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• September 2000 archives, part 2 (0)
• September 18 roundup (2)
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In an unprecedented move, the Task Force has named over 100 co-conspirators in the case. So, the potential definitely exists for substantial testimony about out-of-court statements going to the jury without the defense ever having an opportunity to cross-examine the persons who made the alleged statements. Moreover, fingering unindicted co-conspirators is an equally effective technique for the Task Force to prevent testimony that is favorable to the defense because persons named as unindicted co-conspirators are likely to the assert their Fifth Amendment privilege against self-incrimination and thus, not be defense witnesses during the trial. Thus, the Task Force’s liberal use of the co-conspirator tag has a double-whammy effect — not only does it allow the Task Force to use out-of-court statements against defendants without having the declarant of the statements subjected to cross-examination, it has also effectively prevented previous Enron-related defendants from obtaining crucial exculpatory testimony from alleged co-conspirators who have elected to take the Fifth and declined to testify.

Kirkendall argues that despite these tactics, the task force botched the broadband prosecution, and already seem to be making mistakes in the Lay/Skilling trial. He has a lot of fun, in particular, with the task force’s indictment against Lay and Skilling, which was apparently so poorly written that the prosecution itself has petitioned the court not to let the indictment be referred to in cross examination. (Tom Kirkendall, Houston’s Clear Thinkers, Jan 27)

Almost makes you nostalgic for Marcia Clark. But probably not Janet Reno. Over at CoyoteBlog, I wonder whether NJ prosecutors are more interested in upholding the law or getting front page pub in the NHL betting case.

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• Today’s police chase lawsuit roundup III (0)
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* In a case arising under San Francisco’s pioneering ordinance banning discrimination on the basis of height and weight, “Jennifer Portnick, a 240-pound San Francisco aerobics instructor rejected by Jazzercise because of her size, has reached an agreement under which the firm will drop its requirement that instructors look fit.” (see Feb. 27) (Elizabeth Fernandez, “Exercising her right to work”, San Francisco Chronicle, May 7).

* Blackford High School in Hartford City, Ind., has relented and is going to allow Rob Mahon to attend its prom after all despite the positive results on his blood test for nicotine (he is 18 and it is legal for him to smoke) (”School Reverses Prom Ban For 18-Year-Old Smoker”, IndyChannel, Apr. 26)(see Apr. 26)(via WhatTheHeck.com)

* In the acrimonious litigation between the members of classical music’s Audubon Quartet (see Nov. 13, 2001 and links from there), “Estranged violinist David Ehrlich, who won a $611,000 judgment against his former quartet colleagues over his sudden dismissal two years ago, has filed motions in court that could force Clyde ‘Tom’ Shaw and his wife, Doris Lederer, to sell their Blacksburg home in order to pay their court-imposed debt.” (Kevin Miller, “Spurned violinist seeks house”, Roanoke Times, May 9; documents, defendant Shaw’s site)(& see letter to editor, Jun. 14, recommending website critical of defendants)(Update Dec. 4, 2005). (DURABLE LINK)

May 9 – The rewards of growing mold together. “Toxic mold” claims are among the fastest-growing source of lawsuits and claims against property insurance companies. Now various government agencies in Texas are investigating suspected unsavory practices in the thriving business that has sprung up of assisting homeowners to file such claims. After first moving the homeowner into a rental, some dishonest adjusters proceed to “put wet towels in the house, spray down the draperies, hose down furniture — anything to increase moisture. They close the windows and crank up the heat. It’s called ‘cooking’ the house, and it’s a recipe for sprouting mold and bilking insurance companies out of thousands of dollars.” The scams sometimes are unbeknownst to homeowners and at other times go on with their collusion. Alan Bligh, president of the Better Business Bureau in the Coastal Bend area of Texas, calls the practice “fairly widespread”, saying there are both legitimate and dishonest firms operating locally within the “mold remediation” business, which has mushroomed in short order from two or three companies to about 100. Insurance companies that delay paying mold claims or subject them to too much scrutiny can face punitive damages from angry jurors. (Laura Elder, “‘Cooked’ houses burn insurers”, Corpus Christi Caller-Times, May 5)(via CALA Houston). See also Mike Vallante, “Calm the mold hysteria”, Houston Chronicle, Apr. 26. (DURABLE LINK)

May 9 – House bill would cut off municipal gun suits. A proposed “Protection of Lawful Commerce in Arms Act” would defend interstate commerce in guns from lawsuits brought on behalf of hostile local jurisdictions. As of mid-April the bill had 215 co-sponsors in the House. “When 219 members co-sponsor it the bill would likely be voted on by the full House. Four more co-sponsors would help bring the battle between the gun banners and the firearms industry to a swift and honorable conclusion.” (Tanya Metaksa, “Stop the War Against the Gun Industry”, FrontPage, Apr. 16; H. Sterling Burnett, National Center for Policy Analysis, “Congress should stop lawsuits against legal firearms, Apr. 18; “House GOP seeks to end handgun suits”, AP/Washington Times, Apr. 19). (DURABLE LINK)

May 9 – “‘Little’ done for firm, Rendell says”. It’s commonplace for politicians on leaving office to step into remunerative partnerships at big law firms, even when (especially when?) those law firms do a lot of business with the public entities associated with the politicians. What has raised eyebrows in the case of former Philadelphia mayor and Pennsylvania gubernatorial candidate Ed Rendell is his superior candor: he freely admits that he has done “very little work” to justify the $250,000 he draws annually from the prominent Philadelphia law firm of Ballard, Spahr, Andrews & Ingersoll. (Tom Infield and Thomas Fitzgerald, Philadelphia Inquirer, Apr. 23). (DURABLE LINK)

May 8 – Zoo asserts animals’ “medical privacy”. The Washington Post had asked to see the medical records of a beloved giraffe after its death, but no go: “The Smithsonian Institution’s National Zoo has taken the position that viewing animal medical records would violate the animal’s right to privacy and be an intrusion into the zookeeper-animal relationship.” On the other hand, the zoo does allow curious visitors to view the matings and other intimate habits of reclusive creatures through its PandaCam, ElephantCam and Naked Mole-Rat Cam. (James V. Grimaldi, “National Zoo Cites Privacy Concerns in Its Refusal to Release Animal’s Medical Records”, Washington Post, May 6). (DURABLE LINK)

May 8 – Mayor Bloomberg goes to bat for liability reform. “Having made little headway so far in his efforts to get the State Legislature to pass the bills he is seeking to limit damages against the city, the mayor has now turned his sights on the City Council. Mr. Bloomberg said that he would submit two bills to the Council tomorrow to make the city less vulnerable to slip-and-fall lawsuits. ‘All too often, people file tort claims for the same reason they file lottery tickets,’ he complained at a news conference in City Hall.” (Michael Cooper, “Mayor Fights to Reduce Damage Awards”, New York Times, May 7 (reg)). See Steven Malanga, “Tort City”, City Journal, Spring 2001; “Tort Trauma”, Summer 2001. (DURABLE LINK)

May 8 – Blumenthal sues own client. Connecticut Attorney General Richard Blumenthal, whose never-ceasing quest for turf and publicity frequently earns him mentions in this space, has filed suit against a body called the Connecticut Siting Council in an attempt to stall construction of an underwater cable line that would supply electric power to New York’s Long Island. There’s just one problem: the Council is a unit of the state government and thus is among his own clients, being in fact “represented in court by members of Blumenthal’s office.” (Thomas Scheffey, “Can Connecticut AG Sue His ‘Client’?”, Connecticut Law Tribune, April 30). (DURABLE LINK)

May 7 – “Crime and Punitives”. The Supreme Court’s jurisprudence in civil punitive damage cases like BMW v. Gore — where it limited a state court’s multi-million-dollar punitive award over a new car’s undisclosed paint touch-up — turns out to have various organic connections with the course of its jurisprudence on arguably excessive criminal sentences, like those handed out under California’s “three-strikes” law. Why? “Because, when it comes to punishment, the Court should try to be consistent — even across the line dividing criminal law from civil law and the line dividing the Eighth Amendment from the due process clause. This isn’t just my opinion; it’s the Court’s.” (Evan Schultz, Legal Times, Apr. 19). (DURABLE LINK)

May 7 – “Big government ruined my long weekend”. A couple goes off for a brief getaway to the mountains, then realizes that the wife has left behind her prescription medication. Think they can convince a standby doctor to authorize four pills so that she can make it through the weekend? Forget it: “Between the War on Drugs and the liability climate, doctors are scared to death to make this kind of accommodation.” (Jim Henley, Unqualified Offerings blog, Apr. 6). (DURABLE LINK)

May 7 – “Reno owes the public answers”. If former attorney general Janet Reno is going to present herself to the voters of Florida as a candidate for governor, the least she can do is answer questions — raised anew by a PBS “Frontline” documentary last month — about whether her prosecution as Dade County district attorney of the sensational Country Walk ritual-child-abuse case resulted in the imprisonment of innocent defendants (editorial, St. Petersburg Times, Apr. 28; PBS/WGBH, “The Child Terror“; Dorothy Rabinowitz, “The Pursuit of Justice in Dade County”, Wall Street Journal, Oct. 28, 1996, reprinted at McGill University site; Rael Jean Isaac, “Janet Reno and her Record as a So-Called Champion of Children”, Independent Women’s Forum, Apr. 27, 2000). (DURABLE LINK)

May 6 – Fearing ethnic profiling charges, bureau ignored flight school warning. “An F.B.I. agent in Phoenix told counterterrorism officials at the bureau’s headquarters last July that he had detected an alarming pattern of Arab men with possible ties to terrorism taking aviation-related training, and urged a nationwide review of the trend, according to F.B.I. officials. The agent’s recommendation was not acted upon before Sept. 11, however … F.B.I. officials said there was reluctance at the time to mount such a major review because of a concern that the bureau would be criticized for ethnic profiling of foreigners.” (James Risen, “F.B.I. Told of Worry Over Flight Lessons Before Sept. 11″, New York Times, May 4; Kausfiles, “Hit Parade”, scroll to May 5). (DURABLE LINK)

May 6 – ReplayTV copyright fight. Television networks are suing the maker of the ReplayTV device, arguing, among other things, that their copyright is infringed by the device’s power to let users skip commercials during playback. To Steven den Beste, this is a bit like demanding that scissors be banned “because they might be used to clip articles out of magazines.” (U.S.S. Clueless, May 4; Christopher Stern, “Privacy Fight Centers on Ad-Zapper”, Washington Post, May 4). (DURABLE LINK)

May 6 – “Unharmed woman awarded $104,000″. “A woman who believes she was poisoned by a chemical spill in 1993 has been awarded [C]$104,000 by a Manitoba court, even though the judge acknowledged the woman is likely mistaken in her belief.” Lynette Mary Sant, 55, reported being exposed to fumes from a broken bottle of the chemical phenol. “Medical tests found no evidence of liver, kidney or nervous system damage.” When Sant was examined at a clinic, “it was found that while she exhibited symptoms when exposed to phenol, she also exhibited symptoms when exposed to distilled water.” (Francine Dubé, National Post, Apr. 26). (DURABLE LINK)

May 3-5 – Australian roundup: taxpayers pay for schoolyard fight. “A young man involved in a schoolyard punch-up with another student seven years ago was awarded more than [A]$1 million in damages yesterday because the teachers failed to provide adequate playground supervision.” At Narrandera High School, according to the record of the case, 13-year-old David Michael Griffin “and another student, Joshua Ferguson, met for an ‘arranged fight’ next to the basketball court, in the schoolgrounds, at lunchtime on March 1, 1995. Mr Griffin threw the first punches and Mr Ferguson hit back, knocking him to the ground.” (Ellen Connolly, “Former student wins $1m over injuries”, Sydney Morning Herald, May 1). “An entrepreneur schoolboy trying to save up for a skateboard by selling flowers has fallen foul of local laws by failing to take out a A$5 million ($2.70 million) public liability insurance policy.” (”Law Puts Schoolboy Flower Seller Out of Business”, Reuters, Apr. 23). And a dispute over team standings in the Australian soccer league may proceed to litigation (Michael Cockerill, “Con-undrum: who is in the finals?”, Sydney Morning Herald, Apr. 7). Plus: coverage of medical liability insurance crisis (”Health Under Threat”, news.com.au, May 3 and other dates) (DURABLE LINK)

May 3-5 – Update: Defend yourself in print and we’ll sue (cont’d). In a decision deplored alike by business groups and the ACLU, the California Supreme Court ruled Thursday by a 4-3 vote (PDF format) that that companies can be sued for false advertising over policy statements made in “issue ads”. The Nike Corporation had bought ads defending its record on the use of so-called sweatshop labor and was promptly sued by activists whose “private attorney general” action claimed that the ads violated the state’s fair advertising law (see Feb. 13). “What [Thursday's] decision means,” says Deborah La Fetra of the Pacific Legal Foundation, “is that one side of the debate gets full free speech protection, but a corporation trying to defend itself is subject to strict liability.” (Mike McKee, The Recorder, May 3). UCLA free speech specialist Eugene Volokh, whose already-indispensable new blog it seems we are beginning to quote daily, has the perfect instant analysis complete with a hypothetical on speech by abortion clinics that may help drive home why this new decision is anything but “progressive” (May 2). (DURABLE LINK)

May 3-5 – “It’s No Laughing Matter”. The Chicago Tribune finds harassment law trainers continuing to warn management against tolerating an atmosphere of joking in the workplace: “once a disgruntled employee files a lawsuit, ‘they’ll remember every inappropriate joke (ever) told,’ said Malcolm Kushner, who teaches harassment classes to attorneys in Santa Cruz, Calif. ‘Even if they laughed at it (at the time), it looks horrible to a jury.’” (T. Shawn Taylor, Chicago Tribune, Apr. 28). (DURABLE LINK)

May 1-2 – What big teeth you have, Sen. Edwards. In this week’s New Yorker, Nicholas Lemann profiles ambitious trial lawyer/Sen. John Edwards of North Carolina, who is itching to run for President “as a trial lawyer”. (”The Newcomer”, May 6, not online.) Noteworthy line: “Throughout much of the South, trial lawyers are, in effect, the left: an influential group that, instead of converting populist sentiment into redistributionist legislation, converts it into big rewards for a small number of people who have stories of having been screwed by powerful, uncaring figures.” Mickey Kaus nails Edwards’ demagogic “us against them” populism as exactly the sort of thing you’d expect from one who chose his route to the top: “Trial lawyers like Edwards, Lemann notes, specialize in a theatrical form of scapegoating, taking complicated disasters and finding a ‘villain’ with deep pockets.” (Kausfiles, “Hit Parade: The pretty ShrumPuppet”, scroll to Apr. 30; InstaPundit, Apr. 30).

An analysis by Roll Call finds that Edwards (D-N.C.) “has relied almost entirely on his trial lawyer friends” to underwrite his $1.39 million war chest. “Of that total, $1.19 million — 86 percent — came from lawyers, their employees or their family members, …. No other Congressional leader or potential presidential contender has such a heavy reliance on a single industry for their leadership PAC. Edwards … makes a point of stressing that he won’t take money from PACs or registered lobbyists”, but conveniently trial lawyers don’t need to couch their donations in either of those forms. (Paul Kane, “Trial Lawyers Fuel Edwards’ Efforts”, Roll Call, Apr. 25; see Ribstone Pippin blog, Apr. 28) (& welcome Andrew Sullivan readers). (DURABLE LINK)

May 1-2 – Ad model sues tobacco company. “An Arkansas man who said he worked as a model in cigarette ads in the late 1970s sued R.J. Reynolds Tobacco Co. yesterday, saying he experienced years of emotional distress from enticing people to smoke. Raymond Leopard of Little Rock seeks at least $65 million in damages in the lawsuit filed in U.S. District Court … The suit said Mr. Leopard worked as the ‘Winston Man’ from 1978 to 1980, pictured in Winston cigarette ads in popular magazines. The suit said he never smoked Winstons. … ‘His reputation has been forever tarnished and his personal credibility diminished,’ the suit said.” (”Former tobacco model sues Reynolds over ‘reputation’”, Washington Times, Apr. 30). (DURABLE LINK)

May 1-2 – “Injudicious conduct”. National Law Journal’s annual roundup of bad behavior on the bench includes cases mentioned previously in this space (Amundson, Couwenberg) plus a bunch of others (Gail Diane Cox, National Law Journal, Apr. 23). (DURABLE LINK)

May 1-2 – “Don’t sue for Israel”. Following legal threats, a small Texas automotive exporter has apologized for apparently having refused to do business with Israeli firms and citizens. When the story circulated last week, our friend James Taranto at the WSJ/OpinionJournal’s “Best of the Web” audibly hoped that the exporter would get in trouble under the odd “antiboycott” law that makes it a federal offense, inter alia, for an American company to engage in “actual refusal to do business with or in Israel”. (”Best of the Web”, Apr. 25; W. Gardner Selby, “Texan’s fax causes international fuss”, San Antonio Express-News, Apr. 30). But Sasha Volokh points out the inconsistency of the antiboycott law with the principle of free association, connects that theme nicely with the Boy Scouts v. Dale case and hate speech litigation, and adds a bunch of useful links (”Don’t sue for Israel”, Volokh brothers blog, Apr. 28). (DURABLE LINK)

Related posts

• October 2000 archives, part 1 (0)
• March 2000 archives, part 2 (1)
• June 2000 archives, part 2 (0)
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SEE ALSO May 17, 2000; Diana Furchtgott-Roth, “Suicide Mission: The Union Push for Comporable Worth”, Capital Research Center Labor Watch, Dec. 1999; Lawrence W. Reed, “Comparable Worth or Incomparably Worthless?”, Mackinac Center, Sept. 6, 1994. The late Clarence Pendleton Jr., chairman of the U.S. Civil Rights Commission, called comparable worth “the looniest idea since Looney Tunes came on the screen” (Simpson’s Contemporary Quotations #519). (DURABLE LINK)

April 20-22 – “Lie-tery winners”. All sorts of basically decent people, from cops to grandmothers, would never think of shoplifting or forging checks but do seem to think it’s okay to lie in lawsuits. “Just ask anyone who has taken more than a handful of depositions or cross-examined witnesses at trial — especially witnesses in tort cases. … the oath has become virtually meaningless,” writes Kirkland & Ellis partner Michael Jones (”Lie-tery Winners”, National Law Journal, March 22).

April 18-19 – Mistletoe dangerous even when absent. LeRoy Crawford says his female boss at the New York Stock Exchange behaved seductively and made remarks such as “if there were mistletoe, I would give you a kiss,” when giving him a Christmas bottle of cologne. Things went from bad to worse, and he now wants $1 million in compensatory damages and $1 million for “special damages as a result of physical and mental injury”. (Peter Noel, “Sex on the floor”, Village Voice, April 11-17).

April 18-19 – Randomness of case assignments questioned. San Francisco assigns cases for pre-trial motions to one of two judges, and it seemed that the plaintiff’s firm of Wartnick, Chaber, Harowitz & Tigerman kept getting lucky by drawing the more favorable judge to hear its asbestos cases. Lucky, indeed: over the past two years, 94 percent of the firm’s cases were assigned even numbers, instead of the odd numbers that would have sent the cases to the other judge. (Dennis J. Opatrny, “Playing the Numbers”, The Recorder, April 9).

April 18-19 – “Guests sue inn for overbooking”. When five Massachusetts couples arrived at Vermont’s romantic Woodstock Inn for an investment club weekend last April, they found the inn had inadvertently overbooked its rooms, and three of the couples had to stay at a local B&B. The inn proprietors were terribly apologetic and treated all five couples to the weekend’s lodging for free, as well as giving them a free dinner. Nonetheless, four of the couples are suing for a sum “substantially in excess of $25,000″ in a Boston court. (AP/Boston Globe, April 17).

April 18-19 – Tempest in an arsenic-laced teacup? President Bush deserves credit for standing up to demagogues by pulling back this bad regulation: Steve Chapman, “Who’s really poisoning our drinking water?”, Chicago Tribune, April 12; George Will, “The costs of moral exhibitionism”, Washington Post, April 15; Jason K. Burnett and Robert W. Hahn, Brookings/AEI Joint Center study, “EPA’s Arsenic Rule: The Benefits of the Standard Do Not Justify the Costs”, abstract, Jan. 2001; Mercatus Center (George Mason U.) Public Interest Comment series, Sept. 19, 2000; Michael Kinsley, “Bush is right on arsenic. Darn!”, Washington Post, April 13; Michael Y. Park, “Study: Arsenic Rule Would Have Increased Deaths”, FoxNews.com, April 17; Nick Schulz, “Poisoner-in-Chief Is Saving Lives”, American Spectator Online, April 17; Diane Rehm show transcript (National Public Radio), March 28.

April 17 – Reparations: take a number. National Journal columnist Stuart Taylor Jr. traces the link between demands for compensation for century-old evils such as slavery and colonization and legal battles over liability for decades-ago sales of products like lead paint and asbestos (”Paying Reparations for Ancient Wrongs Is Not Right”, The Atlantic/National Journal, April 11; our take, Reason, Nov. 2000). The group of lawyers mapping out slavery-reparations suits are scheduled to huddle on strategy today in Washington, and say they plan to name businesses as well as the U.S. government as defendants (Jamal E. Watson, “Lawyers plan suit for slavery reparations”, Boston Globe, April 13). The conservative magazine Insight has given uncritically positive coverage to demands for compensation over Japan’s World War II mistreatment of American servicemen, despite the clear laying to rest of such claims by postwar treaty. You’d think victims of the crimes of communism over its long reign would be even better placed to score positive ink in the conservative press, but we seem to hear little about them — not that we would want to load up the reparations bandwagon even further, you understand (Stephen Goode, “New book documents Japanese exploitation”, Insight, undated).

April 17 – A Pulitzer for Dorothy Rabinowitz. The Wall Street Journal editorialist, whose searing commentaries on dubious child-abuse prosecutions have helped expose some of the most glaring injustices to flow from sentimentalism and credulity in our legal system, snags one of this year’s Pulitzer Prizes for her commentaries on American society and culture (Yahoo Full Coverage — Pulitzers). OpinionJournal.com keeps an archive of her media criticism; her articles on abusive prosecution, when online at all, are found at far-flung corners of the web (”A Darkness in Massachusetts” -I-, -II-, -III- (RickRoss.com); more columns on Amirault case; “Through the Darkness” (the Grant Snowden case, forever linked with the name of Janet Reno) (DennisPrager.net); Wenatchee case -I-, -II-).

April 16 – “Woman settles hot pickle lawsuit with McDonald’s”. Or at least its local franchisee: “A woman who claimed she was permanently scarred by a hot McDonald’s hamburger pickle has settled her lawsuit against the restaurant chain. MAR Inc., which does business as McDonald’s in Knoxville, admitted no wrongdoing in the agreement signed by a judge Thursday. Other details of the settlement are to remain confidential. ” (see Oct. 10, 2000) (AP/CNN, April 13).

April 16 – New batch of reader letters. Our correspondents tell why the law makes it perilous to hire a home renovation contractor in New York, ask about buying T-shirts from us, wonder whether Indian-derived place names such as Wichita and Massachusetts are next up for abolition, lament American law’s resistance to the obvious fairness of the loser-pays principle, and hail a Supreme Court decision upholding employment arbitration.

April 16 – Big numbers. It is a truth universally acknowledged that if the injuries resulting from a transportation accident are sufficiently severe, a wealthy business must have been at fault. Teledyne Continental Motors of Mobile, Ala. has agreed to pay $27 million to settle a suit on behalf of survivors of five skydivers killed in the crash of a Cessna, though its attorney said the company’s oil tube design does not cause engine failure as the plaintiffs alleged (Joe Lambe, “$27 Million Settlement in Skydiving Plane Crash”, DropZone.com, March 16; “Poor Preflight Probably Killed Skydivers: NTSB”, Aero-News.Net, June 29, 2000). An Indiana appellate court has upheld a $55 million jury verdict against the Kroger Co. over a truck accident at a company terminal, rejecting the company’s contention that the award was excessive and in conflict with workers’ compensation laws (the injured man, a truck driver, worked for a wholly owned subsidiary of the large grocery chain). (Margaret Cronin Fisk, “Finding No Direct Employment Relationship, Indiana Appellate Court Upholds PI Award”, National Law Journal, March 28). A Los Angeles jury has just voted $55 million against General Tire, a unit of Germany’s Continental Gummi-Werke, over a “tread separation” accident (if you thought those were unique to Firestone, think again). (Myron Levin, Los Angeles Times, April 14; “Jury orders tire maker to pay $55 million”, AP/CNN, April 14). Among the plaintiff’s lawyers in the case was Brian Panish, famed for his 1999 feat in getting another L. A. jury to award $4.9 billion against GM, later reduced to $1.2 billion. And another well-known maker of replacement tires, Cooper Tire, got hammered the same week for $10 million in El Paso (”Jury OKs $10M Award Vs. Cooper Tire”, AP/FindLaw, April 13). Also see Margaret Cronin Fisk, “Two Tire Companies Punctured by Juries”, National Law Journal, April 24, with more details about both tire cases.

April 13-15 – It was the bar’s fault. “A 20-year-old Jamison man, who was shot last summer, says a Warminster bar is partially to blame for the incident. Had he not become drunk from alcohol consumption that night, Martin Joyce’s judgment would not have been impaired, he would not have approached an unknown man for change and he would not have been shot, alleges a suit filed in Montgomery County Court.” (John Corcoran, “Intoxication caused judgment error, suit claims”, Doylestown, Pa. Intelligencer-Record, April 11).

April 13-15 – Anti-Ritalin lawyers still acting out. Despite some early setbacks, tobacco-veteran lawyers including Richard Scruggs, John Coale and Marc Saperstein continue to seek megabucks damages against drugmaker Novartis (formerly Ciba-Geigy) over the widespread prescribing in schools of Ritalin, the drug meant to combat attention deficit disorder, hyperactivity, and related conditions. There’s a strong case to be made against the thoughtless overuse of this drug, but how characteristic of our litigation system that it proposes to take decisions about its use out of the hands of both medical professionals and parents, instead inviting the lawyers to shop around until they find a few sympathetic courts and a jury or two willing (effectively) to ban the drug through punitive damages. PBS “Frontline” covered the issue recently (”Medicating Kids“) and its website includes a section on the litigation (”ADHD Lawsuits“) which points out a noteworthy recent development: on March 8 of this year federal judge Rudi Brewster threw out a suit seeking class-action status on behalf of everyone in California who had used or bought Ritalin, and also “ruled that activities by defendants intended to advance the medical understanding, diagnosis and treatment of ADHD were free speech protected under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute.” This latter is significant because efforts by businesses to engage in medical promotion or policy defense of products, trade association activity etc. are now routinely sued over by trial lawyers in themselves (conspiracy! public brainwashing! tobacco all over again!) and anti-SLAPP statutes might prove useful in rebuffing such causes of action.

MORE: Sept. 18 & Sept. 22, 2000; Nancy Shute, “Pushing Pills on Kids?”, U.S. News, Oct. 2, 2000; Shankar Vedantam, “A symptom of the times? ADD, Ritalin focus of suits”, Philadelphia Inquirer, Dec. 11, 2000; Bob Seay, “Ten Questions for the Lawyers”, About.com ADD site, Sept. 16, 2000.

April 13-15 – “2000’s Ten Wackiest Employment Lawsuits”. Gerald Skoning of Chicago’s Seyfarth Shaw compiles an annual roundup of the most bizarre cases in employment law. Among this year’s highlights: a Minneapolis woman took a job in a sex-toy store and then filed a hostile-environment harassment lawsuit because of all the dirty talk she had to listen to; an Ohio court allowed a worker at a mental health facility to proceed with his reverse disability-discrimination claim that he had been singled out for mistreatment as the only employee at the facility without a mental disability; and a Boeing employee claimed that the company’s objection to his working in the nude was a failure to accommodate his religion, shamanism (”2000’s 10 Wackiest Employment Lawsuits”, National Law Journal, March 29).

April 12 – Zero-tolerance spiral. The WSJ’s OpinionJournal.com “Best of the Web” feature has lately made it a special project to collect reports of zero tolerance excesses, which are fast mounting beyond our ability to record them. F’rinstance, there are the school officials in West Annapolis, Md., who have banned kids from playing tag during recess, citing the school’s “no-touching” policy (Kimberly Marselas, “City school bans students from playing tag”, Annapolis Capital, March 26); and the honor student given an in-school suspension in West Monroe, La., for drawing a GI Joe-style commando with canteen, knife and grenades (Emeri O’Brien, “3rd-grader suspended for drawing”, Monroe, La. News-Star, March 24; “Soldier drawing gets wide attention”, March 27). A 16-year-old student at Legacy High School in Broomfield, Colo. “may be charged with a felony after school officials found an unloaded BB gun in his car.” (Christine Reid, “Student may face felony charge over unloaded BB gun”, Scripps-Howard, April 8). And in the continuing search for ways to build character in the leaders of tomorrow, some favor snitchlines: “Cedar Rapids police are believed to be the first in Iowa to create a student hot line to take tips on illegal activity. Teens who call about classmates they believe to have alcohol, drugs or weapons on school property get $50 if the police recover anything.” (Kate Kompas, “Teen crime hot line offers cash”, Des Moines Register, April 5).

April 12 – “The Last Tycoon”. This Baltimore City Paper profile from last August, which we missed at the time, says contingency fees to Peter Angelos’s law firm topped $100 million for asbestos work on behalf of Bethlehem Steel workers alone, with more riches expected to flow in from fen-phen, lead paint and those supposedly deadly cellular phones. “When it comes to Baltimore’s politics and finances, it seems, almost nothing happens without Peter Angelos. … in 1999, 10 lawyers and lobbyists were registered with the State Ethics Commission on his behalf.” The minority leader of the state house describes the Orioles owner’s power in Annapolis as “absolutely magical” and “amazing … It’s all based on huge amounts of money flowing [from] Peter Angelos’ pocket and into the coffers of the Democratic Party.’” (Molly Rath, Baltimore City Paper, Aug. 16, 2000)(more).

April 11 – Lost his live client, had to substitute dead one instead. In St. Louis, where lots of dead people are registered to vote, “a dead man was listed as the chief plaintiff in a lawsuit filed on Election Day in November,” according to the L.A. Times. “He was having trouble voting, the suit said, due to long lines at his polling station. So he petitioned a judge — successfully — to keep city ballot boxes open late. … The lawyer who filed the suit explained the mix-up by saying he had intended the plaintiff to be Robert ‘Mark’ Odom, an aide to a Democratic candidate for Congress.” However, “Odom had voted, without a wait, by the time the suit was filed,” and the papers had been prepared with his name on them. But as California judge William W. Bedsworth suggests, this supposed explanation if anything makes the case more egregious: the lawyer “‘explained’ how he filed a suit on behalf of a dead person by saying that the plaintiff turned out not to have had his rights violated, and the only available person with the same name happened to be dead. And this caused not the batting of an eyelash in St. Louis. No immediate suspension, no call for disbarment, no investigation into how he got a judge to sign this thing”. (”Meet Me in St. Louis”, The Recorder, April 9).

April 11 – Update: “metric martyr” convicted. In the first such prosecution in Britain, greengrocer Steven Thoburn of Sunderland has been convicted of violating a 1985 compulsory metric system laws by selling bananas in pounds and ounces (see Jan. 22) (”‘Metric martyr’ convicted”, The Guardian, April 9; “Bananas” (editorial), Daily Telegraph (editorial), April 10; footrule.org, of which the late Jennifer Paterson (TV’s “Two Fat Ladies”) was an honorary member).

Related posts

• September 2000 archives, part 3 (0)
• October 1999 archives, part 2 (2)
• November 1999 archives, part 2 (0)
• March 2000 archives, part 2 (1)
• October 2002 archives, part 3 (1)

Other links of note from a Nader-watcher’s scrapbook: Doug Henwood, “1.75 cheers for Ralph”, Left Business Observer, Oct. 1996; discussion on LBO mailing list re RN finances, Sept. 9, 1998; RN denounces tort reform in campaign press release, VoteNader.org, Aug. 11; Robert Bryce, “Naturally Nader”, Austin Chronicle, April 7; Mike Allen, “Nader: The Little Guy’s Multimillionaire” (worth $3.8 million, heavily invested in tech stocks, still refuses to reveal income tax records), Washington Post, June 18; Paul West, “Corporate gadfly turns out to be rich”, Baltimore Sun, June 17; Michael Lewis, “Campaign Journal: The Normal Person of Tomorrow”, The New Republic, May 20, 1996.

September 22-24 – From our mail sack: hyperactive lawyers. Reader Scott Replogle, M.D., writes from Colorado: “I see (Sept. 18) that trial lawyer Richard Scruggs is suing psychiatrists and the makers of the drug Ritalin, alleging they conspired to ‘create’ a disease, Attention Deficit/Hyperactivity Disorder, and then overdiagnose it for monetary gain. Which raises the question: when can we sue the people who not too long ago ‘created’ the previously unknown disorders of ’silicone disease’ and ‘human adjuvant disease’ during the breast-implant controversy, and conspired to overdiagnose those diseases for monetary gain? And does it matter that many of those people were trial lawyers?” (see also April 13, 2001)

September 21 — Missouri tobacco fees. Lawyers stand to make $100 million or more for representing the state of Missouri in the Medicaid-tobacco litigation and the state’s largest newspaper, the St. Louis Post-Dispatch, says that sum “is out of proportion to the work performed and the risk involved … troubling … grossly overpays the lawyers involved … creates an unholy alliance between the state and tobacco interests” It’s also “a political gravy train” since “the five law firms involved in the case donated a total of more than $500,000 in campaign contributions over the past eight years, mostly to Democrats”; a prominent Republican former judge and Democratic former mayor of St. Louis were also cut in. “An important issue of public policy — the lawyers’ fees — will be determined outside the public forum” given that a secret arbitration proceeding will be employed to set the fees. “…It is private money in the public trough. But that doesn’t make the sight of the lawyers lining up to feed any prettier.” (”All aboard the gravy train” (editorial), St. Louis Post-Dispatch, Sept. 17).

Brent Evans, a state senate candidate in Missouri, has posted extensive documentation on the circumstances surrounding state attorney general Jay Nixon’s hiring of outside lawyers to prosecute the suit. According to Evans, the lawyers’ campaign contributions of $561,000 included $139,000 for Nixon himself and $113,000 for Democratic Gov. Mel Carnahan (”The Tobacco Papers“; the lawyers; their generosity; the work they might have done to justify the fees; “Attorneys mum about how much they’re seeking” (fee request “confidential”), Jefferson City News-Tribune, April 26, 1999; Jack Cashill, “Warning: Tobacco Settlements May Endanger The Integrity of Your Elected Officials” (also discusses Kansas fees), Cashill.com, undated 1999; “Appeals court sides with Nixon on legal fees in tobacco settlement”, Jefferson City News-Tribune, May 31, 2000; James Baughn, The Cape Rock webzine (Cape Girardeau, Mo.), June).

Last year Missouri Digital News reported that Paul Wilson, lead attorney on the matter with AG Nixon’s office, “urged lawmakers to pass legislation that will protect the major tobacco companies from a market-share loss once the impact of the tobacco settlement sets in. Off-brand cigarette companies, those not participating in the settlement, could otherwise undercut the prices of the major tobacco companies. Missouri will keep getting its billions so long as the market share of the signatories does not dip below 95 percent. If it were to do so and Missouri had no off-brand tobacco law, explained Wilson, the terms of the settlement let the major tobacco companies stop paying.” (Anna Brutzman, “Legislators Bewildered By Settlement”, April 4, 1999). Update Oct. 5, 2003: Missouri Supreme Court refuses to entertain challenge to tobacco fees.

September 21 – Dangerous divorce opponents. It’s tough enough going through a divorce in any case, but you’d really better watch out if your spouse is a successful lawyer, according to the New York Post. Advice: try for a change of venue. (Laura Williams, “Attorneys’ Wives Court Disaster”, Sept. 20).

September 21 – Eastwood trial begins. Jurors will hear an Americans with Disabilities Act complaint against the actor’s Mission Ranch hotel in Carmel. For our coverage of the Eastwood case and related Congressional hearings, see May 18, March 7, Feb. 15 and Jan. 26. (”Eastwood to Jurors: ‘Make My Day’”, AP/Fox News, Sept. 20; Shannon Lafferty, “Eastwood in the Line of Fire,” The Recorder/CalLaw, Sept. 21).

Related posts

• March 2000 archives, part 2 (1)
• October 1999 archives, part 2 (2)
• November 1999 archives, part 1 (1)
• December 1999 archives, part 1 (1)
• October 1999 archives, part 1 (0)

In the New York Times Sept. 11, Keith Bradsher reports that by the end of 1998 trial lawyers “had already sued Firestone, and sometimes Ford as well, in cases involving 22 deaths and 69 serious injuries”. However, few of these cases had come to the attention of the National Highway Traffic Safety Administration; until recently NHTSA had received very few complaints, and none of fatalities. In fact, Bradsher reports, trial lawyers were pursuing a conscious policy of not reporting tire incidents to the agency, apparently because of tactical concerns — if the agency learned about such cases too early and in too small a number, it might do a perfunctory investigation and miss the pattern of defectiveness, and then the lawyers would have more trouble winning their cases. This strikes us as a fairly damning indictment to be leveling against the trial lawyers — they flout the public interest in learning crucial safety information, just in order to angle for monetary advantage? Isn’t that what Firestone is accused of doing? — but Bradsher quotes Ralph Hoar, a well-known plaintiff’s-side consultant in auto-design cases who provided the numerical tabulation cited at the beginning of this paragraph, as cheerily portraying the lawyers as just doin’ their job, saying they have to concern themselves with their clients’ best interests, not anyone else’s.

Meanwhile, Ford Motor had been named in a few suits but “paid little attention, because automakers routinely face thousands of lawsuits after crashes.” In other words, the background level of litigation against a company of that size is so high that it’s hard to notice patterns that do turn out to be meaningful (Keith Bradsher, “Documents Portray Tire Debacle as a Story of Lost Opportunities”, New York Times, Sept. 11 (reg)). (DURABLE LINK)

September 15-17 – Ciresi bested in Senate bid. Michael Ciresi, the trial lawyer who sought to parlay his representation of the state of Minnesota in the tobacco litigation into a seat in the U.S. Senate, has lost the Democratic nomination to department store heir Mark Dayton by a margin of 41 to 23 percent, with other candidates dividing the rest. (Dan Bernard, “Dayton Grabs DFL Nomination”, WCCO/Channel 4000, Sept. 13; St. Paul Pioneer Press; Minneapolis Star-Tribune).

September 15-17 – Cash return sought by murder-for-hire convict. “A criminal defense attorney who paid an undercover agent $11,000 in a failed murder-for-hire plot is asking the government to return the money. Frederick Ford, 48, who is serving an eight-year prison term for planning to kill two former clients he thought could implicate him in a kidnap plot, is seeking the return of the money he admitted he gave to a U.S. Department of Labor agent last year.” (”Convicted attorney seeks return of murder-for-hire retainer”, AP/CNN, Sept. 13; Shelley Murphy, “Hit man hirer wants money back”, Boston Globe, Sept. 13).

September 14 – “I know [you] will give $100K when the president vetoes tort reform, but we really need it now.” The New York Times reports in today’s editions that Justice Department campaign finance investigators have launched a preliminary probe into documents that have surfaced from the Clinton/Gore 1996 fundraising operation, including a “call sheet” prepared for Vice President Gore regarding Beaumont, Texas lawyer Walter Umphrey, a major Democratic benefactor who shared in Texas’s $3.3 billion tobacco contingency fee and is well known to readers of this space. The sheet describes Umphrey as “closely following tort reform” and suggests asking him for $100,000 to finance Democratic Party TV commercials. The White House claims that Gore did not make the call, but two weeks later a staffer for then-Democratic National Committee chairman Donald Fowler prepared a call sheet reading as follows: “Sorry you missed the vice president. I know [sic] will give $100K whn [sic] the president vetos [sic] tort reform, but we really need it now. Please send ASAP if possible.” DNC officials propose that the “missed” might have referred to the two men not connecting at an in-person event; Fowler disclaims any memory of talking with Umphrey about campaign donations and says he would never have used the language on the call sheet. According to the Times, “Trevor Potter, a former chairman of the Federal Election Commission, called the call sheet’s language ‘extraordinarily ill-advised,’ saying prosecutors would probably be investigating whether the solicitation violated either a bribery statute or a law prohibiting ‘illegal gratuities,’ a ‘gift’ given after an elected official takes a public action.”

The Washington Post reports that Umphrey says he doesn’t recall “any of that” and otherwise declines comment, while Payne was talking to the Times only through her lawyer. And attorney Michael Tigar, who represents Umphrey and the rest of the Big Five Texas tobacco lawyers, issued this small gem of legalistically worded denial: “Tying campaign contributions to legislative or executive action has never been illegal in the United States unless there is proof that the public official extorts the money by threatening to give or withhold action based on the contributions,” he said; moreover, his clients, including Mr. Umphrey, “have repeatedly been asked in many forums whether they have ever given money to a candidate or officials as a quid-pro-quo for official action, and they have repeatedly said under oath that they have never done so.” The Times account adds considerable background on the epic pace of Clinton/Gore fundraising among Texas plaintiff’s lawyers of late, including a little-reported fundraiser thrown for Hillary Rodham Clinton’s Senate campaign by Big Five stalwart John Eddie Williams of Houston. (Don Van Natta Jr. with Richard A. Oppel Jr., “Memo Linking Political Donation and Veto Spurs Federal Inquiry”, New York Times, Sept. 14 (reg); Susan Schmidt, “1995 Documents Appear To Link Lawyer’s Contribution To Veto”, Washington Post, Sept. 14; more on Umphrey and the Big Five: Sept. 1, May 22; more on trial lawyers’ political clout). More breaking coverage (via Drudge): Time, Fox News, AP. (DURABLE LINK)

September 13-14 – “Violent media is good for kids”. Good kids, as well as bad ones, are naturally fascinated with violence, catastrophe and retribution, and letting them explore these matters in the relatively safe territory of the printed page and popular entertainment is part of the process by which they learn how to fit themselves into a frightening world, argues cartoonist Gerard Jones, in an excerpt from a book due out next year from Basic with co-author Melanie Moore (”Reality Check”, Mother Jones, June 28; Reason magazine, “The Kids Are All Right“, “Breaking Issues”; Christopher Stern, “Violent Material Marketed To Youth”, Washington Post, Aug. 27; Mike Allen and Ellen Nakashima, “Clinton, Gore Hit Hollywood Marketing”, Washington Post, Sept. 12).

September 13-14 – Gregoire’s home front. Washington state attorney general Christine Gregoire gained a high national profile jetting around the country to take a leading role in the tobacco-Medicaid affair and other big-case AG litigation, and followed up by assuming the presidency of the National Association of Attorneys General (see July 17). Now it may be time to wonder whether she was keeping enough of an eye back home on the unglamorous routine of the AG’s office, which plays a vital role in protecting the state’s legal interests. In March a Pierce County jury awarded the largest verdict ever against the state, $17.8 million, on behalf of three developmentally disabled men whose families said they were abused in a state-supported home. Gregoire’s office announced plans to appeal but, embarrassingly, proceeded to lose the state’s right to do so by missing a filing deadline. With interest, the total bill has now mounted to $18.7 million. (Eric Nalder and Mike Carter, “State won’t give up bid to appeal $17.8 million verdict”, Seattle Times, Sept. 12; Eric Nalder, “No excuse for missed appeal, court says”, Seattle Times, Aug. 22; see also update Nov. 30). The Capital Research Center has issued a new report critical of recent attorney general activism, by Ron Nehring of Americans for Tax Reform (”National Association of Attorneys General: Opening the Door to a New Era of Regulation Through Litigation”, Organization Trends (CRC), Sept.)

September 13-14 – Prescription: 24-7 monitoring. Adding to Evergreen State taxpayers’ legal woes, a Pierce County, Wash. jury Sept. 1 ordered the state government to pay $22 million to survivors of a driver killed in an auto accident by a man who was at the time serving the community-supervision portion of a sentence for third-degree assault. The verdict broke an earlier $17.8 million record for lawsuits against the state, set in March by the same plaintiff’s attorney, Jack Connelly (see above item). Gov. Gary Locke vowed to appeal the verdict, saying if upheld it could make the entire enterprise of community supervision unworkable. “This man was convicted of … third-degree assault connected with a domestic dispute,” he said. “Imposing liability for his involvement in an auto accident extends public liability too far.” A Locke aide questioned whether the state could monitor the 55,000 persons on community supervision adequately to prevent any of them from being a menace on the highway. One of the alternatives to risking failure-to-supervise liability — keeping the 55,000 locked up — would apparently be okay with lawyer Connelly, who said, “If you’re not even going to try to do your job, then don’t put these guys on community supervision. Put them in jail.” (Eli Sanders, “Family awarded $22.4 million in wrongful death lawsuit against state”, Seattle Times, Sept. 2). See also Chris Solomon, “Cities leery of new probation rules”, Seattle Times, July 11 (local governments fear being financially wiped out by Washington Supreme Court ruling allowing negligence lawsuits against municipalities over crimes committed by probationers).

September 13-14 – More bank spying? Despite strongly negative public reaction to withdrawn “Know Your Customer” regulations that would have accelerated banks’ sharing of customer “profiles” with law enforcement, legislators like Rep. James Leach (R-Iowa) are back with proposals that raise similar civil liberties concerns (Scott C. Rayder, “The Counter-Money Laundering Act: An Attack on Privacy and Civil Liberties”, Heritage Foundation Executive Memorandum, Aug. 31; our take on the last round).

September 13-14 – Judges’ words, copyrighted. Officials in the California judiciary would like to revamp the instructions that judges give juries before trial deliberations, in hopes of making them clearer and more understandable, but have run into an unexpected problem. The Los Angeles County courts turn out to hold copyright in the most widely used current instructions and collect royalties when other California courts use them, which have generated $2.5 million for the county’s use over the past decade. “‘When we first began this effort three years ago, all of us just assumed that we would take [Los Angeles instructions] and improve on them,’ said Associate Justice James D. Ward of the state Court of Appeal in Riverside, vice chairman of the task force. ‘Then they announced to us that they owned them.’” The L.A. courts have held back from cooperating in the statewide revision efforts, which if successful would result in a set of instructions that courts could use for free. (Caitlin Liu, “Say What, Your Honor?”, Los Angeles Times, Sept. 7).

September 12 – Goodbye to gaming volunteers? Online multiplayer gaming has grown to be a big Internet institution in no small part because large numbers of unpaid enthusiasts join in on a volunteer basis to suggest and beta-test new features, run discussion boards and perform countless other services. “But maybe not for long. On Monday, August 28 … Origin Systems Inc. (OSI) [makers of Ultima Online, one of the leading fantasy role-playing games], announced the termination of free game account privileges for hundreds of community volunteers…. While company representatives have not said so outright, it appears the move to eliminate what amounted to a $10 a month gratuity for volunteers is related to a recent New York class action lawsuit, brought by former volunteers at America Online (AOL)” (see Sept. 7, 1999). The class action lawyers in that case are charging that because AOL benefits from the content devised by its volunteers, and has given them at least nominal compensation in the form of free services and the like, it is therefore obliged to keep track of how much time they put into volunteering and pay them at least the minimum wage. If the lawyers succeed in their efforts, online community providers could find themselves facing large retroactive wage bills. “Origin is just the first game company to move to protect itself legally by removing any perks that could be seen as differentiating its volunteers from all the other players. The major subscription-based role-playing services may soon follow suit. While the short-term effects may be limited (some volunteers may quit, but could be replaced), the long-term future of volunteer work on online releases seems doubtful all of a sudden.” (Bruce Rolston, “The End of the Smurfs?”, Adrenaline Vault, Sept. 1).

September 12 – Curious feature of lawyer’s retainer. Texas trial lawyers are in a flutter over a Waco case in which an appeals court ruled that a client family in an industrial accident case was within its rights to withdraw from a contingent-fee legal contract it had signed. The agreement the lawyer had gotten the family to sign included a curious feature: a provision entitling him to settle the case without their consent. Such a provision, the court ruled, “clearly violates” the Texas professional code for lawyers, making the entire contract voidable. The lawyer, J.W. Stringer, plans motions for rehearing and appeal. (Jenny Burg, “Opinion Has Lawyers Reviewing Contingent-Fee Contracts”, Texas Lawyer, Aug. 21).

September 12 – This little piggy got taken to court. More pig farmers are facing legal action as outlying towns change “from rural, mind-your- own-business farm communities to residential, what’s-that-smell, suburban neighborhoods,” according to a Cleveland Plain Dealer report. Five residents of Medina County, Ohio, including a truck driver and two auto mechanics, have been sent to jail this summer for refusing to clean up pig living arrangements on their properties (Stephen Hudak, “Proud Pig Man’s smelly pork farm lands him in poke”, Sept. 7) (via Romenesko’s Obscure Store) And a Marlin County, Florida pig farmer sued by an adjoining golf course has put up a website which solicits moral support and legal defense contributions, as well as purchases of the squiggle-tailed offenders (Pigfarmer.com) (more on pig litigation: Oct. 4, 1999).

September 11 — “Feeding Frenzy Over Firestone”. “Lawyers all over the country see opportunity in the escalating legal, commercial and public relations disaster for Ford and Firestone.” (Bob Van Voris and Matt Fleischer, National Law Journal, Sept. 5; Yahoo Full Coverage).

September 11 – Harassment law roundup. At an Alcoa plant in North Carolina, one of the black complainants in a race discrimination suit went out to the parking lot, made a list of all the workers’ vehicles with Confederate flag stickers on them, and filed this as evidence of “hostile racial environment” in the case. The company promptly banned employees from having such stickers on their cars, a ban it insists had absolutely nothing to do with the lawsuit (Steve Chapman, “Trouble in Mind: Is the First Amendment Void in the Workplace?” Chicago Tribune, Aug. 24). In an excerpt from his book The Unwanted Gaze: The Destruction of Privacy in America, New Republic legal correspondent Jeff Rosen urges courts to reconsider the “hostile environment” analysis that has become an accepted part of harassment law: “A jurisprudence originally designed to protect privacy and dignity is inadvertently invading privacy and dignity” (”Fall of Private Man”,New Republic, June 12; more on book). Clarence Thomas, alone among the nine Justices of the Supreme Court, wanted to tackle the “troubling First Amendment issues” raised by a court’s injunction against workers’ use of racial epithets on the job at an Avis Rent-a-Car franchise; a California court had ordered the drawing up of a list of words that employees were to be forbidden to use in conversation with each other, whether anyone present found the words objectionable or not (Tony Mauro, Freedom Forum, May 23). And early this year it was reported that an “affirmative action officer in Falmouth, Massachusetts — whose job it was to enforce the town’s sexual harassment policy — has been fired for sexually harassing a town employee. The official, Jayme Dias, was in charge of promoting and enforcing fairness in hiring and employment practices.” (Monster.com, “Week in Work”, Jan. 31).

September 11 — “Mother sues over lack of ice time for goalie son”. In Rimouski, Quebec, “Hélène Canuel is seeking $1,000 in damages from the Rimouski Minor Hockey Association because her son, David, was denied the right to play in a critical game during a hockey tournament last December.” David is 14 years old. (Arpon Basu, Montreal Gazette/National Post, Aug. 24).

Related posts

• October 1999 archives, part 1 (0)
• May 2000 archives, part 3 (1)
• January 2000 archives, part 1 (0)
• October 1999 archives, part 2 (2)
• March 2000 archives, part 2 (1)

Who was it that spread the original image of air bags as pillowy, child-friendly devices, the right solution for all passengers in all circumstances? Lawyers now wish to blame Detroit, but Sam Kazman of the Competitive Enterprise Institute quotes the remarks of longtime Ralph Nader associate Joan Claybrook, who headed the National Highway Traffic Safety Administration during the Carter-era rulemaking: “Air bags work beautifully,” she declared, “and they work automatically and…that gives you more freedom than being forced to wear a seat belt.” (Letting people think an airbag might relieve them of the need to buckle up is now, of course, seen as horrifically bad safety advice.) Moreover, quoth Claybrook, the devices “fit all different sizes and types of people, from little children up to…very large males.” (”Only Smart Air Bag Mandate is No Mandate at All”, CEI Update, March 2).

Even more striking, CEI’s Kazman dug up this photo of Ralph Nader, who long flayed manufacturers for their delay in embracing the devices, using an adorable moppet as an emotional prop. Sam says the photo is from a 1977 press conference; he thinks it would make a lovely display in Nader’s planned museum of product liability law in Winsted, Connecticut. [DURABLE LINK]

MORE SOURCES: Bill Vlasic and Dina ElBoghdady, “Dead girl’s dad fights air bags”, Detroit News, March 29; Janet L. Fix, “Father’s heartbreak fueled lawsuit after 1995 accident”, Detroit Free Press, April 5; “The Deployment of Car Manufacturers Into a Sea of Product Liability? Recharacterizing Preemption as a Federal Regulatory Compliance Defense in Airbag Litigation”, Note (Dana P. Babb), Washington U. Law Quarterly, Winter 1997; Scott Memmer, “Airbag Safety”, Edmunds.com, undated web feature; Michael Fumento, “Paper Scares Parents for Politics and Profit”, 1998, on Fumento.com website.

May 16 – “Clinton’s law license”. “The Arkansas Supreme Court should take away Clinton’s law license because he lied under oath,” declares the editorially middle-of-the-road Seattle Times. “It’s unlikely that Clinton will want to practice after he leaves the White House, but this has more to do with the legal community upholding its own ethics than the president’s next career. The American Bar Association’s standards for lawyer sanctions leave little doubt: ‘Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information and causes serious or potentially serious injury to a party. …’ Last April, federal judge Susan Webber Wright found Clinton in contempt for ‘giving false, misleading and evasive answers that were designed to obstruct the judicial process’ while under oath in her presence. She also has filed a complaint with the Arkansas Supreme Court, but did not recommend a specific penalty. …Clinton should surrender his license or the court should take it.” (editorial, May 15). Plus: Stephen Chapman in Slate (”Disbar Bill”, May 12). [DURABLE LINK]

May 16 – The asset hider. Curious profession of a New Yorker whose specialty consists in finding ways to help wealthy men hide assets so as to escape legal obligations to their wives. The proprietor of “Special Services” of E. 28th St. also boasts of his skill in private investigation, which didn’t prevent him from falling for the cover story of a New York Post writer who posed as a divorce-bent Internet millionaire while secretly taping their lunch (Daniel Jeffreys, “The Wealthy Deadbeat’s Best Friend”, New York Post, May 15).

May 15 – Doctor cleared in Lewis cardiac case. A team of cardiologists told basketball star Reggie Lewis that his playing days were over. Then his wife helped get him transferred under cover of darkness to a new team of doctors who said he could go on playing. Then he collapsed on the court and died. And then Donna Harris-Lewis, having already collected on her husband’s $12 million Celtics contract, sued the docs for negligence. One paid $500,000 to settle, but last week Dr. Gilbert Mudge of Brigham & Women’s won vindication from a jury. (Sacha Pfeifer, “The verdict is in: no negligence”, Boston Globe, May 9; Dan Shaughnessy, “Everybody has lost in Lewis case; let’s move on”, May 9; Barry Manuel, “As usual, only lawyers won in Lewis case”, May 11, links now dead). Earlier, Harris-Lewis drew flak by comparing herself to the families of six firefighters who died in a Worcester warehouse blaze. “Lots of money is being raised for those families, and I need to be taken care of, too. Everybody has to say I’m greedy. But I do want my money back this time around. Why should I lose?” Well, ma’am, we could start a list of reasons. … (Steve Buckley, “What was Harris-Lewis thinking?”, Boston Herald, March 28).

May 15 – The four rules of sex harassment controversies. We thought we had ‘em memorized after the Anita Hill affair … then we had to unlearn all four during the late unpleasantness with President Clinton … and now they’ve all returned in coverage of the Pentagon’s Claudia Kennedy case. (David Frum, “Breakfast Table” with Danielle Crittenden Frum, Slate, May 12). In other harassment news, a jury has awarded $125,000 to a male waiter at a T.G.I. Friday’s near Tampa who said that female co-workers touched and grabbed him lewdly, that co-workers made fun of him when he complained, and that the restaurant chain proceeded to ignore his plight and retaliate against him. (Larry Dougherty, “Waiter wins suit against Friday’s”, St. Petersburg Times, May 5). And a Wisconsin appeals court has upheld a trial court’s award of $143,715, reduced from a jury’s $1 million, to a computer analyst who “said his boss spanked him with a 4-foot-long carpenter’s level during a bizarre workplace ritual” and then announced “Now, you’re one of us”. The boss testified that the spanking ceremony dated way back as an initiation at the Phillips, Getschow Co., a century-old mechanical contracting firm. (Dennis Chaptman, “Court upholds $143,715 award for spanking”, Milwaukee Journal-Sentinel, April 18).

May 15 – Convenient line at the time. Tobacco is special, said the state attorneys general who teamed up with trial lawyers to expropriate that lawful industry via litigation and share out the resulting plunder. It’s “the only product that, if used as intended, could be fatal.” And so they categorically dismissed critics’ fears that the tempting new ways of raising revenue without resorting to explicit taxation might soon be aimed at other industries. Who was fool enough to believe them? (Victor E. Schwartz, “Trial Lawyers Unleashed”, Washington Post, May 10).

May 15 – Gloves come off in Mich. high court race. We warned you it would get nasty (see May 9, Jan. 31), but not this soon. At a recent NAACP gathering, the Michigan Democratic Party circulated a flyer stating that incumbent Justice Robert Young opposes the 1954 U.S. Supreme Court decision in Brown v. Board of Education, which ended racial segregation in public schools. Young, who is African-American and whose record on the court has been conservative, terms the flyer “virulent race-baiting” and untrue and has demanded an apology. State Democratic chairman Mark Brewer dares Young to sue, but declines to name a source for the flyer’s characterization of his views on Brown. (Kathy Barks Hoffman, “Race for 3 spots on top court sparks charge of ‘race-baiting’”, AP/Detroit News, May 11; George Weeks, “Election of justices needs changing” (editorial), May 11).

May 12-14 – Microsoft opinion: the big picture. However well they’re doing in Judge Jackson’s court, Janet Reno’s trustbusters are getting slammed in the court of public opinion, which continues lopsidedly opposed to breakup. While a Harris poll finds less than 40 percent of respondents believing that Bill Gates’s company has treated its competitors fairly, that’s still a better rating than Joel Klein’s Antitrust Division gets: only one in three believe the government treated Microsoft fairly. (Paul Van Slambrouck, “High-tech trust-busting a bust with public today”, Christian Science Monitor, May 5; Manny Frishberg, “Public favors MS in antitrust”, Wired News, May 4). The Independent Institute’s Alex Tabarrok calculates that the loss in capital value of Microsoft as an enterprise amounts to $768 for every person in the United States, and that most of this sum can plausibly be attributed to the legal action rather than to business setbacks. (”The Anti-entrepreneurs,” May 1). Given that the rest of the high-tech sector has also taken a thrashing, economics Nobelist Milton Friedman says Silicon Valley “must rue the day that they set this incredible episode in operation” by siccing the government on their Seattle rival (statement reprinted at National Taxpayers Union site, April 28).

Does all this augur a revival of “vigorous”, sock-’em-hard antitrust enforcement, not much seen in the last couple of decades? If so, ABC’s John Stossel has some deserving nominees for breakup far more monopolistic than Windows ever was, including the U.S. Postal Service — yes, it’s still unlawful to compete with it in first-class service (”Give Me a Break: Government Protection?” (video clip), May 5). And Michael Kinsley wonders why the U.S. government, if it really takes trustbusting principles seriously, still takes such an indulgent, price-fixers-will-be-price-fixers approach toward OPEC — a genuinely noxious cartel that inflicts great damage on the American economy, and whose member countries (among them Russia, Norway, Venezuela and the spectacularly ungrateful Kuwait and Saudi Arabia) appear to suffer nary a repercussion in the conduct of U.S. foreign policy (”Readme: Oil Crooks”, Slate, March 27).

May 12-14 – Dismounted. “A therapeutic horse-riding program for 600 mentally impaired Oakland County children and teenagers is in jeopardy this summer, a potential victim of a liability impasse among lawyers and bureaucrats.” Parents praise the Silver Saddles program, but the county is unwilling to accept liability exposure for it, which could be financially catastrophic in the event of an accident to a young rider. (Hugh McDiarmid, Jr., “Riding-therapy program faces liability hurdle”, Detroit Free Press, May 5).

May 12-14 – Steady aim. Everyone who supports democracy — as well as everyone who opposes the abuse of litigation — should favor legislative measures aimed at reserving gun regulation to elected lawmakers rather than the machinations of ambitious trial lawyers, argues Vince Carroll of Denver’s Rocky Mountain News (”Gun bill puts halt to lawsuit abuse”, April 30). And Washington, D.C.’s Sam Smith, who shows regularly that there’s still life on the Left in his remarkable online Progressive Review (which we’re pleased to see often picks up items from this space), has put up a page of reasons “why politicians, moms, and progressives should stop pressing for more gun control laws” (”Wild Shots“).

May 11 – “Ad deal links Coke, lawyer in suit”. Both the Coca-Cola Co. and plaintiff’s attorney Willie Gary are denying a linkage between Gary’s role as a lawyer in the current high-profile race bias litigation against Coke and the company’s just-announced agreement — financial terms not disclosed — to become a major advertiser on a cable channel of which Gary is part owner. Last month amid fanfare the Florida lawyer arrived in Atlanta on his private jet (”Wings of Justice”) to assume representation of several of the original plaintiffs in the much-publicized employee litigation against the beverage company. “I want a settlement that’s fair and just,” he said then. “I don’t come cheap. I think big, real big.” On Tuesday Coke announced a major five-year deal to buy ads on the fledgling Major Broadcasting Cable Network, which Gary helped launch and of which he is chairman and chief executive. Gary says his clients are aware of the deal and says, “There’s absolutely no conflict. We’re not friends. We’re business people. Coke is not giving me anything. … It’s goods in exchange for service. … No way this is a conflict.’”

A sometime fund-raiser for the Rev. Jesse Jackson’s Rainbow/PUSH coalition, Gary is best known in legal circles for the ruinous $500 million verdict he obtained in a Jackson, Mississippi courtroom against the Loewen Group, a Canadian-owned funeral home chain, in what had previously seemed a routine commercial dispute (see our editor’s account). Last week he announced that he was demanding nearly $2 billion from the Burger King Corporation on behalf of Detroit restaurateur La-Van Hawkins, whose UrbanCityFoods business has not fared as well as expected in its operation of franchised hamburger units. Gary’s entry last month into the Coke case came at a time of unpleasant back-and-forth charges between some of the employees who were first to sue and class-action lawyers who had worked to assemble their and others’ complaints into a suit on behalf of the company’s entire black workforce, led by Washington, D.C.’s Cyrus Mehri, of Texaco fame (our account of that one), with the Mehri camp saying the individuals were holding out for too much money for themselves personally as distinct from the class, and a PUSH coalition activist, Joseph Beasley, countering that under the settlement anticipated from the class action the “lawyers get all the money” while “the black community is left high and dry”.

SOURCES: Henry Unger, “Ad deal links Coke, lawyer in suit”, Atlanta Journal- Constitution, May 10 (fee-based archive); Constance L. Hays, “Coke to Advertise on Channel Owned by Lawyer in Bias Suit”, New York Times, May 10, no longer online; Betsy McKay, “For Coke’s Big Race Lawsuit, a New Wild Card”, Wall Street Journal, April 14 (subscription); Beth Miller, “Cable network to focus on black families”, Media Central, Dec. 13; Trisha Renaud, R. Robin McDonald, and Janet L. Conley, “Money, Trust Behind Coke Split”, Fulton County Daily Record, April 14; “Burger King Has Greater Troubles: Internationally Renowned Trial Attorney Willie Gary Asks Burger King for $1.9 Billion”, Excite/PR Newswire press release from Gary’s firm, May 3; Eric Dyrrkopp and Andrew H. Kim, “Prospecting the Last Frontier: Legal Considerations for Franchisors Expanding into Inner Cities”, Franchise Law Journal, Winter 2000, reprinted at Bell, Boyd & Lloyd site.

May 11 – Tort fortune fuels $3M primary win. In Charleston, W.V., attorney and former state senator Jim Humphries has won the Democratic nomination in the Second Congressional District after investing $3 million from the fortune he made in asbestos litigation. Humphries’s “big-budget, slickly produced campaign” overpowered his primary rivals, who included one of the state’s best-known politicians, Secretary of State and former U.S. Representative Ken Hechler, as well as state senator Martha Walker, who chairs the state senate’s health and human resources committee; between them Hechler and Walker split about half the primary vote. The campaign “shattered all state records for spending in a congressional primary election.” Humphries now faces Delegate Shelley Moore Capito, R-Kanawha, who ran unopposed in the Republican primary. (Phil Kabler, “Humphreys’ $3 million pays”, Charleston Gazette, May 10).

May 11 – Stubbornness of mules a given. A federal court in North Carolina has dismissed a lawsuit by the producers of the soon-to-be-released film “Morgan’s Creek” against animal wrangler Alicia Rudd over the refusal of her trained mule to sit down on cue or cooperate in other ways on the set. The producers said the animal’s recalcitrance had prolonged shooting by an extra day, costing upwards of $110,000, but the judge said there was no proof that Rudd breached a promise or misrepresented her ability to control the mule. (”Judge finds stubborn mule no cause for action”, AP/CNN, May 8).

Related posts

• March 2000 archives, part 2 (1)
• July 2000 archives, part 2 (2)
• September 1999 archives, part 2 (0)
• September 2000 archives, part 3 (0)
• October 1999 archives, part 2 (2)

The February 11 Dallas Morning News does report that at the Baron event “the president had plenty of lawyers to chat with. He was seated at the head table with trial lawyer Trevor Pearlman, and law partners/life partners Debbie and Frank Branson, as well as his lawyerly hosts.” (”Clinton Says Senate Doing ‘Slow Walk’ on Nominees, Reuters/Excite, Feb. 9; Madeline Baro Diaz, “Clinton arrives in South Texas to discuss border issues, raise money”, AP/Fort Worth Star-Telegram, Feb. 10; Todd J. Gillman, “In Texas, Clinton blasts GOP”, Dallas Morning News, Feb. 10; Alan Peppard, “Backing Bill all the way”, Dallas Morning News, Feb. 11 (fee-based archive)).

February 14 – U.S. foreign policy, hijacked by lawsuits. Trial lawyers’ freelance pile-on of WWII-recrimination suits is undercutting America’s effort to maintain a coherent foreign policy, most recently in Japan, where U.S. Ambassador Thomas S. Foley has joined the Japanese government in rejecting an attempt to claim compensation in U.S. courts for maltreated American prisoners in World War II. “The peace treaty put aside all claims against Japan,” Foley pointed out. The continuing claims are generating dismay and an anti-American backlash among Japanese (as also among citizens of various European nations). By this point, however, the American litigation system has grown so vigorous in its assertiveness that mere treaties may not be very effective at reining it in. (Doug Struck and Kathryn Tolbert, “US envoy, Japan reject WWII veterans’ lawsuits”, Boston Globe (originally Washington Post), Jan. 19, link now dead; Richard Pyle, “Ex-POWs want Japanese firms to pay for ’slave labor’”, AP/Seattle Times, Sept. 15, 1999; “Anger as court rejects Allied POWs’ compensation suit”, CNN, Nov. 26, 1998) (see Sept. 20, Aug. 25, Feb. 5-6 commentaries).

February 14 – Improvements to our gun-litigation page. We’ve been continuing to add links to our subpage on firearms lawsuits. Included are the useful news-links page on gun issues maintained by the Colorado Shooting Sports Association, the special page on gun controversies at Jurist: The Law Professor’s Network, a bunch of choicely worded letters to the editor from the Detroit Free Press last summer responding to the NAACP’s suit, and Robert Levy’s Jan. 30 opinion piece for the National Law Journal, “Blackmail of gun makers“. In response to a suggestion from an attorney reader who protested, “We’re not all against gun rights, you know”, we’re also pleased to add a link to the Lawyers’ Second Amendment Society.

February 12-13 – AOL upgrade’s sharp elbows. America Online’s new 5.0 upgrade, like many other pieces of software, asks whether you want to make it your “default” program for the purpose; if you say yes, it alters your settings in ways that make it easier to use AOL but harder to use other Internet service providers you may have installed. Some users have found that the AOL “default” setting makes it remarkably difficult indeed to use rival ISPs, and some ISPs report spending hours helping frustrated customers trying to use their service after having installed AOL 5.0 over it.

Enter class-action lawyers, who’ve filed two distinct lawsuits: one on behalf of the roughly 8 million AOL customers who’ve already installed the new version, and the other on behalf of rival ISPs. The suit on behalf of individual users rather arbitrarily demands up to $1,000 for each user, and CNN rose to the bait by describing the suit in its headline as being for $8 billion — even though AOL claims that more than 90 percent of its users do not have accounts with other ISPs, which means they’re unlikely to have run into difficulties (at least if they’re not trying to connect over a LAN or corporate system). AOL says other ISPs’ software does the same thing as its does, and contends that the upgrade gives users a smoother Net experience which has reduced reports of technical problems overall. According to USA Today, one of the suits invokes a federal anti-hacking law which provides both criminal and civil penalties for anyone “who alters the programs or use of a computer used in interstate commerce,” quoting “Lloyd Gathings, a Birmingham, Ala., lawyer involved in the case.”

SOURCES: Brian McWilliams, “AOL Sued Over Networking Bugs in AOL 5.0″, InternetNews.com, Feb. 2 (& see same site, Oct. 6, 1999, Oct. 12, 1999, and Feb. 8, 2000, all links now dead); “AOL Sued over 5.0 Install”, Reuters/ZDNet, Feb. 2; Slashdot, Feb. 2 (bonus: thread includes link to this site); “Disgruntled AOL 5.0 users seek up to $8 billion in damages”, CNN.com, Feb. 2; “AOL sued over latest software”, USA Today, Feb. 2; Brooke A. Masters, “AOL Rivals File Suit Over Its New Software”, Washington Post, Feb. 8; Donna DeMarco, “AOL 5.0 problems boot up users’ ire”, Washington Times, Feb. 9, link now dead; Peter H. Lewis, “Takeover Artist”, New York Times, Feb. 10. The inevitable website by lawyers organizing the suits is called www.classactionversion5.com.

February 12-13 – Blue-ribbon excuse syndromes. Former Chicago City Treasurer Miriam Santos, once a rising star of the Democratic Party, has “blamed her now-overturned conviction on extortion charges on pre-menstrual syndrome….’I am human and probably the first woman to go to jail for PMSing,’” she told a news conference. (”Former treasurer blames PMS for crime”, UPI/Virtual New York, Feb. 7). A lawyer for New York City’s Dr. Allan Zarkin, charged with carving his initials into a sedated patient’s belly after delivering her baby by Caesarean section, says his client “has a “frontal lobe disorder” called Pick’s disease, an Alzheimer-like disease that causes personality and behavior changes and dementia.” (”Doctor charged in carving incident”, Reuters/Excite, Feb. 10; “Report: Woman Settles with Doctor”, Feb. 12). Vancouver Metis Indian Deanna Emard, convicted of stabbing her common-law husband to death, has gotten off without jail time because Canadian law now recognizes Indians’ cultural oppression as a mitigating factor in sentencing. (Neal Hall, “Metis woman avoids jail term for killing husband”, Vancouver Sun/National Post, Jan. 20). And in a recent U.S. News column, John Leo nominates 1999’s top ten claims of victimization, including several discussed previously in this space as well as additional contenders such as James Moore, a landscape gardener from upstate New York who raped and strangled a 14-year-old girl in 1962 and asked a judge last year for release from his life-without-parole sentence, arguing that exposure to insecticides made him do it. (”The top ten victims”, Jan. 31).

February 12-13 – The nutty professor. How does University of Wisconsin law professor Marc Galanter retain his position as the favorite academic of America’s trial lawyers? In part by his willingness to dispense to reporters quotes like the following: “Some who have studied the issue say that what Bush has called ‘the litigation explosion in Texas’ was nonexistent. ‘There is really no evidence that frivolous or totally unfounded lawsuits pose a significant problem,’ said [Galanter].” (George Lardner Jr., “‘Tort Reform’: Mixed Verdict”, Washington Post, Feb. 10). (tell the Post what you think).

February 10-11 – Antitrust obstacles to hacker defense. This week’s hacker attacks on Yahoo, E-Trade and other sites are likely to encourage proposals to establish surveillance of the Net by federal law enforcers, but a better reaction, according to MIT network manager Jeff Schiller, would be to roll back existing regulations that make it hard for operators to coordinate network security. “There needs to be a way network operators can [work together] in a way that’s immune from Sherman antitrust,” he said. “We had a situation at IETF (Internet Engineering Task Force) where we couldn’t have two people in the same room together by themselves since they were representatives of big competitors.” (Declan McCullagh, “Was Yahoo Smurfed or Trinooed?”, Wired News, Feb. 8) (second page of story).

February 10-11 – ADA vs. freedom of expression on the Web. The U.S. Department of Justice has indicated that a wide range of Internet activity may be subject to the Americans with Disabilities Act and its requirement that “reasonable accommodation” be provided to handicapped users (see Dec. 21 commentary). At a hearing before the House Judiciary Committee yesterday (Wednesday), panelists explained that a wide range of common page construction techniques currently cause websites to be “inaccessible”, including the use of undescribed visual and audio elements, image maps that lack text for hotspots, link text that does not make sense when read out of context (example: “click here”), graphs and charts that are not summarized, nondescriptive frames titles, and much more. The editor of this site, unlike several of the other witnesses, found it alarming that federal law should presume to enforce such rules on private web publishers. We’ll try to provide a fuller report on the hearing at a later point; in the mean time, we’ve posted our editor’s prepared statement.

February 10-11 – “Not-a-Lawyer”. Fast Company nominates it as among “Job Titles of the Future”, and it’s the official description on Rory Holland’s business card. Mr. Holland works for Canadian law firm Russell & DuMoulin in Vancouver, helping clients “figure out what role lawyers should play in their companies”. (Erika Germer, Fast Company, March).

February 10-11 – Gun litigation roundup. Free-Market.Net’s J.D. Tuccille has assembled a link-rich “Spotlight on Anti-Gun Lawsuits” feature (Jan. 6). At a gun industry trade show last month in Las Vegas, members vowed greater activism in fending off attacks on their business, including the formation of a legal defense fund under the auspices of the National Shooting Sports Federation to respond to courtroom bullying. (Melanie Eversley, “Gun dealers take aim at rash of anti-gun suits”, Knight-Ridder/Spokane Spokesman-Review, Jan. 19). And in a Cato Institute Daily Commentary, David Kopel counters some myths about the supposed “gun show loophole”. One Congresswoman has charged that 70 percent of guns used in crimes come from gun shows, but National Institute of Justice figures indicate the figure is 2 percent, Kopel says. Handgun Control, Inc. “claims that ‘25-50 percent of the vendors at most gun shows are unlicensed dealers.’ That statistic is true only if one counts vendors who aren’t selling guns (e.g., vendors who are selling books, clothing or accessories) as ‘unlicensed dealers.’” (David Kopel, “The Facts About Gun Shows”, Cato Daily Commentary, Jan. 10).

February 10-11 – Orange, soured. After representing bankrupt Orange County, Calif. and other public entities seeking to recoup investment damages, the L. A.-based law firm of Hennigan, Mercer & Bennett petitioned for an extra $48.7 million on top of its standard fee. In November U.S. District Judge Gary Taylor of Santa Ana issued an order allowing a mere $3 million of that request. What really stung was the judge’s language: he called the firm’s arguments for the enhanced fee “flawed”, “cynical”, and even “unethical” and “dishonorable”. The firm had already been accorded fees of $26.3 million based on hourly charges of up to $445 an hour for its work on the cases, but then placed a lien on the county’s recovery in quest of an additional $48.7 million as a “lodestar” multiplier to reward it for having achieved good results in the face of difficulty. “If lawyers in cases like these are paid only their straight hourly rates, they have less reason to maximize results for clients,” the firm said in a court filing, which prompted the judge to ask at oral argument: “Do you really believe that?” The judge’s subsequent fee opinion asserted that attorneys are obliged to do their best for clients whether or not the fee arrangement partakes of a contingency element: “anything less would be unethical and dishonorable.” Now there’s a revolutionary idea! A legal ethics expert says the judge is being “idealistic”. (Gail Diane Cox, “Firm Smacked by Judge Over Orange Bankruptcy”, Cal Law/The Recorder, Nov. 17).

February 8-9 – Litigious varsity. “High school sports should be a healthy, fun lesson in fair play, not a prep course for law school.” But parents and educators are running to court to get referees’ calls reversed, says a Boston Globe editorial. The Massachusetts Interscholastic Athletic Association reports that eight lawsuits arose in the last year alone from high school games. After a brawl during a recent hockey game between Melrose and Stoneham, several players were handed a two-game suspension, but a mother went to court and got a restraining order letting her son back on the ice, claiming he hadn’t been involved. In a case in Springfield, officials didn’t clear the legal paperwork allowing them to eject an offending player until the next game was about to begin and the National Anthem was playing, the player suited up and ready. (”Spoiled sports” (editorial), Boston Globe, Jan. 17, link now dead). And in Brunswick, Ohio, a father sued the coach of the Brunswick Cobras boy’s baseball team for leading the team to such a poor record. “Charles Settles, whose son, Kevin, was the catcher on the 16-year-old-and-under team,” went to small claims court asking $2,000, “the estimated value of a seven-day Florida trip the team could have made had it not lost every game — most by a 10-run ‘mercy’ rule.” A magistrate dismissed the action. (Stephen Hudak, “Losing season prompts dad to sue son’s coach”, Cleveland Plain Dealer, Jan. 9).

February 8-9 – From the dog’s point of view. A week ago we reported on dogbitelaw.com, a lawyer’s website that encourages persons bitten by dogs to sue the animals’ owners (see February 1 commentary). Now, for balance, here’s an excerpt from a Washington Times interview last week with Boston attorney Steven Wise, who heads an animal-rights group called the Center for the Expansion of Fundamental Rights. “Over the last 15 years, I have represented probably 150 owners of dogs who have been ordered executed or banished from their towns. People may have complained they bit someone or they bark excessively.

“Most people who have companion animals consider them family members. They come to me and say one of my family members has been ordered executed. We’ve managed to save the lives of every single one except for two people who didn’t stay with us.

“We try to convince judges to say it’s a good and safe thing for dogs to live with their families. We bring in an animal behaviorist and try to help the judge understand what happened from a dog’s point of view.”

The judges who hear these cases aren’t the only ones giving more consideration to the dog’s point of view; last week Harvard Law School kicked off its first-ever class in animal-rights law, with Mr. Wise as instructor. (”Animal rights lawyer unleashes profession”, Washington Times, Feb. 3, link now dead).

February 8-9 – Emails that ended 20 Times careers. MSNBC has posted this Wall Street Journal account of the New York Times’s mass firing of 23 employees, all but one of them in the company’s Norfolk, Va. outpost, found to have forwarded offensive e-mails, including sexually oriented images, blonde jokes and Ebonics jokes. One of the fired employees, former database security manager Carla Belgrave, “who is black, says she found the Ebonics jokes funny. ‘I don’t speak that way,’ she shrugs. ‘Who’s to tell me what I should be offended by?’”.

“Why are the Times and other companies so concerned about e-mail? One reason is their liability in harassment suits. One or two explicit e-mail messages typically aren’t enough by themselves to prove that a workplace environment was hostile. But such e-mail can bolster other damaging evidence. At a subsidiary of Chevron Corp., e-mail containing such jokes as ‘25 reasons beer is better than women’ were used along with other evidence in a sexual-harassment claim that was settled in 1995 for $2.2 million.” (Ann Cairns, “That bawdy e-mail was good for a laugh — until the ax fell”, MSNBC (highlights from WSJ.com), Feb. 4, link now dead). Also see Lisa Fried, “Employers Crack Down on Personal Internet Use”, New York Law Journal, Jan. 3; Christine A. Amalfe and Kerrie R. Heslin, “Courts start to rule on online harassment”, National Law Journal, Jan. 24).

February 8-9 – Court insists on summoning nine-year-old girl as juror. Her Brooklyn parents have been trying to explain for the past year that she’s too young to serve, but the paperwork grinds on as judicial officials insist that fourth-grader Alyson Fuchs report for her civic duty. Her mom, who thinks Alyson may have gotten on prospective-juror lists because she has college savings in a mutual fund, is giving up and bringing her in to the courthouse, which she’s eager to see anyway. (Bridget Harrison, “A Jury of Peers?”, Fox News/New York Post, Feb. 6) (via Reason Express)

February 7 – Mobile Register probes class-action biz. Alabama cases have figured prominently in complaints of class-action abuse and the Mobile Register deserves some sort of prize for the thorough investigation of the topic it published over the holidays in a five-day report written by Eddie Curran. The series contains too much good material to summarize in a single installment, so we’ll start with one chunk for now and come back for more later. (Impatient readers can find the entire series here: “On behalf of all others”, Mobile Register, Dec. 26-30).

The series includes a thorough airing of the famous BancBoston case of the mid-1990s, filed in Mobile, in which locally based lawyer John Sharbrough teamed up with the Chicago class-action firm of Daniel Edelman to accuse the large lender of retaining excessively high escrows for mortgage borrowers nationwide, one of many similar class actions filed at the time against mortgage lenders over escrow practices. Pressured by a rules change from the federal Department of Housing and Urban Development, BancBoston and other lenders agreed to reduce the escrows, thus allowing consumers earlier recoupment of money which they’d eventually have gotten back anyway. In the case of BancBoston, the repayments that were accelerated were estimated in the lawsuit at about $42 million, but the actual sum seems to have been lower.

For achieving this result, the class-action lawyers asked for more than $14 million, all of it deducted directly from consumer accounts; Mobile County Circuit Court Judge Braxton Kittrell wound up granting them more than $8.5 million of that request. Thus consumers around the country were billed what was often $100, $150 and more in exchange for benefits that included the refund of a few dollars interest (in no case more than $8.76) and the chance to use their funds somewhat earlier than would otherwise be the case — mere weeks or months earlier in the case of many who were near refinancing or selling their homes at the time.

How’d the lawyers pull it off? They hired as expert witness a local accountant who testified that the real economic benefit to a consumer of getting back a lump of money earlier than otherwise is equal to the total sum at issue — after all, once he had it in hand he could invest it and double his money! The lawyers could then claim fees equal to a third of this notional benefit. The witness also assumed that the bank would otherwise have held surplus escrows for twenty years before refunding them, though in fact most loans get paid off through refinances or home sales within a few years and many of the mortgages were of 15-year duration. Boston U. law professor Susan Koniak, who’s co-authored a law review article on the case, describes the resulting enrichment of lawyers as “so outrageous, it’s not even a close call”. When a Maine real estate broker and class member named Dexter Kamilewicz stepped forward to challenge it, however, Chicago lawyer Edelman countersued Kamilewicz personally for $25 million, cowing him into silence (see Nov. 15 commentary).

Prominent class-action lawyer Elizabeth Cabraser, who was not involved in the case, defended the current state of the system, telling the Register that the BancBoston case is “like urban folklore“, that it “did happen, but it continues to be brought out as an example of class action abuse when in fact there’s never been another case like it,” in her words. “There’s never going to be another BancBoston case, and there doesn’t need to be legislation to prevent that from recurring. It won’t. It was freak in every sense.”

But is that so? The Register had no trouble finding escrow cases against other mortgage lenders that led to outcomes very similar to those in BancBoston, but were given less publicity. In these cases, too, consumers found themselves docked hundreds of dollars for little evident benefit and complained in heated letters to the court. In truth, “the BancBoston case was not alone…some other Alabama judges — such as Montgomery County Circuit Court Judge Sally Greenhaw and Choctaw County Circuit Court Judge Harold Crow — approved similar settlements for the same lawyers, but avoided public scorn.” In a case against Colonial Mortgage, class lawyers asked judge to award them 40 percent of the escrow sums — an even higher share than in the BancBoston case. (”You win, you pay”, Dec. 29; “Bottom of the class”, Dec. 30; “Colonial customers rage at lawyer, judge”, Dec. 29).

February 7 – New subpage on Overlawyered.com: disabled-rights law. In which we pull together our reports on how students with clever parents get extra time on the SATs, the risk if you’re a merchant of not admitting an emotional-support dog to your shop, courthouses that hear handicap accommodation lawsuits but fail to comply with the law themselves, disability suits for boozing student athletes who don’t want to be thrown off the team, and other dispatches from the front lines of the Americans with Disabilities Act and related statutes. Incidentally, this Wednesday our editor is going to be a witness at a House Judiciary Committee hearing on the ADA’s application to the Internet. See our Dec. 21 commentary for a preview of his likely comments about the ominous implications of letting website publishers get sued on the grounds that their content isn’t sufficiently “accessible” to all users.

February 5-6 – Don’t blame us, we didn’t say it: “‘If criminals can rehabilitate themselves, then why can’t lawyers?’ — East Lansing attorney Steven A. Mitchell, quoted in Michigan Lawyers Weekly on a proposal to permanently disbar lawyers for misconduct.” The Detroit News ran the above item under the heading: “But I Repeat Myself”. (Editorial roundup, Jan. 22).

February 5-6 – Weekend reading: columnist-fest. More well-stated cases from the in-box:

* Laura Pulfer of the Cincinnati Enquirer, who admits to an occasional weakness for shopping sprees at outlet stores, receives a notice in the mail saying she’s a member of the plaintiff class in a class action against Polo Ralph Lauren Corporation. “I am allowing myself to get a little bit excited. This is a defendant with deep, deep pockets. And Mr. Lauren apparently has done something terrible, something really bad, something actionable, something expensive to me.” However, the prospective settlement merely promises a discount if she goes back for another splurge at the store (”Lawsuit just an invitation to go shopping”, Feb. 3). Bonus: the same columnist comments on animal-rights law (”Does your dog need services of a lawyer?”, Nov. 7) and on warning labels (”It’s impossible to outlaw sheer stupidity”, Feb. 18, 1999) (NPR Morning Edition version, Real Audio).

* “There’s scarcely an issue in international affairs this year more likely to induce a feeling of moral superiority in Americans than that of the dormant Jewish accounts in Swiss banks.” Yet the recently issued Volcker report reveals that the actual sums in such accounts fall “staggeringly short” of what had been alleged by American class-action lawyers. More remarkable yet, the United States was at least as important as Switzerland as a destination for money escaping Nazi rule, yet somehow escapes scrutiny though it did little after the war to compensate heirs of dormant accounts (Alexander Cockburn, “Forget About the Swiss; What About US Banks?”, NewsMax, Dec. 29).

* Good general brief overview by CBS News legal correspondent Andrew Cohen on why this country is so litigious and what might be done — he even mentions loser-pays. (”Americans going nuts for lawsuits”, USA Today, undated). It leads with this grabber: “The Girl Scouts now take customers to small claims court when cookie payments are not made on time.” We hope he’s just referring to one overzealous troop somewhere.

February 5-6 – 200,000 pages served on Overlawyered.com. Thanks for your support!

February 4 – Special assignments for special cases? Federal judges at the U.S. District Court in Washington, D.C. have now voted to require incoming cases to be assigned randomly among their number. Eyebrows were raised last year when it was revealed that chief judge Norma Holloway Johnson had used special procedures to bypass random selection and assign six Clinton Administration scandal cases to judges appointed by the Clinton Administration. Included were five fund-raising prosecutions, including that of presidential friend Charlie Trie, plus the tax evasion case of Webster Hubbell. In a letter to the editor of a newspaper, Judge Johnson said that she made the assignments to “move the docket as expeditiously as possible” and that politics was “never a factor.” (”U.S. judges end controversial rule that let Clinton appointees get Democrats’ cases”, AP/Dallas Morning News, Feb. 3).

February 4 – Jeff MacNelly. The premier editorial cartoonist of his generation is currently keeping to a reduced but regular output schedule while battling health challenges. His website allows you to send him a get-well message and browse an archive of his cartoons back to the middle of last year, including great panels on Microsoft, health care, tobacco, tobacco (again) and many more. Then there’s his oil painting of lawyers….

February 4 – Taco Bell bites back. In 1997 customer Dwonne N. Carter charged that she had been insulted because of her race by an employee at a Taco Bell in Oconomowoc, Wisconsin. Plenty of press coverage resulted, and the restaurant’s business fell off sharply. But Carter’s story in her discrimination lawsuit kept changing, and she turned out to have previously filed and then recanted charges of rape and abduction in another case. Taco Bell countersued for defamation and last month a jury found in the company’s favor, awarding it a token $1,060 in damages. The tapes from the restaurant’s surveillance camera proved particularly helpful. (Gretchen Schuldt, “Customer defamed Taco Bell, jury decides”, Milwaukee Journal Sentinel, Jan. 14).

February 4 – Green cards gather moss. Linus Torvalds, Finland-born architect of Linux and perhaps the world’s most admired programmer, has been in this country three years. He’s still waiting for his green card. Thousands of engineers and other highly skilled immigrants in Silicon Valley are in the same predicament, as delays stretch on seemingly endlessly in the processing of applications for permanent residency. The average wait for final green card processing has jumped from 21 months a year and a half ago to 33 months. Holders of H-1B visas can stay at most six years, which is not always long enough to make it through the queue. “Real lives are being destroyed,” says immigration attorney Peter Larrabee, and an Immigration and Naturalization Service official privately calls the situation “a mess”. At least no one can accuse us of discriminating unduly in favor of the talented. (Ken McLaughlin, “Workers left in limbo by INS”, San Jose Mercury News, Jan. 30, link now dead; Wired News, Feb. 1).

February 3 – Reason Online “Featured Site”. Overlawyered.com has just been awarded this honor, bestowed approximately weekly by the lively website associated with the magazine of “free minds and free markets”. While you’re visiting the site, now would be a good time to catch up with our editor’s February column, which examines the class-action lawyers’ assault on the high-tech business, taking off from the Toshiba laptop settlement and the private actions against Microsoft that tagged along in the wake of Judge Jackson’s findings of fact. (main page/archive; Walter Olson, “Gold Bugs”, Reason, February).

February 3 – Tobacco: Connecticut AG has “no idea” whether lawyers he hired are overcharging. Richard Blumenthal, attorney general of Connecticut, is much feared by that state’s business community for his relentless and headline-grabbing pace of suit-filing; he’s known for “demonizing his foes”. One group of business people in the state, however, will “do extraordinarily well” from his tenure: the “tiny group of private lawyers” whom he hired to represent the state in the tobacco litigation. Queried about how much money these lawyers are getting from the deal, Blumenthal says, “I have no idea.” He says he’s sure it’s “substantially less” than the generous 25 percent contingency he agreed to bestow on them, which if followed through would have given them $900 million (the firms agreed not to insist on that full amount). It happens that the four lucky law firms he picked to do the work include his own former firm, Silver, Golub & Teitell of Stamford. (Thomas Scheffey, “Jedi Blumenthal”, Connecticut Law Tribune, Dec. 1) (see February 16 update: fees to total $65 million, more details on lucky firms).

February 3 – Another pro bono triumph. Beat cop Jim Gratz says he was acting on his own initiative when, imitating a practice used by some other Bay Area police departments, he asked some of the hardest-core drinkers who slept in San Francisco’s Washington Square Park if he could snap their pictures. Then he had flyers printed up and handed them to owners of nearby liquor stores, asking them not to sell to these people. “Someone had to do something to try and save their lives…I have nothing against booze, but plainly it was killing them,” he says. Well, the homeless-advocacy lawyers were on his case like a duck on a June bug, and soon the city agreed to settle the resulting litigation by paying each of the ten people approximately $960, which they spent on…well, what do you think they spent it on? All are still on the street, Gratz says, and one was admitted to Laguna Honda Hospital nearly paralyzed with alcohol poisoning. (Scott Ostler, “Trying to Help Just Doesn’t Pay”, San Francisco Chronicle, Jan. 6).

February 2 – “Children’s rights” fee grab. In 1995, following front-page scandals about child neglect in New York City, a private group called Children’s Rights Inc. filed suit seeking court oversight of the city’s child welfare system. The case ended in a settlement in December 1998. Now Children’s Rights Inc. is asking a court to award it $9.1 million in legal fees for its work on the case, to be paid from — where else? — taxpayer funds. City child welfare commissioner Nicholas Scoppetta is particularly steamed about the fee demand because he says the city offered to settle the case in May 1997 on terms substantially the same as those eventually reached. Children’s Rights Inc. spurned that offer and insisted on battling for a further year and a half, during which time the group ran up what it says are $6 million in billable hours. Scoppetta says $9 million would be enough to hire 230 child welfare caseworkers, put 1,059 children in Head Start for a year or support 1,200 kids in foster care, if it isn’t handed to lawyers instead. (”Children’s rights is wrong” (editorial), New York Daily News, Feb. 1; “Children’s Advocacy Pays” (editorial), New York Post, Feb. 1; past Post coverage).

February 2 – Cookies, dunked. Privacy advocates have been aghast at the recent disclosure that Internet ad-placement firm DoubleClick is planning to combine cookie use with access to clients’ site-registration data in ways that will enable it to detect the actual identity of many users who currently enjoy the customary expectation of anonymity as they browse its clients’ sites. Already a California lawyer has jumped in to sue the company; his named client does not claim to have suffered any damages, but he says he wants to “put DoubleClick’s policies under a microscope.” Of course his client could just have gone to DoubleClick’s site and selected the “opt out” feature, which the company says will bail you out of its cookie-mongering for the life of your browser or until you delete your cookie file, whichever comes first. To repeat: if a privacy solution that simple happens to appeal to you, just press here and follow the “opt out” link. But that wouldn’t be nearly as much fun as suing, would it? (”DoubleClick defends data gathering as suit pends”, FindLaw/Reuters, Jan. 28; “Privacy group eyes DoubleClick”, Reuters/Wired News, Feb. 1). Update May 9, 2001: federal court dismisses one such suit.

February 2 – Cuomo menaces gun makers: “death by a thousand cuts”. Settlement talks have broken down between firearms makers and activist litigators who continue to seek restrictions on gun sales that go beyond anything they can persuade democratically elected legislatures to enact. On Monday HUD secretary Andrew Cuomo warned gun companies that unless they cooperate they’ll suffer “death by a thousand cuts” from lawsuits filed by 28 localities (and vocally backed by his own department). Could the Cabinet secretary be invoking the cost-infliction threat of litigation to bully an opponent? Naah — that would be unethical. (Bill McAllister, “Gun industry rejects settlement effort”, Denver Post, Feb. 1).

February 1 – Welcome Humorix (and Slashdot) visitors. Humorix, complete with penguin-graphic adornment, consists of parody and humor articles geared to aficionados of the Linux open-source operating system. Last week it ran a piece by Dave Finton and James Baughn about the DVD-copying-code litigation (see Dec. 31 commentary) which pointed to this site by way of providing an embedded link for the phrase “overachieving lawyers”. Then yesterday a discussion of the piece in turn made it onto Slashdot. Jeepers, do a lot of people ever read Slashdot: next thing we knew we were beating, by far, this site’s previous daily traffic record (assisted by some other publicity). (”Corporate Media Conglomerate HOWTO”, Jan. 26.)

February 1 – Give us Syracuse. Trial began last week in upstate New York on Cayuga Indian land claims, the first such Indian case to make it to a jury for damages. Lawyers for the tribe, backed by the U.S. Department of Justice, say they’re owed at least $335 million in market value and rental fees for lands in the Finger Lakes region bought from them in 1795 and 1807 in deals which the U.S. Supreme Court in 1985 voided as having lacked the federal government’s go-ahead as required by law. Waiting in the wings: similar (often larger) claims by the Oneidas, Mohawks, Senecas and Onondagas. Wrangling over the Onondaga claim promises to be especially lively because the large tract of land under dispute includes the city of Syracuse, New York’s fifth largest. “It’s in total violation,” says the Onondaga chief, referring to the 160,000-population community. (James Odato, “Land’s value at heart of Cayuga claim case”, Albany Times-Union, Jan. 25; David L. Shaw, “Damages trial focuses on cash”, Syracuse Online, Jan. 24; “Claim comes down to numbers”, Syracuse Online, Jan. 25; Matthew Purdy, “Tribal Justice? They’d Settle for Syracuse”, New York Times, Jan. 30; see our Oct. 5-6, Oct. 27 commentaries) (via Empire Page) (see update, Feb. 19-21).

February 1 – Down, attorney! Down! Here’s a site for you if you’re a mailman tired of having your leg chewed on, or just want to convince the neighbors to send that ill-tempered yapper of theirs to the glue factory: dogbitelaw.com. “Attorney Kenneth Phillips is available by e-mail at no charge. He will respond to your questions about dog bites,” explains the promotional copy. Lots of links, too, such as one to the website of a canine forensics specialist to testify in your lawsuit: dogexpert.com. (via The Recorder/Cal Law).

February 1 – Career advice: become a lawsuit entrepreneur. Columnist Jim Pinkerton tells the public-administration class of ‘00 they’re wasting their time thinking about civil service, when the real action in government today is in privately managed policy-through-lawsuits. “Why plow through discrimination cases in a back room at the EEOC, when you can join hands with Jesse Jackson and sue the pants off of some big company in a civil rights class action? Why work at the FDA and worry about drug approvals, when you can work at a law firm and share in billions after the drug is withdrawn and the suits are settled? Why lobby for gun control, when you can sue and put the gun makers out of business?” Why tinker with health care regulation when you can just file suit against HMOs and make yourself a player at the negotiation table overnight? Yes, it’s a parody, but just barely. (James Pinkerton, “Being a Bureaupreneur”, GovExec.com (Government Executive magazine), January).

Related posts

• March 2000 archives, part 2 (1)
• January 2000 archives, part 1 (0)
• September 2000 archives, part 3 (0)
• November 1999 archives, part 1 (1)
• August 1999 archives, part 2 (0)

Noted class-action objector Lawrence Schonbrun then appeared on behalf of a class member to challenge the fee payout as excessive; his arguments proved sufficiently persuasive that the judge eventually cut Weiss & Yourman’s fee by more than half, to $1.15 million. The law firm appealed, arguing that because its fee was the result of a separate side-deal with Occidental, rather than being deducted from a payout to the class, an individual class member (such as Schonbrun’s client) had no standing to object. This line of argument has been routinely offered in defense of “separately negotiated fee” class-action settlements, and it has a remarkable implication, namely that once the two sides’ lawyers have cut their deal behind closed doors, no one in the client class has any right to raise an objection to the fees obtained for representing them. Fees for representing a class, yet with no worry that anyone in the class will be able to bring a challenge to those fees — why, it’s like magic!

A little too magical for the Ninth Circuit: a “client whose attorney accepts payment, without his consent, from the defendants he is suing, may have a remedy,” wrote Judge Andrew Kleinfeld last month on behalf of a unanimous panel that also included Judge Alex Kozinski and Oregon district judge Owen Panner, sitting by designation. “The absence of individual clients controlling the litigation for their own benefit creates opportunities for collusive arrangements in which defendants can pay the attorneys for the plaintiff classes enough money to induce them to settle the class action for too little benefit to the class”. That’s where “the supervisory power of the district court” should come in, as “a mechanism for assuring loyal performance of the attorneys’ fiduciary duty to the class.” (Paul Elias, “$2 Million Fee Reduction Stands in Securities Case”, The Recorder/Cal Law, Oct. 20 — full story).

November 30 – Leave that mildew alone. It’s illegal to market “mildew-proof” paint for bathrooms and damp basements unless you go through the (extremely expensive) process of registering the paint as a pesticide, claims the federal Environmental Protection Agency, which is seeking $82,500 in penalties from William Zinsser & Co., Inc., a Somerset, N.J.-based paint manufacturer. (EPA Region 2 press release, Nov. 10).

November 30 – Update: sued columnist still disrespecting local attorneys. As reported earlier in this space, Swansea, Ill. lawyers Judy Cates and Steven Katz have filed a lawsuit demanding $1 million from St. Louis Post-Dispatch columnist Bill McClellan after a column in which he criticized their handling of a class-action suit against Publisher’s Clearing House and jocularly compared them to the James Gang of bank robbers (see Nov. 4 commentary). You’d think McClellan would have learned his lesson by now, especially with the case still pending, but no, he’s had the temerity to write another column criticizing the same lawyers, this time pointing out that numerous state attorneys general have intervened to fault their proposed settlement of the magazine-subscription suit. (”Regardless of suit result, my lawyers will have work”, Nov. 21 — full column)

November 29 – New subpage: Our overlawyered schools. Compiling news clips and commentaries on the legal headaches that beset teachers, students, principals, faculty and university administrators. Highlights include our ever-popular Annals of Zero Tolerance, special ed and the ADA, Title IX (From Outer Space), the role of litigiousness in undermining supervised recreation, the paralytic contribution of tenure laws, and other trends that tend toward the merger of schoolhouse, courthouse and madhouse.

November 29 – “Some lawyers try to make nice”. “Soon after EgyptAir Flight 990 plunged into the Atlantic Ocean, the personal-injury lawyers at R. Jack Clapp and Associates marshaled their resources and mobilized their forces. Faster than you can say class-action lawsuit, the Washington, D.C., firm, which specializes in aviation disasters, launched EgyptAir990.com — a Web site that at first blush appears primarily concerned with helping the bereaved deal with loss, but on closer examination is all about financial gain.” New York Times writer David Wallis devotes a “Week in Review” roundup to the legal profession’s efforts to repair its “sorry” image, lately impaired “by tacky late-night commercials for ambulance chasers; the legal lobby’s opposition to tort reform; and the one-two punch of the O.J. Simpson trial and the Monica Lewinsky scandal.”

The Ohio Bar, meanwhile, has sponsored a TV spot in which two children explain at school what their parent does for a living: one says his father “protects people”, like a police officer, and another says her mom “helps sick and hurt people”, like a doctor. It turns out that they’re . . . lawyers. So what is it that the opposing side’s lawyers do for a living? (David Wallis, “Some Lawyers Try To Make Nice”, New York Times, Nov. 28 — full story)(free, but registration required).

November 29 – “Wretched excesses of liability lawsuits”. Op-ed by the Philadelphia Inquirer’s David Boldt looks at “the ever-expanding litigation explosion” by way of some recent automotive cases, including the class action against DaimlerChrysler that recently resulted in a countersuit by the company (see November 12 commentary). On this summer’s Chevy Malibu verdict in Los Angeles, in which a jury voted $4.8 billion against General Motors, later reduced by a judge to $1.1 billion, Boldt offers a point of comparison we hadn’t previously seen: “The impact [of the Chevy's 70 mph rear-ending by a drunk driver] was the equivalent of dropping the car from the top of a 16-story building.”

Many accept the idea that the litigation boom offers compensating benefits — for example, “that our lives are made safer by the system because it makes companies more careful. Interestingly, there is no known evidence for this.” Boldt cites the Brookings Institution’s study “The Liability Maze” of eight years ago. “The editors — Peter Huber of the Manhattan Institute and Robert Litan of Brookings — wrote that none of the authors had found a demonstrable improvement in safety for Americans compared with nations that have less stringent liability-law systems. Nor did the authors find that the increase in liability suits had accelerated a decline in U.S. accident rates. I can find no subsequent study that has contradicted these conclusions.” (David Boldt, “We all end up paying for a litigious society”, reprinted in Baltimore Sun, Nov. 24).

November 26-28 – Oh, well, better luck next time. Illinois courts reviewing capital sentences “have repeatedly expressed dismay at the representation received by Death Row inmates at trial,” and this Chicago Tribune investigation brings to light a sad array of ways lawyers can drop the ball at a time when clients need their help most: missing deadlines, failing to develop exculpatory evidence, alienating judges, neglecting to disclose conflicts of interest, and much more. “Since Illinois reinstated capital punishment in 1977 . . . 33 defendants sentenced to death were represented at trial by an attorney who had been, or was later, disbarred or suspended — disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney’s license should be taken away.” If lawyers can perform this sloppily even when a client’s life is at stake, what must they be getting away with in lesser cases? (Ken Armstrong and Steve Mills, “Inept Defenses Cloud Verdicts”, Chicago Tribune, Nov. 15).

November 26-28 – Beware of market crashes. “Online brokerages are ‘probably’ financially responsible for computer outages that leave their customers unable to trade,” Securities and Exchange Commission Arthur Levitt said this week. Executives at online trading firms, reports the New York Post’s Jesse Angelo, “are terrified of lawsuits from customers claiming they lost money due to computer glitches. E*Trade has already been slapped with such a suit by an Ohio woman who attributes $40,000 in losses to computer problems at the online trading site. The suit seeks class-action status”. (Jesse Angelo, “Levitt: Web Brokers May Be on the Hook for Computer Crash”, New York Post, Nov. 23).

November 26-28 – Update: cannon shot OK. Administrators at Nevis High School in Minnesota have relented and agreed to permit a yearbook photo of Army enlistee Samantha Jones perched on a cannon draped with a U.S. flag, despite a policy of “zero tolerance” of depictions of weapons (see Oct. 30-31 commentary). “More than 100 students walked out of class Nov. 3 to protest the ban on the photo, leading to 50 suspensions,” AP reports. (”Fight over yearbook photo ends”, AP/Washington Post, Nov. 25 (link now dead)).

November 26-28 – Weekend reading: evergreens. Pixels to take to the mall or to peruse while resting off the big meal:

* Out-of-state defendants sued for more than $75,000 in a state court should be able to choose removal of the suit to a U.S. district court with its greater objectivity between local and nonlocal litigants, argues Phelps Dunbar partner Michael Wallace in one of the more promising proposals for liability reform we’ve heard in a while (Michael Wallace, “A Modest Proposal for Tort Reform“, from vol. 1, issue 3 of Federalist Society Litigation Working Group newsletter; at Federalist Society website).

* How to tell you’ve been the victim of a staged car accident: tips from a local CBS-TV affiliate’s story on “Los Angeles’ most unlucky driver” (you’re driving alone in a newer car, someone in one vehicle distracts your attention, a second older car with several passengers gets in front of you and suddenly slams brakes, none of the alleged victims carry photo IDs) and from investigator Jack Murray’s book on the subject (the incident occurred midblock, not in rush hour and with no eyewitnesses, struck vehicle “has had tire pressure in the rear tires lowered (causes more taillight damage and stops more quickly)”. (”Special Assignment: Staged Accidents“, Channel2000.com, March 28, 1998; Jack Murray, “Red flags: a 14 point checklist“, not dated, National Association of Investigative Specialists website).

* “Procedures And Rules Regarding Suits Against Public Entities” — well, okay, it’s a dry title for an undeniably dry outline of the steps involved in extracting money from City Hall, but you’ve got to admit it bears an interesting byline: Johnnie L. Cochran, Jr., whose success in litigating personal-injury cases both preceded and followed his better-known role in assisting O.J. Simpson to walk free of murder charges (website of California law firm Kiesel, Boucher and Larson LLP — full paper, undated).

November 24-25 – Don’t redeem that coupon! Under the heading, “Free money for doing nothing”, financial commentator Andrew Tobias writes, “If you’ve ever owned a Toshiba laptop — I’ve owned two — apparently you’re in line for $200-$400 because Toshiba has to pay us $2 billion because . . . well, because . . . I’m actually not going to claim my prize, because it doesn’t feel right. But, as noted over on overlawyered.com, it makes an interesting story.” (AndrewTobias.com, Nov. 24). Our coverage of the Toshiba laptop settlement ran Nov. 3, Nov. 5, Nov. 17 and Nov. 23.

November 24-25 – From our mail sack: memoir of a morsel. We’ve generally refrained from publishing on this site the many letters people send us describing their horrible personal experiences in court. Just this once, we’re going to break that rule and run this one from Paul Boyce of Tustin, Calif.:

“I am a small businessman, owner of a 3-employee business helping companies with their carpool programs (one of those employees is my wife). We were sued by an employee for wrongful termination 5 years ago, at a time when we had six employees. She had been working for me for only 6 months when I let her go. We went into binding arbitration, supposedly a low cost alternative to a jury trial. I lost. With penalties and interest, the judgment came to over $240,000. In 1998, I filed for Chapter 7 liquidation bankruptcy — there was no way I could pay that much! In fact, business revenues were down to 1/5 of what they were when she sued me. Last year I earned $60,000. My lawyer’s fees came to $55,000.

“In the bankruptcy, the only asset we had was our small-business retirement plan savings, amounting to about $350,000. What was astonishing was that the judge said that because my wife and I are in our mid 40s, we didn’t need the $350,000 — we could easily make it up! He based this on tables showing how long we could be expected to live versus how much we could be expected to make at hypothetical government jobs. So he ordered our retirement plan be handed over to the contingency fee lawyers to be split up. We’ve asked around and the best we can tell, the employee who sued us 5 years ago will get maybe $35,000 for her efforts. We counted a total of 4 contingency fee lawyers on her side.

“The result of all this is that I’ve decided to close the office and lay off my only employee. It’s just a lot easier and less risky to run the business out of our home.

“The legal system, with its strong preference for feeding the lawyers at the expense of morsels like me, shows me how far astray from the constitution our great country has strayed. It’s a parody of what the founding fathers had in mind when they clearly expressed their historic vision. Today, it’s all about the lawyers and how clever they are at shifting even more wealth their way.”

Paul and Sandy Boyce can be reached at Commuter Services Group, Tustin, CA.

November 24-25 – CNN “Moneyline”. Watch for our editor as a likely guest on this evening’s (Wed., Nov. 24) CNN Moneyline, discussing the continuing lawsuit boom.

November 23 – Class actions vs. high tech. “It had to happen: America’s most successful industry, high technology, is under sustained assault from America’s second-most successful industry, litigation.” The editor of this website has an op-ed in this morning’s New York Times, tackling the Microsoft and Toshiba class actions. (Walter Olson, “A Microsoft Suit with a Sure Winner”, New York Times, Nov. 23).

November 23 – Soros as bully. Add another prominent name to the list of philanthropists (see September 2 commentary) bankrolling the lawsuits that are fast driving family-owned gunmakers into bankruptcy: wealthy financier George Soros, who according to a Wall Street Journal report last month has donated $300,000 to keep the Hamilton v. Accu-Tek litigation going and also provided financing for the NAACP’s suit against gunmakers. (Paul M. Barrett, “Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21)

November 23 – Update: too obnoxious to practice law. The Nebraska Supreme Court has now heard the case of Paul Converse, who wants to become a lawyer though the state bar commission says he’s behaved in an “abusive, disruptive, hostile, intemperate, intimidating, irresponsible, threatening or turbulent” manner in the past (see Oct. 13 commentary). Last week the court agreed that Converse “seeks to resolve disputes not in a peaceful manner, but by personally attacking those who oppose him in any way and then resorting to arenas outside the field of law to publicly humiliate and intimidate those opponents.” Notwithstanding these high qualifications to practice in certain fields of American law, it turned down his application. They sure do things differently out in Cornhusker land (Leslie Reed, “Court: Law Grad Unfit for Nebraska Bar”, Omaha World-Herald, Nov. 20, link now dead)

November 23 – Get off my jury. “To win a decent verdict, Mr. Rogers [Chicago attorney Larry R. Rogers, Sr., who won $10.4 million for a client after a serious traffic accident] had to select the right jury…He never wants people from the banking industry, accountants and people in investment professions on his juries: ‘These people tend to think about the power of money, that if you give someone $100,000 and they invest it, it will earn something. They won’t give you full compensation for the injury.’ He was also sensitive to keeping off jurors who are anti-lawsuit: ‘I ask them is there anything they’ve heard in the media, in newspapers, about tort reform.’ …’They liked [his client], and juries tend to award damages to people they like.” (”Proving worth isn’t age-related” (profile of Larry R. Rogers Sr.), National Law Journal, Oct. 4.)

November 22 – From the planet Litigation. Courtroom jousting continues between a group that calls itself Citizens Against UFO Secrecy and the U.S. Department of Defense over CAUS’s charges that DoD has covered up incidents of possible intrusion by extraterrestrial spacecraft. CAUS has sued the government a half-dozen times over its alleged unresponsiveness to Freedom of Information Act (FOIA) requests regarding UFO sightings; on September 1 it added a complaint that the government has fallen short of its responsibilities under Article IV, Section 4 of the Constitution to defend the nation’s territory against foreign invasion. CAUS executive director Peter Gersten filed the action in his home state of Arizona, which “is definitely a targeted area for the clandestine intruders,” and is contemplating follow-on suits in New York and California. “I can prove in a court of law, and beyond a reasonable doubt, that we are in contact with another form of intelligence,” he says. CAUS’s site reprints affidavits, motions and other documents from the case, including illustrations of UFO sightings in Corpus Christi, Tex., Pahrump, Nev. (link now dead), and Seattle. (Robert Scott Martin, “CAUS Sues U.S. Over Secrecy”, Space.com, Sept. 1, link now dead; CAUS Sept. 1 press release.)

In a separate action, UFO researcher Larry Bryant of Alexandria, Va., who’s served as CAUS’s Washington, D.C. coordinator, has prepared a petition charging Virginia authorities with shirking their constitutional obligation to safeguard citizens from invasion by foreign powers. Bryant says Virginia governor James Gilmore III “knows that it’s against the law to abduct, torture, falsely imprison, wantonly impregnate and unconsensually surgically alter (via implants) a person. He also knows that he has the power to repel these invasive activities of apparently alien-originated UFO encounters.” Described by Space.com as a retired writer and editor of military publications, Bryant “takes pride in having ‘filed more UFO-related lawsuits in federal court than has anyone else in the entire universe.’” (Robert Scott Martin, “UFO Invasion Outcry Spreads to Virginia”, Space.com, Sept. 10, link now dead.)

CAUS’s Gersten has also described as “gratuitously demeaning”, probably “defamatory” and “actionable” an ad for Winston cigarettes this summer which made fun of alien-abduction believers, but declined to pursue legal action against the cigarettes’ maker, R.J. Reynolds. (”Cigarette Ad Sparks UFO Controversy”, Space.com, Sept. 28; “UFO Lawyer Unlikely To Sue Tobacco Company over Ad”, Oct. 1, links now dead).

November 22 –Vice President gets an earful. “One employee summed up the anguish over the case, saying, ‘when I read what the government says about Microsoft, I don’t recognize the company I work for.’ Another bitterly complained that the many subpoenas of Microsoft e-mail had invaded employees’ privacy more than any government wiretap, ’so that sharp lawyers can cut and snip bits of e-mail to construct whatever story they want’ in court. ‘We bugged ourselves’.” John R. Wilke, “Gore, Addressing Microsoft Staff, Defends Nation’s Antitrust Laws”, Wall Street Journal, Nov. 16).

The New York Times is reporting that class-action lawyers on the West Coast will sue Microsoft as early as today on behalf of a class of California end-users of Windows 95 and 98. The suit, which will ask treble damages for alleged overcharges, will be filed on behalf of a statewide rather than nationwide class because the U.S. Supreme Court’s 1977 Illinois Brick decision disallows federal antitrust actions on behalf of indirect purchasers of goods (most Windows users buy it preloaded on their machines, rather than direct from Microsoft). However, 18 states including California and New York have enacted statewide laws allowing such suits. (Steve Lohr, “Microsoft Faces a Class Action on ‘Monopoly’”, New York Times, Nov. 22 — free, but registration required).

November 22 – Great moments in zoning law. Officials in Millstone, N.J. have issued a summons to Lorraine Zdeb, a professional pet-sitter who took in nearly 100 animals from neighbors, clients and strangers to save them from the flooding of Tropical Storm Floyd, charging her with operating a temporary animal shelter in a residential neighborhood. (”Somerset County woman charged for taking in animals during storm”, AP/CNN, Nov. 20, link now dead).

November 22 – Repetitive motion injury Hall of Fame. Delicacy prevents us from describing exactly how this Fort Lauderdale, Fla. woman acquired carpal tunnel syndrome in the course of providing paid telephone companionship for lonely gentlemen, but it did not prevent her from applying for workers’ compensation benefits for which she obtained a “minimal settlement” this month. (Reuters/ABC News, Nov. 19, link now dead).

November 20-21 – Annals of zero tolerance: the fateful thumb. MeShelle Locke’s problems at North Thurston High School near Tacoma, Washington began Nov. 5 when she pointed her finger and thumb at a classmate in the shape of a gun and said “bang”. Asked if that was a threat, she saucily quoted a line from the 1992 movie “The Buttercream Gang”: “No, it’s a promise.” Before long, she was hauled up on charges of having threatened violence, drawing a four-day suspension and a disciplinary record that may affect her chances of getting into a competitive college.

A budding writer whose work appeared in the high-selling anthology Chicken Soup for the Kid’s Soul, and who says she’d never been in trouble with the school before, MeShelle might seem an unlikely source of menace, but school officials told her father that his daughter “fit the profile” of a potentially dangerous student: “For example, she often eats lunch alone or in a small group.” (Karen Hucks, “Gunlike gesture results in suspension”, Tacoma News-Tribune, Nov. 13; “School is no place for ‘bang-bang’ jokes”, Nov. 16, links now dead)

November 20-21 – From the evergreen file: L.A. probate horror. Wealthy art collector Fred Weisman was lucky he didn’t live to see the proceedings in a Santa Monica courthouse after his death “as his will and his estate are picked apart like a slab of pork thrown to buzzards.” (Jill Stewart, “Shredded Fred”, New Times L.A., Nov. 19, 1998, link now dead).

November 20-21 – No, honey, nothing special happened today. In early 1997 Denise Rossi startled her husband by announcing that she wanted a divorce. In the ensuing legal proceedings she forgot to mention — it just slipped her mind! — that eleven days before filing she’d happened to win the California lottery for $1.3 million. Two years later, her husband learned the truth when a misdirected Dear-Lottery-Winner letter arrived offering to turn his ex-wife’s winnings into ready cash. And this Monday a judge ruled that she’d have to hand it all over to her ex-husband, as a penalty for committing a fraud on him and on the court. She has since filed for bankruptcy proteciton. (Ann O’Neill, L.A. Times, reprinted in San Jose Mercury News, link now dead).

November 20-21 – Judge to lawyers in Miami gun suit: you’re trying to ban ‘em, right? “If you were to get exactly what you wanted, they’d be taken off the market entirely,” Circuit Court Judge Amy Dean told lawyers representing Dade County in its recoupment lawsuit against major gunmakers, by way of clarifying their position. (Jane Sutton, “Miami Gun Suit Could Take Firearms Off Market”, Reuters (link now dead), Nov. 16). Last month attorney John Coale, a spokesman for the municipal suits, “dismissed claims that the lawsuits could ever shut down the entire handgun industry. ‘It can’t be done, and it’s not a motive, because as long as lawful citizens want to buy handguns, and as long as the market’s there, there’s going to be someone filling it,’ Coale said.” (Hans H. Chen, “Colt’s Handgun Plan Heats Up Debate”, APBNews.com, Oct. 11) (see Oct. 12 commentary).

Dade County-Miami Mayor Alex Penelas, quoted in the new Reuters report, seemed to view the anti-democratic nature of the county’s lawsuit almost as a point in its favor: he “said he was using the courts in an attempt to crack down on the gun industry because the Florida legislature refused to do so. ‘Every year that I’ve gone to the legislature we have basically been told to take our case elsewhere,’ he said.” Much the same sentiment was expressed last month by Elisa Barnes, the chief lawyer behind the Hamilton v. Accu-Tek lawsuit in Brooklyn, N.Y. against gunmakers: “‘You don’t need a legislative majority to file a lawsuit,’ says Ms. Barnes.”" (”Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21 (requires online subscription))

November 20-21 – National Anxiety Center “Favorite Web Sites of the Week”. “I recommend a visit to www.overlawyered.com where you can get tons of data regarding how trial lawyers are destroying this nation out of nothing more than greed, greed, and greed. This excellent site will help you understand what’s happening to Microsoft, to the tobacco industry, the gun manufacturers, and much more.” — “Warning Signs”, the weekly commentary of Alan Caruba’s National Anxiety Center, for Nov. 19. Unabashedly conservative, Mr. Caruba’s popular site specializes in refuting environmental scares in outspoken style.

November 20-21 – 100,000 pages served on Overlawyered.com. We’d have hit this milestone earlier but our counter went on the fritz for a few days…thanks for your support!

November 18-19 – Worse than Y2K? “If the EPA succeeds in forcing a shutdown of the 17 coal-fired power generating plants it claims are illegally polluting,” editorializes the Indianapolis Star regarding the Clinton Administration’s recently filed lawsuit, “chances are very good the Midwest will experience major brownouts and rolling power outages on the next hot summer day.” Moreover, the “lawsuits were filed without warning [Nov. 3] by the Justice Department on behalf of the EPA. It was, quite simply, an unprecedented sneak attack on the electrical power industry” — yet one to which private environmental groups may have been tipped off in advance, given how ready they were to fire off a flurry of supportive press releases. EPA administrator Carol Browner and Janet Reno’s Justice Department now contend that utilities disguised expansions and upgrades of the grandfathered plants as routine maintenance, but a Chicago Tribune editorial says the modernizations were carried out with “the knowledge of federal environmental inspectors” whose superiors are now seeking to change the game’s rules after many innings have been played. If a looming Y2K glitch threatened to shut down a large share of the electric capacity of the Midwest and South, there’d be widespread alarm; when aggressive lawyering threatens to do so, few seem to care. (”EPA sneak attack”, editorial, Indianapolis Star, Nov. 5, link now dead; “A costly U-turn by the federal EPA”, editorial, Chicago Tribune, Nov. 13).

November 18-19 – Golf ball class action. Golf Digest is “disgusted” over a class-action suit that lawyers filed against the Acushnet Company because, after running out of a promotional glove sent free to customers of Pinnacle golf balls, it sent the remaining customers a free sleeve of golf balls instead. Fraud! Deception! Shock-horror! “In the end, the plaintiffs’ attorneys were awarded as much as $100,000 in fees for their heroic efforts, [Allen] Riebman and [Lawrence] Bober (as the two named plaintiffs) themselves received payments of $2,500 apiece, and everyone else received what the lawsuit claimed was unacceptable in the first place: another free sleeve of Pinnacles. That’s justice at work.” (”The Bunker”, Golf Digest, October 1 — link now dead)

November 18-19 – Skittish Colt. According to Colt Manufacturing, the historic American gunmaker battered by the trial lawyers’ onslaught, Newsweek got some things wrong in its report last month, which was summarized in this space Oct. 12 (see also Nov. 9 commentary). Colt denies that its dropping of various handgun lines constitutes an exit from the consumer market, and says “it will continue its most popular models, such as the single-action revolver called the Cowboy and the O Model .45-caliber automatics.” It gave a number for layoffs of 120-200 rather than 300, and suggested that the lines would have been dropped at some point even without the litigation pressure. (Robin Stansbury, “Arms Reduction at Colt’s”, Hartford Courant, Oct. 13, reprinted at Colt site). A statement by the company did not, however, dispute a quote attributed to an executive in the original reports: “It’s extremely painful when you have to withdraw from a business for irrational reasons.”

According to Paul M. Barrett in the Oct. 21 Wall Street Journal, Colt’s legal bills for defending the suits “are expected to reach a total of about $3 million in 1999 alone. Insurance will cover two-thirds of that, says [New Colt Holdings chairman Donald] Zilkha, but the remaining $1 million is a significant hit for a still-struggling company that expects to have net income of only about $2 million this year.” (”Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21). Update: for a closer look at Colt, see Matt Bai, “Unmaking a Gunmaker”, Newsweek, April 17, 2000.

November 18-19 – Law-firm bill padding? Say it isn’t so! Law professor Lisa Lerman of Catholic University in D.C. thinks lots and lots of overbilling goes on, even at big-name firms. “There’s a complete disconnect between the occurrence of misconduct and the rate of discipline,” she says. (Michael D. Goldhaber, “Overbilling Is a Big-Firm Problem Too”, National Law Journal, Oct. 4). One of Lerman’s case histories, if accurate, indicates systematic malfeasance in the methods by which an unnamed Eastern law firm generated time sheets to submit to its insurance-company clients. (Michael D. Goldhaber, “Welcome to Moral Wasteland LLC”, National Law Journal, Oct. 11).

November 18-19 – A lovable liability risk. Zoe, a golden retriever who for the past two years has accompanied Principal Jill Spanheimer at her office at West Broad Elementary School, and has made friends with practically all the kids over that time, has been banished by an administrative order of the Columbus, Ohio public schools. The school system’s letter to Ms. Spanheimer “cited ‘possible allergic reactions,’ ‘liability issues’ and ‘an uncomfortableness of some students and staff’ as reasons Zoe was expelled.” See if your heart doesn’t melt at the picture (Julie R. Bailey, “Principal’s dog expelled from elementary school”, Columbus Dispatch, Nov. 11). On Tuesday the board agreed to review the policy (Bill Bush, “Policy on animals in schools becomes pet project for board”, Columbus Dispatch, Nov. 17).

November 18-19 – Aetna chairman disrespects Scruggs. No love lost, clearly, between Richard Huber, chairman of Aetna, and Mississippi tobacco-fee tycoon Richard Scruggs, prominent in the much-hyped legal assault on managed care. Scroll down about halfway through this interview to find the bracketed “Editor’s Note” where the interviewer asks the chairman of the nation’s largest health insurer whether it was “by intention or mistake” that he’d consistently misreferred to Mr. Scruggs’ surname as “Slugs”. Knock it off, kids (MCO Executives Online, Oct. 27 — full interview).

November 18-19 – Welcome WTIC News Talk visitors (”Ray and Robin’s picks“). We’ve even got a few Hartford-related items for you: see the Colt and Aetna bits above, and this report summarizing an article from the Courant about how lawsuits are making it hard for towns around Connecticut to run playgrounds.

November 17 – “How I Hit The Class Action Jackpot”. “As the lucky co-owner of a Toshiba laptop computer, I should be tickled pink: I apparently qualify for a cash rebate of $309.90….And the beauty of it is that my Toshiba works just fine!….[S]o remote is the possibility that our laptop will ever seriously malfunction that I may not get around to downloading the free software ‘patch’ that Toshiba has provided as part of the settlement.” Don’t miss this scathing Stuart Taylor column on the mounting scandal of the $147.5-million (legal fees) laptop settlement. (National Journal, Nov. 15 — link now dead).

November 17 – Who needs communication? The Equal Employment Opportunity Commission steps up its campaign of complaint-filing over employer rules requiring employees to use English on the job. Synchro-Start Products Inc. of suburban Chicago has agreed to pay $55,000 to settle one such agency complaint; native speakers of Polish and Spanish make up much of its 200-strong workforce, and the company said it adopted such a policy after the use of languages not understood by co-workers had led to miscommunication and morale problems. The EEOC, however, pursues what the National Law Journal terms a “presumed-guilty” approach toward employer rules of this sort, permitting narrowly drafted exceptions only when managers can muster “compelling business necessity”, as on health or safety grounds. Earlier this year, a California nursing home agreed to pay $52,500 in another such case. In some early cases, employers adopted English-only policies after fielding complaints from customers who felt they were being bantered about in their presence or that non-English-speaking customers were getting preferential service — a problem which, like that of co-worker morale, may not necessarily rise in Washington’s view to the level of “business necessity”. (”EEOC Settles ‘English Only’ Workplace Suit For $55,000″, DowJones.com newswire, Nov. 12; Darryl Van Duch, “English-Only Rules Land In Court”, National Law Journal, Oct. 26.)

November 17 – Microsoft roundup. A critic of the giant company explains, not without glee, why the findings of fact mean so much as a template for private lawsuits: “Before last Friday, telling a jury that Microsoft is an evil, predatory organization that drove you out of business was a long, protracted procedure of walking a jury, step by step, through a crash course of how a technology company works; the importance of core technologies and leveraging them into a larger space, the nature of operating systems and related licensing and agreements, how Microsoft was able to exploit its position in the marketplace; and why this means that the plaintiff’s company was hoodwinked and not simply outmaneuvered. Today, you just have to call the jury’s attention to the document which your, their, and Bill Gates’ tax dollars helped to prepare.” (Andy Ihnatko, “The Wicked Witch Is Seeking Positive Spin”, MacCentral Online, Nov. 9).

Also: why bungling by IBM (especially) and Apple helped clear the way for Redmond’s dominance (Jerry Pournelle, “Jerry’s take on the Microsoft decision: Wrong!”, Byte, Nov. 8). And a Gallup Poll shows the public viewing Bill Gates favorably by more than three to one, siding with Microsoft on the trial by a 12-point margin, and opposing breakup of the company by a solid majority — as if any of that will matter to the folks in Washington (Ted Bridis, “Despite court loss, Microsoft moving ahead in public opinion”, AP/SFGate Tech, Nov. 10).

November 16 – What a mess! New Overlawyered.com subpage on environmental law. Our latest topical page assembles commentaries and links on the slowest and most expensive method yet invented to clean up fouled industrial sites, pay due respect to irreplaceable natural wonders, and bring science to bear on distinguishing serious from trivial toxic risks — namely, turning everything over to lawyers at $325 an hour. Also included are commentaries on animal rights, including our ever-popular drunken-parrot, crushed-insect, rattlesnake-habitat and eagle-feather reports — though at some point the menagerie of legally protected critters will probably get its own page.

November 16 – Baleful blurbs. Under well-established First Amendment precedent, it’s still nearly impossible to prevail in lawsuits against book publishers alleging that their wares are false and misleading — that, e.g., the diet book didn’t really make the pounds melt away, the relationship book resulted in heartbreak rather than nuptials, the religion book led the reader into spiritual error, and the celebrity autobiography bore only a passing relationship to strict historical truth. Were it otherwise, whole categories of book might never appear on bookstore shelves in the first place for fear of liability, including not a few works of public policy interest, such as, for example, the writings of certain early enviro-alarmists who predicted famine and exhaustion of world nonrenewable resources by 1985.

However, a recent decision in a California court may represent a breakthrough for plaintiff’s lawyers who’ve long hoped to expand publisher liability for printed untruths. The “Beardstown Ladies” were a mid-1990s publishing phenomenon in the well-worn genre of commonsense investment advice: a group of grandmothers in a small Midwestern town whose investment club was widely reported to have achieved stellar annual returns. Eventually a reporter for Chicago magazine investigated and found the Ladies had inadvertently inflated their returns, which turned out to be not especially stellar. Disney, their publisher, sent correction slips to booksellers, and the Beardstown craze was soon but a memory. The San Francisco law firm of Bayer, August & Belote, however, went to court on behalf of a customer to say that Disney had behaved falsely and deceptively by not yanking the book or at least its cover, which repeated the discredited claims.

Last month, reversing a lower court’s ruling, the state’s First District Court of Appeal ruled that although First Amendment law concededly protected the contents of the book, its cover blurbs were entitled to no such protection — even though the blurbs were in fact quoted verbatim from the book’s text. “Because the state has a legitimate interest in regulating false commercial speech, we conclude that the statements, as alleged, are not entitled to First Amendment protection,” wrote Justice Herbert “Wes” Walker. The Association of American Publishers had filed an amicus brief warning that such a ruling would “impose an affirmative obligation on publishers to investigate independently and guarantee the accuracy of the contents of the books if those contents are repeated on book covers and promotional materials.” (Rinat Fried, “Panel: You Can Judge Book by Cover”, The Recorder/Cal Law, Oct. 29). (DISCUSS)

November 16 – ‘Bama bucks. Per financial disclosure reports, six plaintiff’s law firms “donated about $4 million last year to six candidates through the state Democratic Party and political action committees”, according to the pro-tort reform Alabama Citizens for a Sound Economy. Tops was the firm of Jere Beasley of Montgomery, which gave “more than $1 million — $633,000 to the Democratic Party and $389,000 to two political action committees, Pro-Pac and Trial-Pac”. Other distributors of largesse included Cunningham, Bounds, Yance, Crowder & Brown of Mobile ($955,000), Hare, Wynn, Newell & Newton of Birmingham ($636,000); Pittman, Hooks, Dutton & Hollis of Birmingham ($526,000); Morris, Haynes, Ingram & Hornsby of Alexander City ($476,000); and King, Warren & Ivey of Jasper ($250,000). The money went to four judicial candidates, of whom two won, and to losing candidates for attorney general and lieutenant goveror. (Stan Bailey, “Group: 6 law firms gave $4 million to Demos’ run”, Birmingham News, Nov. 10) (earlier coverage of Alabama tort politics: Aug. 26, Sept. 1).

Related posts

• March 2000 archives, part 2 (1)
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• November 1999 archives, part 1 (1)
• September 2000 archives, part 3 (0)
• November 2002 archives, part 1 (1)