Readers will recall that acrylamide is a naturally occurring substance formed when many foods are browned or otherwise cooked and that (like countless other constituents of common foods) it appears to cause cancer in some animals at high dosages. California attorney general Jerry Brown has now reached a settlement with some large food companies that will require them to revise recipes for potato chips, French fries and other wares to reduce acrylamide content. Fun fact: one of the ways they may accomplish this goal is by artificially adding a chemical (OK, an enzyme) which works to neutralize acrylamide’s precursors. (Rosie Mestel, “Booster Shots” blog, L.A. Times, Aug. 4).

More: Bill Childs adds, “Oh, and the companies will pay California around $2.5 million.”

More things that it’s really inadvisable to do if you’re a lawyer:

• Tell a judge to her face in open court that you consider her “a few French fries short of a Happy Meal” (William Smith of McDermott Will & Emery LLP, facing possible exclusion from the right to practice in the bankruptcy court in question; Crain’s Chicago Business);


• Show up in a hospital room to recruit as client a heavily medicated crash victim, then discourage him from going after the other driver’s personal assets in the case, without mentioning that the other driver is your own wife’s grandfather (Jeffrey Hark of Cherry Hill, N.J., referred for a state-bar ethical investigation although a legal-malpractice claim against him failed for lack of a showing of damages; NJLJ);


• As part of a $59 million settlement of Benlate fungicide-damage cases, accept a secret $6 million side payment from defendant duPont in exchange for (among other services) agreeing to file no more cases (Roland R. St. Louis Jr. and Francisco R. Rodriguez of Miami, disbarred and given a two-year suspension respectively; NLJ, Elefant).

• Google beats Perfect 10 in Ninth Circuit appeal over copyright suit over thumbnail images. (Earlier: Feb. 06, Jul. 05, Nov. 04.) [LA Times; WaPo; Bashman; Perfect 10 v. Amazon (9th Cir. 2007)]
• Judge thinks better over Brent Coon’s attempt to intimidate local press through subpoenas. Earlier: Apr. 24. [WSJ Law Blog]
• US Supreme Court throws out punitive damages ruling in Buell-Wilson case, lets rest of decision stand. Earlier: Jan. 4 and links therein. Beck and Herrmann also discussed the case in March in the context of a larger discussion of the appropriateness of issuing punitive damages against a company that relied on government safety standards in good faith. [LA Times; AP].
• Big LA Times piece on the still-pending Extreme Makeover suit, where a family seeks to hold ABC responsible for an intra-household dispute over the spoils of a reality show. Earlier: Mar. 4, Aug. 12, 2005. [LA Times]
• KFC may have won on trans-fats litigation, as David reported May 3, but they capitulate to Jerry Brown’s pursuit of Lockyer’s equally bogus acrylamide suit over the naturally-occurring chemical in potatoes (Oct. 05, Aug. 05, Aug. 05, May 05, Apr. 04, etc.). KFC will pay a nuisance settlement of $341,000 and will add a meaningless warning in California stores. (Tim Reiterman, “KFC to tell customers of chemical in potatoes”, LA Times Apr. 25).
• McDonald’s sued over hot coffee. Again. One of the allegations is that McDonald’s failed to secure the lid, which is a legitimate negligence suit, but there’s also a bogus “failure to warn me that coffee is hot” count. [Southeast Texas Record; and a Southeast Texas Record op-ed that plainly read Overlawyered on the subject]

Sad news for the boosters of obesity litigation: a Manhattan judge has dismissed a would-be class action which asked the maker of CremaLita frozen dessert to pay for weight-gain damages because it had wrongly advertised its product as fat-free and as having 60 calories per serving when in fact it had about 10 calories more than that. After a Consumer Affairs investigation had uncovered the misrepresentation, Stephen Brandt sued, claiming “that as a result of CremaLita’s alleged false advertising …he and countless ‘other members of the class’ were put at risk of ’severe health problems, including but not limited to cardiovascular problems, mobility problems and cancer’ as well as the ‘negative self-esteem issues’ that the ’social stigma’ of “excess weight gain carries” in today’s culture.’”

However, Justice Emily Jane Goodman ruled that Brandt was not an appropriate representative for a class action, in part because of his difficulty in demonstrating damages. To begin with, Brandt claimed to have consumed only one serving of CremaLita per week, which meant, said the company’s defense lawyer, that his extra calorie consumption would have amounted to only 10 calories a week. Brandt, whose weight ballooned by 41 pounds over a six-year period including the seven months in which he said he’d been a buyer of the dessert, also conceded that he’d enhanced it with crumbled cookie toppings.

In court filings, the defense was rather cruel about it all: “What Brandt fails to mention,” said its lawyer, “is that he regularly eats real ice cream, McDonald’s and Wendy’s cheeseburgers, french fries, pepperoni pizza, beer, corn chips, donuts, cookies, hard cheese, eggs, bagels, peanut butter, Chinese take-out meals and pasta, [and] that he never exercises.” Moreover, “although he provided no useful information regarding his weight gain during the period that he ate CremaLita, his medical records . . . show that he managed to pack on an additional 16 pounds in the nine months after he stopped” eating the confection. (Dareh Gregorian, “Suit melts away”, New York Post, May 25; Gothamist, May 25).

But somehow, “the food industry” doesn’t sound quite as evil as “the tobacco industry.” Something about food — the fact that it keeps us alive, perhaps — makes its purveyors hard to hate. For that matter, the rationale for recent bans on smoking is the injustice of secondhand smoke, and there’s no such thing as secondhand obesity. …

These obstacles don’t make the assault on junk food futile. But they do clarify how it will unfold. It will rely on three arguments: First, we should protect kids. Second, fat people are burdening the rest of us. Third, junk food isn’t really food….

A fact sheet from [Iowa Sen. Tom] Harkin implies that schools should treat milk, French fries, and pizza like soda, jelly beans, and gum.

(William Saletan, “Junk-Food Jihad”, Slate, Apr. 15).

On Friday, a new class action lawsuit was filed against McDonald’s for not fully disclosing the presence of dairy products and wheat glutens in their french fries. The suit was prompted by McDonald’s admission two days earlier that their fries do include milk and wheat, at least in small amounts. The suit does not appear to list any specific instances of people being harmed by trace milk and wheat in french fries, though a separate suit filed in Miami by the parents of a 5-year old girl alleged the fries caused their daughter to get very ill (though according to the article the parents continued to feed the girl McDonalds fries for two years).

“Proposition 65 deserves to be renamed ‘the law of mythological food fears,’” says Sandy Szwarc in Tech Central Station about acrylamide suits. See Aug. 31, Aug. 29, May 26, Apr. 6, 2004, etc.

The San Francisco Chronicle’s Debra Saunders is no admirer of California AG Lockyer’s new lawsuit (see Ted’s Aug. 29 post) charging that restaurants have broken the law by failing to post announcements that french fries and other common foods contain naturally occurring acrylamides (Aug. 30). More: Jonathan Wilson posts here and here.

Bill Lockyer has thrown the power of the state of California and its taxpayers behind the litigation lobby’s attempt to extract money from just about every food manufacturer over the alleged dangers of acrylamide. We’ve been covering these suits for years: see Apr. 6, 2004 and links therein. Of course, if every single food product and commercial building structure contains a Proposition 65 warning, the net effect is to make the real important warnings, like those on cigarette packages, less meaningful, rather than to warn people of the uncertain link between french fries and minimally elevated risks of cancer, a risk dwarfed in health effects by the difference between french fries with and without trans-fats. The press coverage universally makes no attempt to parse the studies on the subject. The fact that the press-hungry and politically ambitious Lockyer filed his suit relatively quietly on a Friday—and sued only national fast-food chains, without including two popular local chains that also serve french fries—for Saturday news coverage suggests that he’s doing this as a favor for some trial-lawyer buddies and is hoping to avoid public embarrassment. This is a good opportunity for the blogosphere to prove its stuff. And will all the Democrats who claim to be part of the “reality-based community” and correctly speak out against Republican junk science like “intelligent design” raise their voices when it’s a Democrat using junk science for corporation-bashing, or is science only to be used when it can embarrass Bush? We shall see. (Tim Reiterman, “Carcinogen Warning Sought for Fries, Chips”, LA Times, Aug. 27). Other Lockyer coverage.

The fast-food chain has agreed to settle charges arising from its having missed a self-announced deadline for reducing the use of trans fats in its cooking oil. It will pay $7 million to the American Heart Association for an educational campaign, $1.5 million to publicize its future progress in the quest for better fats, and unspecified attorneys’ fees to the plaintiffs. The “chain said it had issued a news release in February 2003 saying its plans had been delayed,” but Stephen Joseph, a San Francisco attorney who runs a pressure group called BanTransFats.com, sued contending that the restaurant chain did not adequately publicize the setback. (Joe Garofali, “$7 million for suit on trans fats”, San Francisco Chronicle, Feb. 12). For attorney Joseph’s earlier suit demanding unsuccessfully that the sale of Oreo cookies to kids be banned, see May 13, 2003.

Foodmakers say the use of trans fats is the only practicable way left to avoid the prospect of limp and off-flavored French fries and donuts, in part because earlier campaigns succeeded in demonizing butter, animal and tropical fats, though some of those fats are now considered less harmful than their replacements. Many nutritionists

had made their careers telling people to eat margarine instead of butter,” said Walter Willett, chairman of the Department of Nutrition at the Harvard School of Public Health and one of a handful of medical researchers who have led the fight against trans fat. “When I was a physician in the 1980’s, that’s what I was telling people to do and unfortunately we were often sending them to their graves prematurely.”

That certainly inspires confidence in the idea of giving nutritionists access to the coercive machinery of government to enforce their recommendations, doesn’t it? (Kim Severson and Melanie Warner, “Fat Substitute Is Pushed Out of the Kitchen”, New York Times, Feb. 13).

Approximately forty percent of the food the world eats contains acrylamide, a chemical that is formed by cooking starches and that has uncertain carcinogenic effect. The LA Times reports on the pending lawsuit against fast food vendors in California under Proposition 65 (Sep. 19; Dec. 27, 2002), which requires labeling of all carcinogenic substances with warnings–never mind that if a warning is posted everywhere, it effectively renders all the warnings meaningless, as they essentially are in California, where the warning can already be found in nearly every parking garage. While Burger King and other large corporations are fighting against extending the labeling requirements to french fries, it’s hypothesized that smaller mom-and-pop shops will simply cave and post warnings rather than pay lawyers to defend the use of heat in preparing food. (Miguel Bustillo, “Are We Ready to Fret About Our Fries?”, LA Times, Apr. 6; Andrew Bridges, “Studies find no acrylamide, cancer link”, AP, Mar. 29; Center for Consumer Freedom, “Wayward Warnings”, Aug. 5).

At the new multi-author blog Marginal Revolution, Alex Tabarrok writes that he’s angry: “The lawyers will get $19 million, the plaintiffs have no damages and I have been involved in an abuse of justice. I received notice yesterday that I was a plaintiff in a class action lawsuit against Bridgestone/Firestone that is about to be settled. I was never injured by Firestone but that’s ok because injured people have their own lawsuit the one I am involved in is for people who were not injured. The lawsuit reads ‘Plaintiff Does Not Seek To Represent And This Litigation Does Not Involve Any Person Who Alleges That He or She Suffered Any Personal Injury or Property Damage Because Of A Failure Of One Of The Tires’ (capitalization in original.) Bear in mind that Firestone has already replaced all four of my tires with a competitor’s brand for free and similarly for many of the other plaintiffs.” (Sept. 16) Co-blogger Tyler Cowen at the same site isn’t any happier to discover that he is a member of the class in a suit against Western Union over its wire-funds-abroad service charging that, according to the legalese, “…the Defendants [made] misrepresentations about or otherwise failing to disclose to customers the fact that they received a more favorable exchange rate for converting U.S. dollars to foreign currency and foreign currency to U.S. dollars than they provided to their customers.” “Imagine that” — writes Cowen — “a middleman buying and selling at different prices!” (Sept. 17). (More: see KrazyKiwi, Oct. 8).

Meanwhile, a Wisconsin man has filed an intended class action lawsuit against jam maker J.M. Smucker after the Washington-based anti-business group Center for Science in the Public Interest published a report claiming that Smucker’s “Simply 100 Percent Fruit” products were falsely labeled because only a minority of the actual contents of a jar of strawberry or blueberry “Spreadable Fruit” consisted of those berries, the remainder consisting (as Smucker’s labeling makes clear) of syrups, concentrates and extracts derived from other fruits such as apple, grape, lemon and pineapple. (”Smucker’s Spreads Not All Fruit, Lawsuit Says”, AP/FoxNews, Sept. 5 — if you’re looking for a deceptive claim, how about the one conveyed by that headline?). The food-industry-defense Center for Consumer Freedom levels an interesting accusation against CSPI, namely that bounty-hunting lawyers suing under California’s Proposition 65 law seemed to have mysterious psychic powers to divine in advance exactly what was going to be in a CSPI report on supposed killer french fries — either that, or CSPI shared the information with them before it went public with its allegations. See “We, the jury, find the defendant ’starchy’”, CCF, Jul. 17 (third from last paragraph); “CSPI: 100 Percent Litigious”, CCF, Sept. 8; “Latest Acrylamide Panic Based on Fudged Numbers” (press release), CCF, Jul. 10. For more on the French fry suit, see Dec. 27-29, 2002.

January 31-February 2 – “Cities Pay Big in Faulty Lawsuits”. Fox News picks up on the theme explored by columnist Deroy Murdock a few days ago of how persons hurt while committing crimes or trying to commit suicide now often show up in court demanding compensation for others’ negligence in letting them be injured. This site’s editor went on camera to take a less-than-enthusiastic view of such suits. (Jan. 30) (DURABLE LINK)

January 31-February 2 – FBI probes Philadelphia’s hiring of class-action firm. “An FBI investigation is focusing on why current and former city officials gave potentially lucrative legal work to a top Democratic donor and resisted a judge’s efforts to seek competitive bids for the work.” The administration of Ed Rendell, since elected Pennsylvania governor, hired prominent class-action firm Barrack, Rodos & Bacine to represent the city as lead plaintiff in a large class action in California representing investors in Network Associates, a software firm. Through its senior partner, the law firm says it plans to cooperate with the investigation. (Cynthia Burton, Mark Fazlollah and Joseph Tanfani, “FBI investigates Philadelphia’s Pension Board”, Philadelphia Inquirer, Jan. 30). Update and more coverage: Mar. 21-23. (DURABLE LINK)

January 31-February 2 – “Valentine’s Card Burglar Sues Police”. From the U.K.: “A convicted burglar has been given legal aid to sue the police for sending him a Valentine’s card last year. Gary Williams, who has a 12-year criminal record, was one of 10 known burglars and car criminals who received cards from Brighton police. But when he opened the card, his girlfriend thought it must be from another woman. She was so cross that, before he could explain, she hurled an ashtray at him, and it went whistling past his head.” (David Sapsted, Daily Telegraph, Jan. 29) (DURABLE LINK)

January 31-February 2 – Fair housing law vs. free speech. On more than one occasion, when local residents have spoken out against the siting of low-income housing projects or group homes in their neighborhoods, they’ve faced (unsuccessful) lawsuits and attempted fines on the grounds that their speech constituted a civil rights violation. Now the Sixth Circuit has approved a more subtle way of discouraging residents from speaking their minds: impute their prejudiced views to the government that has allowed them to speak at a public hearing. It’s a good way of getting government bodies to stop holding public hearings for fear of liability, according to columnist Robyn Blumner (”Fair Housing Act cannot be used to gag residents’ displeasure”, St. Petersburg Times, Jan. 19). (DURABLE LINK)

January 31-February 2 – Manhattan Institute turns 25. The New York-based policy institute, with which our editor is associated, celebrates its quarter-century anniversary. Read more about it (Tom Wolfe, “Revolutionaries”, New York Post, Jan. 30; “Ideas Matter” (editorial), Jan. 30). Then visit the Institute’s website and sign up for its invaluable mailing list. (DURABLE LINK)

January 30 – “ADA Goes to the Movies”. The AMC chain pioneered stadium-style seating in movie theaters, which much improves sight lines for audiences and quickly became the industry standard. Then civil-rights activists swooped down, saying the new layouts (the earlier versions, at least) were unlawful because they provided too narrow a set of seating choices for patrons in wheelchairs. Jonathan Last of the Weekly Standard takes up the story (Jan. 24). (DURABLE LINK)

January 30 – Targeting Wall Street. More than 200 mass tort lawyers recently met at Las Vegas’s Bellagio Hotel to discuss suing investment firms, at an event put on by the Mass Torts Made Perfect organization. Veterans of the breast-implant and fen-phen campaigns “are hoping to profit from the fallout of the $1.4 billion global regulatory settlement over stock-research conflicts, seeking to file claims on behalf of investors.” Law partners James Hooper and Robert Weiss “concede they don’t really know their way around Wall Street” but have already spent more than $1 million in television advertising in search of retired Florida clients who lost money in the market. “The pair is teaming up with Levin Papantonio Thomas Mitchell Echsner & Proctor PA, a large mass-tort firm based in Pensacola, Fla., known for its filings against the tobacco industry, among others.” Messrs. Hooper and Weiss “recently filed 71 cases against Citigroup Inc.’s Salomon Smith Barney on behalf of investors who lost less than $25,000 apiece.” The newcomers have not met with a friendly reception from the existing plaintiff’s securities bar, however, who tend to sniff at their lack of a track record in the area. (Susanne Craig, “Lawyers Target Wall Street Following Regulatory Payoff”, Wall Street Journal, Jan. 29) (online subscribers only). (DURABLE LINK)

January 29 – State of the Union. “To improve our health care system, we must address one of the prime causes of higher costs — the constant threat that physicians and hospitals will be unfairly sued. Because of excessive litigation, everybody pays more for health care and many parts of America are losing fine doctors. No one has ever been healed by a frivolous lawsuit. I urge the Congress to pass medical liability reform.” (President Bush, State of the Union speech Jan. 28, reprinted, Quad City Times). Charles Krauthammer’s take: “Sick, Tired and Not Taking It Anymore”, Time, Jan. 13 (MedRants comments). And see James M. Taylor, “States Take Lead on Medical Malpractice Reform”, Heartland Institute Health Care News, Jan.(DURABLE LINK)

January 27-28 – Latest Rule of Lawyers publicity. Following appearances in New York and Washington, our editor is speaking on the book to a lunchtime audience Tuesday in Chicago; details here. Trips to Texas, California and elsewhere are in the works, as well as many radio programs. Famed InstaPundit Glenn Reynolds gave us a nice lift Friday in his MSNBC column (Jan. 24). Fox News Channel has now put online a partial transcript of our editor’s appearance last Thursday on “The Big Story” (posted Jan. 24). A CNN appearance is still pending. Eric Schippers of the Center for Individual Freedom gave the book a favorable review in the Federalist Society publication Engage, reprinted here. And Reason’s recent cover story/excerpt included a mini-author profile which we neglected to link earlier. (Jan.)

There’s more: Barnes & Noble Online gave the book one of its rotating “We Recommend” designations (Law category); both the Conservative Book Club/National Review Book Service and Laissez-Faire Books have picked the book as a selection and given it good write-ups; and e-versions are available for download from Franklin.com (requires proprietary software) and Palm Digital Media. (DURABLE LINK)

January 27-28 – “No suits by lawbreakers, please”. Syndicated columnist Deroy Murdock says a good place to start with tort reform would be to cut off lawsuits where the complainant’s own crime or suicide attempt was the preponderant cause of his injury. Among eyebrow-raising cases: “Disturbed, Angelo Delgrande shot and wounded his parents and himself in a June 1995 dispute. He then received surgery at a Westchester County, N.Y. hospital. That night, he yanked the tubes and monitoring devices from his body, then leapt off the second story of an adjacent parking garage in a suicide bid. He is now paraplegic. Delgrande sued the hospital for failing to treat his depression and keep him indoors. Last October, he won $9 million.” Also quotes our editor (Scripps Howard News Service/Sacramento Bee, Jan. 23) (& see Jan. 31) (DURABLE LINK)

January 27-28 – “Woman Attacked By Goose Sues County”. “A woman who says she was attacked by a 3-foot-tall goose is suing Palm Beach County, claiming the county should not have allowed the bird to roam in a public park.” Darlene Griffin, 30, says she was attacked on Feb. 5 in Okeeheelee Park. The county contends that it has no duty to protect parkgoers from “obvious” dangers. (Local6/WKMG, Jan. 24; CNN, Jan. 24). (DURABLE LINK)

January 27-28 – Don’t break out the shakes yet. Judge Sweet’s ruling last week in favor of McDonald’s has been widely hailed as a blow for common sense and individual responsibility, but the judge “generously gave the plaintiffs a chance to try their luck again” and “take a second bite from the burger”. Lawyers are likely to refile both the case at issue and new ones, after due study of Sweet’s opinion which may even provide a “jurisprudential roadmap” to liability. “Make no mistake: This case is not about fat kids. It’s about fat paydays. For lawyers.” (”Mickey D’s Hollow Victory” (editorial), New York Post, Jan. 23; see also “Lawyers Run Marathons, Not Sprints”, Center for Consumer Freedom, Jan. 23). More: some well-known plaintiff’s lawyers pooh-pooh the fat suits (James V. Grimaldi, “Legal Kibitzers See Little Merit in Lawsuit Over Fatty Food at McDonald’s”, Washington Post, Jan. 27). On the other hand, a Fortune cover story argues for taking them seriously (Roger Parloff, “Is Fat the Next Tobacco?”, Jan. 21). (DURABLE LINK)

January 24-26 – Malpractice-cost trends. Many mainstream journalists, accepting arguments pressed on them by defenders of the litigation business, have uncritically repeated the notion that the crisis in medical malpractice insurance owes more to insurers’ unwise Wall Street investments than to galloping litigation costs. But in fact, according to an expert on insurer portfolio management, “asset allocation and investment returns have had little, if any, correlation to the development of the current malpractice problem. The crisis is rather the result of a generally unconstrained increase in losses and, over several years, inadequate premium income to cover those losses.” (Raghu Ramachandran, “Did Investments Affect Medical Malpractice Premiums?”, Brown Brothers Harriman Insurance Asset Management Group, Jan. 21; see also post and comments at Megan McArdle’s site and earlier Jan. 1 post and comments). Doctors’ increasing willingness to walk off the job to protest the law’s expropriation — and politicians’ heavy-handed hints that they will face punishment if they do so — recall the producers’ strike in Ayn Rand’s Atlas Shrugged, according to Edward Hudgins of the Objectivist Center (”Doctors Shrug”, Washington Times, Jan. 12). Ramesh Ponnuru argues that the Bush administration has not come up with an adequate grounding in federalism for a Congressional override of state malpractice law, given that it is a state’s own citizens who are the main losers from irrational verdicts (”Federal Malpractice”, National Review Online, Jan. 24). See also President Bush’s speech in Scranton, Jan. 16; White House “Policy in Focus: Medical Liability“; Michael Arnold Glueck and Robert J. Cihak, “It’s Not Just ‘Sue the Docs’ Anymore”, MedJournal.com blog, Jan. 14; RangelMD, Jan. 18; MedRants, Jan. 20; MedPundit, Jan. 19; Sydney Smith (MedPundit), “Dangerous Lies”, TechCentralStation, Jan. 21. (DURABLE LINK)

January 24-26 – Race-bias cases gone wrong. “The Florida Supreme Court has disbarred a Fort Lauderdale attorney accused of filing a string of racial discrimination lawsuits against employers such as Ocean Spray and BellSouth, which a federal judge labeled as extortion. Norman Ganz was disbarred for allowing his paralegal, a convicted felon, to engage in the unlicensed practice of law, charge an excessive fee and represent clients with adverse interests. … They were accused of filing a string of lawsuits against employers such as Ocean Spray, BellSouth, Broward County, Fla., and the Broward County School Board, then threatening to bring in the NAACP as a plaintiff. In return, the lawyers gave NAACP chapters some of the settlement money. … The cases also led to the ouster of Roosevelt Walters, former head of the Fort Lauderdale NAACP.” (Julie Kay, “Florida Lawyer Who Filed Controversial Racial Bias Suits Disbarred”, Miami Daily Business Review, Dec. 6). (DURABLE LINK)

January 23 – Judge tosses McDonald’s obesity case. “A federal judge in Manhattan today threw out a lawsuit brought against the McDonald’s Corporation by two obese teenagers, declaring as he did so that people are responsible for what they eat and that the teenagers’ complaints could spawn thousands of ‘McLawsuits’ if they were upheld. … Samuel Hirsch, the Manhattan lawyer who represents the plaintiffs … noted that Judge Sweet said the two teenagers were not barred from filing an amended complaint, and Mr. Hirsch promised to do just that, asserting that he still had a ‘credible and viable lawsuit.’” New York Times (reg); opinion in PDF format; GoogNews compilation; Reuters/FoxNews; AP/Court TV; Yahoo Full Coverage). And — rather undercutting the much-bruited notion that the increase in portion sizes at restaurants constitutes some sort of sneaky maneuver by restauranteurs having nothing to do with consumer preferences — “In a new study, researchers looked at such foods as hamburgers, burritos, tacos, french fries, sodas, ice cream, pie, cookies and salty snacks and found that the portions got bigger between the 1970s and the 1990s, regardless of whether people ate in or out.” (Deanna Bellandi, “Study Finds Meal Portion Sizes Growing”, AP/Washington Post, Jan. 21). (DURABLE LINK)

January 23 – Justices nix vicarious personal housing-bias liability. More good news: vacating a Ninth Circuit ruling, the Supreme Court has unanimously decided that under the Fair Housing Act of 1968 the owner of a real estate agency cannot in most cases be made to pay personally for the discriminatory acts of an underling without some further direct showing of fault. The agency’s liability was not in question; the question was instead whether the owner’s personal assets should be at risk if the agency lacked money to pay a judgment. A sobering aspect of the case: the Bush Administration entered it against the agency owner, arguing that he should be held personally liable but on a different legal theory (that the agency was legally an alter ego of his). The high court did not resolve that possible theory of liability. (Linda Greenhouse, “Justices Limit Housing Bias Lawsuits”, New York Times, Jan. 22)(reg) (DURABLE LINK)

January 23 – Our editor on TV. On Tuesday, kicking off a media swing to promote The Rule of Lawyers, our editor was a guest of Court TV’s Catherine Crier, who said some extremely kind things about the book (which rose to #265 on Amazon, helped by the WSJ’s great review the same day). Today (Thursday) afternoon, watch for him to be interviewed by Judge Andrew Napolitano on Fox News Channel’s The Big Story with John Gibson. And although bookings are always subject to last-minute change, don’t be surprised if he turns up Friday evening on CNN. (DURABLE LINK)

January 21-22 – Not my partner’s keeper. No joint and several liability for us, please: “In a sign of increased caution in the post-Enron world, two of New York’s most prominent law firms have elected to become limited liability partnerships. Sullivan & Cromwell and Paul, Weiss, Rifkind, Wharton & Garrison both acquired Limited Liability Partnership status effective Jan. 1, thus ending a combined 250 years of operation as general partnerships.” The effect is to insulate partners from having to pay for each others’ negligence or other wrong, even if greater vigilance by the firm as a whole might have reduced the likelihood of wrongdoing. (Anthony Lin, “Prominent Law Firms Move to Limit Liability”, New York Law Journal, Jan. 10). (DURABLE LINK)

January 21-22 – ATLA’s hidden influence. From the Capital Research Center, which keeps tabs on activist groups: “The movement for tort reform has been stalled by an unholy alliance of trial lawyers and consumer advocates eager to preserve the power to sue. But few Americans understand the ties linking Ralph Nader-inspired groups to the Association of Trial Lawyers of America.” Includes considerable information about ATLA’s generosity to various private groups which lobby against limits on medical malpractice litigation. Also quotes this site (Neil Hrab, “Association of Trial Lawyers of America: How It Works with Ralph Nader Against Tort Reform”, January (summary; “Foundation Watch” report in PDF format)). (DURABLE LINK)

January 21-22 – “Tort turns toxic”. Overview of how litigation is wreaking havoc in diverse sectors of the society, from medicine to terrorism insurance, includes particular attention to the problems it’s creating for affordable housing. Construction of condominiums and apartments in California and other Western states has become much more expensive to insure because of burgeoning litigation over allegedly defective construction, some of the allegations well grounded but others drummed up by eager solicitation of condo associations by lawyers. By the year 2000, insurers in California were paying out nearly $3 for every premium dollar collected from builders, and imposing big premium hikes. Multi-unit housing construction has now plunged, and major builders have shifted efforts from affordable condos to pricier freestanding homes, perceived as a lower litigation risk. (Steven Malanga, “Tort Turns Toxic,” City Journal, Autumn 2002). (DURABLE LINK)

January 21-22 – Welcome Wall Street Journal readers. Highly favorable review of our editor’s new book The Rule of Lawyers: “an entertaining, but disturbing, chronicle of class-action abuses … Mr. Olson’s engaging prose, for all its charm, is propelled by a sense of outrage at the abuses he describes: He slams his opponents onto the mat, lets them rise slightly in a daze and then slams them down again, round after round.” Also mentions this website (David A. Price, “In a Class By Themselves”, Wall Street Journal, Jan. 21 (online subscribers only)). (DURABLE LINK)

December 30, 2002-January 2, 2003 – Happy New Year. We’ll be back Friday.

December 30, 2002-January 2, 2003 – Updates. Among cases that continued to develop while our attention was elsewhere:

* A panel of the Fourth Circuit threw out (PDF) the $2 million punitive damage award against Duke University under federal sex discrimination law to Heather Sue Mercer, “who was allowed a walk-on spot as a kicker on the school’s football team but [was] treated differently than other players.” (see Oct. 13, 2000) (Leslie Brown, “Court voids kicker’s award”, Raleigh News & Observer, undated circa Nov. 16) (The Mat forums)

* The Ohio Supreme Court’s pro-litigation majority, shortly before voters turned it into a minority, dealt Ford Motor Co. a setback by ordering a new trial in a case where the automaker had rebuffed charges of “sudden acceleration” in its Crown Victoria model (see Jun. 6, 2000) (Alan Fisk, “Videotape Revives Lawsuit Against Ford Motor Co.”, National Law Journal, Oct. 21).

* An Alaska federal judge cut the punitive damage award against Exxon Mobil in the Valdez spill case from $5 billion to $4 billion; the litigation could still drag on for years more (see Nov. 15, 2001) (Jason Hoppin, “Exxon Valdez Award Reduced — but Only to $4B”, The Recorder, Dec. 10).

* In the controversy over baseball bats that are allegedly too powerful (see Apr. 19, 2002), a California state appeals court has rejected assumption-of-risk defenses and ruled that a college baseball player can sue the University of Southern California, “the Pacific-10 Conference, the National Collegiate Athletic Association and the makers of the Louisville Slugger bat on the ground that the company’s Air Attack 2 bat substantially increases the dangers of America’s pastime by letting the ball be smacked at hair-raising speeds.” (Mike McKee, “Bat Ups Chance of Baseball Injuries, Appeals Court Rules”, The Recorder, Dec. 24). (DURABLE LINK)

December 27-29 – Receivers in bankruptcy. “In the bizarre yet lucrative world of Enron’s bankruptcy, everyone seems to have a complaint these days. The $300-an-hour lawyers complain that the $500-an-hour lawyers are charging exorbitant fees. … Already, lawyers and other professionals have billed Enron close to $300 million in what some critics say is an unparalleled fee bonanza,” some of it going to the same high-priced professionals who advised the company before its fall. (David Barboza, “The Meter Runs in Enron Case, as the Lawyers Retain Lawyers”, New York Times, Dec. 25). Some of the lawyers have submitted expense requests that included liquor purchases; other practices include “marking up the costs of photocopies and faxes, and charging for clerical work at lawyers’ steep hourly rates”. (Otis Bilodeau, “Enron Lawyers Face Fee Cuts”, Legal Times, Dec. 10). (DURABLE LINK)

December 27-29 – California’s hazardous holiday. Chestnuts-roasting menace averted, cont’d: taking a cue from Berkeley and other Bay Area cities, air quality regulators in California’s Central Valley are proposing a ban on traditional wood-burning fireplaces in homes, as well as regulations on how existing ones can be used. “Under proposed rules that would take effect next year, most wood-burning fireplaces and stoves would be banned in new homes. Masonry fireplaces would have to be permanently disabled, converted to natural gas or upgraded to expensive soot-containing models before homes could be sold. Also, on bad air days during the winter, many Central Californians would be prohibited from lighting up their existing wood-burning stoves and fireplaces in a concerted effort to get the smoggy valley to comply with the Clean Air Act.” (Kim Baca, “California air regulators propose fireplace ban”, Sacramento Bee, Dec. 6)(see Dec. 24-27, 2001). Also in California, environmentalist lawyers using a bounty-hunting statute recently sued restaurants serving French fries on the grounds that the fries contain measurable amounts of acrylamide, a potentially hazardous substance generated when starch is subjected to heat. A complicating factor, however, according to the food-industry-defense Center for Consumer Freedom, is that “A nationwide study carried out in Germany has found that gingerbread contains seven times the amount of acrylamide found in French fries.” Better enjoy that holiday baking binge while it’s still legal. (”Just when you thought the holidays were safe”, Center for Consumer Freedom, Dec. 9; “French fry lawsuit-mongers unmasked“, Sept. 9). (DURABLE LINK)

December 24-26 – Merry Christmas. We’ll take a couple of days off to celebrate the holiday, and see you Friday. (DURABLE LINK)

December 24-26 – “Court Waives Deadline as ‘Reasonable Accommodation’ for Disabled Litigator”. We figured this would happen, and now it has: “An upstate New York judge has held for the first time that the courts must reasonably accommodate a visually impaired attorney who breached the time restrictions for submitting a judgment. … Finding that the ‘courtroom and court system constitute the trial lawyer’s workplace,’ and that the workplace ‘logically extends to the preparation of documents associated with litigation,’ [New York State Supreme Court Justice Robert] Julian held that [attorney Norman] Deep is owed an accommodation.” (John Caher, “Court Waives Deadline as ‘Reasonable Accommodation’ for Disabled Litigator”, New York Law Journal, Dec. 2). (DURABLE LINK)

December 24-26 – “Britain sued for millions by Mau Mau terrorists”. “The families of soldiers who fought the Mau Mau uprising in Kenya reacted with fury last night to news that former terrorists are planning to sue the British Government over their treatment after being taken captive.” (Daniel Foggo and Christian Steenberg, Daily Telegraph, Nov. 10). (DURABLE LINK)

December 23 – Lawyers’ advertising, 25 years later. In 1977, by a 5 to 4 majority, the U.S. Supreme Court ruled that lawyers have a constitutional right to advertise for clients. A retrospective by the National Law Journal’s Mark Ballard mentions some of the resulting low-water marks of taste, including “the one where 300 pounds of lawyer emerges from the water to the strains of ‘Swan Lake’ bedecked in gold chains and carrying a chest of cash with the message that he’ll bring the treasure home to you,” the one featuring “Robert Vaughn, former ‘Man from U.N.C.L.E.,’ in suspenders, sternly promising that whichever attorney was hired in that particular market was so fearsome that otherwise recalcitrant insurance companies will roll over and pay up big bucks,” and — no specifics given, alas, but deplored by a former Florida bar president — episodes in which lawyers have “drive[n] hearses to shill no-frill wills” and sponsored cars in demolition derbies to promote personal-injury practices. (Mark Ballard, “Coming to Terms With the $20,000 Ad”, National Law Journal, Sept. 25; “The Ad-Made Man and the Old-Line Firm”, National Law Journal, Oct. 3; “The Little Ad That Changed Everything”, National Law Journal, Oct. 10). (DURABLE LINK)

March 20-21 – No more restaurant doggie bags. In Australia, the restaurant doggie bag is in decline because of fears that patrons will store food at improper temperatures, allowing the growth of food-poisoning bacteria. “The Australian Leisure and Hospitality Group, which has 142 hotel restaurants across the country, has banned patrons from taking home leftovers. Victoria has already brought in anti-doggie-bag legislation, with other states tipped to follow before the end of the year, Mr Deakin said. ‘If we are the cooker of the food we are liable,’ he said.” (”Restaurants ban doggie bags”, The Advertiser (Adelaide), Mar. 18). Meanwhile, in the U.K.: “Some restaurants in Britain are forcing customers who like their meat rare to sign a disclaimer form before eating due to fears of the risk of E. coli and salmonella poisoning, the Sunday Times newspaper reported.” (”British Eaters Who Like Rare Meat Sign Disclaimers”, Reuters/Yahoo, Mar. 18).

March 20-21 – “School told to rehire cocaine abuser”. Florida: “Escambia County Schools must rehire a school employee who reported to work with cocaine in his system - 50 times above the cutoff level for a positive drug test. Robert K. Sites III, 37, initially was terminated after arriving at Brentwood Middle School on Aug. 10 in an agitated and nervous state. A ‘reasonable suspicion’ drug test revealed cocaine metabolites in his system. An independent arbitrator ruled this month that a penalty less severe than termination was warranted and wants Sites rehired with full pay and benefits.” (Lisa Osburn, Pensacola News Journal, Mar. 15). Under zero tolerance rules, of course, schools can suspend or even expel a student for possessing aspirin or other ordinary over-the-counter drugs.

March 20-21 – Lawyer: deep-pocket defendants are real culprits in identity theft. Perpetrators of the fast-growing crime of “identity theft” sometimes use fraud, stealth or dumpster-diving to obtain data on potential victims from businesses in the form of credit card or employment data. “Companies that contribute to identity theft by failing to protect their customers’ and employees’ Social Security numbers and other personal information could be held liable, some observers warn. Although relatively few cases of this type have been filed so far, some observers predict that with the incidence of identity theft rising, more frustrated victims will successfully sue companies that fail to protect this information … Sean B. Hoar, Eugene, Ore.-based assistant U.S. attorney for the District of Oregon, said he has spoken to groups of plaintiffs attorneys on the topic and the reaction has been ‘My gosh, this is a huge new area for civil litigation because of the likely liability that will be incurred.’ ‘I think that victims of identity theft are becoming much more cognizant of the fact that they have been hurt more by the negligent or careless acts of the companies than they are by the criminals,’ said Mari Frank, a Laguna Niguel, Calif.-based attorney who has specialized in the area of identity theft since she became a victim herself in 1996.” (Judy Greenwald, “ID theft suits in the cards”, Business Insurance, Mar. 4, subscriber-based site).

March 20-21 – McElroy on wrongful life suits. FoxNews.com columnist Wendy McElroy surveys the burgeoning field of “wrongful life” and “wrongful birth” suits following “the birth of a disabled child whom the mother would have aborted had she received adequate medical information.” The concept has been familiar in American courts for years and has cropped up in France and Australia recently as well. “The human cost of this new litigation is terrible. Parents publicly tell a child that they wish he or she had never been born.” (Wendy McElroy, “Parents Sue Doctors for ‘Wrongful Birth’ of Disabled Child”, FoxNews.com, Mar. 19)(see Aug. 22, 2001).

March 19 – Teen beauty pageant lands in court. In suburban Detroit, the outcome of this year’s Miss Teen St. Clair Shores beauty pageant was tainted, according to parent Barbara Scheurman’s legal complaint on behalf of her 15-year-old daughter Jennifer, which is expected to reach a local court next month. The controversy concerns whether the winning contestant should have been allowed to redo her talent presentation; a $200 savings bond and crown was the prize. (Tony Scotta, “Shores pageant judge defends her ruling”, Macomb Daily, Mar. 13).

March 19 – So depressed he stole $300K. Minnesota prosecutors are charging appeals court judge Roland Amundson, 52, who has resigned from the bench, with stealing more than $300,000 from a trust fund that a father had left for his developmentally disabled daughter. The judge’s attorney, Ron Meshbesher, said his client plans to plead guilty and “attributed Amundson’s actions to depression that followed his mother’s death”. According to prosecutors, however, his honor was not too depressed to put part of the money to use “to buy bronze statues, marble flooring, antique chairs and other items for himself.” (Pam Louwagie and Randy Furst, “Judge charged with stealing $300,000 from woman’s trust”, Minneapolis Star Tribune, Feb. 27; Elizabeth Stawicki, “Court’s credibility damaged by Amundson, judges say”, Minnesota Public Radio, Mar. 11). Update July 1-2: sentenced to 69 months. (DURABLE LINK)

March 19 – “Bad movie, bad public policy”. Among reasons to skip the Denzel Washington vehicle John Q: “at the end of the movie, we see real footage of Hillary Clinton and Jesse Jackson advocating for expanded federal health insurance. Last time I checked, though, countries with government-run health plans were less likely to give dying kids organ transplants, or the powerful drugs needed to keep their bodies from rejecting the new organs after the operation.” (Robert Goldberg (Manhattan Institute), “Painful John Q“, National Review Online, Mar. 8).

March 18 – Injured in “human hockey puck” stunt. “An Avon man has sued the Colorado Avalanche hockey team for negligence, claiming he was seriously injured during a ‘human hockey puck’ event Dec. 13, 2000, at the Pepsi Center. Ryan Netzer claims that during one of the intermissions, he was selected to take part in the event, in which he was slung by a bungee cord across the ice rink on a metal sled, according to the lawsuit filed Wednesday in Denver District Court.” Joseph Bloch, Netzer’s lawyer, says the organizers omitted protective padding that was supposed to be on boards into which his client slammed, suffering two leg fractures. “Prior to the event, Netzer signed a waiver.” (Howard Pankratz, “Fan sues Avalanche over stunt injuries”, Denver Post, Mar. 15).

March 18 – Couldn’t order 7-Up in French. “A federal government employee is suing Air Canada for more than $500,000 because he could not order a 7-Up in French.” Michel Thibodeau, 34, has already won a favorable determination from the Commissioner of Official Languages over the incident on an Aug. 14, 2000 flight from Montreal to Ottawa which resulted in an altercation after Mr. Thibodeau, “who is fluently bilingual, was unable to use French to order a 7-Up”. He wants $525,000 and an apology. “‘I am not asking for a right here, I am exercising a right I already have,’ Mr. Thibodeau said shortly after filing his lawsuit.” (Ron Corbett, “Air Canada sued over language dispute”, Ottawa Citizen/National Post, Mar. 2).

March 18 – Columnist-fest. Perennial-favorite scribes come through for readers again:

* Those consumer-battering steel import quotas are just temporary, says President Bush, and if you believe that … (Steve Chapman, “Relief from imports, for as long as it takes”, Chicago Tribune, Mar. 14);

* Airport security checking is a “ridiculous charade” because of officialdom’s continued pretense that “the 80-year-old Irish nun, the Hispanic mother of two, the Japanese-American businessman, the House committee chairman with the titanium hip” are all just as likely hijacker candidates as the young Middle Eastern man (Charles Krauthammer, “The Case for Profiling”, Time, Mar. 18; see also “Profiles in Timidity” (editorial), Wall Street Journal, OpinionJournal.com, Jan. 25);

* Dave Kopel says the abusive municipal gun lawsuits have served to galvanize a firearms industry that has historically shied away from politics: “Pearl Harbor day for the gun industry was the day that [New Orleans mayor] Marc Morial filed his lawsuit”. (”Unintended Consequences”, National Review Online, Mar. 6). See also Jacob Sullum, “Too many guns?”, Reason Online, Jan. 4 (on “oversupply” gun-suit theories).

March 15-17 – Texas docs plan walkout. More than 600 physicians in the Rio Grande Valley of Texas are planning to walk off the job April 8 to protest the state’s malpractice climate (Juan Ozuna, “‘Walkout’ Planned by Physicians”, McAllen Monitor, Feb. 16; Mel Huff, “Doctors discuss fallout from lawsuit abuse”, Brownsville Herald, Feb. 21; “The Doctor is Out”, McAllen Monitor, Feb. 19; “Sick system”(editorial), Brownsville Herald, Feb. 22). In famously litigious Beaumont, only one neurosurgeon is left practicing, which Texas Medical Association vice president Kim Ross calls “a scary thing … What if a patient has a car wreck, needs a neurosurgeon, and there’s none available? It’s an hour to Houston. That ‘golden hour’ [when treatment is most beneficial] is lost.” (Vicki Lankarge, “Soaring malpractice premiums bleed doctors, rob consumers”, reprinted by Heartland Institute, Jan.) “Channel-surf wherever you will; sooner or later (probably sooner) you’ll encounter an attorney urging you to bring your problems to him or her. Some are shameless in their opportunism: Have you suffered from respiratory problems? Throat inflammation? Sinus woes? Come see me; let’s find somebody to sue.” More than half of Texas physicians had claims filed against them in 2000, the Dallas Morning News has found. (”Litigation explosion plagues physicians” (editorial), Corpus Christi Caller-Times, Jan. 24 (via CALA Houston)).

March 15-17 – “Before you cheer … ‘Sign here’”. There are few things that trial lawyers loathe with more passion than the liability waivers that schools have parents and students sign before going out for extracurricular activities such as field trips or cheerleading. They’re carrying on a state-by-state campaign to get courts to strike down such waivers, voluntarily entered or not. (Mark Clayton, Christian Science Monitor, Mar. 12).

March 15-17 – “Politicians’ Syllogism”.

“Step One: We must do something;

“Step Two: This is something;

“Step Three: Therefore we must do it.”

– Jonathan Lynn & Antony Jay in the British television series “Yes, Minister” (via Prog Review; site on show; Hugh Davies, “Celebrities and friends say fond farewell to Sir Nigel”, Daily Telegraph, Jan. 10 (memorial for show star Sir Nigel Hawthorne, who died Dec. 26)).

March 13-14 – “Greedy or Just Green?”. “In the last few days of December, Kamran Ghalchi sent more than 3,000 California businesses an unwelcome holiday greeting — legal notices claiming they were in violation of Proposition 65, a one-of-a-kind California law requiring warnings on products that contain potentially dangerous chemicals. More than half of Ghalchi’s December notices were filed against car dealers and other automotive businesses throughout the state. Warnings at gas stations are a familiar sight to Californians, but car dealers do not warn customers that buying a car could expose them to oil, gasoline and car exhaust. In a letter offering to settle with one dealer, Ghalchi demands $7,500 to settle right away: $750 of it in fines to the attorney general, the rest split evenly between Ghalchi and Citizens for Responsible Business, a new Proposition 65 enforcement group that is the plaintiff in all of Ghalchi’s December filings.”

Recent figures from Sacramento indicate that of “citizen suit” settlements by companies for failing to post Prop 65 warnings, less than eight percent of payouts go to the state, while two-thirds go to plaintiff’s attorneys’ fees and costs, and much of the remainder to freelance enforcement groups that work with the lawyers. Even California attorney general Bill Lockyer, no friend of business, detects “an odor of extortion around many of these notices that concerns me’”. (Bob Van Voris, National Law Journal, Feb. 26).

March 13-14 – U.K. soldiers’ claim: brass didn’t warn of war trauma. In Great Britain, a high court lawsuit accuses the Ministry of Defence of “failing to adequately prepare service personnel for their inevitable exposure to the horrors of war”. Nearly 2,000 potential claimants have registered an interest in the action, which seeks to recover for post-traumatic stress disorder, according to Queen’s Counsel Stephen Irwin, arguing on their behalf. “Mr. Irwin said that the case was ‘enormous’, would take a very long time and would cost a ‘great deal of money’”. (”MoD sued over trauma from ‘horrors of war’”, London Times, Mar. 4; Joshua Rozenberg, “2,000 sue MoD over psychiatric injuries of war”, Daily Telegraph, Mar. 5)(see also “Britain’s delicate soldiery”, Dec. 22, 2000).

March 13-14 – Education reforms could serve as basis for new suits. “Robin Hood” lawsuits prevailing on courts to order equalization of spending between rich and poor public school districts have been a dismal failure even on their own terms, undermining local taxpayers’ willingness to shoulder property tax burdens. But undaunted by previous fiascos, activist education lawyers figure the answer is yet more litigation: they’re hoping to latch onto new federal mandates for uniform test scores as the basis for a renewed round of lawsuits arguing that underperforming schools have a constitutional right to more money. (Siobhan Gorman, “Can’t Beat ‘Em? Sue ‘Em!”, Washington Monthly, Dec. 2001).

March 13-14 – I’ve got a legally protected bunch of coconuts. “A Slidell businessman who painted 150 green-and-white coconuts to pass out at the city’s St. Patrick’s Day parade got a visit Thursday from a business partner of the Zulu Social Aid and Pleasure Club, which has been tossing gilded and glittery coconuts on Mardi Gras for decades. ‘The guy told me that as soon as I put paint on a coconut, I was infringing on their copyright,’ said Ronnie Dunaway, who owns Dunaway’s Olde Towne Market. ‘I was absolutely dumbfounded that there were laws about what you can and can’t do with a coconut.’” (Paul Rioux, “Zulu partners clamp down on copy-cat coconuts “, New Orleans Times-Picayune, Mar. 8).

March 12 – Texas trial lawyers back GOP PAC. Sneaky? In Houston, plaintiff’s lawyers traditionally aligned with the Democratic Party are funding a “Harris County GOP PAC” which has endorsed candidates in today’s Republican primary for Supreme Court, Congress, the state legislature, and county attorney. Though unaffiliated with the official Republican organization, the PAC has sent voters a slickly produced brochure whose “logo even mimics the official logo of the Harris County Republican Party, which features an elephant inside of a star”. (”Harris County GOP PAC funded by plaintiff’s lawyers”, Citizens Against Lawsuit Abuse Houston, undated March; John Williams, “Republicans want distance from PAC”, Houston Chronicle, Mar. 7).

March 12 – Liability concerns fell giant sequoia. “The Sonora Union High School District, owner of the property, had been concerned about liability if the 85-foot-tall tree fell on its own.” (Melanie Turner, “Giant sequoia felled despite legal wrangling”, Modesto Bee, Feb. 23) (via MaxPower blog, Feb. 17).

March 12 – A “Jenny Jones Show” question. Why do ads for injury lawyers so often air on the same TV shows as debt-restructuring ads aimed at viewers desperate for financial relief? — wonders blogger Patrick Ruffini (March 8).

March 11 – Fast-food roundup. The Chicago Tribune is reporting that McDonald’s Corp. is on the verge of settling lawsuits brought on behalf of vegetarians over its use of beef extract as a flavoring agent for French fries; the terms include “$10 million to charities that support vegetarianism and $2.4 million to plaintiffs’ attorneys.” Yum! (Ameet Sachdev, “McDonald’s nears deal on fries suit”, Chicago Tribune, March 7; AP/Fox News, Mar. 9; see May 4, 2001, and Rediff.com coverage: May 4, May 8, July 3, 2001). Public health activists are taking aim at the food industry’s sinister ploy of providing customers with big portions, in a contrast with the inflationary 1970s when activists denounced the same companies’ shock-horror practice of shrinking the size of the candy bar or taco (Randy Dotinga, “Super-Size Portion Causing U.S. Distortion”, HealthScoutNews/ Yahoo, Feb. 19). Whatever happened to the old notion of “leave some on the plate for Miss Manners”, anyway? On EnterStageRight.com, Steven Martinovich analyzes the next-tobacco-izing of snack food, quoting our editor on the subject (”The next moral crusade”, Feb. 25). Also see accounts on ConsumerFreedom.com: Jan. 24, Jan. 30, Feb. 5. And a lefty commentator for a British newspaper has concluded that our battle with the waistline is really all capitalism’s fault: Will Hutton, “Fat is a capitalist issue”, The Observer, Jan. 27.

March 11 – Parole board’s consideration of drug history could violate ADA. In a case filed by inmates at the state prison in Vacaville, Calif., a Ninth Circuit panel has ruled that parole boards may violate the Americans with Disabilities Act if they regard a prisoner’s history of drug addiction as a reason to accord any less favorable disposition to his request to be turned loose early, such history counting as a disability protected under the law. Sara Norman, a lawyer for the inmates, said the ruling “might also apply to those suffering mental disabilities covered by the ADA. … The panel also suggested that the ADA covers a panoply of law enforcement decision making, including arrests.” The case “could lead to a swell of court challenges”. (Jason Hoppin, “ADA Applies to Decisions About Parole, Says 9th Circuit”, The Recorder, Mar. 11).

March 11 – Editorial-fest. Sense is breaking out all over: “The government’s impulsive entrance into the victim-compensation business was born of a one-time mix of compassion and political expediency, but it sets an unaffordable precedent at a time when the nation faces the likelihood of more terrorist acts.” (”Why Is One Terrorism Victim Different from Another?” (editorial) USA Today, Mar. 8). The Washington Post, which has helped lead the case for reform of nationwide class action procedures, is back with another strong editorial on the subject (”Restoring class to class actions”, Mar. 9). And following the lead of its sister Fortune (see Feb. 18-19), Time is out with a piece asking why workers themselves should put up with the widespread abuse of asbestos litigation (”The Asbestos Pit”, Mar. 11).

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