• Watch where you click: “Kentucky (secretly) commandeers world’s most popular gambling sites” [The Register/OUT-LAW]
• Erin Brockovich enlists as pitchwoman for NYC tort firm Weitz & Luxenberg [PoL roundup]
• U.K.: “Millionaire Claims Ghosts Caused Him to Flee His Mortgage, I Mean Mansion” [Lowering the Bar]
• Prosecution of Lori Drew (MySpace imposture followed by victim’s suicide) a “case study in overcriminalization” [Andrew Grossman, Heritage; earlier; some other resources on overcriminalization here, here, and here]
• Exonerated Marine plans to sue Rep. John Murtha for defamation [Pittsburgh Post-Gazette]
• Snooping on jurors’ online profiles? “Everything is fair game” since “this is war”, says one jury consultant [L.A. Times; earlier]
• Allentown, Pa. attorney John Karoly, known for police-brutality suits, indicted on charges of forging will to obtain large chunk of his brother’s estate; “Charged with the same offenses are J.P. Karoly, 28, who is John Karoly’s son, and John J. Shane, 72, who has served as an expert medical witness in some of John Karoly’s cases.” [Express-Times, AP, Legal Intelligencer]
• School safety: “What do the teachers think they might do with the Hula-Hoop, choke on it?” [Betsy Hart, Chicago Sun-Times/Common Good]

• Saying fashion model broke his very fancy umbrella, N.Y. restaurant owner Nello Balan sues her for $1 million, but instead gets fined $500 for wasting court’s time [AP/FoxNews.com, NY Times]
• Spokesman for Chesapeake, Va. schools says its OK for high school marching band to perform at Disney World, so long as they don’t ride any rides [Virginian-Pilot]
• More on Chicago parking tickets: revenue-hungry Mayor Daley rebuffed in plan to boot cars after only two tickets [Sun-Times, Tribune]
• Too old, in their 50s, to be raising kids? [Houston Chronicle via ABA Journal].
• Britain’s stringent libel laws and welcome mat for “libel tourism” draw criticism from the U.N. (of all places) [Guardian]
• Beaumont, Tex.: “Parents sue other driver, bar for daughter’s DUI death” [SE Texas Record, more, more]
• “Three pony rule”: $600,000 a year is needlessly high for child support, even if mom has costly tastes [N.J.L.J., Unfiltered Minds]
• Advocacy groups push to require health insurers and taxpayers to pay for kids’ weight-loss camps [NY Times]
• Lester Brickman: those fraud-rife mass screening operations may account for 90 percent of mass tort claims [PoL]

Lawyer/blogger Andrew Lavoott Bluestone, in his New York Attorney Malpractice Blog, noted and quoted a case in which Brooklyn lawyer Marina Tylo was (unsuccessfully) sued by a client for “serving a summons before buying the index number,” that being the wrong order in which to do things in New York. Tylo has proceeded to sue Bluestone for $10 million and several blogs have already 1) mentioned the strong privilege that attaches to fair reports of court proceedings and 2) suggested that Tylo will before long be well acquainted with the phrase “Streisand effect“. Coverage: Scott Greenfield, Eric Turkewitz, Mike Cernovich (more), Citizen Media Law Project, Ambrogi/Legal Blog Watch.

In March Peter Robbins, a retired homicide detective who blogs for Cape Cod Today as the Robbins Report, ran an item criticizing the law offices of Paul Revere III (yes, a descendant of you-know-who) and various local residents he represents, for having filed a procedural action seeking to stop the dredging of Barnstable harbor on environmental grounds. Robbins opines (to quote the post in its current form):

In my opinion this, NIMBY, frivolous, malicious action is doing nothing but stalling the inevitable and costing us the taxpayers unnecessary time and money. Millway Beach and Blish Point were pretty much created by past dredging. Perhaps if the town didn’t have to waste its time with foolish actions such as these, they would have been able to concentrate on the real issues and the bulkhead could have been saved. Who knows?

Robbins mocked the lawyer as “Paul (the dredge isn’t coming) Revere III” and, in the original version of the post — now altered — described one of the local abutters filing the dredge action, Joseph Dugas, as “infamous” with an added, unprintable opinion-based expletive. Now Revere and Dugas have sued Robbins and an anonymous third party who posted further hostile comments about the two. (James Kinsella, “Defamation suit filed against CC Today blogger, commenter”, Cape Cod Today, Aug. 29). Robbins is being represented by our very own Overlawyered guestblogger and Boston-area lawyer Peter Morin, who wrote in a response, “This matter is a textbook example of the justification for an anti-SLAPP statute that protects the right of individuals to comment on matters of significant public concern.” David Ardia at Citizens Media Law Project has an analysis which mentions Massachusetts’s existing anti-SLAPP provisions, and Dan Kennedy at Media Nation (via Ambrogi) takes a look at the case, observing that it’s hard to evaluate the merits of the defamation claim since we don’t know exactly how the blog post read before the publisher made deletions to it at the demand of the plaintiffs.

Finally, Chicago’s BlockShopper is a site that reports on real estate transactions in in-town neighborhoods, often with descriptions of the professionals buying and selling the homes and condos, a practice that has now drawn a lawsuit from the giant international law firm Jones Day. “The suit alleges trademark infringement and unfair trade practices, based on Blockshopper’s use of the firm’s [Jones Day's] service marks, links to its site and use of lawyers’ photos from its site.” Although BlockShopper removed all references to Jones Day, “the law firm continues to seek an injunction shutting down the site”. Unauthorized use of photographs and service marks presumably might give rise to valid claims, but the reference to “links to its site” may suggest a broader sweep, and in negotiations Jones Day is reportedly trying to extract a commitment from the site not to conduct journalism about its member lawyers’ real estate transactions at all. (R. David Donoghue, Chicago IP Litigation Blog, more; Ambrogi, Legal Blog Watch; Citizen Media Law Project).

His libel suit against the Boston Herald may have been a lucrative success, but the “fascinatingly repellent” letters he sent to the paper’s publisher drew the adverse attention of the state’s Commission on Judicial Conduct. [WSJ law blog, Aug. 21]. Full saga here.

More: Globe (Murphy, “who has said he suffers from post-traumatic stress because of his legal battle with the Boston Herald and the newspaper’s stories about him, has been on a paid leave of absence since July.”). The Herald’s coverage includes side stories on Murphy’s wish for a taxpayer-provided lawyer and the question of whether his cases will need to be reopened, as well as an unsparing Howie Carr column on the ins and outs of “involuntary disability” pensions for judges (”ask yourself this: If you or I wrote ‘allegedly threatening’ letters to somebody, would we get a disability pension, or a visit from the cops?”).

The WSJ Law Blog reports that the two Yale Law women suing AutoAdmit/XOXOHTH posters are “seeking to resolve their claims against these defendants” without amending the complaint to name their identities, obtained over the course of a variety of subpoenas.  Thus, the recent amended complaint named only a single AutoAdmit poster, Matthew C. Ryan, who had apparently refused to settle–perhaps because while Ryan’s comments were obnoxious, they were not legally actionable.

Someone correct me if I’m wrong, but isn’t it historically the case that someone who says “Pay me money or I will file a lawsuit and issue press releases that reveal private facts you find to be embarrassing” guilty of blackmail or extortion in other contexts?  What distinguishes this case–especially when the underlying allegations are so legally flimsy?

Welcome LA Weekly readers; this website is mentioned and I am quoted in a less-than-entirely-coherent story about mold litigation in this week’s LA Weekly. The story focuses on Sharon Kramer, who has given up a full-time career to pound the drums over her fight with her insurer alleging mold harms after a remediation; and an unfortunate lawsuit brought by scientist Bruce Kelman against Kramer. Kelman only wants an apology from Kramer for her issuing a press release that falsely claimed he lied under oath; Kramer has refused, and Kelman is still stuck in litigation where he will likely come up with a Pyrrhic victory. (Kelman’s work writing a layperson’s guide to the science of mold for the Manhattan Institute is central to the libel allegations.) Kramer, meanwhile, blames her aging on exposure to mold, rather than, say, turning 56. The story suffers for treating Erin Brockovich as the archetype of a justified plaintiff; Overlawyered readers know better.

The story is worthwhile for one new tidbit of information, the poetic justice facing Ed McMahon for his bogus mold lawsuit:

In 2003, another raft of huge mold news stories broke nationwide, and Kramer paid close attention. The most famous, and strangest, was that of Johnny Carson’s sidekick Ed McMahon, who took a $7.2 million settlement after suing for $20 million in his claim that mold made him and his wife sick — and killed his sheepdog, Muffin. …

In the McMahon case, some see the tragic unraveling of a popular public figure egged on by an attorney, Allan Browne. No hard, scientific evidence was ever made public proving that McMahon or his dog suffered the specific mold allergies and immune-system problems that, in rare cases, can be set off by household mold.

Since then, McMahon has become a sad figure, with a series of new troubles, including his default this year on his palatial 7,000-square-foot home on Mulholland Drive, involving a $4.8 million loan from the infamous lender Countrywide. And he just sued again, bizarrely accusing investment tycoon Robert Day of having in his mansion a poorly lit staircase on which McMahon says he fell during a party last year. McMahon is belatedly alleging he broke his neck but that doctors missed it.

The longtime TV pitchman spent years convincing the courts and the general public that his home contained rampant, poisonous, deadly mold strong enough to fell a large dog. McMahon talked it up for so long that he now faces the daunting task of selling a home he can no longer afford, that people believe is riddled with toxins.

Also interesting to me is the story’s quote of me. I gave an e-mail interview to the author, Daniel Heimpel in February. It’s interesting what gets used and what doesn’t get used, so I am going to attach the entire interview.

Here’s the full February 28 interview:

Continue Reading »

A judge in Westchester County, N.Y. (hey, that’s here!) has ruled on the circumstances under which libel complainants can employ compulsory process to unveil the identity of anonymous ill-wishers on blogs and online forums. In this case the plaintiff is Richard Ottinger, a former liberal Congressman who’s now the dean of Pace University Law School (NYLJ via Greenfield).

A Southfield, Mich. company named Park West has made a big business of conducting art auctions on cruise ships offshore, while leaving more than a few dissatisfied customers in its wake. Fine Art Registry, a subscriber website founded by Theresa Franks, has published some of those customer complaints as well as original articles warning of Park West’s practices. “In April the company sued Ms. Franks; Fine Art Registry’s lead writer, David Phillips; and a Dalí specialist that the site quoted, Bruce Hochman, for defamation.” And as so often proves to be the case when a business reacts to criticism by suing its critics, the suit has if anything stimulated further press curiosity about the business’s practices. (Jori Finkel, “Art Auctions on Cruise Ships Lead to Anger, Accusations and Lawsuits”, New York Times, Jul. 16). More: Donn Zaretsky, Art Law Blog.

Investigative journalism by the TV networks has been in decline, per Broadcasting & Cable, and the networks’ general enfeeblement is only one reason: targets of hostile journalism are now more apt to sic their lawyers on news operations. What gets chilled is not just the shoddy litigation-sourced reportage typified by the NBC “Dateline”-GM trucks scandal, but also more aboveboard and defensible coverage of business failings:

In 2003, “A Dangerous Business,” a [PBS "Frontline"] report examining the water and sewer pipe industry in Texas, kicked off a four-year legal battle. Reported by Bergman and accompanied by a Pulitzer Prize-winning New York Times series, the report detailed egregious workplace safety violations that caused systemic maiming and, in several cases, gruesome deaths of workers.

“That was a great drain and if it wasn’t for The Times, I fear that we might have been in a position where our insurance company would have said, why don’t we just settle this?” says Frontline executive producer David Fanning.

A Texas judge dismissed the suit last year. But Fanning and Bergman are now working to establish a pro-bono team of lawyers to help insulate Frontline from legal threats.

“It’s not that we’re not careful,” Fanning adds. “It’s a question of what it does to you the next time round. Do you find yourself pulling back? Do you find yourself looking over your shoulder?”

(Marisa Guthrie, “Investigative Journalism Under Fire”, Jun. 22).

Watch what you say about lawyers dept.: The high-profile mass tort firm of Napoli Bern Ripka and Associates LLP recently filed a defamation suit in Suffolk County, N.Y. against ex-client Scott Spielberg, a former cab driver who lives in Nevada.

The firm claims that Mr. Spielberg defamed the firm when he wrote to the office of the Manhattan district attorney asking prosecutors to open an investigation into what Mr. Spielberg alleges is the firm’s mishandling of earlier litigation involving the diet drug fen-phen.

The lawsuit also claims that Mr. Spielberg slandered the firm in conversations he had with a New York Times reporter, Anthony DePalma, who wrote a lengthy article about the involvement of a name partner at the firm, Paul Napoli, in the fen-phen litigation.

Yet, Mr. DePalma’s article doesn’t quote Mr. Spielberg or mention him at all. Napoli Bern is representing the vast majority of thousands of ground zero workers in their suits alleging that the city failed to protect them from toxins at the site that have caused respiratory and other illnesses. …

“They don’t want me to be able to talk to the press or law enforcement,” Mr. Spielberg said of the suit against him.

(Joseph Goldstein, “Seeking To Cut Off Criticism, Law Firm Sues Former Client”, New York Sun, Jun. 6).

• Canada free speech: Islamic group files complaint against Halifax newspaper over cartoon of burka-wearing terror fan; two more libel suits aimed at online conservative voices; growing furor over complaint against Steyn/Macleans [National Post]
• More than 5,000 students committed crimes last year in Philadelphia schools, but none were expelled — consent decrees tying system’s hands are one reason [Inquirer]
• U.K.: Man threatened with legal action for flying pirate flag as part of daughter’s birthday party [Guardian]
• Bankruptcy judge doesn’t plan to accept at face value Countrywide’s claim that it generated false escrow documents by mistake in foreclosure [WSJ, WSJ law blog]
• Amid bipartisan calls to step down, Ohio AG Marc Dann [Apr. 19, May 6] hires an opposition researcher [Adler @ Volokh] on top of Washington lobbyist [Legal NewsLine], after being rebuked by judge for political suit [Dispatch]. And where’s that ethics form on the Chesley flight? [Dayton Daily News]
• Missouri med-mal claims fall sharply after legislated damages curb [Springfield News-Leader]
• More on Dartmouth prof Priya Venkatesan, the one who wants to sue her students — as suspected, she’s a devotee of deconstructionist Science Studies [Allen/MtC; earlier]
• Covert plan to sabotage Chinese economy? [Wilson Center event]
• What, never? Well, hardly ever: Docs continue to assail notion that various complications such as patient delirium, clostridium difficile infection, iatrogenic pneumothorax, etc. — not to mention falls — are “never events” [KevinMD various posts; earlier]
• Mich. high court agrees anti-gay-marriage amendment bars municipal health benefits for domestic partners, just what key proponents had claimed it wouldn’t do [Rauch @ IGF, Carpenter @ Volokh, earlier]
• Private service rates the safety of charter air providers — but can it afford the cost of being sued after giving a bad rating? [Three years ago on Overlawyered]

AP @ Volokh, from Greece:

Three islanders from Lesbos … have taken a gay rights group to court for using the word lesbian in its name. …

“My sister can’t say she is a Lesbian,” said Dimitris Lambrou. “Our geographical designation has been usurped by certain ladies who have no connection whatsoever with Lesbos,” he said.

In libel slander and defamation

• “Dog owners in Switzerland will have to pass a test to prove they can control and care for their animal, or risk losing it, the Swiss government said yesterday.” [Daily Telegraph]
• 72-year-old mom visits daughter’s Southport, Ct. home, falls down stairs searching for bathroom at night, sues daughter for lack of night light, law firm boasts of her $2.475 million win on its website [Casper & deToledo, scroll to "Jeremy C. Virgil"]
• Can’t possibly be right: “Every American enjoys a constitutional right to sue any other American in a West Virginia court” [W.V. Record]
• Video contest for best spoof personal injury attorney ads [Sick of Lawsuits; YouTube]
• Good profile of Kathleen Seidel, courageous blogger nemesis of autism/vaccine litigation [Concord Monitor*, Orac]. Plus: all three White House hopefuls now pander to anti-vaxers, Dems having matched McCain [Orac]
• One dollar for every defamed Chinese person amounts to a mighty big lawsuit demand against CNN anchor Jack Cafferty [NYDN link now dead; Independent (U.K.)]
• Hapless Ben Stein whipped up one side of the street [Salmon on financial regulation] and down the other [Derbyshire on creationism]
• If only Weimar Germany had Canada-style hate-speech laws to prevent the rise of — wait, you mean they did? [Steyn/Maclean's] Plus: unlawful in Alberta to expose a person to contempt based on his “source of income” [Levant quoting sec. 3 (1)(b) of Human Rights Law]
• Hey, these coupon settlements are giving all of us class action lawyers a bad name [Leviant/The Complex Litigator]
• Because patent law is bad enough all by itself? D.C. Circuit tosses out FTC’s antitrust ruling against Rambus [GrokLaw; earlier]
• “The fell attorney prowls for prey” — who wrote that line, and about which city? [four years ago on Overlawyered]

*Okay, one flaw in the profile: If Prof. Irving Gottesman compares Seidel to Erin Brockovich he probably doesn’t know much about Brockovich.

As we discussed in Part IX, one of John Lott’s two claims was settled, when Steven Levitt apologized for e-mails he sent another economist. It’s questionable how much satisfaction Lott can get from this, since, as an economist, he surely realizes that, without a loser-pays rule or agreement, there is a pooling equilibrium whereby both the sincerely-apologizing Levitt and the insincerely-apologizing Levitt would take the same course of action to avoid spending tens of thousands of dollars defending a de minimis allegation of libel, regardless of the merits of the claim.

The more significant, if less meritorious, claim of libel in Freakonomics is on appeal; Lott is now claiming that the case should have been decided under the allegedly more friendly Virginia libel law than the Illinois law under which his claim fails, but that is generally an argument for (at best) a claim of legal malpractice, rather than for a do-over for an expressly waived argument in federal court. Lott has posted the briefs; David Glenn blogs about the 2-year mark in the case. Not that I think Lott has a valid legal malpractice claim, either, unless his attorneys told him he had a good shot at winning more than he would spend in legal fees.

Lott does interesting economic research, and it is unfortunate he is tarring his reputation with a lawsuit that has the potential to impinge upon academic freedom.

…can file defamation suits too. (”Perez Hilton Calls Blogger A Defamer”, The Smoking Gun; Jossip; WSJ law blog).

William Pentland’s Forbes article (see yesterday’s post) has sparked a fair bit of coverage, including: NAM “Shop Floor”, Mark Obbie’s LawBeat, Law and More, the Baton Rouge Advocate, Philadelphia personal injury firm Pomerantz Perlberger & Lewis LLP (proud of their city’s reputation as bad news for libel defendants), and KGBT (Harlingen, Tex.).

Forbes compiles its list and is kind enough to quote me at some length. Scariest of the scary? Los Angeles (ADA filing mills); Miami (med-mal); Atlantic County, N.J. (pharmaceutical); Starr County, Tex. (personal injury); Cook County, Ill. (product liability; I’m quoted on the Cook premium for otherwise routine injury cases); Mississippi (class actions; more properly, group and other mass actions, given the state’s peculiar way of handling such claims); Clark County, Nev. (construction litigation); West Virginia (environmental lawsuits); Philadelphia (I’m quoted on the city’s tradition of libel suits by public officials); (William Pentland, Forbes, Apr. 7; slideshow).

“The Massachusetts Commission on Judicial Conduct recommended a $25,000 fine, a 30-day suspension without pay and a public censure for state court Judge Ernest B. Murphy for sending improper letters to Boston Herald publisher Patrick J. Purcell that demanded settlement of Murphy’s libel lawsuit against the newspaper.” (Sheri Qualters, “Suspension, Fine Recommended for Boston Judge Who Sent Improper Letters to Newspaper”, National Law Journal, Apr. 2). For more on Judge Murphy’s “fascinatingly repellent” letters and their “‘Surrender, Dorothy’ flavor”, see Dec. 23 and Dec. 8, 2005.