“The threat of global warming is so great that campaigners were justified in causing more than £35,000 worth of damage to a coal-fired power station, a jury decided yesterday. In a verdict that will have shocked ministers and energy companies the jury at Maidstone Crown Court cleared six Greenpeace activists of criminal damage.” (Michael McCarthy, Independent (U.K.), Sept. 11).
The idea does seem to be in the air (Coyote, Aug. 5; Alex Lockwood, Jul. 31 but note Aug. 4 post backtracking somewhat). Lockwood writes from the U.K., which of course lacks our First Amendment. On the idea of staging show trials of energy executives for propagating incorrect opinion, see Point of Law, Jun. 23, as well as Kivalina suit coverage.
Don’t expect the much-hyped Kivalina suit to bring down Big Energy, the columnist says, but it might just keep the lawyers at Hagens Berman in BMWs:
The Inupiat Eskimos are perfect, jury-worthy plaintiffs. They have occupied their tiny barrier reef, just a few feet above sea level, “since time immemorial,” according to the lawsuit. They are poor. They live in harmony with nature, according to the documentary. (Pay no attention to those all-terrain vehicles zipping around town, and the kid flashing the gang sign.) …Some judges may be liberal, but they’re not idiots. They know that utilities sold electricity to Americans because their customers wanted to jack up the AC. In fact, there isn’t a utility in America that hasn’t spent the past 20 years begging its customers to use less oil and gas. There is an inconvenient truth if I ever saw one.
Not to be missed (”Eskimos, whales, and luaus…Oh my!”, Boston Globe, May 24).
Looks like we’ll be hearing a lot more about the “Kivalina” (Alaskan Inupiat village) climate-change suit:
Over time, the two trial lawyers [Stephen Susman of Texas and Steve Berman of Seattle, both familiar to longterm readers of this site] have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina — where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.
(Stephan Faris, “Conspiracy Theory”, The Atlantic, June). For the theory of legally wrongful participation in public debate (as one might call it), as it surfaced in the tobacco litigation, see, for example, this 2006 post.
More background on the suit at the Native American Rights Fund’s blog, here and here, and at attorney Matthew Pawa’s site. Carter Wood at NAM “Shop Floor” links to a report by the American Justice Partnership and Southeastern Legal Foundation (PDF) entitled, “The Most Dangerous Litigation in America: Kivalina“.
Yet more: Northwestern lawprof David Dana has a working paper at SSRN entitled “The Mismatch between Public Nuisance Law and Global Warming” (via Sheila Scheuerman/TortsProf). Abstract:
The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.
In Alaska; Chevron; climate change; environment; Exxon; global warming; Kivalina; Seattle; stephen susman; Steve Berman; tobacco
A major rebuke for former California AG Bill Lockyer and his successor, Jerry Brown, as well: “A federal judge in San Francisco today threw out a lawsuit filed by the state Attorney General’s office against the six largest automakers in what had been billed as a novel attempt to hold the companies financially liable for global warming. … U.S. District Judge Martin Jenkins said it would be inappropriate for the court to wade into issues pertaining to interstate commerce and foreign policy - matters that should be left to the political branches of government.” The judge’s order can be found here (PDF). (Henry K. Lee, San Francisco Chronicle, Sept. 18)(cross-posted from Point of Law).
Our thanks to Steve Hantler of Chrysler for some provocative posts which stirred considerable reader interest. His post on global warming litigation drew links from (among others) Prof. Bainbridge and New York magazine’s “Intelligencer”.
Among the nightmare scenarios of global warming, there’s one only now coming into view – and it’s definitely manmade: As predictable as the rising seas, we can expect a flood of class-action lawsuits trying to cash in on the issue.
Climate change promises to be “a lucrative new field” for the tort bar reports the Newark Star-Ledger. A Rutgers law professor predicts that global warming will make for “one of the biggest legal practices in the next 20 years.” (The Star-Ledger, 7/8/07)
The opinion is shared by the president of the World Resources Institute: “Companies that generate significant carbon emissions,” he warns, “face the threat of lawsuits similar to those common in the tobacco, pharmaceutical and asbestos industries.” (The Toronto Star, 4/29/07)
And if you thought asbestos and tobacco litigation were profitable, try to imagine all the “mass tort” cases that global warming will inspire. Energy companies, coal mines, any firm at all that generates carbon dioxide – these industries and many more can expect to find themselves accused of causing climate change.
Some law firms already have “climate-change groups” studying the possibilities. Another hint of things to come was a class action suit was filed on behalf of Mississippi residents against oil and coal companies after Hurricane Katrina – arguing that company emissions caused the climate change that caused the hurricane. (Star-Ledger, 7/8/07).
In Alaska, the Inuits claim that their island is sinking because of global warming. The aggrieved islanders haven’t decided who to sue yet – but they’ve got a Houston trial lawyer working on it. (Star-Ledger, 7/8/07)
All of which proves nothing at all about the actual causes or dangers of global warming. It’s just more evidence of a climate of greed and opportunism in the trial bar. And that’s one climate that never changes.
It’s “kooky” and “trivializes a serious problem”, editorializes the Los Angeles Times: “California shouldn’t be in the business of filing meritless suits to gain leverage in other cases“. “It’s not his job to make law through frivolous lawsuits,” opines the San Jose Mercury News (via Wilson). It’s “reprehensible… little more than a political stunt,” adds the Orange County Register. Veteran political columnist Dan Walters of the Sacramento Bee terms the suit “Lockyer’s bid to become the champion of cheesiness“. One who does like the suit, curiously enough: an environmental adviser to Gov. Schwarzenegger named Terry Tamminen. And the San Francisco Chronicle investigates: what do state lawmakers drive? More here, here and here (cross-posted from Point of Law).
In a first-of-its-kind suit, California Attorney General Bill Lockyer is demanding damages from automakers for the impact of global warming. “Because, after all, the California attorney general is the one who should be deciding national policy on the global warming controversy,” notes Ted at Point of Law. Even accepting Lockyer’s contentions at face value, autos sold in California contribute less than 1 percent of global greenhouse-gas emissions (David Shepherdson, “Calif. sues over auto emissions”, Detroit News, Sept. 21).
Is Lockyer making it up as he goes along with the new suit, legal-theory-wise? It would seem so. His theory that autos constitute a nuisance have never been enacted as law even by the California legislature, yet he’s asserting it retroactively to punish past behavior by Detroit and Japan worldwide. His views clash strongly with those held by elected officials in many other states, which is one reason our system gives the U.S. Congress, rather than the California attorney general, the right to set national environmental policy. His notion that internal combustion engines might not be unlawful in themselves, but constitute nuisance in this case because manufacturers could be doing more to minimize their impact, makes as much sense (which is to say, no sense whatever) as if he sued California’s own drivers on the grounds that they contribute to the problem by taking unnecessary trips.
Prof. Bainbridge has quite a bit more to say about the abuse of power involved in using this type of litigation as an end run around the political branches of government which are the proper locus of authority on policy matters of this sort (Sept. 21).
Reader Earl Wertheimer writes: “I would rather see the automakers simply agree to stop selling cars in California. Let them walk & bicycle for a while. This would promote better fitness and also reduce future obesity lawsuits.”
Reader Loren Siebert writes: “I wonder if the discovery process will include how many motor vehicles the state of CA has purchased and operates.” And Nick Fenton at DTT Buzz has suggestions for more litigation (Sept. 20).
More: Lockyer “is unlikely to win” the suit, according to legal experts interviewed, especially since “a similar case brought by California and other states against utilities companies in 2004 failed in the courts”. “Even with a small chance of success, environmental advocates say the new legal action is useful and necessary”, one reason being “to pressure carmakers”. “I hope that automakers realise this will be the first of a series of lawsuits,” says Jim Marston of Environmental Defense. (Roxanne Khamsi, “California faces uphill battle on car emissions”, New Scientist, Sept. 22). EconBrowser (Sept. 24):
…the key question in my mind is not the extent to which reducing greenhouse emissions from vehicles may be a good idea, but rather whether, under previously existing U.S. law, it has been lawful to manufacture cars that emit carbon dioxide. I submit that it has, and if a judge somewhere now creatively determines that a company can be punished for such perfectly lawful behavior, then I fear that America is no longer a nation ruled by law, but rather ruled at the whim of whatever those currently wielding power happen to think might be a good idea.
Yet more: Brian Doherty, Reason “Hit and Run”, Sept. 21.
“For no apparent reason, the state of California, Environmental Defense, and the Natural Resources Defense Council have dragged [MIT's Alfred P. Sloan professor of meteorology Richard] Lindzen and about 15 other global- warming skeptics into a lawsuit over auto- emissions standards. California et al. have asked the auto companies to cough up any and all communications they have had with Lindzen and his colleagues, whose research has been cited in court documents.” (Alex Beam, “MIT’s inconvenient scientist”, Boston Globe, Aug. 30).
Can you sue over something that you claim will affect everyone in the planet in the distant future, even if that means that everyone on Earth can file a similar lawsuit now? The Supreme Court may address a similar question soon. The Supreme Court agreed today to consider whether the Bush administration must regulate carbon dioxide to combat potential global warming, in Massachusetts v. EPA.
Twelve states had sued the EPA to force it to regulate carbon dioxide emissions from automobiles. Although carbon dioxide is an integral component of the atmosphere, and does not contaminate or cause cancer, the states argued it constitutes air pollution covered by the Clean Air Act, because it may cause global warming over the long run.
A splintered three-judge panel of the D.C. Circuit Court of Appeals voted 2-to-1 to reject the lawsuit, but the judges in the majority didn’t agree on why. Judge Sentelle would have rejected the suit for not complying with the Constitution’s requirement of standing, under which a plaintiff must allege particularized injuries, not a “generalized grievance” shared by much of the public at large (much less the entire planet). Judge Randolph, by contrast, was unsure of whether the plaintiffs had standing, but concluded that even if they did, and the EPA had jurisdiction to regulate carbon dioxide, the lawsuit should still be dismissed. He pointed out that regulating carbon dioxide on a state-by-state basis, as the Clean Air Act would do, made no sense, since global warming is a planet-wide concern. Thus, the EPA’s decision not to regulate carbon dioxide was sensible. By contrast, Judge Tatel’s dissent argued that the plaintiffs did have standing, since although everyone might be affected by global warming, they might be affected by it in different ways, with a coastal state being flooded while an arid state might become more arid.
In another lawsuit, attorney generals from seven states have sued out-of-state utilities under state nuisance laws, alleging that power plants, by generating carbon dioxide, are causing global warming. New York federal judge Loretta Preska dismissed their lawsuit in Connecticut v. American Electric Power Co. She, too, held that the plaintiffs lacked standing, since they complained of a generalized injury that would be better handled by the political process than by the courts.
If state attorney generals can sue power plants in distant states, that may lead to an explosion of interregional litigation, regional conflict, and judicial micromanagement of out-of-state utilities.
June 20-22 – Fast food: give me my million. From an interview aired in Australia with the plaintiff in the McDonald’s obesity lawsuit:
CAESAR BARBER: I’m saying that McDonald’s affected my health. Yes, I am saying that.
RICHARD CARLETON: So what do you want in return?
CAESAR BARBER: I want compensation for pain and suffering.
RICHARD CARLETON: But how much money do you want?
CAESAR BARBER: I don’t know … maybe $1 million. That’s not a lot of money now.
(Richard Carleton, “Food fight”, 60 Minutes (Australia), Sept. 25, 2002). Only three years ago the possibility of suits blaming food companies for obesity furnished The Onion with material for humor (Aug. 3, 2000). “The parody has become reality.” (James Glassman, “From parody to reality”, TechCentralStation, May 21; Michael I. Krauss, “Today’s Tort Suits Are Stranger Than Fiction”, Virginia Viewpoint (Virginia Institute), May). A House panel heard testimony yesterday on a bill that would stop such lawsuits in their tracks (Maggie Fox, “Is It Your Fault I’m Fat? Congress Hears Debate”, Reuters, Jun. 19; Bruce Horovitz, “Fast-food restaurants told to warn of addiction”, USA Today, Jun. 17). A CNBC poll, with 2000 votes as of midnight Friday morning, was running 92 to 8 percent against holding fast-food restaurants responsible for expanding waistlines. (DURABLE LINK)
June 20-22 – Investors’ Business Daily interviews our editor. Now at a stable URL, last Friday’s interview mostly concentrated on our editor’s new book The Rule of Lawyers (David Isaac (interviewer), “Frivolous Lawsuits Creating New Power Class — Lawyers”, Jun. 13, reprinted at Manhattan Institute site). (DURABLE LINK)
June 20-22 – Batch of reader letters. Special all-critical edition — nothing but letters taking issue with us. Topics include the MTV “Jack Ass” suit, Ann Arbor substitute teachers, the ADA, high verdicts as an inspiration to young lawyers, and medical malpractice. (DURABLE LINK)
June 18-19 – Keep playing in our conference or we’ll sue you. Five schools in the Big East football conference — Pittsburgh, West Virginia, Virginia Tech, Rutgers and Connecticut — have filed suit to stop Miami and Boston College from departing for the Atlantic Coast Conference. (Eddie Pells, “Big East accuses Miami, BC and ACC of conspiracy”, AP/Kansas City Star, Jun. 6; Sam Eifling, “Requiem for the Big East”, Slate, Jun. 12; Steve Wieberg, “Conference changes becoming more hostile than ever”, USA Today, Jun. 15). Politicians have gotten into the act in support of the suit, including (inevitably) Connecticut AG Richard Blumenthal as well as the state’s Gov. John Rowland (Andy Katz, “ACC lawyer: Lawsuit will not distract from expansion”, ESPN, Jun. 12). Virginia AG Jerry Kilgore, too (”Virginia Tech, the Big East and the ACC”, Roanoke Times, Jun. 17; see S.W.Va. Law Blog, Jun. 17). S.M.Oliva comments (Initium, Jun. 6) (via Dan Lewis). (DURABLE LINK)
June 18-19 – A judge bans a book. “A tax protester may not sell his book that contends paying income tax is voluntary, a federal judge ruled Monday. U.S. District Judge Lloyd D. George wrote in an order banning the book that Irwin Schiff is not protected by the First Amendment because he has encouraged people not to pay taxes. ‘There is no protection … for speech or advocacy that is directed toward producing imminent lawless action,’ George wrote in support of the preliminary injunction on the book, ‘The Federal Mafia: How It Illegally Imposes and Unlawfully Collects Income Taxes.’” (”Federal judge in Las Vegas bans anti-tax book”, Reno Gazette-Journal, Jun. 16). (DURABLE LINK)
June 18-19 – Texas’s giant legal reform. With the support of Gov. Rick Perry, the Texas legislature this month passed what looks to us to be the most serious and comprehensive package of litigation reforms achieved at one stroke anywhere in recent memory. Among other features, it: adopts an offer-of-settlement-driven variant of loser-pays; reforms class action certification and requires that lawyers’ fees be paid in coupon form to the extent that class relief is provided that way; tightens forum non conveniens safeguards against court-shopping; protects defendants from having to pay damages attributable to other responsible parties’ fault; establishes innocent-retailer and regulatory-compliance defenses in product liability law, along with a 15-year statute of repose; curbs artificially high interest on judgments; limits appeals bonds; restrains medical liability in a long list of ways including a $250,000 cap on non-economic damages; and much more. (”Ten-gallon tort reform” (editorial), Wall Street Journal, Jun. 6, reprinted at Texans for Lawsuit Reform site; summary of legislation at same site; John Williams, “Proponents cheer tort reform”, Houston Chronicle, Jun. 11). (DURABLE LINK)
June 18-19 – Around the blogs. Virginia Postrel (Jun. 5) has some comments from civil libertarian Harvey Silverglate criticizing 18 U.S.C. sec. 1001, which the feds are using to go after Martha Stewart. This law makes it unlawful to lie to a federal agent — even if you’re not under oath, and even though the agents may be free to lie to you. See also the comment from reader James Ingram. Mickey Kaus (Jun. 16) echoes speculation by “some media lawyers” quoted in the Washington Post (James V. Grimaldi, “Blair Analogy Reaches Courtroom Far From N.Y.”, Jun. 16) that the New York Times may have forced out top executives Howell Raines and Gerald Boyd in part because if it hadn’t done so, defamation plaintiffs might have been able to use its forbearance “to devastating effect” in future litigation. And MedPundit catches up at some length (Jun. 3) on the controversy over thimerosal, the mercury-containing vaccine preservative which has given rise to bitter litigation and legislative battles. (DURABLE LINK)
June 16-17 – Probate’s misplaced trust. Washington Post investigation into guardianship in the D.C. courts finds that the D.C. Superior Court’s probate division, “mandated to care for more than 2,000 elderly, mentally ill and mentally retarded residents, has repeatedly allowed its charges to be forgotten and victimized …. Chaotic record-keeping, lax oversight and low expectations in this division of the court have created a culture in which guardians are rarely held accountable. They are often handed new work even when they have ignored their charges or let them languish in unsafe conditions.” The Post “found hundreds of cases where court-appointed protectors violated court requirements. Since 1995, one of five guardians has gone years without reporting to the court. Some have not visited their ailing charges. In more than two dozen cases, guardians or conservators have taken or mishandled money. Neglectful caretakers are rarely disciplined, D.C. bar records show. Even when they have been caught stealing or cheating clients, attorneys can go as long as nine years before they are punished.”
Why have the courts gone on giving new work to lawyers charged with misconduct or incompetence in earlier cases? “[Senior Judge Eugene] Hamilton said he would hesitate to ban lawyers from future appointments simply because they’ve been removed from a case. ‘You have to be careful about barring someone from cases, said Hamilton, who oversaw the probate division from 1991 until 1993. ‘It may be the person’s only source of practice.’” (Carol D. Leonnig, Lena H. Sun and Sarah Cohen, “Under Court, Vulnerable Became Victims”, Washington Post, Jun. 15) (via David Bernstein)(& see Ethical Esq.). More: Second part of article: Sarah Cohen, Carol D. Leonnig and April Witt, “Rights and Funds Can Evaporate Quickly”, Jun. 16). (DURABLE LINK)
June 16-17 – He’s gotta have it. A Manhattan judge has granted a temporary injunction sought by filmmaker Spike Lee against the launch of Spike TV, a cable channel aiming to provide television programming of interest to men. (Samuel Maull, “Spike Lee wins temporary injunction”, AP/San Francisco Chronicle, Jun. 12). However, “State Supreme Court Justice Walter Tolub ordered Lee to post a $500,000 bond to cover Viacom’s losses in case the company wins.” (”Spike Lee outmans Spike TV”, Newsday, Jun. 13; Mark Perry, “Spike Lee Gains Upper Hand In Legal Battle With TNN”, Impact Wrestling, Jun. 13). At FindLaw, columnist Julie Hilden (”Spike Lee v. Spike TV”, Jun. 9) is nondismissive about Lee’s case, while conceding it raises questions about whether other well-known persons with the same nickname, such as director Spike Jonze, could also sue. Sentiment in the blog world, on the other hand, seems to be running heavily against Lee (né Shelton). Examples: Catbird.org, Idler Yet, Horrors of an Easily Distracted Mind, Doedermara.net, LedUntitled. (DURABLE LINK)
June 16-17 – A tangled Mississippi web. “A web of connections exists between the judges, lawyers, politicians and investigators involved in a Mississippi judicial-corruption probe, raising questions about the fairness and thoroughness of the investigation and about possible conflicts of interest.” Among prominent figures in the probe are “[plaintiff's attorney Dickie] Scruggs as a cooperating witness and [state Attorney General Michael] Moore as a co-investigator of some sort. And their friendship has raised eyebrows, most recently after The Sun Herald witnessed Moore giving Scruggs a lift to the courthouse before Scruggs testified before the grand jury. … Scruggs has said he does not have an immunity agreement with prosecutors and that he doesn’t need one.” A federal grand jury is expected to reconvene next month to consider the allegations. (Margaret Baker, Tom Wilemon and Beth Musgrave, “Web of connections”, Biloxi (Miss.) Sun-Herald, Jun. 8)(see May 7 and links from there).
MORE ON INVESTIGATION: Thomas B. Edsall, “Mississippi Trial Lawyers Under Inquiry”, Washington Post, May 18; “FBI agent reassigned after questioning ties in judge-attorney probe”, AP/Grenada (Miss.) Star, May 29; Tom Wilemon, Margaret Baker and Beth Musgrave, “Lott, Moore deny influencing probe”, Biloxi Sun Herald/San Jose Mercury News, May 30; “Moore says he has no role in judges probe”, AP/Jackson Clarion Ledger, May 30; “Paper: Lott, judge probers talked”, Jackson Clarion Ledger, Jun. 3. (DURABLE LINK)
June 16-17 – “The rise of the fourth branch”. Our editor’s book The Rule of Lawyers is reviewed in Enter Stage Right by ESR editor Steven Martinovich (Jun. 9). And on Friday Investor’s Business Daily published correspondent David Isaac’s interview with our editor; when we get a stable URL, we’ll post it. (DURABLE LINK)
June 16-17 – “McDonald’s sues food critic”. “McDonald’s has sued one of Italy’s top food critics for raking its restaurants over the coals, but the critic says he has no intention of going back on saying its burgers taste of rubber and its fries of cardboard.” McDonald’s of Italy called the comments by Edoardo Raspelli, food critic of the newspaper La Stampa, “clearly defamatory and offensive”. (Reuters/CNN, Jun. 2; BBC, May 30; Guardian (UK), Jun. 4; “McDonald’s Turns to the Dark Side”, Center for Individual Freedom, Jun. 12). David Farrer at Freedom and Whisky suggests a better approach the company might take (”Shooting themselves in the foot”, May 31). (DURABLE LINK)
June 12-15 – Docs leaving their hometowns. As liability woes worsen, this genre of article is running in papers across the country. Philadelphia, of course: Michael Hinkelman, “Like older docs, young M.D.s fleeing Pa., too”, Philadelphia Daily News, May 28. An example from Corpus Christi, Tex.: Robert M. (Marty) Reynolds, “Why this doctor is leaving his hometown”, Corpus Christi Caller-Times, Apr. 23, reprinted at Texans for Lawsuit Reform site. From Independence, Mo., best known as Harry Truman’s hometown: M. Steele Brown, “Malpractice ‘crisis’ drives docs from Missouri”, Kansas City Business Journal, May 2. And neurosurgery in Seattle faces a crisis as ten local surgeons lose their coverage, forcing hospitals to send patients elsewhere; the ten say they have good records but the chief operating officer of the Doctor’s Company, an insurance provider, “said about half of all neurosurgeons nationwide are sued each year”, which makes it plain enough that plenty of good ones get sued. (Carol M. Ostrom, “A neurosurgeon ‘crisis’: Insurer drops doctors’ group”, Seattle Times, Jun. 7). Meanwhile, the incoming head of the American Bar Association, North Carolinian Alfred P. Carlton Jr., a partner with Kilpatrick Stockton LLP, claims in an interview with The Hill — no fair laughing aloud, now — that “I don’t think there’s any credible evidence that connects anything going on in the justice system to the rise of malpractice insurance rates. My malpractice rates are going up. Everybody’s insurance rates are going up, for all kinds of insurance.” Now there’s a checkable proposition: have insurance rates for life, health, fire, storm, crop and marine risks jumped by 60 or 80 percent on renewal in the past couple of years, the way so many doctors’ liability rates have? (”‘There are abuses at the edges’” (interview), The Hill, Jun. 11). (DURABLE LINK)
June 12-15 – U.K. roundup. “George Blake, the KGB spy who fled to Moscow in 1966, has accused the Government of breaching his human rights by confiscating £90,000 he was expecting to make from his memoirs.” Blake, who escaped from Wormwood Scrubs prison after serving five years of a 42-year sentence for highly damaging work as a Soviet double agent, has petitioned the European Court of Human Rights for the right to the money from the autobiography. (Joshua Rozenberg, “Spy Blake tries to sue Britain for his lost £90,000″, Daily Telegraph, May 16). “Meet Britain’s most prolific race discrimination litigant. Omorotu Francis Ayovuare, a Nigerian-born surveyor, may not have held a steady job for five years: he has, however, earned a certain celebrity in the world of industrial relations after launching 72 employment tribunal cases alleging racial discrimination.” (Adam Lusher and David Bamber, “Give me a job - or I’ll sue”, Daily Telegraph, Jun. 8). (Update Dec. 13: at request of attorney general, court restrains him from further filings). “The Scottish Parliament, fresh from outlawing hunting with dogs, is to force fish-lovers to buy pet licences for exotic species in their garden ponds and aquaria. … Anyone who owns exotic fish without a licence will face fines of up to £2,500.” (Rajeev Syal, “Have you got a licence for that exotic minnow?”, Daily Telegraph, Apr. 6). Enthusiasm about lawsuits to recoup costs of global warming has reached Britain, although as one Oxford physicist told the BBC, “Some of it might be down to things you’d have trouble suing — like the Sun”. (”Suing over climate change”, BBC, Apr. 3). (DURABLE LINK)
June 12-15 – To tame Madison County, pass the Class Action Fairness Act. By ensuring that large nationwide class actions are heard in federal court, the bill would curb the influence of “magic jurisdictions” in which “the judiciary is elected with verdict money”, as one big-league trial lawyer has put it. (Jim Copland, “The tort tax”, Wall Street Journal, Jun. 11; Mr. Copland is associated with the Manhattan Institute’s Center for Legal Policy, as is this site’s editor.). The Madison County, Ill. courthouse “is on pace to have another record year for class-action lawsuits”, reports a local newspaper. (Brian Brueggemann, “Number of lawsuits is 39 and climbing”, Belleville News-Democrat, May 26). Two plaintiff’s law firms, St. Louis-based Carr Korein Tillery and the Wood River, Ill.-based Lakin Law Firm, dominate the filing of class actions in the county (Andrew Harris, “At the head of the class actions”, National Law Journal, Jun. 9). And Madison County personal injury lawyer John Simmons, 35, of Edwardsville, whose law firm in March obtained a $250 million jury verdict for a retired steelworker in an asbestos case against U.S. Steel, “has announced his intention to run for the U.S. Senate seat being vacated by Republican Peter Fitzgerald”. (”Downstate lawyer to enter Democratic primary”, AP/Northwest Indiana Times, May 27). (DURABLE LINK)
July 31 – 1.5 million pages served on Overlawyered.com. Last month set a new visitor traffic record, and this month will set another one …. Thanks for your support!
July 31 – N.J.: 172 nabbed on fake car-crash charges. “Capping a 19-month investigation, prosecutors [July 19] announced the indictment of 172 people in New Jersey, including a medical doctor, a lawyer and two chiropractors, charging them with staging 19 automobile accidents and filing false medical claims totaling more than $5 million. …’Runners’ would recruit drivers and passengers, who would meet ahead of time, typically in West New York, N.J., to discuss details of the staged collisions, which were mostly minor,” according to first assistant Hudson County prosecutor Terrence Hull. “Participants were paid up to $2,500 and would be coached about the types of injuries to fake, Mr. Hull said.” (”False Claims From Fake Crashes Leads [sic] to Charges Against 172″, New York Times, July 20, not online). Meanwhile, a detailed Boston Globe front-page investigation finds that lawyers employing “runners” to bring in accident business are contributing to a sharp run-up in the cost of auto insurance fraud in Massachusetts; one of the state’s biggest personal injury law firms “is under investigation by federal authorities for participating in a criminal scheme that resulted in more than $50,000 worth of claims being filed from a staged accident.” (Stephen Kurkjian, “Injury claims flourish in loophole”, Boston Globe, July 16; “Study ID’s high injury claim areas”, July 19). “Massachusetts is not alone in experiencing a dramatic increase in payments for suspicious injuries from minor automobile accidents. Fed by runners who are arranging for faked accidents and phony personal injury claims, medical payments made by auto insurers jumped by more than 30 percent last year in New York, according to a study by the Insurance Information Institute, an industry research group, in March.” (more).
July 31 – Global warming suit? “States like Bangladesh that are the victims of climate change have a good case in law for suing polluters like the United States for billions of dollars, a law professor will tell a London conference today. With the US delaying action on climate change and President George Bush refusing to ratify the Kyoto protocol, the case for court action is becoming overwhelming, according to Andrew Strauss, of the school of law at Widener University, Delaware.” (Paul Brown, “Rich nations ‘could be sued’ by climate victims”, The Guardian (U.K.), July 10) (& see Aug. 19, 1999).
July 31 – “The Lost Art of Drawing the Line”. “The air in America is so thick with legal risk that you can practically cut it and put in on a scale,” says Philip Howard, attorney at Covington & Burling and author of the new book The Lost Art of Drawing the Line, which was preceded by his bestselling The Death of Common Sense. Howard is working with the founders of the Concord Coalition to establish something to be called the Common Sense Coalition. “The trial lawyers have to be taken on,” he says. “Leadership is required by whoever can get public attention.” (Lucy Morgan, “Author sees good sense as cure for what ails us”, St. Petersburg Times, July 28; official book site; Diane Rehm show, June 5; William Galston, “The Art of Judgement” (review), Washington Monthly, July/August; Cass Sunstein, “The Stifled Society” (review), The New Republic, July 9; Pete DuPont, National Center for Policy Analysis, “Drawing the Line”, May 1).
July 30 – “Couple sues over flaming Pop-Tart”. In Washington Township, N.J., Brenda Hurff and her husband are “suing the Kellogg Co. for $100,000 in damages caused to their home when an unattended Pop-Tart allegedly burst into flames inside their toaster.” A spokesman for the Battle Creek, Mich., cereal maker counters: “Pop-Tarts are safe and do not cause fires.” (Reuters/CNN, July 28; Jake Wagman, “From toaster to lawsuit”, Philadelphia Inquirer, July 28).
July 30 – Mommy, can I grow up to be an informant? Controversy mounts over large payouts ($40 million in one case, $25 million in another) under the False Claims Act to “whistle-blowers” who rat out overbilling by government contractors in health care, defense and other areas. “‘I think it’s a ridiculous ripoff of the taxpayers’ money,’ said U.S. Representative John Duncan, a Texas Republican, who has proposed a $1 million cap on rewards. ‘I don’t mind some compensation for these people, but I do not think they should be allowed to make off like bandits.’” A lawyer who represented one of the informants in the $40 million case takes a different view: ”It’s almost got to be set up like the lottery or very few people in their right mind would do this.” An informant given only $12 million for his work on an overbilling case against Quorum Health Group has gone to court to demand more, calling the figure “insulting” (Alice Dembner, “Whistle-blower windfalls questioned”, Boston Globe, July 29). Last year the U.S. Supreme Court upheld the constitutionality of the act’s informant (”relator”) provisions, but ruled that state governments cannot be named as defendants (Francis J. Serbaroli, “Supreme Court Clarifies, Broadens Antifraud Laws”, New York Law Journal, July 27, 2000, reprinted at Cadwalader, Wickersham & Taft site)(more on False Claims Act: Sept. 9, 1999; Jan. 18, 2000; April 30, 2001).
July 30 – N.J. court declares transsexuals protected class. Earlier this month an appeals court in the Garden State ruled that “gender dysphoria”, or dissatisfaction with the gender one has been assigned at birth, is protected as a handicap under the state’s disabled-rights law. In addition, it declared that by banning employers from discriminating on grounds of sex the law actually bans them from discriminating on the basis of “qualities society considers masculine or feminine”. The American Civil Liberties Union was overjoyed, but our editor, quoted by Fox News, was not. (Catherine Donaldson-Evans, “Transsexual Rights in Spotlight Following N.J. Court Ruling That Condition a Handicap”, Fox News, July 9; Mary P. Gallagher, “Transsexuals Held to be Protected Class Under New Jersey Law”, New Jersey Law Journal, July 11) (more transsexualism cases: March 23, 2001, May 31, 2000).
July 27-29 – Welcome New York Times readers. John Tierney’s column on overzealous prosecution quotes our editor and mentions this site. (”The Big City: Prosecutors Never Need to Apologize”, July 27)(reg).
July 27-29 – Report: “medical errors” studies overblown. “Alarming studies suggesting that medical errors kill close to 100,000 U.S. hospital patients each year probably overestimate the problem, with the real total perhaps 5,000 to 15,000, researchers say.” Readers of this space will not be surprised. The higher estimates have been much cited by Ralph Nader and others to promote medical malpractice litigation, but they rest on case-review studies whose format is problematic because reviewing doctors show little consensus as to which cases involve errors and which errors cause or hasten death, according to the new report in the Journal of the American Medical Association. In addition, “clinicians estimated that only 0.5 percent of patients who died would have lived three months or more in good cognitive health if care had been optimal.” (”Number of Medical-Error Deaths Overestimated, Researchers Say”, AP/ FoxNews.com, July 24; “Researchers Question Data on Fatal Medical Errors”, Reuters/ABC News, July 24; “Findings: Study Disputes Report on Fatal Medical Errors”, Washington Post, July 25; Rodney A. Hayward and Timothy P. Hofer, “Estimating Hospital Deaths Due to Medical Errors: Preventability Is in the Eye of the Reviewer,” JAMA, July 25; National Academies report on medical errors, 1999).
July 27-29 – Needed: assumption of risk. Community swimming holes are disappearing, and one reason is landowners’ fear of litigation, reports the New York Times. “In New York, landowners have become particularly wary of swimmers,” because state law pointedly omits swimming from a list of activities that they can permit to visitors without fear of liability. “Though recreation groups have lobbied to expand the law to include swimming, these efforts have been blocked by the state’s trial lawyers. ‘We have done everything we could to slip it in,’ said Neil F. Woodworth, deputy executive director of the Adirondack Mountain Club. (Winnie Hu, “Keep Out: The Water’s Fine, but Private”, New York Times, July 23 (reg)). First-time skydiver Paul Bloebaum is suing Archway Skydiving Center in Vandalia, Ill. over injuries incurred in his maiden jump; he “wants a judge to throw out the lengthy waiver he signed before he jumped and make Archway responsible for his injuries. Bloebaum wrote his initials beside all 25 paragraphs of the release.” (”Company Sued Over Skydiver’s Fall”, AP/Fox News, July 25). And Atlanta Braves outfielders, after catching third outs to end an inning, routinely throw the balls to fans in the stands, but now a woman is suing star centerfielder Andruw Jones saying she was hit in the face when he did that recently (Carroll Rogers, “Bullpen becoming a strength”, Atlanta Journal-Constitution, July 22 (third item)). However, a Michigan appeals court “has overturned a million-dollar verdict against the Detroit Tigers for injuries suffered by a child hit by a baseball bat splinter.” (Alan Fisk, “$1 Million Ballpark Injury Award Strikes Out”, National Law Journal, July 27).
July 27-29 – Chandra, Monica, and sex-harass law. Why is the furtive liaison between the ardent young woman and the powerful older man still so common in Washington, D.C.? “Politicians are immune from the sexual harassment systems that protect young women in corporate workplaces and academia, where the presumption has become that the older male will say no or face brutal consequences. These kinds of advances would cost your political science professor his job. In an office, it would be sexual harassment. In D.C., it’s still 1951, and young girls are still curvy temptresses.” (Dahlia Lithwick, “G-Girl Confidential”, Slate, July 25).
July 27-29 – Feeling queasy? Litigation over E. coli food poisoning has proliferated rapidly, so much so that there’s now a law firm whose specialty consists of filing cases over the nasty bacterium. (”E. Coli’s Twisted Tale of Science in the Courtroom and Politics in the Lab”, Los Angeles Times, June 6, reprinted at STATS).
July 26 – Welcome CourtTV.com visitors. This week the cable network’s online “Caught in the Web” feature profiles “the hub of all things legally absurd on the Net”, from its origins on our editor’s hard drive as “an out-of-control file of favorite bookmarks” to our current popularity on who knows how many continents (key to the editorial mix: “frequent food pellets” so that you regular readers “keep on pressing the lever”). Seriously, this counts as the most comprehensive profile of the site that’s appeared anywhere, for which we’re grateful to CourtTV.com correspondent Adrien Seybert (the opening Shakespeare line didn’t actually come up in our talk, though) (”Chasing the Ambulance Chasers”, July 25). Also: we’re a web pick of the week for Australia’s FHM (”It’s a Guy Thing”); Herff.com (”Neat stuff on the Internet” — see “Shark Indigestion”); Follow Me Here weblog, early July (450k).
July 26 – Dispute over $118 pizza bill costs $18,000. Nebraska: “Lancaster District Court Clerk Kelly Guenzel is now pondering whether she should go to court to force the county to pay the $18,000-plus in legal fees she racked up defending herself against a charge she misused public funds in reimbursing herself for $118.76 worth of pizza.” (”Pizza bill just grows and grows” (editorial), Lincoln Journal-Star, undated (sent to us July 20))
July 26 – Latex liability, foreseeable or not. “Bucking a national trend in design defect cases, the Wisconsin Supreme Court upheld a jury’s finding that a brand of latex gloves was defectively designed, even though no one, including the manufacturer, was aware of latex-related health problems until years after the brand was put on the market.” Rejecting the argument that the company should be liable only for foreseeable risks, the court ordered Smith & Nephew AHP Inc. to pay $1 million to Linda M. Green, who developed a latex allergy from the naturally occurring substances found in the gloves. (Gary Young, “Defective Latex Glove Costs $1 Million”, National Law Journal, July 23).
July 26 – “Criminals could sue their victims”. Dateline U.K.: “Criminals could find it easier to sue members of the public who injure them while defending their homes, under Law Commission reforms proposed yesterday. … The recommendations are open for consultation until the autumn when a final report is made to Parliament.” (Frances Gibb, The Times (London), June 29).
July 26 – Quiz: which are the made-up cases? Funny L.A. Times feature where you have to guess which outlandish news report isn’t true: “Hypersensitivity, political correctness and frivolous lawsuits are taking over the world. Increase your awareness with this handy quiz.” (Roy Rivenburg, “It’s Truly a Dangerous World Out There”, July 24) (via Kausfiles).
July 25 – By reader acclaim: “Parents file suit over son’s drug death”. “The parents of an 18-year-old University of Florida student who died after taking OxyContin last year have filed a lawsuit against the drug’s manufacturer and the pharmacy chain where one of Matthew Kaminer’s friends stole the painkiller.” Kaminer was found dead in a fraternity house bedroom after taking one of the pills, stolen by another student from an Eckerd drugstore. “The powerful painkiller was designed to combat chronic pain with a time-release formula,” but abusers chew the capsules in order to get “an immediate, heroin-like high.” The parents are blaming drugmaker Purdue Pharma as well as the Eckerd chain. (Erika Bolstad, Miami Herald, July 24) (via WSJ OpinionJournal.com “Best of the Web“).
July 25 – 220 percent rate of farmer participation. “In a 1999 major class-action settlement, the Clinton administration agreed to pay $50,000 to each black farmer who had suffered discrimination at the hands of the federal government. As of 2001, some 40,000 people have applied for their cash. The problem is, according to the Census Bureau, there are only 18,000 black farmers in the country.” (Steve Brown, “Settlement Is a Crass-Action, USDA Employees Say”, Fox News, July 14).
July 25 – “Trial lawyers derail Maryland small claims reform”. “In an unexpected setback to small claims reform, on May 17 Maryland Governor Parris Glendening vetoed HALT-supported legislation, despite its unanimous approval by both houses of the state legislature.” The legislation would have raised the jurisdiction of Maryland’s small claims court from $2,500 to $5,000, and eliminated formal pleadings in cases below $2,500, reducing the occasion for disputants to hire lawyers. “According to his message, Glendening acted in response to concerns that ‘prompted the Maryland Trial Lawyers Association to request a veto of this bill.’ … The Maryland Trial Lawyers Association organization was one of the largest institutional supporters of Glendening’s 1998 reelection campaign, donating $12,000 to him directly and spending about $110,000 on radio and television advertisements supporting him.” (Tom Gordon, HALT.org “Legal Reformer”, Spring) (more on small claims: Sept. 29, Oct. 3 and (letters) Oct. 5, 2000) (& see letter to the editor, Aug. 1).
July 25 – Yesterday’s visitors to this site came from domains including eop.gov, usdoj.gov, sec.gov, nrc.gov, treas.gov, ornl.gov; dowjones.com, trib.com, usnews.com, disney.com; boeing.com, gendyn.com, lucent.com, ibm.com, fujitsu.com, honeywell.com, att.com, philips.com, pg.com, ual.com, oracle.com, cat.com, sun.com, cisco.com, intel.com, pge.com, roche.com…
…columbia.edu, uiuc.edu, asu.edu, uncg.edu, american.edu, lu.se, uoregon.edu, ucsd.edu, stanford.edu, utoronto.ca, gatech.edu, rutgers.edu, auckland.ac.nz, wustl.edu, upenn.edu; state.mn.us, state.fl.us, state.oh.us, state.mo.us; omm.com, debevoise.com, kirkland.com, ffhsj.com, lockeliddell.com, corboydemetrio.com, atlahq.org (which has been poking around here a lot lately); army.mil, af.mil, navy.mil, nipr.mil; thehartford.com, prudential.com, statefarm.com, travelers.com, fanniemae.com, bear.com, schwab.com, jpmorgan.com, socgen.com, agedwards.com, norwest.com, tiaa-cref.org; cato.org, cir-usa.org; jcpenney.com, fedex.com, ups.com; bigpond.com, gc.ca, gov.au, and asce.org, among many, many others including countless local ISPs. Moral: your competitors read us regularly, so there’s no reason why you should feel guilty about doing so too.
July 24 – “The Louima millions”. “Last week, after the Giuliani administration and the Patrolmen’s Benevolent Association agreed to pay [Abner] Louima nearly $9 million to settle his police brutality lawsuit, Louima said he did not feel like a rich man. That’s because Louima cannot touch one dime until he settles a bitter quarrel with [his lawyers]“. The dispute pits the lesser-known attorneys who originally represented Louima against the high-profile trio of Johnnie Cochran, Barry Scheck, and Peter Neufeld (”Johnnie- come- latelies”) who took over afterward. Before getting to the juicy particulars, be sure to catch the opening quote, from an attorney named Harold J. Reynolds: “So ingrained and unexamined is the notion of the one-third contingency fee that it has taken on the character of a natural law. … if liability and recovery were certain, then there is no contingency that Louima’s lawyer is risking … [and the operation of the fee percentage] would have done nothing except guarantee to that lawyer a freight train of money that should have been paid to Abner Louima.” (Peter Noel, Village Voice, July 18-24). More on why contingency fees are so seldom discounted: Judyth Pendell (Manhattan Institute), “Price Colluder, Esq.”, Forbes, July 23, reprinted at MI site. Update: see Nov. 8-10, 2002.
July 24 – Junk fax litigation: blood in the water. We’ve covered the saga of junk fax litigation, in which federal law allows class action lawyers to demand $500-$1,500 per unsolicited fax sent, which means the sums at stake can quickly mount up to enormous levels (see Oct. 22, 1999; March 3, 2000; March 27, 2001). Now the New York Times weighs in to report a number of recent breakthroughs for the lawyers, including a recent $12 million judgment that forced Hooters of Augusta, Ga., a unit of the national restaurant chain, to declare bankruptcy; it had been an advertiser in six omnibus fax mailings sent to 1,321 customers. Some more new developments: “Last month, a South Carolina judge approved a settlement of another class-action suit in which a North Charleston Ramada Inn paid $450,000 for sending thousands of faxes advertising a New Year’s Eve celebration. Last week, a Texas judge authorized a class-action trial of claims on behalf of thousands of people who received fax advertisements from an apartment rental company.” (William Glaberson, New York Times, July 22 (reg)).
July 24 – “Melbourne man patents the wheel”. “A Melbourne man has patented the wheel. Freelance patent attorney John Keogh was issued with an Innovation Patent for a ‘circular transportation facilitation device’ within days of the new patent system being invoked in May. But he has no immediate plans to patent fire, crop rotation or other fundamental advances in civilisation. Mr Keogh said he patented the wheel to prove the innovation patent system was flawed because it did not need to be examined by the patent office, IP Australia.” (Nathan Cochrane, The Age (Melbourne), July 2).
July 23 – “2nd Circuit Upholds Sanctions Against Firms for Frivolous Securities Claims”. “The 2nd U.S. Circuit Court of Appeals has upheld sanctions against two law firms for pursuing frivolous securities claims. New York’s Schoengold & Sporn and Philadelphia’s Berger & Montague were sanctioned a total of $84,153 based on the fact that under a settlement advocated by Schoengold & Sporn, the plaintiff class in the case would have received nothing, while the firm would have been paid $200,000.” Trial judge Shira Scheindlin had reduced the sanctions against Berger & Montague after concluding that it had acted to a significant extent at the direction of the other class-action firm. (Mark Hamblett, New York Law Journal, July 16).
July 23 – Stories that got away. News items from recent months that fell through our editorial cracks at the time, but better late than never:
* Sacramento Bee investigation of the state of the environmentalist movement includes a look at the extent to which some lawyers may be using endangered-species complaints as a way of generating legal fees for themselves (Tom Knudson, “Litigation central: A flood of costly lawsuits raises questions about motive”, April 24) (series). See also Michael Grunwald, “Endangered List Faces New Peril,” Washington Post, March 12; “Protect Animals, Not Lawyers” (editorial), Detroit News, May 7; “Congress Grapples With Endangered Species Law”, AP/Fox News, May 9. And the more recent controversy over agricultural water use in Klamath Falls, Ore., reminds us of the “enclosures” by which upper-class landowners tossed tenant farmers off the land in early industrial England: Michael Kelly, “Evicted by Environmentalists”, Washington Post, July 11 (& letter to the editor in response from Brock Evans, July 13).
* The still-in-progress controversy over whether the Digital Millennium Copyright Act really allows the recording industry to keep a Princeton professor from publishing a research paper on the subject of breaking digital music encryption (Declan McCullagh, “Watermark Crackers Back Away”, Wired News, April 26; Janelle Brown, “Is the RIAA running scared?”, Salon.com, April 26; Brenda Sandburg, “Recording Industry Sued in Battle Over Research”, The Recorder, June 7). See also Carl S. Kaplan, “CyberLaw Journal: Does an Anti-Piracy Plan Quash the First Amendment?”, New York Times, April 27; Brad King, “ISPs Face Down DMCA”, Wired News, Dec. 23, 2000).
* That odd case from Everett, Wash. where a federal judge “has thrown out the kidnapping and sexual assault convictions of a man who had argued he was not responsible for those crimes because another of his 24 separate personalities had committed it.” A Snohomish County judge declared the multiple personality defense inadmissible, but “U.S. District Judge Marsha J. Pechman in Seattle ruled Friday that it was up to the trial court to clarify the question for jurors by establishing standards for assessing legal responsibility.” (”Judge Throws Out Conviction of Multi-Personality Defendant”, AP/Fox News, June 12).
Point of Law