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Borat

Two of my least favorite things—misogynistic frat-boys and frivolous lawsuits—together at once. Three Chi Psi fraternity brothers from the University of South Carolina, after signing waivers and getting paid $200, got caught drunkenly wishing for slaves and making other obnoxious sexist and racist remarks on film to Sasha Baron Cohen in his character of Kazakh journalist Borat; those scenes appeared in the movie. They’re now suing, wanting takebacks. TMZ has the Los Angeles Superior Court complaint, which asks for an injunction, punitive damages, and attorneys’ fees. (I look forward to the discovery on the “false light” claims that suggest that the plaintiffs never would say such things as they were recorded being said.) Earlier, a friend of one of the frat boys asked Metafilter for advice. The complaint is filed by John Does, but Chi Psi David Corcoran has already bragged about the experience to FHM. Frat president Todd Bailey talks about the story to the local paper.

(Update: Upon further review, I see that the complaint alleges that the movie “falsely depicted them as insensitive to minorities.” There is no allegation that the movie falsely depicted them as insensitive to women. In the trade, that’s known as a negative pregnant.)

(Second update: Bashman with a roundup of links and Lat with sardonic commentary.)

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November 6 roundup

by Ted Frank on November 6, 2006

  • Election day is tomorrow; the roundtable is still going on our sister website. [Point of Law]
  • One reason the election is important: judicial nominations. Bill Clinton appointed 378 judges; Bush, in six years, 266, with 45 vacancies. [National Law Journal]
  • Update: Illinois appellate court rejects Judge Maag’s $110M libel suit. (Earlier: Dec. 23, 2004 and links therein.) [Bashman]
  • Does Professor Charles Silver’s single-variable time series on Texas doctor supply tell us anything about reform, as he claims? Did doctors push reform down the throats of an “anonymous and dispersed” group? I argue no. [Point of Law; Silver @ Bizarro-Overlawyered]
  • Professor Paul Horwitz questions the convenience of the death-bed statements of the decedent in Williams v. Philip Morris. [PrawfsBlawg]
  • More threatened Borat-related litigation (Nov. 29) from Mahir “I kiss you” Cagri and from Gypsies. The latter is resulting in film censorship in Germany. [Wired; Sydney Morning Herald]
  • “We live in a very litigious society; it makes it more difficult for a physician to be a good Samaritan.” [MetroWest Daily News via Kevin MD]
  • Add Art Bell to the list of people threatening to sue bloggers. [Workbench]
  • Twenty years of Scalia. [Weekly Standard]

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October 27 roundup

by Ted Frank on October 27, 2006

  • Bill Moyers calls his lawyers. [Adler @ Volokh]
  • Jim Copland: 9/11 suits against New York City over emergency recovery work “simply wrong.” [New York Post]
  • Did the PSLRA help shareholders? [Point of Law]
  • 32-year-old Oregon grocery store employee sues, claiming that Green Day stole his never-recorded high-school writings. [Above the Law]
  • Does one assume the risk of a broken nose if one agrees to a sparring match at a karate school? [TortsProf]
  • “At KFC (né Kentucky Fried Chicken), the chicken is still fried. At Altria (né Philip Morris), the cigarettes still cause cancer. And at the American Association for Justice, some will say that the trial lawyers are still chasing ambulances.” [New York Times via Point of Law]
  • More on global warming lawsuits. [Point of Law]
  • Dahlia Lithwick, wrong again when bashing conservatives? Quelle surprise! [Ponnuru @ Bench Memos; see also Kaus] Earlier: POL Oct. 6 and links therein. Best commentary on New Jersey gay marriage decision is at Volokh.
  • Michael Dimino asks for examples of frivolous lawsuits. What’s the over-under until it turns into a debate over the McDonald’s coffee case? [Prawfsblawg]
  • Unintended consequences of campaign finance reform. [Zywicki @ Volokh; Washington Times]
  • Who’s your least favorite Supreme Court justice? [Above the Law]
  • More on Borat and the law. [Slate] Earlier on OL: Dec. 9 and links therein.
  • “Thrilled Juror Feels Like Murder Trial Being Put On Just For Her.” [Onion]
  • A revealing post by the Milberg Weiss Fellow at DMI: companies make “too much” profit. I respond: “Again, if you really think the problem is that insurance companies charge ‘too much’ and make ‘too much’ money, then the profitable solution is to take advantage of this opportunity and open a competing insurance company that charges less instead of whining about it. (Or, you could use a fraction of the profits to hire a dozen bloggers and thus solve the problem at the same time keeping the whining constant.)” [Dugger]

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The Central Asian country has dropped its lawsuit against comedian Sacha Baron Cohen, the Boston Globe reported (Joshua Glenn, “Surprise Kazakh”, Nov. 27)(via Amanda Butler)(see Nov. 16, Nov. 29).

Comedian Sacha Baron Cohen, on a website supposedly maintained by his “Borat” character, claims to welcome the Kazakhstan government’s threats to take legal action against him for his spoof. (“‘Sue me’, says Borat”, Stuff (N.Z.), Nov. 28; Althouse, Nov. 25; see Nov. 16).

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On his popular HBO show, comedian Sacha Baron Cohen portrays various outrageous characters among them “Borat”, supposedly a TV personality from the (real) former Soviet republic of Kazakhstan. Now “Kazakhstan’s Foreign Ministry is threatening to sue him for portraying the central Asian state in a ‘derogatory way.'” (Buck Wolf, “Kazakhstan Not Laughing at ‘Ali G'”, ABCNews, Nov. 15).

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June 28-30 – Lawyer’s 44-hour workday. “Cook County State’s Attorney Dick Devine is investigating charges a lawyer routinely billed the state’s child welfare agency for more than 24 hours’ work a day on uncontested adoptions.

“According to records obtained by Cook County Public Guardian Patrick Murphy, Joyce Britton had a busy week in April 2001: On Monday, April 9, she worked 34 hours. On Tuesday, she worked 44 hours. On Wednesday it was 29; 33 on Thursday, 25 on Friday, 42 on Saturday. … Britton billed the agency $862,000 for fiscal years 2000 and 2001. The second-most-active attorney handling uncontested adoptions billed $285,000.” (Abdon M. Pallasch, “Did adoption lawyer really work 44 hours in one day?”, Chicago Sun-Times, Jun. 25). (DURABLE LINK)

June 28-30 – Tobacco settlement funds go to tobacco promotion. An investigation by the Charlotte Observer finds that of the $59 million that the state of North Carolina has spent so far in proceeds from the tobacco settlement, nearly three-quarters — “about $43 million — has gone toward production and marketing of N.C. tobacco”. (Liz Chandler, “N.C. spends settlement on tobacco, not health”, Charlotte Observer, Jun. 23) (via Andrew Sullivan — scroll to third item). (DURABLE LINK)

June 28-30 – Ambulance driver who stopped for donuts loses suit. Sad news for the hero of our Nov. 2-4 item: “A federal judge has dismissed a lawsuit filed by a former ambulance driver who claimed he was wrongfully fired after stopping for doughnuts while transporting a patient to a hospital.” Larry Wesley “stopped for doughnuts in July 2000 while he was taking an injured youth to Ben Taub Hospital” and was fired after the boy’s mother complained. U.S. District Judge Lee Rosenthal “ruled that Wesley’s claims that other employees received lesser sanctions were not supported by the record, and he also failed to show that he was treated more harshly than other drivers.” (“Judge dismisses lawsuit filed by ambulance worker fired for doughnut stop”, AP/KRTK Houston, Jun. 27). (DURABLE LINK)

June 28-30 – More on gambling as next-tobacco. The Newark Star-Ledger‘s take; quotes our editor (Judy DeHaven and Kate Coscarelli, “Gaming Industry Could Be Next Target of a Big Tobacco-Type Lawsuit”, Newhouse News Service, Jun. 24)(see May 20-21). (DURABLE LINK)

June 27 – Pledge marathon. Even Justice William Brennan seemed to recognize that it tends to damage the good name of religious unbelief to associate it in the public mind with theories of hair-trigger unconstitutionality which encourage running to court over the most minute details of official ceremony. See Eugene Volokh (multiple posts); “One Nation Under Blank” (editorial), Washington Post, Jun. 27; Megan McArdle (and reader comments); Walter Dellinger, “Logically Speaking, the 9th Circuit Doesn’t Exist”, Slate, Jun. 27; David G. Savage, “9th Circuit just following form”, L.A. Times/ Houston Chronicle, Jun. 26. Update: also see columns by Steve Chapman, “Coming to terms with our Constitution”, Chicago Tribune, Jun. 30; Jonathan Foreman, “The real pledge problem”, New York Post, Jul. 1. (DURABLE LINK)

June 26-27 – “Win Big! Lie in Front of a Train”. Per a case summary in a recent New York Law Journal, “A State Supreme Court jury in Manhattan had awarded $14.1 million to a woman who was hit by an E train. The accident occurred on May 3, 2000, in a subway tunnel just north of the 34th Street station on the Eighth Avenue line. … What was she doing in that strange place to begin with? It seems the woman, then 36, had entered the tunnel and lain down on the tracks. The police concluded later that she was trying to kill herself. She denied it, though she also said she could not remember how she had ended up there.” No wonder the Bloomberg administration is pushing municipal tort reform (Clyde Haberman, New York Times, Jun. 25)(see also Oct. 23, 2001, Dec. 17, 2001). (DURABLE LINK)

June 26-27 – Asbestos: saving the Crown jewels? “In a decision that is sure to grab the attention of the asbestos personal injury bar, a Philadelphia Common Pleas judge has dismissed Crown Cork & Seal as a defendant in 376 pending asbestos cases. Judge Allan J. Tereshko found that Philadelphia- based consumer packaging company Crown Cork & Seal qualifies for relief under a new Pennsylvania law that limits the successor liability of asbestos defendants whose liability results only from merging or acquiring companies that produced asbestos products. Under the law, the company must be incorporated in Pennsylvania prior to May 2001 and must show that its liabilities in asbestos lawsuits have equaled or exceeded the ‘fair market value’ of the company whose acquisition resulted in the successor liability.” (Shannon P. Duffy, “Pennsylvania Court Upholds Law Limiting Asbestos Liability”, The Legal Intelligencer, Jun. 13)(see Jun. 27, 2001). (DURABLE LINK)

June 26-27 – “Ex-Teach’s Suit: Kids Abused Me”. Sued if you do, sued if you don’t dept.: trial is set to start today in Brooklyn “in a ground-breaking lawsuit filed by a former special education teacher who charges he was harassed by students. … Vincent Peries, who is from Sri Lanka, says students at Francis Lewis High School in Queens mimicked his accent, tossed paper balls at him,” and made fun of his ethnic background. “School officials don’t deny Peries was harassed — but argue that they can’t discipline special ed students for slurring a teacher. ‘This is because students with that classification have already been identified as having behavioral problems, and the verbal misconduct might be considered a manifestation of their disability,’ city lawyer Lisa Grumet wrote in court papers. Special ed students can be suspended only for incidents involving physical violence, drugs or a dangerous weapon, according to Board of Education regulations.” (John Marzulli, New York Daily News, Jun. 25)(& welcome Joanne Jacobs readers) (& update Jul. 24; city settles with him for 50K). (DURABLE LINK)

June 26-27 – “‘Vexatious litigant’ vows he’ll keep coming back”. Portrait of a Texas frequent litigant who’s filed more than twenty lawsuits over the past two years, against a list of defendants that includes more than a dozen judges and assorted other officials. Among factors working in his favor, aside from our general lack of a loser-pays rule: “pauper status” rules providing for the waiver of filing fees, and a lack of cross-checking that might allow the clerk in one county to learn that Mr. O’Dell is under a court order handed down in another county to petition for approval before filing any more suits in the state. (Lisa Sandburg, San Antonio Express-News, Jun. 24). (DURABLE LINK)

June 24-25 – Reparations roundup. Someone should start a weblog devoted to reparations links, it’d be easy to fill:

* In the fall of 2000, ABC’s “20/20″ and New York Times reporter Barry Meier distinguished themselves by collaborating on a devastating exposé of “personal injury lawyer Edward D. Fagan, [who] recreated himself four years ago as [a] media-savvy figure behind huge lawsuits on behalf of Nazi victims” as the Times‘s abstract puts it. The investigation (to quote ABC) “found serious questions being raised about this so-called savior, now accused of ignoring and neglecting some of the very clients he had promised to help”. ABC interviewed well-known legal ethicist Stephen Gillers, who spoke in startlingly blunt terms of his opinion of Fagan’s client-handling record (“I think it’s despicable”; “This is client abuse, in my view, and it should not be allowed to continue”.) As for Fagan’s allegedly pivotal role in developing the WWII claims, “‘We essentially worked around him,’ says New York University law professor Burt Neuborne. ‘I mean, he was, he was there, but, but he played, if I tell you zero, I mean zero role in developing the legal theory, in presenting the legal theory, and in participating as a lawyer,’ says Neuborne.” (Brian Ross, “A Case of Self-Promotion?”, ABCNews.com, Sept. 8, 2000; Connie Chung, Sam Donaldson and others, “The Survivors” (transcript), ABCNews “20/20″, Sept. 8, 2000; Barry Meier, “An Avenger’s Path: Lawyer in Holocaust Case Faces Litany of Complaints”, New York Times, Sept. 8, 2000 (abstract leads to fee-based archive); Barry Meier, “Judge Warns Lawyer to Pay Past Penalties”, Sept. 13, 2000 (same)).

But credulity springs eternal — at least in those portions of the press not industrious enough to do a Google search or two to check out the background of a lawyer re-emerging into the headlines. Last week, Fagan was all over the papers announcing that he was going to file reparations suits against Western corporations on behalf of victims of the late apartheid regime in South Africa. Britain’s Observer swallowed his pitch whole, bannering its article “Lawyer who championed those who suffered in the Holocaust fights for South Africa’s oppressed” and calling Fagan the “American lawyer who won compensation for Holocaust victims”. We’re sure that would come as news to Prof. Neuborne. (Terry Bell, “Apartheid victims sue Western banks and firms for billions”, The Observer, Jun. 16).

* On New York’s Niagara Frontier: “Thousands of Grand Islanders were thankful and relieved Friday after a federal judge ruled that the Seneca Indians do not own the land beneath their homes, businesses and public buildings”. U.S. District Judge Richard C. Arcara ruled that not only did the Seneca tribe relinquish any legal claim they might have had to the relevant tracts of New York state way back in 1764, but “there is no archaeological evidence that the Senecas ever actually set foot on the Niagara Islands.” But landowners on the island are nowhere near achieving clear title to the properties they once thought they owned, since the Senecas vow to appeal. (Dan Herbeck and T.J. Pignataro, “Sigh of relief”, Buffalo News, Jun. 22).

Meanwhile, litigation by other tribes continues to wreak havoc across a wide swath of New York State (see Nov. 3-5, 2000 and links from there). Last fall another such case ended with a federal judge’s ruling in favor of the Cayuga tribe, which 200 years ago sold the 64,000-acre tract to the state in violation of the U.S. Trade and Intercourse Act. The verdict was $36.9 million to which the judge added $211 million in interest for a grand total of $247.9 million, considerably below the $2 billion that the tribe’s lawyers had been asking for, a request that had reflected the tendency of a sum starting off long enough ago to grow to the sky through the miracle of compound interest. (Margaret Cronin Fisk, “200-Year-Old Land Dispute Nets $247.9 Million”, National Law Journal, Oct. 17). See also John Caher, “New York State May Be Solely Liable for Indian Land Claims”, New York Law Journal, Apr. 2 (suit by Oneidas “demand ‘ejectment’ of the City of Syracuse”). Update Jun. 29, 2005: Second Circuit panel throws out Cayugas’ suit and damage award as inconsistent with recent Supreme Court decision in City of Sherrill.

* Ah, the healing and emollient qualities of the reparations movement, which holds out the promise of putting racial frictions finally behind us: “A new Mobile Register - University of South Alabama survey shows that while 67 percent of black Alabamians favor the federal government making cash payments to slave descendants, only 5 percent of white Alabamians agree. Among the supporters is J.L. Chestnut, a black Selma lawyer who is part of a national legal team preparing to file reparations litigation. … ‘In five years of polling in Alabama, I have never seen an issue that was so racially polarizing,’ Nicholls [Keith Nicholls, the University of South Alabama political science professor who oversaw the survey] said. He added that the mere mention of reparations and an official U.S. government apology for slavery — another issue addressed in the poll — caused many white respondents to get so angry that they had trouble completing the interview.” (Sam Hodges, “Register-USA poll: slavery payments a divisive question”, Mobile Register, Jun. 23). (DURABLE LINK)

June 21-23 – “Trolling for litigation on eBay”. Via Ernie the Attorney: “Someone bought a packaged cheese stick that supposedly had a human hair. They want to sue, and have posted the following description of the item bid for on Ebay: ‘You are bidding on the opportunity to represent us in a civil proceeding. Naturally, our discovery of this apparently tainted product has traumatized us, and we may never be able to truly enjoy cheese (or other dairy products, or other processed foods, or other food for that matter) ever again. We reserve the right to review winner’s qualifications upon auction end. Winner must be a licensed attorney.” Before you ask, no, we don’t know whether the person who posted the auction is serious or not, though our guess is that they’re not. Update 20:45 EDT Friday: it looks as if the eBay authorities have removed the auction. It was discussed by users on eBay Forums (Jun. 21). (DURABLE LINK)

June 21-23 – Tobacco fees: a judge gets interested. Here’s one to watch closely: a Manhattan judge may finally be getting ready to delve into some of the ethical questions raised by the 1998 tobacco settlement, or at least the $25 billion portion of it that covers New York state. The judge “has asked the New York attorney general’s office and several law firms to justify $625 million in attorney fees awarded” as part of New York’s settlement with the tobacco industry (see May 11, 2001). “Citing unspecified ethical concerns, Supreme Court Justice Charles E. Ramos ordered state lawyers and attorneys from six firms that represented the state to explain why the fees should not be set aside. One ground for vacating the fees, the judge said, could be that the arbitrators who awarded them may have ‘manifestly disregarded well established ethical and public policies.’ Ramos suggested that the court had the power to not only ask a new panel of arbitrators to determine reasonable fees, but to vacate the entire $25 billion settlement, approved by another judge in 1998, if such action was warranted. He also said the issue could be referred to the Departmental Committee on Discipline and require the outside firms to produce time sheets detailing their roles in the litigation.” (Tom Perrotta, “New York Judge Cites Ethics Concern Over Tobacco Case Fees”, New York Law Journal, Jun. 20). (DURABLE LINK)

June 21-23 – 11th Circuit reinstates “Millionaire” lawsuit. “A federal appeals court has reinstated a lawsuit alleging that ABC discriminates against disabled people trying to become contestants on ‘Who Wants to be a Millionaire.’ The 11th U.S. Circuit Court of Appeals decided that the lawsuit contained a valid claim that the show’s qualifying system, which uses touch-tone phones, violates the Americans with Disabilities Act.” (see Nov. 7, 2000; Brian Bandell, “Lawsuit Reinstated Against ABC Show”, AP/New York Post, Jun. 19; Susan R. Miller, “Disabled Floridians Get Shot at ABC’s ‘Millionaire'”, Miami Daily Business Review, Jun. 21). (DURABLE LINK)

June 21-23 – Welcome Grouse.net.au readers. We’re picked as link of the day on this Australian site for June 21. Also for Jun. 21, we’re Mr. Quick’s “Link of the Day”. Among blogs sending us visitors lately: Tres Producers, Flyover Country, Aaron Haspel’s God of the Machine, Hollywood Investigator, Bob Owen of the Twin Cities, Ross Nordeen, Ravenwolf, Jon Garthwaite’s TownHall C-Log, Junkyard Blog, Now You Listen to Me Little Missy, and many others, as well as the links page of premier Cathblogger Amy Welborn. (DURABLE LINK)


October 10-11 – “U.S. to Fully Compensate Victims’ Kin”. In a step virtually unprecedented in a government-run program, the new Sept. 11 fund will assign a dollar value to, and compensate at taxpayer expense, the emotional pain and suffering experienced by survivors (David G. Savage, Los Angeles Times, Oct. 5). Wealthier victims’ families could be the ones who mostly opt out of the federal plan and into private litigation, because of the proviso by which payments from the federal fund will be reduced to reflect amounts families can recover from insurance and other contractual sources, which will often amount to a large offset in the case of high-paid execs (Harriet Ryan, “Victims’ families face choices in collecting compensation”, CourtTV.com, Sept. 28). With damages for airlines limited to their insurance, “the hunt is on for additional defendants with deep pockets. Lawyers say these could include wealthy supporters of terrorism; private baggage-screening firms hired by airlines; contractors that may have improperly screened service personnel allowed on planes; and the operators of the airports where the hijackers boarded.” (Martin Kasindorf, “Families seeking compensation face a choice”, USA Today, Oct. 2) And see if you can spot the implicit assumption in this headline: Seth Stern, “Who pays the damages for Sept. 11?”, Christian Science Monitor, Sept. 27.

October 10-11 – “Never far from school halls: the lawsuit”. “Schools have always been fertile ground for lawsuits over religious observance and free speech. But educators say the volume of suits is on the rise, forcing them to siphon time and money away from learning.” (Seth Stern, Christian Science Monitor, Oct. 9).

October 10-11 – “Man Thought He Was Dead, Sues Airline”. Scott Bender of Philadelphia was snoozing when the U.S. Airways flight from North Carolina landed at the Birmingham, Alabama airport and the crew left him there in the little plane until he woke up. It was really dark, says his lawyer, and Bender “didn’t know if he was alive or dead” — it turned out the former. Now he wants money for the fright and other harms. (Chanda Temple, Birmingham News, Oct. 4).

October 9 – Employee’s right to jubilate over Sept. 11 attack. Kenneth Bredemeier, “On the Job” columnist for the Washington Post, yesterday ran the following remarkable communication from one of his readers, which we take the liberty of quoting at length since it deserves to be read word for word:

“On the day of the World Trade Center and Pentagon disasters, a Muslim woman at work jumped for joy in the cafeteria saying, ‘Yes, yes, yes,’ upon hearing the news.“Apparently nothing was said to her at the time of her ‘celebration.’ Her supervisor consulted the HR manager for advice. He suggested a group meeting to explain that this is a very sensitive time for everyone and that it is probably best to not discuss the disasters at all. He also said to not single out anyone or specifically mention her actions.

“When I heard about it, I wanted to know why she is still at work. I was told to not say anything. Is that right? I have no intention of starting a riot, but I feel this incident should not be ignored. What, if anything, can I do?”

Don’t say anything to her; hold a group meeting; tell other workers to stop talking about the attacks. Could this be just one supremely craven HR manager, at one sensitivity-addled company? No, it gets worse. Bredemeier then consults an expert named Laurie Anderson, a “Chicago clinical psychologist and organizational consultant”. Her advice? As “uncalled for [!] as the impromptu celebration might have been, corporations ‘can’t fire someone for violating something that was never spelled out.’ She said the employee who was upset by her co-worker’s joy at the attacks ought to go to management and say that she wants ‘to be a part of the ongoing conversation about our policies.'” And Anderson adds: “It’s horrifying, but there’s no law against being insensitive.”

But of course Anderson gets it exactly, 180-degrees wrong on that last point. There is a federal law against being insensitive in ways that make co-workers feel disliked or disparaged because of their ethnic or national affiliation — it’s called the “hostile environment” branch of harassment law, and lawyers have deployed it repeatedly to win big bucks for workers who have testified that they were upset by hearing slighting comments aimed at their ethnic or national group. If an employer in this country learns that one of its workers has burst into applause in the cafeteria at learning of, say, a massacre or assassination aimed at a protected ethnic minority, then its failure to discipline that worker would create something approximating a dream case if and when a member of that minority chooses to sue the company charging hostile environment. (Nor will it get the company off the hook, in explaining its failure to discipline, to plead that it had not previously warned its workers specifically not to jubilate in such circumstances.)

The difference between the two fact patterns? So far as we can tell, it’s mostly that “American” doesn’t operationally count as a protected ethnicity under federal law. And so we arrive at a supposed right to jubilate, among Americans, over the deaths of Americans without having to worry about the risk of dismissal or even harsh words or shunning. Could anything be crazier? (Kenneth Bredemeier, “At Some Companies, An All-Too-Rapid Response to Attacks”, Washington Post, Oct. 8).

Addendum: no more than urban legend? Reader John Kingston of Carle Place, N.Y., in a letter to Washington Post columnist Bredemeier which he cc’s to us, writes:

Your column on workplace reaction to September 11 may have come closest to actually identifying the jubilant Muslims, a story sweeping the country that has all the earmarks of an urban myth. It appears the person who wrote you the note at least claims to have actually seen the jubilant worker. Every other reference to the jubilant workers has several key omissions: the name of the workplace where it happened (as in your case); the name of the jubilant person (OK, understandable); or an actual first-person account (which you sort of have, but do not actually identify the first-person). Yet these stories of the celebrating Muslims have come from all over the country, and none of them have been proven.Please do your readers a service in a future column. Put the name of this correspondent in print. And if the correspondent does not want to be put in print, please call him up and grill him on the facts of the case. Because quite frankly, this story sounds like a pile of baloney, and I was shocked to see it repeated and given credence, without what I would consider significant attribution, in a fine paper like yours.

Adds reader Kingston: “And to make it worse, Overlawyered.com repeats it as well. OK, its point was regarding what a workplace could do if it actually had a publicly jubilant Muslim. But my guess is that nobody actually did. This story, Mr. Olson, sounds like a close cousin of junk science.” (DURABLE LINK) [And see Letters, Oct. 22]

October 9 – “Plaintiff’s lawyers going on defense”. In at least two major areas of mass tort litigation now under way, plaintiff’s lawyers well known from asbestos and tobacco work have crossed the aisle to work for defendant businesses: Sulzer Orthopedics Inc. has hired Mississippi’s Richard Scruggs to represent it in hip joint cases, and Bridgestone Firestone has hired Texas’s Wayne Reaud to settle tire cases. “Already this year, Reaud has negotiated 117 settlements for Firestone in Texas, including 22 cases involving deaths.” (Mark Curriden, Dallas Morning News/Austin American-Statesman, Sept. 4, Googlecached) On Reaud and Firestone, see also Michael Freedman, “The Informer: It Takes One to Know One”, Forbes, Sept. 17. (DURABLE LINK)

October 8 – Why we fight, #2. Reason #1 is of course what happened on Sept. 11; but how strangely constricted would be our war aims if they did not also by this point include the final overthrow of the Taliban. (Sam Handlin, “Justice takes on a different meaning in Afghanistan”, CourtTV.com, Sept. 28; Jan Goodwin, “The first victims: the Taliban have been terrorizing women for years”, New York Daily News, Oct. 4; Vincent Laforet, “At Kabul’s door, an army of addicts”, New York Times, Oct. 7 (reg) (arms chopped off by the Taliban for smoking opium in an Afghan school, Mooruddin Aki now begs on a street in Quetta, Pakistan, where passersby stuff bills into his mouth)).

Among pieces we’ve liked recently: Peter Ferrara, “What is an American?” (National Review Online, Sept. 25). And what’s the opposite of Osama bin Laden? Here’s one answer: “The men and women of the space program, and their legions of scientific antecedents, spent countless hours acquiring the knowledge and developing the moral values that led to the moon landing. Not many years later, Osama bin Laden and his fellow terrorists also spent many hours of planning, sitting not in laboratories and libraries, but in tents and caves, with one goal: not to create, but to annihilate human creations. The scientists measured their success by how much they could produce. The terrorists measure their success by how much they can destroy.” (Michael Berliner, “Terrorists vs. America”, Ayn Rand Institute, Oct. 5) (via InstaPundit).

October 8 – “Hama to sue bridge owners over her daughter’s fall”. When Kaya, a 17-month-old with Down’s syndrome, fell from her mother’s arms and off the Capilano Suspension Bridge in Vancouver, she miraculously escaped with only scratches, tree boughs breaking her fall. But her mother, Nadia Hama, is suing the bridge operator anyway; her lawyer says she was traumatized by the aftermath of the incident which included a police investigation and press coverage that “was largely very negative”. (Andy Ivens, “Hama to sue bridge owners over her daughter’s fall”, The Province (Vancouver), Sept. 25).

October 5-7 – Feds’ Lanning v. SEPTA turnabout. The U.S. Justice Department has unexpectedly dropped its support of a long-running lawsuit which sought, in the name of female applicants, to weaken the physical fitness standards used in hiring by the Philadelphia transit police. The Department did not cite the Sept. 11 attacks in explaining its abrupt shift, but its spokesman Don Nelson explained the new stand as follows: “Our position is that we believe it is critical to public safety for police and firefighters to have the ability to run and climb up and down stairs under the most extraordinary circumstances”. In earlier rounds of litigation the feds had sided with plaintiffs lawyers from the Public Interest Law Center of Philadelphia, whose chief counsel calls the new turnabout “a slap in the face of women” and a breach of what he said was a promise made by Attorney General John Ashcroft not to retreat on any civil rights issue. (Joseph A. Slobodzian, “U.S. backs away from suit against SEPTA test”, Philadelphia Inquirer, Oct. 2) (see Sept. 15, 1999). Maybe someone at the Department has been listening to our commentaries of Sept. 13 and other dates. Update Oct. 25-27, 2002: Third Circuit panel rules for SEPTA.

October 5-7 – Civil liberties roundup. What Alexander Hamilton (who used to hang out a lot in New York’s financial district) would want us to remember (Andrew Ferguson, “Strange Bedfellows in This War”, Bloomberg.com, Oct. 2). The left-right civil liberties coalition that has urged scrutiny of the counter-terrorism bill doesn’t agree within itself on much more than platitudes, argues James DeLong of the Competitive Enterprise Institute (“Liberty and Order”, National Review Online, Oct. 2). And London’s invaluable Spectator points out some of the very real costs of national identity cards, whose use would probably not have done much to hinder last month’s suicide attacks, the ringleaders of which were mostly traveling under their own names with valid ID (“Fighting for Freedom” (editorial), Sept. 29).

October 5-7 – “Attorney Ordered to Pay Fees for ‘Rambo’ Tactics”. “Clifford Van Syoc, a solo practitioner in Cherry Hill, N.J., is known for his zealotry in pursuing plaintiffs’ employment-discrimination claims. But now a federal judge, comparing Van Syoc to Rambo, says he’s gone over the line. The judge excoriated him for unreasonably pushing a meritless reverse-bias claim and assessed Van Syoc personally for $59,216 in fees and expenses.” (Tim O’Brien, New Jersey Law Journal, Sept. 6).

October 5-7 – Utah lawmakers: don’t smoke in your car. Legislators in that state have “approved in concept” the idea of legally banning parents from smoking in cars in the presence of their kids, but some among them are reluctant to put their names on such a measure as sponsors given its appearance of extreme meddlesomeness in what was once considered private life (James Thalman, “Lawmakers may up ante for smoking around kids”, Deseret News, Sept. 15).

October 3-4 – Anti-bias law not a suicide pact. “Earlier this summer, U.S. officials told airlines that conducting extra checks on passengers of Arab origin was a violation of the passengers’ civil rights. Also, Transportation Secretary Norman Mineta ordered a federal investigation into complaints by Arab-Americans that they were being unfairly targeted by security screenings.” (Catherine Donaldson Evans, “Terror Probe Changes Face of Racial Profiling Debate”, FoxNews.com, Oct. 1; Stuart Taylor Jr., “The Case for Using Racial Profiling at Airports”, National Journal/The Atlantic, Sept. 25). But of Arab Americans in metropolitan Detroit, “61 percent said such extra questioning or inspections are justified, according to a poll conducted last week by the Detroit Free Press and EPIC/MRA. Twenty-eight percent disagreed; 11 percent were undecided.” (Dennis Niemiec and Shawn Windsor, “Arab Americans expect scrutiny, feel sting of bias”, Detroit Free Press, Oct. 1). “Federal regulations give commercial captains the right to remove anyone from a flight without reason.” (Jonathan Osborne, “Passenger ejections seen as profiling”, Austin American-Statesman, Sept. 29).

In reaction to the horrors of World War II, the federal constitution of Germany curbs what might be termed religious profiling in law enforcement, and authorities in Hamburg, where preparations for last month’s attack were apparently made, acknowledge that their monitoring of extremist Islamic activity has been sharply limited as a result: “police are severely restricted in probing groups defined by faith”. (Carol J. Williams, “German Hunt for Terrorists Haunted by Past”, Los Angeles Times, Oct. 1). Detailed passenger profiling is essential to the much-admired security record of the Israeli airline El Al (Vivienne Walt, “Unfriendly skies are no match for El Al”, USA Today, Oct. 2). Updates: see Nov. 2-4, Nov. 9-11.

October 3-4 – “Follow the money … but don’t hold your breath”. Shutting down sham ‘charities’ and terrorist-owned businesses can’t hurt the war effort,” and it’s also worth investigating the possibility that persons with foreknowledge of the attack might have engaged in options speculation before and since Sept. 11, which would leave a relatively robust paper trail. Don’t expect much, however, from more generalized efforts to prevent terrorist supporters from moving less-than-enormous sums around the globe; there are too many ways around such rules, which are also highly onerous to the non-terrorist economy (James Higgins, Weekly Standard, Oct. 8; Michael Lynch, “Following the Money”, Reason.com, Oct. 4).

October 3-4 – Fear of losing welfare benefits deemed coercive. “A Nova Scotia woman who confessed to cheating the welfare system out of more than $70,000, can’t have her admission used against her in court because she gave it only out of fear that her benefits would be cut off.” Judge Peter Ross of Nova Scotia Provincial Court conceded that Brenda Young’s case was a “particularly glaring instance of welfare fraud”, but “said her fear of impoverishment meant her confession was effectively coerced by the state, an action which violated her constitutional right not to incriminate herself.” Young is no longer on the welfare rolls, however. (Richard Foot, “Judge: confession by welfare cheat cannot be used”, National Post, Sept. 29).

October 3-4 – Victory (again) in Connecticut. “A unanimous state Supreme Court Monday threw out Bridgeport’s lawsuit against dozens of gun manufacturers and retailers, saying the city’s claims of injury to its citizenry, budget and reputation are too specious and indirect to litigate.” (Lynne Tuohy, “Court Disarms Gun Lawsuit, Hartford Courant, Oct. 2) (see Dec. 11-12, 1999)

October 3-4 – “Proposed Law Would Consider Alcohol As Date-Rape Drug”. Liquor may be something that prospective sexual assault victims consume voluntarily and knowingly, while substances such as Rohypnol get sprung on them unawares; but backers of the bill introduced into the Wisconsin legislature by Rep. Terese Berceau (D-Madison) say that shouldn’t make a difference in regarding both substances alike as date-rape drugs. (WISC-TV/Channel 3000/Yahoo, Sept. 27).

October 1-2 – “Litigation threatens to snarl recovery”. “[S]ome lawyers are already gearing up for what could be the most complicated web of litigation in American history. Lawyers across the country are looking for ways around the victims’ fund established as part of a $15 billion government bailout of the airline industry in the wake of the attacks.” During the (still-continuing) litigation over the previous bombing of the World Trade Center in 1993, plaintiff’s lawyers suing the Port Authority insisted that it turn over as part of “discovery” its internal reports on terrorist threats and security, even though “Port Authority lawyers at the time argued that providing the reports would leave security information open to terrorists for another attack.” (Kate Shatzkin, Baltimore Sun, Sept. 30).

MORE: Signe Wilkinson cartoon, “Unleashing Our Most Feared Weapon Against Afghanistan” (guess who), Philadelphia Daily News/Slate (“Get Image” for Sept. 27); Alan Fisk, “Calculation of Losses, Liability to Be Major Insurance Issues in Wake of Terrorism”, National Law Journal, Sept. 28; Michael Freedman and Robert Lenzner, “Lawyers Won’t Sue, But For How Long?” Forbes.com, Sept. 19.

October 1-2 – Ralph Nader is heard from. Addressing students at the University of Minnesota, the prominent litigation advocate — always willing to impute the most evil of motives to his adversaries at home — “asked audience members to consider why U.S. foreign policy is creating enemies. ‘We have to begin putting ourselves in the shoes of the innocent, brutalized people in the Third World and ask ourselves, why do they dislike our foreign policy?'” Maybe if we referred to the Trade Center murderers as “Terrorism Inc.” he’d mistake them for a legitimate business and start turning up the rhetorical heat (Jessica Thompson, “Nader calls for ‘permanent patriotism’ in Northrop speech”, Minnesota Daily, Sept. 26). (DURABLE LINK)

October 1-2 – Chemical-plant vulnerabilities: read all about them. A “provision of the 1990 amendments to the Clean Air Act requir[ed] that thousands of industrial facilities develop risk management plans (RMPs) and submit them to the Environmental Protection Agency (EPA).” One part of the required analysis “documents the potential impacts of a catastrophic accidental chemical release assuming the ‘worst case scenario.” The [analysis] includes the number of potential fatalities that an accidental release could cause to the surrounding community. The law then demands that EPA make this information available to the public.” When an initial plan was floated to publish such reports on the Internet, “security experts — the FBI, CIA, the International Association of Fire Chiefs and various other groups — raised alarm.” The plan was soon shelved, but “public interest groups” vowed to make the information broadly anyway in defiance of the warnings, and a current public availability scheme involving drop-in “reading rooms” appears highly vulnerable to exploitation by advance scouts for terrorist operations, who need only present an identification card, something the Sept. 11 terrorists had little trouble obtaining (Angela Logomasini, “Innocent no more”, Competitive Enterprise Institute/Washington Times, Sept. 27). (DURABLE LINK)

October 1-2 – “Polls say blacks tend to favor checks”. “African-Americans, whose treatment by the criminal justice system gave rise to the phrase ‘racial profiling,’ are more likely than other racial groups to favor profiling and stringent airport security checks for Arabs and Arab-Americans in the wake of this month’s terrorist attacks, two separate polls indicate.

“The findings by the Gallup Organization and Zogby International were met with varying degrees of disappointment and disbelief by black activists and intellectuals, who struggled with explanations.” (Ann Scales, Boston Globe, Sept. 30) (see Sept. 19-20).

October 1-2 – Propulsid verdict: “Robbery on Highway 61″. A jury in Claiborne County, Mississippi deliberated just over two hours before voting $100 million in compensatory damages to 10 plaintiffs in the first suit to reach trial against a Johnson & Johnson subsidiary over alleged side effects of the anti-heartburn medication Propulsid. “Defense attorney Robert Johnson III of Natchez said in closing arguments Friday that no evidence was presented in the four-week trial that showed Propulsid caused any of the plaintiffs’ health problems. He said the plaintiffs’ own doctors said there was no evidence the drug was to blame. … Stop Lawsuit Abuse in Mississippi executive director Chip Reno called the decision ‘unbelievable.’ ‘This was highway robbery on Highway 61,” Reno said. ‘Our system is broke.'” (Jimmie E. Gates, “$100M verdict: Propulsid at fault”, Jackson Clarion-Ledger, Sept. 29). Judge Lamar Pickard later ruled out punitive damages. (Deborah Bulkeley, “Judge Bars Drug Trial Punitive Damages”, AP/Yahoo, Sept. 29). Update May 15, 2004: Miss. Supreme Court vacates verdict and orders individual trials, after earlier reduction of award by trial judge.

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May 10 – “Barbecue group sued over contest”. Jim Woodsmall of Jumpin’ Jim’s BBQ in Johnston, Ia., has sued the Kansas City Barbeque Society, charging that his business has suffered because the society has failed to award his barbecue recipe the stellar ratings he feels it deserved. The enthusiast group fails to follow impartial and uniform rules in its cook-offs, Woodsmall claims, which he thinks amounts to fraud and negligence. (Lindsey A. Henry, Des Moines Register, May 8).

May 10 – Fortune on Lemelson patents. We’ve run a couple of items on the amazing Jerome Lemelson patent operation (see Jan. 19, 2001 and August 28, 1999) and now Fortune weighs in with the best overview we’ve seen. Lemelson, who died in 1997, filed patents for hundreds of ideas and industrial processes which he said he had invented, and which underlay such familiar modern technologies as VCRs, fax machines, bar-code scanners, camcorders and automated warehouses. A mechanical genius? Well, at least a genius in figuring out the angles that could be worked with American patent law: by filing vague patents and then arranging to delay their issuance while amending their claims to adjust to later technological developments, Lemelson steered them into the path of unfolding technology, eventually securing bonanzas for his tireless litigation machine. Foreign-owned companies folded first because they were afraid of American juries, which helped give Lemelson the war chest needed to break the resistance of most of the big U.S.-based industries as well. $1.5 billion in royalties later, his estate continues to sue some 400 companies, with many more likely to be added in years to come. (Nicholas Varchaver, “The Patent King”, May 14).

May 10 – Prospect of $3 gas. One reason refinery disruptions lead to big spikes in the price of gasoline at the pump: environmental rules end up mandating a different blend of gas for each state, hampering efforts to ship supplies to where they’re most needed. (Ron Scherer, “50 reasons gasoline isn’t cheaper”, Christian Science Monitor, May 4; Ben Lieberman (Competitive Enterprise Institute), “Skyrocketing Ga$: What the Feds Can Do”, New York Post, April 23, reprinted at CEI site).

May 10 – Welcome Norwegian readers. We get discussed, and several of our recent news items summarized, on the “humor” section of Norway’s Spray Internet service (Bjørn Tore Øren, “For mange advokater”, May 8). Among other non-U.S. links which have brought us visitors: Australia’s legal-beat webzine, Justinian (“A journal with glamour — yet no friends”; more); Baker & Ballantyne, in the U.K.; the Virtual Law Library pages on media law compiled by Rosemary Pattenden at the University of East Anglia; and Sweden’s libertarian- leaning Contra.nu (“Har advokatkåren i USA för stort inflytande?” they ask of us)(more).

May 9 – Oklahoma forensics scandal. After serving fifteen years in prison on a 1986 rape conviction, Jeffrey Pierce was released Monday after new DNA evidence refuted testimony against him by a forensic specialist whose work is the subject of a growing furor. “From 1980 to 1993, Joyce Gilchrist was involved in roughly 3,000 cases as an Oklahoma City police laboratory scientist, often helping prosecutors win convictions by identifying suspects with hair, blood or carpet fibers taken from crime scenes.” Although peers, courts and professional organizations repeatedly questioned the competence and ethical integrity of her work, prosecutors asked few questions, perhaps because she was getting them a steady stream of positive IDs and jury verdicts in their favor. Now Oklahoma Gov. Frank Keating has ordered an investigation of felony cases on which Gilchrist worked after an FBI report “found she had misidentified evidence or given improper courtroom testimony in at least five of eight cases the agency reviewed.” (Jim Yardley, “Flaws in Chemist’s Findings Free Man at Center of Inquiry”, New York Times, May 8; “Inquiry Focuses on Scientist Used by Prosecutors”, May 2)(reg)

May 9 – Not about the money. Foreign policy making on a contingency fee: “When attorneys agreed to champion the causes of American victims of terrorism in the Middle East, it wasn’t supposed to be about the money.” We’ve heard that one before, haven’t we? “But the prospect of multimillion-dollar fees in what once seemed to be long-shot litigation against Iran has left lawyers fighting over fees in federal court in Washington, D.C. High principles of international law and justice aren’t at stake. It’s simply a matter of who gets paid.” (Jonathan Groner, “Anti-Terrorism Verdicts Spur Big Fee Fights”, Legal Times, April 18).

May 9 – Update: cookie lawsuit crumbles. Half-baked all along, and now dunked: a federal court in March dismissed a would-be class action lawsuit against web ad agency DoubleClick over its placing of “cookies” on web users’ hard drives. Other such suits remain pending (see also Feb. 2, 2000); this one was brought by Milberg Weiss’s Melvyn Weiss and by Bernstein, Litowitz (Michael A. Riccardi, “DoubleClick Can Keep Hand in Cookie Jar, Federal Judge Rules”, New York Law Journal, March 30).

May 8 – “Lawyers to Get $4.7 Million in Suit Against Iomega”. “Lawyers in a class action suit alleging defects in portable computer Zip disk drives will get the only cash payout, up to $4.7 million, in a proposed settlement with manufacturer Iomega Corp., according to the company’s Web site.” Rebates of between $5 and $40 will be offered to past customers who buy new Iomega products, while Milberg Weiss and three other law firms expect to split their fees in crisp greenbacks, not coupons, if a Delaware judge approves the settlement in June. (Yahoo/Reuters, April 12) (Rinaldi class action settlement notice, Iomega website).

May 8 – A definition (via Sony’s Morita and IBM’s Opel). “Litigious (li-TIJ-uhs) adjective: 1. Pertaining to litigation; 2. Eager to engage in lawsuits; 3. Inclined to disputes and arguments. [From Middle English, from Latin litigiosus from litigium, dispute.]

“‘My friend John Opel of IBM wrote an article a few years ago titled ‘Our Litigious Society,’ so I knew I was not alone in my view that lawyers and litigation have become severe handicaps to business, and sometimes worse.” — Sony co-founder Akio Morita (Wordsmith.org “A Word a Day” service, scroll to Jan. 26).

May 8 – “Halt cohabiting or no bail, judge tells defendants”. “A federal judge in Charlotte is using a 19th-century N.C. law banning fornication and adultery, telling defendants they won’t be freed on bond until they agree to get married, move out of the house or have their partner leave. U.S. Magistrate Judge Carl Horn won’t release a criminal defendant on bond knowing that he or she will break the law. And that includes North Carolina’s law against unmarried couples cohabiting, placed on the books in 1805.” (Eric Frazier and Gary L. Wright, Charlotte Observer, April 4) (see also May 18, 2000).

May 7 – Says cat attacked his dog; wants $1.5 million. “A San Marcos man has filed a $1.5 million claim against the city because a cat who lives in the Escondido Public Library allegedly attacked his dog.” Richard Espinosa says he was visiting the library on November 16 with his assistance dog Kimba, a 50-pound Labrador mix, when the feline, named L.C. or Library Cat because it’s allowed to live in the building, attacked the dog inflicting scratches and punctures. As for Espinosa, wouldn’t you know, he “was emotionally traumatized and suffers from flashbacks, terror, nightmares and other problems.” Four lawyers declined to take his case and he finally filed it himself. “The cat was apparently uninjured.” (Jonathan Heller, “Escondido gets $1.5 million claim; library cat allegedly assaulted dog”, San Diego Union-Tribune, May 4) (see letter to the editor from Espinosa, June 13).

May 7 – Judge throws out hog farm suit. As was reported a few months ago, a number of environmental groups aim to take a lesson from the tobacco affair by using mass lawsuit campaigns to pursue various goals which they haven’t been able to secure through the legislative and electoral process. To do this they’ve teamed up with tobacco-fee-engorged trial lawyers; the nascent alliance got lots of publicity in December with one of its first projects, suing Smithfield Farms for billions over the nuisance posed by large-scale hog farming, a project apparently masterminded by Florida trial lawyer Mike Papantonio (tobacco, asbestos, fen-phen) and with suits against chicken and livestock operations promised in later phases of the effort (see Dec. 7, 2000). Far less publicity has been accorded to Judge Donald W. Stephens’s ruling in March which threw out the first two lawsuits as having failed to state a legal claim against the large hog packer and raiser. (Appeal is expected.) Power scion Robert F. Kennedy, Jr. is still on board with his headline-ready name to front for the lawyers in the press, but he doesn’t seem to have gone out of his way to call attention to the adverse ruling (“North Carolina judge dismisses lawsuits against hog producer”, AP/MSNBC, March 30; Scott Kilman, “Environmental groups target factory-style hog farm facilities”, Wall Street Journal/MSNBC, undated; Smithfield press release, March 29).

MORE: National Public Radio, “Living on Earth” with Steve Curwood and reporter Leda Hartman, week of Feb. 16; Water Keeper Alliance (Kennedy’s group), hog campaign homepage with list of lawyers (J. Michael Papantonio, Steven Echsner and Neil Overholtz, Levin, Papantonio, Pensacola, Fla.; Thomas Sobol, Jan Schlichtmann, Steven Fineman and Erik Shawn of Lieff, Cabraser, New York and Boston; F. Kenneth Bailey, Jr. and Herbert Schwartz of Williams Bailey, Houston; Howard F. Twiggs and Douglas B. Abrams of Twiggs, Abrams, (Raleigh, N.C.), Ken Suggs and Richard H. Middleton, Jr. of Suggs, Kelly & Middleton (Columbia, S.C.), Joe Whatley, Jr., Birmingham, Ala.; Kevin Madonna, Chatham, N.Y.; Stephen Weiss and Chris Seeger, New York; Charles Speer, Overland Park, Kan.; Hiram Eastland, Greenwood, Miss.) Compare “Conoco Could Face $500 Million Lawsuit Over Bayou Water Pollution Problems”, Solid Waste Digest: Southern Edition, March 2001 (page now removed, but GoogleCached) (Papantonio campaign in Pensacola).

May 7 – Website accessibility law hits the U.K. “Scottish companies were warned yesterday that they could face prosecution if their websites are not accessible to the disabled. Poorly-designed websites are often incompatible with Braille software.” (more) (yet more) (Pauline McInnes, “Firms warned on websites access”, The Scotsman, April 19).

May 4-6 – By reader acclaim: “Vegetarian sues McDonald’s over meaty fries”. Seattle attorney Harish Bharti wants hundreds of millions of dollars from the burger chain for its acknowledged policy of adding small amounts of beef flavoring to its french fries, which he says is deceptive toward vegetarian customers (ABCNews.com/ Reuters, May 3). Notable detail that hasn’t made it into American accounts of the case we’ve seen, but does appear in the Times of India: “When he is not practising law in Seattle, Bharti says he teaches at Gerry Spence’s exclusive College for Trial Lawyers in Wyoming”. Does this mean you can be a predator without being a carnivore? (“US Hindus take on McDonald’s over French fries”, Times of India, May 3) (see also Aug. 30, 1999).

May 4-6 – Mississippi’s forum-shopping capital. The little town of Fayette, Miss., reports the National Law Journal, is “ground zero for the largest legal attack on the pharmaceutical industry” in memory. Tens of thousands of plaintiffs are suing in the Fayette courthouse over claimed side effects from such drugs as fen-phen, Rezulin, and Propulsid, not because they’re local residents (most aren’t) but because the state’s unusually lax courtroom rules allow lawyers to bring them in from elsewhere to profit from the town’s unique brand of justice. The townspeople, nearly half of whom are below the poverty level and only half of whom graduated from high school, “have shown that they are willing to render huge compensatory and punitive damages awards”. Among other big-dollar outcomes, Houston plaintiff’s lawyer Mike Gallagher of Gallagher, Lewis, Serfin, Downey & Kim “helped win a $150 million compensatory damages verdict for five fen-phen plaintiffs in Jefferson County on Dec. 21, 1999. The jury deliberated for about two hours…” There’s just one judge in Fayette County to hear civil cases, Judge Lamar Pickard, whose handling of trials is bitterly complained of by out-of-town defendants. As for appeal, that route became less promising for defendants last November when plaintiff’s lawyers solidified their hold on the Mississippi Supreme Court by knocking off moderate incumbent Chief Justice Lenore Prather.

Lots of good details here, including how the Bankston Drug Store, on Main Street in Fayette since 1902, has the bad fortune to get named in nearly every suit because that tactic allows the lawyers to keep the case from being removed to federal court. Plaintiff’s lawyer Gallagher, who also played a prominent role in the breast implant affair, says criticism of the county’s jurors as easily played on by lawyers “‘sounds racist’, since the jury pool is predominantly black”. He also brushes off defendants’ complaints about forum-shopping with all the wit and sensibility at his command: “They want to tell me where I can sue them for the damage they caused? They can kiss my a**.” (Mark Ballard, “Mississippi becomes a mecca for tort suits”, National Law Journal, April 30).

May 4-6 – Agenda item for Ashcroft. Attorney General Ashcroft could make a real difference for beleaguered upstate New York communities by backing off the Justice Department’s Reno-era policy of avid support for revival of centuries-dormant Indian land claims, which went so far as to include the brutalist tactic of naming as defendants individual landowners whose family titles had lain undisturbed since the early days of the Republic (see Oct. 27, 1999, Feb. 1, 2000) (John Woods, “Long-Running Indian Land Claims in New York May Hinge on Ashcroft’s Stance”, New York Law Journal, April 16).

May 3 – “Family of shooting victim sue owners of Jewish day-care center”. If the gunman doesn’t succeed in wiping out your institution, maybe the lawyers will: “The parents of a boy who was shot by a white supremacist at a Jewish day-care center have filed a lawsuit claiming the center’s owners failed to provide the necessary security to prevent hate crime attacks.” Buford O. Furrow fired more than 70 shots at the North Valley Jewish Community Center in Los Angeles on Aug. 10, 1999 (AP/CNN, May 1).

May 3 – Update: mills of legal discipline. They grind slow, that’s for sure, but does that mean they grind exceeding fine? A disciplinary panel has ended its investigation of New Hampshire chief justice David Brock, letting him off with an admonishment, in the protracted controversy over the conduct (see April 5 and Oct. 11, 2000) which also led to his impeachment and acquittal in the state senate; Brock’s lawyer had threatened to sue the disciplinary panel if it continued its probe, and a dissenting committee member called that lawsuit-threat “intended to intimidate” (“Threat of lawsuit ended Brock case”, Nashua Telegraph, April 23; Dan Tuohy, “Finding bolsters call for reform”, Foster’s Daily Democrat, April 26). A hearing committee of the District of Columbia Board on Professional Responsibility has recommended that Mark Hager be suspended for three years over the episode [see Feb. 23, 2000] in which he and attorney John Traficonte “began negotiations with [drugmaker] Warner-Lambert to make refunds to consumers, and to pay himself and Hager $225,000 in exchange for which they would abandon their representation, agree to hold the agreement and fee secret from the public and their clients, and promise not to sue Warner-Lambert in the future. Traficonte and Hager accepted the offer without first obtaining the approval of any class member.” The disciplinary committee “found that Hager’s conduct was shockingly outrageous, and that his status as a law professor was a factor in aggravation.” We’ve seen no indication that anyone in the administration of American University’s law school, where Hager continues to teach, has expressed the smallest misgivings about the example that students are supposed to take from his conduct (Denise Ryan, law.com D.C., Board on Professional Responsibility No. 31-98, In re Hager, issued Nov. 30, 2000). (Update Jul. 19, 2003: Hager resigns AU post in April 2003). And off-the-wall Michigan tort lawyer and politician Geoffrey Fieger faces charges before the state attorney grievance commission following reports that he used his radio show to unleash “an obscenity-laced tirade” against three state appeals judges (“Fieger Under Fire For Alleged Swearing Fit”, MSNBC, April 17).

May 3 – “Valley doctors caught in ‘lawsuit war zone'”. A report from the Texas Board of Medical Examiners finds medical malpractice cases approximately tripled in 1999 in Texas’s McAllen-Brownsville region compared with the previous year. Among short-cuts lawyers are accused of employing: suing doctors without an authorization from the client, and hiring as their medical expert a family doctor who charges $500 an hour and has reviewed 700 cases for lawyers, second-guessing the work of such specialists as cardiovascular surgeons, but has not herself (according to an opposing lawyer) had hospital privileges since 1997. (James Pinkerton, Houston Chronicle, March 2 — via Houston CALA). State representative Juan Hinojosa has introduced a bill that would allow doctors and hospitals to countersue lawyers and clients who file suits with reckless disregard as to whether reasonable grounds exist for their action. (“Doctors seek new remedy to fight frivolous lawsuits”, CALA Houston, undated).

May 2 – Suing the coach. “A teenager, who felt she was destined for greatness as a softball player, has filed a $700,000 lawsuit against her former coach, alleging his ‘incorrect’ teaching style ruined her chances for an athletic scholarship. Cheryl Reeves, 19, of Rambler Lane in Levittown, also alleges that her personal pitching coach, Roy Jenderko, of Warminster, not only taught her an illegal style of pitching but also used ‘favorite players’ which resulted in demoralizing the teen. ” (Dave Sommers, “Legal Pitch”, The Trentonian, May 1).

May 2 – Trustbusters sans frontieres. Truly awful idea that surfaced in the press a while back: a bipartisan group of senators led by Sen. Arlen Specter (R-Pa.) say they’re trying to pressure the Bush administration to file an antitrust suit against the Organization of Petroleum Exporting Countries, accusing it of restricting the output of oil in order to raise prices to consumers in countries like ours — which is, of course, OPEC’s reason for existence. “Most antitrust and foreign policy experts interviewed say they cannot imagine a scenario in which such legal action would succeed, or that any president would risk his foreign policy goals for such a lawsuit”, reports the National Law Journal. But even the gesture of inviting unelected judges and unpredictable juries to punish sovereign foreign powers would increase the chances of our landing in a series of confrontations and international incidents that would be at best imperfectly manageable by the nation’s executive branch and diplomatic corps (which cannot, for example, necessarily offer to reverse or suspend court decisions as a bargaining chip).

The United States’s relations with OPEC countries, it will be recalled, have on occasion embroiled us in actual shooting wars, which are bad enough when entered after deliberation on the initiative of those to whom such decisions are entrusted in our system of separation of powers, and would be all the less supportable if brought on us by the doings of some rambunctious judge or indignant jury. Wouldn’t it be simpler for Sen. Specter to just introduce a bill providing that the courts of the United States get to run the world from now on? (Matthew Morrissey, “Senators to Press for Suing OPEC Over Pricing”, National Law Journal, March 1).

May 1 – Columnist-fest. Scourings from our bookmark file:

* Mark Steyn on the Indian residential-school lawsuits that may soon bankrupt leading Canadian churches (see Aug. 23, 2000): (“I’ll give you ‘cultural genocide'”, National Post, April 9). Bonus: Steyn on protectionism, globalization and Quebec City (“Don’t fence me in”, April 19).

* Federalists under fire: there’s a press campaign under way to demonize the Federalist Society, the national organization for libertarian and conservative lawyers and law students. The Society has done a whole lot to advance national understanding of litigation abuses and overuse of the courts — could that be one reason it’s made so many powerful enemies? (Thomas Bray, “Life in the Vast Lane”, OpinionJournal.com, April 17; Marci Hamilton, “Opening Up the Law Schools: Why The Federalist Society Is Invaluable To Robust Debate”, FindLaw Writ, April 25; William Murchison, “In Defense of the Federalist Society”, Dallas Morning News, April 25).

* A Bush misstep: the White House has named drug-war advocate and Weekly Standard contributor John P. Walters as head of the Office of National Drug Control Policy. “Walters, almost alone among those who have spent serious professional time on drug abuse in America, harbors no misgivings over the fact that we’ve been crowding our prisons almost to the bursting point with nonviolent drug offenders.” (William Raspberry, “A Draco of Drugs”, Washington Post, April 30) (Lindesmith Center).

* “Overreaching IP legal teams kick the firm they supposedly represent”: Seth Shulman of Technology Review on the “patented peanut butter sandwich” case (see Jan. 30). (“Owning the Future: PB&J Patent Punch-up”, May). Also: California judge William W. Bedsworth (“Food Fight!”, The Recorder, March 16).

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October 31 – Foster care abuses: taxpayers to owe billions? Injury lawyers plan a major push to develop damage lawsuits against government on behalf of children harmed under foster care, the New York Times reports. Florida tobacco-fee magnate Robert Montgomery (see Apr. 12) and other movers and shakers are encouraged by “court rulings that make government agencies easier to sue and sizable jury awards in foster care cases”. A lawyer with the National Center for Youth Law, part of the network of legal services groups that philanthropic foundations, organized lawyerdom, and taxpayers have all had occasion to support generously over the years, is cited saying that “groups like his had become more open to alliances with personal injury lawyers”. Suits often allege that different placement choices or more vigorous intervention by social workers might have prevented beatings, neglect or molestation of youngsters in foster care. States fear taking the cases to trial: “They’re very difficult cases to defend in front of juries because juries often have the benefit of 20-20 hindsight,” says a lawyer for the state of Washington, where “government payouts in civil cases in general have quadrupled in six years”. “Some officials, including Kathleen A. Kearney, the secretary of the Florida Department of Children and Families, say such litigation unfairly detracts from continuing efforts to improve child welfare, diverting resources that legislatures, not courts, should control.” (Nina Bernstein, “Foster-Child Advocates Gain Allies in Injury Lawyers”, New York Times, Oct. 27) (reg). See also Aug. 23-24 (billions demanded in lawsuits over Canadian residential schools).

October 31 – Tales from the tow zone. “A Dallas-area jury has ordered Chrysler Corp. and a local dealership to pay $83.5 million to a Texas couple who charged that the defendants misled them on the towing capacity of the Dodge Ram pickup truck they bought.” The couple did not suffer physical injury from the towing-force deficit, but argued that because the vehicle turned out not to be strong enough to pull horse trailers, they lost their equine transport business and the husband subsequently suffered depression. Nearly all of the award, $82.5 million, was in punitive damages; Texas’s limits on that category of damages, much deplored by trial lawyers, make it likely that the actual payout to the couple will not exceed $2.4 million, assuming they prevail in Chrysler’s planned appeal. (Margaret Cronin Fisk, “Jury Tags Chrysler for $83 Million”, National Law Journal, Oct. 5).

October 31 – Fat tax proposed in New Zealand. The proposal, floated by public health activists down under in the country’s Medical Journal, got a cool reception from the Kiwi health minister as well as from people in the farming and meat businesses. The idea was hailed as worth considering, however, by a medical adviser to the country’s Heart Foundation. It would apply a saturated-fat tax to such food items as butter, cheese, meat and milk, the “full-cream” variety in particular (Al Gore isn’t the only one campaigning against the “top one percent”). (Martin Johnston, “Fat-tax plan to reduce disease”, New Zealand Herald, Oct. 30).

October 30 – Netscape “Best of ‘What’s Cool'”. Last month Overlawyered.com was one of the picks on Netscape’s popular “Cool Sitings of the Day”, and this weekend we were featured in its “Best of ‘What’s Cool'”, with another flood of newcomers resulting.

October 30 – Ohio high court races. Buckeye State voters next week will decide on the hotly contested re-election bid of Democratic state supreme court justice Alice Robie Resnick, a key member of the court’s 4-3 liberal majority; also seeking re-election is Republican Deborah Cook, who has voted on the opposite side from Resnick in several controversial cases. Bone of contention number one is last year’s decision in which Resnick and three other justices relied on a strained reading of the state constitution to strike down the liability reforms passed by that state’s legislature (see Aug. 17 and Aug. 18, 1999), a move highly welcome to the Ohio Academy of Trial Lawyers, which has supported Resnick’s re-election. Also at issue are a series of other Ohio Supreme Court decisions that have outraged the state’s business community, including a line of cases holding that commercial auto insurance policies by which companies cover their employees’ work-related driving can be made to pay for accidents suffered by the employees and their families in their own cars on their own time. (Scott-Pontzer v. Liberty Mutual (Ohio PIA); Charles T. McConville, “The Ohio Supreme Court, Your Business and Its Insurance”, Ohio Matters (Ohio Chamber of Commerce), Nov./Dec. ’99; Ohio Chamber of Commerce Court 2000 page). In some ways the hard-fought Ohio contest is the mirror image of the one in Michigan, where trial lawyers and labor unions have mounted a major effort to knock off conservative justices Clifford Taylor, Robert Young and Stephen Markman in next week’s vote (see Aug. 25-27, May 9, Jan. 31).

MORE: editorials, Cincinnati Post, Sept. 30, and Cleveland Plain Dealer, Oct. 29; Spencer Hunt, “Business, GOP work to boot Resnick”, Cincinnati Enquirer, June 25; William Glaberson, “A Spirited Campaign for Ohio Court Puts Judges on New Terrain”, New York Times, July 7 (reg); websites of Justice Alice Robie Resnick (incumbent) and challenger Terrence O’Donnell, Justice Deborah Cook (incumbent) and challenger Tim Black. The Ohio Chamber of Commerce has come under fire for supporting a group that has run hardball advertising against Resnick: Lee Leonard, “Sideswiping political ads ought to be ruled out of bounds”, Columbus Dispatch, Oct. 23; Randy Ludlow, “Resnick attack is ugly”, Cincinnati Post, Oct. 21 (DURABLE LINK).

October 30 – Cornfield maze as zoning violation. Zoning authorities in Snydersville, Pa. have sent a violation notice to father and son farmers Jake and Stuart Klingel. Their offense? Carving a maze through their cornfield and opening it to the public. (“Going in Circles?”, AP/Fox News, Oct. 6).

October 30 – $20 million for insolvency trustee? “Former Securities & Exchange Commission chairman Richard Breeden, 50, could make more than $20 million as the court-appointed trustee of Syracuse’s fraudulent, failed Bennett Funding Group. While a judge has the final say, Breeden could get a statutory 3% of what he recovers for creditors, less $642,000 in annual salary and expenses, and less a one-time $250,000 bonus. To investors facing an 82% haircut, he snaps, ‘I’m worth every penny of it.'” (Dorothy Pomerantz, “The Informer: Make That Breeden Funding”, Forbes, Sept. 4).

October 27-29 – “Lawyer take all”. Just as lawyers used to be barred from taking contingency stakes in their clients’ lawsuits lest they be tempted to push overly aggressive positions on their behalf, so they used to be discouraged from taking equity stakes in businesses they advised, lest they be tempted to assist in regulatory evasion or sharp financial practices. “In time, the dollar signs got bigger than the ethical misgivings.” Now, following major windfalls obtained by California tech lawyers who took holdings in clients’ stock, big law firms on the East Coast are rushing to emulate the practice. (Chana Schoenberger, Forbes, Oct. 16).

October 27-29 –“Yankees Must Step Up to Plate in Civil Rights Action”. A judge has ordered to trial a case filed against the New York Yankees by a black woman who says she was told she could not enter the stadium restaurant wearing only a tank top, although once inside she noticed white women dressed in that manner. “The club’s dress code, which is printed outside the entrance to the club and on the back of the admission pass, prohibits the wearing of ‘tank tops . . . thongs or any other abbreviated attire.'” Lawyers for the Yankees said the plaintiff, V. Whitney Joseph, was let into the restaurant after she went back to her car and put on a t-shirt, and said the brief inconvenience should not be enough to support a federal lawsuit, but a judge said Joseph should be allowed to reach a jury with her claim that the dress code had been inconsistently applied. (Michael A. Riccardi, New York Law Journal, Oct. 20).

October 27-29 – Judge rules against Tattered Cover. Fears about free expression notwithstanding, a Denver judge has ruled that the city’s famed Tattered Cover book store can be forced to turn over customer purchase records to narcotics police seeking to identify the owner of two books on drug manufacturing found at the scene of an illegal methamphetamine laboratory (see April 28). (Susan Greene, “Judge: Cops can seize bookstore records”, Denver Post, Oct. 21).

October 27-29 – Patients’ Bill of Wrongs. “The ground is thus set for an uneasy alliance between the physicians who staff HMOs and MCOs and health care consumer organizations. Both, for different reasons, would like to neuter the managed care organizations by removing from their management teams the power to control physician practice. Yet by so doing, they do more than remove excessive intervention. They necessarily compromise, perhaps fatally, the critical cost containment functions that these organizations must supply if they are to survive at all. . . . In the short run, physicians will love the creation of a system that promises a restoration of their autonomy and insulates them from the costs of their mistakes after they settle their case out cheaply. . . . But in truth a rather different agenda is at work here, which becomes evident from looking at the one exclusion to the proposed Patients Bill of Rights. It seems not to apply to the United States Government in its role as the provider of health care services through Medicare or Medicaid. The proposals therefore are designed to cripple the private programs which compete in the political arena with government-supplied health care.” (Richard Epstein (University of Chicago Law School), “Managed Care Liability”, Manhattan Institute Civil Justice Memo #39, Sept.)

October 26 – Lab mice paperwork. “In a couple of years, medical progress could come to a screeching halt when it slams up against new regulations to be written by the Agriculture Department. The regs will extend the Animal Welfare Act to the millions of mice, rats, and birds used in lab experiments. When that happens, researchers will have to file papers for each individual critter. By the time they get through with the paperwork they might have just enough time to turn out the lights before going home.

“This all results from a settlement the Department made with the Alternatives Research and Development Foundation (an arm of the Anti-Vivisection Society) and Kristine Gausz, a psychology student at (really) Beaver College. Ms. Gausz said in an affidavit that the sight of rats being ‘subject to deplorable living conditions’ was ‘an assault on her senses’ that left her ‘personally, aesthetically, emotionally, and profoundly disturbed.’… Perhaps the next thing medical researchers should try to find is a cure for the common lawsuit.” (“Leash lawsuit” (editorial), Richmond Times-Dispatch, Oct. 23).

October 26 – Drunk-driving standards nationalized. Dealing a blow to principles of local control as well as rural hospitality, the federal government will arm-twist all states into adopting 0.08 blood alcohol standards by 2004 under legislation just signed by President Clinton as part of a transportation bill. “The .08 percent limit is clearly only a way station on the road to making life miserable for social drinkers. MADD’s [Mothers Against Drunk Driving's] Web site now calls for lowering the BAC limit to .05 percent,” writes Providence Journal columnist Froma Harrop (“Phonies for .08 – Harassment of social drinkers”, Oct. 8; “Clinton signs bill to lower drunken driving standards”, AP/Dallas Morning News, Oct. 23).

October 26 – New unfairness for old. Don’t assume voters or politicians are anti-gay just because they harbor doubts about setting up sexual orientation as a new category in job bias law, as would happen under the proposed Employment Non-Discrimination Act (ENDA). “Why does the term ‘special rights’ have such political potency? Because by now most people have had personal experience with the way employment discrimination laws operate. Members of protected classes are not equal, they’re super-equal, enjoying extra job security and other job-related privileges not afforded the average worker.” Quotes our editor (Robyn Blumner, “Laws Aimed at Correcting Discrimination Have Created New Types of Unfairness”, Tribune Media/Salt Lake Tribune, Oct. 20). See also Nigel Ashford, “Equal Rights, Not Gay Rights“, reprinted at Independent Gay Forum.

October 25 – “Power lawyers may sue for reparations”. More details about the plans of Willie Gary and other lawyers to file lawsuits demanding trillions of dollars in black reparations (see Letters, Oct. 19). Planned are “a series of suits against the U.S. government, states, corporations and individuals who continue to benefit from slavery’s aftermath.” Participants “met last month in Washington at Transafrica, a lobbying group that monitors U.S. policy in Africa and the Caribbean, and plan to continue meeting monthly until a strategy is formed.” Participants include Richard Scruggs, Johnnie Cochran, Jr., Harvard Law’s Charles Ogletree, author Randall Robinson, “Alexander Pires of Washington, who won a $1 billion settlement for black farmers in a discrimination case against the U.S. Department of Agriculture; … and Dennis Sweet of Jackson, Miss., who won a $400 million settlement in the fen-phen diet drug case last year.” Sweet “also plans to sue history book publishers that give blacks short shrift,” which suggests that he himself may give the First Amendment short shrift. “We are a nation of litigators. That’s what we do. We go to court,” said Harper’s editor Jack Hitt. (Amy Martinez, Palm Beach Post, Oct. 23).

October 25 – “Laptop lawsuit: Toshiba, feds settle”. Piling on the $1 billion-plus class action settlement, the U.S. government is now extracting money from Toshiba over its flawed laptops. Still in very short supply: evidence that the glitch caused data loss in any real-world situations (Reuters/ZDNet, Oct. 13, with reader discussion).

October 25 – South Carolina tobacco fees: how to farm money. Lawyers who represented the state of South Carolina in the Medicaid-recoupment litigation will get a whopping $82.5 million; it wasn’t easy to argue that the mostly pro-tobacco Palmetto State had been instrumental in nailing the cigarette industry, but the lawyers found a golden rationale for large fees in their having been assigned to speak up for the interests of tobacco farmers like those in South Carolina. Since lawyers representing late-to-sue North Carolina, Kentucky and Tennessee (see May 2) are also reportedly making the we-represented-farmers argument in their own fee quest, the tobacco caper may go down in history as the most richly compensated instance ever of farmer “representation” — with no need for any control of the attorneys by actual farmers, of course. The secretive arbitration panel voted along its now-familiar two-to-one lines, with dissenter Charles Renfrew charging that the award was a windfall and “grossly excessive”, but as usual being outvoted by the other two panel members. (“Panel says $82.5 million lawyers’ fees are fair”, AP/CNN.com, Oct. 24).

October 24 — Turn of the screw. Revealing article in Philadelphia Inquirer magazine tells the story in detail of how lawyers whipped up mass litigation against companies that make screws used for bone-setting in spinal and other orthopedic surgery, alleging that the devices caused all manner of dreadful injuries. As so often the mass client recruiting got under way in earnest after a scary and misleading report on network TV, this time on ABC’s “20/20″, attacked the product as unsafe. Since most orthopedic surgeons continued to favor the screws’ use, lawyers turned for assistance to a Texas dermatologist who had gone to prison and lost his medical license in the 1980s for illegal distribution of prescription drugs, and who after release had set up shop as a go-between for lawyers who needed medical experts. After this physician “attended an organizational meeting with plaintiffs’ lawyers in Philadelphia, about 20 lawyers with bone screw cases enlisted his services,” and he proceeded to locate for them a Florida orthopedic surgeon who then cranked out about 550 opinions for the lawyers’ use — without actually examining the patients on whose behalf they were suing. “Invariably, [he] concluded, with scant explanation, that bone screws caused injury.” Eventually, Judge Louis Bechtle barred all 550 of the Florida doctor’s reports after one of the doctor’s employees testified that she’d been ordered to destroy tapes of telephone calls in which the Texas dermatologist/expert recruiter had dictated the language of the medical reports he expected the doctor to submit.

According to other sworn depositions, plaintiffs who rejected lawyers’ entreaties to sue were surprised to learn that cases had been filed in their names anyway; this happened, for example, to patients from California, Pennsylvania and Minnesota who did not blame the screws for their health problems. “There were no consequences for the lawyers who filed those suits.” Most of the story is told through the eyes of the best-known defendant in the cases, a company named Sofamor Danek, which chose to fight rather than pay; eventually it enjoyed outstanding success in repelling the suits, losing only one of 3,200 cases it faced, that one currently on appeal. But its vindication has come at a steep cost: $75 million in legal expenses, and who knows what unquantifiable costs. No wonder one of its competitors, AcroMed, gave up and agreed to pay $100 million to resolve 5,000 of the actions. (L. Stuart Ditzen, “The bone screw files”, Inquirer magazine (Philadelphia Inquirer), Aug. 27; David F. Fardon, M.D., “President’s Message”, North American Spine Society, Jan. 1997; “Third Circuit Denies Request for Mandamus Relief in Pedicle Screw Suits”, NASS, Jan. 1998).

MORE: The Health Research Group of Ralph Nader’s Public Citizen established a clearinghouse for plaintiff’s lawyers suing screw manufacturers, among other clearinghouses it runs for plaintiff’s lawyers, and whose goals include that of “generat[ing] media attention for the pertinent issue”. Among support groups for those who believe themselves victimized by the devices is Pedicle Screw’d. The North American Spine Society, a professional organization, was named as a defendant in many lawsuits because of its educational seminars on the use of screws, which lawyers charged were really a conspiracy to promote the devices.

October 24 – Monitor vote fraud, get sued for “intimidation”. Although ballot box irregularities, 109-percent precinct turnouts and other indicators of vote fraud continue as a very definite problem around the country, “anyone who combats vote fraud comes in for abuse. The Justice Department has become expert at raising cries of ‘voter intimidation’ at any attempt to monitor polling places. Last week Justice dispatched investigators to Fort Worth, Texas, merely because a political activist there distributed leaflets alleging Democrats were casting absentee ballots on behalf of shut-in voters. When the Miami Herald won a Pulitzer Prize for its reporting on the fraud in that city’s mayoral election, the Pulitzer jury noted it had been subject to ‘a public campaign accusing the paper of ethnic bias and attempted intimidation.’ Local officials who’ve tried to purge voter rolls of felons and noncitizens have been hit with nuisance lawsuits alleging civil-rights abuse.” (John Fund, “Political Diary: Phantom Voters”, Opinion Journal (WSJ), Oct. 23).

October 23 – Election roundup. “If you’re a swing voter, vacillating between Bush and Gore, here’s one compelling reason to vote for the former: tort reform,” writes New York Press editor Russ Smith in his “Mugger” column. He cites the recent hot-pickle case (see Oct. 10) and says the “simple solution” is loser-pays (“Gore’s Next Move?”, Oct. 16 (see item #2). “If trial lawyers had a dashboard saint, it would be Ralph Nader“, but this time around they’re not giving him money, lest they take votes away from their favorite: despite Gore’s selection of a running mate with strong legal reform credentials, “trial lawyers are so anxious to see the vice president elected, I doubt very seriously if [Lieberman] will make one bit of difference,” says ATLA president Fred Baron. (Bob Van Voris, “The Politics of the Practical”, Corporate Counsel/Law.com, Oct. 19). Governor Bush’s proposal to protect educators against needless lawsuits wins applause from New York Post columnist Arnold Ahlert (“Dubya Stood Up To Parents, Too”, Oct. 20). If Vice President Gore in his current demagoguish attack-mode were handed a big bill for his child’s orthodontia, he might start railing against “Big Dentistry”: “In the end, Gore’s cartoonish view of big business does a disservice both to him and to the American people. He knows life is more complicated than he’s letting on,” write Steven Syre and Charles Stein of the Boston Globe (“Gore proves big on bashing big business”, Sept. 28). And in West Virginia, where asbestos trial lawyer Jim Humphreys had previously been thought a prohibitive favorite for a U.S. House seat after spending an eye-popping $5 million on his campaign, Republican candidate Shelley Moore Capito, daughter of a former governor, is putting up a surprisingly strong race and might pull off an upset in what’s shaping up as an unusually strong year for the GOP in the mountain state (Matthew Rees, “Will West Virginia Go Republican?”, Weekly Standard, Oct. 23, not online).

October 23 – Wheelchair marathon suit. After getting sued last year, the New York Road Runners Club, which organizes the New York City Marathon, agreed to establish a separate division of the race for entrants in wheelchairs, and award trophies to the winners. That wasn’t enough to keep it from being sued again, this time by six disabled entrants who complained that the club violated the Americans With Disabilities Act “by moving the marathon start time for 60 disabled people not in wheelchairs from 8 a.m. to 8:40 a.m.”, a less convenient time for some entrants since it might require them to finish after dark. The man coordinating the wheelchair side of the 26.5 mile event, which will be held November 5, called the new lawsuit “unbelievable” and “truly frivolous.” (“Lawyer Criticizes ‘Disabled’ Suit”, AP/FindLaw, Oct. 19).

October 23 – No breast cancer link. A major federal study recently helped lay to final rest fears of an association between silicone breast implants and breast cancer, yet the federal agency in charge seems to have gone out of its way not to publicize the reassuring results. (Denise Dowling, “Covering up the breast”, Salon.com, Oct. 9). See also Nov. 29; Stuart Bondurant et al, “Safety of Silicone Breast Implants”, Institute of Medicine, 1999; “Off the Lawyers’ Reservation” (profile of Kathleen Anneken), The American Enterprise, Sept./Oct. 1998).

October 20-22 – Product liability criminalized? Green presidential candidate Ralph Nader has called for criminal prosecutions in the Firestone case, where failed tires have been blamed for more than 100 highway deaths. “A Harvard-Brookings Institution study estimates that the downsizing of vehicles caused by fuel economy standards results annually in 2,200 to 3,900 deaths,” notes a Detroit News editorial. “Consumer advocates like Mr. Nader support these fuel efficiency standards and want them increased, which could kill more people. The question becomes: Should certain consumer advocates be accused of criminal neglect?” (“How Many Deaths Are Truly Criminal?”, Detroit News, Oct. 14). Cartoonist Henry Payne, of the same paper, has a similar take on the matter of federal mandating of airbags, which turned out to harm numerous children: Oct. 12 (via Junk Science).

The U.S. Congress has rushed to act before its adjournment on a new federal law criminalizing some product safety matters, but the Federalist Society Criminal Law & Procedure Group earlier this month sponsored a discussion on Capitol Hill which took a dim view of the idea. “Most criminal statutes punish only where there is evidence beyond a reasonable doubt that a prohibited act was performed with mens rea, the guilty mind. … the proposed legislation is broad in its importation into penal law of the state of mind and knowledge standards of civil products liability law,” argued George Terwilliger (White & Case). Michael Krauss (George Mason U.) pointed out that the increased use of criminal charges in aviation accidents is now seriously hampering investigations after crashes given participants’ reluctance to cooperate and right to invoke the Fifth Amendment against having to testify in cases of criminal (as opposed to civil) jeopardy (see Sept. 6). Legislation to stiffen criminal penalties in product cases has passed both Houses this month, though its terms do not go as far as some of the earlier proposals. (“U.S. House Passes Tire Legislation”, Reuters/FindLaw, Oct. 11). See also Bob Van Voris, “Tire Deaths: Criminal Acts?”, National Law Journal, Sept. 11.

October 20-22 – CueCat’s legal claws. The CueCat is a new little gadget that works on the principle of a personal barcode scanner; its maker has sent it out free to subscribers of Forbes and Wired, Radio Shack catalogue customers, and others, for the purpose of making advertising more interactive (you scan a barcode on the ad, and a related webpage comes up in your browser). Realizing that a working personal barcode scanner would have many uses other than ad-linking, Linux programmers promptly reverse engineered the device and published code which makes the CueCat usable for other scanning tasks, such as keeping inventories. CueCat’s maker, a company called Digital Convergence, objects to the reverse engineering and has also made legal rumblings hinting that in its view ordinary consumers may not have a right to use the device for purposes other than the intended one — even though the general rule is that if someone sends you an item through the mails for free, you’re at liberty to use it as you wish. (Neil McAllister, “The Clause of the CueCat Legal Language Could Shut Down Hardware Tinkerers”, SFGate, Oct. 11).

October 20-22 – Sweepstakes, for sure. Last month class action lawyers extracted a $33 million settlement from American Family Publishers, plus $8 million in legal fees, over allegedly deceptive practices in its magazine-selling sweepstakes. “Refunds will be distributed among the more than 143,000 people who filed claims. The refunds will be allocated in proportion to the claimants’ purchases in excess of $40 per year or ‘their total purchases influenced by the belief that a purchase was either necessary to win or enhanced their chances of winning,'” though it is not explained how it will be possible to verify claimants’ self-reports of having been influenced by such beliefs. Among the plaintiff’s-side law firms expected to split the fees are the Belleville, Ill. firm of Steven Katz (see Nov. 4, 1999) and San Francisco’s Lieff, Cabraser. Time Inc., a defendant in the action and the owner of sweepstakes firm Magazine Associates, will be footing the bill; American Family Enterprises is in Chapter 11 bankruptcy. (Mary P. Gallagher, “Sweepstakes Class Action Settles for $33M, and $8M in Legal Fees”, New Jersey Law Journal, Sept. 19).

October 20-22 – ABA as liberal lobby. Boston Globe columnist Jennifer Braceras says it’s past time to end the American Bar Association’s gatekeeper status in accrediting law schools: “the ABA is not a trade association dedicated to preserving the integrity of the legal profession [but] a political lobbying group that represents the interests of a small, but powerful, liberal elite.” (“Call the ABA what it is: a liberal lobbying group”, Oct. 19).


August 10 – Coffee-spill suits meet ADA. In Vallejo, California, a woman is suing McDonald’s, “saying she suffered second-degree burns when a handicapped employee at a drive-thru window dropped a large cup of hot coffee in her lap. …The suit said that the handicapped employee couldn’t grip the cardboard tray and was instead trying to balance it on top of her hands and forearms when she dumped the coffee on Aug. 25, 1999,” scalding Karen Muth, whose lawyer, Dan Ryan, told a local newspaper that she’s entitled to between $400,000 and $500,000. “We recognize that there’s an Americans with Disabilities Act, but that doesn’t give them the right to sacrifice the safety of their customers,” he said. (“Woman sues McDonald’s over spilled coffee”, AP/SFGate, Aug. 7). And British solicitors have organized 26 spill complainants into a group suit against the same chain over the overly piping nature of its beverages: “Hot coffee, hot tea and hot water are at the centre of this case. We are alleging that they are too hot,” said Malcolm Johnson of Steel and Shamash, a London law firm. (“McDonald’s faces British hot drink lawsuit”, Reuters/FindLaw, Aug. 2) (more on hot beverage suits: July 18; “Firing Squad”, Reason, May 1999 (scroll halfway down in piece); and resulting letters exchange, Aug./Sept. 1999 (scroll to last items), April 4).

August 10 – “Imperfect laws add to danger of perfect storms”. “In an ill-advised attempt to prevent overfishing in the [Gulf of Mexico], the government reduced the red snapper season to a very short nine-day opening” — a “snapper derby”. Unfortunately, menacing weather came up during that brief nine-day window, and snappermen were left with a choice of which risk to run, physical or economic. Most went to sea, “and at least two boats encountered life-threatening conditions. One boat was lost in raging seas off Louisiana.” Alaska suffered a series of avoidable accidents and fatalities under a similar “halibut derby” until it switched to a better system: the sort of individual transferable quotas often recommended by economists (Peter Emerson and Felix Cox, Dallas Morning News, July 25).

August 10 – “Justice, not plunder”. We thought we were hard-liners on the topic of excessive lawyers’ fees, but Washington Post columnist Robert Samuelson goes us one better by proposing a maximum limit of $1 million or $2 million a year as the most anyone could earn from lawyering in a year. It might sound less outlandish if we went back to the old idea of lawyers as “officers of the court” — i.e., a species of civil servants, even if more fancily dressed. (July 27).

August 10 – Welcome readers (especially Daves). Among the diverse sites we’ve noticed linking to us are: Dave Dufour’s site, from Elkhart, Indiana; gasdetection.com, website of “Interscan Corporation, manufacturer of toxic gas detection systems”, which names us “Mike’s Cool Site of the Week”; Bonehead of the Day Award (citing us for material, not naming us as the awardee!); Miss Liberty Film & TV World, Jon Osborne’s newsletter reporting on film and television events of libertarian interest; Dave’s Corner, published by a different Dave from the one above; Peter Brimelow’s vdare.org, with a line-up of authors critical of immigration and multiculturalism; Big Eye — Alternate News Center, assembling many anti-establishment links; Hittman Chronicle, by yet a third Dave, Dave Hitt, whose July number takes a caustic view of the recent Florida tobacco verdict; Adirondacks2000.com (we’re their current “Featured Internet Site”); and Wrisley.com, “An Electronic Magazine for Thinkers” out of South Carolina.

August 8-9 – Senator Lieberman: a sampler. “Miracles happen,” said the Senator on learning that he was going to be the Democratic pick for VP. (Ron Fournier, “Gore Picks Sen. Lieberman for VP”, Washington Post, Aug. 7). As far as legal reform goes, we’d have to agree — for him to be on the same ticket with Al Gore counts as nothing short of a miracle:

“In vetoing this bipartisan product liability reform, the President went against his own White House Conference on Small Business and members of his own party. … Connecticut Democrat Sen. Joseph Lieberman said, ‘the President is dead wrong about this bill.’ And no less a journalistic authority than the Washington Post called the President’s decision to veto the bill, ‘a terrible one.'” (Rep. Dave Hobson (R-Ohio) newsletter, May 3, 1996)

“In complaining about trial lawyers’ influence on the liability bill, Sen. Joseph Lieberman, D-Conn., told the Wall Street Journal: ‘This is a remarkable story of a small group of people who are deeply invested in the status quo who have worked the system very effectively and have had a disproportionate effect.'” (Dallas Morning News, March 28, 1996, available on Nexis, but not online)

“Mr. President, in my view, you can add the civil justice system to the list of fundamental institutions in our country that are broken and in need of repair. … Ultimately it is the consumers who suffer most from the status quo. …

“I did not always support a national or Federal approach to product liability reform or tort reform generally … What changed my mind was listening to people in Connecticut. …

“I would say that our current medical malpractice system is a stealth contributor to the high cost of health care. … There is a well regarded consulting firm called Lewin-VHI. They have stated that hospital charges for defensive medicine were as high as $25 billion in 1991. That is an enormous figure. Basically what they are saying is that as much as $25 billion of the costs — this is not paid by strangers out there, this is paid by each of us in our health insurance premiums — is the result not of medical necessity but because of defensive practice occasioned by the existing medical malpractice legal system.” (Lieberman floor statement, April 27, 1995, reprinted by Health Care Liability Alliance).

When the Senate (temporarily) voted by a one-vote margin to curb the gargantuan fees obtained by trial lawyers for representing states in the tobacco-Medicaid litigation, a step later blocked by opponents, Lieberman was one of four Democrats to buck the party’s trial lawyer supporters by voting yes (Action on Smoking and Health, June 17, 1998, citing New York Times and C-SPAN).

With Sen. Spence Abraham (R-Mich.), Lieberman introduced the proposed Small Business Liability Reform Act of 1999, which would limit the exposure of small businesses to punitive damages and joint liability for non-economic damages in most cases, limit the application of joint and several liability to small businesses, and make it harder to add wholesalers and retailers to lawsuits against manufacturers. The bill has had trouble attracting support from other Democrats, however (World Floor Covering Association website).

With Senator Mitch McConnell (R-Ky.) and Rep. Dick Armey (R-Tex.), Lieberman introduced the Auto Choice Reform Act, bitterly opposed by trial lawyers, which would encourage car owners to opt out from the “pain and suffering” lottery in exchange for lower rates. “According to Joseph Lieberman, a co-sponsor, ‘our auto insurance and compensation laws violate the cardinal rule I think those of us in the business legislating have a duty to follow: to draft our laws to encourage people to minimize their disputes, and to encourage those who do have disputes to resolve them as efficiently, as economically, and as quickly as possible.'” — Bionomics Institute, “Driving Them Crazy”, August 15, 1997, citing Congressional Record, April 22, 1997. Sen. Daniel Patrick Moynihan (D-N.Y.) also supports the idea (Dan Miller, “Auto Choice: Relief for Businesses & Consumers”, Joint Economic Committee).

“Jim Kennedy, press aide for Lieberman, indicated that Nader, a lawyer, is watching out for the interests of his profession. ‘What he’s left out is the trial lawyers’ lobby which is bankrolling the opposition. They have the most to lose and they are the ones making money out of the system,’ he said.” (quoted in States News Service, May 3, 1995, after Ralph Nader attacked the Senator for sponsoring liability reform; available on Nexis, but not online).

Addendum: Although a strong supporter of gun control in general, Lieberman joined Republicans and a minority of Democrats on a 1992 procedural vote in support of preventing the District of Columbia from using liability lawsuits as a means toward that end. (S. 3076, vote #152, July 27, 1992) (DURABLE LINK)

August 8-9 – Break in Florida tobacco-Medicaid fee case? Harvard professor Alan Dershowitz says he’s determined to press suit against the Florida lawyers who extracted $3.4 billion in legal fees in the state’s tobacco-Medicaid settlement, saying they promised him 1 percent, or $ 34 million (see July 17). Dershowitz says he’s acting as “a pro bono who intends to give most of the money to charities.” “Where does he get his numbers? They’re preposterous. He has an ego the size of a mountain,” said an attorney for the lawyer-defendants. “Suing me is a serious mistake,” said Pensacola lawyer Robert Kerrigan, of Dershowitz’s action; we’d call that tone intimidating, under the circumstances. “These guys have chutzpah,” Dershowitz said. “I don’t care how rich these guys are or how many judges’ campaigns [Robert] Montgomery contributes to, I’m fighting back.” And: “Now the public can finally see the inside of the cigarette lawyers industry.” We can’t wait, since the record-breaking Florida fee haul has been shrouded in much secrecy up to now (see April 12) (Cindy Krischer Goodman, “Harvard prof suing lawyers over tobacco settlement”, Miami Herald, Aug. 2).

August 4-7 – Republican convention finale. No mention of legal reform in W’s acceptance speech, but the topic did make its way into the earlier remarks from the podium by Jan Bullock, widow of Democratic Lt. Gov. Bob Bullock (gopconvention.com).

August 4-7 – Now that’s bread. A San Francisco jury has awarded $121 million in punitive damages, atop $11 million in compensatory damages, to 21 black workers at an Interstate Bakeries plant (see July 10). Among the charges were hostile work environment, being subjected to racial slurs, and lack of promotions; one worker testified that he hadn’t been allowed to take Martin Luther King Day off although white workers had been allowed time off to watch the San Francisco Giants play. The company is known for making Wonder bread and Hostess snack cakes. (“‘Wonder Bread’ Workers Get $121 Million in Lawsuit “, Reuters/Yahoo, Aug. 3; “Jury Awards Workers in Bread Case”, AP/FindLaw, July 31) Update: judge reduces award by $97 million (see Oct. 10).

August 4-7 – Update: Hirschfeld convicted, sentenced. Eccentric New York City real estate developer, politician and public figure Abe Hirschfeld has been sentenced to one to three years in prison after being convicted on charges of trying to have his business partner killed. Hirschfeld still faces separate retrial on tax fraud charges, following a jury deadlock after which a mistrial was declared; in that case, Hirschfeld created a sensation by handing each juror a check for $2,500, a step apparently not in violation of any court rule at that time (see Sept. 13, Sept. 17, 1999). The judge in the murder-for-hire case, however, explicitly barred Hirschfeld from bestowing any gratuities on jurors after the case’s conclusion. (Samuel Maull, “Real estate mogul gets sentence of 1 to 3 years”, Phila. Inquirer, Aug. 2; same, Phila. Daily News.)

August 4-7 – “Ease up on kids”. Salt Lake Tribune criticizes school safety hysteria and the resort to suspension or expulsion for behavior that once would have merited a trip to the principal’s office. “Utah’s Legislature passed a law this year requiring that secondary education students be expelled for a year if they bring even a fake weapon to school, and it allows no review process through which real threats can be separated from pranks.” (editorial, July 28)

August 4-7 – Losers should pay. Environmental groups’ use of the courts to seek delays in large-scale development projects — which can inflict huge financial losses through the costs of delay even if the challenges eventually fail on the merits — points up the case for loser-pays principles, including bonding where appropriate, as in a recent Northern California case, argues columnist and Hoover Institution scholar Thomas Sowell. “Of all the ways of making decisions, one of the most ridiculous is putting decisions in the hands of third parties who pay no price for being wrong.” (“Costs and Decisions”, TownHall.com, Aug. 2).

August 4-7 – Take that, .hk and .tw. A Chinese law firm, suing on behalf of a dissatisfied consumer, has hauled Japanese-owned cameramaker Canon into court because some of its subsidiaries’ promotional material, including CD packaging and a website, list Hong Kong and Taiwan as separate “countries” in which it does business. Although Taiwanese have lived for more than fifty years under a government different from that of mainland China, Beijing’s official posture is still that the island is part of one China. Canon (Hong Kong) has apologized in newspaper ads, but the Chongqing Hezong Law Firm says its explanation is unconvincing. (“Canon (under) fire: China sues over Web site’s calling Hong Kong, Taiwan countries”, China Online, Aug. 1)

August 3 – Jury orders “Big Chocolate” to pay $135 billion to obese consumers. Lawyers charged Hershey’s with knowingly adding nuts to lure helpless chocoholic buyers. Keep repeating to yourself: it’s just a parody. … it’s just a parody (for now). … it’s just a parody. The Onion, August 2 (via Arts & Letters Daily). Plus: recently launched legal spoof site, ScaldingCoffee.com, profiles not-quite-true courtroom controversies such as the one over “Tapster”, the new system that allows Internet sharing of dance step patterns, much to the economic detriment of Arthur Murray franchisees (July) (latest).

August 3 – Wednesday’s GOP and legal reform. How many distinct references to litigation reform have come up in the Republican convention proceedings? We counted four on Wednesday evening (all favorable): they came in speeches by California small business owner Hector Barreto, dotcom exec Christina Jones, and, of course, vice presidential nominee Dick Cheney, who praised Gov. George W. Bush for his success in passing legal reform (“Today the legal system [in Texas] serves all the people, not just the trial lawyers.”) Then there was the comment made by the representative of the state of Washington when its turn came in the roll call: in a pointed reference to the Microsoft case, she said the Evergreen State was in favor of “innovation, not litigation”. If you spotted other references, let us know.

August 3 – CSE event in Philly. Citizens for a Sound Economy, which has been calling attention on the campaign trail to legal-system excesses, will be holding an event in Philadelphia today featuring its giant-fish mascot “Sharkman,” a “Who Wants to be a Trial Lawyer Billionaire” contest and more. The purpose is to honor lawmakers and other officials from Alabama, Illinois, Texas, and Florida who’ve stood up to the litigation lobby in their states. Specifics: Thurs. Aug. 3, 2-5 p.m., Maui Entertainment Complex, Pier 53 N. Delaware Ave., Phila. (CSE website). See you there? Adds the CSE website: “On Sunday, Senator [John] McCain [R-Ariz.] invited Sharkman and CSE staff to attend a reception with all of Senator McCain’s national delegates. Senator McCain grew fond of Sharkman during the primaries, often inviting him on stage in New Hampshire and South Carolina.”

August 3 – And what were the damages? An unemployed 56-year-old Los Angeles machinist named Cornell Zachary says he was the victim of a phone-number mixup in which the British pop group Duran Duran mistakenly posted his phone number on the Internet “as the one to call for T-shirts, souvenirs and tickets.” He then was kept running to the phone day and night by a vast number of wrong-number calls from fans of the group. And what were the damages, you ask — since without damages a lawsuit isn’t much of a lawsuit? Well, Zachary’s lawsuit, filed last week, claims he suffered ‘life-threatening high blood pressure episodes,’ nerve damage, sleep disturbance, and permanent health problems … ‘They had me to the point where my doctor told me I could have a stroke.'” Notwithstanding that dire medical advisory, he didn’t ask the phone company to change his number: “I don’t think that I have to change my number,”‘ he explained. “I didn’t make the mistake. I had had the number already over a year.” His suit also asks punitive and exemplary damages and attorneys’ fees. (Sarah Tippit, “L.A. Man Sues Duran Duran for Posting Number on Web”, Yahoo/Reuters, Aug. 1).

August 2 – Tinkerbell trademark tussle. On Friday in federal court in Scranton, Penn., a company called New Tinkerbell Inc. of New York sued the Walt Disney Company for trademark infringement of the registered trademark “Tinkerbell”, of which it says it and its affiliates are the exclusive lawful owners and licensees. The gossamer-winged character, whose continued existence is made possible only by observers’ willingness to suspend their rational disbelief in her (which already gives her a lot in common with many phenomena of the legal system) dates back to J. M. Barrie’s children’s classic Peter Pan, which has now fallen out of copyright and into the public domain, but the New York company says that it obtained the rights to use her name in commerce in 1952, a year before Disney released its hugely popular movie Peter Pan. There followed a line of “Tinkerbell-emblazoned products for children,” including shampoos, glitter, hair bands, “scrunchies,” umbrellas, sunglasses, pencil kits, and many more; for a while, the complaint alleges, Disney itself bought and resold New Tinkerbell items in its stores, but then decided it wanted to enter the field itself, and has since used on its products such marks as “Tinkerbell, Tinker Bell, Tink, or a proxy for a female fairy.” The suit accuses Disney of unlawful use of “a female fairy character in interstate commerce”. (Roger Parloff, “Fairy Serious Business: Disney Accused of Misappropriating Tinkerbell”, Inside.com, July 31)

August 2 – Judge rebukes EPA enforcement tactics. “In a harsh rebuke to the federal Environmental Protection Agency‘s pursuit of criminal polluters, a judge has ruled the government unnecessarily harassed a Northbridge mill owner and pursued a case against him even though it didn’t have any credible evidence.” Following up on a tip from a former employee of the mill, which makes wire mesh used for lobster traps, a “virtual ‘SWAT team’ consisting of 21 EPA law enforcement officers and agents, many of whom were armed, stormed the [mill] facility to conduct pH samplings. They vigorously interrogated and videotaped employees, causing them great distress,'” wrote federal judge Nathaniel Gorton. Moreover, EPA in obtaining a search warrant apparently concealed evidence from its own testing indicating that the plant’s wastewater emissions may not have breached federal standards. “The case marks the first time in the region that a judge has ruled in favor of an application of the Hyde Amendment, a three-year-old federal law that allows an exonerated defendant to seek legal fees from the government if the criminal prosecution was ‘frivolous, in bad faith or vexatious.'” (David Armstrong, “US judge rules EPA harassed mill owner”, Boston Globe, Aug. 1).

August 2 – Clinton before trial lawyers: a footnote. Press reports had been contradictory about whether or not prospective disbaree Bill Clinton in his Sunday speech became the first sitting president ever to address the Association of Trial Lawyers of America (see July 31, Aug. 1). Molly McDonough of American Lawyer Media appears to clear up the discrepancy: the only other president to visit the organization was Lyndon Johnson in 1964, but he spoke to ATLA’s board of directors, which leaves Clinton as the first to appear before the organization’s general membership (“Clinton Addresses Trial Lawyers at Annual Bash”, Aug. 1).

August 2 – “Mugging victim ‘stupid,’ judge says”. A judge in Winnipeg, Canada, has caused an outcry by acquitting an alleged mugger and then lambasting the complainant for openly carrying money in a dangerous neighborhood. “‘What I am satisfied is that we have a very stupid civilian, who admits that he was stupid,’ said [Judge Charles] Rubin, who interrupted the Crown’s closing submission Tuesday to deliver his verdict. ‘If you walk around jingling money in your hand . . . it’s like walking in the wolf enclosure at the city zoo with a pound of ground beef in your hand. And it’s almost the same type of predators you’re going to find out there.'” The judge also advised the complainant to walk in future in the middle of the street for safety, rather than on the sidewalk. (Mike McIntyre, Winnipeg Free Press, July 20).

August 1 – Clinton’s trial-lawyer speech, cont’d. In his partisan-fangs-bared speech Sunday to the Association of Trial Lawyers of America, the president brought up the topic of vacant seats on the Fourth Circuit U.S. Court of Appeals, and accused Republican senators of deliberately not confirming black judicial nominees he’s proposed to that court simply because those nominees are black — which is to say, accused them of engaging in racism. (Neil A. Lewis, “President Criticizes G.O.P. for Delaying Judicial Votes”, New York Times, July 31). As Smarter Times points out (July 31), yesterday’s New York Times reported these rather incendiary charges and yet omitted to include any sort of response to them from Republican senators or anyone else, simply allowing Clinton to make them uncontradicted. For those interested in the issue on other than a demagogic basis, Ramesh Ponnuru at National Review Online wrote a piece July 17 adducing a sufficiency of non-racist reasons why senators might be leaving the seats vacant (other coverage in USA Today, New York Post).

However, the Times partially redeems itself by some original reporting on the exact nature of the differences between Democratic candidate Al Gore and Green Party candidate Ralph Nader. It reported that Nader, “who has been closely allied with trial lawyers on the issue of civil litigation rules, said Mr. Gore was allowing the president to take the heat of associating with the lawyers while he was reaping the benefits. ‘He’s just slinking around taking money like crazy from these guys, and at the same time he’s not really standing up for the civil justice system,'” said Ralph, who himself has steered a different course from Gore at least as to the latter course of conduct, since he’s known for his vocal defense of virtually every trial lawyer depredation yet invented.

As AP reports: “Common Cause, a non-partisan group that advocates campaign finance reform, calculates that trial lawyers gave $2.7 million to Democrats in 1999. That is about 1,000 times more than trial lawyers donated to Republicans last year, and twice the amount donated in the same period during the last election cycle.” (Anne Gearan, “GOP keeping minority judges off bench, Clinton says”, AP/Bergen County (N.J.) Record, July 31). However, you would be wrong if you imagine that Common Cause, as “a non-partisan group that advocates campaign finance reform”, might see cause for concern that those donations might not entirely further the public interest. After all, Common Cause recently named as its president Scott Harshbarger, former Democratic attorney general of Massachusetts, who in that office worked closely with trial lawyers and in fact bestowed on them a tobacco representation agreement which brought them an unprecedented fee bonanza. And now Mr. Harshbarger, newly speaking for Common Cause and quoted in the Times piece, ardently defends the particular special interest he has reason to know best, saying massive trial lawyer donations are no more than an appropriate way of leveling the playing field given that those whom the lawyers sue — which includes pretty much every other group in the economy — also donate a lot to politicians. In the new Common Cause universe, it seems, some special-interest influences on politicians are a lot more objectionable than others.

August 1 – “Lawsuits to fit any occasion”. According to the L.A. Times, a 43-year-old local attorney has been involved in 82 lawsuits on his own behalf since 1982. Robe rt W. Hirsh “sued the single mother he hired to stain the woodwork in his Hancock Park Tudor-style home, claiming she left some streaks on the wood. He sued his stockbroker for not getting him into Microsoft stock.” He sued a dissatisfied client to demand his fee, and then, when an arbitration panel instead awarded the client $25,000 against him, sued the lawyers who had represented him in the arbitration. “Hirsh even sued the synagogue where he was married, claiming that the religious elders had botched the catering of his wedding by, among other things, serving his guests cold vegetables and not giving his family all the leftovers. ‘Either he has the worst luck in the world, or he likes to sue,'” said Loyola law prof Laurie Levenson. Many of the suits have succeeded in bringing him settlements, but Hirsh (who also disputes the number of cases in which his critics say he has been involved) now faces a proceeding under California’s rarely used court rules against vexatious litigants, which could curb his activities in future. (“Davan Maharaj, “Lawsuits to Fit Any Occasion”. Los Angeles Times, July 29).

August 1 – Movie caption trial begins. Trial set to begin this week in a closely watched lawsuit in which Portland, Oregon, deaf activists have charged movie theater proprietors with violating the Americans with Disabilities Act because they haven’t installed elaborate captioning systems throughout the theaters (Kendra Mayfield, “Films Look to Captioned Audience”, Wired News, July 28). Meanwhile, the recording industry is concerned that a system installed to help the hearing-impaired at live concerts has become a prime vehicle for bootleggers to obtain concert tapes of unusually high quality for pirate sale; the ADA requires arenas to offer the assistive listening devices (Larry McShane, “Bootleggers Use Hear Aid to Record”, Yahoo/AP, July 30). And given the ADA’s many unintended consequences, outrageous results and manifest failures, Chicago Tribune columnist Steve Chapman wonders why tenth-anniversary press coverage of the act’s passage took such an overwhelmingly celebratory tone; his column quotes our editor (“The Other Side of the Disabled Rights Law”, July 30).

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June 30-July 2 – “Backstage at News of the Weird”. Chuck Shepherd writes the sublime “News of the Weird” feature, which is syndicated weekly to major papers and alternative weeklies nationwide. From time to time he’s asked which are “his favorite online scanning sites for weird news”. This site came in #4 of 6 — you’ll want to check out the whole list. (June 19).

Remarkable stories from the legal system turn up nearly every week both in “News of the Weird” and in the more recently launched “Backstage” column. Here’s one from the same June 19 number: “An Adel, Ga., man sued the maker of Liquid Fire drain cleaner for this injury (and follow this closely): LF comes in a special bottle with skull and crossbones and many warnings, but our guy thought, on his own that the bottle’s spout just might drip, so he poured the contents into his own bottle (which he thought would be drip-proof), whose packaging wasn’t able to withstand the LF and began to disintegrate immediately, causing the contents to spill onto his leg. So now he wants $100k for that.”

June 30-July 2 – Supreme Court vindicates Boy Scouts’ freedom. Matthew Berry, an attorney with the Institute for Justice who helped write an amicus brief for Gays and Lesbians for Individual Liberty, explains why the principle of freedom of association that protects the Boy Scouts from government dictation of its membership is also crucial in protecting the freedom of gays and lesbians (“Free To Be Us Alone”, Legal Times, April 24) (case, Boy Scouts of America et al v. Dale, at FindLaw). See also Independent Gay Forum entries on the subject by Tom Palmer and Stephen H. Miller.

June 30-July 2 – “DOJ’s Got the Antitrust Itch”. After a decade or two of quiescence, antitrust is on the rampage again, led by Joel Klein and other officials at the Justice Department’s Antitrust Division. (Declan McCullagh, Wired News, June 28).

June 30-July 2 – “Being a Lefty Has Its Ups and Downs”. Letter to the editor published in yesterday’s New York Times from our editor runs as follows: “To the Editor: At the City Council’s hearing on whether left-handed people should be protected by anti-discrimination law (Elizabeth Bumiller, “Council Urged to End a Most Sinister Bias”, June 22), a high school student called it discriminatory that banisters and handrails are often on the right side of public stairwells — at least from the perspective of someone climbing up. But people walk on stairs in both directions. It would seem the same stairwell that oppressively discriminates against lefties on the way up also discriminates against righties on the way down. Can they sue, too?

“The student also asserted that ‘societal discrimination results in the death of the left-handed population an average of 14 years earlier than the right-handed population.’ However, the study that purported to reveal such a gap was soon refuted. A 1993 study by the National Institute on Aging found no increase in mortality associated with handedness — not surprisingly, since insurance actuaries would long ago have made it their business to uncover such a correlation.” — Very truly yours, etc. (no longer online) (more on life expectancy controversy: APA Monitor, Psychological Bulletin, Am Journal Epidem — via Dr. Dave and Dee).

Postscript: Scott Shuger in SlateToday’s Papers” promptly took a whack at us over the above letter, claiming we didn’t realize that big stairwells at places like high schools have two-way traffic patterns where people keep to the right, leaving lefties without a rail for the handy hand whether headed up or down. But if anything, this proves our point that the issue isn’t, as had been claimed, the insensitive decision to place handrails on one side but not the other: typically these larger stairwells have handrails on both sides. Instead the broader culprit for those who wish to steady themselves with their left hand is the walk-on-the-right convention. Had the advocate of an antidiscrimination law acknowledged that point, however, much of the steam would have gone out of her argument, since few in her audience would have been inclined to view the walk-on-the-right convention as fixable “discrimination”. Nor is there anything in the original coverage to indicate that her gripe was at the absence of center rails, which have inconveniences of their own.

June 29 – Failure to warn about bad neighborhoods. “A Florida jury has awarded $5.2 million to the family of a slain tourist after finding that Alamo Rent-A-Car failed to warn the victim and her husband about a high-crime area near Miami.” Dutch tourists Gerrit and Tosca Dieperink, according to the National Law Journal, “rented an Alamo car in Tampa and planned to drop it off in Miami”. When they stopped in the Liberty City area of Miami to ask directions, they were targeted by robbers who recognized the car as rented, and Mrs. Dieperink was shot and killed. Lawyers for her survivors sued Alamo, saying it was negligent for the company not to have warned customers — even customers renting in Tampa, across the state — of the perilousness of the Liberty City neighborhood, where there’d been numerous previous attacks on rental car patrons. After circuit judge Phil Bloom instructed the jury that Alamo had a duty to warn its customers of foreseeable criminal conduct, jurors took only an hour of deliberations to find the company liable, following a seven-day trial. (Bill Rankin, “Alamo’s Costly Failure to Warn”, National Law Journal, May 22; Susan R. Miller, “Trail of Tears”, Miami Daily Business Review, May 8.)

Which of course raises the question: how many different kinds of legal trouble would Alamo have gotten into if it had warned its customers to stay out of certain neighborhoods? Numerous businesses have come under legal fire for discriminating against certain parts of town in dispatching service or delivery crews (“pizza redlining”); one of the more recent suits was filed by a civil rights group against online home-delivery service Kozmo.com, which offers to bring round its video, CD and food items in only some neighborhoods in Washington, D.C., mostly in affluent Northwest. (Elliot Zaret & Brock N. Meeks, “Kozmo’s digital dividing lines”, MSNBC/ZDNet, April 12; Martha M. Hamilton, “Web Retailer Kozmo Accused of Redlining”, Washington Post, April 14).

June 29 – “Angela’s Ashes” suit. Frank McCourt (Angela’s Ashes, Tis) and his brother Malachy (A Monk Swimming) have had a runaway success with their memoirs of growing up poor in Ireland and emigrating to America (4 million copies have sold of Angela’s alone). Now they’re being sued by Mike Houlihan, “who in the early 1980s raised $20,750 to stage and produce a McCourt brothers play called ‘A Couple of Blaguards,'” also based on their early life. The play had only modest success, though it has begun to be revived frequently with the success of the memoir books. Mr. Houlihan says he and several others are entitled to 40 percent of the profits from Angela’s Ashes and the other memoirs because they are a “subsidiary work” of the play. “That would be a nice piece of money, wouldn’t it?” says Frank McCourt, who says his old associate “has hopped on America’s favorite form of transportation — the bandwagon”. (Joseph T. Hallinan, “Backers of McCourt’s Old Play Say They Are Due Royalties”, Wall Street Journal, June 6 (fee)).

June 29 – “Trying a Case To the Two Minute Mind”. California attorney Mark Pulliam passes this one on: a recent brochure from the San Diego Trial Lawyers Association offered a sale on educational videos for practicing litigators, of which one, by Craig McClellan, Esq., was entitled “Trying a Case To the Two Minute Mind; aka Trial by Sound Bite” (worth one hour in continuing legal education credits). According to the brochure, “The presentation shows how to streamline each element of a trial based on the fact that most jurors are used to getting a complete story within a two minute maximum segment on the evening news. This video demonstrates the effectiveness of visual aids, impact words and even colors, to influence the juror’s perception and thought process in the least amount of time.”

June 28 – Oracle did it. Today’s Wall Street Journal reports that the big software maker and Microsoft rival has acknowledged it was the client that hired detective firm Investigative Group International Inc. for an elaborate yearlong operation to gather dirt on policy groups allied with Microsoft; the detective firm then offered to pay maintenance workers for at least one of the groups’ trash (see June 26). “The IGI investigator who led the company’s Microsoft project, Robert M. Walters, 61 years old, resigned Friday after he was named in stories about the case.” Oracle claims to have no knowledge of or involvement with illegalities — buying trash isn’t in itself necessarily unlawful — and IGI also says it obeys the law. (Glenn R. Simpson and Ted Bridis, “Oracle Admits It Hired Agency To Investigate Allies of Microsoft”, June 28 (fee))

June 28 – Born to regulate. Opponents say the Occupational Safety and Health Administration’s “ergonomics” proposals would tie America’s employers in knots in the name of protecting workers from carpal tunnel syndrome and other repetitive motion injuries (see March 17), and resistance from the business community is stiff enough that the regs ran into a roadblock in the Senate last week. However, Ramesh Ponnuru at National Review Online reports that “Marthe Kent, OSHA’s director of safety standards program and head of the ergonomics effort, couldn’t be happier at her job. ‘I like having a very direct and very powerful impact on worker safety and health,’ she recently told The Synergist, a newsletter of the American Industrial Hygiene Association. ‘If you put out a reg, it matters. I think that’s really where the thrill comes from. And it is a thrill; it’s a high.’ Later in the article, she adds, ‘I love it; I absolutely love it. I was born to regulate. I don’t know why, but that’s very true. So as long as I’m regulating, I’m happy.'” (Ramesh Ponnuru, “The Ergonomics of Joy” (second item), National Review Online Washington Bulletin, June 26). See also “Senate Blocks Ergonomic Safety Standards”, Reuters/Excite, June 22; Murray Weidenbaum, “Workplace stress is declining. Does OSHA notice?”, Christian Science Monitor, June 15.

June 28 – Giuliani’s blatant forum-shopping. Time was when lawyers showed a guilty conscience about the practice of “shopping” for favorable judges, and were quick to deny that they’d attempted any such thing, lest people think their client’s case so weak that other judges might have thrown it out of court. Now they openly boast about it, as in the case of New York City’s recently announced plans to sue gun makers. The new legal action, reports Paul Barrett of the news-side Wall Street Journal, could “prove especially threatening to the industry because Mr. Hess (Michael Hess, NYC Corporation Counsel) said the city would file it in federal court in Brooklyn. The goal in doing so would be to steer the suit to the courtroom of U.S. District Judge Jack Weinstein, who is known for allowing creative liability theories. … Mr. Hess said that New York will ask Judge Weinstein to preside over its suit because it is ‘related’ to the earlier gun-liability case [Hamilton v. Accu-Tek, now on appeal.]” (See also Nov. 1). (“New York City Intends to File Lawsuit Against Approximately 25 Gun Makers”, June 20 (fee)).

June 28 – From our mail sack: transactional-lawyer whimsy. New York attorney John Brewer writes: “This may just be a bit of transactional lawyer inside humor, or it may be evidence that the agnostic and individualistic themes in our culture have finally penetrated lawyers’ contract boilerplate (which for a variety of reasons tends to be an extraordinarily conservative-to-anachronistic form of stylized discourse). According to the April 2000 issue of Corporate Control Alert [not online to our knowledge], a provision in the documentation for the 1998 acquisition of International Management Services Inc. by Celestica Inc. contained a definition which read in part as follows:

“Material Adverse Change” or “Material Adverse Effect” means, when used in connection with the Company or Parent, as the case may be, any change or effect, as the case may be, caused by an act of God (or other supernatural body mutually acceptable to the parties) …

“In a sign that some of the old certitude remains, however,” John adds, “the accompanying article referred colloquially to the clause containing this language as a “hell-or-high-water” provision without any suggestion of mutually acceptable alternative places of everlasting torment.”

June 27– Welcome New Republic readers. Senior writer Jodie Allen of U.S. News & World Report tells us we’re her favorite website, which we consider proof we’re on the right track. Writing the New Republic’s “TRB from Washington” column this week, her theme is our legal system’s willingness to entertain all sorts of remarkable new rights-assertions that might have left Thomas Jefferson scratching his head, and she says readers who want more “can monitor such cases at Overlawyered.com.” We’ll help with the following thumbnail link-guide to cases mentioned in the column: drunken airline passenger, child left in hot van, right to non-sticky candy, bank robber and tear gas device, beer drinker’s restroom suit & Disneyland characters glimpsed out of uniform, haunted house too scary, high-voltage tower climber (& second case), killer whale skinny dip, obligation to host rattlesnakes, parrot-dunking, Ohio boys’ baseball team, school administrator’s felony, stripper’s rights, and murderer’s suit against her psychiatrists. (“Rights and Wrongs”, July 3). (DURABLE LINK)

June 27 – Reprimand “very serious” for teacher. Norwalk, Ct.: “After an in-house investigation that lasted more than a month, Carleton Bauer, the Ponus Ridge Middle School teacher who gave an 11-year-old girl money to purchase marijuana, has been reprimanded with a letter in his file.” The girl’s father, who was not notified of the disciplinary action taken against the teacher but was contacted by the press, felt the teacher’s union had been allowed to negotiate too lenient a treatment for Bauer, a 31-year teaching veteran, but Interim Superintendent of Schools William Papallo called the penalty “fair and equitable”, saying, “For someone who has worked so long, a reprimand is very serious”. (Ashley Varese, “Ponus teacher ‘lacked judgment'”, Norwalk Hour, June 16, not online).

June 27 – Peter McWilliams, R.I.P. Although (see above item) there are times when our authorities can be lenient toward marijuana-related infractions, it’s more usual for them to maintain a posture of extreme severity, as in the case of well-known author, AIDS and cancer patient, and medical marijuana activist Peter McWilliams, whose nightmarish ordeal by prosecution ended last week with his death at age 50. (William F. Buckley Jr., Sacramento Bee, June 21; Jacob Sullum, Reason Online/Creators Syndicate, June 21; John Stossel/ABC News 20/20, “Hearing All the Facts”, June 9; J.D. Tuccille, Free-Market.Net Spotlight; Media Awareness Project).

June 27 – AOL “pop-up” class action. In Florida, Miami-Dade County Judge Fredricka Smith has granted class action status to a suit against America Online, purportedly on behalf of all hourly subscribers who viewed the service’s “pop-up” ads on paid time. Miami attorney Andrew Tramont argues that it’s wrong for subscribers to be hit with the ads since they’re paying by the minute for access to the service (at least if they’re past their allotment of free monthly time), and “time adds up” as they look at them — this, even though most users soon learn it takes only a second to click off an ad (“No thanks”) and even though the system has for some time let users set preferences to reduce or eliminate pop-ups. The case seeks millions in refunds for the time customers have spent perusing the ads. According to attorney Tramont, “the practice amounts to charging twice for the same product. ‘AOL gets money from advertisers, then money from subscribers, so they’re making double on the same time,’ he said.” Please don’t anyone call to his attention the phenomenon of “magazines”, or we’ll never get him out of court. (“Florida judge approves class-action lawsuit against America Online”, CNN, June 25).

June 26 – Cash for trash, and worse? We’re glad we didn’t play a prominent role in defending Microsoft in its antitrust dispute, since we’d have found it very intrusive and inconvenient to have our garbage rifled by private investigators and our laptops stolen, as has happened lately to a number of organizations that have allied themselves with the software giant in the controversy (Declan McCullagh, “MS Espionage: Cash for Trash”, Wired News, June 15; Ted Bridis, “Microsoft-Tied Groups Report Weird Incidents”, Wall Street Journal, June 19 (fee); Glenn Simpson, “IGI Comes Under Scrutiny in Attempt To Purchase Lobbying Group’s Trash”, Wall Street Journal, June 19) (fee); Ted Bridis and Glenn Simpson, “Detective Agency Obtained Documents On Microsoft at Two Additional Groups”, Wall Street Journal, June 23 (fee)). Material surreptitiously obtained from the National Taxpayers Union, Citizens for a Sound Economy, and Independent Institute soon surfaced in unflattering journalistic reportage on these groups in the New York Times, Washington Post and Wall Street Journal, and two attempts were also made to get night cleaning crews to sell the trash of the pro-Microsoft Association for Competitive Technology. They’re calling it “Gatesgate”.

In other news, the New York Observer checks into what would happen if the giant company tried to flee to Canada to avoid the Justice Department’s clutches (answer: probably wouldn’t make any difference, they’d get nailed anyway) (Jonathan Goldberg, “The Vancouver Solution”, June 12). And over at the Brookings Institution, it’s a virtual civil war with fellow Robert Crandall arguing against a breakup and fellow Robert Litan in favor (Robert Crandall, “If It Ain’t Broke, Don’t Break It Up”, Wall Street Journal, June 14; Robert Litan, “The rewards of ending a monopoly”, Financial Times, Nov. 24; Robert Litan, “What light through yonder Windows breaks?”, The Globe and Mail (Toronto), June 11, all reprinted at Brookings site).

June 26 – “Was Justice Denied?”. Dale Helmig was convicted of the murder of his mother Norma in Linn, Mo. This TNT special June 20 impressed the Wall Street Journal‘s Dorothy Rabinowitz as making a powerful case for the unfairness of his conviction (“TV: Crime and Punishment”, June 19 (fee); TNT press release April 13). At the TNT site, links will lead you to more resources on errors of the criminal-justice system both real and alleged, including “Convicted by Juries, Exonerated by Science” (DNA exonerations); “The Innocent Imprisoned“; Justice: Denied, The Magazine for the Wrongly Convicted; CrimeLynx (criminal defense attorneys’ resource); and Jeralyn Merritt, “Could This Happen To Your Spouse or Child?” (Lawyers.com).

June 26 – Updates. Catching up on further developments in several stories previously covered in this space:

* In the continuing saga of leftist filmmaker Michael Moore (see Sept. 16), who made his name stalking the head of General Motors with a camera at social and business events (“Roger and Me”) and then called the cops when one of his own fired employees had the idea of doing the same thing to him, John Tierney of the New York Times has added many new details to what we knew before (“When Tables Turn, Knives Come Out”, June 17) (reg).

* Trial lawyers are perfectly livid about that New England Journal of Medicine study (see April 24) finding that car crash claimants experience less pain and disability under a no-fault system that resolves their claims relatively quickly. Now they’re throwing everything they can find at the study, lining up disgruntled former employees to question the researchers’ motives, saying the whole thing was tainted by its sponsorship by the Government of Saskatchewan (which runs a provincial auto insurance scheme), and so forth. (Association of Trial Lawyers of America page; Bob Van Voris, “No Gain, No Pain? Study Is Hot Topic”, National Law Journal, May 22).

* A Texas judge has entered a final judgment, setting the stage for appeal, against the lawyers he found had engaged in “knowingly and intentionally fraudulent” conduct in a product liability case against DaimlerChrysler where both physical evidence and witness testimony had been tampered with (see May 23). “Disbarment is a possible consequence, as are criminal charges, but none has yet been filed.” (Adolfo Pesquera, “Judge orders lawyers to pay $865,489″, San Antonio Express-News, Jun. 23). Update: see Mar. 17, 2003.

* It figures: no sooner had we praised the U.S. House of Representatives for cutting off funds for the federal tobacco suit (see Jun. 21) than it reversed itself and voted 215-183 to restore the funds (Alan Fram, “House OKs Funds for Tobacco Lawsuit”, AP/Yahoo, Jun. 23).

June 22-25 – Antitrust triumph. With great fanfare, the Federal Trade Commission announced this spring that it had broken up anticompetitive practices in the recording industry that were costing CD buyers from $2 to $5 a disc, saving consumers at least hundreds of millions of dollars. “So, how far have CD retail prices fallen since? Not a penny … Now, retail and music executives are accusing FTC Chairman Robert Pitofsky of misleading consumers and feeding the media ‘artificially inflated’ pricing statistics, possibly to camouflage the lusterless findings of the FTC’s costly two-year investigation of CD advertising policies.” A commission spokesman says it can’t release the basis of its pricing study because it’s based on proprietary information. (Chuck Philips, “FTC Assailed on Failed CD Price Pledge”, Los Angeles Times, June 2).

June 22-25 – More trouble for “Brockovich” lawyers. Latest trouble for real-life L.A. law firm headed by Ed Masry, dramatized in the Julia Roberts hit film “Erin Brockovich“: a wrongful termination suit filed by former employee Kissandra Cohen, who at 21 years of age is the state’s youngest practicing lawyer. Cohen alleges that when she worked for Masry he “made repeated sexual advances, and when she did not respond, he fired her. Cohen, who is Jewish, also claims that Masry and other attorneys in his office made inappropriate comments about her Star of David necklace and attire” and kept copies of Playboy in the office lobby. Also recently, Brockovich’s ex-husband, ex-boyfriend and their attorney were arrested in a scheme in which they allegedly threatened that unless Masry and Brockovich saw that they were paid off they’d go to the press with scandalous allegations about the two (the sort of thing called “extortion” when it doesn’t take place in the context of a lawsuit). (“Sex Scandal for Brockovich Lawyer”, Mr. Showbiz, April 28).

June 22-25 – Compare and contrast: puppy’s life and human’s. Thanks to reader Daniel Lo for calling to our attention this pair of headlines, both on articles by Jaxon Van Derbeken in the San Francisco Chronicle: “S.F. Dog Killer Avoids Three-Strikes Sentence”, June 2 (Joey Trimm faced possible 25 years to life under “three strikes” law for fatal beating of puppy, but prosecutors relented and he was sentenced to only five years); “Man Gets Five Years In Killing of Gay in S.F.”, April 25 (“high-profile” homicide charges against Edgard Mora, whom prosecutors had “long labeled a hate-filled murderer”, resolved with five-year sentence for involuntary manslaughter.)

June 21 – And don’t say “I’m sorry”. “Be careful,” said the night nurse. “They’re suing the hospital.” First-person account of how it changes the atmosphere on the floor when the family of a patient still under care decides to go the litigation route. Highly recommended (Lisa Ochs, “In the shadow of a glass mountain”, Salon, June 19).

June 21 – Good news out of Washington…. The House voted Monday to curb the use of funds by agencies other than Justice to pursue the federal tobacco lawsuit. The Clinton Administration claims the result would be to kill the suit (let’s hope so), but it and other litigation advocates will be working to restore the money at later stages of the appropriations process, and the good guys won by a margin of only 207-197 (June 19: Reuters; Richmond Times-Dispatch/AP; Washington Post) (It soon reversed itself and restored the funds: see June 26).

June 21 – …bad news out of New York. Mayor Rudolph Giuliani has joined the ranks of gun control advocates willing to employ the brute force of litigation as an end run around democracy. “[F]ollowing the lead of many of the nation’s other large cities, [Giuliani] announced yesterday that his administration would file its own lawsuit against handgun manufacturers, seeking tens of millions of dollars to compensate New York City for injuries and other damage caused by illegal gun use.” Maybe he wouldn’t have made such a good Senator after all (Eric Lipton, “Giuliani Joins the War on Handgun Manufacturers”, New York Times, June 20).

June 21 – Stress of listening to clients’ problems. Dateline Sydney, Australia: “A court awarded [U.S.] $15,600 in damages to a masseuse who suffered depression after listening to clients talk about their problems. Carol Vanderpoel, 52, sued the Blue Mountains Women’s Health Center, at Katoomba, west of Sydney, claiming she was forced to deal with emotionally disturbed clients without training as a counselor or debriefing to cope with resultant stress.” (“Singing the Blues: Masseuse wins damages for listening to problems”, AP/Fox News, June 20; Anthony Peterson, “$26,000 the price of earbashing”, Adelaide Advertiser, June 20).


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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