, a spokeswoman for eMachines, said her company still hadn’t seen the suit but expressed the view that it. “doesn’t really apply to us…It appears to be about laptops, which we do not have, and the technology is from before we were even established.” As if that would save them in our current legal system! Another news report suggests the lawyers are busily trying to rope in governments as plaintiffs, à la guns-tobacco-lead paint: “federal investigators have attended laboratory demonstrations sponsored by plaintiffs’ lawyers intended to show the occurrence of the alleged defect, these people said. State and local agencies can opt to assert damage claims on their own.”
The law firm involved, Reaud, Morgan & Quinn, of Beaumont, Texas, may not be a familiar name to tech-beat reporters, but it’s quite familiar to those who follow high-stakes litigation. After growing rich on asbestos claims it moved into the tobacco-Medicaid suit on behalf of Texas (Forbes, July 7, 1997; Sept. 21, 1998 and sidebar). It also made the Houston Chronicle’s list of top ten political donors in Texas (five of whom, all consistent Democratic donors, happen to have represented the state in tobacco litigation for $3.3 billion in fees). Beaumont, which also is home to another of the Big Five Texas tobacco firms, is sometimes considered the most plaintiff-dominated town in the United States. (DISCUSS)
Sources: Toshiba press release, Oct. 29; Terho Uimonen, “Toshiba Settles Floppy Disk Lawsuit”, IDG /PC World News, Oct. 29; Andy Pasztor and Peter Landers, “Toshiba to pay $2B settlement on laptops”, Wall Street Journal Interactive/ZDNet, Nov. 1; Michael Fitzgerald and Michael R. Zimmerman, “PC makers hit with ‘copycat’ suits”, PC Week/ZDNet News, Nov. 1; “More PC lawsuits filed”, AP/CNNfn, Nov. 2 (link now dead); “Laptop Illogic”, Wall Street Journal, Nov. 3.
November 3 – Flag-burning protest requires environmental permits. You’re so angry you want to burn a flag in public? You’ll have to fill out these two environmental permissions first, please, one for the smoke aspect and one for the fire aspect. We don’t think this is a parody. (Vin Suprynowicz, “Levying a Free-Speech Fee”, Las Vegas Review-Journal, Oct. 28 — full column)
November 3 – Welcome RiskVue and Latex Allergy Links readers. Coverage of EEOC protection of illegal aliens is here, and of possible Rhode Island-led suits against glove makers, here.
November 2 – School shootings: descent of the blame counselors. It may seem incredible to Americans, but after the 1996 massacre at Dunblane, Scotland, in which 16 kindergarteners and their teacher were killed, “not a single lawsuit was filed”. How different in Littleton, Colo., West Paducah, Ky., and Jonesboro, Ark., where busy litigators — call them blame counselors? — seem to outnumber grief counselors, aiming suits in all directions: at school districts, entertainment companies, gunmakers, and most controversially the parents of the killers. Many victim families still decline to sue, taking the older view of litigation as an obstacle to forgiveness and community reconciliation; others throw themselves vigorously into their suits as a cause, believing they’re helping expose deep-seated evils of today’s America or at least the negligence of certain bad parents; and then there’s the middle ground represented by one Columbine High School mother who says she’s forgiven the shooters’ parents, but, frankly, now needs the money. (Lisa Belkin, “Parents Suing Parents”, New York Times Magazine, Oct. 31) (see also July 22, 1999 and April 13, 2000 commentaries).
November 2 – “Responsibility, RIP”. Columnist Mona Charen comments on two auto safety suits, one of them the child-left-in-hot-van case discussed in this space Oct. 20. In the other case, $2 million went to the survivors of a Texas man who’d left a truck running on a hill and walked behind it. “You don’t need an owner’s manual to tell you that it’s dangerous to walk behind a running, driverless vehicle on a steep hill. This used to be known as common sense. But so long as juries return such verdicts, the concept of individual responsibility gets hammered ever lower…the trial lawyers’ wallets grow corpulent, and the populace is increasingly infantilized.” (Jewish World Review, Oct. 25 — full column)
November 2 – How the tobacco settlement works. “‘There’ll be adjustments each year based on inflation,’ said Brett DeLange, head of the Idaho attorney general’s consumer protection unit. Plus, ‘If cigarette volume goes down, our payments will go down. If volume goes up, our payments will go up even more.’” Why, it’s like Christmas come early! Of course DeLange denies that this arrangement will in any way dampen the state’s enthusiasm for reducing tobacco use. (Betsy Z. Russell, “Tobacco money gets closer to Idaho”, Spokane Spokesman-Review, Oct. 24 — full story) (see also July 29 commentary)
November 2 – Lockyer vs. keys. “October 12, 1999 (Sacramento) — Attorney General Bill Lockyer today sued 13 key manufacturers and distributors for allegedly failing to warn that their products expose consumers to the toxic chemical lead in violation of Proposition 65.” — thus a press release from the office of the California AG. From time immemorial, it seems, house keys have been made of brass, and brass contains lead. Whatever you do, don’t tell him about the knocker on your front door, or those robe hooks in the bathroom. (press release link now dead)
November 2 – Perkiness a prerequisite? Lawsuit charges local outlet of Just for Feet shoe chain with bias against black workers. Among evidence alleged: store “policy dictating employees should look like Doris Day or ‘the boy next door.’ Company representatives deny the existence of such a policy.” (”Shoe store accused of discrimination”, AP, Las Vegas Sun, Oct. 26 — full story)
November 2 – 80,000 pages served on Overlawyered.com. With help from our Canadian visitors, we hit a new daily traffic record last Thursday. New weekly and monthly records, too. Thanks for your support!
November 1 – New topical page on Overlawyered.com : family law resources. Divorce, custody, visitation, child support, adoptions gone wrong, and other occasions for overlawyering of the worst kind.
November 1 – Not-so-Kool omen for NAACP suit. Apparently unconcerned about retaining the good will of Second Amendment advocates, the National Association for the Advancement of Colored People is suing gunmakers for having catered to strong demand for their product in inner cities (see Aug. 19 commentary). Its potential case, however, is widely regarded as weak — so desperately weak that back on July 19 the National Law Journal reported the civil-rights group as angling to get the suit heard by Brooklyn’s very liberal senior-status federal judge Jack Weinstein because the underlying theories “might not succeed in any other courtroom in America”.
Now there’s another omen that the much-publicized lawsuit is unlikely to prevail: in Philadelphia, federal judge John Padova has dismissed a proposed class action which charged cigarette makers with selling in unusually high volume to black customers and targeting them with menthol brands and billboard ads. To bring a civil rights claim, the judge wrote, “[p]laintiffs would have to contend that the tobacco products defendants offer for sale to African Americans were defective in a way that the products they offer for sale to whites were not.” If a racial angle can’t be grafted onto the legal jihad against cigarette makers, is the same tactic likely to be any more successful when directed at gun makers?
Sources: Sabrina Rubin, “Holy Smokes!”, Philadelphia Magazine, February 1999; Shannon P. Duffy, “Court Urged to Dismiss Menthol Cigarette Class Action”, The Legal Intelligencer, April 8; Joseph A. Slobodzian, “A novel civil-rights lawsuit vs. tobacco industry is dismissed”, Philadelphia Inquirer, Sept. 24, link now dead; Shannon P. Duffy, “Judge Dismisses Smoking Suit”, The Legal Intelligencer, Sept. 24.
November 1 – Mounties vs. your dish. About a million Canadians are said to defy their country’s ban on the use of satellite dishes to receive international programming, though the Mounties’ website warns that violators “can face fines of up to $5,000 and/or up to 12 months in prison”. The ban applies not only to “pirate” watching (where viewers buy stolen code that lets them unscramble signals without compensating the satellite provider) but even to straightforward paid subscriptions to foreign satellite services. The only lawful option is to go through one of a duopoly of Ottawa-approved suppliers (Bell Express Vu and Star Choice). Good news on another front, though: Internet radio is letting listeners bypass the absurd and oppressive laws requiring Canadian content in that medium. Bring Internet TV soon, please! (Ian Harvey, “RCMP threatens a clean-up of illegal dishes”, Toronto Sun, Oct. 13 — full column)
November 1 – “Shoot the middle-aged”. That’s the title of a Detroit News editorial responding to the Michigan House’s unanimous approval of a bill allowing for doubling of criminal penalties when offenses are committed against the young or elderly. (Oct. 23 — full editorial).
November 1 – World according to Ron Motley. Even before tobacco fees, the Charleston-based plaintiff’s lawyer was “worth tens, maybe hundreds, of millions of dollars. But he’s about to get much richer. A billion or two or three richer….Sketching plans that would alarm many corporate executives, the 53-year-old lawyer will reinvest most of his newfound money to finance lawsuits against the makers of lead paint, operators of nursing homes, health maintenance organizations and prescription drug makers.” He calls the businesses he sues “crooks”. “Mr. Motley’s windfall [from tobacco] is likely to exceed $3 billion…’If I don’t bring the entire lead paint industry to its knees within three years, I will give them my [120-foot] boat,’ he says”.
In its flattering profile of the 53-year-old South Carolinian, yesterday’s Dallas Morning News quotes a pair of law profs who hint that the public should really be glad Motley is now personally reaping billions for representing government clients, because next time he sues some huge business it’ll be more of an even match. By that logic, we’d be better off if we let every lawyer who argues a case against, say, Microsoft, amass as much wealth as Bill Gates. Maybe the trial lawyers will figure out a way to make that happen too before long (Mark Curriden, “Tobacco fees give plaintiffs’ lawyers new muscle”, Oct. 31 — full story)
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