Overlawyered » loser pays http://overlawyered.com Chronicling the high cost of our legal system Wed, 23 Apr 2014 15:58:05 +0000 en-US hourly 1 http://wordpress.org/?v=3.8.1 Ireland: judge rebukes “compensation culture gone mad” http://overlawyered.com/2013/12/ireland-judge-rebukes-compensation-culture-gone-mad/?utm_source=rss&utm_medium=rss&utm_campaign=ireland-judge-rebukes-compensation-culture-gone-mad http://overlawyered.com/2013/12/ireland-judge-rebukes-compensation-culture-gone-mad/#comments Fri, 20 Dec 2013 04:15:00 +0000 http://overlawyered.com/?p=43107 A court has awarded costs against a Dublin family that sued a restaurant for not warning that if they allowed their two-year-old to put her finger down the metal lid of a sugar dispenser, she might have trouble pulling it out again. The balky lid had to be cut off at a hospital. [Mirror] Tweet […]

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A court has awarded costs against a Dublin family that sued a restaurant for not warning that if they allowed their two-year-old to put her finger down the metal lid of a sugar dispenser, she might have trouble pulling it out again. The balky lid had to be cut off at a hospital. [Mirror]

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House passes Goodlatte patent troll bill http://overlawyered.com/2013/12/house-passes-goodlatte-patent-troll-bill/?utm_source=rss&utm_medium=rss&utm_campaign=house-passes-goodlatte-patent-troll-bill http://overlawyered.com/2013/12/house-passes-goodlatte-patent-troll-bill/#comments Fri, 06 Dec 2013 04:15:21 +0000 http://overlawyered.com/?p=42886 The vote was 325 to 91, with Reps. John Conyers (D-Mich.) and Mel Watt (D-N.C.) leading the opposition. Timothy Lee discusses in the Washington Post. While I haven’t tried to get into the details, the general drift looks quite good to me. One major provision requires those filing suits to plead with some specificity what […]

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The vote was 325 to 91, with Reps. John Conyers (D-Mich.) and Mel Watt (D-N.C.) leading the opposition. Timothy Lee discusses in the Washington Post. While I haven’t tried to get into the details, the general drift looks quite good to me. One major provision requires those filing suits to plead with some specificity what the infringement is; another provides for losing parties to compensate prevailing parties toward the cost of the litigation in more cases; yet another attempts to forestall expensive discovery in cases destined to fail on other grounds. Readers who recall my first book, The Litigation Explosion, will recall that I recommended procedural reform as the most promising way to address the incentives to overlitigiousness in our legal system and in particular identified lack of fee shifting, anything-goes pleadings, and wide-open discovery as among the system’s key deficits. So, yes, developments like this make me feel I was on the right track.

Equal time dept.: Richard Epstein takes a different view.

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Reining in patent litigation via fee shifts http://overlawyered.com/2013/11/fighting-patent-trolls-fee-shifts/?utm_source=rss&utm_medium=rss&utm_campaign=fighting-patent-trolls-fee-shifts http://overlawyered.com/2013/11/fighting-patent-trolls-fee-shifts/#comments Tue, 12 Nov 2013 04:18:45 +0000 http://overlawyered.com/?p=42470 Prevailing parties in patent suits can win attorneys’ fees from losing opponents in cases deemed “exceptional.” “Under the test used to identify exceptional cases, cases must be objectively baseless and brought in bad faith.” That is already a painfully narrow exception, allowing for large volumes of poorly founded litigation, but two cases before the Supreme […]

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Prevailing parties in patent suits can win attorneys’ fees from losing opponents in cases deemed “exceptional.” “Under the test used to identify exceptional cases, cases must be objectively baseless and brought in bad faith.” That is already a painfully narrow exception, allowing for large volumes of poorly founded litigation, but two cases before the Supreme Court this term may provide clarity on when courts can deem cases “exceptional” and suitable for a fee shift. Broader use of fee shifts — presumably by way of deeming at least some swath of losing cases “exceptional” — would be one way of addressing the patent troll problem that would not call for new legislation. [ABA Journal, related, Corporate Counsel (arguments that judiciary can deal with trolls on its own]

In other developments, the Federal Trade Commission has voted to proceed with an inquiry into the patent troll problem [New York Times] and the Government Accountability Office has released a long-awaited report on the issue [Mike Hogan and Gregory Hillyer, Legal Intelligencer]

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Patent trolls roundup http://overlawyered.com/2013/09/intellectual-property-ii/?utm_source=rss&utm_medium=rss&utm_campaign=intellectual-property-ii http://overlawyered.com/2013/09/intellectual-property-ii/#comments Fri, 06 Sep 2013 04:05:17 +0000 http://overlawyered.com/?p=41297 “The Web’s longest nightmare ends: Eolas’ patents are dead on appeal” [Joe Mullin, Ars Technica] Another E.D. Tex. jury: “Lawyer Explains How To Bag A Patent Troll At Trial” [Daniel Fisher] Practical steps? “Trolling Effects” database modeled on “Chilling Effects”. Prior art clearinghouse [Joel Spolsky] Vermont, Nebraska AGs rattle sabers on behalf of local businesses […]

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  • “The Web’s longest nightmare ends: Eolas’ patents are dead on appeal” [Joe Mullin, Ars Technica]
  • Another E.D. Tex. jury: “Lawyer Explains How To Bag A Patent Troll At Trial” [Daniel Fisher]
  • Practical steps? “Trolling Effects” database modeled on “Chilling Effects”. Prior art clearinghouse [Joel Spolsky] Vermont, Nebraska AGs rattle sabers on behalf of local businesses [WaPo]
  • Meanwhile, from the other side: “The Myth of the ‘Patent Troll’ Litigation Explosion” [Adam Mossoff, Truth on the Market] “A Line in the Sand on the Calls for New Patent Legislation” [Wayne Sobon, Center for the Protection of Intellectual Property; CPIP video interviews with retired Federal Circuit Chief Judge Paul Michel and retired Federal Circuit Judge Arthur Gajarsa]
  • Grocers, restaurants, retailers enter fray with anti-troll ad campaign [David Balto/U.S. News, Katy Bachman/AdWeek, Food Marketing Institute]
  • Manhattan Institute weighs in with “Trial Lawyers Inc.” entry [Point of Law; Jim Copland, Politico]
  • When “set up as shell companies without much in assets” trolls might not be likely targets for fee recovery at lawsuit’s end; and what’s this about offshore bank accounts? [Todd Moore]
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    What the US can learn from Canada’s approach to law http://overlawyered.com/2013/08/what-us-can-learn-canadas-approach-law/?utm_source=rss&utm_medium=rss&utm_campaign=what-us-can-learn-canadas-approach-law http://overlawyered.com/2013/08/what-us-can-learn-canadas-approach-law/#comments Sat, 10 Aug 2013 11:20:44 +0000 http://overlawyered.com/?p=40528 More coverage for the Frank Buckley-edited new book on overlegalization, The American Disease [Richard Reinsch/Library of Law and Liberty, Alejandro Chafuen/Forbes] Here’s Buckley in the National Post: If litigation rates are four times smaller in Canada than the United States, this should not occasion surprise: Subsidize something and you get more of it; penalize it […]

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    More coverage for the Frank Buckley-edited new book on overlegalization, The American Disease [Richard Reinsch/Library of Law and Liberty, Alejandro Chafuen/Forbes] Here’s Buckley in the National Post:

    If litigation rates are four times smaller in Canada than the United States, this should not occasion surprise: Subsidize something and you get more of it; penalize it and you get less of it.

    Differences in legal ethics matter, too. In America, more than elsewhere, lawyers are encouraged to advance their client’s interests without regard to the interests of justice in the particular case or broader social concerns. American lawyers’ professional culture is unique in permitting and implicitly encouraging them to assert novel theories of recovery, coach witnesses, and wear down their opponents through burdensome pretrial discovery.

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    Medical roundup http://overlawyered.com/2013/07/medical-roundup-13/?utm_source=rss&utm_medium=rss&utm_campaign=medical-roundup-13 http://overlawyered.com/2013/07/medical-roundup-13/#comments Thu, 25 Jul 2013 04:05:16 +0000 http://overlawyered.com/?p=39948 Crisis of sterile injectables rages on, among victims are premature infants who need parenteral nutrition [Washingtonian ("Even if the FDA’s doing something terrible, we can’t criticize them. They regulate us.") via Tabarrok, earlier here, here, here, etc.] “Tweets not medical advice” [@Caduceusblogger via @jackshafer] “Why Your Dog Can Get Vaccinated Against Lyme Disease And You […]

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  • Crisis of sterile injectables rages on, among victims are premature infants who need parenteral nutrition [Washingtonian ("Even if the FDA’s doing something terrible, we can’t criticize them. They regulate us.") via Tabarrok, earlier here, here, here, etc.]
  • “Tweets not medical advice” [@Caduceusblogger via @jackshafer]
  • “Why Your Dog Can Get Vaccinated Against Lyme Disease And You Can’t” [Curt Nickisch, WBUR]
  • Cites distinctive Connecticut law: “Hospital Successfully Sues its Patient’s Attorneys for Filing a Vexatious Malpractice Suit” [Alex Stein, Bill of Health]
  • Should adversarial medical examinations be videotaped? [Turkewitz]
  • “Lawyers Have Learned To Distort Pharmacovigilance Signals” [Oliver on FDA Adverse Event Reporting System (FAERS), earlier]
  • Causation from nasal decongestant at issue: “Judge orders UW to pay $15M to Snoqualmie family” [KING5]
  • “The ban on compensated transplant organ donation has led to hundreds of thousands of excess deaths. A ban on compensated sperm and egg donation would lead to a dearth of lives.” [Alex Tabarrok, related on Canada]
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    Intellectual property roundup http://overlawyered.com/2013/06/ip-roundup/?utm_source=rss&utm_medium=rss&utm_campaign=ip-roundup http://overlawyered.com/2013/06/ip-roundup/#comments Tue, 18 Jun 2013 04:05:33 +0000 http://overlawyered.com/?p=38714 “Make patent trolls pay in court” [Judge Randall Rader, Colleen Chien, and David Hricik, NYT] “Let’s play”: Nintendo claims “monetization rights” to fans’ videos on YouTube [Doctorow, BoingBoing] I only read it for the cease and desist notices: University of Kansas lawyers go after Twitter feed featuring suggestive display of university licensed apparel [Gawker] Alleged […]

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  • “Make patent trolls pay in court” [Judge Randall Rader, Colleen Chien, and David Hricik, NYT]
  • “Let’s play”: Nintendo claims “monetization rights” to fans’ videos on YouTube [Doctorow, BoingBoing]
  • I only read it for the cease and desist notices: University of Kansas lawyers go after Twitter feed featuring suggestive display of university licensed apparel [Gawker]
  • Alleged misdeeds of Prenda Law just got even stranger [Mike Masnick, TechDirt, earlier; Nate Anderson ArsTechnica] Piling up statutory damages, experimental suit-filing, cost infliction? Copyright mills like Prenda didn’t invent any of that [Mitch Stoltz, EFF]
  • “Here’s the Chipotle Ramen Concept Lawsuit, in Full” [Eater]
  • “Help the EFF save podcasting from a patent troll” [Mark Frauenfelder]
  • Semi-defense of Craigslist suits against competitors [Jerry Brito]
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    “Massive lawsuit against bloggers is reined in” http://overlawyered.com/2013/05/massive-lawsuit-bloggers-reined-in/?utm_source=rss&utm_medium=rss&utm_campaign=massive-lawsuit-bloggers-reined-in http://overlawyered.com/2013/05/massive-lawsuit-bloggers-reined-in/#comments Sat, 18 May 2013 16:15:19 +0000 http://overlawyered.com/?p=38449 A lawyer who’d been widely and scathingly criticized over his handling of a case — unfairly he thought — proceeded to sue bloggers and journalists for defamation, so many that the total of defendants reached 74. It’s over now, but a New York state judge declined to award sanctions, which may possibly say something about […]

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    A lawyer who’d been widely and scathingly criticized over his handling of a case — unfairly he thought — proceeded to sue bloggers and journalists for defamation, so many that the total of defendants reached 74. It’s over now, but a New York state judge declined to award sanctions, which may possibly say something about the difficulty of obtaining sanctions under today’s prevailing legal standards, especially in New York. [Tom Crane, San Antonio Employment Law Blog; Popehat ("Our legal system is so broken that it can take years to resolve even the most patently vexatious, harassing, and incompetently prosecuted lawsuits like this one.")]

    P.S. “Loser pays would have been valuable here. Costs to each defendant would teach a memorable lesson.” [@erikmagraken]

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    Attorneys’ fees roundup http://overlawyered.com/2013/04/attorneys-fees-roundup/?utm_source=rss&utm_medium=rss&utm_campaign=attorneys-fees-roundup http://overlawyered.com/2013/04/attorneys-fees-roundup/#comments Tue, 23 Apr 2013 04:07:52 +0000 http://overlawyered.com/?p=35720 We’re worth it: lawyers in credit card case want judge to award them $720 million [Alison Frankel, Reuters] Johnson & Johnson will fight $181 million payday for private lawyers in Arkansas Risperdal case [Legal NewsLine] British Columbia, Canada: “Lawyer Ordered To Pay Costs Personally For ‘Shoddy Piece Of Counsel Work’” [Erik Magraken] Ontario client questions […]

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  • We’re worth it: lawyers in credit card case want judge to award them $720 million [Alison Frankel, Reuters] Johnson & Johnson will fight $181 million payday for private lawyers in Arkansas Risperdal case [Legal NewsLine]
  • British Columbia, Canada: “Lawyer Ordered To Pay Costs Personally For ‘Shoddy Piece Of Counsel Work’” [Erik Magraken] Ontario client questions lawyer’s fee [Law Times]
  • Sixth Circuit: attorneys fees statute not intended to cover dry cleaning and mini-blinds [Legal Ethics Forum]
  • Indiana lawmaker goes back to drawing board on loser-pays bill [Indiana Law Blog]
  • ‘Shocked’ by $3M legal fee in fatal car-crash case, judge tells lawyers to pay plaintiff lawyer $50K [ABA Journal]
  • Seth Katsuya Endo, “Should Evidence of Settlement Negotiations Affect Attorneys’ Fees Awards?” [SSRN via Legal Ethics Forum] /li>
  • In Israel, more of a discretionary loser-pays arrangement [Eisenberg et al, SSRN via @tedfrank]
  • British cabbie beats ticket, recovers only some of his legal costs. Still better than he’d do here, right? [Daily Mail]
  • Turnaround guru Wilbur Ross: current structure of bankruptcy fees encourages lawyer “hyperactivity” [Reuters]
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    Will loser-pays bring down notorious copyright troll? http://overlawyered.com/2013/04/will-loser-pays-bring-notorious-copyright-troll/?utm_source=rss&utm_medium=rss&utm_campaign=will-loser-pays-bring-notorious-copyright-troll http://overlawyered.com/2013/04/will-loser-pays-bring-notorious-copyright-troll/#comments Fri, 19 Apr 2013 11:07:26 +0000 http://overlawyered.com/?p=37642 Cathy Gellis, guesting at Popehat, has a long post on the latest in the Prenda Law saga. A relevant paragraph: The default rule in American litigation is that everyone pays for their own lawyers. But some laws, the Copyright Act being one of them, have provisions so that the loser pays for both sides’ lawyers. […]

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    Cathy Gellis, guesting at Popehat, has a long post on the latest in the Prenda Law saga. A relevant paragraph:

    The default rule in American litigation is that everyone pays for their own lawyers. But some laws, the Copyright Act being one of them, have provisions so that the loser pays for both sides’ lawyers. … But just because a judge may grant an award of attorney fees doesn’t mean the money will ever be recovered; enforcing a judgment often presents its own expensive challenges, meaning a wronged defendant can still be saddled with the costs of his own defense. However the California Code of Civil Procedure has a provision, § 1030, to help mitigate that financial risk by allowing defendants in similar positions as Mr. Navasca [a man seeking fee recovery from Prenda Law over a questionable copyright action] to require plaintiffs to make an “undertaking;” that is, to post a bond that would guarantee, when the defendant inevitably wins his fees, that he would actually get the money.

    Both provisions could prove important in bringing the rogue legal enterprise to heel. If only other areas of law besides copyright had loser-pays, and other states besides California emulated the “undertaking” idea. Earlier on Prenda Law here and here.

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