- Despite sparseness of evidence, lawyers hope to pin liability on hotel for double murder of guests [Tennessean]
- Celebrated repeat litigant Patricia Alice McColm sentenced after felony conviction for filing false documents in Trinity County, Calif. [Trinity Journal, more, Justia, earlier] Idaho woman challenges vexatious-litigant statute [KBOI]
- “2 Florida Moms Sentenced for Staged Accident Insurance Fraud” [Insurance Journal, earlier]
- With Arkansas high court intent on striking down liability changes, advocates consider going the constitutional amendment route [TortsProf] Fifth Circuit upholds Mississippi damages caps [PoL]
- What states have been doing lately on litigation reform [Andrew Cook, Fed Soc] Illinois lawmakers’ proposals [Madison-St. Clair Record] Head of Florida Chamber argues for state legal changes [Tampa Tribune]
- Crowd of defendants: “Ky. couple names 124 defendants in asbestos suit” [WV Record]
- A bad habit of Louisiana courts: “permitting huge recoveries without proof of injury” [Eric Alexander, Drug and Device Law]
Posts tagged as:
Idaho
“[Keith Allen] Brown and four other inmates at Idaho’s Kuna facility are suing major beer companies, blaming their crimes on alcoholism and claiming that the companies are responsible because they don’t warn consumers that their products are addictive.” The laudatory Nicholas Kristof column practically writes itself, though one should note that the inmates “do not have attorneys and drafted the lawsuit themselves.” [Idaho Statesman]
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“The [Spokane, Wash.] Spokesman-Review must provide information that could identify an anonymous reader who typed a disparaging online comment about the chairwoman of the Kootenai County Republican Party in February, an Idaho judge ruled Tuesday.” [Spokesman-Review] More: Citizen Media Law.
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- “It’s time for the ABA to deregulate law schools” [Richard Painter, Legal Ethics Forum]
- Curb schadenfreude please, it’s just class action entrepreneurship: “Law Schools Sued for Lying About Lawyering” [NY Magazine]
- “AALS President: Law Professors Should Be ‘Cheerleaders’ for ‘Our Way of Life.’” [Instapundit]
- “Widener Law settles with Prof. Lawrence Connell” [William Jacobson, Legal Insurrection, earlier here, here, here, etc.] Sensitivity camp at U. of Idaho Law [ATL] Peter Wood on Teresa Wagner case [Chronicle]
- Perspective of a practitioner turned professor [David Hricik] Claim: proliferation of “soft” curriculum really isn’t something to worry about [Brad Wendel] “Justice Scalia makes up with University of Chicago” [Chicago Sun-Times]
- “The coming crash in legal education” [Richard Bourne, Creighton Law Review/University of Baltimore/SSRN via Caron] Could law schools recover from adversity the way dental schools did? [Eric Chiappinelli, Faculty Lounge] “Why Occam’s Razor cuts in favor of making law an undergraduate degree” [Russ Pearce, LEF]
- US News changes rating methodology, and law schools’ part-time day programs suddenly dry up [Caron]
- Attention New Yorkers: if you missed my talk Tuesday at Fordham on Schools for Misrule, I’ll be back in town next Wednesday (Feb. 22) for a 1 p.m. talk at Brooklyn Law School before that school’s Federalist Society chapter; also that evening at Yale with distinguished Prof. John Fabian Witt commenting.
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So now everyone will be happy dept.: The only bone-marrow donor program in Idaho’s capital of Boise is closing down. It seems the National Marrow Donor Program has enacted regulations requiring local programs either to recruit at least 1,000 minority donors a year or to hire a full-time recruiter by way of showing a good-faith effort toward that goal. But there aren’t enough minorities in the Treasure Valley to hit the numerical target and the program at St. Luke’s Mountain States Tumor Institute isn’t big enough to support the full-time hire, so now the nearest local option for potential donors will be an institution in Spokane, Washington. (Idaho Statesman and more, Idaho Business Review, Seattle Times) (via Taranto).
More: The national program, however, denies that its regulations require the hiring of a recruiter and says its local minority recruitment goal is 575, not 1,000: Taranto, Aug. 11.
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We and many others criticized a law firm in October for taking the position that its cease and desist letters, also known as nastygrams, were copyrighted and thus could not be posted intact on the web by its targets. However, if a press release from that law firm is correct, a federal court in Idaho has just indeed taken the position that cease and desist letters may be covered by copyright law. Such a ruling, if upheld, would make it more difficult for the targets of bullying tactics by lawyers to rally online support for their cause. (TechDirt, Jan. 25; Slashdot, Jan. 26; Dozier Internet Law press release, PRWeb, Jan. 24).
More: “if a press release from the law firm is correct” turns out to be a big if: according to Ron Coleman at Likelihood of Confusion, as well as our own commenters, the Idaho federal court ruling falls far short of establishing any such proposition about these letters’ being copyrightable. See also: Victoria Pynchon, IP ADR blog, TechDirt later post, Paul Alan Levy @ CL&P. And yet more: Marc Randazza, Eugene Volokh.
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“Threatened with a potential defamation suit, two individuals have apparently retracted their claimed characterization of a Spokane, Wash.-area law firm formerly known as ‘Wetzel & Wetzel’ as ‘Weasel & Weasel.’” Jim MacDonald, president of the Bayview, Idaho Chamber of Commerce, “read a letter of contrition” at the chamber’s regular monthly meeting “as demanded” by the offended lawyers. Does this mean we’re going to get in trouble with our earlier references to Cruel & Boring, We’ll Getcha & Mangle Ya, Huge Cupboards of Greed, etc.? (Martha Neil, ABA Journal, Oct. 25; Herb Huseland, “Bayview News: Law firm claims slander”, Spokane Statesman-Review, Oct. 25).
P.S. Australian lawyer Stumbling Tumblr adds, “there’s no indication in the story whether weasels had also threatened proceedings”.
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In two cases in the last few months, federal judges have ordered the government to pay the defense costs of failed health care fraud prosecutions.
In Nevada, Judge Robert C. Jones awarded about $300,000, about 30% of the defense costs, to an Idaho doctor, finding that the losing case was frivolous because, the American Medical News reports, the government’s experts contradicted other experts in the case. (There is presumably more to the story than this, as the same is true in nearly every criminal trial involving expert testimony.) Half the claims were dismissed before trial, and the others were adjudged not guilty by a jury. The government has appealed. (Amy Lynn Sorrel, “Judge rules criminal fraud case against Idaho doctor is frivolous”, Aug. 20) (h/t P.N.).
And, in Texas, Judge Lynn Hughes awarded $391,000 to an Oklahoma attorney to cover part of his defense costs after being wrongly prosecuted on 54 counts of health insurance fraud. The court criticized prosecutors for misleading the grand jury and a “reckless disregard for the truth.” Again, the government will appeal. (AP/Tulsa World, “U.S. ordered to pay OKC attorney”, Aug. 13).
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It takes a hard person to pick on the family of a dead child — but that’s why I’m here. In 2001, Tegan Rees, a 2-year old boy living in Idaho, was beaten to death by his mother’s fiance. The boy’s father had previously reported to Idado child welfare authorities that he saw bruises when he picked up his son from his ex-wife, but when they investigated, they decided it wasn’t abuse. That was just a few weeks before the boy was murdered. So, naturally, he sued the Idaho Department of Health and Welfare for $1 million.
Last week, the jury ruled 10-2 in favor of the state agency (AP, Mar. 11). The grandmother’s reaction?
“I’m just sickened,” Christie Rees told the Post Register. “I’m embarrassed that I live in Idaho. I thought finally Tegan would get justice.”
Justice? Keep in mind that the person who actually killed the boy was convicted of first degree murder, and sentenced to 22 years to life in prison.
I guess sometimes it really is about the money.
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From “Decision of the Day: A daily summary of the best (and worst) of federal appellate decisions” (Jul. 3):
Money Can’t Buy Love, Or Permission to Land Your Personal Jet
Tutor-Saliba Corp. v. Hailey, 04-34524 [PDF](9th Cir., July 3, 2006)Poor Ron Tutor. All he wanted to do is land his personal jet at an airport in Hailey, Idaho. The airport wouldn’t let him due to weight restrictions, so he was forced to fly in a less comfortable private jet. As a result, Tutor’s vacation at his Sun Valley home got off to a very bad start. Tutor sued the airport and the City of Hailey on various grounds, including under 42 U.S.C. § 1983 for allegedly violating his rights to due process, equal protection, and interstate travel. The district court predictably found these claims were frivolous and awarded partial fees to the defendants, totaling $88,000 (in addition to costs of around $70,000). On appeal, the Ninth affirms the decision to award fees but remands to the district court for recalculation. Am I the only one who hopes the district court finds a way to increase the fee award on remand?
“Decision of the Day”, incidentally, was launched by “Robert Loblaw” in October, and can be found here.
P.S.: In email, Prof. Childs advises that site author “Robert Loblaw” quite possibly may have borrowed that screen name from a similarly named lawyer-character on “Arrested Development”, who can be viewed here.
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The official recruitment of cosmetologists as informants (and as intermediaries steering customers to approved “domestic-violence” programs) continues, with programs reported in Florida, Idaho, Oklahoma, Virginia, Ohio and Maine, as well as Nevada and Connecticut (see Mar. 16 and Mar. 29, 2000). It’s not just black eyes or lacerations that the salon employees are supposed to be on the lookout for, either. A customer’s protestation that “he would not like that”, as a reason to turn down a new hairstyle, might be a sign of “controlling behavior” that needs watching. (“Salons join effort to stop violence”, Bangor Daily News, Jun. 15) (via van Bakel).
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Chutzpah champion of the Northwest? “Three years after getting drunk, blowing through a stop sign and triggering a wreck that left her passenger critically injured, a former Idaho resident has filed a $1.5 million claim against Washington’s Pend Oreille County for not detaining her before she caused the crash.” Ashlen Lee, 17 at the time of the accident, says in her claim that a county sheriff’s deputy let her off with a warning in the wee hours although he could see she’d been drinking and neither she nor her passenger was wearing a seat belt. (Richard Roesler, “Driver says her accident deputy’s fault”, Spokane Spokesman-Review, Aug. 5).
Two bad ideas in one: A Florida state House committee voted 6-2 to forward on H-837, a bill some legislators say will give university students a legal cause of action to sue universities and professors who “ridicule” their beliefs.
“Some professors say, ‘Evolution is a fact. I don’t want to hear about Intelligent Design, and if you don’t like it, there’s the door,’” [Rep. Dennis Baxley, R-Ocala] said, citing one example when he thought a student should sue.
The bill is expected to pass the Florida House. It’s not quite clear that the bill will have the effect of opening the courtrooms to every crackpot student offended by a professor’s lecture, but it’s not comforting to see the absence of a denial. (James Vanlandingham, “Capitol bill aims to control ‘leftist’ profs”, Independent Florida Alligator, Mar. 23; Joe Follick, “House OKs Student `Free Speech’ Bill”, Lakeland Ledger, Mar. 23; James Vanlandingham, “Pending academic freedom bill comes under fire”, Independent Florida Alligator, Mar. 24).
“Boise attorney Gale Merrick, who represented the automaker, said the Supreme Court ruling reinforced the company?s contention that there was no evidence that mice got into the van because of some manufacturing defect. ‘They could have left the windows down or a door open,’ Merrick said.” An Idaho jury had held Honda liable for $10,250 because of the smell of mouse droppings in the vehicle. (Idaho Statesman, Oct. 24; Powers v. American Honda Motor Co.; “Of mice and men: Honda damages are overturned”, AP, Oct. 23; see also Julie Pence, “Mouse tales … Little critters can cause problems in your car”, Twin Falls Times-News Online, Oct. 24 for a story about the problems of mice in cars in the area).
August 31-September 2 – Study: DPT and MMR vaccines not linked to brain injury. Some children experience fever and febrile (fever-related) seizures after being given the diphtheria- tetanus- pertussis (DTP) vaccine and measles, mumps, and rubella (MMR) vaccine and it has long been feared, to quote the New York Times‘s summary of a massive new study, “that those rare fever-related seizures may be linked to later autism and developmental problems. The fears are unfounded, the [new] study concluded.” The study, which appears in the New England Journal of Medicine, was of medical data for 639,000 children and was conducted with the assistance of the Centers for Disease Control and Prevention. “There are significantly elevated risks of febrile seizures after receipt of DTP vaccine or MMR vaccine, but these risks do not appear to be associated with any long-term, adverse consequences,” concludes the abstract.
All of which comes too late to prevent the legal devastation of much of the childhood vaccine industry at the hands of trial lawyers, an episode that climaxed in 1986 when Congress stepped in and established a no-fault childhood vaccine compensation program (see Nov. 13, 2000). According to the Washington Post, one Milwaukee lawyer alone “has won million-dollar judgments or settlements in nearly a dozen DPT cases.” “The jury hated the drug companies so bad when we got through with them that they would have awarded money no matter what,” boasts the lawyer, Victor Harding. (Arthur Allen, “Exposed: Shots in the Dark”, Washington Post Magazine, Aug. 30, 1998). If the new study is correct, however, the vaccines may not have been responsible for the occurrences of permanent developmental disability that so often led to high awards. Worldwide alarm over the vaccines’ feared side effects, stoked in no small part by the litigation, contributed to a decline in immunization rates that resulted in a resurgence of the diseases in several countries, killing many children. (DURABLE LINK)
SOURCES: William E. Barlow, Robert L. Davis et al, “The Risk of Seizures after Receipt of Whole-Cell Pertussis or Measles, Mumps, and Rubella Vaccine”, New England Journal of Medicine, Aug. 30 (abstract); Philip J. Hilts, “Study Clears Two Vaccines of Any Long-Lasting Harm”, New York Times, Aug. 30 (reg); and dueling headlines: Daniel Q. Haney, “Two Vaccines Linked to Seizures”, AP/Yahoo, Aug. 29, and Gene Emery, “Researchers: Vaccines Carry Little Risk of Seizures”, Reuters/Yahoo, Aug. 29. Adds AP: “In April, an Institute of Medicine committee issued a report saying there is no evidence that MMR causes autism, as some have speculated.” (more)
August 31-September 2 – Radio daze. The nation’s largest radio chain, Clear Channel, is known for hardball lawyering — as when it sued Z104, a rival station in Washington, D.C., for having the temerity to hold a listener contest in which the prize was tickets to an outdoor concert in Los Angeles staged by a Clear Channel subsidiary. Violated their client’s “service mark”, the lawyers said (Frank Ahrens, “Making Radio Waves”, Washington Post, Aug. 22).
August 31-September 2 – “Man Pleads Guilty to Use of Three Stooges’ Firm in Fraud Scheme”. In Lubbock, Texas, Patrick Michael Penker has admitted bilking banks and other institutions out of $1 million in a scheme in which he “used the name of the slapstick comedy trio’s fictional law firm Dewey, Cheatham and Howe to obtain cashier’s checks” (more on that illustrious firm: Google search). “It did seem just a bit unusual for a company name,” said a bank officer who alerted the FBI (AP/FoxNews, Aug. 27).
August 29-30 – Washington Post on class action reform. “No portion of the American civil justice system is more of a mess than the world of class actions. None is in more desperate need of policymakers’ attention.” Excellent Post editorial which should help fuel reform efforts (“Actions Without Class” (editorial), Washington Post, Aug. 27).
August 29-30 – Firefighter’s demand: back pay for time facing criminal rap. David Griffith, a Hispanic firefighter in Des Moines, Iowa, “has sued city officials, alleging racial bias in their refusal to give him back pay for a leave of absence after he was arrested.” Griffith went on a six-month unpaid leave after he “was arrested in December 1999 on three counts of third-degree sexual abuse involving a then-22-year-old woman. The charges were dropped in May 2000 after Griffith pleaded guilty of assault with intent to inflict injury and harassment. … In his lawsuit, Griffith said he ‘was treated less favorably than non-Hispanic employees and believed such treatment was based on race’. … City attorney Carol Moser said Des Moines officials never forced Griffith to take a leave of absence but simply granted his request.” (Jeff Eckhoff, “D.M. firefighter sues for back pay after arrest, alleges discrimination”, Des Moines Register, Aug. 24).
August 29-30 – “Trolling for Dollars”. Lawyers are turning aggressive patent enforcement into a billion-dollar business, and companies on the receiving end aren’t happy about it (Brenda Sandburg, “Trolling for Dollars”, The Recorder, July 31).
August 29-30 – Negligent to lack employee spouse-abuse policy? The husband of a Wal-Mart employee in Pottstown, Pa., came to the store and shot her, then killed himself. Now her lawyer is suing the retailer, arguing (among other theories) that it should have had a policy to protect its employees from spousal abuse. (Shannon P. Duffy, “Employee Sues Wal-Mart Because Store Didn’t Protect Her From Husband’s Attack”, The Legal Intelligencer, Aug. 24).
August 29-30 – Updates. Further developments in perhaps-familiar cases:
* Extremist animal-rights group PETA, which not long ago cybersquatted on the domain ringlingbrothers.com where it posted anti-circus material, has prevailed in its legal battle (see July 3, 2000) to wrest the domain peta.org away from a critic which had used it for his contrarian “People Eating Tasty Animals” site (more/yet more). (Declan McCullagh, “Ethical Treatment of PETA Domain”, Wired News, Aug. 25).
* The Big Five Texas tobacco lawyers have enjoyed an almost perfect record of success so far in dodging investigation of their $3.3 billion-fee deal to represent the Lone Star State in the national tobacco litigation, but Texas Attorney General John Cornyn should not be counted out yet (see Sept. 1, 2000, May 22, 2000, June 21, 2001): last month he scored an advance for his long-stymied ethics probe when the Fifth Circuit ruled he should be given a chance to pursue state court proceedings aimed at putting the Five under oath about the lucrative arrangements (Brenda Sapino Jeffreys, “Texas Attorney General May Depose Tobacco Lawyers in State Court”, Texas Lawyer, July 30).
* Conceding that one of its execs did indeed use a disrespectful nickname for its Denver stadium (“the Diaphragm”, referring to its shape), the Invesco financial group agreed to drop its threatened defamation lawsuit (see July 5) against the Denver Post for reporting the remark (“Invesco won’t sue Post”, Denver Post, July 6).
August 27-28 – Clinical trials besieged. Since the Jesse Gelsinger case, where survivors of an 18-year-old who died in a gene-therapy experiment brought a successful lawsuit against the University of Pennsylvania, lawsuits have been burgeoning against universities, private health-research foundations and other sponsors of clinical trials and experimental medical treatments; one recent high-profile case targets the Fred Hutchinson Cancer Research Center in Seattle. The “suits have sent shudders through the biomedical community. … Some experts in the biomedical field believe the litigation will have a chilling effect on research that benefits humankind through scientific advancement. They also worry that volunteers will dry up.” A lawyer who specializes in the new suits makes a practice of suing not only researchers and deep-pocket institutions but also “bioethicists as well as members of institutional review boards, the volunteers charged with reviewing and approving clinical trials.” (on bioethicists, see also Oct. 6, 2000) (Vida Fousbister, “Lawsuits over clinical trials have doctors wary, but not quitting research yet”, American Medical News, April 16; Maureen Milford, “Lawsuits Attack Medical Trials”, National Law Journal, Aug. 21; Kate Fodor, “Insurance Companies Get Stricter on Clinical Trials “, Reuters/CancerPage.com, June 27; Christy Oglesby, “Volunteers sustain clinical trials”, WebMD/CNN, July 23).
August 27-28 – Recommended new weblog. Launched a few weeks ago, Instapundit by U. of Tennessee law prof Glenn Reynolds has already made it onto our must-read list with frequently updated commentary on such topics as gun laws, patients’ bill of rights legislation, abusive prosecution, the tobacco settlement, and stem-cell research. Also new among our “dailies” links (left column of front page) are Joshua Micah Marshall’s and Marshall Wittmann’s weblogs, both oriented toward political matters.
August 27-28 – “Jailed under a bad law”. “The arrest by federal authorities of a Russian computer programmer named Dmitry Sklyarov is not the first time the so-called Digital Millennium Copyright Act has led to mischief. It is, however, one of the most oppressive uses of the law to date — one that shows the need to revisit the rules Congress created to prevent the theft of intellectual property using electronic media,” contends the Washington Post in an editorial. Sklyarov wrote a program, legal in Russia, that enables users to defeat the copy-protection on Adobe’s eBook Reader system; the DMCA bans such programs even though they have uses unrelated to unlawful copying, and it does not require the government to prove in prosecution that facilitating piracy was part of a defendant’s intent. (Washington Post, Aug. 21; Julie Hilden, “The First Amendment Issues Raised by the Troubling Prosecution of e-Book Hacker Dmitry Sklyarov”, FindLaw, Aug. 10; Declan McCullagh, “Hacker Arrest Stirs Protest”, Wired News, July 19; Glenn Reynolds (see also other items in his weblog). More ammunition for anti-DMCA sentiment: Amita Guha, “Fingered by the movie cops”, Salon, Aug. 23.
August 27-28 – Urban legend alert: six “irresponsibility” lawsuits. Much in our inbox recently: a fast-circulating email that lists six awful-sounding damage awards (to a hubcap thief injured when the car drives off, a burglar trapped in a house who had to eat dog food, etc.). Circumstantial details such as dates, names, and places make the cases sound more real, but all signs indicate that the list is fictitious from beginning to end, reports the urban-legends site Snopes.com (Barbara Mikkelson, “Inboxer rebellion: tortuous torts“). Snopes also has posted detailed discussions of two of the other urban legends we get sent often, the “contraceptive jelly” yarn, which originated with a tabloid (“A woman sued a pharmacy from which she bought contraceptive jelly because she became pregnant even after eating the jelly (with toast).” — “Jelly babied“) and the cigar-arson fable (“A cigar aficionado insures his stogies against fire, then tries to collect from his insurance company after he smokes them.” — “Cigarson“). What we wonder is, why would people want to compile lists of made-up legal bizarreries when they can find a vast stockpile of all-too-real ones just by visiting this website? (DURABLE LINK)
NAMES IN STORIES: The never-happened stories include tales about “Kathleen Robertson of Austin Texas” (trips on her toddler in furniture store); “Carl Truman of Los Angeles” (hubcap theft) “Terrence Dickson of Bristol Pennsylvania” (trapped in house), “Jerry Williams of Little Rock Arkansas” (bit by dog after shooting it with pellet gun), “Amber Carson of Lancaster, Pennsylvania” (slips on drink she threw), and “Kara Walton of Claymont, Delaware” (breaks teeth while sneaking through window into club). All these incidents, to repeat, appear to be completely fictitious and unrelated to any actual persons with these names.
August 27-28 – “Incense link to cancer”. Just when you thought it was safe to go back to the Sixties (BBC, Aug. 2). But not to worry, since it seems everything else in the world has also been linked to the dread disease: Brad Evenson, “Everything causes cancer — so relax”, National Post (Canada), Aug. 4.
August 24-26 – “Delta passenger wins $1.25 mln for landing trauma”. Outwardly uninjured after a terrifying emergency landing en route to Cincinnati in 1996, Kathy Weaver has nonetheless won $1.25 million from Delta Air Lines after her lawyer persuaded a Montana jury that the episode had caused her to suffer post-traumatic stress syndrome and an aggravation of her pre-existing depression. The judge ruled that “her terror during the landing led to physical changes within the brain that could be defined as injury”. (Reuters/Yahoo, Aug. 23; PPrune thread) (more on white-knuckle lotto: Oct. 19, 2000, Oct. 8, 1999).
August 24-26 – “Cessna pilots association does some research…” “Last week’s decision by a Florida jury to ding Cessna to the tune of $480 million for allegedly faulty chair railings in a Cessna 185 has raised more than a few eyebrows,” reports AvWeb. “Cessna’s lawyers blamed the crash on pilot error — as did the NTSB final report — but the plaintiffs’ attorneys argued that the seat-latching mechanism was defective, and the seat slipped back suddenly as the pilot was trying to land. A plaintiff’s attorney was quoted in the Wall Street Journal last week as saying that Cessna ‘knew the seats could slip, but they never told the pilots that.’” On the contrary, says the Cessna pilots association: the company issued a service advisory in 1983, a Pilot Safety and Warning Supplement in 1985, and in 1989 offered all owners a free secondary seat-stop kit “that would provide positive retention of the seat in the event that the primary system failed. Owners had to pay for about three hours’ labor at a Cessna Service Center to install the free kit.” In 1987, the FAA issued its own Airworthiness Directive “with detailed instructions for inspecting the seat-latching system for wear, pin engagement and cracks”. (AvWeb, undated). More of what general aviation folks have to say about that jury award (much of it highly uncomplimentary): AvWeb reader mail; Pprune threads #1, #2.
August 24-26 – Can I supersize that class action for you? The FBI has charged eight persons in the conspiracy, allegedly dating back to 1995, to steal the winning pieces in McDonald’s promotional Monopoly game. Although the fast-food chain was among the victims of the scheme and has already promised a make-it-up sweepstakes promo, can we doubt that the class action lawyers will soon descend? “And never mind those gloomy folk who say the lawyers will win millions while the rest of us each gets a coupon for a packet of fries.” (“They Knew It” (editorial), Washington Post, Aug. 23); Yahoo Full Coverage).
August 24-26 – The document-shredding facility at Pooh Corner. “A family-owned company that receives royalties from the sale of Pooh merchandise says that Walt Disney Co. has cheated it out of $US 35 million … by failing to report at least $US 3 billion in Pooh-related revenue since 1983. … the case has been entangled in Los Angeles Superior Court for a decade …. Last year a Superior Court judge sanctioned Disney for deliberately destroying 40 boxes of documents that could have been relevant to the case, including a file marked ‘Winnie the Pooh-legal problems’”. (“Claimants call Pooh a bear of very little gain”, L.A. Times/Sydney Morning Herald, Aug. 17). Update Mar. 30, 2004: court dismisses suit after finding misconduct on plaintiffs’ side. (DURABLE LINK)
August 24-26 – More traffic records at Overlawyered.com. What summer slowdown? Last week set a new record for pages served, and so did last month … thanks for your support!
August 22-23 – Meet the “wrongful-birth” bar. “BIRTH DEFECTS — When did your doctor know? … You may be entitled to monetary damages,” according to an advertisement by the law firm of Blume Goldfaden Berkowitz Donnelly Fried & Fortea of Chatham, N.J. The theory behind “wrongful-life” and “wrongful-birth” suits? “If the health team had done its job, the [parents] would have known of the defect — and could have chosen not to have the baby. … Lawyers file the cases if — and only if — the parents are prepared to testify that they would have aborted the pregnancy.” Many disabled persons, joined by others, are not exactly happy about the premise that it might be better for some of the physically imperfect among us never to have been born. Attorneys believe such cases “will become more common as prenatal sonograms, blood tests, and genetic counseling become routine, and the public learns of the potential for large financial awards when genetically defective babies are born.” “Any child born with a birth defect has a potential wrongful birth or wrongful life claim,” says one optimistic lawyer. (Lindy Washburn, “Families of disabled kids seek peace of mind in court”, Bergen Record, Aug. 19; “N.J. has taken lead in allowing parents, children to sue”, Aug. 19). Note the bizarre headline on the first of the two stories: just how likely is it that “peace of mind” will be found by having the parents swear out a permanent public record to the effect that they wish their child had never been born? (more on wrongful birth/life: Nov. 22-23, Sept. 8-10; June 8, May 9, Jan. 8-9, 2000). (DURABLE LINK)
August 22-23 – Pricing out the human species. According to Idaho governor Dirk Kempthorne, the federal government’s proposal to reintroduce grizzly bears into Idaho “assumed injury or death to people and even calculated the value of human life. A human killed by a grizzly bear in Idaho would cost the federal Treasury between $4 million and $10 million, and the plan even amortized the annual costs at $80,000-$200,000. As far as we know, this is the first time that death or injury to humans has been factored into a program proposed by the federal government under the [Endangered Species Act].” (“Risk to humans too great”, USA Today, Aug. 17). And did reluctance to draw water from a river containing threatened fish contribute to the deaths of four firefighters during a big wildfire in Okanogan County, Wash. last month? (Chris Solomon, “Why Thirty Mile Fire raged without water”, Seattle Times, Aug. 1; “Endangered Fish Policy May Have Cost Firefighters’ Lives”, FoxNews.com, Aug. 2).
MORE: “NWFP [Northwest Forest Plan] standards and guidelines and other agency policies such as PACFISH set streamside buffers with virtually zero risk to fish species, regardless of the effects of large buffers to other management objectives. Managing risks requires value-based decisions. We understand that the zero-risk [to fish -- ed.] approach is largely a result of lawsuits….” (James E. Brown of the Oregon Department of Forestry at a House Agriculture Committee oversight hearing, June 21, 1999 — scroll to near end of document). (DURABLE LINK)
August 22-23 – Slavery reparations suits: on your mark, get set… “By year-end, an all-star team of lawyers calling themselves the ‘Reparations Coordinating Committee’ plans to file a suit seeking reparations for slavery. … Multiple cases in multiple forums are likely. The defendants will come from both the public and private sectors”; among businesses likely to be named as defendants is J.P. Morgan Chase. (Paul Braverman, “Slavery Strategy: Inside The Reparations Suit”, American Lawyer, July 6). Harvard Law prof Charles Ogletree said “‘an amazing series of possible actions’ is slated for early next year.” (Emily Newburger, “Breaking the Chain”, Harvard Law Bulletin, Summer). Some of the reasons it’ll be a terrible idea: John McWhorter, “Against reparations”, The New Republic, July 23 (more on reparations: July 6-8, April 17, Dec. 22-25, 2000 and links from there). (DURABLE LINK)
August 22-23 – “New York State’s Gun Suit Must Be Dismissed”. No, bad lawsuits don’t always prosper: “The New York state attorney general’s novel lawsuit to find the gun industry liable under a nuisance theory must be dismissed,” Justice Louis B. York has ruled in Manhattan. New York was the only state to have joined 32 municipalities in suits against the gun industry that aim to extract money from gunmakers as well as arm-twist them into adopting various gun controls that legislatures have declined to enact. New York AG Eliot Spitzer is said to be “dismayed” by the decision. Good! (Daniel Wise, New York Law Journal, Aug. 15).
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October 19 – Sexual harassment: ask the experts (if that’ll help). CNN.com asks authorities on harassment law for advice on handling common workplace situations and gets strikingly contradictory answers. Should employers ban consensual dating between supervisors and subordinates? Yes, says employment-law attorney Anne Covey; no, says business professor Dennis Powers. Does a desk photo of a wife or girlfriend in a bikini count as harassment? Yes, says Covey (“You wouldn’t allow somebody in a bathing suit to be in the office. So I don’t think the picture is appropriate either”); no, says Powers. Although the number of harassment complaints filed with the EEOC has been flat recently, sums of money recovered through the agency’s efforts have more than doubled since 1995. And don’t expect a potential complainant to tell you you’re doing something wrong before taking a gripe to management, says Covey: “An employee does not have an obligation to walk up to you and educate you about your behavior that they find to be inappropriate”. (Larry Keller, “Sexual harassment: Serious, subtle, stubborn”, CNN.com, Oct. 3).
October 19 – All shook up. Music student Anna Lloyd, 22, was among the 136 survivors of a fiery 1999 American Airlines plane crash at the Little Rock airport that killed 10 passengers and the pilot. Her attorney acknowledges that she is physically fine after the minor injuries she sustained at the time, but he says the psychological scars of the experience have left her emotionally disconnected, anxious, prone to angry outbursts, and socially withdrawn. American Airlines thought $330,000 in compensation was sufficient for her situation, but Lloyd asked a jury for $15 million, and last week it gave her $6.5 million. (“Jury awards woman $6.5 million in plane crash trial”, AP/FindLaw, Oct. 13; “Plane crash traumatized college student for life, lawyer argues”, AP/CNN.com, Oct. 11; passenger and crew list, Flight 1420 (Arkansas Democrat-Gazette)). In August, in the first lawsuit over the Little Rock crash to go to trial, Lloyd’s friend Kristin Maddox was awarded nearly $11 million; see Aug. 31.
October 19 – Courtroom crusade on drug prices? We’ve lost count of the number of fields of litigation that eager lawyers have nominated as the “next tobacco”: guns, lead paint, casinos, HMOs, class actions against Microsoft, and so on. One more to add to the scrapbook, which we missed earlier: class action suits over pricing of pharmaceutical drugs. “Chicago lawyer Robert Green … says [they] could eventually dwarf current tobacco litigation. ‘There’s much more money at stake, if you can believe that,’ he said.” (Mark Curriden, “Drug firms’ price-setting investigated”, Dallas Morning News, Dec. 7, 1999).
October 18 – Historically inauthentic? Book her. Betty Deislinger, age 70, fixed up an 1870s house in a historic district of Little Rock, Ark., but declined to take the burglar bars off the front, the way the preservation code requires. She was arrested, fingerprinted and booked. (Suzi Parker, “Bars bring long arm of the law”, Dallas Morning News, Oct. 14).
October 18 – Yahoo pulls message board. “Within hours of a Miami appellate court’s order that Yahoo and America Online must disclose the identities of eight Web critics who allegedly defamed former Hvide Marine boss J. Erik Hvide, Yahoo shut down the Hvide Marine company’s message board where the offending words were posted. The board, where thousands of messages about the ups and downs at international marine services company Hvide Marine of Fort Lauderdale, Fla., were posted during the past few years, was also removed from the Web, and previously posted messages are no longer accessible.” “It may be a matter of Yahoo deciding they don’t want to create a headache for themselves by continuing this forum that has resulted in litigation,” said one of the lawyers in the case. (Dan Christensen, “Yahoo Pulls Marine Services Company Message Board”, Miami Daily Business Review, Oct. 17; Catherine Wilson, “Anonymous Net Posting Not Protected”, AP/Excite, Oct. 16; John Roemer, “The Battle Over John Doe”, Industry Standard/Law.com, Oct. 13; Slashdot thread on anonymous message-board speech).
October 18 – Birth cameras not wanted. In a recent survey, 40 percent of obstetricians said they had prevented families from using videocameras to record births, and 80 percent of those cited legal concerns. Such videotapes, or edited snippets from them, may be placed before juries in case of later malpractice suits. (Geraldine Sealey, “Lights, Camera, Lawsuit”, ABC News, Oct. 3) (& see Dec. 26).
October 18 – Product liability: Americanization of Europe? An expected European Community directive will expand rights to sue under product liability law, and business is worried about having to face “a whole new continent of potential plaintiffs.” Among ideas being considered are “the introduction of class actions and market-share liability, and the elimination of both the 70 million euro cap on damages and the ‘state-of-the art’ defense.” However, European consumer groups point out that earlier rounds of liberalization have not resulted in sky-high American-style litigation levels: “Even if these latest pro-plaintiff reforms pass, companies still won’t face juries and punitive damages, the most unpredictable aspects of the U.S. system” — not to mention two other significant aspects of the U.S. system, the lawyer’s contingency fee and the failure of costs to follow the event. (Ashlea Ebeling, “Sue Everywhere”, Forbes, Oct. 16).
October 16-17 – George W. Bush on lawsuit reform. The Bush campaign has put up this page explaining the Governor’s point of view on civil justice reform, his record on the issue in Texas, and his plans for tackling it at the federal level if elected (disclosure: this site’s editor has been involved as an advisor to the campaign). (George W. Bush for President official site; Issues; Civil Justice Reform). And: Wall Street Journal lead editorial Monday assails the Democratic Party for its “captivity” to trial lawyers. “Mr. Gore walked into it again when his claimed visit with the FEMA head to inspect fire-damaged Parker County turned out never to have taken place. As the world now knows, he was in Houston for a fund-raiser with the head of the Texas trial lawyers association.” (“The Lawyer Issue”, Oct. 16).
October 16-17 – European roundup. “The rights of pets in divorce cases would be similar to those of children under proposals in Switzerland, where campaigners have 250,000 signatures for two petitions demanding substantial new rights for pets and other animals.” (Claire Doole, “Animals’ rights could make an ass of Swiss law”, Sunday Times (London), Oct. 8). In Britain, where the exemption of police jobs from the Disability Discrimination Act is set to expire in 2004, “police officers with part of a leg missing are likely to be pounding the beat and one-eyed drivers could be at the wheel of pursuit cars in four years’ time,” to the dismay of the Metropolitan Police Federation, which represents rank-and-file officers (James Clark, “Disability law exposes police to one-legged recruits”, Sunday Times (London), Oct. 8; see also Sept. 29). And in France, the resort town of Le Lavandou attempted to cope with a lack of space in its cemetery by passing a law making it unlawful for persons who lack a cemetery plot to die within town limits; the mayor acknowledges that there will be no levying of penalties against those who violate the law by dying without authorization (“Death be not proud”, AP/Fox News, Sept. 21).
October 16-17 – “Is $30,000 an hour a reasonable fee?” Readers of this space are familiar with the controversy in which attorney Peter Angelos is demanding $1 billion for representing the state of Maryland in the tobacco-Medicaid litigation, while the state is trying to get off with paying him a mere $500 million (see Dec. 9 and Oct. 19, 1999). One tidbit of which we had been unaware: “[A]fter a Baltimore Sun lawsuit forced Angelos to disclose his billing records, the public learned that the lawyer (and Orioles owner) had used $12-an-hour lawyers from a temp agency for nearly 25 percent of the hours he billed. From $12 to $15,000 is a markup of 1,250,000 [sic] percent.” (Phillip Bissett (Baltimore Regional Citizens Against Lawsuit Abuse), Washington Post, Aug. 13). Reader A. J. Thieblot of Baltimore points out that the actual markup number, based on the above calculations, was in fact only 125,000 percent, so in fact Angelos “showed restraint … Doesn’t that make you feel better about him?”
October 16-17 – Fed prosecutors chafe at state ethics rules. Two years ago Congress passed a law requiring U.S. Attorneys to obey the ethical rules applicable to lawyers in the states in which they work. The bill was named after its sponsor, Pennsylvania Republican Joseph McDade, who became a critic of overzealous prosecution after the Justice Department targeted him in an eight-year racketeering probe which ended in his acquittal by a jury. The new law is having a major effect in some states: in Oregon, for example, the state supreme court has forbidden all lawyers as an ethical matter to lie, cheat, or misrepresent themselves. Federal prosecutors complain that kind of restriction deprives them of many cherished investigative techniques, but House Judiciary Chairman Henry Hyde (R-Ill.) says he’s not inclined to repeal the McDade law. (Chitra Ragavan, “Federally speaking, a fine kettle of fish”, U.S. News & World Report, Oct. 16).
October 16-17 – Hasty tire judgments. Does Ford’s Explorer suffer a higher rate of tire-related accidents even when equipped with Goodyear tires, as opposed to the Firestones implicated in the recent furor? Last Monday the Washington Post reported that it did, only to report two days later that some of the vehicles in the data base it had been looking at were equipped with Firestones after all. “In its rush to judge the Explorer a deathtrap, the Post engaged in what social scientists call ‘confirmation bias.”" writes Jack Shafer of Slate (“The Washington Post Blows the Blowout Story”, Slate, Oct. 11; Dan Keating and Caroline E. Mayer, “Explorer Has Higher Rate of Tire Accidents”, Washington Post, Oct. 9; “Ford Cites Flaws in Tire Data”, Oct. 11).
Should the tire problem have been obvious from road statistics? It may depend on how you slice those statistics, says mathematician John Allen Paulos: crashes associated with tire failure are so rare as a percentage of all crashes that it can be easy to lose them in the data (“Statistics and Wrongdoing”, ABC News, Oct. 1). Reports of accidents and deaths “linked to” the tires flooded into the federal government’s National Highway Traffic Safety Administration after the furor broke, not because the crash rate had suddenly jumped, but because informants rushed to inform the agency of previously unreported older cases; and the phrase “linked to” itself elides issues of causation that can be resolved only by case-by-case investigation (Dan Ackman, “Tire Deaths Linked To Tough Questions”, Forbes.com, Sept. 7).
Also shedding light on the degree to which the origin of the tire problems remains less than fully obvious: “[p]laintiff’s lawyers have been trading theories, information and documents for more than a year in lawsuits related to the tires”, the news-side Wall Street Journal‘s Milo Geyelin reported in August, but “so far they have yet to reach a consensus”. Some think the lower tire pressure recommended by Ford is a key factor, others downplay its significance; there’s no agreement as to whether the problem is specific to tires manufactured at Firestone’s Decatur, Ill. plant; and so on. (Milo Geyelin, “Theories Mount Regarding Root of Tire Defects”, Wall Street Journal, Aug. 23 (fee-based archive)). See also Melanie Wells and Robyn Meredith, “Nothing Comes Between Me and My SUV”, Forbes.com, Oct. 16; FindLaw page on tire litigation.
October 16-17 – “Judge Lenient With Perjurer, Cites Clinton Case”. “Chief U.S. District Judge James A. Parker told prosecutors last week that it was unfair of them to ask for a strict prison sentence in a New Mexico perjury case, pointing out that President Clinton recently asked for leniency for lying under oath.” Ruben Renteria Sr. had been acquitted of drug conspiracy but was convicted on a count of perjury related to the investigation. (Guillermo Contreras, Albuquerque Journal, Oct. 14) (via Drudge).
October 13-15 – Place kicker awarded $2 million. “A jury awarded a female place-kicker $2 million in punitive damages Thursday, ruling Duke University cut her from the team solely because of her gender.” Heather Sue Mercer, a walk-on player, had sued for damages that included emotional distress, humiliation and periods of depression after being dropped from the college team. Team members testified that Mercer was not a powerful kicker; the jury voted her $1 in compensatory damages and $2 million in punitives. (“Jury rules Mercer was cut because of gender”, AP/ESPN, Oct. 12; Reuters/Yahoo; “Ex-coach says he admired kicker’s ‘spunk’”, AP/ESPN, Oct. 11; “Woman sues Duke over being cut from team”, Oct. 4). Update Dec. 30, 2002: appeals court overturns punitive damage component of verdict. See also Nov. 3-5 commentary.
October 13-15 – (Civil court) policeman to the world. Among the many foreign powers and principalities considered suitable targets for correction by way of lawsuits in American courtrooms: perpetrators of ethnic atrocities in Bosnia (“Jury returns $4.5 billion verdict against ex-Bosnian Serb leader Karadzic”, AP/CNN, Sept. 26); Chinese dictators who repressed pro-democracy demonstrators in Tienanmen Square (Edward Wong, “Chinese Leader Sued in New York Over Deaths Stemming From Tiananmen Crackdown”, New York Times, Sept. 1); Cuba, Iran, and other regimes that sponsor acts of terrorism in third countries (“Senate votes to allow compensation for terror victims, re-authorizes Violence Against Women Act”, CNN.com, Oct. 11; Seth Lipsky, “Justice for Alisa”, Opinion Journal (WSJ), Sept. 27); and OPEC, for fixing the international price of oil, which would become an offense suable in American courts under a bill okayed by a Senate panel (“Senate panel bill would allow lawsuit against OPEC”, Reuters/FindLaw, Sept. 21). Few of the American backers of these legal actions have been eager to point out the mirror-image corollary they would logically entail, namely suits against our own government and its elected officials in the courts of unfriendly foreign nations.
October 13-15 – Man sues over “Ladies’ Nights”. Christopher Langdon, a 48-year-old businessman, has filed federal lawsuits against nearly a dozen Orlando bars saying that their offering of “Ladies’ Night” discounts to women constitutes unlawful sex discrimination. He wants up to $100,000 and an end to the promotions. (Tyler Gray, “Man makes his move on ladies night”, Orlando Sentinel, Oct. 10).
October 13-15 – “Philly looking for a few good lawsuits”. More reaction to the plans of Philadelphia’s city solicitor Kenneth Trujillo, a class-action specialist, to establish a special legal strike force to hit up business defendants for money through offensive litigation (see Oct. 5). Quotes our editor (Patrick Riley, Fox News, Oct. 10).
October 13-15 – “Stop driving my car”. If you live in one of five states — New York, Rhode Island, Connecticut, Maine, and Iowa — “vicarious liability” laws make you automatically liable for the driving of anyone to whom you lend your car, even if the borrower has a clean record and there are no other advance signs of trouble. (In other states, lawyers who want to sue you as the owner must allege that you were at fault in some way.) The laws also apply to rent-a-car companies, putting them in an especially tough position since laws in some of the same states make it virtually impossible for them to turn away most prospective renters (James T. Riley, Citizens for a Sound Economy, Oct. 2).
October 12 – Wal-Mart wins female Santa case. “The Kentucky Commission on Human Rights has ruled that a Wal-Mart in Morganfield did not discriminate against Marta Brown when it forbid her from portraying Old St. Nick in December 1995.” (Chris Poynter, “Wal-Mart had right to stop female Santa”, Louisville Courier-Journal, Oct. 10).
October 12 – “All about Erin”. “It took a few months for the investigative journalists to overtake the Hollywood dream spinners, but by now it’s been pretty well established: What got left out of the blockbuster movie Erin Brockovich (now available at a video store near you) was in many ways juicier than what got put in.” Our editor’s latest column in Reason explains (October). Also: Michael Fumento of the Hudson Institute returns to the warpath (“Errin’ Brockovich”, American Outlook, Summer).
October 12 – Forfeiture-reform initiatives. Voters in three states, Massachusetts, Utah and Oregon, will consider initiatives that would curb the controversial law enforcement technique. “The ballot measures would, in effect, require law enforcement to prove that a crime had occurred before property could be forfeited. And drug money, instead of going back to police, would be sent to a public education fund in Utah and drug treatment funds in Oregon and Massachusetts.” (Karen Dillon, “Ballot initiatives seek to change forfeiture laws in three states”, Kansas City Star, Oct. 8; see May 25). National Post columnist David Frum asks some basic questions about the drug war in Canada and the U.S. (“Target ‘victims’ to solve the drug problem”, Sept. 9). And the name of Lebanon, Tennessee resident John Adams, 64, was added to the list of “collateral damage” drug war casualties when police officers mistook his house for one cited in a drug warrant, burst in and shot him dead. “It was a severe, costly mistake,” said the Lebanon police chief. “They were not the target of our investigation. We hate that it happened.” (Warren Duzak, “Innocent man dies in police blunder”, Nashville Tennesseean, Oct. 6).
October 12 – Political notes: friend to the famous. “Our Managing Partner John Eddie Williams [one of the Big Five trial lawyers who are splitting a $3.3 billion fee for representing Texas in the tobacco-Medicaid litigation -- see May 22, Sept. 1] and his wife Sheridan welcomed the first lady to their Houston home in August [1999]. Fifty guests enjoyed dinner with Hillary Rodham Clinton, who spent two days in Texas raising money for the Democratic Senate Campaign Committee and her own exploratory committee. The Williams’ home has been visited in the past by other well known workers on Capitol Hill including Vice President Al Gore, Sen. Edward Kennedy and Sen. Barbara Boxer. Ms. Clinton said she would be pleased to be an adopted senator for Texas Democrats.” (“Hillary Rodham Clinton Visits Williams’ Home”, from the Williams, Bailey law firm’s “Letter of the Law” newsletter, Oct. 1999 (displays correctly in IE, has trouble in Netscape — Netscape users might try “View Source”)) (top Texas soft money donors).
October 11 – Brownout, Shivers & Dim, attorneys at law. “[T]he nation’s energy producers, even those proposing to meet the surging demand for electricity with the cleanest types of power plants, find themselves stymied by environmental groups concerned about pollution and damage to natural resources.” Hydroelectric plants, bird-menacing windmill farms (“Condor Cuisinarts”) and natural-gas-fueled turbines (ugly-looking) have all run into opposition from enviros, and don’t even think of asking them to consider coal or nuclear. “‘Bottom line,’ says Sen. Slade Gorton, a Washington Republican who often sides with the power industry, ‘whatever suggestion you make, they find something wrong with it and bring more lawsuits.’” (Jim Carlton, “Electricity Crunch May Force The U.S. Into Tough Tradeoffs”, Wall Street Journal, Oct. 10) (subscriber-only site).
October 11 – Curse of the dummy’s kiss. In Hammond, Indiana, Brenda Nelson has filed a federal lawsuit against the American Red Cross, saying she “contracted herpes after giving mouth-to-mouth resuscitation to an improperly sanitized mannequin.” (“Woman sues Red Cross, alleging she contracted herpes from CPR dummy”, AP/FindLaw, Oct. 10). (Update Dec. 7: she drops case)
October 11 – New Hampshire chief justice acquitted. By a wide margin, the Granite State’s senate declined to convict the state’s highest judicial officer, David Brock, on any of several counts against him (see April 5). (“Brock acquitted overwhelmingly”, AP/Concord Monitor, Oct. 10).
October 11 – NLRB lurches left. The National Labor Relations Board, according to Republican and business critics, acts as if it wants to yank labor law as far left as it can before the Clinton term ends. Among its more dramatic recent decisions were one in July making it a labor law violation to question a nonunion worker in a disciplinary context without allowing him to have present a co-worker of his choosing, and one in August facilitating the unionization of temporary workers (Michael D. Goldhaber, “Is NLRB in a Pro-Labor Mood?”, National Law Journal, Oct. 4; Julie Kay, “The Buddy System”, Miami Daily Business Review, Sept. 8). Meanwhile, a General Accounting Office study has found that businesses undergoing labor strife are six and a half times as likely as other businesses to be made the targets of inspection by the Occupational Safety and Health Administration, bolstering employer suspicions that unions often use OSHA inspections as a weapon to make employers’ lives difficult (“Worker Protection: OSHA Inspections at Establishments Experiencing Labor Unrest”, GAO, August (PDF)).
October 11 – Welcome visitors. Among sites that link to Overlawyered.com are the Clatsop County (Ore.) Coastal Voice, the Zoh Hieronymus show, the CBEL.com alternative media guide, Flangy, iRights, SkeptiNews and What’s On It For Me? weblogs, Cindy Furnare’s Conservative Education Forum, Wisconsin Democratic Congressional candidate Mike Clawson (MikeforCongress.com), the Alexander County (N.C.) Republican Party, the Idaho, Illinois and Wisconsin Libertarian parties, and firearms sites The Gunnery, PaulRevere.org, RKBA Legal Docket, and SaferGunsNow.org.
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December 31, 1999-January 2, 2000 – New safety rule likely to increase death toll. “The National Transportation Safety Board — acting out the Clinton Administration’s desire to inject children into every political issue — declared 1999 the ‘Year of Child Passenger Safety’”. The Federal Aviation Administration accordingly reversed its longstanding policy and decided to prohibit children under the age of two from riding in their parents’ laps (a practice that saved parents the price of a ticket). Instead they’ll have to be placed in separate child restraint seats. But the cost of the additional tickets will induce many families to drive rather than fly, and an earlier FAA study found that “while mandatory child restraints might prevent five fatalities over the next 10 years, an estimated 82 children and adults would perish on the nation’s roads as families sought cheaper transportation alternatives.” (“The cost of toddler restraints” (editorial), Detroit News, Dec. 23; Jacob Sullum, “Little Restraint” (syndicated column), Reason Online, Dec. 22)
December 31, 1999-January 2, 2000 – NYC subtenants from hell. Susan Teeman’s gruesome ordeal in the New York City housing courts began when she gave her subtenants Stuart and Susan Levy one month’s notice that she needed to reclaim from them her $550-a-month, one-bedroom apartment on E. 76th St. That was back in 1985. It took eleven years of litigation to get them out, followed by a few more years’ worth of tag-on court proceedings, during which time they engaged in tactics that judges labeled “outrageous,” “abject nonsense,” “vexatious” and “reprehensible”. Don’t read this one unless you want to get upset (Dareh Gregorian and Erika Martinez, “Subtenants from Hell Gave Her a New Lease on Strife”, New York Post, Dec. 30)
December 31, 1999-January 2, 2000 – More assertions of link liability. In a suit filed in California Superior Court in Santa Clara County, lawyers for the DVD Copy Control Association are seeking a restraining order against some 72 programmers and websites, attempting to block dissemination of software that allows consumers to de-encrypt the digital movie format for purposes of copying. The suit targets not only websites which make the software available on their servers for download, but also popular discussion sites such as Slashdot and Usenet archive Deja which have allowed the posting of web addresses where the software may be found. “If linking to data is ever ruled a liable offense, then the Web is effectively worthless. I think the courts will recognize this,” said Rob Malda, one of the founders of Slashdot. On Wednesday Judge William J. Elfving denied the request for a temporary restraining order; a hearing on the request for a permanent order is scheduled for January 14. (Slashdot reporting and discussion; Chris Oakes, “Case Hinges on Reverse Hack”, Wired News, Dec. 28 and “DVD Round One Goes To Hackers”, Dec. 29; Mike Musgrove, “Suit Targets DVD-Copying Software”, Washington Post, Dec. 29, link now dead).
December 31, 1999-January 2, 2000 – “Love contracts” spreading to U.K. An unnamed British company is following the lead of some U.S. firms by drawing up “love contracts” for employees to sign if they become romantically involved with co-workers, to protect the company from later charges of sexual harassment (see Dec. 3 commentary). The BBC says there’s a question “whether such contracts will rile employees by killing off what many see as a harmless facet of office life”. (“Beware of the ‘love contract’”, BBC News, Dec. 30).
December 31, 1999-January 2, 2000 – Free expression, with truth in advertising thrown in? A federal judge ruled on Tuesday that Roseville, Minn. personal-injury attorney Todd Young has a constitutional right to fly the pirate flag, the Jolly Roger, outside his office to advertise his practice. Town officials had objected to the flag as a banner prohibited by its advertising-sign ordinance. Municipal attorney Joel Jamnik said the town was not planning an appeal but would instead attempt to reword its ordinance more carefully to remedy what the judge saw as impermissible vagueness. “These are essential rights,” said Young. (John Welsh, “Avast, ye swabs! Jolly Roger to fly freely in Roseville”, St. Paul Pioneer Press, Dec. 29)
December 29-30 – Class action toy story. Toys-R-Us, Mattel, Hasbro, and other toy companies agreed this year to settle antitrust charges brought by private class action lawyers and the attorneys general of 44 states, which accused them of having conspired to allow only a limited selection from the manufacturers’ toy lines to be sold in warehouse discount stores (for example, toys destined for those stores were often grouped in “combination packs” for customers willing to buy several at a time). The terms of the settlement included $3.25 million for the private lawyers, $1.8 million to be recycled into the budgets of the state AGs, $335,000 for the National Association of Attorneys General, and $12.8 million to be distributed among the states for children’s programs. In addition, the companies agreed to furnish toys from their inventory with a nominal value of tens of millions of dollars to be distributed to poor kids at Christmas, an agreement that gave the state attorneys general the perfect occasion for issuing self-congratulatory press releases (samples: Calif. (link now dead), N.Y., Texas, Tenn., Idaho, Iowa). “At Christmastime in 1998, 1999 and 2000,” notes Forbes‘s Dan Seligman, “the attorney general of just about every state gets to play Santa Claus, and has a chance to dwell publicly on the wonderfulness of attorneys general who bring toys to the kids.” Meanwhile, actual customers who bought toys during the period get $0.00 — it would be impractical to identify them, explains the settlement notice — and some even suspect those customers will foot the bill in the end as companies pass on the cost of such litigation in higher prices. (Dan Seligman, “Mutant Ninja Lawsuits”, Forbes, Oct. 18).
December 29-30 – Down repressed-memory lane I: costly fender-bender. A jury in Milford, Connecticut has ordered George B. Daniels to pay Andrea Karlsen more than a half million dollars over a low-speed auto collision that, Karlsen’s attorney argued, caused her post-traumatic stress disorder by bringing back memories of childhood abuse. Daniels, himself a sitting judge in New York who has been nominated to the federal bench by President Clinton, acknowledged that the mishap on the Boston Post Road in Orange, Ct. on Dec. 29, 1991 had been his fault. “But he testified that the accident was so minor that neither an ambulance nor a tow truck was needed afterward”. Plaintiff’s attorney Loren Costantini, however, sought more than $6 million in damages, arguing that the incident had “triggered post-traumatic stress disorder in Karlsen and memories of childhood abuses so severe that she became ill — both mentally and physically — and unable to work as a flight attendant.” Ms. Karlsen, a former model and Playboy bunny, became distraught after the verdict, “screaming and crying in disappointment that she was not awarded more money”, and yelling at defense attorney John Costa, “You’re a murderer. He tried to kill me.” (Heather O’Neill, “$523k awarded for fender bender”, Connecticut Post, Nov. 6; “Judge must pay accident victim $500,000″, AP/Norwalk, Ct. Hour, Nov. 7 (not online); Thomas Scheffey, “All in her head”, Connecticut Law Tribune, Nov. 16).
December 29-30 – Down repressed-memory lane II: distracted when she signed. A Canadian judge has granted a woman’s request to nullify a 1990 separation agreement with her ex-husband which she had signed under mental duress; the duress was occasioned, she said, by reemergent memories of childhood sexual abuse. Accepting the woman’s claim of incapacitation, Mr. Justice Donald Taliano found that she was “so overcome by mental illness that she was incapable of dealing with even the simplest of life’s demands, let alone the complexities of a separation agreement” and ordered her ex-husband to repay her $180,000 (Canadian), although his earning capacity is limited since he is retired and in the early stages of Alzheimer’s disease. (Donovan Vincent, “Man ordered by court to repay ex-wife $180,000″, Toronto Star, Sept. 7, not online)
December 29-30 – Just like the Bourbons. Ah, those editorial-writers at the New York Times, who for so long have learned nothing and forgotten nothing. “It has become fashionable to depict the proliferation of lawyers and lawsuits as something negative — both symptom and cause of a self-indulgent ‘culture of rights’”, rumbles the paper’s Dec. 24 editorial. “This fashion may pass… At the moment, though, Congress and the current Supreme Court seem determined to exploit this misconception in mischievous ways…” There in a nutshell you have the Times‘s editorial philosophy on the litigation issue: sure, Americans may be dragging each other through the misery of courtroom battles in “proliferating” ways, but it’s a “misconception” to view that as “something negative”. (“The Expanding Reach of Civil Rights”, Dec. 24, not online)
December 29-30 – Spreading to Australia? “Children exposed to their parents’ smoking may soon begin suing them”, predicts a prominent Australian lawyer. Note, however, the real financial target: “Children would be reluctant to bring such claims, he conceded, but not if the parents’ home and contents insurers were the opponents.” Indeed, it’s not hard to imagine some parents conniving at suits against themselves as a way of scooping cash for their offspring out of their homeowners’ policies. Attorney Eugene Arocca also predicts Australia may follow the lead of some U.S. courts which count smoking as a factor against parents in child custody battles. (Darwin Farrant, “Children may sue smoking parents”, The Age (Melbourne), Dec. 27 (via Junk Science)). (more on smoking and custody: SmartDivorce.com, TOTSE, ASH) (& see Jun. 3-4, 2002).
December 27-28 – “Year’s Weirdest News”. News of the Weird columnist Chuck Shepherd includes two litigation stories in his ten-oddest list this year. (“A Look At…The Year’s Weirdest News”, Washington Post, Dec. 26). Under the heading “Now That’s a Return on Investment”: “A jury in Birmingham, Ala., ruled in favor of Barbara Carlisle and her parents in their lawsuit against two companies that overcharged them $1,224 for two satellite TV dishes, awarding the threesome $581 million. After cries of ‘jackpot justice,’ the judge slashed the award to a mere $300 million.” (quoting Associated Press, May 11, Aug. 27) And: “A judge in Tampa denied tobacco-litigation lawyer Henry Valenzuela his $20 million share (out of $200 million in legal fees from the state’s 1997 settlement with cigarette companies) because he was late in paying his $2,500 share of a litigation expense”. (Larry Dougherty, “Lawyer won’t get tobacco money”, St. Petersburg Times, July 27). The $200 million refers to the fee obtained by the former law firm of Yerrid, Knopik & Valenzuela; collectively, law firms were awarded $3.4 billion for representing the state of Florida.
December 27-28 – Zero tolerance roundup. Scott Hogenson, writing at Conservative News, recalls the time a sixth-grade classmate in his small Minnesota town stabbed him in the hand with a pencil. “I probably deserved it. Perhaps I teased her one too many times”. Both parties have since grown into happy, productive adults; how lucky they are that it happened thirty years ago, at a time when the consequences for her did not include a serious police record, expulsion, etc. (Scott Hogenson, “Assault With a Deadly Pencil”, Conservative News, Dec. 10.) In Windsor, Ont., the Children’s Aid Society promptly launched an investigation after an 11-year-old girl turned in a story for her 6th grade class about a fictional family with a violent father. “This accusation was just thrown at me,” said the girl’s mother, Laura Scalia, who is single, describing the visit of an official who showed up at her door. “No effort was made to substantiate who I or my daughter are….It seems so easy for them to screw someone’s life up.” (Don Lajoie, “11-year-old’s school essay sparks children’s aid probe”, Windsor Star/National Post, Dec. 17).
The Christian Science Monitor says a zero tolerance policy may work best if it “allows principals some leeway to define what ‘zero’ is”, which might seem to retreat from the original concept, no? (Peter Grier and Gail Russell Chaddock, “Schools get tough as threats continue”, Nov. 5.) And we recently stumbled across a site entitled “Zero Tolerance = Zero Common Sense = Zero Justice“, which hasn’t been updated much lately but has scores of links and clips from the period 1996-98 documenting the trouble kids were getting into when found in the possession of lunchbox bread knives, water pistols, cough drops, and so on. (H. Churchyard site).
December 27-28 – “Bug lawyers” prosper. The Montgomery, Ala. law firm of Crosslin, Slaten & O’Connor has found a happy niche representing exterminating companies. (Its website: www.buglaw.com.) Several of its attorneys have themselves become certified pest control operators, and the firm has its own plane, which it dubs Bug One, to reach clients quickly. “Reflecting the general trend toward litigiousness, pest control operators are being sued more.” (Richenya A. Shepherd, “‘Bug Lawyers’ Invade the South”, National Law Journal, Dec. 13).
December 27-28 – You shoulda flunked me! Derek Boult, a former student at Murrietta Valley High School near Riverside, California, has sued the school and his football coach, saying he was improperly given passing grades and promotions as part of a policy of according favorable treatment to student athletes. The lawsuit, which also names the school’s former football coach, charges that overly lenient grading deprived Boult of the right to an education as provided by the state constitution. Eventually Boult proved unable to keep up the requisite minimum 1.5 grade point average, had to switch to a remedial school and was unable to graduate with his class. His attorney, Anthony D. Weber, of Palm Desert, charges that the school should have given him failing grades at an earlier point and taken him off the team. “He deserved to have bad grades,” he said. “He didn’t deserve to play football.” (Daniel G. Jennings, “Athlete Sues School for Letting Him Pass”, San Francisco Daily Journal, Oct. 25 — not online)
December 27-28 – “Few Settlement Dollars Used for Tobacco Control”. The year’s most durable shock-the-naive story: states are spending only a minor share of their enormous tobacco-settlement booty on causes dear to anti-smoking activists, such as those billboards and TV ads that hector smokers and vilify cigarette executives. “Of the 23 states that have decided how to spend their money, the majority appear to view the dollars primarily as a hefty new revenue source to be spent on whatever the state needs.” How many serious observers imagined it would be otherwise? In Rhode Island, putatively in the vanguard of children’s-health activism as the first state to sue lead paint makers, “teen smoking has increased from 21% in 1993 to 34% in 1999,” if the numbers from a state Health Department survey are to be believed. (Alissa Rubin, “Few Settlement Dollars Used for Tobacco Control”, Los Angeles Times, Dec. 25).
December 27-28 – 150,000 pages served on Overlawyered.com. Thanks for your support!
December 23-26 – Christmas lawyer humor. A selection culled from around the web:
“Merry Christmas from the Legal Department” (Yuletide wishes consisting entirely of disclaimers):
Though we, the “Greetor,” wish you well
In our Holiday Entreaty,
We limit all your claims, Dear Friend
(Hereinafter called the “Greetee”).
We wish you dreams of Sugar Plums
And dancing Christmas Lights,
But if these Fancies come to Naught
You have no Vested Rights… ” (more)
– LaughNet; attributed to Edward G. McManus.
“What hath a lawyer to do with Christmas? For Christmas is a joyous festival of loving and giving, in a dark, cold time of year; when we forget ourselves in all kinds of silliness as we try to forget our troubles, a time of wild abandon learnt from our pagan ancestors, and at bottom hath no logick to it. Whereas your lawyer is a crabb’d and serious fellow, who hath studied his eyes out reading the Law and aspires to be old and blind before his time, and knows no more of wild abandon than a fence-post; a sober black-coated mole of a man, who’s always teaching us to be ungenerous, and always writing mean-spirited documents that turn square corners and won’t give a poor fellow an inch; who wouldn’t give away one of his old scintillas without he gets a proper quid pro quo for’t. He wouldn’t know jollity if it bit him, and never, never can forget himself; and if a handsome wench should catch him ‘neath the mistletoe would cavil and demur and plead in bar ’till he’s made her sign a solemn oath that she won’t sue him for sexual harassment….” (more)
– “Joys of the season for divorce lawyers” by Virginia attorney Richard Crouch. Notwithstanding the puckish tone of the above, the piece goes on to offer serious and sensible advice on how to avoid letting holiday strains turn someone you love into a potential client of the divorce biz.
“The night before Christmas” (attorney’s version): “Whereas, on an occasion immediately preceding the Nativity festival, throughout a certain dwelling unit, quiet descended, in which could be heard no disturbance, not even the sound emitted by a diminutive rodent related to, and in form resembling, a rat;…” (link now dead) (HumourNet, Dec. 6, 1995, from NEA Journal, Dec. 1960)
“A lawyer’s Christmas” (same idea): “…Hosiery was meticulously suspended from the forward edge of the woodburning caloric apparatus… ” (more) (TnT Web Design site)
“Restructuring at the North Pole” “As you know, the eight maids-a-milking concept has been under heavy scrutiny by the Equal Employment Opportunity Commission. A male/female balance in the workforce is being sought….The four calling birds will be replaced by an automated voice mail system with a call waiting option. An analysis is underway to determine who the birds have been calling, how often and how long they talked….The two turtle doves’… romance during working hours could not be condoned. The positions are therefore eliminated….Regarding the lawsuit filed by the attorney’s association seeking expansion to include the legal profession (‘thirteen lawyers-a-suing’) action is pending.” (more) (author not known, Don Tolin webpage)December 23-26 – “Trial lawyers on trial”. Trevor Armbrister’s outstanding new Reader’s Digest article scrutinizing the plaintiff’s bar is now online at the Digest website. It’s got drop-your-jaw numbers on campaign contributions, hard-hitting coverage of the tobacco-fee scandal and the Florida and Maryland laws retroactively expanding tobacco liability, a concise summary of the Norplant and breast-implant outrages, new and pithy quotes from such keen observers as John Langbein, Stuart Taylor, Jr. and Marc Arkin, a few words from the editor of this site on the need for a loser-pays rule, and much, much more. Don’t even think of missing this one (Trevor Armbrister, “Trial lawyers on trial”, Reader’s Digest, Jan. 2000).
December 23-26 –“Fen-Phen Settlement Might Be Off”. Not for the first time, lawyers rely on the Mississippi courts to get unusually favorable results that they hope to roll out nationwide. This Associated Press article also quotes this site’s editor (who’s clearly on a roll today) (Paul Payne, AP/Excite, Dec. 22, link now dead)
December 23-26 –“In race to sue Microsoft, some trip”. In the legal siege of Redmond, “the race to sue — and stake a claim in this hoped-for gold rush — is producing some memorable legal bloopers,” reports David Segal of the Washington Post. “Lawyers behind one suit filed in a California state court, for instance, seemed momentarily confused about Microsoft’s core business. The complaint drafted by San Diego’s Krause & Kalfayan suggests at one point that the software maker is actually competing in the generic drug market. ‘These arrangements have enabled Microsoft Corporation to exclude other developers of Intel-compatible PC operating systems from obtaining the supply of such generic drugs’ active pharmaceutical ingredient (“API”),’ the complaint states on Page 2.” Partner James C. Krause sheepishly admits that the firm copied out the pleadings from an earlier class action and forgot to change the relevant verbiage. And it wasn’t the only law firm caught up that way: the suit filed by the law firm of Shelby & Cartee in Birmingham, Ala. describes’ Microsoft’s principal business as being “within the State of Texas” and asserts its right to represent customers injured by past purchases of Windows 2000 (which hasn’t gone on sale yet) and customers of “‘MacIntosh Computer Company’ (it meant Apple Computer Inc.)”
Waite, Schneider, Bayless & Chesley, the Cincinnati firm of famed master-of-disaster Stanley Chesley, charged that Microsoft’s actions “prevent[ed] development of a Windows 95 version of Netscape Navigator”, but one was introduced years ago; a lawyer with the firm explains that by “prevent” he meant “delay”. “It seems like all of these cases were written under the influence of an active pharmaceutical ingredient,” Microsoft spokesman Mark Murray told the Post. “The only people who are going to benefit from these cases are lawyers.” (David Segal, “In race to sue Microsoft, some trip”, Washington Post, Dec. 21 — full story)
December 23-26 – Jovanovic conviction overturned. A New York appeals court has overturned the kidnapping and sex abuse conviction of Columbia University graduate student Oliver Jovanovic. (“New York appeals court throws out conviction of ‘Cybersex’ defendant”, AP/CNN, Dec. 22). This site briefly commented at the end of July on the unfairness of Jovanovic’s trial, at which the judge, applying New York’s “rape shield” statute, forbade the defendant’s lawyers to introduce as evidence emails from the accuser which cast doubt on her story; for more details, see coverage in the New York Post, by Post columnist Steve Dunleavy, and by Brian and Elisabeth Carnell for the Women’s Freedom Network. Jovanovic has served 20 months of a 15-year sentence. Update: all remaining charges dropped against Jovanovic on Nov. 1, 2001 (see Jan. 9-10, 2002)
December 23-26 – New subpage on Overlawyered.com: legal ethics in crisis. Okay, we admit that if we pulled together everything on this site raising questions of legal ethics we’d have a subpage too big to use. So we’ve just gathered here links and commentaries on a range of topics that includes witness-coaching, ethical billing practices, civility, conflicts of interest, champerty and the role of contingent fees, “pay for play”, discipline of errant lawyers by the bar, client protection, judicial ethics, and other matters likely to come up in a course on professional responsibility.
December 22 – A question of t-shirt velocity. On December 7 we summarized the “flying t-shirt” suit filed by Stewart Gregory of Cincinnati against NBC’s “Tonight Show” and host Jay Leno, alleging he was “battered” and “forcefully struck” when the warm-up comic who preceded Leno on the show blasted a freebie t-shirt into the audience with an air gun. The next day the AP ran a short item on the case, which added a new detail or two (earlier reports had Gregory alleging that he was hit in the face, the new one says eye) and quoted the 56-year-old plaintiff: “It’s not frivolous when you get hit with a hard object traveling 800 feet per second.” (“‘Tonight’ Audience Member Sues”, AP/Washington Post, Dec. 8). Reader Bob Kanyok from St. Louis writes: “800 feet per second is 545 miles per hour, the speed of a jetliner. A ‘hard object’ the size of a t-shirt at 800 feet per second would have done a lot more than injure his eye, it would have torn his head off. Odd how no one else has picked up on this. Are all the reporters out there innumerate?”
December 22 – Popular continuing-legal-education course: “How to Hammer Allstate”. Seminars with that title have been playing to overflow crowds of trial lawyers around the country. The big insurance company has angered plaintiff’s attorneys by taking a hard line in defending claims filed against its auto policyholders, especially where vehicle damage is minimal and the claim is of soft-tissue injury. “There’s a sense of righteous indignation,” says Robert I. Reardon Jr., who organized one such seminar for the Connecticut Trial Lawyers Association which drew 320 lawyers. Allstate lawyer William Vainisi agrees that the company has been mounting a tough defense effort but says it is directed against “inflated demands and built-up medicals”. (Mark Ballard, “Hot CLE Class: Hammering Allstate”, National Law Journal, Dec. 10). The company has also infuriated attorneys in recent years by contacting persons who have been involved in crashes with its policyholders and urging them to consider settling the claim without a lawyer, a step that its opponents charge violates rules against the unauthorized practice of law. (Danielle Rodier, “Allstate Sheds UPL Claim, Still Faces Consumer Protection Suit”, Legal Intelligencer, April 14; ArkTLA; W.V. bar (link now dead); Phila. Trial Lawyers Assn.; NYSTLA; Conn.; Insure.com). More: Apr. 18, 2000.
December 22 – Pay us for this service. Dr. Xavier J. Caro was stunned recently when lawyers for his wife Cora, from whom he is seeking a divorce, demanded $550,000 from him as a “community loan” as a prepayment of costs for her forthcoming criminal defense. Cora Caro is in the Ventura County, Calif. jail on charges that she murdered three of the couple’s four sons, ages 5, 8 and 11, on Nov. 22 before turning the gun on herself (she survived). The demand letter from Agoura Hills attorney Rand E. Pinsky “lists $600,000 to $800,000 as the equity value of the couple’s Presilla Road home as well as investments and properties they own”, according to the L.A. Times. “The normal procedure in a criminal matter is that defense costs are prepaid,” Pinsky said. Dr. Caro has countersued his wife. “Doctor Files Wrongful Death Suit Against Wife”, L.A. Times, Dec. 16).
December 22 – Tobacco fee fight looms in Mass. Massachusetts Attorney General Thomas F. Reilly is vowing to fight “with every resource we have” to prevent the Boston law firm of Brown Rudnick Freed & Gesmer from collecting roughly $500 million, which the firm says is its share of a $2 billion contingent fee owed by the state over 25 years to five firms that represented it in the tobacco-Medicaid litigation. Reilly says the Brown firm has already been awarded $178 million for the representation: “At some point, enough is enough.” (Frank Phillips, “Reilly to fight claim of lawyers”, Boston Globe, Dec. 20).
December 21 – Accessible websites no snap. It’s hard to think of a better way to slow the growth of the Net than to menace web providers with exposure to liability for mounting or running ordinary, garden-variety websites or online services. Yet under prevailing interpretations of the Americans with Disabilities Act, both large and small e-tailers, online publishers, and applications providers may be open to damage suits on the grounds that their offerings are not accessible (as the term goes) to disabled users. Last month the National Federation of the Blind filed a lawsuit against America Online, charging that it has not moved with sufficient vigor to make its services fully available to sightless users (“Lawsuit: AOL Ignores Blind”, Reuters/Wired.com, Nov. 5, link now dead). AOL is a big business, of course, but there’s no reason to think that accessibility obligations under the ADA do not extend all the way down to many “mom-and-pop” ISPs, applications providers, online magazines and journals, e-stores, and so forth.
What exactly, does it mean for a site or service to be accessible? Disability advocates have declared many commonly encountered features in web design to be unacceptable barriers to one or another group of users. Among them are displays that depend on color to convey information, common methods of employing tables and graphics to assist in page layout, navigational designs that respond to mouse but not keyboard commands, and streaming audio when not accompanied by text translation. (Adam Clayton Powell III, “Is Your Site Accessible?”, Reason, July 1999; W3C, Web Accessibility Initiative). Web operators who ignore the advice of experts in this field must be seen as setting themselves up at some point for potential costly lawsuits. Yet the alternative of giving top priority to ADA compliance is hardly attractive either, since it might involve tearing down existing nonconforming webpages pending future redesign, refusing to employ developers who haven’t gone through special courses aimed at helping unlearn common page-construction habits, and abandoning decentralized publishing models in which many different employees, group members or customers are permitted to erect free-form content on a site. Almost incidentally, another effect would be to involve publishers of all shapes and sizes — First Amendment or no — in ongoing, intimate negotiations with government agencies and private pressure groups over questions of what they will and will not be allowed to publish.
But not to worry, say many disabled advocates — “Bobby” will save the day! Available at the Center for Applied Special Technology site, “Bobby” is a free program with sponsorship from leading businesses that will review any website and automatically diagnose where it needs to be fixed to provide handicap accessibility. Sounds easy enough, right? To be sure, the wave of favorable publicity 
about Bobby this summer revealed the embarrassing fact that many of the federal government’s own major websites, including the White House site itself, were not Bobby-compliant — this even though the U.S. Justice Department was rattling its sword to call private companies’ attention to the issue of high-tech accessibility. (To see the ways in which this site falls short on Bobby, click here; to see how badly the White House still flunks, here).
Given that pretty much everyone’s website seems to be out of compliance, ADA or no ADA, it was with much interest that we noticed the splashy, full-page ads recently announcing the launch of a major new website, evidently with substantial financial backing behind it, that would be specifically geared to the needs of disabled users. The site, called WeMedia, is affiliated with We magazine and aims to create an online community of disabled users for purposes of both service and advocacy. Finally, a chance to see how the experts themselves deal with the accessibility problem! You can therefore imagine how crestfallen we were to find the following notice blazoned on the site’s front page: “Currently, We Media’s site is not 100% ‘Bobby’ compliant. However, we are working very hard over the next few weeks to make sure that it becomes so.” [Update: a check on 2/7/00 finds that WeMedia now displays a Bobby approval button.]
December 21 – “Lawyers stealing less, clients say.” Now there’s a jolly, upbeat headline for you! “For the first time in its 16-year history”, the fund that reimburses victimized clients when Empire State attorneys commit theft or fraud is experiencing a sharp drop in payouts, according to the New York Law Journal. Officials say they believe the drop in client-cheating is genuine and credit, in part, two major reforms: banks are now directed to notify the client-protection fund when lawyers bounce checks from their escrow account, and insurance companies that pay to settle personal-injury claims are now directed to notify the claimants themselves about the payments rather than rely on their lawyers to tell them. (John Caher, “Lawyers stealing less, clients say”, New York Law Journal, Nov. 19).
December 21 – Oops! Didn’t mean nothing by that, ma’am. At D. McRae Elementary School in Fort Worth, Tex., counselor Seth Shaw got in trouble, according to his account, after he said “Hello, good looking” to a female newcomer he encountered in the office. She turned out to be an outside consultant there to conduct a training workshop on sexual harassment. Officials asked Shaw, a nine-year veteran, to resign over the incident, but school trustees settled for a 20-day unpaid suspension. (Martha Deller, “Fort Worth school counselor assessed 20-day unpaid suspension”, Fort Worth Star-Telegram, Dec. 17).
December 20 – Pack your toothbrush, son. Five years ago young law clerk Richard Poff decided to blow the whistle on questionable practices he’d seen firsthand at his employer, the influential Birmingham, Ala. plaintiff’s firm of Roden, Hayes & Carter. The firm, he said, had been paying hospital and police employees for leads in injury cases, and charging gambling and golf junkets, Royal Caribbean cruises and liquor store bills against client accounts. What happened next? All three name partners drew bar suspensions and pled to misdemeanors after arguing, in part, that the expense-charging had not affected clients’ eventual take from their cases.
So was Poff given a hero’s thanks by a local legal profession grateful for his help in cleaning itself up? Not exactly: he became virtually unemployable, was hit with a still-pending $1 million default judgment for libeling his old boss, got thrown in Birmingham jail for three days, and was ordered sent for psychiatric examination. “It seemed as though every judge in town was warning him to pack a toothbrush.” For a while, a judge even ordered the state’s press not to report on the proceedings. The state’s Supreme Court has yet to rule in the affair, but the lesson’s been made crystal clear for anyone who might be tempted to emulate Poff: don’t try to fight the legal fraternity. (Michael Goldhaber, “Crazy in Alabama”, National Law Journal, Dec. 15).
December 20 – Cute names for laws: enough, already. One example of the triumph of sentiment over dispassion in contemporary law is the naming of new criminal statutes after the victims they’re meant to avenge. Thus we got the “Megan’s Law” sex offender registries, followed more recently in New York by “Buster’s Law”, a felony animal abuse statute named after a murdered cat. We’re not alone in our dislike for this practice: Albany lawyer Terence Kindlon says you shouldn’t “give cute names to law…Can you see the words ‘Buster’s Law’ coming out of the mouth of Oliver Wendell Holmes?” Currently defending a Rensselaer Polytechnic student who faces a possible two-year jail sentence for breaking his dog’s leg during what he says was an attempt at discipline, Kindlon believes the law’s headline-friendly nomenclature is presenting him with an uphill battle. “It is sort of a celebrity law, it is a law with a built-in press agent.” (Joel Stashenko, “Attorney questions practice of naming laws after victims”, AP/Schenectady Gazette, Dec. 19)
December 20 – Those Bronx juries. “In civil cases, they are extraordinarily generous. ‘Let’s face it: the Bronx civil jury is the greatest tool of wealth redistribution since the Red Army,’ said attorney Ron Kuby, who won a $43 million civil judgment against subway gunman Bernie Goetz from six Bronxites.” (“Bronx juries: all things to all people”, AP/Newsday, Dec. 18).
December 20 – Stroller-parking: then and now. Last Tuesday a Manhattan jury rejected a Danish woman’s claim “that New York City police officers had falsely arrested her outside an East Village restaurant after she left her baby daughter in a stroller on the sidewalk to go inside for a drink”. It did, however, award Anette Sorensen $6,400 in compensatory damages for the cops’ failure to inform her that she had the right to summon help from the Danish consulate, plus $60,000 in punitive damages — an outcome that, perhaps oddly, both sides in the case appear to view as vindication for the police. In today’s New York Times, Sven Larson writes a letter from Hvidovre, Denmark, to dispute Sorensen’s claim that she was only following the practice in her home country: “While many [in Denmark] leave carriages outside shops for a couple of minutes, no one parks a baby outside a restaurant after 6 p.m. for as much as an hour.” The difference, he says, is that in Copenhagen “the police would have asked her kindly to bring the carriage inside and nothing more would have happened”. (Benjamin Weiser, “Damages but No False Arrest in Stroller Case”, New York Times, Dec. 15; letter, Dec. 20). By coincidence, we happened to be visiting James Lileks’s Institute of Official Cheer, an online archive of vintage ad images, and found this 1950 A&P grocery store ad from Life treating it as a selling point for the market that so many mothers left their baby prams out front.
December 20 – News flash: Bill Clinton endorses loser-pays! He now thinks parties charged with wrongdoing should be able to collect for the burdensome cost of their legal defense, if they’ve prevailed in the end. Whoops, scratch that…turns out Bill wants his legal fees covered re the independent counsel investigation, but everyone else who gets dragged into court and eventually prevails can just go fish. (Charles Babington, “Clinton May Ask U.S. to Pay Legal Fees”, Washington Post, Dec. 18)
December 20 – Welcome Robot Wisdom readers. We got a mention yesterday on Jorn Barger’s weblog, one of the earliest, most eclectic and most widely followed examples of the genre.
December 17-19 – Splitsville, N.Y. Cover story in last week’s New York on the city’s big-league divorce biz arrives at a consensus view of the broad legal trends (“equitable distribution” keeps getting messier and more expensive, “lawyers have to play constant catch-up as new, intangible assets are added to the marital-property pot”, judges have vast discretion so it’s hard to predict what they’ll do), celebrity tactics (on the oft-used gambit of threatening to send dirt to the tabloids, the “bullet of embarrassment only has cash value when it’s in the chamber”), the cushy, cash-vacuuming role of minor players (asset evaluators and guardians of children’s interests, appointed by the court and paid out of the marital estate, can “make a fortune”, agrees the city’s top judge) and social strain (guest at East Side dinner party bursts into tears on finding she’s been seated beside lawyer who’d represented her husband, but it wasn’t easy to re-seat him: “At a table for ten,” he explains, “I’d done five divorces”).
Bitter clients? No trouble finding those: “Being the best divorce lawyer in New York is like being the best devil in Hell,” says publisher Judith Regan, whose own split has cost more than $1 million over seven years. “It means you’re avaricious, conniving, and vicious….Divorce law is not about justice or fairness or protecting anyone’s rights or what’s best for a child; it is big business.” “The first thing they get is a net-worth statement,” says another unhappy customer, plastic surgeon Ronald Linder. “Then they make sure they get your total net worth.” Lawyers counter that unreasonable clients often spurn settlement and insist on fighting every issue, though attorney William Beslow notes that “there’s a built-in incentive to keep litigation going by either purposely misadvising clients or telling them what they want to hear, which solidifies the relationship but ensures conflict”.
Attorney Raoul Felder, as is his wont, dispenses extreme quote. Of charges that threats of publicity constitute extortion: “Isn’t every lawsuit a form of legal extortion? The law is constructed that way. Pay me or go to court.” According to New York, a “low point” in Felder’s career came when he “[p]ublicly declared Robin Givens wanted nothing from Mike Tyson one day after privately demanding an $8 million settlement.” “On one level, it’s sleazy,” he says. “On another, I’m not robbing supermarkets.” (Michael Gross, “Trouble in Splitsville”, New York, Dec. 13).
December 17-19 – Truth in recruitment? An Essex County, N.J. jury yesterday awarded more than $10 million to former New York Giant football player Philip McConkey on the grounds that he had been lied to when he was recruited for a management job at an insurance brokerage which was in talks to sell itself to a larger company. McConkey said he would never have taken a job at Alexander & Alexander in May 1996 had he realized the firm would be bought in December of that year by insurance company Aon Corp. The job offered base pay and benefits of $352,000 a year, with a chance of commissions of $3 million to $5 million a year. The following March he was fired from the job, he said. Frank G. Zarb, chairman of A&A at the time, testified that when he interviewed McConkey he’d already engaged in preliminary talks with Aon, but considered A&A’s management as the side that would come out on top if the two companies were combined.
The company also pointed to McConkey’s employment contract, which it said demonstrated that he was an “at-will” employee who could be dismissed for any reason. In vain: the jury voted the former wide receiver and Navy helicopter pilot $3 million for lost income, $2 million for emotional distress, and $5 million in punitive damages. Zarb himself, however, “was dismissed as a defendant before the trial started”; he is now chairman of the National Association of Securities Dealers, which runs the NASDAQ stock market. The case may represent a breakthrough for employment plaintiff’s attorneys who have for years been pushing “recruitment fraud” theories of recovery. (Jeffrey Gold, “Jury Finds NASD Chairman Lied”, AP/Excite, Dec. 16)
December 17-19 – Transit shutdown. A jury has awarded $50 million to Shareif Hall, who lost a foot in an escalator accident on the Philadelphia subway system, and $1 million to his mother, Daneen. Robert T. Wooten, a board member of the Southeastern Pennsylvania Transportation Authority (SEPTA), called the jury verdict a “very, very serious financial blow” to the finances of the transit agency, and predicted service cuts and fare increases if the award or any substantial fraction of it is upheld on appeal.
According to the boy’s lawyer, Thomas Kline, the jury was angered when memos emerged from the transit agency that stated that the escalators were in poor and deteriorating condition. State law limits personal-injury awards against public entities, but Kline successfully recharacterized the claim as in part one of deprivation of the boy’s civil rights; $25 million of the jury’s award was to compensate the boy for that purpose, and therefore is not subject to the limit. (“Boy awarded $50 million in Pennsylvania escalator accident”, AP/CNN, Dec. 15, link now dead; Claudia N. Ginanni, “Documents Uncovered Mid-Trial Fuel $51 Million Injury Verdict v. SEPTA”, PaLawNet, Dec. 15 (subscription))
Update: After the verdict, Judge Frederica Massiah-Jackson expressed anger over SEPTA’s mishandling of physical evidence and failure to provide relevant documents requested by the plaintiffs. The agency settled the case for $7.4 million and pledged to improve both its escalators and its litigation behavior in the future. (Claudia Ginanni, “Judge Fines SEPTA $1 Million Authority; Held in Contempt for Withholding Evidence”, The Legal Intelligencer, Dec. 23; “SEPTA Settles Escalator Suit for $7.4 Million”, Jan. 6) (see Jan. 29-30 commentary).
December 17-19 – “New Mexico county is ordered to use non-English-speaking jurors”. A judge ruled this fall “that potential jurors in Dona Ana County cannot be eliminated simply because they do not speak English”. Now officials are wrestling with questions like: should each juror get his own translator? How will the presence of translators in the jury room influence deliberations? What if a juror facing a language barrier asks to be excused from sitting on a case? Court-paid translators can expect to get a workout, given that all the testimony, documents and exhibits, lawyers’ arguments and judges’ instructions in cases will commonly be in English. And Spanish is not the only language that must be accommodated; one prospective juror spoke a particular Indian dialect the translation of which would have required the services of a specialty translator at $180 an hour, had the juror not been excused for health reasons. (AP/FindLaw, Dec. 13)
December 17-19 – Most unsettling thing we’ve heard about Canada in a while. We knew political correctness held great sway in the public life of our northern neighbor, but didn’t realize the following: “Canada’s most powerful tool against politically incorrect speech is its hate speech code, which prohibits any statement that is ‘likely to expose a person or group of persons to hatred or contempt’ because of ‘race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age.’ Prosecutors are not required to show proof of malicious intent or actual harm to win convictions in hate speech cases, and courts in some jurisdictions have ruled that it does not matter whether the statements are truthful.” (Steven Pearlstein, “In Canada, Free Speech Has Its Restrictions: Government Limits Discourse That Some May Find Offensive”, Washington Post, Dec. 12)
December 16 – Got milk? Get sued. Physicians Committee for Responsible Medicine, a veggie-oriented group of litigious bent that claims 5,000 physician supporters, last figured in these columns on Sept. 25 when it urged the federal government to file a tobacco-style lawsuit against “Big Meat”. Now comes word that PCRM expects Massachusetts state senator Dianne Wilkerson to join it in a lawsuit it has organized charging that the federal government is being racist by distributing milk to schoolchildren. The reasoning? Black children are more likely than white children to display lactose intolerance, a condition that prevents them from digesting one of the major nutrients in milk. Wilkerson was also concerned to learn that a large cereal manufacturer was sending free cereal to the Boston schools, thus encouraging more milk consumption. “I want us to become health-food conscious, lactose-free public schools,” Wilkerson told the Boston Globe. “There are other options, like calcium-fortified juice.” (“Got milk? Minority schoolchildren do, and maybe they shouldn’t”, AP/Boston Globe, Dec. 13, link now dead (via Lucianne.com))
December 16 – GM verdict roundup. Marion Blakey, who used to run the National Highway Traffic Safety Administration, finds it remarkable that verdicts like this summer’s Anderson v. General Motors (see our July 10, August 27 commentaries) allow lawyers to shift legal responsibility for accidents away from drunk drivers to automakers with their deeper pockets, at the eventual expense of car buyers. (“Drunken drivers make mockery of justice”, Detroit News, Dec. 9). The Los Angeles jury’s initial award of $4.9 billion, since reduced by the judge to a putatively more reasonable $1.2 billion, “surpasses the combined gross domestic product of Afghanistan and Albania”, writes op-ed contributor Jim Lafferty (“Two astronomical lawsuit awards may be start of dangerous trend”, San Diego Union-Tribune, Nov. 14). The Federalist Society has mounted a series of panel discussions around the country on the lessons of the Anderson case, and has posted transcripts of the proceedings on its website. And on Monday the Christian Science Monitor ran an op-ed point-counterpoint about the case between R. David Pittle, technical director of the remorselessly pro-litigation Consumers Union, and classic-car auctioneer Mitch Silver. (R. David Pittle, “Fix car design before lawsuit“, and Mitch Silver, “Create wise policy, not crash-proof cars“, Dec. 13). Update Aug. 3, 2003: case settled on undisclosed terms.
December 16 – Gotta regulate ‘em all. Quebec Language Minister Louise Beaudoin has threatened legal action against the makers of Pokémon trading cards for allowing them to be sold in the province without French-language packaging or instruction. Ms. Beaudoin said a French version of the popular cards is sold in France itself, Belgium and Switzerland, but is not available in la belle province despite local laws mandating use of the language: “I don’t understand and I can’t accept it … we hope this ultimatum will result in our law being respected.” The cards’ manufacturer, Wizards of the Coast of Renton, Wash., says rights to sell the Japanese-origin cards are divvied up geographically, and that it has North America; it completed an English-language translation first, and now has finished work on a French version which it expects to have on sale in Quebec by February. (Sean Gordon, “Quebec minister demands French version of Pokemon”, National Post (reprinted from Montreal Gazette), Dec. 10) (earlier Pokémon coverage: Oct. 13, Oct. 1-3).
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November 15 – Class-action coupon-clippers. Hard-hitting page-one Washington Post dissection of class-action abuse, specifically the “coupon settlements” by which lawyers claim large but notional face-value benefits for the represented class, which can serve as a predicate for high fees even if few consumers ever take advantage of the benefits. “The record in one case, against ITT Financial Corp., showed that consumers redeemed only two of 96,754 coupons issued, a redemption rate of 0.002 percent.” Settlement-confidentiality rules often make it impossible to learn how many coupons were redeemed. Groups like Public Citizen and Trial Lawyers for Public Justice, normally closely aligned with plaintiffs’-side interests, are crusading against the coupon abuses, fearing they’ll erode public support for the class action device and “sour the public” on the whole system.
The piece includes a profile of Chicago lawyer Daniel Edelman, who’s won millions in fees in about thirty consumer lawsuits, and is variously called by consumerist critics “the Darth Vader of class action settlements” and “the poster child for how to rip off consumers under the guise of helping them”: “I can think of no plague worse than to have a court impose the likes of Daniel Edelman…on absent and unsuspecting members of a class,” said one judge in a lawsuit against Citibank. Edelman was among the plaintiff’s lawyers in the famed BancBoston Mortgage case, whose outcome was described by federal judge Milton Shadur (who was not involved in it) as “appalling” and “astonishing”: “The principal real-money beneficiaries of the settlement,” Judge Shadur wrote, “turned out to be the class counsel themselves.” The consumer who originally objected to that settlement, Dexter Kamilewicz of Maine, “chose not to comment for this article, noting that Edelman’s firm had countersued him for $25 million. That case is settled, but he said he feared landing in court yet again.” (For more on lawsuits filed by class action lawyers against their critics, see Nov. 4 commentary). (Joe Stephens, “Coupons Create Cash for Lawyers”, Washington Post, Nov. 14, link now dead)
November 15 – Link your way to liability? Daniel Curzon-Brown, a professor of English, has sued TeacherReview.com, a student-run “course critique” site that provides a forum for anonymous praise and criticism of faculty at City College of San Francisco (CCSF) and San Francisco State University. “Free speech is great, but this is not about free speech,” said Brown’s lawyer, Geoffrey Kors, saying his client had been falsely labeled racist and mentally ill, among other damaging charges. (“Other teachers were called ‘womanizers,’ ‘reportedly homicidal’ and ‘drugged out.’”) In one of the suit’s more ambitious angles, the lawyers have joined CCSF as a defendant on the grounds that it “allow[ed] one of its student clubs to provide a link to the review site on a college-hosted Web page” which “helped to create the appearance of official backing for the site”. (“Teacher sues over ‘racist’ Web review”, Reuters/ZDNet, Oct. 21 — full story). Update Oct. 10, 2000: Curzon-Brown agrees to drop suit.
November 15 – Are they kidding, or not-kidding? We’ve read over both these opinion pieces carefully, and here are our tentative conclusions. We think Nancy Giuriati, writing in the Chicago Tribune‘s “Voice of the People”, probably is kidding when she suggests overeating be addressed as a public health problem through lawsuits against food companies along the lines of the anti-smoking crusade. (“Treat Eaters Like Smokers”, Nov. 9). On the other hand, we think Ted Allen, writing in the Legal Times of Washington, probably isn’t kidding when he suggests fans file class-action suits against hard-luck sports teams like the Boston Red Sox and New Orleans Saints. (“Sue da Bums?”, Nov. 1). It could be, however, that we’ve got things upside down — that Mr. Allen is kidding, while Ms. Giuriati isn’t. If you think you can help us out, or wish to call our attention to other who-knows-whether-they’re-joking proposals for the further extension of litigation (entries from law reviews especially welcome!), send your emails to AreTheyKidding -at -overlawyered – dot – com. Update Apr. 11, 2002: Ms. Giuriati writes in to say she wasn’t kidding.
November 15 – Gimme an “S”, “U”, “E”. Latest lawsuit over not making the high school cheerleading squad filed by Merissa D. Brindisi and her father, Richard, who claim it was arbitrary and unfair for Solon, Ohio, school officials to have used teacher evaluations as one factor in deciding who got on the squad. Another suit by an unsuccessful cheerleader contender was filed last month in nearby Lorain County, but was dismissed. (Mark Gillispie, “Solon ex-cheerleader, father file suit”, Cleveland Plain Dealer, Nov. 10 — full story.)
November 13-14 – Fins circle in water. Hoping to piggyback on Judge Jackson’s Microsoft findings of fact and attracted by the treble damages provided by antitrust law, “veterans from the cigarette wars are plotting to sue the company in a wave of private litigation. If the onslaught unfolds as expected, teams of lawyers will turn Microsoft into the next Philip Morris, tangling the company in courts across the country.” David Segal, “New Legal Guns Train on Microsoft”, Washington Post, Nov. 12 — link now dead). Same day, same paper, same byline: another profile of emerging trial lawyer strategy of mounting assault on their targets’ stock price in order to force them to the negotiating table (see “Deal with us or we’ll tank your stock“, Oct. 21). The announcement of a major trial lawyer offensive against HMOs destroyed $12 billion of value in a single day as the market reacted. “Most of the companies have yet to recover.” (David Segal, “Lawyers pool resources, leverage settlements”, Washington Post, Nov. 12, link now dead).
On Friday the stock of big New Orleans-based engineering and construction company, McDermott International Inc., important in the offshore oil business, fell by 35.5 percent following a 26.7 percent drop the previous day to hit a 10-year low. The company disclosed lower earnings and “said in its earnings statement that the settlement of asbestos claims was using up a growing amount of the cash flow of its Babcock & Wilcox (B&W) subsidiary”, one of the nation’s best known makers of power plants. “This unquantifiable asbestos liability puts a whole new spin on things. [McDermott] becomes an asbestos liability valuation play rather than an earnings recovery play,” said analyst Arvind Sanger of brokerage firm Donaldson Lufkin & Jenrette, who added that he thought the market had overreacted to the uncertainty. (“Asbestos Claim Worries Hurt McDermott”, FindLaw/Reuters, Nov. 12, link now dead)
November 13-14 – Update: ADA youth soccer case. Bang! Ouch! As reported here a week ago, parents insisted that 9-year-old Ryan Taylor, who suffers from cerebral palsy, be allowed onto soccer team despite administrators’ fears of injuries from his metal walker. Now they’ve filed suit under federal Americans with Disabilities Act (see “After Casey Martin, the deluge“, Nov. 5-7). (“Parents Sue Over Son’s Soccer Ban”, AP/FindLaw, Nov. 12, link now dead).
November 13-14 – Risks of harm. “One woman manager whom I spoke to, an architect who has worked in construction for a number of years, put it this way: ‘When a woman comes to me with a complaint, I want first of all to make sure that no harm comes to the woman. But I want to make sure that no harm comes to the man, too. Because if a charge of sexual harassment goes into his folder, he may never get another promotion in his entire life.’ [emphasis in original] — from the forthcoming book What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment, by Joan Kennedy Taylor (see yesterday’s entry).
November 12 – Turning the tables. Automaker DaimlerChrysler has sued plaintiff’s attorneys and a individual named client who it says cost it millions of dollars and harmed its reputation by naming it in what is says was a meritless suit. In June, the locally based law firm of Greitzer & Locks and Maryland attorney William Askinazi filed a class-action suit in Philadelphia against DaimlerChrysler, Ford, General Motors and GM’s subsidiary Saturn alleging that the companies’ seat design was defective and unsafe. Similar suits were filed in other states, and lawyers were quoted in one story as claiming the aggregate value of their claims could amount to $5 billion. But DaimlerChrysler and Ford say they were dropped from the Philadelphia case after the named plaintiff, Brian Lipscomb, was shown never to have owned cars manufactured by either automaker.
The German-U.S. company has been on something of a mission recently to fight what it sees as abusive litigation. It recently secured dismissal of an Illinois class action over allegedly excessive engine noise and in 1996 unsuccessfully sought fees after securing dismissal of a Seattle class action that turned out to have been filed without client permission. It succeeded last year in winning an $850,000 judgment against two lawyers in St. Louis who it alleged had taken confidential documents while working for one of its outside law firms and then used that information to file class-action suits against the automaker. “Class-action lawsuits should be used to resolve legitimate claims and not serve as a rigged lottery for trial lawyers,” said Lew Goldfarb, DaimlerChrysler vice president and associate general counsel, in a statement this week. “For too long, trial lawyers have been exploiting class actions, turning these lawsuits into a form of legalized blackmail. They launch frivolous cases because they believe that just the threat of massive class actions filed in many states can coerce a company into settlement. It’s time they started paying for some of the costs of abusing our legal system.” “DaimlerChrysler sues lawyers over lawsuit”, Reuters/Findlaw, Nov. 10, link now dead; “Automakers sued for allegedly defective seats”, Detroit News, Jun. 26)
November 12 – Suppression of conversation vs. improvement of conversation. “Another difficulty in dealing with sexual harassment as a legal problem is that almost all people accused of harassment, from the one whose joke is misunderstood to the hard-core opportunistic harasser…don’t believe they are hurting anyone. [emphasis in original] And we know from our experiences with alcohol and drug prohibition that people whose behavior is regulated and who don’t believe they are hurting anyone else overwhelmingly evade and resent the regulations….If you tell people that the way in which they relate to each other naturally is against the law, their immediate reaction is to think the law intrusive. If, by contrast, you tell people that they may have misunderstood each other but that they can learn to communicate more clearly, you are offering them a new skill without blaming half of them in advance.” — from What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment, by Joan Kennedy Taylor, a book to be published this month by New York University Press and the Cato Institute.
November 11 – We didn’t mean those preferences! At Boalt Hall, the law school of U.C. Berkeley, it’s de rigueur to consider race, gender and various other official preferences as entirely constitutional as a way of balancing out past collective hardship. However, there’s one form of official preference you’d better not speak well of lest you risk ostracism: veterans’ preference. “If you, despite your well-intentioned, fine-toothed combing of the Constitution, just can’t find a legal rule that says that veterans’ preferences are impermissible gender discrimination, then that is sexism. If you think that these veterans’ preferences are acceptable as a matter of policy — for the liberals who are willing to concede that there is a difference between constitutional permissibility and policy advisability — then that is extreme sexism.” — contributor Heather McCormick in The Diversity Hoax: Law Students Report from Berkeley, edited by David Wienir and Marc Berley (Foundation for Academic Standards and Tradition, 1999).
November 11 – Microsoft roundup. Peter Huber of the Manhattan Institute, author of Law and Disorder in Cyberspace, argues in yesterday’s Wall Street Journal that a breakup of the company would in fact be less destructive of value than seemingly more modest remedies that might require the company to prenegotiate its future business relationships or even its software revisions with competitors’ lawyers: “Complex remedial decrees invariably kick off endless rounds of follow-up bickering. Costs mount quickly. Private lawsuits follow. And antitrust law awards triple damages.” (“Breaking Up Isn’t hard to Do”, Wall Street Journal, Nov. 10 — requires online subscription). “Two branches of the federal government, which is a case study in institutional sclerosis, are lecturing Microsoft on the virtues and modalities of innovation,” notes George Will (“Risks of Restraining”, Washington Post, Nov. 9, link now dead). “The dynamism of technology long ago rendered the entire case moot,” argues a Detroit News editorial. “…It is doubtful, for example, that America Online would have paid $10 billion for Netscape if Microsoft’s Bill Gates had indeed rendered the Navigator [browser] worthless.” (“Microsoft: Punishing Success”, Nov. 9). Declan McCullagh at Wired News finds it surprising that the judge was so dismissive of the prospects of Linux, the open-source competitor to Windows (“Judge Jackson: Linux Won’t Last”, Nov. 8).
November 11 – Accommodating theft. In New Jersey, the Office of Attorney Ethics is seeking the disbarment of Tenafly lawyer Charles Meaden, who was arrested in 1996 for trying to buy $5,600 worth of golf clubs with a stolen credit card number. Mr. Meaden’s attorney, Linda Wong, argues that her client suffered from bipolar illness and was in a manic state at the time of the theft due to a change in his medication. “The panel has to send a signal to the public that disabilities can be accommodated.” The ethics body counters that Mr. Meaden’s use of the stolen number showed considerable planning, and added that he’d applied for guns four times in the two years before the arrest, each time denying that he’d been treated for psychiatric conditions. His lawyer’s response? Mr. Meaden, she said, was relying on his doctor’s assurance that depression was “not a psychiatric condition”, besides which “it was understandable that Meaden did not disclose his psychiatric history because the mentally ill face discrimination.” (Wendy Davis, “The Case of the Stolen Credit Card: Mental Illness or Well-Planned Heist?”, New Jersey Law Journal, Oct. 21 — full story)
November 10 – $625,000 an hour asked for time on stopped elevator. Nicholas White, 34, a production manager at Business Week, has filed suit asking $25 million from the owners of Rockefeller Center over an incident last month in which he got stuck on an elevator late one Friday and remained there, pushing buttons and banging on the door, for 40 hours before any building employees noticed. He had only a pack of Life Savers and three cigarettes to see him through the ordeal. “When he had to go to the bathroom, he would pry open the doors a little,” a friend of his told the New York Post. White’s lawyer, Kenneth P. Nolan, said last week that his client was “still in a state of shock” and “has not gone back to work”. (“Floor, please”, Fox News/Reuters, Oct. 21 (link now dead); “Man Trapped in Elevator Wants $25M”, AP/Washington Post, Nov. 3, link now dead; “Man, trapped in New York elevator 40 hours, sues”, Reuters/San Jose Mercury News, Nov. 4, (link now dead; Philip Delves Broughton, “Editor sues for $25-million after 40-hour elevator terror”, National Post (Canada) (originally Daily Telegraph, London), Nov. 6, link now dead)
November 10 – Annals of zero tolerance: more nail clippers cases. The Marshall Elementary School in Granite City, Ill. has suspended second-grader Derek Moss for three days after a custodian found him with a nail clipper. Earlier this fall in Cahokia, Ill., 7-year-old second-grader Lamont Agnew drew a 10-day suspension for possession of the same contraband. (Robert Kelly, “Another nail clippers incident reported”, St. Louis Post-Dispatch, Nov. 2 (link now dead)) Earlier this year Pensacola, Fla. administrators recommended the expulsion of 15-year-old sophomore Tawana Dawson for possession of a clipper with a two-inch attached blade; she’d lent it to a classmate to trim her nails. (“School calls nail clipper a weapon”, AP/APB News, June 7). In recent California cases, a 12-year-old Corona boy was expelled over a nail clipper, a decision later reversed; a Mission Viejo 10-year-old was suspended over a three-inch cap-gun toy on her key chain, and a Buena Park 5-year-old was transferred to another school after he brought into school a disposable shaver he’d found at a bus stop. (Oblivion.net)
November 10 – Welcome Progressive Review and Cal-NRA visitors. Haunted-house story is here; gun lawsuits vs. national security story, here.
November 10 – “The Dutch Boy isn’t Joe Camel.” The companies recently sued by Rhode Island “voluntarily stopped marketing lead-based paint for interior use in the 1950s — a generation before the federal government decided to ban interior lead paint in 1978,” writes Judy Pendell of the Manhattan Institute’s Center for Legal Policy (with which our editor is affiliated). You’d think withdrawing your product before you were obliged to would count as socially responsible, but no good deed escapes punishment. Nor, it seems, does any incorporated bystander with deep pockets: “Many of the defendants acquired their companies long after they had stopped making lead paint…If you can sue an industry that essentially shut itself down almost a half century ago, who’s next?” (“Trial lawyers’ next target: the paint industry”, Wall Street Journal, Oct. 18 — now online at the Manhattan Institute site, which boasts a growing collection of online reports on legal issues (link now dead)).
November 10 – Correction: the difference one letter makes. On Sept. 2 we ran an item about the role of charitable and social-service groups in efforts to take down the gun industry, and included the YMCA on the list of such groups. That was off base: it’s the YWCA that’s a participant in the Coalition to Stop Gun Violence, not its male counterpart. The mistake is one the anti-gun coalition itself unleashed on the world when it erroneously listed the YMCA on its list of supporting organizations. The Capital Research Center took the claim at face value in its report on anti-gun philanthropy, whence it made its way to our summary. Patrick Reilly of the Capital Research Center tells us he’s spoken with the coalition, which acknowledges its mistake and says it’s replaced the “M” version with the correct “W”. In the mean time, the poor YMCA has gotten calls from outraged supporters of the Second Amendment. Send those outraged calls to the YWCA instead.
November 9 – Gun jihad menaces national security. Colt Manufacturing is an important current, as well as historic, defense resource to this country: “We are one of the two suppliers of the M16 rifle and the sole supplier of the M4 carbine to the United States military, as well as many of our allies.” Yet the courtroom assault masterminded by American trial lawyers and carried out by their friends at city hall is quickly running the enterprise into the ground: legal defense costs are “astronomical”, financing and insurance are drying up, and managers have scant time to do anything but respond to legal demands.
“In connection with these lawsuits, Colt has been served with extraordinarily expansive and burdensome discovery requests seeking virtually every document in Colt’s possession related to the design, manufacture and marketing of firearms — military and otherwise. In our defense, waves of lawyers have descended on Colt and other legitimate gun manufacturers, scouring every corner and aspect of our business in an effort to respond to these unreasonable requests.”
If the municipal firearms litigation “forces us out of business, it also will leave the military without an experienced base to turn to during a time of crisis. In the opinion of the Department of Defense, it would take two to five years and significant government investment to return any of today’s weapon systems to their current level of operational reliability should we lose this present capability.”
“We are uneasy and troubled by the fact that we and other companies in the future may be driven out of business by a wave of lawsuits, even if the courts eventually find out that the plaintiff’s cases have no merit.” — Lt. Gen. William M. Keys U.S.M.C. (ret.), chief executive officer of the New Colt’s Holding Company, in testimony before the Senate Judiciary Committee Nov. 2. (full testimony) (overall hearings page).
November 9 – Hold your e-tongue. Though employees may still fondly imagine their screen banter to be somehow entitled to privacy, “e-mails not only are subject to discovery, but also can kill you in a courtroom,” explain two lawyers with Miami’s Becker & Poliakoff. The problem for companies that get sued is that “people who are normally careful of what they say in writing seem to feel that e-mail doesn’t count, and…say things in e-mails they would never say in person or by telephone.” All of which leads up to the following rather startling advice: “Businesses should have an e-mail policy. Consider such rules as ‘No e-mail may contain derogatory information about individuals or the competition.’” (Mark Grossman and Luis Konski, “Digital Discovery: Decoding Your Adversary”, Legal Times (Wash., D.C.), Oct. 20 — full column).
November 9 – “Banks’ good deeds won’t go unpunished”. Good Steve Chapman column on ill-advised laws adopted in San Francisco and Santa Monica, and under consideration for U.S. military bases, that forbid banks from charging a fee for non-customers’ ATM withdrawals; currently banks put automatic machines “in all sorts of relatively low-traffic, out-of-the-way places”, a trend likely to halt abruptly if the business becomes a legislated money-loser. (Chicago Tribune, Nov. 7 — full column).
November 8 – Microsoft ruling: guest editorials. Venture capitalist Jay Freidrichs of Cypress Growth Fund: “My gut is, this is not positive for the industry. The less government involvement, the better.” Peter Ausnit of San Francisco brokerage Volpe Brown Whelan & Co. is alarmed that the ruling could “open up Microsoft to thousands of lawsuits from every belly-up software firm in the world….Are they going to be set upon like the cigarette industry?” George Zachary, a partner at Mohr Davidow Ventures: “a scary reminder that if you make it to the top, someone will try to pull you down.” Venture capitalist Tim Draper: “Silicon Valley should be furious with the way our government is treating successful companies…Any would-be entrepreneur is getting a message from Washington that says: ‘Become successful but not too successful, or we’ll ruin your life.’” (David Streitfeld, “Glee, Gloom in Silicon Valley”, Washington Post, Nov. 6 (link now dead); Duncan Martell, “Silicon Valley Cheers Microsoft Ruling”, Yahoo/Reuters, Nov. 6 (link now dead)). Plus: Virginia Postrel, “What Really Scares Microsoft”, New York Times, Nov. 8; George Priest, “Judge Jackson’s Findings of Fact: A Feeble Case”, Wall Street Journal, Nov. 8 (requires online subscription).
November 8 – Ohio tobacco-settlement booty. A private firm with close links to prominent Columbus lobbyists has been angling for the contract to handle Ohio’s anti-tobacco ad campaign, financed from its share of the state’s settlement loot. It just so happens the next CEO of this firm is State Rep. E.J. Thomas, a key player in the divvying up of the tobacco spoils as chair of the House Finance-Appropriations Committee. “Does Mr. Thomas really believe nobody would have questioned his neutrality while voting to award tobacco contracts when he has been holding hands with one of the parties playing to win the jackpot?” editorializes the Toledo Blade. (“The smoking cigarette”, Oct. 24 — link now dead).
November 8 – Who loves trust-and-estates lawyers? Well, auction houses, for one, since these attorneys control so much asset-disposition business. And so a lot of buttering-up goes on: “At one of the largest annual gatherings of trust and estate lawyers in the U.S., held each year in Miami, Christie’s brings down hundreds of thousands of dollars in jewels so that the lawyers, or their spouses, can try them on. ‘I am not that easily swayed,’ says Carol Harrington, an estate lawyer from the Chicago law firm McDermott Will & Emery, who deals regularly with the auction houses. ‘But what woman doesn’t like having $40,000 in jewels around her neck?’” (Daniel Costello, “An Art Collection to Die For”, Wall Street Journal, Sept. 24).
November 8 – “Police storm raucous party to find members of anti-noise squad”. Moral of this report from southwest England: if you’re hoping to keep your job on the town noise-abatement committee, don’t hire three bands and throw a bash late into the night at city hall; after annoyed neighbors called in to report loud whoops and shrieks, police descended on the venue only to find the mayor and local dignitaries in attendance. (AP/CNN, Oct. 26, link now dead).
November 5-7 – “Scared out of business”. Boston Globe reports on decline of a Halloween tradition, the community haunted house, under pressure from building and safety codes (No emergency sprinklers! Combustible material! And children present, no less!) “In the future, the only option will be to drive to a big, slick venue and pay your $23.50 for a corporatized event that has nothing to do with community,” said Douglas Smith, an illustrator who used to help design the haunted house at Hyde Community Center in Newton Highlands, which has lately been discontinued along with two other haunted houses in Newton. “Only they have the resources. Only they can build to these codes.” “I’m very disappointed,” said 10-year-old David Olesky, who had been looking foward to the outing. “They can make rules, but they can’t drain all the fun out of everything. It’s unfair.” Now “the skull’s mouth, the body parts, and dozens of eyeballs remain packed in boxes” at the community center. “Within a few years, I imagine all amateur haunted houses will get shut down,” Smith told the Globe‘s Marcella Bombardieri. “Society is getting so concerned about liability that there’s no way to have fun.” (Oct. 29 — link now dead).
November 5-7 – Public by 2-1 margin disapproves of tobacco suits. New ABC News poll of 1,010 adults finds that by a 60-to-34 percent margin public doesn’t believe tobacco companies should have to pay damages for smoking-related illnesses. But not one of the fifty state attorneys general held back from filing such a suit — an indication these AGs are taking their policy cues from something other than their states’ electorates. As for trial lawyers, they know the luck of the draw will eventually assure them a certain number or juries and judges around the country willing to go along with the 34 percent view. That’s enough to cash in no matter what the majority may think. (ABC News.com, “Cigarette Makers Absolved: Six in 10 Reject Liability for Tobacco Companies”, Nov. 3).
November 5-7 – AOL sued for failure to accommodate blind users. Yes, AOL is big, but the legal theories being advanced under the Americans with Disabilities Act have the potential to redefine all sorts of websites, including publishing and opinion sites, as “public accommodations”. If you’re looking for a way to slow down the growth of the Web, try menacing page designers with liability unless they set aside their to-do list of other site improvements in favor of trooping off to seminars on how to fix nonaccommodative coding choices. (“Blind Group Sues AOL Over Internet Access”, Excite/Reuters, Nov. 5; case settled August 2000)..
November 5-7 – More details on Toshiba. Last Saturday’s L.A. Times, not in our hands before, adds a number of salient details to the story covered in this space November 3. Number of laptops involved: 5.5 million. The company agreed to settle “even though no consumer ever complained of losing data as a result of the glitch”. Company officials “said they had been unable to re-create the problem in the lab, except when trying to save something to a disk while simultaneously doing one or two other intensive tasks, such as playing a game or watching a video.” However, Toshiba was tipped toward settling when it heard that NEC Corp. considered the glitch a genuine one and learned moreover that there’d been an earlier advisory from NEC, thus opening up scenarios in which lawyers could argue that warnings had been callously ignored etc. The coupons will be much more valuable than the usual style of settlement coupons because owners “will be able to sell their coupons or use multiple coupons toward a single purchase.” But the public goodwill fund that will bulk out the rest of the $1 billion settlement if claims fall short may consist of donations of older hardware to charitable groups, a notoriously soft accounting category (Joseph Menn, “Toshiba OKs Settlement of $1 Billion Over Laptops”, Oct. 30, link now dead). Jodi Kantor, Slate “Today’s Papers”, also Oct. 30, reports: “The company’s credit rating was immediately downgraded, and its share price slipped 9%.” (Toshiba site)
November 5-7 – After Casey Martin, the deluge. Latest handicap-accommodation demand from the playing field: family of 9-year-old Ryan Taylor, who’s afflicted with cerebral palsy, asks for his right to play soccer in a metal walker. David Dalton, volunteer president of the Lawton [Okla.] Optimist Soccer Association league, says the walker is hazardous and a violation of the game rules. In addition, the league could get sued if another player smashed into it while trying to contest Taylor’s control of the ball, if any were so unsporting as to try that. However, “in 1996 a federal court in California ruled that a youth baseball league violated the Americans With Disabilities Act by excluding an 11-year-old with cerebral palsy who used crutches” and Houston disability-rights lawyer Wendy Wilkinson is rattling the saber, saying the ruling “definitely applies to this situation”. (Danny M. Boyd, “Disabled boy is barred from playing soccer with a walker”, AP/Fox News, Nov. 3, link now dead).
November 5-7 – “Land of the free…or the lawyers?” Nice editorial in Investors Business Daily on the deepening litigation crisis: “No industry or company is safe.” It even quotes our editor (Oct. 21, link now dead).
November 5-7 – Toffee maker sued for tooth irritation. Spreading across the Atlantic?, cont’d: Former Miss Scotland Eileen Catterson, a runway fashion model for ten years, has sued the makers of Irn-Bru toffee bars saying the sticky confection has left her with discolored teeth and sore gums. She is demanding £5,000 damages in Paisley Sheriff Court, which itself sounds like a fashion establishment. (Gillian Harris, “Model sues sweets firm over teeth”, The Times (London), Oct. 28).
November 4 – Criticizing lawyers proves hazardous. In July Publishers Clearing House, the magazines-by-mail company whose sweepstakes is promoted by Ed McMahon, agreed to settle a class action charging it with deceptive practices. The settlement provided for a maximum of $10 million in outlays by the company, to be divided roughly as follows: $1.5 million to send a notice of settlement to an estimated 48 million households in the class; $5.5 million or less to be refunded to dissatisfied magazine buyers that could muster the required paperwork, the exact sum to depend on how many did so; and $3 million in legal fees for the lawyers who filed the suit, sister-and-brother attorneys Judy Cates and Steven Katz of Swansea, Ill. and a third colleague.
The announcement did not sit well with St. Louis Post-Dispatch columnist Bill McClellan, who wrote August 27 that Cates and Katz “represent the modern version of the James Gang….They recently gained renown by galloping into the little town of Publishers Clearing House. They robbed the bank there, and rode away.” He added that “the way these class-action lawsuits usually work” is that “members of the class get very little. Usually nothing. Our lawyers get a lot. Always….It will be considered a cost of doing business, and like all such costs, it will be passed on to the consumers, who are, of course, the very same people who are allegedly benefiting from the lawsuit.”
And with that, almost before the popular columnist could tell what hit him, he was staring down the barrel of a writ. On August 30 Cates and Katz filed suit against McClellan in federal court in East St. Louis, Ill., seeking $1 million in damages for the libel of having been compared to bank robbers.
Unrepentant, McClellan followed up with a second and equally jocular effort, explaining that the lawyers had misunderstood: although upstanding Illinois might object to bank robbery, “Here in Missouri, we like the James Gang,” as folk heroes from the state’s Great Plains heritage. “So it is with the gallant class-action lawsuit lawyers. Close your eyes and see them the way I see them. They ride into town, file their lawsuits, reach their settlements and then, their saddlebags stuffed with money, they gallop into the night, but as they go, they throw coins to the cheering populace.
“And coins is the operative word, too,” McClellan added, pointing out that on average each of the represented households stood to gain something on the order of 12 cents, compared with $3 million for their lawyers. It is not recorded that Cates and Katz have dropped their suit or been in any other way mollified by this response. Bill McClellan, “Only Ones Who Gain From Class-Action Suits Are The Lawyers”, St. Louis Post-Dispatch, Aug. 27; “Missourians love James Gang and today’s robbers, too”, Sept. 1). Update: Nov. 30 (he criticizes them again, though case is still pending); Feb. 29, 2000 (they agree to drop suit).
November 4 – Bring a long book. It takes New York, on average, seven years to fully adjudicate discrimination cases filed with its Division of Human Rights. One woman in Orleans County spent 14 years in the system before obtaining a $20,000 award, while a complainant against Columbia University was still waiting for a hearing after 11 years. A federal judge has sided with the National Organization for Women in a suit demanding that the agency hire more employees on top of its current 190 to handle the case load; NOW wants that number tripled. (Yancey Roy, “State faulted on rights cases”, Rochester Democrat and Chronicle, Nov. 2 — link now dead).
November 3 – Toshiba flops over. Last Friday’s announcement by Toshiba Corp. that it had agreed to pay a class-action settlement nominally valued at $2 billion over alleged defects in the floppy-drive operation of its laptop computers appears to represent a genuine breakthrough for plaintiff’s lawyers who’ve for years been gearing up a push to extract cash from high-tech companies over crashes, glitches and other subpar aspects of the computing experience. Many still unanswered questions about the new developments:
* Has the glitch led to any problems at all in real-world use? Conspicuously absent from the coverage of recent days has been any word from victims of the glitch saying that on such and such a date they lost important data because of it. Yet if the plaintiffs’ side had such witnesses available, it’s hard to see why they wouldn’t have pushed them forward to public notice by now. Apparently the lawyers, through their expert, have found a way to configure Toshiba laptops so as to replicate data loss under carefully controlled demonstration conditions, but news coverage has not yet probed into the question of how artificial these conditions are or how likely they are to occur to real users who aren’t trying on purpose to get their computers to lose data. The plaintiffs’ theory, which seems rather convenient, is that the data loss is so subtle that people don’t know it’s happening or can’t trace it to the glitch afterward.
* Given the above, who if anyone has suffered damages? Next week Toshiba “will post on its Web site a free and downloadable software patch that eliminates the problem.” And a large percentage of laptop owners never or almost never use their floppy drive, preferring modem transmission of files. Yet all will be entitled to prizes.
* How valuable are those prizes? There’s some talk of refunds for recent purchasers, but presumably most would rather download a software patch than return a computer they like. (Toshibas are popular.) Others will get coupons mostly valued at $100-$225 “for the purchase of Toshiba computer products sold through Toshiba’s U.S. subsidiary”. Usually the face value of a coupon settlement is a highly unreliable guide to what the settlement is actually costing; otherwise a Sunday paper with $30 in grocery coupons in it would sell for $30. Yet Toshiba is taking a $1 billion accounting charge, and pledges to donate unclaimed amounts from the settlement fund to “a newly created charitable organization”. And it’s also agreed to pay a very non-imaginary $147.5 million to a not-so-charitable organization, the lawyers that brought the suit.
* Can the lawyers take their act industry-wide? “On Sunday night, four new suits were filed in U.S. District Court in Beaumont, Texas [where the Toshiba case had been filed only six months ago], against PC makers Hewlett-Packard Co. Compaq, NEC Packard-Bell and e-Machines Inc.” Compaq says there are specific diferences between its machines and Toshiba’s which render the case against it meritless. Pattie Adams, a spokeswoman for eMachines, said her company still hadn’t seen the suit but expressed the view that it. “doesn’t really apply to us…It appears to be about laptops, which we do not have, and the technology is from before we were even established.” As if that would save them in our current legal system! Another news report suggests the lawyers are busily trying to rope in governments as plaintiffs, à la guns-tobacco-lead paint: “federal investigators have attended laboratory demonstrations sponsored by plaintiffs’ lawyers intended to show the occurrence of the alleged defect, these people said. State and local agencies can opt to assert damage claims on their own.”
The law firm involved, Reaud, Morgan & Quinn, of Beaumont, Texas, may not be a familiar name to tech-beat reporters, but it’s quite familiar to those who follow high-stakes litigation. After growing rich on asbestos claims it moved into the tobacco-Medicaid suit on behalf of Texas (Forbes, July 7, 1997; Sept. 21, 1998 and sidebar). It also made the Houston Chronicle‘s list of top ten political donors in Texas (five of whom, all consistent Democratic donors, happen to have represented the state in tobacco litigation for $3.3 billion in fees). Beaumont, which also is home to another of the Big Five Texas tobacco firms, is sometimes considered the most plaintiff-dominated town in the United States. (DISCUSS)
Sources: Toshiba press release, Oct. 29; Terho Uimonen, “Toshiba Settles Floppy Disk Lawsuit”, IDG /PC World News, Oct. 29; Andy Pasztor and Peter Landers, “Toshiba to pay $2B settlement on laptops”, Wall Street Journal Interactive/ZDNet, Nov. 1; Michael Fitzgerald and Michael R. Zimmerman, “PC makers hit with ‘copycat’ suits”, PC Week/ZDNet News, Nov. 1; “More PC lawsuits filed”, AP/CNNfn, Nov. 2 (link now dead); “Laptop Illogic”, Wall Street Journal, Nov. 3.
November 3 – Flag-burning protest requires environmental permits. You’re so angry you want to burn a flag in public? You’ll have to fill out these two environmental permissions first, please, one for the smoke aspect and one for the fire aspect. We don’t think this is a parody. (Vin Suprynowicz, “Levying a Free-Speech Fee”, Las Vegas Review-Journal, Oct. 28 — full column)
November 3 – Welcome RiskVue and Latex Allergy Links readers. Coverage of EEOC protection of illegal aliens is here, and of possible Rhode Island-led suits against glove makers, here.
November 2 – School shootings: descent of the blame counselors. It may seem incredible to Americans, but after the 1996 massacre at Dunblane, Scotland, in which 16 kindergarteners and their teacher were killed, “not a single lawsuit was filed”. How different in Littleton, Colo., West Paducah, Ky., and Jonesboro, Ark., where busy litigators — call them blame counselors? — seem to outnumber grief counselors, aiming suits in all directions: at school districts, entertainment companies, gunmakers, and most controversially the parents of the killers. Many victim families still decline to sue, taking the older view of litigation as an obstacle to forgiveness and community reconciliation; others throw themselves vigorously into their suits as a cause, believing they’re helping expose deep-seated evils of today’s America or at least the negligence of certain bad parents; and then there’s the middle ground represented by one Columbine High School mother who says she’s forgiven the shooters’ parents, but, frankly, now needs the money. (Lisa Belkin, “Parents Suing Parents”, New York Times Magazine, Oct. 31) (see also July 22, 1999 and April 13, 2000 commentaries).
November 2 – “Responsibility, RIP”. Columnist Mona Charen comments on two auto safety suits, one of them the child-left-in-hot-van case discussed in this space Oct. 20. In the other case, $2 million went to the survivors of a Texas man who’d left a truck running on a hill and walked behind it. “You don’t need an owner’s manual to tell you that it’s dangerous to walk behind a running, driverless vehicle on a steep hill. This used to be known as common sense. But so long as juries return such verdicts, the concept of individual responsibility gets hammered ever lower…the trial lawyers’ wallets grow corpulent, and the populace is increasingly infantilized.” (Jewish World Review, Oct. 25 — full column)
November 2 – How the tobacco settlement works. “‘There’ll be adjustments each year based on inflation,’ said Brett DeLange, head of the Idaho attorney general’s consumer protection unit. Plus, ‘If cigarette volume goes down, our payments will go down. If volume goes up, our payments will go up even more.’” Why, it’s like Christmas come early! Of course DeLange denies that this arrangement will in any way dampen the state’s enthusiasm for reducing tobacco use. (Betsy Z. Russell, “Tobacco money gets closer to Idaho”, Spokane Spokesman-Review, Oct. 24 — full story) (see also July 29 commentary)
November 2 – Lockyer vs. keys. “October 12, 1999 (Sacramento) — Attorney General Bill Lockyer today sued 13 key manufacturers and distributors for allegedly failing to warn that their products expose consumers to the toxic chemical lead in violation of Proposition 65.” — thus a press release from the office of the California AG. From time immemorial, it seems, house keys have been made of brass, and brass contains lead. Whatever you do, don’t tell him about the knocker on your front door, or those robe hooks in the bathroom. (press release link now dead)
November 2 – Perkiness a prerequisite? Lawsuit charges local outlet of Just for Feet shoe chain with bias against black workers. Among evidence alleged: store “policy dictating employees should look like Doris Day or ‘the boy next door.’ Company representatives deny the existence of such a policy.” (“Shoe store accused of discrimination”, AP, Las Vegas Sun, Oct. 26 — full story)
November 2 – 80,000 pages served on Overlawyered.com. With help from our Canadian visitors, we hit a new daily traffic record last Thursday. New weekly and monthly records, too. Thanks for your support!
November 1 – New topical page on Overlawyered.com : family law resources. Divorce, custody, visitation, child support, adoptions gone wrong, and other occasions for overlawyering of the worst kind.
November 1 – Not-so-Kool omen for NAACP suit. Apparently unconcerned about retaining the good will of Second Amendment advocates, the National Association for the Advancement of Colored People is suing gunmakers for having catered to strong demand for their product in inner cities (see Aug. 19 commentary). Its potential case, however, is widely regarded as weak — so desperately weak that back on July 19 the National Law Journal reported the civil-rights group as angling to get the suit heard by Brooklyn’s very liberal senior-status federal judge Jack Weinstein because the underlying theories “might not succeed in any other courtroom in America”.
Now there’s another omen that the much-publicized lawsuit is unlikely to prevail: in Philadelphia, federal judge John Padova has dismissed a proposed class action which charged cigarette makers with selling in unusually high volume to black customers and targeting them with menthol brands and billboard ads. To bring a civil rights claim, the judge wrote, “[p]laintiffs would have to contend that the tobacco products defendants offer for sale to African Americans were defective in a way that the products they offer for sale to whites were not.” If a racial angle can’t be grafted onto the legal jihad against cigarette makers, is the same tactic likely to be any more successful when directed at gun makers?
Sources: Sabrina Rubin, “Holy Smokes!”, Philadelphia Magazine, February 1999; Shannon P. Duffy, “Court Urged to Dismiss Menthol Cigarette Class Action”, The Legal Intelligencer, April 8; Joseph A. Slobodzian, “A novel civil-rights lawsuit vs. tobacco industry is dismissed”, Philadelphia Inquirer, Sept. 24, link now dead; Shannon P. Duffy, “Judge Dismisses Smoking Suit”, The Legal Intelligencer, Sept. 24.
November 1 – Mounties vs. your dish. About a million Canadians are said to defy their country’s ban on the use of satellite dishes to receive international programming, though the Mounties’ website warns that violators “can face fines of up to $5,000 and/or up to 12 months in prison”. The ban applies not only to “pirate” watching (where viewers buy stolen code that lets them unscramble signals without compensating the satellite provider) but even to straightforward paid subscriptions to foreign satellite services. The only lawful option is to go through one of a duopoly of Ottawa-approved suppliers (Bell Express Vu and Star Choice). Good news on another front, though: Internet radio is letting listeners bypass the absurd and oppressive laws requiring Canadian content in that medium. Bring Internet TV soon, please! (Ian Harvey, “RCMP threatens a clean-up of illegal dishes”, Toronto Sun, Oct. 13 — full column)
November 1 – “Shoot the middle-aged”. That’s the title of a Detroit News editorial responding to the Michigan House’s unanimous approval of a bill allowing for doubling of criminal penalties when offenses are committed against the young or elderly. (Oct. 23 — full editorial).
November 1 – World according to Ron Motley. Even before tobacco fees, the Charleston-based plaintiff’s lawyer was “worth tens, maybe hundreds, of millions of dollars. But he’s about to get much richer. A billion or two or three richer….Sketching plans that would alarm many corporate executives, the 53-year-old lawyer will reinvest most of his newfound money to finance lawsuits against the makers of lead paint, operators of nursing homes, health maintenance organizations and prescription drug makers.” He calls the businesses he sues “crooks”. “Mr. Motley’s windfall [from tobacco] is likely to exceed $3 billion…’If I don’t bring the entire lead paint industry to its knees within three years, I will give them my [120-foot] boat,’ he says”.
In its flattering profile of the 53-year-old South Carolinian, yesterday’s Dallas Morning News quotes a pair of law profs who hint that the public should really be glad Motley is now personally reaping billions for representing government clients, because next time he sues some huge business it’ll be more of an even match. By that logic, we’d be better off if we let every lawyer who argues a case against, say, Microsoft, amass as much wealth as Bill Gates. Maybe the trial lawyers will figure out a way to make that happen too before long (Mark Curriden, “Tobacco fees give plaintiffs’ lawyers new muscle”, Oct. 31 — full story)
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