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Michael Hausfeld

Microblog 2008-11-11

by Walter Olson on November 11, 2008

  • Christopher Hitchens: once utopian electoral buzz wears off, nation’ll face pretty much same set of problems as before [Slate] #
  • Business preparing to play defense in D.C. on 3 big battlefronts: labor/empt law, arbitration, preemption [NLJ] #
  • Pretty neat, Google Reader now translates foreign-language blogs for you [SearchEngineLand h/t @mike_elgan] #
  • @gideonstrumpet it’s one of the “laws” of blogging — very hard to predict beforehand which posts’ll draw the biggest traffic #
  • “Lawyer Hausfeld Learned of Firing as Chairman From Note on Seat” [Securities Docket] #
  • If transcript “is held face down and shaken, thousands of confusion flakes will drift to the ground like snowflakes” [Lowering the Bar] #
  • Jamie Gorelick, mentioned as possible AG pick, would bring baggage [Althouse] #
  • GM-Chrysler merger = idea that pair of boozers can fix drinking problem by getting married to each other [McArdle] #

September 3 roundup

by Walter Olson on September 3, 2008

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Hard-hitting column by Stuart Taylor, Jr. on the destructiveness of the current legal actions

seeking more than $400 billion from companies that did business in South Africa during apartheid, [which] score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:

• The lawsuits will do victims of wrongdoing little or no good.

• They will penalize no human being who has done anything wrong.

• They will deter more conduct that is beneficial than harmful.

• The legal costs and any damages will come at the expense of the general public.

• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.

American Isuzu Motors v. Ntsebeza, recently allowed to go forward, is being led by (among others) class-actioneer and frequent Overlawyered mentionee Michael Hausfeld.

The apartheid lawsuit is one of dozens seeking to pervert the Alien Tort Statute to mulct companies for ordinary commercial conduct in countries accused of human-rights violations. Caterpillar, for example, was sued for selling bulldozers that Israel used to destroy suspected Palestinian terrorists’ homes. (The case was dismissed.) “The American bar is actively soliciting alien plaintiffs” to try out novel theories, State Department legal adviser John Bellinger noted in a recent speech. Because so many federal judges have smiled on such suits, Bellinger added, foreign governments increasingly regard the U.S. judiciary “as something of a rogue actor.”

With added commentary on the Kivalina climate-change class action, Rhode Island lead paint, shareholder litigation, and Lerach, Weiss, and Scruggs. (National Journal, May 17, will rotate off page so catch it now).

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February 8 Roundup

by Ted Frank on February 8, 2007

  • New Jersey Supreme Court won’t touch appellate court reversal of $105M dram-shop verdict against Aramark Corp. Not noted in our earlier coverage: Aramark was held liable as a deep pocket through illegitimate piercing of the corporate veil, adding yet another problem to an appalling series of problems with the trial. [New Jersey Law Journal; earlier on Overlawyered; Point of Law]
  • Half-trillion-dollar class certified against Wal-Mart in lawless Ninth Circuit decision. [Point of Law]
  • Court papers show direct link to Lerach in Milberg probe. Most entertaining: a letter by Lerach saying “Dr. Cooperman’s reputation and character are impeccable.” Cooperman has since pled guilty to taking kickbacks, and Milberg Weiss now says he has no credibility. [National Law Journal; WSJ Law Blog]
  • Slip and fall worth $5.7M [Atlantic City Press]
  • Cardiologists doing Brazilians: “Graduating med students aren’t blind; they see established physicians with busy practices dropping out. Looking ahead they see more headaches–more controls and regulations, more scrutiny, more liability, less money.” [TIME via Kevin MD]
  • Florida law may allow men to get out of paying fraudulent paternity when DNA shows they’re not the father. [Miami Herald; see also Parker v. Parker; earlier on Overlawyered]
  • Editorial: Alabama Supreme Court ruling on illegal multi-billion-dollar punitive damages award in Exxon contract dispute can prove state is no longer tort hell. [Press-Register]
  • Update to earlier Overlawyered post: Danny Cuesta pleads guilty, sentenced to fifteen months; Melissa Cuesta, whose claim we covered, arrested for perjury, pleads not guilty. [EmpireStateNews.net via Teacher trash blog]
  • Incomes and inequality: what the numbers don’t tell us. [Marginal Revolution]
  • India and the drug patent wars. [AEI]
  • I (along with John Beisner, Michael Hausfeld, and John Stoia) am speaking on a panel on the Class Action Fairness Act at the National Press Club February 14. [Federalist Society]

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Globetrotting Hausfeld

by Walter Olson on October 26, 2005

Lawsuit impresario Michael Hausfeld, whose doings often figure in these pages, is on “a crusade to export America’s legal system around the world,” per one recent U.S. magazine profile. He claims to share case ideas regularly with a network of lawyers in countries around the world, according to a profile in the U.K. publication The Lawyer (Jon Robins, “Michael Hausfield [sic] brings class actions to the UK”, Oct. 24)(via Schaeffer). More on Hausfeld: Jan. 11, Apr. 13, Jul. 25, 2004; May 24, 2001; Mar. 2 and Aug. 13-14, 2000.

Wal-Mart: target

by Walter Olson on April 13, 2004

“Encouraged by the press criticism, entrepreneurial trial lawyers, eyeing Wal-Mart’s deep pockets with glee, have made it perhaps the biggest private-sector target of the nation?s plaintiffs’ bar. In just ten years, the number of pending lawsuits against Wal-Mart has increased fourfold, to 8,000, and the company has tripled the size of its litigation department. … Wal-Mart faces a growing number of potentially costly class action lawsuits, exemplified by a sex-discrimination suit brought by the Cohen, Milstein, Hausfeld & Toll firm, notorious for getting Texaco to pay $176 million to black employees in a discrimination suit.” (Steven Malanga (Manhattan Institute), “What Does the War on Wal-Mart Mean?”, City Journal, Spring). See Jul. 7-9, 2000 and more links: Feb. 1, 2004; Dec. 4, 2003; Jan. 11, Jun. 14, and Aug. 29-30, 2001; Sept. 6-7, Sept. 25-26, Nov. 15, and Dec. 13-14, 2000; and Dec. 2, 1999. More: we are linked by Always Low Prices — Always, a blog whose mission is to chronicle “The Best and the Worst about Wal-Mart” and which is put out in part by Kevin Brancato of George Mason U. and the economics blog Truck and Barter. (More: Apr. 19, 2005).

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Class-actioneers Michael Hausfeld and Stanley Chesley, already in line to collect $10.5 million in fees under Microsoft’s settlement of one of its antitrust cases filed in federal court, “say they are entitled to share in $50 million for helping lay the groundwork for the state claims [filed by other law firms].” Hausfeld and Chesley say many lawyers who filed state claims were happy to rely on the work they did in advancing the federal case, but “‘Memories are short and gratitude fleeting when attorneys’ fees are at issue.’ … In a reply brief, the law firms of Milberg, Weiss and Lieff, Cabraser, and Kirby, McInerney & Squire argue that assistance provided by Hausfeld and Chesley ‘was spotty and sometimes non-existent.’ ‘To put it most charitably, rather than being a resource to various state court counsel throughout these proceedings, Hausfeld-Chesley looked out for their own clients (and fees) in their own cases, which of course is completely proper,’ the lawyers in the state cases replied. ‘Such behavior, however, does not give rise to an entitlement for fees for other plaintiffs in other cases.'” (James Rowley, “Legal-fee fight erupts over Microsoft case”, Bloomberg/Seattle Times, Jan. 7)


March 15 – Annals of zero tolerance: scissors, teacher’s beer. A twelve-year-old at Morton Middle School in Omaha has been expelled after she brought a pair of blunt-edged safety scissors to school earlier this month. (Tanya Eiserer, “7th-Grader With Scissors Violates Policy”, Omaha World-Herald, March 9, link now dead). And ordering and drinking a beer with dinner in the presence of her swim team has apparently brought an end to the teaching and coaching career of Lori Gallagher in Greenwood, Ind. Gallagher had taken her team to Noble Roman’s restaurant after a February swim meet. “Clearly, a situation in which alcohol is in the presence of minors is inappropriate,” said Dan Clark, deputy executive director of the Indiana State Teachers Association, which backed Gallagher’s removal. (Dana Knight, “Greenwood coach suspended for drinking”, Indianapolis Star, March 9, link now dead; Jeff Taylor, Reason Express, March 13 (second item)).

March 15 – Game over four decades ago: let’s change the rules. The latest “Angelos bill” moving through the Maryland legislature would retroactively change state law to make it easier for governments and individuals to sue makers of interior lead paint, which was pulled off the market in the 1950s. The bill would remove the requirement that plaintiffs actually identify which firm manufactured paint to which they were exposed, instead allowing suits against all manufacturers alike under the theory of “market-share liability”. The powerful attorney, owner of the Baltimore Orioles, was earlier instrumental in steering legislation through Annapolis retroactively tagging tobacco companies with liability for selling their wares, a caper that resulted in a $1 billion fee claim for his firm (see Dec. 9, Oct. 19 commentaries). Paint and pigment manufacturers brought in former U.S. attorney general Benjamin Civiletti, former Solicitor General Walter Dellinger and others to argue against the measure. (Michael Dresser, “Lead Paint Bill is Debated”, Baltimore Sun, March 10; Timothy B. Wheeler and William F. Zorzi Jr., “Lawmakers back bill on lead paint”, Baltimore Sun, January 28; industry press release) (via Junk Science).

March 15 – What ADA was written for. Jose Francisco Almada took off for Mexico on a Sunday in 1997 on learning that a niece there had died after a long illness. When he returned on Wednesday he was told that his employer, USA Waste Inc., had terminated him for skipping work without notifying a supervisor. Almada hired a lawyer who proceeded to sue the company under — can you guess which statute? Not the Family and Medical Leave Act, but the Americans with Disabilities Act, on the grounds that the company’s action was a mere pretext to discriminate against him on the grounds of a back injury which prevented him from doing heavy lifting in his sanitation rounds. The company denied the charge and said Almada had displayed “poor work attitude” aside from the absenteeism incident but the Colorado Civil Rights Division sided with him and so did a jury, which voted him more than $250,000. Almada’s lawyer, James E. Gigax, said: “It is this kind of case the ADA is written for.” (Howard Pankratz, “Driver wins lawsuit under disabilities act”, Denver Post, Feb. 22).

March 15 – A dream of black goats. “To dream of white goats is a sign of wealth and plenty,” declares a fortune-telling “Oraculum” regularly consulted by Napoleon Bonaparte; “but black signify sickness and uncertain lawsuits.” (Napoleon’s Book of Fate and Oraculum (Kessinger)) (via The New Yorker, “Book Currents”, Dec. 27-Jan. 3, not online) (send black-goat greeting card).

March 14 – Clinton legal legacy. American Lawyer asked this site’s editor to contribute to a cover-story symposium on President Clinton’s legal legacy. “Bill and Hillary Clinton emerged from a Yale Law School milieu that admired litigation as the remedy for practically every social ill and assumed that the more people could be persuaded to assert their rights in court, the better off society would be — what some of us call the invisible-fist theory. … [By the end] the Clintons themselves [came] to experience the intense miseries of destructive litigation — an ordeal through which they set a very poor example of how to behave, and from which they appear to have learned precisely nothing.” Along the way, the piece sounds off on everything from the federal tobacco suit to sexual harassment law. (Walter Olson, “Selective Liability”, American Lawyer, March 3).

March 14 – Swissair crash aftermath. Since its Flight 111 went down off Nova Scotia in September 1998, Swissair has been widely praised for going farther than any previous airline to help victims’ families: it offered them advance payments of about $154,000 without awaiting the results of litigation, reimbursed extensive travel and funeral expenses, and performed many other services for the bereaved. The efforts have generated much good will among the families, but “is all this likely to reduce Swissair’s liability or the number of lawsuits filed against it? Probably not,” reports Margaret Jacobs of the Wall Street Journal‘s news side. Faced with the reality that the American litigation system behaves in just as harsh a fashion toward defendants who try to be good guys as toward those who resist trench by trench, airlines in the future may find themselves financially tempted to emulate the much harder line taken by such as Korean Air Lines, which is still litigating against survivor families 17 years after a crash.

A sidelight on the affair: recognizing that “courts outside the U.S. typically award a third or less of what U.S. courts do in wrongful-death actions”, Swissair initially offered much lower amounts to European than to American families, which raised a ruckus over there: “Swiss papers asked whether the airline believed an American life had more value than a European one.” Inevitably, the airline wound up offering the higher sums to everyone. Talk about genuine (for once) American imperialism: our legal system is so successful at exporting its premises that European legal systems can hardly give effect to their considered view as to the suitable level of damages even in many disputes among European citizens. (Margaret A. Jacobs, “Swissair Crash Tests Relations With Insurers”, Wall Street Journal, Feb. 15, fee-based archive).

March 14 – How bad can a capital trial get? What happens when a candidate for the Bad Prosecutors Hall of Fame faces off against a contender for the Clueless Defense Attorneys Championship? You get something like the 1983 Texas trial that sent Calvin Jerold Burdine to Death Row, which a federal judge threw out last September in favor of a new trial. “It is true that there is no bright line that distinguishes consciousness from sleep,” wrote U.S. District Judge David Hittner, with reference to allegations that Burdine’s court-appointed defense lawyer had repeatedly snoozed off during the proceedings. “However, the record and the evidence here is clear: [the defense lawyer] was actually unconscious.” According to the Washington Post‘s Paul Duggan, such cases are frequent enough that Texas appellate lawyers simply call ‘em “sleeping-lawyer cases”. Because Judge Hittner found the inadequacy of defense sufficient grounds to overturn the conviction, he did not need to address further allegations that prosecutors had tainted the atmosphere against Burdine, who is gay, by calling him a “fairy” and a “queer” during his trial on charges of fatally stabbing a man during a burglary. According to the Post, “the prosecutor, in seeking a death sentence, argued to the jury that imposing a life term on a gay man would be an inadequate penalty, considering the prevalence of homosexual activity in prison. ‘Sending a homosexual to the penitentiary certainly isn’t a very bad punishment for a homosexual, and that’s what he is asking you to do,’ the prosecutor told the jury, according to a transcript.” (“Inadmissible: Zzzzz”, Texas Lawyer, October 4; text of judge’s order, Southern District of Texas; Paul Duggan, “Verdict Overturned Last Fall, Man Still on Death Row”, Washington Post, March 2).

March 13 – Videogame maker agrees to furnish safety gloves. How our state attorneys general keep busy: Nintendo of America has agreed to offer padded, fingerless protective gloves, up to four per household, to owners of a video game that’s been blamed for cuts, blisters and other hand injuries. “The ‘Mario Party’ game on the Nintendo 64 home game system can cause hand injury because players are encouraged to rapidly rotate a joy stick with a grooved tip, [New York] Attorney General Eliot Spitzer said Wednesday.” Spitzer’s office said the company had set aside up to $80 million to provide gloves — actual outlays can be predicted to be far below that — “and agreed to also provide $75,000 for the cost of the attorney general’s investigation,” reports AP. (Spitzer press release, March 8; “Nintendo To Give Safety Gloves”, AP/AltaVista, March 8; David Becker, “Nintendo offers glove to prevent joystick injuries”, CNet News.com, March 9). Reader Kenton Hoover, one of our informants on this story, is reminded of the old dialogue: Patient: “Doctor, it hurts when I do this.” Doctor: “So don’t do that.”

March 13 – Majesty of the law. “Attorney Marvin Barish could be hit with harsh sanctions by a federal judge for threatening to kill an Amtrak defense lawyer and calling him a ‘fat pig’ during a trial recess,” Shannon Duffy reports in Philadelphia’s Legal Intelligencer. U.S. District Judge Herbert J. Hutton declared a mistrial upon learning that Barish had allegedly told defense attorney Paul F.X. Gallagher, fist cocked, “I will kill you with my bare hands.” “You threatened his life in the presence of witnesses, sir,” said the indignant judge, after hearing an account of the incident from his courtroom deputy. “Not in the presence of the jury,” Barish replied; then, perhaps as it dawned that this was not an entirely satisfactory response, he added a more general denial: “I didn’t threaten his life or anybody.” At a later sanctions hearing, Barish said that he was “not condoning my conduct. It was really bad” but that “I didn’t mean that I would kill him” and that Gallagher “wasn’t in obvious fear of his life”. Barish’s attorney, James E. Beasley, said that his client was the real victim in the situation, having been provoked by unfair legal tactics on the part of Amtrak: “I think that having Mr. Barish go through this has been a sufficient sanction in and of itself.” (Shannon Duffy, “An Angry Lawyer?”, The Legal Intelligencer, March 10).

The colorful Barish last figured in these columns December 14, when we reported on the controversy over his having set up a plaintiff client in an apartment and paid his rent, gas, electric, cable television and phone bills. Updating that case, a federal judge refused to disqualify the veteran Philadelphia attorney as counsel in the case, finding such a sanction too harsh even if he committed an ethical violation. (Shannon Duffy, “Sugar Lawyer”, The Legal Intelligencer, Nov. 22).

March 13 – Take the settlement, sue anyway. The Equal Employment Opportunity Commission is considering a regulation under which terminated workers who’ve accepted a severance packet in exchange for a waiver agreeing not to sue could keep the packet and sue anyway. The worker would be allowed to attack the waiver of rights as not knowing and voluntary without having to “tender back” the sums received. “This is take the money and run,” says Mark DiBernardo of the management-oriented law firm Littler Mendelson. Steven Allen Bennett, commenting on behalf of the American Corporate Counsel Association, isn’t happy about the proposed rule either, saying it encourages “disgruntled employees with spurious claims to fight on endlessly”. (Kevin Livingston, “Gilding the Golden Handshake”, The Recorder/ CalLaw.com, Jan. 24).

March 13 – Welcome WhatTheHeck.com, Center for Equal Opportunity, RTL-4 Dutch television visitors:

* WhatTheHeck.com says its mission is “exposing the funny underside of society and, of course, stupid government tricks”. Check out its list of joke Ebay auctions, entitled “Ain’t Capitalism Grand?”, and its link to Frederic Bastiat’s Petition of the Candle-Makers of Paris, the funniest-ever satire on trade protection, on an Australian server. We get listed under the heading “Smart Sites”;

* “If you haven’t visited <www.overlawyered.com>, you should,” advises the Legal & Regulatory News newsletter (January) of the Center for Equal Opportunity, “the only think tank devoted exclusively to the promotion of colorblind equal opportunity and racial harmony”, headed by Linda Chavez;

* And Max Westerman’s recent report for RTL-4 Dutch television on lawsuits in New York City draws on this site’s resources.

March 10-12 – Accused of harassment; wins $2 million from employer. A Circuit Court jury in Hawaii has voted a $2.1 million award to Leland Gonsalves, who was fired from an auto service manager job at Infiniti-Nissan after a female service clerk filed a sexual harassment complaint against him. “It felt like I was being dragged through the mud and no matter how hard you rinsed off, it was going to follow you for the rest of your life,” Gonsalves said. “The jury found that Infiniti-Nissan unlawfully discriminated against Gonsalves, breached a promise to him that his job would not be affected by the investigation, and violated its own personnel policies and procedures involving his termination.” In court documents, the company had contended that “it conducted a preliminary investigation into the clerk’s allegations and found that Gonsalves appeared to have sexually harassed her based on his admissions”.

Eric Miyasaki, president of Nissan Motor Corp. in Hawaii Ltd., said the company had scrupulously followed EEOC guidelines for investigating harassment claims but that the court had found those guidelines to be non-binding. Miyasaki “said the verdict has ‘dangerous’ implications for every employer in the state. ‘If this decision is allowed to stand, Hawaii employers receiving complaints of harassment will have to choose whether they want to risk liability for ignoring the complaint or risk liability for doing what the sexual harassment law says they must do.'” Gonsalves, according to his lawyer, “has admitted to some of the woman’s allegations, apologized to her for any actions that she may have considered offensive and denied some allegations. But [he] has maintained that his conduct did not reach a level where it created a hostile work environment”. (Debra Barayuga, “$2.1 million award in reverse prejudice jury verdict”, Honolulu Star-Bulletin, Jan. 26). [Update Jun. 2, 2003: Supreme Court of Hawaii in Nov. 2002 reversed verdict. Also corrected plaintiff's first name.]

March 10-12 – Do as we say, cont’d. A big employer that delayed sending out overdue paychecks for weeks or even months would get in trouble with the law, right? But in this case the poky payers are the D.C. Superior Court and D.C. Court of Appeals in Washington, which have had a reputation for years for neglecting their bills. Eventually they got sued (in federal court) by three lawyers and one private investigator who hadn’t been paid for court-appointed criminal defense work. Then things got worse: “Because its attorneys did not reply within 20 days of Dec. 16 — the date the suit was filed — a clerk entered a default against the D.C. courts,” reports Legal Times. The failure to respond “certainly sets an interesting precedent in the courts’ effort to instill public confidence in its operations,” observes attorney Gary Sidell. (Carrie Johnson, “D.C. Courts Default in Suit by Lawyers”, Legal Times, Jan. 14).

March 10-12 – Rise, fall and rise of class actions. “The frequency of class actions has ebbed and flowed in the past 30 years. In 1988, The New York Times reported a sharp drop-off in these cases since the 1970s. A legal expert told the newspaper that class actions ‘sort of had their day in the sun and kind of petered out.’

“The sun is shining again. Though no government agency keeps accurate statistics on the numbers of class actions, no one — trial lawyers or corporate America — disputes that the frequency of these cases has multiplied exponentially [well, at least geometrically -- ed.] since the early 1990s.

“A survey of large corporations by the Federalist Society, a conservative research group in Washington, D.C., estimated that from 1988 to 1998, class actions filings increased by 338 percent in federal courts and by more than 1,000 percent in state courts. Corporations that were defending only a handful of these cases 10 years ago now report dealing with 50 or 80 at a time.” (Eddie Curran, “On behalf of all others: legal growth industry has made plaintiffs of us all”, Mobile Register, Dec. 26) (see Feb. 7).

March 9 – Record employment verdict thrown out. A unanimous California Supreme Court, reversing an appeals court, has upheld a trial judge’s overturning of a record-breaking $89.5 million discrimination verdict against Hughes Aircraft Co. The trial judge had “found that (1) passion and prejudice had motivated the jury, (2) the damages did not bear a reasonable relationship to Hughes’s actions or plaintiffs’ injuries, and (3) they were grossly disproportionate to the amount of actual damages.” Justice Janice Brown wrote the high court’s opinion and also added a concurring opinion, also signed by Justice Ming W. Chin, calling unlimited punitive damages a violation of fairness and due process (“fundamental notions of justice require some correlation between punishment and harm” — with cite to Aristotle’s Nicomachean Ethics) and saying such damages should seldom exceed triple the amount of actual damages. A counter-concurrence by Justice Stanley Mosk dismissed the awarding of excessive punitive damages as a non-crisis and the 3x-damages yardstick as itself arbitrary.

Since Los Angeles County Superior Court Judge Malcolm H. Mackey threw out the verdict, attorneys for the plaintiffs have waged a personal campaign against him in the press: Judge Mackey appears to think “that only white people can be trusted to sit dispassionately on matters of race,” charges Santa Monica lawyer Ian Herzog, who represents former Hughes employees Jeffrey Lane and David Villalpando. “They were trying to send a message to the judiciary that any judge who overturns a civil rights verdict … is going to be accused of being racist,” said Hughes attorney Paul Grossman, of Paul, Hastings, Janofsky & Walker. “The tactics were outrageous.” (Maura Dolan, “Justices Order New Trial in Race Bias Suit”, Los Angeles Times, March 7, link now dead; Lane v. Hughes Aircraft text of decision, filed March 6 (PDF format)).

March 9 – Costly state of higher awareness. “Deepak Chopra, the high lama of litigation, may be a pussycat on TV, but cross him in the courtroom and you’ll have a tiger on your tail,” reports Stephen Lemons at Salon. The New Age guru has “garnered notoriety through his frequent visits to the courtroom”, of which the most famous was his $35 million defamation suit against the Weekly Standard, settled on terms that included an abject retraction plus what Chopra says was a $1.6 million settlement. The La Jolla-based author and alternative medicine advocate has described that suit as “an act of love” meant to lift the magazine to “a higher state of awareness.” (Stephen Lemons, “The art of the spiritiual smackdown”, Salon, March 7).

March 9 – Everyone should weblog. Via Eatonweb yesterday, we discovered more ‘blogs to keep an eye on: Law School Dropout, by Chris O’Connor out of Oregon, led us to several previously unfamiliar resources, including a site on famous American trials by Prof. Doug Linder of the U. of Mo.-K.C. School of Law, Prof. Peter Tiersma’s list of links on law and language, and a compilation of “Weird and Funny Cases” with appended case citations, a welcome service. News/discussion log Edgecaseis worth a look as well. Weblogging (of which this site is one example) “appears to be undergoing a huge surge in popularity,” reports Wired News (Leander Kahney, “The Web the Way It Was”, Feb. 23). And Editor & Publisher Online columnist Steve Outing says it’s time mainstream news organizations “started doing Weblogs of their own”. (“Weblogs: from Underground to Mainstream”, March 8).

March 8 – Barrel pointing backward, cont’d. Another item, overlooked earlier, to add to the file on how litigation is slowing development of “smart guns” (see Feb. 17 commentary): a company that’s pioneered attempts to develop such guns is now seeking to pull out of the firearms business. Switzerland’s SIG Industrial Co. Holding Ltd. said it was seeking to sell its firearms businesses in Europe and the U.S., the latter of which claims an 11 percent share of the U.S. commercial pistol market. “The SIG announcement … is notable because the company attracted attention [in December], when it said that it would be the first manufacturer to market ‘personalized’ handguns. These weapons include an electronic locking system designed to allow only authorized users to fire,” reports Paul Barrett of the Wall Street Journal‘s news side. Such locking systems, of course, are among the innovations demanded by the cities suing gunmakers. “SIG said it will go ahead with ‘limited shipments’ of its personalized pistols later this year.”

From the same report: “In a separate development, gun manufacturer H&R 1871 Inc. said it would cease to produce handguns because of the litigation-driven increases in the cost of liability insurance and shipping. H&R, Gardner, Mass., had made a relatively small number of handguns and is primarily known for shotguns and rifles.” And the Zilkha group, which owns Colt’s, is trying to complete an acquisition of German-owned Heckler & Koch, after which it would “reduce or phase out Heckler & Koch’s sales of civilian pistols in the U.S.” (Paul Barrett, “Swiss Gun Maker SIG Plans to Sell U.S. Unit”, Wall Street Journal, Jan. 19, fee-based online service).

March 8 – Californians reject law boosting insurance litigation. By about a two-to-one margin, Golden State voters turned thumbs down on Proposition 30 (see March 6 commentary), thus disappointing the state’s trial lawyers and a coalition whose efforts they had backed. With 59 percent of precincts reporting, the measure was trailing 33 to 67 percent. (L.A. Times, proposition results).

March 8 – “Girl puts head under guillotine; sues when hurt”. The mock guillotine, installed as part of a school gymnasium haunted-house, had a wooden blade and was considered safe but allegedly injured her when its rope snapped. (Paul Waldie, “Girl sues after having ‘guillotine’ hit her neck”, National Post, March 6, link now dead; via Obscure Store). It’s our second item within a week from a Nova Scotia junior high school (see “Hug protest in Halifax”, March 2).

March 8 – Audio clip: our editor on NPR “Morning Edition”. Lawyers filed suit this week against the company that owns the K-B Toys chain, seeking class action status on behalf of African-American customers. The suit charges that stores in the chain located in white neighborhoods around the Washington, D.C. area have a more liberal check acceptance policy than stores with a predominantly minority clientele, a disparity that they say violates the Civil Rights Act. NPR’s Kathleen Schalch interviews this site’s editor who points out that courts have been reluctant to find store-to-store disparities unlawful when owners can cite a cost basis for them, such as a higher risk of returned checks in some locations. (March 6, summary (sixth item); audio clip (6:09 — requires Real Audio)).

March 7 – Mass ADA complaints. The problem of ADA filing mills — law offices that work closely with nonprofits or individual complainants to file large volumes of complaints under the Americans with Disabilities Act, which are then settled for legal fees and a promise of alterations — has begun breaking out into the general press (see our Jan. 26-27, Feb. 15 commentaries). John Stossel last Friday devoted his ABC 20/20 “Give Me a Break!” to the topic, relating the tale of shop owners Dave and Donna Batelaan in Lake Worth, Fla., whose Action Mobility Products got tagged with an ADA complaint for not having a sign designating handicap parking, an amenity that seemed unnecessary since the store sells products aimed at disabled buyers and nearly all of its customers are disabled. The Batelaans, who are disabled themselves, wound up paying $1,000 to settle the lawsuit, which was filed without warning. (Frank Mastropolo and James Wang (writers), “Taking Advantage“, ABC 20/20, “Give Me a Break!” with John Stossel, March 3, transcript).

Also last Friday, USA Today drew attention to the problem and, for balance, ran a guest op-ed by Florida attorney Robert Anthony Bogdan, who files such complaints (“…the motivation of myself and Lance Wogalter, as attorneys for our clients, is not to rake in huge fees, as critics claim. We have undertaken this representation because our client’s position is the right position. Of course, we cannot work for free.”) And Forbes‘ Michael Freedman contributes further details about Bogdan’s representation of the disabled daughter mentioned in our Feb. 15 report: she’s only 12 years old, which makes it especially incongruous that she’s filed complaints against a liquor store and pawn shop for alleged lack of accessibility. (“Loophole lets lawyers sue over dubious problems”, and Robert Anthony Bogdan, “Suits force ADA compliance”, USA Today, both March 3, no longer online; Michael Freedman, “How lawyers keep busy”, Forbes, March 20).

March 7 – Medical mistakes, continued. Further weaknesses of that much-publicized “epidemic of malpractice” study, per an article by New York Times health writer Lawrence K. Altman, M.D.: the “medication errors”, prominent among the total, aren’t necessarily the clear-cut kind where a different compound or dosage is taken than the doctor intended; many instead shade imperceptibly into judgment calls as to whether the physician was right to balance hoped-for benefits against known risks of side effects in particular cases. And: “Classifying falls as errors, as the report did, is also a murky area because they happen commonly in homes and on the street.” Though caregiver negligence concededly contributes to some falls, others are unavoidable in a largely elderly patient population amid unfamiliar surroundings and disoriented by illness and by powerful medications. (“The Doctor’s World: Getting to the Core of Mistakes in Medicine”, New York Times, Feb. 29) (earlier coverage of the study on this site: Feb. 22, Feb. 28).

March 7 – The scarlet %+#?*^)&!. More firms are severing relations with customers who are heard to make profane, raunchy or racially insensitive remarks, a step that helps insulate them from possible liability for tolerating a “hostile environment” for their own workers. “Plante & Moran, a Southfield, Mich., accounting and consulting firm, has terminated two or three clients in the past five years for abusive or profane language, sexist jokes or other offenses, says managing partner Bill Matthews.” (Sue Shellenbarger, “More Firms, Siding With Employees, Bid Bad Clients Farewell”, Wall Street Journal, Feb. 16 (requires online subscription)). And Forbes reports that some employers are hiring $1,000-an-hour consultant James O’Connor to mount seminars for employees on how to avoid using foul language; O’Connor’s consultancy is called the Cuss Control Academy. (Michael Freedman, “The Curse of Consultants”, Forbes, Jan. 24).

March 6 – Zapped pylon-climber sues liquor servers, utility. Nominated by reader acclaim: Ed O’Rourke has sued Tampa Electric, along with six bars and stores that sold him alcoholic beverages, over a 1996 incident in which he was blasted by 13,000 volts of electricity after breaking into a fenced, gated and locked utility substation and climbing up a transformer in a “drunken stupor”. The suit further alleges that local bars and stores negligently served O’Rourke liquor even though he was “unable to control his urge to drink alcoholic beverages”. The owner of the Waterhole Sports Bar, one of those sued, said he “remembers the transformer incident but denied that O’Rourke drank at his bar the night it happened. ‘Because he was previously thrown out of here because he was writing on the bathroom walls.'” (“‘Shocked’ Man Sues Bars That Served Him”, Reuters/Yahoo, March 3, link now dead) (another pylon-climber case: see Sept. 17).

March 6 – Press releases, or “strike suit” ads? Tampa Tribune looks in some detail at the puffish “news releases” by which securities class-action lawyers announce new suit-filings: are they informing the press, or soliciting more clients? “‘These announcements are intended to say, “I’m here. I’d like to be lead counsel,”‘ said Charles Elson, a law professor at the Stetson University College of Law in Gulfport.” Bar association officials say that because these releases “don’t technically qualify as advertising, they aren’t subject to scrutiny by these professional groups.” (Eric Miller, “The paper chase”, Tampa Tribune, March 5, link now dead).

March 6 – “Whirlpool settles $581 million verdict out of court.” The original Alabama jury verdict last May involved a $1,200 dispute over a satellite dish. Terms of the new settlement, with lawyers for Barbara Carlisle and her parents, George and Velma Merriweather, weren’t disclosed. (AP/Fox News, March 1).

March 6 – Pro-litigation measures on Calif. ballot. Propositions 30 and 31, if defeated by voters, would repeal two laws favored by trial lawyers that make it easier to sue insurance companies for delaying the payment of claims, including third-party liability claims against their policyholders. The measures appear to be trailing in voter support. (Michael Kahn, “Calif. battle over insurance lawsuits cost millions”, Excite/Reuters, March 2, link now dead; Benjamin Zycher, “Do We Really Need Even More Lawsuits?”, Los Angeles Times, March 3, link now dead; Andrew Tobias, “California Props”, online column, March 6) (measures defeated; see March 8 update).

March 3-5 – It’s Howdy Doody litigation time. Although the freckle-faced marionette of fifties TV was awarded a bronze star last month at Rockefeller Center, the actual cowboy-puppet used on the show has been locked in a trunk in a bank vault in New London, Ct. for the past year, the subject of a prolonged ownership dispute between the late puppeteer Rufus Rose’s family and the Detroit Institute of Arts. The last cast member to play the part of Clarabell the clown, Lew Anderson, 77, has even been put through a deposition, but apparently did not jump up and squirt the lawyers with seltzer as he might have in days of yore. (Corey Kilgannon, New York Times/Deseret News, Feb. 27; NBC website on the show)

March 3-5 – Welcome Reader’s Digest visitors. Randy Fitzgerald’s newly posted article on the outrageous results of asset-forfeiture laws, “Guilty Until Proven Innocent“, gives this website a link.

March 3-5 – Junk fax litigation, continued. Latest case of this sort to attract notice is in Georgia, a class action seeking $12 million from Hooters restaurants over alleged uninvited faxing of lunch coupons. “Value-Fax, owned by Bambi K. Clark, was hired by Hooters and other businesses to distribute advertisements to Augusta-area fax machines” in the mid-1990s, according to Trisha Renaud in the Fulton County Daily Report (Jan. 26). See our Oct. 22 commentary for an account of the epic legal struggle over unsolicited faxing in Houston.

March 3-5 – “Tenure Gridlock: When Professors Choose Not To Retire”. The New York Times quotes Muhlenberg College president Arthur Taylor on the “tenure gridlock” that’s resulted from age bias law‘s having deprived colleges of discretion over how long faculty stay at their posts: “We have no way of asking someone to retire. They literally can go on forever — and some do.” (Edward Wyatt, Feb. 16).

March 3-5 – “ADA’s Good Intentions Have Unintended Consequences”. Insight‘s John Elvin explores headaches caused by the application of the Americans with Disabilities Act in the workplace, including safety worries, the law’s protection of workers who suffer mental illness, and the “sued if you do, sued if you don’t” clash between various legal rules. Quotes this site’s editor at length (Jan. 28).

March 3-5 – Medical monitoring conference. Lawsuits over “medical monitoring” contend that although a plaintiff may not have sustained any detectable health injury from an event, the defendant should nonetheless pay for periodic doctors’ checkups to keep tabs on whether such injury emerges later. In December the Federalist Society brought critics and supporters of the idea together for a conference whose transcript is now online; product liability critic Victor Schwartz of Crowell and Moring, with three co-authors, has also published a paper critical of the notion on the Social Science Research Network. (“Medical Monitoring – Should Tort Law Say Yes?“, posted Feb. 22).

March 2 – Hug protest in Halifax. “Students at a Nova Scotia junior high school went on strike yesterday, walking out of class to protest a strict behavioral code they say forbids everything from hugs and high-fives to piggybacks.” Like a growing number of other schools across Canada, Vanier Junior High “takes a zero tolerance stance on all physical contact, fearful that horseplay could spiral into something more serious.” The results have included prohibitions on tag, touch football and other contact games; mandatory suspensions for playful antics such as pushing schoolmates in the snow; and, in recent controversies at two Manitoba schools, bans on “mass hugging” and kissing in hallways. “We want to be able to go to school and be able to hug your friend good morning,” says eighth grader Rosemary Buote of the new Halifax protests, in which about 200 students chanted slogans and “carried homemade signs that read: ‘We want hugs not punches’ and ‘We want a school not a prison'”. (Peter McLaughlin, “Halifax students walk out over hands-off policy”, Halifax Daily News/National Post, Feb. 29; Jennifer Prittie, “Schools are ruining childhood, critics charge”, National Post, Feb. 28, links now dead).

March 2 – Because they still had money. Class-action lawyers sued cigarette companies last month on grounds of alleged price-fixing, but antitrust experts interviewed by the Washington Post said the case for liability was far from clear on the evidence laid out thus far. Michael Hausfeld, of D.C.’s high-profile Cohen, Milstein, Hausfeld & Toll, is leading the charge, as he also is in private actions against Microsoft. The Wall Street Journal‘s news side reports that Hausfeld “says he was eager to sue the industry, at least in part, because his firm missed out on the fee bonanza that resulted from the state tobacco settlements.” When the earlier litigation binge was being organized some of Cohen, Milstein’s partners were skeptical about the states’ likelihood of prevailing, with the result that the firm “turned down invitations to help represent various states.” (James V. Grimaldi, “Doubts Raised on Tobacco Lawsuit”, Washington Post, Feb. 9, link now dead; Paul Barrett, “New Legal Attack Aims at Tobacco Firms”, Wall Street Journal, Feb. 8) (requires online subscription).

March 2 – Update: unmitigated madness, on lawyers’ orders. Andrew Goldstein “has twice punched a court social worker since he stopped taking his anti-psychotic medication, court officials and lawyers disclosed”. Goldstein’s lawyers advised him to stop taking his medication in preparation for his murder trial so the extent of his schizophrenia could properly impress the jury (see February 26-27). Xavier Amador, a professor at Columbia’s medical school, conceded the defendant might benefit legally from the tactic, but said it was deplorable from a medical standpoint and might cause him permanent damage. In his previous trial, which ended with a jury deadlock, defense lawyers argued “that the subway attack [on Kendra Webdale] had been one in a series of psychotic episodes over 10 years in which Mr. Goldstein abruptly punched, kicked or shoved people.” (David Rohde, “Court is Told Subway Killer, Off Medication, Hit a Social Worker”, New York Times, Feb. 29 (fee-based archive)).

March 2 – Yahoo stalked me! A suit newly filed in Dallas charges Yahoo! Inc. with various legal offenses that include violation of Texas’s anti-stalking law because its sites use cookies to track visitors’ movements, which attorney Lawrence Friedman called a “surveillance-like scheme”. (Texas anti-stalking law forbids the following of another person around repeatedly in a way calculated to cause him to fear for his own safety or that of his family or property.) Lawyers around the country are rushing to file privacy-invasion suits against commercial websites, a process the National Law Journal calls a “potential bonanza” for the bar but also a “crapshoot”: “They’re really groping for theories and statutes to use as a basis for the claims,” says Fordham law professor Joel Reidenberg. The lawsuits often charge site operators with violations of antihacking statutes — specifically, gaining “unauthorized access” to computer systems and electronic communications. “This is only the start of a lot of issues we’re going to have with the Internet,” says one plaintiff’s lawyer. (Matt Fleischer, “Click Here for More Web Suits”, National Law Journal, Feb. 22; “Lawsuit Reportedly Claims Yahoo’s Web ‘Cookies’ Allow Illegal Stalking”, DowJones.com, Feb. 18; “Texas company accuses Yahoo of privacy violations”, Bloomberg/CNet, Jan. 26).

March 1 – From our mail sack: skin art disclaimers. Pat Fish of Tattoo Santa Barbara wrote us over the holidays:

“All tattoo parlors use a waiver form now, hoping to intimidate the clients from suing should they fail to take good care in healing their Celtic spiral tattoo designtattoo. Part of the form goes on at length about understanding that this is a permanent change to the appearance, that the client has no mental impairment or physical disease. So I got a perverse impulse the other day and added to mine the phrase ‘I am not a lawyer, nor do I work for one.’ Hey, I can wear gloves to protect myself from someone who has a communicable disease, but I figure it is LAWYERS I’m really scared of!

“So last week I got my first lawyer, and he did not initial the paragraph in which that phrase appeared and explained that, in fact, he was a lawyer. So I made him circle the phrase, and write in the margin next to it ‘But I am ashamed of it.’ Then we proceeded to do the armband tattoo.

“I have a feeling that I am on my way to becoming an urban legend in the law circles of Los Angeles, since I am sure that whenever he shows off his new tattoo to colleagues he will tell this story.” (Tattoo Santa Barbara consent form) (more on disclaimers).

March 1 – Class-actioneers’ woes. Milberg Weiss Bershad Hynes & Lerach L.L.P. is still the best-known plaintiff’s class action firm in the land, but it’s suffered more than its share of reverses of late. The National Law Journal reports that three of the firm’s partners have resigned so as to avoid paying a multimillion-dollar share of its $50 million settlement with Lexecon Inc. over charges of malicious litigation; the payout was not covered by insurance. In January, allegations emerged that one of the firm’s “lead plaintiff” investors in a class-action suit against Oxford Health Plans Inc. had misrepresented his education, criminal record, history as a defendant in a civil case and his trading in Oxford securities. All this on top of the embarrassment last fall (see Oct. 13) in which Milberg Weiss inadvertently sued one of its own clients for treble damages for alleged racketeering in the course of a legal offensive against makers of children’s Pokémon trading cards. (Karen Donovan, “Three Milberg Partners Resign”, National Law Journal, Jan. 11; “Another Fine Mess for Milberg”, Jan. 25).

March 1 – Prozac made him rob banks. Connecticut Superior Court Judge Richard Arnold last week found Christopher DeAngelo of Wallingford not guilty of robbing banks and a department store because the drug Prozac made him do it. “This is not a case of somebody pulling a fast one or being too clever,” said the twenty-eight-year-old’s attorney, John Williams. “The hard indisputable fact of this case is that this young man was driven to commit crimes by a prescription drug.” Courts in Kentucky, New York and Minnesota have rejected legal claims based on Prozac use over the last decade. (“Conn. judge: Man not guilty of robbing banks because Prozac made him do it”, AP/CourtTV, Feb. 25).


January 15-16 – “Blatant end-runs around the democratic process”. “If I had my way, there’d be laws restricting cigarettes and handguns,” writes former Secretary of Labor Robert Reich, a prominent liberal, in this widely noted piece in the new American Prospect. But “[f]ed up with trying to move legislation, the White House is launching lawsuits to succeed where legislation failed. The strategy may work, but at the cost of making our frail democracy even weaker.”

The legal grounds for both the tobacco and gun suits “are stretches, to say the least. If any agreement to mislead any segment of the public is a ‘conspiracy’ under RICO, then America’s entire advertising industry is in deep trouble, not to mention HMOs, the legal profession, automobile dealers, and the Pentagon.” The federal gun case prefigures liability for the makers of such products as “alcohol and beer, fatty foods, and sharp cooking utensils.”

“These novel legal theories give the administration extraordinary discretion to decide who’s misleading the public and whose products are defective. You might approve the outcomes in these two cases, but they establish a precedent for other cases you might find wildly unjust….But the biggest problem is that these lawsuits are blatant end-runs around the democratic process…. In short, the answer is to make democracy work better, not give up on it”. (Robert Reich, “Smoking, guns”, The American Prospect, Jan. 17).

January 15-16 – “Public paranoia, and other losses”. George Williams of Cut Off, Louisiana is suing the Fair Grounds Corp. and assorted other defendants over two winning trifecta bets he placed at an off-track betting parlor which paid $80.80 and $36.60 when the television monitor suggested that the actual payout should be $121.20 and $41.80 respectively. The suit charges the race track and various other defendants with wire fraud, mail fraud, theft and breach of contract, and claims damages for “mental anguish and emotional distress, loss of enjoyment of life, embarrassment, humiliation, loss of sleep, public paranoia, and other losses.” Williams’ attorney, Corey Orgeron of Cut Off, “said he simply wants to get to the bottom of the discrepancies between what Williams thought he won and what he was actually paid. ‘It very easily could be nothing more than simple negligence,’ Orgeron said. ‘I don’t think there was any criminal intent.'” Then why’d he throw in the charges of fraud, theft, and so on? (Joe Gyan Jr., “Man accuses OTB parlor of fraud”, Baton Rouge Advocate, Jan. 8) (& letter to the editor, Jan. 16, 2001).

January 15-16 – Poetry corner: Benjamin Franklin. Thanks to Tama Starr for suggesting this one:

The Benefit of Going to LAW

Two Beggars travelling along,
One blind, the other lame,
Pick’d up an Oyster on the Way
To which they both laid claim:
The matter rose so high, that they
Resolv’d to go to Law,
As often richer Fools have done,
Who quarrel for a Straw.
A Lawyer took it strait in hand,
Who know his Business was,
To mind nor one nor t’other side,
But make the best o’ th’ Cause;
As always in the Law’s the Case:
So he his Judgment gave,
And Lawyer-like he thus resolv’d
What each of them should have;

Blind Plaintiff, lame Defendant, share
The Friendly Laws’ impartial Care,
A Shell for him, a Shell for thee,
The Middle is the LAWYER’S FEE.

— Benjamin Franklin, Poor Richard’s Almanack, 1733 (& see Jan. 26-27 update).

January 15-16 – Welcome HealthScout visitors. In an article on the “Internet addiction” defense (see Jan. 13-14) and other creative legal theories, the online health news service concludes: “If you wonder whether America’s legal system is getting out of control, check out Overlawyered.com (yes, that’s its real name) to read more about the Columbine case and other questionable legal tactics.” (Serena Gordon, “‘The Web Made Me Do It!'”, HealthScout, Jan. 13). Check out our subpage on law and medicine.

January 13-14 – Latest excuse syndromes. A Florida teenager accused of making a threat of violence in an email to Columbine High School was suffering from “Internet intoxication”, his lawyer plans to argue. Michael Ian Campbell was “role-playing” when he sent a message threatening to “finish” what Eric Harris and Dylan Klebold began in their massacre last April, according to Miami attorney Ellis Rubin. In earlier cases, Rubin offered “television intoxication” as a defense for a teenager eventually convicted of murdering an elderly neighbor, and defended a woman who eventually pleaded guilty to prostitution by saying that the antidepressant Prozac had turned her into a nymphomaniac. Meanwhile, a black Pennsylvania man accused of bank robbery is offering an insanity defense, saying that he had been driven to mental derangement by the racism of the white culture around him. “Police said [Brian] Gamble dressed as a woman when he went into the bank on July 3 and robbed tellers at gunpoint.” (Steve Gutterman, “Internet Defense in Columbine Case”, Washington Post, Jan. 12; “Robbery suspect claims racism made him insane”, AP/CNN, Dec. 23).

January 13-14 – “Litigation Bug Bites Into Democracy”. “Fueled by the success of the class-action war on Big Tobacco, class-action ‘lawfare,’ if you will, is also now being waged against — among others — gun manufacturers, makers of lead paint, Microsoft, the health maintenance organization industry, makers of genetically altered seed, the vitamin industry and the airlines.” Chicago Tribune editorial also points out, regarding charges that American businesses poured too much money into averting even minor Y2K glitches, that of course they were terrified out of any reasonable cost-benefit calculation: “it wasn’t just fear of the millennium bug. It was fear of lawyers waiting to pounce. Didn’t spend enough money to fix your computers, eh? Created a public safety problem, did you? Surely you knew your negligence would disrupt us. We’ll see you in court.” (editorial, Jan. 10).

January 13-14 – Huge jump in biggest jury verdicts. Survey by Lawyers’ Weekly USA finds the ten biggest jury awards to individual plaintiffs approached an aggregate $9 billion in 1999, nearly tripling from the amount in 1998. “Something totally unparalleled in history is going on in our legal system,” says the weekly’s publisher, not without a touch of magniloquence. Besides the Anderson (Chevy Malibu) verdict against GM, set by the jury at $4.9 billion and reduced by a judge to $1.1 billion (see Dec. 16, Aug. 27, July 10 commentaries), the other billion-dollar case was an award of $1.2 billion to the family of 32-year-old Jennifer Cowart, who died of burn injuries after a go-cart accident at a Pensacola, Fla. amusement park. (AP/FindLaw, Jan. 11).

January 13-14 – Watch your speech in Laguna Beach. The use of slurs, catcalls and other “hate speech” on the street is not in itself unlawful, but police in Laguna Beach, Calif. have begun documenting episodes of such verbal nastiness anyway on the theory that perpetrators often “graduate” to physical violence later on — a sort of gateway theory, as they call it in the drug war. Police Chief James Spreine said the database of hate-speech incidents will help his department identify suspects in serious crimes — raising the danger that constitutionally protected speech, although not to be punished itself, will bring with it something akin to official suspect status when unknown parties commit bias crimes later on (Mayrav Saar and Barbara Diamond, “Laguna Beach police will document hateful speech”, Orange County Register, Jan. 12).

January 13-14 – “Americans Turn To Lawyers To Cure Nation’s Social Ills”. Uh, speak for yourself, would you mind, please? Last week’s flattering news-side Wall Street Journal profile of class-action impresario Michael Hausfeld (anti-guns, anti-HMOs, anti-biotech) got the most basic premise wrong about the class action biz when it said that “more and more frequently, they [referring to "people" or "society"] turn to courts when the traditional avenues of politics or activism seem obstructed.” But the “people” don’t hire class action lawyers; more typically those lawyers hire themselves, and if necessary go out and find a representative plaintiff to sue for. Of course these lawyers would love to establish that their activities simply coincide with what the public wants them to do, but why is the Journal‘s news side lending them a hand by assuming what is to be proven? (Paul Barrett, “Americans Turn To Lawyers To Cure Nation’s Social Ills”, Wall Street Journal, Jan. 4)

January 13-14 – Your fortune awaits in Internet law. Five years ago this Ohioan was toiling away as a computer operator for a sleep clinic, but now he’s moved on to a career in the fast-growing world of Internet law — representing a client who cybersquatted on such domain names as “dolphins.com” and “jets.com” and now wants major bucks from the football folks on the grounds that they interfered with his sale of the names. “Mr. DeGidio sees such issues as fertile ground for dispute.” (George J. Tanber, “Web challenges kindle this attorney’s interest”, Toledo Blade, Jan. 10).

January 13-14 –Overlawyered.com announcement list now hosted at ListBot. It was getting too big to be managed any other way — besides, this way you can volunteer fun demographic information about yourself. To join the list, look for the red Listbot button in the column at left and enter your email address.

January 13-14 –Correction: surname of Pennsylvania AG. Our January 10 report mistook the surname of Attorney General Mike Fisher of Pennsylvania. We’ve fixed it now. Our apologies.

January 12 – Finally! Reform may be in the wind for New York City’s patronage-ridden courts, following a burgeoning scandal in Brooklyn. Two top officials resigned last month from the law committee of the Brooklyn Democratic Party, complaining that despite their “unquestioned loyalty” to the party they’d been cut out of lucrative court assignments. The letter painted a damning picture of the operations of the city’s notoriously buddy-buddy system of fiduciary appointments, by which judges appoint clubhouse lawyers to fee-intensive positions managing the estates of decedents, orphans, failed businesses, foreclosed properties and other entities that can’t tend to their own affairs. Mayor Rudy Giuliani promptly called for reform to purge the system of its continuing machine taint, and now the state’s chief judge, Judith Kaye, has announced that she’s appointing an investigator with subpoena power to uncover improprieties and make the fiduciary appointment process worthy of public confidence. If that works, our friend Augeas has some stables that need cleaning out. Update Dec. 20, 2001: investigation results in report exposing abuses.

SOURCES: Alan Feuer, “2 Brooklyn Lawyers, Ex-Insiders, Outline a Court Patronage System”, New York Times, Jan. 5; Thomas J. Lueck, “Giuliani Urges Chief Judge to End Patronage in Courts”, New York Times, Jan. 6; Winnie Hu, “Political Favoritism by Judges Faces an Investigation”, New York Times, Jan. 11 (all Times links now dead); John Caher, “NYS Courts to Probe Judicial Appointments of Lawyers”, New York Law Journal, Jan. 11; Tracey Tully, “Judge To Probe Patronage”, New York Daily News, Jan. 11; Frederic U. Dicker and Maggie Haberman, “Top Judge Orders Probe of B’klyn Patronage Scandal”, New York Post, not dated.

January 12 – Disabled accommodation in testing. Sunday’s L.A. Times notices the trend: “The number of students who get extra time to complete the SAT because of a claimed learning disability has soared by more than 50% in recent years, with the bulk of the growth coming from exclusive private schools and public schools in mostly wealthy, white suburbs.” (Kenneth R. Weiss, “New Test-Taking Skill: Working the System”, Los Angeles Times, Jan. 9; see our editor’s “Standard Accommodations“, Reason, February 1999.) The U.S. Department of Justice has sued the Law Schools Admissions Council for allegedly following overly rigid rules in responding to physically disabled applicants’ requests for extra time on the Law School Admissions Test. “We are extremely disappointed that the Department of Justice has decided to litigate this matter and even more disappointed that they issued a press release about the lawsuit before serving us with the complaint,” says the Council’s president. (Shannon P. Duffy, “Disabled Students Denied Accommodation to Take LSAT, Suit Says”, The Legal Intelligencer (Philadelphia), Dec. 9). Columnist Robyn Blumner isn’t the only one reminded of the Kurt Vonnegut story, “Harrison Bergeron”. (“The high cost of equality: our freedom”, St. Petersburg Times, Dec. 19).

January 12 – Ontario judge okays hockey-fan lawsuit. Justice Michel Charbonneau ruled that a lawsuit by season-ticket holders against player Alexei Yashin (see Oct. 20 commentary) can proceed even though the law in the area is “relatively undeveloped”. “This is groundbreaking because this is the first time we can examine an athlete’s state of mind regarding fans,” said attorney Arthur Cogan. “Does he ever think about fans’ interests?” Next up: lawsuits by inconvenienced customers against workers who go out on unauthorized strikes? (Kevin Allen, “Yashin to face fans’ discontent”, USA Today, Jan. 6; “Judge: Fans’ lawsuit against Yashin can proceed”, CBS SportsLine, Jan. 5).

January 12 – Warn and be sued. “When Gwinnett County police officer Gordon Garner III told clinical psychologist Anthony V. Stone during a fitness-for-duty interview that he had had a vision of killing his captain, and thoughts about killing eight to 10 others including the chief and a county commissioner, Stone took it seriously.” He “consulted a lawyer for the Georgia Psychological Association, Susan Garrett, who advised him he had a duty to warn the individuals Garner had named”, according to court papers. Two weeks after the initial interview, he did warn them — walking right into a lawsuit from Garner for breach of confidentiality which culminated last month in a jury award of $280,000. Sued if you do, sued if you don’t? “In previous reported cases in Georgia, mental health professionals have been sued for failing to warn third parties that they might be in danger; Stone was sued for issuing that precise warning.” (Trisha Renaud, “Ex-Cop Wins Rare Confidentiality Case”, Fulton County Daily Record, Jan. 5).

January 11 – Health plans rebuffed in bid to sue cigarette makers. Now we find out! Helping close the door on the premise of the state Medicaid suits (after that $246 billion horse has already escaped from the barn), the Supreme Court yesterday let stand lower-court rulings denying union health plans the right to sue tobacco companies to recoup smoking-related health outlays. (“Union health plans lose round with cigarette makers”, AP/FindLaw, Jan. 10; Joan Biskupic, “Court Rejects Union Tobacco Suits”, Washington Post, Jan. 11). For a brief run-down of why these third-party payor claims have no law on their side, we recommend Judge Frank Easterbrook’s enjoyably abrasive 7th Circuit opinion, issued in November, dismissing suits filed by union funds and Blue Cross/Blue Shield plans in Illinois.

January 11 – Microsoft temps can sue for stock options. “In another victory for temporary workers at Microsoft, the Supreme Court today let stand a ruling that greatly expanded the number of employees who could sue the software giant to purchase stock options and get other benefits.” If you’re an employer who was counting on the old notion of freedom of contract to hold temps and independent-contractor employees to the benefits they bargained for, be afraid. (James V. Grimaldi, “High court rules 15,000 Microsoft temps can sue”, Seattle Times, Jan. 10; Dan Richman, “Microsoft ‘Permatemps” Win”, Seattle Post-Intelligencer, Jan. 11) (see also Aug. 19 commentary).

January 11 – “Update from the Year 2050″. The protagonist of this 1984-like tale wakes up to tepid home-brewed coffee: “Today, no house could be programmed to prepare scalding fluids. No ice cubes either: People choked on them and died. As Plaintiff in Chief Rodham Bush liked to say, ‘Extremes are unhealthy.'”. It was in the 00’s decade that the lawyers really took over: “By piling lawsuit atop lawsuit, the attorneys could bankrupt any company that tried to fight them….Politicians had discovered that by joining in the lawsuits, the government could take a cut of the settlements.” Now there was just one big company left, McNikeSoft, which efficiently settled hundreds of thousands of suits a day on the Litigation Exchange, and which the lawyers refrained from bankrupting because that would end the game. “Profits flowed efficiently from the real economy directly to the attorneys. Everybody was happy.” Hurry up and read this new satire by Jonathan Rauch before the folks he skewers find some way to sue him for writing it (National Journal, Jan. 7 — see Reason archive)

January 11 – Can they get a patent on that? “Two top executives and two high-level officers at a consulting firm that serves lawyers and insurance companies were indicted by a federal grand jury [in November] on charges of designing a computer program that automatically inflated the bills it sent to clients.” The indictment charges that a computer programmer at the firm, S.T. Hudson International Inc. of Wayne, Pa., “developed a program he called the ‘gooser’… which automatically multiplied every hour worked by a consultant by 1.15 and then added an extra half hour to the total hours,” with resulting overpayments by clients and affiliated companies totaling more than $320,000. (Shannon P. Duffy, “Consulting Firm Indicted for Inflating Bills Sent to Lawyers”, Legal Intelligencer (Philadelphia), Nov. 30).

January 11 – “Dear Abby: Please help…” “…I fell in love with a married man. He claimed he loved me. My husband caught us and now has filed for divorce. My lover called it quits and ran back to his wife.

“Can I sue my lover for breach of promise because he promised to get a divorce and marry me?” — Destroyed in the U.S.A.

“Dear Destroyed: I recommend against initiating such a lawsuit.”

– An entry, reprinted in its entirety, from “Dear Abby“, January 2.

January 11 – Welcome, Yahoo and About.com visitors. Our page on overlawyered schools has recently won listings at Yahoo “Full Coverage: Education Curriculum and Policy” and J. D. Tuccille’s popular Civil Liberties section at About.com.

January 10 – Pokémon litigation roundup. The Burger King Corporation last month recalled about 25 million pull-apart plastic balls containing the cartoon characters, which had been distributed as premiums with childrens’ meals, after a young child apparently suffocated on half of one of them. The company offered a small order of french fries in exchange for each returned ball, which did not save it from class action lawyers in Dallas who dashed at once to court, their named client a local mother whose son was entirely unharmed by the balls but who (or so the premise of the suit went) considered the french fries inadequate compensation for the toys’ return. (“Burger King Hit With Pokémon Lawsuit”, Reuters/FindLaw, Dec. 30; Jenny Burg, “Dallas Mom Sues Burger King Over Poke Balls”, Texas Lawyer, Jan. 5).

In other Pokémon litigation news, showman Uri Geller, whose act is best known for his purported ability to bend spoons by the power of remote mind control, is threatening to sue the makers of the cards over the inclusion of the character Kadabra, which is shown wielding a spoon and which boasts “special mental powers: It plagues bystanders with a mysterious pain in the brain'”, to quote the New York Post. Japanese children are said to have nicknamed the character “Uri Geller”; “There’s no way that they’re allowed to do this,” Geller says his lawyer told him. (Lisa Brownlee, “Pokémon card trick makes magic man mad”, New York Post, Dec. 30). And the American Lawyer has now given a write-up to the recent imbroglio (see Oct. 13 commentary) in which class-actioneers Milberg Weiss Bershad Hynes & Lerach filed a lawsuit charging that the trading cards are a form of unlawful gambling, without realizing that a company it represented owned the licensing rights to the characters — with the result that it sued its own client for treble damages for alleged racketeering. (Sherrie Nachman, “Cartoon Conflicts”, American Lawyer, Dec. 20) (earlier Pokémon coverage: Dec. 16, Oct. 13, Oct. 1-3).

January 10 – Pennsylvania tobacco fees: such a bargain! “One lawyer spent 12 minutes reading the Wall Street Journal and billed $62. Another charged $290 for the hour he took identifying and ordering books.” Lawyers’ bills like that might stand in need of a little revising, you might think — but in the case of the Pennsylvania tobacco fees the revision was upward, from $7.1 million to a negotiated deal of $50 million. On a per-capita basis that still ranks among the lowest tobacco fees in the country, but eyebrows have been raised by the fact that the prominent and generally business-oriented law firms that handled the work for the state, Buchanan Ingersoll of Pittsburgh and Duane, Morris & Heckscher of Philadelphia, were selected in what critics say was not an open or competitive process, and happened to be major campaign contributors of Attorney General Mike Fisher, the one doing the selecting (Fisher also made the key decisions in the eventual negotiated fee settlement). “Obviously,” says one critic, Philadelphia attorney Lawrence Hoyle, Jr., “it was a political kind of deal.”

“The $50 million that Duane, Morris and Buchanan Ingersoll will share over the next five years dwarfs the combined total of the Ridge administration’s bills for outside legal counsel last year: about $35 million to 241 law firms, with none getting more than $2.3 million.” And by the time Pennsylvania sued, other states had developed the legal theories on which the case rested. Tobacco-fee zillionaire Joseph Rice, who represented many states in the affair, agrees that the late-filing Keystone State did not face as much legal risk as states that filed earlier, but says: “I don’t think we should quibble about it.” But then, he would say that, wouldn’t he? (Glen Justice, “In tobacco suit, grumblings over legal fees”, Philadelphia Inquirer, Oct. 4)(& see Oct. 24, 2002).

January 10 – Back pay obtained for illegal aliens. Scoring an early win for its new policy of backing lawsuits by undocumented workers over the loss of jobs it was unlawful for them to hold in the first place, the federal government has extracted a $72,000 settlement from a Holiday Inn Express Hotel and Suites in Minnesota on behalf of nine illegal Mexican immigrants. The National Labor Relations Board and Equal Employment Opportunity Commission had charged the hotel with firing the workers because they were leading a union organizing drive, along with other employment and labor law infractions. The workers are still in the country and are resisting a deportation order. (“Hotel Settles Illegal Aliens Case”, AP/FindLaw, Jan. 7) (see Oct. 29, Oct. 28 commentary).

January 8-9 – OSHA at-home worker directive. No wonder the AFL-CIO spoke favorably of this abortive (see Jan. 6, Jan. 5) proposal; as recently as the 1980s it was calling for an outright ban on telecommuting. Communications Workers of America president Mort Bahr, for example, warned that allowing stay-home employment was dangerous “particularly if that worker wants to work at home”. (Quoted in James Bovard, “How Fair Are Fair Labor Standards?”, Cato Inst./Regulation mag.) “Traditionally, unions have opposed telecommuting/work-at-home programs because they fear that such programs represent a return to cottage industry piecework. A distributed workforce makes it more difficult for unions to organize, represent members, and police collective bargaining agreements”. (“Telecommuting and Unions”, Telecommute America California Style).

Curiously, the only newspaper we could find that commented favorably on the new OSHA intervention was Silicon Valley’s own San Jose Mercury News (link now dead) (cynics might point out that since at-home tech workers in Bakersfield, Boise and Bangalore directly compete with the face-to-face Valley culture, they’re not exactly the Merc‘s constituency). At other papers it was a more or less uniform hail of dead cats: the Washington Post, USA Today, Wall Street Journal, Hartford Courant (“Bureaucrats Gone Berserk”), Los Angeles Times, Dallas Morning News, Boston Globe, Chicago Tribune, Detroit News, Cincinnati Post, Denver Post, Washington Times, Arizona Republic, Birmingham News, as well as Sen. Kit Bond, the American Electronics Association (EE Times) and commentators Steve Chapman (quotes our editor), Dick Feagler, Marjie Lundstrom, Bruce Harmon (Bridge News), and Ken Smith (many of these links via Junk Science)(many links now dead).

When the OSHA letter hit the nation’s front pages, reports the Washington Post, “A number of companies immediately put on hold plans to expand telecommuting privileges to employees”. But the letter was hardly a frolic or detour on the part of some low-level Munchkin: the agency spent two years on it, and it was “considered a declaration of existing policy by OSHA officials”. Among the possible real-world effects of the letter, the Post quotes a Labor Department official as saying, is to have been “used by courts to make it easier to hold employers accountable for injuries that occur in home offices” — i.e., in litigation. And “since Labor Department officials had originally regarded the letter [as] a statement of existing policy, it is unclear whether withdrawing the letter had much practical effect.” (Frank Swoboda, “Labor Chief Retreats on Home Offices”, Washington Post, Jan. 6)

January 8-9 – Right to win unlimited carnival prizes. Florida’s Busch Gardens has put a limit of ten a year on the number of prizes — stuffed animals, football jackets and the like — that its patrons can win at its carnival games. One of the park’s frequent patrons, Herman James, is so adept at the games that he says he makes a side business of reselling the many prizes he wins. Now Mr. James is suing the park, saying the ten-prize-a-year limit is unfair to him. The park denies that its limit is directed specifically at Mr. James. (“Man sues Florida’s Busch Gardens for the right to win unlimited prizes”, AP/Court TV, Jan. 5)

January 8-9 – Shenanigans on the bayou. Someone — who was it? — posed as a staff person with the clerk of court’s office and placed calls to potential jurors’ residences, inquiring about their plans, while a multimillion-dollar asbestos case was going through its jury-selection stage this fall in Plaquemine, La. Soon ugly charges were flying back and forth between Exxon Corp. and prominent Dallas plaintiff’s firm Baron & Budd. The case has been referred to the Office of Disciplinary Counsel, which regulates the state’s lawyers, but it’s expected to be at least a year before the ODC completes its investigation. A year? They sure take their time down there (Angela Ward, “Baron & Budd’s Bayou Blues”, Texas Lawyer, Nov. 11).

January 8-9 – No warning given to cousin-spouses. 22-year-old Leslie Zambrana and her husband Alfredo are seeking millions of dollars in a lawsuit against the University of Miami School of Medicine, Jackson Memorial Hospital and a health clinic for failing to warn them that their daughter might be born with Down’s Syndrome, the genetic disorder whose effects include mental retardation. The suit contends that even though Leslie told the clinic’s physician that she and her husband, the baby’s father, are first cousins to each other, she was not administered a recommended “triple screen” blood test for high-risk mothers that might have detected the syndrome and caused her to seek an abortion. The couple’s grandparents are also first cousins to each other. (Jay Weaver, “Married cousins sue over baby’s disability”, Miami Herald, Jan. 3).

January 7 – Hire that felon, or else. Our editor’s December Reason column, now online, looks at what happened after the state of Wisconsin passed a first-of-its-kind law forbidding employers in most circumstances from discriminating against job applicants on the grounds of those applicants’ criminal records. Among the consequences: the cash settlement won by the notorious “Halloween killer” from a company that declined to hire him on his release from prison, and a case where the Milwaukee school system learned it was not free to deny a job to a man convicted of felony child endangerment. (Walter Olson, “Reasonable Doubts: Felon Protection”, Reason, Dec. 1999) (see also our Sept. 24 commentary).

January 7 – Protests just aren’t what they used to be. We reported in our November 3 installment on how flag-burning protesters in at least one sizable American city (Las Vegas) are now legally required to take out advance environmental permits — smoke emissions into the atmosphere, and all that. Now John Leo, in a U.S. News column on the way many campus newspapers have faced intimidation and thefts of their stock after printing material that offends identity groups, tells what happened after “the Ohio State Lantern [ran] a comic strip poking fun at the women’s studies department….A noisy crowd took their protest to the front porch of cartoonist Bob Hewitt and attempted to burn a bra, but thanks to consumer protection regulations, the flame-retarding brassiere failed to ignite.” (John Leo, “The 1999 Sheldon”, U.S. News, Jan. 3)

January 7 – GQ on Gov. Bush, Karl Rove and litigation reform. The new January issue of GQ profiles Karl Rove, key strategist in the George W. Bush campaign and “easily the team’s most pivotal player after W. himself.” Aside from the intrinsic interest of the following passage, it allows our editor to get away with more shameless self-promotion about how his book The Litigation Explosion (buy it now!) gets read in high places:

“Of the four issues he ran on in ’94 [education, welfare, juvenile justice, tort reform], I can honestly say I played a role in only one of them,” Rove told interviewer Robert Draper. “I’m a huge tort-reform advocate, and I said, ‘See what you’ve talked about here — a thread of responsibility runs through all of these. We have a society where people are being held responsible for their actions not to the degree of their responsibility but to the degree of their monetary worth, and someone’s life’s work can disappear overnight because he happens to have deep pockets and gets hit by junk and frivolous lawsuits.’ And I gave him Wally Olson’s book [The Litigation Explosion] and a couple of others. He had feelings about the topic, but he hadn’t thought about it. And look — that’s the way the best candidates are. They need people around them to execute the mechanics of the campaign, the tactical considerations . And the strategy is born out of their heart, soul and gut.” (Robert Draper, “W’s Brain”, GQ, Jan. 2000 — not online)

January 6 – “Accord tossed: Class members ‘got nothing'”. A panel of the Seventh Circuit U.S. Court of Appeals has thrown out a settlement in a class-action suit over the mailing by Equifax Check Services Inc. of allegedly unlawful debt collection letters. Judge Frank Easterbrook, joined by Judges Richard Posner and Ilana Diamond Rovner, said the settlement provided no tangible benefit for the 214,000 class members while funneling fees, later determined to be $78,000, to the lawyer for the class. Equifax agreed to stop using a form letter and to donate $5,500 to a law school consumer clinic; “Crawford and his attorney were paid handsomely to go away; the other class members received nothing (not even any value from the $5,500 ‘donation’) and lost the right to pursue class relief,” Judge Easterbrook wrote. (opinion, Cases Nos. 99-1973 & 99-2122, decided January 3; Patricia Manson, “Accord tossed: Class members ‘got nothing'”, Chicago Daily Law Bulletin, Jan. 4)

January 6 – Haunted house too scary. “A woman suing Universal Studios contends the theme park operator’s annual Halloween Horror Nights haunted house attraction was too scary and caused her emotional distress.” Cleanthi Brooks, 57, says that when she and her granddaughter were visiting the Florida park in 1998, an employee wielding a (chainless) chainsaw chased them toward an exit, with the result that they slipped on a wet spot and suffered unspecified physical injuries. (Tim Barker, “Universal fall leads to lawsuit”, Orlando Sentinel, Jan. 5; “Woman sues haunted house over injuries, emotional distress”, AP/FindLaw, Jan. 5)

January 6 – OSHA backs off on home office regulation. Moving quickly to nip mounting public outrage, Secretary of Labor Alexis Herman now explains that the Occupational Safety and Health Administration never intended to bring home working conditions under full-fledged federal regulation — why, the idea never even crossed their minds! The advisory letter to that effect has been withdrawn, but Republicans on the Hill are promising hearings. (“Labor Department does about-face on home office letter”, AP/CNN, Jan. 5; see yesterday’s commentary)

January 6 – Backyard trash burning. Researchers from the Environmental Protection Agency and the New York State Department of Health report that the burning of ordinary trash by households, still a common practice in many rural areas, is an unexpectedly important likely source of release into the atmosphere of polychlorinated compounds such as dioxin, long a subject of regulatory scrutiny because of their potential toxicity. A family of four burning trash in a barrel on their property “can potentially put as much dioxin and furan into the air as a well-controlled municipal waste incinerator serving tens of thousands of households”. (“Backyard Burning Identified As Potential Major Source Of Dioxins”, American Chemical Society/Science Daily, Jan. 4)

January 5 – Beyond parody: “OSHA Covers At-Home Workers”. “Companies that allow employees to work at home are responsible for federal health and safety violations that occur at the home work site, according to a Labor Department advisory,” reports the Washington Post. The policy covers not only telecommuters but even the parent who briefly takes work home to be with a sick child. “Although the advisory does not provide specifics, in effect it means that employers are responsible for making sure an employee has ergonomically correct furniture, such as chairs and computer tables, as well as proper lighting, heating, cooling and ventilation systems in the home office.” Employers may also be responsible for identifying and repairing such hazards as, for example, rickety stairs that lead down to a basement home office. They “must also provide any needed training to comply with OSHA standards, and may have to ensure that the home work space has emergency medical plans and a first-aid kit.”

The new directive “makes sense”, says AFL-CIO health and safety director Peg Seminario: “Employers have to provide employees a workplace free from hazards.” Pat Cleary, vice president for human resources policy at the National Association of Manufacturers, takes a different view: “This is nuts”. And at Slate “Breakfast Table”, Matt Cooper is almost equally succinct: “This is one of those regulatory rulings that sets liberalism back a generation.” Washington lawyer Eugene Scalia calls the development “part of a string of recent initiatives intended to court union leaders as the presidential primaries approach.”

Sources: Frank Swoboda and Kirstin Downey Grimsley, “OSHA Covers At-Home Workers”, Washington Post, Jan. 4; Slate “Breakfast Table”, Jan. 4 (third item); “Workplace Rules Protect Home Office”, AP/FindLaw, Jan. 4; “Workplace Safety Rules Cover Telecommuters — OSHA”, Reuters/Excite, Jan. 4; Eugene Scalia, “Gore, Unions Invite OSHA to Your Home” (op-ed), Wall Street Journal, Jan. 5 (online subscription required).

Sequel: faced with mounting public outrage, the Department of Labor announced within 24 hours that it was withdrawing the new directive and rethinking its policy (see January 6 commentary)

January 5 – Calif. state funds used to compile tobacco “enemies list”. The Daily News of Los Angeles reported last month that the Americans for Nonsmokers Rights Foundation, a Berkeley advocacy group, has received $1.2 million from the state of California over the past four years to track and counter critics of “tobacco control”. Among its activities: “[m]onitoring people who attended and spoke on tobacco issues at city council meetings in cities throughout the state”, “[i]nvestigating a federal judge in North Carolina who issued a ruling in a case involving second-hand smoke,” and “[i]ncorrectly accusing John Nelson, a spokesman for former Assembly Speaker Curt Pringle, of being on the payroll of the tobacco industry. After Nelson complained, the foundation apologized.”

A state official acknowledges that the private foundation has been asked to monitor groups that have “interfered in tobacco control activities” — such “interference” taking the form, for example, of opposing municipal smoking-ban ordinances. Steve Thompson, vice president for government affairs of the California Medical Association, called the program “a political surveillance operation on people that this group perceived as unsympathetic to the anti-smoking movement.” Among those who learned that his name was on the resulting lists was Los Angeles attorney Bradley Hertz, who led the opposition to an anti-smoking ordinance in Long Beach but says he was erroneously listed in the advocacy group’s reports as a participant in pro-tobacco efforts on a statewide level; Hertz says that in his view public funds should not be used to “spy on citizens”. Jon Coupal, president of the Howard Jarvis Taxpayers Association, went further, charging that the dossier-compiling “smack[ed] of Gestapo tactics…. Taxpayers are actually financing an abuse of government power.” However, some on the other side dismissed the criticism and said they found nothing improper about the program. “To protect the public interest, there must be independent monitoring of these front groups — the job cannot be left to newspapers or public officials,” said Sen. Tom Hayden (D-Los Angeles).

In North Carolina, many attorneys “leapt to the defense” of U.S. District Judge William Osteen, who the Nonsmokers Rights group targeted with an exposé after he handed down a 1998 ruling overturning a federal report on secondhand smoke. “To me it’s just one more example of a focused interest group trying to intimidate judges,” said the recently retired chief justice of the N.C. Supreme Court, Burley Mitchell. “It’s part of the meanness that’s crept into public life at all levels.”

Sources: Terri Hardy, “Smokers’ Spy Tax; Using Tax Funds for ‘Enemies List’ Not What Public Intended, Critics Say”, Daily News (Los Angeles), Dec. 6; and “Group Assailed for Sloppy Work; Man Says Organization Hurt His Reputation When it Got Facts Wrong”, sidebar to above, same date (fee-based archive, search Daily News file on “Nonsmokers Rights Foundation”); same, reprinted as “Tax-funded group had ‘enemies list'”, Orange County Register, Dec. 6 (fee-based archive, see above); David Rice, “Lawyers back N.C. judge on anti-smoking group’s ‘hit’ list”, Winston-Salem (N.C.) Journal, Dec. 9, link now dead. See also “Tobacco industry influence and income on decline in California”, press release, Oct. 12, for an account of “research” at the Univ. of California, S.F., into constitutionally protected advocacy and campaign contributions from tobacco sources; the work was funded by the tax-supported National Cancer Institute as well as the American Cancer Society.

January 5 – New page on Overlawyered.com: cyberlaw. The legal woes of such class-action defendants as Microsoft and Toshiba, liability for improper linking and non-handicap-compliant web design, domain-name squabbles, state-of-the-art ways for your litigators to sift through your enemies’ and competitors’ internal emails, and other news of the growing inroads being made against America’s most successful business, high-tech, by its second most successful business, litigation.

January 4 – Gun-buying rush. “More than a million Americans asked for background checks so they could buy guns in December, a surge insiders say has something to do with Millennium mania, but more to do with pending litigation,” Reuters reports. “Current and pending litigation…is making many consumers rush to buy arms before any anti-gun verdicts or new laws further restrict their purchase,” in the view of a spokesman for gunmaker Sturm, Ruger & Co. Better exercise those Second Amendment rights before mayors, trial lawyers and Clinton cabinet secretaries take ‘em away for good! Yet such a result is far from the outcome of any democratic decision process; indeed, senior analyst H. Sterling Burnett of the National Center for Policy Analysis) cites the results of a poll conducted by the Tarrance Group finding firearms manufacturer liability a singularly unpopular idea — “only 5 percent [of respondents] feel that manufacturers or retailers should be held responsible for firearm misuse”.

A second Reuters report, from London, suggests the havoc litigation can wreak on its targets’ businesses through its sheer uncertainty, independent of outcome. British-based conglomerate Tomkins PLC would like to sell its U.S. handgun maker Smith & Wesson, according to the Financial Mail on Sunday. But the newspaper “said the prospect of class action lawsuits against gun makers in the United States could block any sale of Smith & Wesson. ‘Tomkins will (sell Smith & Wesson) if it can, but until the lawsuits are settled, it may be difficult to sell,’ [a] source close to Tomkins was quoted as saying.”

Sources: “Century End, Lawsuit Threats Spark Gun Sales Spike”, Reuters/FindLaw, Dec. 28; H. Sterling Burnett, “Latest Gun Lawsuits Leading Us Down a Slippery Slope,” Houston Chronicle, Dec. 11, 1999; Burnett, NCPA op-ed, Dec. 12; “U.S. gun maker sale mulled”, Reuters/CNNfn, Jan. 2.

January 4 – Lawsuits over failing grades. In Bath Township, Ohio, 15-year-old Elizabeth Smith and her mother Betsy Smith have sued the Revere School District and 11 teachers over the girl’s failing grades. The suit, which seeks $6 million, says the school’s grading practices punished the girl for her frequent lateness and absences even though “Elizabeth has chronic tonsillitis that caused her to miss school, and she has had to stay home in the mornings to put her twin siblings on their elementary school bus because her mom, a single parent, had to be at work,” said her lawyer, James Childs. And Kerry Grandahl has sued the Massachusetts College of Pharmacy and Allied Health Sciences after her dismissal for poor exam scores, charging that under the Americans with Disabilities Act the school should have accommodated her “exam phobia,” which she says was triggered by depression. Because the exam room was noisy and thronged with other students, Kerry “could hardly concentrate, much less remember what she knew,” according to the suit filed by attorney Nicholas Kelley, which faults the school for not allowing her to take exams in smaller rooms with her own monitors. (Donna J. Robb, “Student fails over failing grades”, Cleveland Plain Dealer, Dec. 8; Shelley Murphy, “Ex-student sues college for ignoring ‘test phobia'”, Boston Globe, Dec. 21).

January 4 – Expert witnesses and their ghostwriters. Critics have long voiced alarm about the way American lawyers can orchestrate the testimony of expert witnesses they hire. In a recent case in Michigan a federal magistrate judge threw out the testimony of an expert hired by plaintiffs in a “vanishing-premium” case against Jackson National Life Insurance Co. The magistrate found that the report filed by actuary Philip Bieluch avowing his opinion as to the facts of the Jackson case had improperly reused verbiage from a report he had filed for the same lawyers in a separate case in Iowa, and was “substantially similar” to the language of a report filed by an entirely different expert in a Louisiana case. U.S. Magistrate Judge Joseph Scoville concluded that the lawyers themselves had furnished Bieluch with the wordings: “This is one of the most egregious cases of providing witness-for-hire testimony that I’ve ever seen, and at some point the courts have to say that enough is enough,” he said. The plaintiff’s executive committee in the Jackson National litigation included representatives of four firms, including well-known class-action powerhouse Milberg Weiss Bershad Hynes & Lerach. (Emily Heller, “An Insurance Expert Is Bounced”, National Law Journal, Oct. 28).

January 3 – Lawyers for famine and wilderness-busting? “Pitched on its environmental merits, the class-action lawsuit filed [last month] against Monsanto would be thrown out in short order,” argues Peter Huber of the Manhattan Institute. “So the lawyers dressed it up as an antitrust case instead.” Class-action high rollers such as Washington’s Michael Hausfeld have lent their assistance to longtime ludfly Jeremy Rifkin in organizing the suit. “They aren’t trying to save free markets from a monopoly, and the last thing they want is more competition in this field. What Mr. Rifkin is after is something even less competitive than a monopoly. He wants nobody in the genetic technology business at all.” If that happens, lawyers will have managed to stop today’s best hope — given the new methods’ success in boosting crop yields — for enabling the Third World to feed itself without pushing its agriculture into yet more wilderness.

“Perhaps the most ridiculous aspect of this whole farce,” writes “Moneybox” columnist James Surowiecki at Slate, “is Rifkin’s use of the word ‘populist’ to describe the suit” — which, after all, seeks to shift power away from elected officials and farming populations and into the hands of elite lawyers and activists who effectively appointed themselves. Surowiecki calls the action and its arguments “spurious”, a “publicity stunt” and “a haphazard and scattershot collection of charges that might have been designed to demonstrate the excesses to which the U.S. legal system can be driven.”

Meanwhile, the world’s most prominent environmental group, the million-donor, supposedly respectable Greenpeace, has been openly conducting property-destroying sabotage against biotech installations in the United Kingdom; the “direct action” bug has now crossed the Atlantic, and last year vandals struck more than a dozen crop sites in the United States.

Sources: Philip Brasher, “Antitrust lawsuit to fight biotech farming”, AP/Spokane Spokesman-Review, Sept. 14; “Rifkin sues Frankenfood giant”, Reuters/Wired News, Dec. 14, link now dead; Peter Huber, “Ecological Eugenics”, Wall Street Journal, Dec. 20, now reprinted at Manhattan Institute site; James Surowiecki, “Jeremy Rifkin’s Spurious Suit Against Monsanto”, Slate, Dec. 20; Michael Fumento, “Crop busters”, Reason, January; anti-biotech site Genetech.

January 3 – Overlawyered.com forums on hold for now. Over the holiday weekend we attempted to install an upgrade for this site’s bulletin board software. Bad move: we managed instead to knock out the forums entirely, and haven’t even succeeded in figuring out yet what went wrong. We’d like to keep the forums idea going, but are mulling over a number of options at this point, including the possibility of forums hosted off-site, which might lessen the demand on our already overstretched techie skills. Advice from experienced forum-managers is welcome.

January 3 – This side of parodies. Calls for a ban on lawyer jokes as hate speech? A Million Lawyer March on Washington to protest anti-attorney stereotyping? Well, maybe not yet, but it can be hard to pick out which elements of this whimsical column are based on fact and which parts are invention. (Richard Dooling, “When you prick us…”, National Law Journal, Oct. 11).