- Speech-curbing proposals continue to get polite academic reception: NYU’s Jeremy Waldron, big advocate of laws to curb “hate speech”, delivered Holmes Lectures at Harvard this past week [HLS, schedule]
- Lawsuit over collectible baseball hit into stands by Phillies’ Ryan Howard, his 200th career homer [Howard Wasserman, PrawfsBlawg; NJLRA]
- Orchid-importer prosecution a poster case for the evils of overcriminalization? Maybe not [Ken at Popehat]
- Texas State Fair and city of Dallas don’t have to allow evangelist to distribute religious tracts inside the fair, judge rules after three years [Dallas Observer blog]
- Drug maker: FDA’s curbs on truthful promotion of off-label uses impair our First Amendment speech rights [Beck and Herrmann and more, Point of Law and more]
- Did plaintiff Eolas Technologies go to unusual lengths to ensure Eastern District of Texas venue for its patent litigation? [Joe Mullin, IP Law and Business via Alison Frankel, AmLaw]
- Update: “Lesbian Denied Infertility Treatment Settles Lawsuit” [San Diego 6, earlier]
- Even in the Ninth Circuit, “psychological injury resulting from a legitimate personnel action” is not compensable [Volokh]
Tagged as:
baseball,
crime and punishment,
Dallas,
Eastern District of Texas,
emotional distress,
FDA,
forum shopping,
free speech,
Harvard,
hate speech,
law schools,
off-label,
patent litigation,
prosecution,
workers' compensation
- The wages of addiction: former basketball star Roy Tarpley settles his $6.5 million ADA lawsuit against NBA and Dallas Mavericks [Randy Galloway, Fort Worth Star-Telegram, Sports Law Blog]
- One result of litigation-fed “vaccines cause autism” scare: parents turn to dangerous quack treatments [Arthur Allen, Slate; in-depth coverage at Kathleen Seidel's and Orac's sites]
- Julie Hilden on First Circuit “true statements can be defamatory” ruling [FindLaw, earlier here and here]
- More coverage of conviction of Kentucky lawyers for grabbing much of fen-phen settlement [Louisville Courier-Journal, earlier]
- Judge dismisses most counts in lawsuit against Richard Laminack of Texas’s O’Quinn law firm [Texas Lawyer, earlier; FLSA overtime claims remain]
- All but three of the outstanding 9/11 airline suits due to settle for $500 million [AP/NorthJersey.com]
- One needn’t make the Community Reinvestment Act a scapegoat for unrelated credit woes to recognize it as an ill-conceived law [Bank Lawyer's Blog]
- U.K.: Woman who plays classical music to soothe horses told she must pay for public performance license [Telegraph]
Tagged as:
autism,
aviation,
banks,
copyright,
Dallas,
disabled rights,
Kentucky fen-phen settlement fraud,
September 11,
sports,
vaccines
Jacob Sullum at Reason “Hit and Run” (Dec. 10):
I want to write a blog post about H. Walker Royall, the Dallas developer who sues people when they criticize his abuse of eminent domain, but I’m afraid he’ll sue me. After all, he sued Wright Gore III over a website that detailed the city of Freeport’s attempt to condemn land occupied by the Western Seafood Company, a business owned by Gore’s family, so Royall could use it for a luxury marina project. And he sued Carla Main, a journalist who wrote a book about the legal struggle over the Gores’ land, along with her publisher, Encounter Books [also a publisher of mine -- W.O.]. He sued University of Chicago law professor Richard Epstein, one of the country’s leading authorities on eminent domain, for writing a blurb that appeared on the cover of Main’s book. He even sued two newspapers that published reviews of the book.
So after thinking carefully about my potential legal exposure, I have decided not to say that Royall…
I can’t go on. I just can’t. I’m so scared of Royall that I can’t even repeat the colorful epithets that Sullum might apply to Royall if he dared (which he doesn’t) for fear that Royall will then find some excuse to sue me too. But you can go read them if you dare. More: Tim Sandefur, PLF on Eminent Domain.
Tagged as:
Dallas,
H. Walker Royall,
libel slander and defamation,
Richard Epstein
- Don’t miss Roger Parloff’s tour de force coverage in Fortune blowing whistle on that dodgy suit in Moscow against Bank of New York Mellon, adorned by participation of lawprofs Dershowitz and Blakey [PoL overview, main article]
- Digital remixes and copyright law [Lessig, WSJ]
- Surgeon at Connecticut’s Greenwich Hospital revealed as drug abuser, Koskoff, Koskoff & Bieder now pressing suit on behalf of general class of patients, which sounds like it means “whether harmed or not” [Greenwich Time, Newsday via TortsProf weekly roundup]
- Chicago sheriff halting foreclosures, or maybe not, reportage is confused [Reuters, big discussion at Steve Chapman blog] And is Obama taking the idea national with bid for 90-day moratorium on foreclosures? [AP]
- Foie gras-style financial gavage? “None of banks getting government money was given a choice about it, said one of the people familiar with the plans.” [Bloomberg, Bernstein @ Volokh] More: Ann Althouse, Kuznicki/Cato at Liberty.
- Trey Allen law firm in Dallas agrees to pay $840,000 restitution after profiting from staged car crash scheme, but Allen’s lawyer says client wasn’t aware of any fraud [ABA Journal]
- Smoking bans, alcohol taxes contributing to steep decline of English village pubs [Newsweek]
- Bias-law panel rules Wal-Mart within its rights not to hire a female applicant for Santa Claus position [eight years ago on Overlawyered]
Tagged as:
alcohol,
banks,
Barack Obama,
Chicago,
Connecticut,
copyright,
crash faking,
Dallas,
harmless lawsuits,
hospitals,
smoking bans,
Texas,
United Kingdom
Fort Worth Star-Telegram consumer columnist Dave Lieber, 50, had an argument with his son in the restaurant parking lot the morning of Aug. 13, told him to walk home, but doubled back to return minutes later after thinking better of it. Police later arrested him on two felony charges of child abandonment. Watauga, a suburb of Fort Worth, has crime rates well below the national average. (Alex Branch, “S-T Watchdog columnist Dave Lieber arrested”, Fort Worth Star-Telegram, Aug. 27; Dave Lieber, “How parents can learn from serious mistakes”, Fort Worth Star-Telegram, Aug. 15; Chuck Lindell, “Father’s arrest ignites debate over child abandonment”, Austin American-Statesman, Aug. 28).
Tagged as:
child protection,
crime and punishment,
Dallas
We described the Dallas attorney as poster boy for legal ethics for his astoundingly brazen conduct in the scandal over an asbestos testimony-coaching memo. Now his name is hitting front pages on the John Edwards-Rielle Hunter affair:
Dallas lawyer Fred Baron told The Dallas Morning News today that he paid relocation and housing expenses for the woman that former presidential candidate John Edwards has confessed to having an affair with.
Mr. Baron, who was chairman of Mr. Edwards’ presidential campaign finance committee, said he paid money for Rielle Hunter to move from North Carolina to another location. …
He said Mr. Edwards did not know about the arrangement.
(Gromer Jeffers Jr., “Dallas lawyer Fred Baron paid for Edwards’ mistress to relocate”, Dallas Morning News, Aug. 8).
More coverage of Edwards’s (partial or otherwise) confession: ABC News, AP, Memeorandum, Marc Ambinder, Ben Smith/Politico, News & Observer, Just One Minute, Shaun Mullen/Moderate Voice. Readers will remember that Ted had the story very, very early, before it was much noticed even on the blogs (more). As for Edwards’s own credibility, Mickey Kaus, whose news judgment in pursuing the matter now stands vindicated, has this to say: “There is now one player in this scandal with far less credibility than the National Enquirer, after all.”
More: Byron York at NRO “Corner” quotes the Raleigh News & Observer account with Baron’s statement:
“I decided independently to help two friends and former colleagues rebuild their lives when harassment by supermarket tabloids made it impossible for them to conduct a normal life,” Baron, a Dallas trial lawyer said in a statement, Rob Christensen reports.
“John Edwards was not aware that assistance was provided to anyone involved in this matter,” Baron said. “I did it of my own voilition and without the knowledge, instruction, or suggestion of John Edwards or anyone else. The assistance was offered and accepted without condition.”
York points out:
Hunter and Young, the recipients of Baron’s generosity, were not high-ranking officials in the Edwards campaign. How Baron got to know them and how he decided to fund their move to California, and why he decided to do so without Edwards’ knowledge, might be the subject of more questions as the Edwards matter goes forward.
Blogger Gina Cobb hopes the window of Baron’s generosity is still open:
I am touched and moved by your generosity. I especially like the part about “The assistance was offered and accepted without condition.” Accordingly, I would like to request the same generosity from you. Henceforward, I would like you to rent me an enormous house and pay my living expenses in perpetuity. I can assure you that the assistance you offer will be accepted without condition.
And see Ted’s follow-up post.
Tagged as:
Dallas,
Fred Baron,
John Edwards,
politics,
Rielle Hunter
We hear frequently that the medical profession doesn’t do enough to police its own. Cases like that of Lawrence Poliner might explain why. In 1997, in response to complaints by nurses at Presbyterian Hospital of Dallas, and the allegation by a doctor that Poliner had performed an angioplasty on the wrong artery, the hospital asked Poliner to stop work while they investigated. These limited privileges lasted 29 days, followed by a unanimous decision to suspend, a five-month suspension from echocardiography privileges, and then reinstated Poliner five months later subject to conditions that he consult with other cardiologists.
For this, Poliner sued for defamation and under federal antitrust law, alleging that other cardiologists were trying to dominate the market and prevent his competition. The five-month suspension had federal immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. (just one of many federal tort reforms that promote safety), but the trial court held that the 29-day limited-privileges created a cause of action that should go to a jury. Poliner lost $10,000 in income over that time “but was awarded more than $90 million in defamation damages, nearly all for mental anguish and injury to career. The jury also awarded $110 million in punitive damages”–despite the fact that Poliner would have to prove damages were caused by the allegedly unprivileged temporary limitation rather than by the five-month suspension. We covered the initial $366 million verdict in 2004, the outraged medical blogosphere reaction, and the remittitur to a still ludicrous $22.5 million in 2006.
[click to continue…]
Tagged as:
antitrust,
Dallas,
hospitals,
jackpot justice,
medical,
noneconomic damages,
sued if you do
There was an auto accident in Dallas; plaintiffs sued Volkswagen in Marshall, Texas, in the notoriously plaintiff-friendly Eastern District of Texas, which has a hugely abnormal number of product liability cases—17% of all federal automobile product liability lawsuits in the United States. Let us quote from In re Volkswagen of America, Inc., 506 F.3d 376 (5th Cir.2007), earlier discussed on POL Nov. 27 and Feb. 23:
Volkswagen moved to transfer venue to the Dallas Division of the Northern District of Texas (”Dallas Division”). Volkswagen asserted that a transfer was warranted as (1) the Volkswagen Golf was purchased in Dallas County, Texas; (2) the accident occurred on a freeway in Dallas, Texas; (3) Dallas residents witnessed the accident; (4) Dallas police and paramedics responded and took action; (5) a Dallas doctor performed the autopsy; (6) the third-party defendant lives in Dallas County, Texas; (7) none of the plaintiffs live in the Marshall Division; (8) no known party or significant non-party witness lives in the Marshall Division; and (9) none of the facts giving rise to this suit occurred in the Marshall Division.
The district court refused to transfer to the Northern District, VW sought mandamus, and got it on the second try, with the Fifth Circuit ordering transfer. (See also John Council, “5th Circuit Restricts Trial Courts’ Discretion in Venue Motions”, Texas Lawyer, Nov. 5; John Council, “5th Circuit Case Could Reduce Product Liability Caseload in Texas’ Eastern District”, Texas Lawyer, Aug. 7).
In February, however, the Fifth Circuit vacated the decision, and granted en banc rehearing. Argument is Thursday in New Orleans, and the decision will determine whether the Fifth Circuit will tolerate forum shopping in the federal courts. (Michelle Massey, “Appeals court scheduled to hear arguments over forum shopping”, SE Texas Record, May 20). The case is of special importance to the patent bar, given the fact that Marshall, Texas, has become the unlikely capital of United States patent litigation. Blog coverage: PatentlyO, Prior Art.
En banc briefs in 07-40058, In re Volkswagen AG:
Department of Strangely Shifting Academic Positions: In December 2007, law professor Georgene Vairo wrote a LexisNexis Expert Commentary on the Volkswagen case explaining its consistency with Supreme Court precedents, and writing
The Fifth Circuit is not alone in permitting the use of mandamus in limited circumstances. For example, in Lemon v. Druffel, 253 F.2d 680 (6th Cir. 1958), a case decided shortly after Congress codified § 1404(a), the Sixth Circuit ruled that mandamus was an appropriate remedy to test a district court’s discretion on a motion to transfer.
In April 2008, she signed on to a brief taking precisely the opposite position, which does not cite Lemon. Curious.
Overlawyered has more on the Eastern District of Texas, and on Judge T. John Ward.
Tagged as:
autos,
Dallas,
Eastern District of Texas,
forum shopping,
Judge Ward,
problem jurisdictions,
procedure,
Volkswagen
Pulitzer-prize winning columnist Leonard Pitts Jr.:
Anna from Estonia mak[es] it a point to show visiting friends a sight they could never see in the old country. They laugh, they point, they whip out cameras and take pictures. Of the Everglades? No. Of Mount Rushmore or Lady Liberty? No.
Anna said they take pictures of the idiot signs. These she said, crack her friends up. “Caution: Coffee is hot.” Apparently, elsewhere in the world, you don’t need a sign to know this.
More on the deservedly infamous McDonald’s coffee case. Similar discussion: March 2.
Tagged as:
Dallas,
hot coffee,
McDonald's,
personal responsibility,
Stella Liebeck,
wacky warnings
- Telemarketers working for lawyers and chiropractors “line up every day” at police and public records offices to buy car-crash records [Dallas Morning News]
- Nice work if you can get it: Bernardine Dohrn’s terrorist-to-lawprof career track [Kass, Chapman @ Chicago Tribune, Ed Morrissey/HotAir, PoL, Horowitz/DtN, Daily Northwestern/FrontPage, Malkin, Power Line]
- Mystery of embattled Florida debt-relief law firm Hess Kennedy (Mar. 6) deepens as whereabouts of lawyer Edward Kennedy are questioned [ABA Journal]
- Criticism mounts of Calif. AG Jerry Brown’s lawsuits using global warming theories to force higher-density development [Stewart/LA Weekly, Walters/SacBee, via Kaus, scroll]
- Kevin Pho (KevinMD.com) on defensive medicine [USA Today]
- Colorado firm says lawsuit’s “settlement mill” allegations are concocted “by a competitor who doesn’t like (Azar’s) advertising.” [Colorado Springs Gazette]
- Hey, you can rig up a disposable camera to give you a little shock; it might also give you a D felony record under school zero tolerance [WTNH via Greenfield]
- One good thing about those anonymous snitchlines for domestic abuse, you don’t have to worry about bogus calls or anything like that [Colorado Springs Gazette on Texas polygamist raid backstory]
- Lawyers get $2 million in fees in Netflix class action [WSJ law blog; earlier]
- Supreme Court refuses cert on that very curious $112 million (originally $1 billion) land-contamination verdict from Louisiana [Exxon v. Grefer, Dow Jones/Fortune; CalPunitives link roundup; earlier; more background at Laura Hart/Louisiana Law Blog]
- Cow-pie bingo event falls victim to liability fears [three years ago on Overlawyered]
Tagged as:
attorneys general,
attorneys' fees,
Bernardine Dohrn,
chasing clients,
class action settlements,
Colorado,
Dallas,
defensive medicine,
Exxon,
global warming,
Hess Kennedy,
jackpot justice,
Jerry Brown,
Louisiana,
punitive damages,
regulation through litigation,
roundups,
zero tolerance
It started as a joke, but Bozeman, Mont. attorney Christopher Gillette is going through with the ambitious aquarium installation, whose saltwater inhabitants will include venomous fish as well as sharks. [Bozeman Daily Chronicle; AP/El Paso Times] In the 1980s the now well-known law firm of Bickel & Brewer adopted the snake exhibit at the Dallas Zoo. (Mark Donald, “Rambo Justice”, Dallas Observer, Mar. 19, 1998).
Tagged as:
Dallas,
Montana,
overzealous advocacy
Ethnic discrimination by proxy? “‘I believe controlling the color you paint your house is basically profiling the Hispanic community,’ said Elizabeth Villafranca, whose family owns a Mexican restaurant in [Dallas, Texas suburb] Farmers Branch. ‘We all know who paints their homes tropical colors.’” (Anabelle Garay, “Hispanics see red over proposal”, AP/Bryan-College Station Eagle, Oct. 10). More: Virginia Postrel weighs in.
Tagged as:
Dallas,
environment
How pathetic is the State Bar of Texas when it comes to protecting clients from rogue lawyers? This pathetic:
Dallas attorney Bruce Patton has a clean disciplinary record, according to the State Bar’s Web site, which provides profiles of the state’s 80,000 or more practicing attorneys. But consider this before you hire him to draft your will: Patton is in state prison after being convicted of a felony two years ago….
The Texas Legislature and Supreme Court, which share a role in establishing ethics rules for attorneys, have made it so that the public stays in the dark about thousands of lawyers accused of misconduct. Bar confidentiality rules ensure that many sanctions are private and that lawyers accused of felonies can continue practicing. The Bar doesn’t require attorneys to report their criminal record or malpractice suits.
The Fort Worth Star-Telegram’s disturbing investigation goes into considerable detail, and mentions a couple of cases that will be familiar to readers of this site: “San Antonio attorney Ted Roberts, charged with stealing $100,000 from his wife’s lovers, was recently convicted, two years after being indicted. He faces a five-year sentence. The Bar didn’t suspend him until June and is now recommending disbarment.” And: “The firm of John O’Quinn, one of the state’s wealthiest personal-injury lawyers, was ordered by an arbitration panel this summer to pay $35 million to former clients who say he overbilled them for expenses, but no mention of that order is on the Bar’s Web site.” (Yamil Berard, Fort Worth Star-Telegram, Aug. 19; “Panel seeks changes in Bar’s disciplinary system for lawyers”, Aug. 19). More: GruntDoc wonders whether doctors can expect a similar concern for confidentiality.
Tagged as:
bar associations,
Dallas,
ethics,
John O'Quinn,
Roberts sextortion,
Texas
“A lot of plaintiff lawyers simply use the litigation process to find out whether it’s a good case as opposed to trying to find that out before they sign it up,” Mr. Johnston says.
– from a profile of Randy Johnston, a Dallas lawyer who specializes in plaintiff’s legal malpractice work. (Cheryl Hall, “Randy Johnston is a lawyer who sues other lawyers”, Dallas Morning News, Aug. 20).
Tagged as:
Dallas,
discovery,
ethics
A “slam dunk” story for the day after the NBA Draft:
Dallas Mavericks owner Mark Cuban isn’t shy about using multiple avenues to promote himself and his team. In what is likely an attempt to keep his name in the news, Cuban is suing Golden State Warriors head coach Don Nelson, who used to coach the Mavericks, for knowing the Mavericks personnel a little too well. This “inside” knowledge, claims Cuban, helped the eighth-seeded Warriors beat the #1 seed Mavericks in the first round of the NBA playoffs this year.
From the story:
Mavericks owner Mark Cuban believes Golden State’s sizzling shooting alone didn’t sink his basketball team in the most stunning playoff defeat in NBA history.
That’s according to Don Nelson’s attorney, John O’Connor, who said Cuban is suing Nelson, claiming the Warriors beat the Mavs in the first round because the Warriors’ coach — and former coach of the Mavs — had “confidential information and he [Cuban] wants to enjoin Don from coaching against the Mavericks.”…
According to the story, when Nelson left the Mavericks, he signed a “non-compete” agreement with Cuban, which Nelson claims ended when he took the job with Golden State. Cuban contends that this agreement is still in effect, which should prohibit Nelson from being able to coach another team.
I’ve often wondered how this actually affects sports teams – for instance, when a baseball player is traded mid-season to a competitor. Does it do his new team any good to have his inside knowledge of how the other team works? Isn’t it an advantage to know all the signals and shifts the other team can make, not to mention the personnel tendencies?
It’s still up in the air, however, which is a more embarrassing move for a franchise: Cuban’s lawsuit, or drafting a Chinese guy who may be lying about his age, refuses to work out against a human being, and has the Chinese government saying he will never play for your team. But I’m not bitter.
Tagged as:
baseball,
Dallas,
sports
The newspaper reprinted my warning labels column yesterday (Walter Olson, “Product labels have come unglued from reality”, Mar. 25). Reader Gary Neyens of Round Rock, Tex. wrote in to say he enjoyed the piece and added one of his own favorite stories:
I recently replaced the serpentine (fan) belt on my Ford pickup. The Ford Motorcraft packaging warned “Shut off engine before checking or replacing belt”. I know the reason for this warning – - Somebody, somewhere…
While on the subject of publicity, Legal NewsLine did a whole article (with file photo!) based on my recent column about not counting the trial lawyers out (Rob Luke, Anti-business suits still surging, warns tort-reform expert”, Mar. 21). Last month New York Post reporter Janon Fisher quoted me in an article on the “firefighter’s rule” which historically has barred injured public rescue personnel from suing the people they were rescuing, or others whose negligence allegedly led to disaster (”Firemen file arson lawsuits”, Feb. 2). And a couple of publicity clips from last year that I didn’t round up at the time: at the North County Times’ The Californian, Bridgit Jordan quotes me on Mayor Bloomberg’s anti-tobacco philanthropy (”Donation may go up in smoke”, Aug. 22); and Joseph Goldstein of the New York Sun quotes me in an illuminating article about the “creeping oversight” of New York City government operations obtained by the feds through consent decrees and the like (”Bush Administration, in Series of Federal Lawsuits Against New York Agencies, Gains Creeping Oversight of Local Government”, Aug. 15).
Tagged as:
about the site,
Dallas,
firefighters,
Ford Motor,
product liability,
tobacco,
WO writings
