Last week this site’s editor visited the Sooner State to speak to the Oklahoma Council of Public Affairs, in conjunction with which visit commentator/radio host Brandon Dutcher recorded this informal Q & A which touches on the tobacco and fast food litigation, the prophetic role of former Okla. Sen. Fred Harris, and more (“No Joke: Lawsuit Abuse Hurts Us All”, interview with Walter Olson, OCPA Perspective, August)
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This Thursday, Aug. 14, our editor will be giving a luncheon speech to the Milwaukee chapter of the Lawyers Division, Federalist Society (details). And on Wed., Aug. 20, he’ll address the Oklahoma Council of Public Affairs as the final speaker in its Summer Speaker series in Oklahoma City (flyer) (Tulsa Today). In conjunction with the OCPA event he’ll be heard on several broadcast shows in the Sooner State, including, on Tues. Aug. 12 at 1 p.m. CDT, station WKY with host Brandon Dutcher, and on Fri. Aug. 15 at 7:15 a.m. CDT, station KTOK with host Cam Edwards, as well as a discussion show (time TBA) on KFOR-TV (NBC, ch. 4).
In the latest high-profile lead paint suit to go down to defeat, Milwaukee County Circuit Judge Timothy G. Dugan dismissed the city of Milwaukee’s lawsuit demanding $85 million from NL Industries, maker of Dutch Boy paint, and Mautz Paint Co. Although Milwaukee’s contingency fee agreement with private lawyers was widely billed as one in which city taxpayers faced no risk, it turns out that the city will owe the private lawyers a substantial sum for expenses if it chooses to abandon the case rather than pursue appeal. (Tom Held, “Judge dismisses lawsuit against lead paint companies”, Milwaukee Journal Sentinel, Jul. 30; AP/Madison Capital Times, Jul. 30). The lawsuit had already contributed to the demise of the family-owned Mautz Paint Co., which sold itself to Sherwin-Williams in part because it could not afford to shoulder a legal defense (see Nov. 13, 2001). “The African American Chamber of Commerce and the Hispanic Chamber of Commerce praised the court’s action in prepared statements. ‘This lawsuit has hurt efforts to clean up lead paint problems,’ a statement from the African American Chamber said.” (“City’s lead paint suit dismissed”, Milwaukee Business Journal, Jul. 28).
The following essay was written circa 1999 by our editor and formerly appeared on the site’s topical page on loser-pays.
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America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward “making whole” its prevailing opponent. It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.
Overlawyered.com‘s editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device. He also testified before Congress when the issue came up that year as part of the “Contract with America”. Not online, unfortunately, are most of the relevant sections from The Litigation Explosion, which argues at length for the loser-pays idea, especially chapter 15, “Strict Liability for Lawyering”.
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Archived entries before July 2003 can also be found here.
2003: “Stuart Taylor, Jr. on lead paint litigation“, Mar. 5-7.
2002: “R.I. lead paint case goes to jury“, Oct. 28-29 (& Oct. 30-31: mistrial).
2001: “From the paint wars: a business’s demise, a school district’s hypocrisy“, Nov. 13; “Forbes on lead paint suits, cont’d“, Jun. 8-10; “Ness monster sighted in Narragansett Bay” (Rhode Island, Ness Motley), Jun. 7 (& see Dec. 27-28, 1999 re R.I.); “Reparations: take a number“, Apr. 17 (& see Olson, Reason, Nov. 2000); “‘Painting the town — with lawsuits’“, Mar. 7-8; “‘Bogus’ assault on Norton“, Jan. 18.
2000: “The right to be poisoned“, Nov. 30; “A job offer for the judge“, Sept. 25-26 (see also April 12, 2001); “Maryland: knowledge, notice not needed to sue landlords over lead“, Apr. 24; “Game over four decades ago: let’s change the rules” (retroactive Md. legislation), Mar. 15; see also Baltimore Sun special coverage); “New York court nixes market-share liability for paint“, Jan. 17.
1999: “‘The Dutch Boy isn’t Joe Camel’“, Nov. 10; “Covers the earth with litigation“, Oct. 14.
May 9-11 – Senate panel nixes tobacco-fee clawback. “Senators working on a tax bill Thursday stripped a proposal that would have forced attorneys in a landmark tobacco lawsuit to give $9 billion in fees back to the states they represented.” Sen. Jon Kyl, R-Ariz., had proposed requiring plaintiff’s lawyers in the tobacco affair to return to their state-government clients fees in excess of $2,500/hour or thereabouts. “But Democrats, led by Sen. John Breaux, D-La., and joined by Republican Sens. Orrin Hatch of Utah and Gordon Smith of Oregon, won a 12-8 vote to strike the language. Sen. John Kerry, D-Mass., said that if Congress can change the terms of the tobacco settlement, there is nothing to stop it from telling every business in America to change the way they pay their executives.” It’s almost as if Sen. Kerry doesn’t realize that 1) a host of federal laws already on the books, notably tax provisions, do purposely shape the way businesses compensate their executives; 2) lawyers, unlike business execs, practice under professional ethical codes which are supposed to bar them specifically from charging excessive fees; 3) lawyers who claim to represent the government (and thus the public) come under some of the most stringent ethical constraints of all. (“Senate Democrats Strike Proposal to Limit Fees for Lawyers in Tobacco Case”, AP/Tampa Bay Online, May 8; Stephen Moore, “Targeting lawyers who got rich off tobacco trials”, Scripps Howard/Nando Times, May 2) (& welcome Law.com readers). (DURABLE LINK)
May 9-11 – Update: “U.S. is sued for deaths of crossers”. “The families of 14 illegal entrants who died crossing the desert east of Yuma in May 2001 have filed a $42 million lawsuit against the U.S. Department of the Interior.” As we reported a year ago when the cases were at an earlier procedural stage, “The suit charges the government with failing to authorize the placement of water stations intended for use by unlawful visitors, though it knew smugglers of immigrants were active in the desert area.” (Michael Marizco, Arizona Daily Star (Tucson), May 8). (DURABLE LINK)
May 8 – “No Crueler Tyrannies”. Dorothy Rabinowitz’s long-awaited book on the mass-child-abuse accusation frenzy of the 1980s and 1990s is now available at this link. It collects and extends the widely acclaimed Wall Street Journal reporting that prepared the way for the author’s 2001 Pulitzer Prize (review by Carol Iannone, Commentary, May; C-SPAN “Booknotes” interview with Brian Lamb, May 4; Suzanne Fields, “A cruel tyranny at home”, syndicated/TownHall, Apr. 3; other reviews at Amazon site). (DURABLE LINK)
May 8 – More on Edwards’ law-firm donations. Washington periodical The Hill digs deeper into the curiously uniform $2,000 contributions Sen. John Edwards’ presidential campaign got from so many receptionists, paralegals and other low-level staffers at plaintiff’s law firms. The $2,000 donors include many employees who had not given to candidates or even voted in the past, and others who are listed on the voting rolls as Republicans. Many spouses and relatives of the staffers likewise contributed the maximum. Some of the munificent staffers have recently gone through the kind of personal financial reverses — bankruptcy filings, for example — which would not seem to correlate in the natural order of things with having a large available checkbook for political donations. “In many instances, all the checks from a given firm arrived on the same day — from partners, attorneys, and other support staff.” Employees denied that their law-firm employers had signaled any willingness to reimburse the donations, which would constitute a violation of federal law. (Sam Dealey, “Donations to Sen. Edwards questioned”, The Hill, May 7). (DURABLE LINK)
May 7 – Mississippi investigation heats up. Per the Times of South Mississippi (Hattiesburg), the “net may be widening” in the FBI’s previously reported investigation of improper ties between Mississippi judges and well-known trial lawyers (see Oct. 9-10 and 11-13, 2002). “Sources said this week as many as 25 indictments could be issued …While reports of the investigation have focused on the Gulf Coast, sources said the probe now includes campaign contributions from trial lawyers connected to Southwest Mississippi,” renowned as the center of intense litigation against pharmaceutical companies. (“Bob Pittman, “FBI widening its investigation of campaign funding”, Times of South Mississippi (Hattiesburg), May 5. See also “Diaz’s dad testifies before grand jury”, Jackson Clarion Ledger, Apr. 12; Jerry Mitchell, “Judicial probe intensifying”, Jackson Clarion Ledger, May 2).
“Meanwhile,” the Hattiesburg paper continues, “four trial lawyers who have been active in lawsuits against prescription drug manufacturers are named as defendants in a growing number of court actions in Jefferson County. In at least four suits filed to date, trial lawyers Dennis Sweet, Shane Langston, Richard Freese and Richard Schwartz, all of Jackson, have been named as defendants in cases in which it is alleged that the four either withheld settlement money from clients or failed to pay hired ‘runners’ who were employed to enroll plaintiffs in cases which the lawyers filed in several different counties in Mississippi, including Jasper County.” (May 5 article, cited above). See also Bob Pittman, “Judge asked to step aside in trial lawyer suit”, May 1; Bob Pittman, “Suit alleges lawyer used ‘fake clients’”, May 1. (DURABLE LINK)
May 7 – Jury selection in Britain. Notwithstanding the understandable outcry over a recent case in which a British judge excluded prospective jurors from a politically sensitive trial based on their religion, the general rule in the English system is for jurors to be drawn from a near-universal pool and selection to be made at random. “English lawyers are not pestered by jury consultants: they do not exist here. We do not have days of jury selection before a trial starts, as I have seen for myself several times in the United States, with prospective jurors questioned in depth and sometimes with aggression by lawyers anxious to explore possible prejudices. Defense barristers in England used to have the right of seven (then whittled down to three) peremptory challenges without any need for courtroom interrogation….But Parliament abolished peremptory challenges by the defense in 1989, and although not technically abolished, ‘standing by for the Crown’ [the equivalent for the prosecution] now seldom occurs.” For-cause challenges are rare as well. (Fenton Bresler, “Picking juries — or not”, National Law Journal, Mar. 17, not online). (DURABLE LINK)
May 6 – “Robber sues clerk who shot him during holdup”. Muncie, Ind.: “A convicted robber is suing the convenience store clerk who shot him as he fled after a holdup. Willie Brown, 44, claimed the clerk acted ‘maliciously and sadistically’ in firing five shots as Brown ran out of Zipps Deli with money from the store’s cash register.” Brown, who was struck by bullets in the back and side, pleaded guilty to robbery and was sentenced to four years in prison. His earlier convictions included one for robbery and two for burglary. (AP/Indianapolis Star, Apr. 18). And in Great Britain, “Government lawyers trying to keep the Norfolk farmer Tony Martin behind bars will tell a High Court judge tomorrow that burglars are members of the public who must be protected from violent householders.” (Robert Verkaik, “Government lawyers say burglars ‘need protection’”, The Independent (UK), May 5). Plus: in Bentonville, Ark., inmate Kenneth J. Lewis II is suing Nina Baugh for $140,000 in damages; according to affidavits, Lewis was shot by Baugh after he attempted to burglarize her family’s pawn shop and another business. Lewis was sentenced in January to 12 years’ imprisonment after he pleaded guilty to commercial burglary and aggravated assault (Tracy M. Neal, “Convicted burglar sues woman who shot him during crime”, Benton County Daily Record, Apr. 19). (DURABLE LINK)
May 6 – Year’s most injudicious judges. The National Law Journal‘s annual survey of misbehavior on the bench includes jurists alleged to have slept with litigants, offered to fix cases, set new records for rudeness, and run a Ponzi scheme from chambers, not to mention the jurist who is said to have referred to himself as “God”. (Gail Diane Cox, “The Injudicious: Judges who crossed the line — or erased it”, May 5). (DURABLE LINK)
May 5 – Friends in high places, cont’d. A bill expanding wrongful death damages — a top priority of the state’s trial lawyer association — is moving quickly through the GOP-controlled New York state senate; it happens that the “head of the Judiciary Committee and the sponsor of the bill is big-time trial lawyer John DeFrancisco (R-Syracuse). It’s not just Democrats like Assembly Speaker (and trial lawyer) Shelly Silver who are in the lawyer lobby’s pocket.” (“Lawyer leeches would bleed N.Y.C.” (editorial), New York Daily News, Apr. 18)(more on bill, Business Council of New York State)(see Dec. 13-15, 2002, Oct. 4, 2000). And in Kansas, “Gov. Kathleen Sebelius used her first veto to reject a bill designed to promote rural tourism. Specifically, the bill would shield from lawsuits farmers and ranchers who, for a fee, let people watch and take part in some farm activities. … The strongest opposition to the bill came from the Kansas Trial Lawyers Association, which employed Sebelius as executive director before her election to the House in 1986.” (Steve Painter, “Sebelius vetoes farmer liability shield”, Wichita Eagle, Apr. 16). While with the KTLA Sebelius “worked closely with the Legislature as a lobbyist” (bio) and then went on to attract widespread notice as her state’s insurance commissioner before running for governor. (DURABLE LINK)
May 5 – Prospering despite reform. Some observers thought the Private Securities Litigation Reform Act of 1995 law “was aimed at putting [class action firm] Milberg Weiss — and especially partner William Lerach, the lawyer many corporate executives love to hate — out of business. … Instead, according to a new study by Stanford Law School’s Securities Class Action Clearinghouse and Cornerstone Research, Milberg Weiss is doing better than ever.” (Tamara Loomis, “Milberg Weiss Stronger Than Ever Despite Reform Act”, New York Law Journal, Apr. 24). An analysis for the Cato Institute by Adam S. Pritchard of the University of Michigan Law School concludes that the law has, as intended, worked to raise the average quality of securities suits and weed out those with least merit. (“Should Congress Repeal Securities Class Action Reform?”, Cato Policy Analysis, Feb. 27 (executive summary, full text in PDF format)). (DURABLE LINK)
May 3-4 – “Streets Strewn With Glass, Gold”. Don’t miss this profile of D.C.’s subculture of “accident investigators” who solicit participants in car crashes to file lawsuits, often bombarding their phones with evening and early-morning calls for days. “The lawyer who introduced him to the business was killed by a car while standing on an exit ramp, apparently talking with accident victims, ["personal injury specialist" Warren] Johnson says.” (Libby Copeland, Washington Post, May 1). (DURABLE LINK)
May 3-4 – By reader acclaim: “Student sues over top title”. “A Moorestown [N.J.] High School senior, contending that the district superintendent is engineering new rules that would force her to share the title of valedictorian with another student, sued school officials yesterday. Blair L. Hornstine, 18, who aspires to be a lawyer, asked a federal judge to prevent the school from declaring valedictorian anyone other than the student with the highest GPA.” (John Shiffman, Philadelphia Inquirer, May 2; Tanya Barrientos, “Student’s lawsuit shows lack of class”, May 3). Update May 13: Hornstine wins suit (DURABLE LINK)
May 1-2 – It ain’t heavy to him, he’s my brother. In September, according to the National Law Journal‘s “Verdicts and Settlements” column (Oct. 7, 2002, not online) a Texas jury awarded $134,000 to Jennifer Grobe, an employee of the Granite & Iron Store in Fredericksburg. “According to Grobe, she suffered two herniated lumbar discs when she lifted one of two 100- to 125-pound granite tables that the store’s owners had left in the entrance”. Why Grobe’s claim went to a jury in the form of a lawsuit, rather than to the workers’ comp system, is not clear from the context.
The bit in the NLJ‘s report that drew our attention was the following: Grobe’s suit alleged that her employer was negligent “for placing the tables in the entrance and for failing to comply with store policy by not having two male employees available.” Perhaps we’re missing something, but wouldn’t the employer have faced likely liability exposure if it had enforced a policy of “having two male employees available” to handle heavy deliveries? As any self-respecting sex-discrimination litigator would point out, such a policy closes off some work opportunities to women and trades on impermissible (no matter how generally accurate) stereotypes of men as wielding greater upper-body strength. (DURABLE LINK)
May 1-2 – Those litigious Americans. “An ad for Dutch brewer Heineken NV depicts lawsuit-happy Americans suing each other over spilled beer…The idea is that Heineken is so good it makes Americans abandon their litigious natures.” (Erin White, “National Lampoon: U.K. Ads Satirize American Demeanor”, Wall Street Journal, Apr. 28, online subscribers only). (DURABLE LINK)
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July 19-21 – Disabled lap dancing just the start. Our recent item (Jul. 16-17) on demands for accessibility in lap-dancing facilities reminded an alert Australian reader of a recent case from his country in which a disabled complainant filed charges against the proprietors of a “swinging house party”, which was found in unrelated proceedings to be operating as an unlicensed brothel, for excluding her because of her status as a wheelchair user. (Ball v Morgan & Anor [2001] FMCA 127)(adult content warning, though it’s a court opinion). (DURABLE LINK)
July 19-21 – Stolen silence? Via WSJ OpinionJournal Best of the Web Today: “The London Sun reports that Nicholas Riddle, who heads a firm that owns the copyright to the late John Cage’s composition ’4′ 33″ ‘–which consists of four minutes, 33 seconds of silence–is suing ‘pop guru’ Mike Batt, whose new band, the Plantes, has just released an album with a track called ‘A One Minute Silence.’ Riddle alleges that Batt violated Cage’s copyright. ‘John always said the duration of his piece may be changed, so the Planets’ piece doesn’t escape by virtue of its shorter length,’ Riddle tells the paper. ‘We want our royalties.’” Oh please, let this be a Monty Python skit and not an actual lawsuit (Thomas Whitaker, “Silence is old ‘un”, The Sun (London), Jul. 18). (DURABLE LINK)
July 19-21 – Enron’s other helpers. If Arthur Andersen & Co. is going to get run out of business for approving Enron’s dubious financial deals, why is its outside law firm, Vinson & Elkins, unlikely to face similarly devastating consequences for approving and helping structure the same deals? Well, one reason is that accountants are conceived of as having broad obligations to the general public, while lawyers mostly aren’t. Rather convenient for the lawyers, don’t you think? Julie Hilden makes a valiant effort to defend the double standard as a principled one (“Scummery Judgment”, Slate, Jun. 21). (& see letter to the editor, Oct. 23) (DURABLE LINK)
July 18 – “Family of boy injured by leopard may sue”. “In April, Eric River, 11, sneaked into the Rosamond Gifford Zoo at Burnet Park with friends, tried to feed and pet a snow leopard, got 10 deep lashes to his face, arm and back, and received 500 stitches. Now, three months later, his mother, Terry Wells, is threatening to sue the zoo’s owner, Onondaga County, for failing to properly secure and police the zoo after hours.” River and three friends managed to get into the zoo by scaling one 8-foot fence, squeezing through a gap in another, and scaling a 4-foot fence before finally approaching the leopard in its cage. (Teri Weaver, Syracuse Post-Standard, Jul. 17) (see Sept. 21, 1999). (DURABLE LINK)
July 18 – “Trauma center reopens doors”. The only trauma center in southern Nevada has reopened, “ten days after a state malpractice insurance crisis forced its closure”. (Las Vegas Review-Journal, Jul. 14; Joelle Babula, “University Medical Center: Trauma center closing”, Las Vegas Review-Journal, Jul. 2; Steve Kanigher, “Trauma cases to shift to nearest hospital”, Las Vegas Sun, Jul. 2; William Booth, “Las Vegas Trauma Center Closes as Doctors Quit”, Washington Post, Jul. 4; Las Vegas Review-Journal, coverage at a glance). Crisis continues in Mississippi: Reed Branson, “Doctors shutting practices amid epidemic of lawsuits”, GoMemphis.com, Jul. 11; John Porretto, “Exodus of doctors causing crisis for moms-to-be in Mississippi”, AP, Jul. 11. Texas: Mary Ann Roser, “Doctors at a crossroads”, Austin American-Statesman, Jun. 17. (DURABLE LINK)
July 18 – “Edwards’ fund raising a strong suit”. Why are we not surprised that he’s vaulted ahead of some better-known Democrats on the money-raising front? “Reports released Monday show that two fund-raising committees controlled by Edwards raised a combined $2.6 million in the second quarter of this year and that the North Carolina Democrat now has more than $4.4 million in the bank. … A News & Observer analysis of Edwards’ PAC money showed that more than 77 percent of it came from lawyers or law firms.” (John Wagner, Raleigh News & Observer, Jul. 16). All five of the top contributors to the Edwards campaign are plaintiff’s law firms, the list topped by Girardi & Keese of Los Angeles and Baron & Budd of Dallas, both familiar to longtime readers of this site. (David Brown, “The Candidate”, The Recorder, Jun. 14). (DURABLE LINK)
July 16-17 – By reader acclaim: quadriplegic sues strip club over wheelchair access. Edward Law of Orlando, Fla., who is quadriplegic, “has sued a strip club, charging that it violates the Americans with Disabilities Act because the lap dance room does not have wheelchair access.” In addition to suing the Wildside Adult Sports Cabaret of West Palm Beach, Law has also recently sued a second strip clup, “an Orlando restaurant and a Daytona Beach Harley-Davidson motorcycle shop”; we don’t know yet whether to assign his filing activities to this category. (“Orlando quadriplegic sues strip club over wheelchair access”, AP/Palm Beach Post, Jul. 15)(for more on lap-dance handicap accommodation, see Sept. 27-28, 2000). (DURABLE LINK)
July 16-17 – Mercury in dental fillings. For well over a century dentists have used a mixture of metals including mercury in standard tooth fillings, and both the U.S. Public Health Service and Consumers Union have declared that patients have no grounds for alarm that the fillings pose a risk to health. That hasn’t convinced a small if longstanding body of dissenters who hold that exposure to even trace amounts of the heavy metal must be having toxic effects on users’ bodies. The dispute has lately turned litigious, with Van Nuys, Calif. personal injury and environmental attorney Shawn Khorrami spearheading several suits which accuse the American Dental Association and dentists of wrongly promoting the material, and the ADA striking back with a defamation suit. (Doug Bandow, “Killer teeth?”, Cato Institute Dailies, Jun. 28; Raymond J. Keating, “Lawsuits and Legislation Causing Pain for Dentists”, Small Business Survival Committee, Jun. 7; AltCorp (anti-mercury testing firm); Stephen Barrett, “The Mercury Amalgam Scam”, QuackWatch.com, last revised Apr. 23; search QuackWatch on “amalgam”; American Dental Association on ADA v. Khorrami). (DURABLE LINK)
July 16-17 – Hizzoner’s divorce, settled at last. “Anyone who’s been appalled at the depths to which the parties stooped in this Hanover/Giuliani split just hasn’t been divorced from a millionaire often enough. As big splashy divorces go, this was no uglier than most.” (Dahlia Lithwick, “Hats Off to Rudy”, Slate, Jul. 12). (DURABLE LINK)
July 16-17 – “Spanking Client Not Legitimate Trial Prep Tactic”. Just plain bizarre: U.S. District Judge Robert N. Chatigny has ruled that an attorney’s malpractice insurer is not obliged to pay out in a case in which Derby, Ct. attorney Milo J. Altschuler allegedly took a client across his lap and spanked her before a court appearance. “The woman claimed Altschuler, before removing her panties and stockings, told her he needed to spank her so the judge didn’t think she was lying.” Judge Chatigny ruled that the spanking did not constitute the rendering of professional services, although Altschuler “acknowledged that he used [threats of spanking] in representing more than a dozen other clients to make them ‘more afraid of him than they would be of the prosecutor.’” (Scott Brede, Connecticut Law Tribune, Jul. 15). (DURABLE LINK)
July 15 – “Morales’ $1 Million Tobacco Fee Under Fire”. “Former Attorney General Dan Morales told lawyers that a $1 million contribution to his political campaign fund was a condition for joining his anti-tobacco legal team, a Houston lawyer testified in a newly released document.” In a 1999 interview that has only now been made public in court proceedings, an assistant to Texas Attorney General John Cornyn questioned Houston attorney Wayne Fisher, a former president of the State Bar and a former president of the Texas Trial Lawyers Association, under oath. Fisher “said Morales outlined two separate requirements during a meeting he had with the then-attorney general in 1995. Fisher said one condition of employment was to ‘front’ the legal expenses and a second was to ‘commit to contribute $1 million to (Morales’) political campaign — to (Morales’) political campaign fund, as I recall it.’” Fisher “chose not to join Morales’ legal team”; he also “recalled wondering later if the meeting was a ‘sting operation.’” Fisher’s account seems to buttress earlier recollections by noted plaintiff’s attorney Joe Jamail, who also did not join the state’s team (see Sept. 1-3, 2000, May 22, 2000, June 21, 2001, Aug. 29-30, 2001, Nov. 12, 2001).
The five law firms eventually hired by Morales are all “major contributors to Democratic candidates and causes”. Michael Tigar, attorney for the five, denies that any of their tobacco fees or expenses went to Morales but concedes that “some was paid to Austin political consultant George Shipley. Tigar said all the payments to Shipley were first reviewed by University of Texas law professor Charles Silver, who was retained by the lawyers as an ethics adviser.” (Clay Robison, Houston Chronicle, Jul. 12). (DURABLE LINK)
July 15 – Paper currency should accommodate blind, suit argues. “The American Council of the Blind, which seeks to improve conditions for the visually impaired, has sued the Treasury Department to force its way into the currency revamping process. …The group is not promoting a specific change that would help blind and sight-impaired Americans sift through their money, but hopes the government will study an array of options that would be helpful. A major step could be offering denominations in different colors or sizes with large-print features, like many other countries, [Ralph] Brunson said. Braille and textures also are possibilities, although the markings are prone to wearing off. ‘We did not specify a particular option because, primarily, at this point we’re trying to get the dialogue going,’ Brunson said.” (Mark Babineck, “Blind Group Sues U.S. over Currency”, AP/FindLaw, Jul. 1). (DURABLE LINK)
July 15 – New civil rights target: “linguistic profiling”. With assistance from a Ford Foundation grant, the National Fair Housing Alliance and Stanford education and linguistics professor Dr. John Baugh have launched a project “to study the impact of linguistic profiling on housing discrimination. This summer, Baugh will track the instances of bias that the housing markets show toward speakers of non-standard English over the telephone. Baugh says speakers who do not ‘sound white’ often are discriminated against over the telephone. ‘Even though the courts are reasonably well equipped to prosecute cases of face-to-face discrimination,’ says Dr. Baugh, ‘they have a hard time understanding and applying the law to linguistic profiling, and that’s where this research will help.’” “National Study on Linguistic Profiling in Housing Announced”, Jun. 26)(via Scott Norvell, FoxNews.com, Jul. 1). (DURABLE LINK)
July 12-14 – Welcome Salon.com readers, Bill O’Reilly listeners. We’re cited in Janelle Brown’s excellent article on parental lawsuits against teachers (“L is for Lawsuit”, Jul. 12) which mentions our subpage on overlawyered schools. And our editor is appearing today (Fri.) on Bill O’Reilly’s popular radio show to discuss the case of a New York City jury’s award to a woman who lay down on the subway tracks (see Jun. 26-27), along with other cases featured on our personal- responsibility subpage. Update: and welcome BBC-5 listeners, for whom our editor taped an interview arising from the Salon piece (DURABLE LINK)
July 12-14 – Credibility up in smoke? Environmentalist groups have strenuously denied that their use of litigation to stall road building, logging and the construction of firebreaks worsened this year’s raging wildfires out West (see Jul. 1-2). But it turns out that a recent General Accounting Office report, much cited by the enviro groups to show that they don’t sue often, actually may show nothing of the sort. “Environmental appeals delayed 48 percent of the [Forest Service]‘s fire-suppression projects in fiscal 2001 and 2002, thereby stalling efforts to clear the brush and small trees that fuel the catastrophic wildfires plaguing the West, according to an internal Forest Service report obtained by The Washington Times. The report, slated for release [Thursday], found that 155 of the agency’s 326 plans to log overgrown, high-risk national forests were stymied by appeals. In Arizona and New Mexico, sites of some of this summer’s worst wildfires, that figure rose to 73 percent, and climbed to 100 percent in the Pacific Northwest”. (Valeria Richardson, “Forest Service Says Activists Played Role in Fires,” Washington Times, Jul. 11; Kimberley A. Strassel, “Truth Under Fire “, Wall Street Journal/ OpinionJournal.com, Jul. 11). (& see letter to the editor, Oct. 23) (DURABLE LINK)
July 12-14 – Read the label, then ignore it if you like. “Two carpet installers who admit they read the label of an adhesive they used, admit they understood the adhesive was flammable and should not be used inside, used it inside anyway, caused an explosion, were burned badly, sued, and won $8 million dollars.” (Phil Trexler, “2 installers get millions in blast suit”, Akron Beacon Journal, Jul. 10) (link and description via MedPundit, Jul. 10). (DURABLE LINK)
July 12-14 – Financial scandals: legislate in haste. The “chief sponsor of the House [financial-reform] legislation, Republican Michael G. Oxley of Ohio … complained that some aspects of the Sarbanes bill appeared to be turning into ‘a gravy train’ for trial lawyers.” (Richard A. Oppel Jr., “Senate Backs Tough Measures to Punish Corporate Misdeeds”, New York Times, Jul. 11). House Republicans are particularly critical of provisions which, in line with a long-term goal of the plaintiff’s bar, increase the time permitted to bring securities fraud lawsuits. The Mobile Register editorially warns that a number of ideas emanating from the Senate “would be a huge boon to voracious plaintiffs’ attorneys. And the last thing the nervous stock market needs, now or ever, is to worry about companies being ruined by ever-more creative lawsuits whose practical effect would do far more to enrich the lawyers than to protect the interests of individual investors.” (“Bush right, Shelby not, on business reform” (editorial), Mobile Register, Jul. 10). “Robert Musil” has some thoughts on the newly popular idea of requiring CEOs to certify their company’s financial filings on penalty of perjury (Jul. 7). And before assuming that it was management malfeasance alone that destroyed the market value of such companies as WorldCom and Adelphia, it would be wise to note that Europe, without benefit of major scandal, has managed to see most of the value of its telecom stocks evaporate since the sectoral bubble burst, with historic enterprises like Deutsche Telekom, France Télécom and Royal KPN of the Netherlands losing 80 or 90 percent of their value, and Britain’s BT doing not much better (Edmund L. Andrews, “Europe Shares Pain of the Fall in Phone Stocks”, New York Times, Jul. 11). And see Steve Chapman, “Real and phony fixes for corporate corruption”, Chicago Tribune, Jul. 11). (DURABLE LINK)
July 12-14 – “Court Tosses ‘Sopranos’ Suit”. Following an appellate court’s ruling against them, the Italian-American Defense Association has dropped its suit against HBO charging that “The Sopranos” offends the dignity of Italian Americans in supposed violation of the Illinois Constitution’s “individual dignity” clause. Score one for free speech (N.Y. Daily News, Jul. 2)(see Apr. 6-8, 2001). (DURABLE LINK)
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June 19-20 – Supreme Court clarifies ADA. This term the Supreme Court handed down four decisions interpreting the Americans with Disabilities Act, in each case rejecting expansive readings of the law. Our editor analyzed the three employment cases in yesterday’s Wall Street Journal (Walter Olson, “Supreme Court Rescues ADA From Its Zealots,” Wall Street Journal, Jun. 18 (online subscribers only)). See also David J. Reis and Dipanwita Deb Amar, “U.S. Supreme Court in ‘Echazabal’ Puts Federal, State Disability Laws in Line”, The Recorder, Jun. 17) (even California employment law, nearly always more favorable for employees than its federal counterpart, acknowledges that employees may refuse to employ disabled workers in jobs that endanger their safety). (DURABLE LINK)
June 19-20 – Judicializing politics (cont’d). Rep. Bob Barr (R-Ga.), active in the 1998 battle over impeachment of then-Pres. Clinton, “has filed suit in a Washington federal court against the former president, Clinton loyalist James Carville and politically active pornographer Larry Flynt seeking compensatory damages ‘in excess of $30 million’ for ‘loss of reputation and emotional distress’ and ‘injury in his person and property’ allegedly caused by these three — who Barr claims conspired to ‘hinder [the plaintiff] in the lawful discharge of his duties.’” Barr is being represented by Larry Klayman of the famously litigious organization Judicial Watch (see Apr. 16-17). (Lloyd Grove, “Bob Barr’s Believe It or Not”, Washington Post, Jun. 13). (DURABLE LINK)
June 19-20 – To run a Bowery flophouse, hire a good lawyer. What with New York City’s absurdly anti-landlord rental code and the ongoing predations of publicly funded legal services groups, “it takes a tough lawyer to run a decent flophouse.” (John Tierney, “A Flophouse With a View (on Survival)”, New York Times, Jun. 11). Tierney, whose columns have been a highlight of the Times‘ Metro section, is moving to Washington to cover that city for the paper. (DURABLE LINK)
June 19-20 – “Suits Against Schools Explore New Turf”. Sexual harassment suits are on the rise, suits demanding concessions for special education students are already well-established, and although many states’ laws give schools some protection against personal-injury suits, “attorneys are finding creative new ways to get around the roadblocks”. (Alan Fisk, National Law Journal, Jun. 11). (DURABLE LINK)
June 17-18 – No “flood” of Muslim or Arab discrimination complaints. After the terrorist attacks last fall some major media outlets reported that state and local civil rights agencies were being flooded with complaints of discrimination by Muslims and persons of Arab descent. Notwithstanding a widely publicized recent suit against airlines for alleged misdeeds in passenger security profiling (see Jun. 6), the official numbers on other types of discrimination cases “tell a less alarming story. While there certainly was a hike in such bias claims since September, it’s hard to say that the increase was serious or even statistically significant.” (Jim Edwards, “Post-Sept. 11 ‘Backlash’ Proves Difficult to Quantify”, New Jersey Law Journal, Jun. 12). (DURABLE LINK)
June 17-18 – Spitzer riding high. In the New York Times Magazine, James Traub profiles New York Attorney General Eliot Spitzer, currently enjoying a wave of favorable publicity after negotiating a settlement in which Merrill Lynch agreed to change its analyst policy and fork over money to the states; Spitzer’s efforts to bludgeon the national gun industry into accepting unlegislated gun controls, however, have been markedly less successful. Quotes this site’s editor (James Traub, “The Attorney General Goes to War”, New York Times Magazine, Jun. 16). On abusive litigation by AGs, see the recently published analysis by Cumberland law prof Michael DeBow, “Restraining State Attorneys General, Curbing Government Lawsuit Abuse” (Cato Policy Analysis No. 437, May 10). On the federalism angle, see Michael S. Greve, “Free Eliot Spitzer!”, American Enterprise Institute Federalist Outlook, May-June. Plus: Boston Globe columnist Charles Stein on the trouble with policymaking by prosecution, also quotes our editor (“Memo to Policy Makers: Make Policy”, Jun. 16). (DURABLE LINK)
June 17-18 – Jury nails “The Hammer”. Rochester, N.Y.: “A state Supreme Court jury nailed personal-injury lawyer James ‘The Hammer’ Shapiro with a $1.9 million judgment Tuesday in a legal-malpractice case. Jurors found that Shapiro, best known for flamboyant television commercials in which he promises to deliver big cash to accident victims, mishandled the case of client Christopher Wagner, who was critically injured in a two-car crash in Livingston County. They also found that Shapiro’s advertising, which led Wagner to him, was false and misleading. … Wagner’s lawyers, Patrick Burke and Robert Williams, said the award should chasten Shapiro, who gleefully refers to himself as ‘the meanest, nastiest S.O.B. in town’ in his commercials.”
After suffering a severe auto crash which left him in a coma for a month, Wagner “hired Shapiro after his brother saw one of Shapiro’s TV commercials. Wagner dealt with a paralegal and never met a lawyer from Shapiro’s firm until after he agreed to a $65,000 settlement.” The jury found that the law firm had negligently failed to press Wagner’s case against the other motorist, instead accepting from that motorist’s insurer a settlement which undervalued the case and was insufficient to pay Wagner’s medical bills. “Shapiro, whose firm of Shapiro and Shapiro is based in Rochester, didn’t attend the trial. He testified by a videotaped deposition in which he admitted that he has never tried a case in court, leaves the legal work to subordinates and lives in Florida.” (Michael Ziegler, “Award claws ‘The Hammer’”, Rochester Democrat & Chronicle, Jun. 12)(link now dead). Shapiro is also known for his role in websites entitled Million Dollar Lungs (asbestos client recruitment) and CPalsy.com (“Your child’s cerebral palsy may be the result of a mistake. Don’t Get Mad, Get Even”). See also Dec. 5, 2003. Update May 24, 2004: court suspends Shapiro from practice in New York for one year. (DURABLE LINK)
June 17-18 – Not worth the hassle? “Home Depot Inc., the nation’s largest hardware and home-improvement chain, has told its 1,400 stores not to do business with the U.S. government or its representatives.” Most managers in the chain surveyed by the St. Louis Post-Dispatch said “they had received instructions from Home Depot’s corporate headquarters this month not to take government credit cards, purchase orders or even cash if the items are being used by the federal government. … One Home Depot associate at a store in San Diego said, ‘It feels weird telling some kid in uniform that I can’t sell him 10 gallons of paint because we don’t do business with the government.’” Although the Atlanta-based chain is close-lipped about the reasons for its policy, companies that sell more than nominal quantities of products or services to the federal government risk being designated as federal contractors, a status that brings them under a large body of regulation over their practices in employment and other areas. (Andrew Schneider, “Home Depot stops doing business with federal government”, St. Louis Post-Dispatch, Jun. 16). Update Jul. 1-2: company reverses policy. (DURABLE LINK)
June 17-18 – Alamo’s stand. “Alamo Rent A Car had no ‘duty to warn’ a Dutch couple visiting Miami not to drive into high-crime areas of the city, lawyers for the company told a three-judge panel of the 3rd District Court of Appeal Wednesday in an effort to overturn a $5.2 million jury verdict. Lawyers for Alamo told the judges that there is no way their client could have known that the couple would venture into Miami’s Liberty City neighborhood, where Tosca Dieperink was shot to death as she sat in the rental car in 1996.” We last covered this story Jun. 29, 2000, at which time we wondered: how many different kinds of legal trouble would Alamo have gotten into if it had warned its customers to stay out of the toughest urban neighborhoods? (Susan R. Miller, “Car Rental Agency Fights $5.2M Verdict for Slain Tourist”, Miami Daily Business Review, Jun. 14). (DURABLE LINK)
June 14-16 – “Civil Rights Agency Retaliated Against Worker, EEOC Rules”. Do as we say dept.: The Equal Employment Opportunity Commission has ruled that the U.S. Commission on Civil Rights, the federal agency which claims for itself the role of public watchdog on discrimination matters, unlawfully retaliated against its former staff solicitor, Emma Monroig, after she filed a discrimination complaint against it in 1995. The commission, which has a staff of about 75, has been hit with nine recent EEOC complaints from employees, of which at least three have been settled. (Darryl Fears, Washington Post, Jun. 13). (DURABLE LINK)
June 14-16 – Dealership on the hook. “A Michigan auto dealership that failed to complete the title transfer on a car involved in a fatal accident has been hit with a $12 million jury verdict.” In July 1999 Les Stanford Oldsmobile in suburban Troy allowed Mohammad Bazzi, then 20, to drive away his newly purchased 1996 Camaro convertible although the paperwork to transfer title was not complete. Bazzi was supposed to return to sign the papers, but never made it: two days later, driving intoxicated at an estimated 100 mph on I-75 at 2:30 in the morning, he smashed the car into the rear of a slower moving truck, killing his 18-year-old passenger, Ronny Hashem. Hashem’s survivors sued the dealership citing Michigan’s 70-year-old Owner Liability Statute, “which holds the owner of a car liable whenever the car is being operated consensually”. (Peter Page, “High-Speed Death”, National Law Journal, Jun. 12). (DURABLE LINK)
June 14-16 – Batch of reader letters. Readers take issue with our coverage of a Canadian court’s ruling on welfare reform (we stand accused of citing a conservative columnist) and of the recent suit against a baseball-bat maker by a teenager hit by a line drive; offer a different perspective on the Audubon String Quartet litigation; and track down the drunk driving defense law firm that has trademarked the phrase “Friends don’t let friends plead guilty”. (DURABLE LINK)
June 13 – Breaking news: slaying at Texas law firm. 79-year-old Richard Joseph Gerzine of Vidor, Tex. is in custody following a fatal shooting at the offices of the prominent Beaumont plaintiff’s firm of Reaud, Morgan & Quinn, known for its role in the asbestos and tobacco controversies. The victim was senior partner Cris Quinn. The perpetrator was said to have been angered by the law firm’s refusal to represent him in an asbestos case. (Beaumont Enterprise, Jun. 13; AP/Houston Chronicle, Jun. 13). (DURABLE LINK)
June 13 – “Student gets diploma after threatening lawsuit”. “A threatening letter from her lawyer and an opportunity to retake an exam hours before graduation helped a West Valley high school student get her diploma last month. … On May 22, Stan Massad, a Glendale attorney representing the Peoria family, faxed a letter to [English teacher Elizabeth] Joice asking her to take ‘whatever action is necessary’ for the student to graduate or the family would be forced to sue. ‘Of course, all information regarding your background, your employment records, all of your class records, past and present, dealings with this and other students becomes relevant, should litigation be necessary,’ he wrote to the teacher.” (Monica Alonzo-Dunsmoor, Arizona Republic, Jun. 10; lawyer’s letter; teacher’s response; Joanne Jacobs, Jun. 12).
UPDATE: The case has mushroomed into a cause celebre in Phoenix (Arizona Republic coverage: Maggie Galehouse, “Decision to allow Peoria student to graduate draws outrage”, Jun. 12; “State Bar probes threat against teacher over student’s graduation”, Jun. 13; “Failing your classes? Get a better lawyer”, (editorial), Jun. 11; “Pathetic plight in Peoria” (editorial), Jun. 12; Benson cartoon, Jun. 11; Richard Ruelas, “Lawyer made an offer school couldn’t refuse”, Jun. 12). In the blog world, see Thomas Vincent, Jun. 11 and later posts; Edward Boyd, Jun. 11 and later posts; DesertPundit, Jun. 13. And InstaPundit and “Max Power” discuss issues of whether the lawyer might face bar discipline and why the family members have been allowed to keep their names confidential. More update: Monica Alonzo-Dunsmoor, “Peoria district issues an apology for furor”, Arizona Republic, Jun. 15. (DURABLE LINK)
June 13 – “The NFL Vs. Everyone”. “Why is it that football players/owners/teams are in court all the time? And why would the Broncos sue fans? The NFL is a great case study in litigiousness gone haywire.” (Dan Lewis, dlewis.net, Jun. 12; see “NFL Bootleg: Making the Court Circuit”, Bootleg Sports/FoxSports, Jun. 12). Lewis’s blog also calls our attention (Jun. 11) to this article explaining one remarkable implication of new “medical privacy” laws: “Law May Forbid Leagues to Say if Player Is Hurt” (Buster Olney, New York Times, Jun. 11 (reg)) (DURABLE LINK)
June 13 – He’s at it again. It seems Kevin Phillips has published another of his awful books. Here’s what we said about one of the earlier ones. (DURABLE LINK)
June 11-12 – “French ban sought for Fallaci book on Islam”. The true meaning of hate-speech laws? In France, an “anti-racist” group has filed a legal action demanding a ban on the publication of a new book by outspoken Italian journalist Oriana Fallaci criticizing Islamic fundamentalism and defending the United States in the wake of the Sept. 11 attacks. (Reuters/MSNBC, Jun. 10)(& welcome InstaPundit readers). (DURABLE LINK)
June 11-12 – Malpractice crisis latest. More problems with the notion of suing our way to quality medical care: Philadelphia’s Jefferson Hospital, citing rising malpractice insurance bills, has laid off 99 workers and eliminated 80 vacant jobs. (Linda Loyd, “Jefferson Hospital cuts 179 positions”, Philadelphia Inquirer, May 21). Brandywine Hospital, which operates the only trauma center in Chester County, Pa., said it would temporarily close its center, with the result that “trauma patients — the most severely injured accident victims — will be diverted to trauma centers at hospitals in surrounding counties.”. It blamed malpractice costs for difficulty in recruiting qualified physicians (Josh Goldstein, “Hospital closing trauma center”, Philadelphia Inquirer, Jun. 5). The closure of a Wilkes-Barre ob/gyn practice typifies the forces driving doctors out of Pennsylvania, according to the Wilkes-Barre Times Leader (M. Paul Jackson, “Frustrated doctors look to quit area”, May 1). The supply of neurosurgeons in central Texas is likewise under pressure, resulting in the family of an accident victim’s “being told a city of Austin’s size had no spine surgeon available when they desperately needed one”. (Mary Ann Roser, “Neurosurgeons in short supply”, Austin American-Statesman, May 19). Update: Francis X. Clines, “Insurance-Squeezed Doctors Folding Tents in West Virginia”, New York Times, Jun. 13). (DURABLE LINK)
June 11-12 – Flash: law firm with sense of humor. This one’s been around for a while, but we’ve never paid it due tribute: Denver’s Powers Phillips maintains the only law firm website we’ve seen that’s laugh-out-loud funny (and even manages to tell you a lot about the firm) (& update:Metafilter thread). (DURABLE LINK)
June 11-12 – “San Francisco Verdict Bodes Ill for Oil Industry”. Oil refiners are unhappy about a recent verdict in which a West Coast jury declared that the gasoline additive MTBE, which has a nasty tendency to seep into water tables, is defective and should never have been marketed. The refiners have contended that the federal government itself pushed the industry into adding MTBE to gasoline by way of the Clean Air Act’s 1990 amendments, which mandated the use of reformulated and oxygenated gas to reduce air pollution. At least two earlier courts did accept that defense, but now the industry may stand exposed to potential billions in damages. (June D. Bell, National Law Journal, May 3). Background: Energy Information Administration, “MTBE, Oxygenates, and Motor Gasoline” (Mar. 2000). (DURABLE LINK)
June 11-12 – Welcome “Media Watch” (Australia). On the Australian Broadcasting Corp. program, which monitors the press, Steve Price traces the circulation of the much-forwarded “Stella Awards”, a list of (fictitious, invented) outrageous lawsuits (see Aug. 27, 2001) (June 10). (DURABLE LINK)
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June 10 – Advertisement for “friendly” employee deemed discriminatory. In Bolton, England, a government job listing center has refused to accept an advertisement asking for a “friendly” applicant to manage a travel agency’s staff cafe. The travel agency’s manager said “we were told, ‘It’s discriminatory because some people may perceive that they are friendly even if you don’t’.” A spokeswoman for the government bureau that runs the job center service acknowledged that “somebody’s been a little over-zealous,” but also said: “We’ve got to be very careful when we get adverts so we don’t discriminate against anybody.” (“Jobcentre comes under ‘friendly’ fire”, BBC, Jun. 7). (DURABLE LINK)
June 10 – Profiling: a Democrat outflanks Ashcroft. On CNN last week, California Democratic Sen. Dianne Feinstein spoke frankly of the need for some measure of ethnic profiling in both air passenger security and intelligence gathering — a position that places her considerably to the right of Attorney General John Ashcroft and his colleagues in the Bush Administration, who continue to deny any such need. (Chris Weinkopf, “Sanity, not bigotry, calls for profiling”, L.A. Daily News, Jun. 9). (DURABLE LINK)
June 10 – Sin-suit city. In Las Vegas, ripples continue from the word that some lawyers and activists are eyeing the hometown industry as their nominee for Next Tobacco (“Organization: Casinos could be sued”, Las Vegas Review-Journal, Jun. 6; see May 31, May 20-21). And on the food-suit front, a major British newspaper, the Independent, has claimed that corporate machinations make healthful and low-calorie foods simply unavailable to Middle Americans, an assertion that columnist Jacob Sullum calls “such an audacious misrepresentation that I don’t know whether to refute it or simply stand in awe.” (Andrew Gumbel, “Fast Food Nation: An appetite for litigation”, The Independent, Jun. 4 (profile of anti-tobacco and anti-food industry law prof John Banzhaf)(alternate site); Jacob Sullum, “Big fat lie”, Reason Online, Jun. 7). (DURABLE LINK)
June 7-9 – “Tough tobacco laws may not deter kids”. Now they tell us dept.: “Stopping kids from buying cigarettes has become a centerpiece of anti-smoking campaigns, but a new study finds that cracking down on merchants doesn’t prevent underage smoking.” (Jim Ritter, Chicago Sun-Times, Jun. 3; Caroline M. Fichtenberg and Stanton A. Glantz, “Youth Access Interventions Do Not Affect Youth Smoking”, Pediatrics, Jun.) (via MedPundit, Jun. 5)(see Sept. 16, 1999). (DURABLE LINK)
June 7-9 – “Legal Fight Over Chemical Leak Ends With Whimper”. “Attorneys who won $38.8 million in West Virginia’s first class action toxic tort case have agreed to settle for a fraction of that amount after a federal appeals court ruled their original victory was based on the testimony of a witness who did not know what he was talking about.” FMC Corp. will instead pay only $1.35 million, which “will cover about $500,000 in litigation expenses but nothing for fees”, according to the plaintiff’s counsel, attorney/author and former state chief justice Richard Neely. (Peter Page, National Law Journal, Jun. 4). (DURABLE LINK)
June 7-9 – Helmets for roller skaters. First it was motorcycles, then bicycles, and now the anti-fun brigade, in the form of the California state senate, has voted to extend mandatory helmet-wearing to riders of skateboards, non-motorized scooters and even roller skates. (“Senate OKs helmet law for skateboarders”, AP/Contra Costa Times, May 17). (DURABLE LINK)
June 6 – Airlines sued over alleged profiling. “Washington is in its third week of self-flagellation over why the U.S. government couldn’t prevent the Sept. 11 hijackers from commandeering four planes and slamming them into the World Trade Center and the Pentagon. Meanwhile, with no sense of irony, the ACLU, the American-Arab Anti-Discrimination Committee, and some other groups are launching five separate lawsuits over cases of men being removed from airplanes. The ACLU is party to three of the suits.” (Jonah Goldberg, “Flying While Arab”, National Review Online, Jun. 5). The men were removed from planes or denied boarding in various incidents late last year after airline employees or co-passengers deemed them suspicious in behavior or appearance. “The airlines named in the suits are American, Continental, Northwest and United. Most of the companies responded strongly to the suits yesterday, denying allegations of prejudice.” (“Lawsuits Accuse 4 Airlines of Bias”, Washington Post, Jun. 5; Niala Boodhoo, “Rights Groups Hit Airlines with Post-Sept. 11 Suits”, Reuters/ Yahoo, Jun. 4).
Many opponents of passenger profiling (including, frequently, officials within the Bush administration) act as if it were flatly impermissible to apply even the slightest bit more scrutiny to young male Arab fliers with Muslim first names than to elderly Dutch nuns — a position that at least has the merit of bright-line clarity and consistency, however suicidal it could prove in practice. Curiously, the lawyers filing the latest suits seem to be taking pains to stake out a critique of profiling that is less absolutist and makes more concessions to the threats made manifest last Sept. 11. Thus Reginald Shuford, an ACLU lawyer based in New York, says his clients are resigned to a “higher level of scrutiny when they fly, more security checks” but suggests that further extra scrutiny becomes intolerable once fliers have “cleared all security checks [and are] sitting on the airplane”. (Why? He doesn’t say.) Even Ibish Hussein, of the American- Arab Anti- Discrimination Committee, acknowledges that it’s “a tricky situation” and says of refusals to fly passengers: “It’s understandable, but it’s not acceptable.” (Alexandra Marks, “New lawsuits aim to curb racism aboard airplanes”, Christian Science Monitor, Jun. 5). Despite this concessionary- sounding language, with its seeming recognition of the unavoidability of judgment calls and gray areas, at least three of the suits ask for the airlines to be subjected to punitive damages. See also Eugene Volokh, Volokh Conspiracy weblog, Jun. 4. (DURABLE LINK)
June 6 – Alexa “Editor’s Pick”. The editors of indexing service Alexa have selected various sites in the category of “Legal Reform”, with you-know-who leading the pack (June 5). This site’s front page clocks in at #94,327 in Alexa’s traffic ratings, a little ahead of Virginia Postrel (#103,177) and nipping at the heels of Matt Welch (#90,063) and Mickey Kaus (#78,754) — though we have no idea how reliable all these numbers are. Update: not very reliable at all, says Glenn Reynolds (Jun. 6) (DURABLE LINK)
June 5 – “Remove child before folding”. “Americans are not losing their minds, but they are afraid of using their minds. They are afraid to exercise judgment — afraid of being sued.” Not-to-be-missed George Will column ties together overprotective playgrounds, fear-of-asbestos verdicts, demoralized obstetricians and public employee tenure and tips the hat to author Philip Howard’s new organization Common Good, which intends to call public attention to legal excess on a regular basis (Washington Post, June 2). In April, Common Good released the results of its first study, in association with the AEI-Brookings Joint Center, on defensive medicine: “Concerns about liability are influencing medical decision-making on many levels. From the increased ordering of tests, medications, referrals, and procedures to increased paperwork and reluctance to offer off-duty medical assistance, the impact of the fear of litigation is far-reaching and profound.” (“The Fear of Litigation Study: The Impact on Medicine”, AEI-Brookings Joint Center Related Publication, April (abstract), (full text, PDF format) (DURABLE LINK)
June 3-4 – Australian party calls for banning smoking while driving. The Australian Democrats, a small but non-fringe political grouping, have called for a ban on smoking cigarettes while driving. “If using mobile phones is illegal, so should cigarette smoking in cars because of its capacity to distract drivers,” said party official Sandra Kanck in a statement. “Ms. Kanck called for legislation to also ban smoking cigarettes in vehicles transporting children. ‘Parents and other adults shouldn’t subject young people to the carcinogenic dangers of side-stream smoke in cars, yet it is common to see this happening,’ she said.” (“Democrats call to ban smoking while driving”, AAP/West Australian, May 31; see Oct. 5, 2001, Dec. 29, 1999). And although anti-tobacco campaigners are crowing about a recent court verdict in Australia against British American Tobacco, blogger “Max Power” (May 23) suggests the verdict may reflect one judge’s idiosyncratic view of company document retention obligations. (DURABLE LINK)
June 3-4 – Penthouse sued on behalf of disappointed Kournikova-oglers. Dignity of the law dept.: The skin mag has already paid to settle the legal claim of a woman whose topless images it mistakenly ran as those of Anna Kournikova, and “now Miami, Florida lawyer Reed Stomberg has filed a class-action lawsuit on behalf of himself and every other male who purchased the June issue. Stomberg explains, ‘The sole reason I paid the $8.99 was for the alleged Anna pictorial. I bought it for a friend of mine, not to say I didn’t take a quick peek at the pictures.’” (IMDB People News, May 30) (& welcome WSJ Best of the Web readers). (DURABLE LINK)
June 3-4 – Sue foodmakers for obesity? Of course! In response to its publication (see May 27) of an article critically examining the push for class actions against purveyors of calorie-laden foodstuffs, Salon draws a big sack of mail from its readers, including a couple of amusingly hysterical attacks on author Megan McArdle (May 31). (DURABLE LINK)
June 3-4 – “Top Ten New Copyright Crimes”. Satire making the rounds on what could soon land you in trouble if ideas of creators’ rights continue to proliferate: “10. Watching PBS without making a donation … 9. Changing radio stations in the car when a commercial comes on. … 7. Getting into a movie after the previews, but just in time for the main feature. … 5. Inviting friends over to watch pay-per-view.” (Ernest Miller, LawMeme, May 2 & May 8). (DURABLE LINK)
June 3-4 – Sick in Mississippi? Keep driving. Malpractice-suit crisis, cont’d: “You are driving through Mississippi and you develop a serious pain in your side. What do you do? If you are smart, you keep on driving until you reach the border.” (Dick Boland, “Sue your way to the morgue”, Washington Times, May 25; see Apr. 5) Evidence that he may not entirely be joking: Ed Cullen, “Natchez doctors eye Vidalia”, Baton Rouge Advocate, May 19 (doctors in Natchez, Miss. consider transferring practices to Vidalia, La., across the river). (DURABLE LINK)
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August 10-12 – Smile-flag lawsuit. Dr. Patricia Sabers, a dentist in Sarasota, Fla., sometimes flies a colorful pennant adorned with smiles outside her office, but now a rival dentist, Mitchell Strumpf, is suing her, saying the smile on her flag is a distinctive design that he registered as a service mark some years ago and which he thus has the exclusive right to display in the area. “Sabers said her generic-looking flag comes from a dental supply company catalog”. Sabers “should get her own service mark,” said Strumpf’s attorney, Michael Taaffe. “It’s not a laughing matter.” (Kelly Cramer, “Smile logo brings frowns”, Venice Herald-Tribune, July 31).
August 10-12 – Perils of extraterritorial law. Elite opinion in the U.S. has been relatively uncritical toward the idea of putting unpopular foreign leaders on trial outside their home country for outrages committed in their official capacities, but the policy could easily backfire against us given that there are an awful lot of people and factions around the world aggrieved at the United States and its leaders, observes the former chief of staff of the Senate Foreign Relations Committee (Pat M. Holt, “The push for human rights could hurt Americans”, Christian Science Monitor, Aug. 2). And agitation continues for a lawsuit against the U.S. in international courts to blame us for global warming and our failure to back stronger steps against it (Andrew Simms, “Global Warming’s Victims Could Take U.S. to Court”, International Herald Tribune, Aug. 7).
August 10-12 – School email pranksters to Leavenworth? Sen. Robert Torricelli (D-N.J.) recently introduced a bill called the School Website Protection Act of 2001 which would provide that anyone who “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally affects or impairs without authorization a computer of an elementary school or secondary school or institution of higher education” will to go federal prison for up to 10 years.” Critics say the bill “is worded so vaguely it would turn commonplace activities into federal crimes to be investigated by the U.S. Secret Service.” “Sending one unsolicited e-mail affects a computer,” says Jim Dempsey, deputy director of the Center for Democracy and Technology. “If I send an e-mail to my student’s teacher and I didn’t have her permission, I violate the act.” (“Senator Targets School Hackers”, Declan McCullagh, Wired News, Aug. 1).
August 10-12 – New in Letters. The operator of an online pet store writes in to amplify our coverage of his recent suit against participants in a hobbyist listserv (more).
August 10-12 – U.K.: Labour government proposes curbs on malpractice awards. In Britain, the newly reelected Labour government of Tony Blair is proposing to limit skyrocketing awards in medical malpractice cases against the National Health Service. It wants to adopt “fixed tariffs of compensation”, i.e. prescheduled amounts for types of injury that can be looked up in tables in lieu of individualized argumentation. Also in the works is a shift to in-kind awards, such as the provision of future nursing services, instead of large lump sums. “The Government is keen to cut the amount paid in lawyers’ fees — which often exceed the damages awarded by the courts.”
“The tariff scheme is similar to one brought in by the previous Tory government — amid stiff Labour opposition — to cut the cost of criminal-injuries compensation. Mr Milburn [Health Secretary in the Blair Cabinet] is determined to take an axe to the spiralling cost to the health service of legal claims which he believes are being driven by profiteering lawyers. ‘We need to get the lawyers out of the operating theatres and off the backs of doctors — and get doctors out of the courts,’ said a Health Department aide. ‘The amount of litigation is rising and causing distress not only to NHS staff but also to patients who find themselves drawn into protracted and upsetting legal battles.’” The Bar Council, representing barristers, has already attacked the proposals. (Joe Murphy and Jenny Booth, “Labour blocks big payouts to victims of NHS blunders”, Sunday Telegraph (U.K.), July 8).
August 9 – Why we lose workplace privacy. Employers are monitoring their employees’ email, web surfing logs and hard drives more than ever these days, and the number one reason is to protect themselves from lawsuits. “Almost every workplace lawsuit today, especially a sexual harassment case, has an E-mail component,” says one expert. Plaintiffs’ lawyers subpoena hard drives in search of sexually oriented jokes or other material they can use to build a case, and rather than leave themselves vulnerable many companies conduct pre-emptive searches before disputes arise. (Dana Hawkins, “Lawsuits spur rise in employee monitoring”, U.S. News & World Report, Aug. 13).
August 9 – “Nudist burned while fire-walking files lawsuit”. “A nudist whose feet were burned while fire-walking has filed a lawsuit that accuses event organizers of leading participants to believe the stunt was safe.” The suit by Eli Tyler of El Cajon claims that the organizer “told participants the walk would be ‘a safe and spiritual experience’” but that seven participants were hospitalized with severe burns to their feet. The owner of the resort where the event took place, who is also named as a defendant in the action, “said participants were warned of the dangers and each agreed not to sue if they were injured.” (AP/Sacramento Bee, Aug. 8).
August 9 – Forbes on lead paint suits, cont’d. The “suits claim the companies misrepresented the paint as safe for use around children. Evidence? In 1920 National Lead told retailers to be nice to children because they might someday be customers. More: In 1930 the company distributed coloring books with poems and a cartoon drawing of its Dutch Boy character. Hard to imagine children having much influence on paint purchases.” (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14 (reg)).
August 7-8 – Victory in California. By a 5-1 margin, the California Supreme Court has ruled that crime victims cannot sue gun manufacturers over criminals’ misuse of their wares. In doing so it reinforces a trend so clear that some day it might even sink in to the folks over at the hyperlitigious Brady Campaign: “Every state high court and federal appellate court in the nation to consider such lawsuits has ruled that makers of legal, non-defective guns cannot be sued for their criminal misuse.” (“California Supreme Court Says Gunmaker Not Liable in Killing Spree”, AP/Fox News, Aug. 6).
August 7-8 – Wrong guy? Doesn’t seem to matter. Antonio Vargas, a bus driver in Northern California, has the same name as an Antonio Vargas who owes child support in San Bernardino County, in Southern California. He’s been trying to disentangle himself from attachments, process servers and other legalities aimed at the other Mr. Vargas, but with at best temporary success — and it’s been going on for twenty years, he says. An official with the desert county acknowledges that Mr. Vargas’s protestations of being the wrong guy were probably ignored for a while; so many men falsely use that excuse that why should they listen?, seems to be the official’s reasoning (Dan Evans, “It’s the wrong Vargas”, San Francisco Examiner, Aug. 2).
August 7-8 – Trial lawyers vs. OxyContin. The breakthrough pain medication, a timed-release opioid, has brought unprecedented relief to sufferers from advanced cancer and chronic disease but can result in addiction if improperly prescribed and is unusually easy to abuse on purpose: users crush the time-release capsules into a powder that yields a heroin-like high when snorted or injected. Now, amid public alarm about its emergence as “hillbilly heroin”, lawyers have filed billions of dollars in claims against the drug’s manufacturer, Purdue Pharma, distributor Abbott Labs, and other companies; they’re also advertising heavily for clients, and the state of West Virginia has stepped in with its own suit. Well-known Cincinnati tort lawyer Stanley Chesley, of breast-implant and hotel-fire fame, is “working with a group of lawyers from Ohio, Kentucky and West Virginia on similar cases.” If such litigation drives the drug off the market, a million or more legitimate users may be forced back to lives of agonizing pain, but that won’t be the lawyers’ problem, now, will it?
SOURCES: “Maker of OxyContin is hit with lawsuits”, AP/Baltimore Sun, July 27; Paul Tough, “The Alchemy of OxyContin: From Pain Relief to Drug Addiction”, New York Times Magazine, July 29 (reg); National Clearinghouse for Drug and Alcohol Information; Amanda York, “1st Ohioan named in Oxy suit”, Cincinnati Enquirer, July 10; Norah Vincent, “A New ‘Worst’ Drug Stirs Up the Snoops”, Los Angeles Times, July 19; Eric Chevlen, “A Bad Prescription from the DEA”, Weekly Standard, June 4; “W.Va. files first state suit against OxyContin firms”, AP/Charleston Daily Mail, June 12; Common Sense for Drug Policy; “Oxycontin Lawsuit Aims For Class-Action Status”, Roanoke Times, June 19; many more links (Google search on “Oxycontin + lawsuits”). If you click on “OxycontinInfoCenter.com“, a sponsored link on Google, you get “Oxycontin law info and lawyers who specialize in Oxycontin litigation” (see also July 25).
August 7-8 – Dotcom wreckage: sue ‘em all. Class action firms are suing not only investment banks and directors of failed dotcoms, but also executives and lenders. (Joanna Glasner, “Bankrupt? So What? Lawyers Ask”, Wired News, Aug. 6).
August 7-8 – “Judge orders parents to support 50-year-old son”. “In what could turn out to be a landmark decision, a Ventura County Superior Court judge ordered a Ventura couple to support their 50-year-old son indefinitely. Judge Melinda Johnson ruled two weeks ago that James and Bertha Culp of Ventura pay their son David Culp $3,500 a month for living expenses because he is incapable of supporting himself. Culp suffers from depression and bipolar disorder.” The son had practiced as an attorney for 19 yearss, but his practice fell apart and he went on disability. “Johnson based her ruling on state law, Family Code section 3910(a). It states that ‘the father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means,’” language which the judge called “unambiguous on its face”. Representatives of the National Alliance for the Mentally Ill called the decision a “bad judgment” that could “set a terrible precedent”. (Leslie Parrilla, Ventura County Star, Aug. 2).
August 6 – “Airline restricts children flying alone”. America West Airlines, changing its previous policy, has announced that it will no longer allow children of 11 years or less to fly alone on connecting (as opposed to nonstop) routes. Last month a young girl traveling from L.A. to Detroit was mistakenly allowed to board a connecting flight to Orlando, and it took nearly a day before she was reunited unharmed with her father. The father, Bill McDaniel, said he was thinking of hiring a lawyer and suing because the airline’s proffered free ticket and other compensation was not enough. So now all families, including those who believe their kids can handle the responsibility, stand to lose a freedom that saves them a lot of money as well as hassle (Channel 2000, Aug. 3; “Airline Puts Young Girl On Wrong Plane”, July 18).
August 6 – Big fish devour the little? After hobbyists on a listserv dealing with aquatic plants criticized one online pet store for allegedly “horrible” service and worse, its operator proceeded to sue various individual posters who he says defamed his company with such comments. His complaint asks for $15 million in compensatory and punitive damages. (Aquatic Plants Mailing List listserv; discussion; TheKrib.com; AquariaCentral forums; Usenet rec.aquaria.freshwater.plants) (see letter to the editor from Robert Novak, owner of PetsWarehouse.com, Aug. 10)(see extensive update on case May 22-23, 2002).
August 6 – When trial lawyers help redesign cars. Class action lawyers suing GM over its old C/K full-size pickup trucks are venturing onto what you might think is perilous ground by proposing a retrofit change to the vehicles’ design, with effects on performance that can’t be foreseen with complete certainty. Aren’t they worried that if the design turns out to malfunction in some way they’ll be held responsible for the consequences? (Well, no, they probably aren’t, since they’ll just find some way to blame the carmaker if that happens.) (Dick Thornburgh (former U.S. attorney general), “Designing Ambulances and Retrofitting Class Actions”, National Law Journal, July 18).
August 6 – Mailing list switch. If you’ve been on the list to receive our periodic announcements of what’s new on Overlawyered.com, you should by now have received an email from Topica.com, our new list-hosting service, inviting you to continue your subscription. To do so, just respond to their email. If you take no action you’ll automatically be dropped from the list as ListBot closes down. If you discarded or didn’t receive the Topica email, or would like to join the list for the first time (it’s free), just visit our mailing list page.
Another logistical note: we’ve now established a separate archives page that makes it easier to navigate Overlawyered.com‘s archives without repeatedly having to download large pages. Just as we encourage you to bookmark our search page if you expect to perform frequent searches at our site, so we encourage you to bookmark the new archives page if you expect to browse our archives often.
August 3-5 – “Lawyers pay price for cruel hoaxes”. “Two Florida lawyers, whose paternity hoaxes last year cost families of four Alaska Airlines crash victims hundreds of thousands of dollars to rebut, finally will have to pay for a smidgen of the damage they inflicted.” Attorneys Robert Parks and Edgar Miller of Coral Gables, Fla. filed suits on behalf of four distinct sets of supposed secret Guatemalan heirs claimed to have been fathered by men who perished on the doomed flight without direct heirs (see Nov. 29, 2000, April 10, 2001). The suspiciously multiple nature of the filings was noticed only by chance, and the outraged families of the deceased had to spend hundreds of thousands of dollars to fend off the phony heirs’ claims. Now, Parks and Miller have agreed in a court-ordered mediation to pay $225,000 toward the families’ costs; Seattle lawyer Harold Fardal, who assisted their claims, will help split the cost, though it doesn’t begin to cover the expense the families faced in rebutting the claims. “Miller, by his own admission, has [represented survivor claims] as many as 100 times before, mostly in Central and South America.”
To investigate the phony claims, the surviving Clemetson and Ryan families sent investigators to Guatemala, where the supposed secret heirs lived. “But an investigator and a court-appointed guardian found that the birth records were forged. They found that the alleged grandmothers couldn’t keep the girls’ names straight, couldn’t say where their own daughters were born or how they died, couldn’t remember their own addresses and had no knowledge of the details alleged in the inheritance claims. In February, DNA tests proved the girls weren’t related to the men.” The families now say they may file a complaint with the Florida bar against Parks and Miller. (Candy Hatcher, “Lawyers pay price for cruel hoaxes”, Seattle Post-Intelligencer, Aug. 2; “Claims against two Flight 261 victims thrown out” (AP), Feb. 7; “Heirs claimed in Flight 261 twist” (AP), Nov. 22, 2000).
According to Seattle Post-Intelligencer columnist Candy Hatcher, Seattle attorney Mark Vohr, who later withdrew from the case, sent the same photograph of two little Guatemalan girls to two different families against whom he was pursuing secret-heir claims. And: “The woman who was providing temporary housing for the girls and their ‘grandmothers’ said she was working with a ‘lawyer’ in Florida who had helped her when both her husbands died in aviation disasters in Central America. The ‘lawyer’ turned out to be an investigator for the Florida lawyers.” (“False claims add to the agony of a tragedy”, Feb. 26). See also Richard Marosi, “Unexpected ‘Heirs’ of Flight 261″, L.A. Times, Jan. 31, no longer online at Times site but Googlecached. (DURABLE LINK)
August 3-5 – More from Judge Kent. Yesterday we linked to a scorching opinion by Judge Samuel Kent of the U.S. District Court for the Southern District of Texas, excoriating what he saw as incompetent pleadings by the lawyers on both sides of a maritime injury case. Reader Keith Rahl points out that this is just the most recent in a series of colorful opinions from Judge Kent’s pen, and directs our attention to two of them that have been reprinted at The Smoking Gun: one in which he orders a change of venue (to the District of Columbia) for a suit that lawyers for the government of Bolivia had filed in his Galveston courtroom against the tobacco industry; and this one turning down a defendant’s request to transfer a case to Houston due to claimed travel inconveniences.
August 3-5 – Dra-clonian. By a margin of 265 to 162, the U.S. House of Representives has voted “to approve the Human Cloning Prohibition Act of 2001. It would impose steep criminal and civil penalties on any individual violating the ban — even scientists who create cloned human cells solely for research purposes. The penalties make participation in human cloning in any way — from creating cloned human cells to patients receiving medicine based on such research done abroad — subject to a felony conviction that could bring a 10-year prison term and, if done for profit, civil penalties of more than $1 million.” (Megan Garvey, “House Approves Strict Ban on Human Cloning”, L.A. Times, Aug. 1; Kristen Philipkoski, “What Side Effects to a Clone Ban?” Wired News, Aug. 1) The best critique we’ve seen of the stampede to legislate has come from Virginia Postrel at her VPostrel.com (several entries in recent weeks; also check out her new commentary on firearms and journalists).
August 2 – Fee fights. They’re worse than catfights, aren’t they? Lawyers are snapping and swatting at each other over the fee spoils of several dubious but lucrative mass-tort cases. “Wallace Bennett, former associate dean at the University of Utah’s law school, is suing well-known lawyer Robert DeBry, claiming his old friend is cheating him out of money he earned while they worked together on national breast implant litigation. … Bennett was part of a legal team that included former U.S. Sen. Frank E. Moss and former Utah Supreme Court Justice D. Frank Wilkins. … [He] alleges breach of contract, intentional breach of fiduciary duty, conversion and fraudulent transfer of assets, and usurpation of business opportunities.” (Elizabeth Neff, “Former U. of U. Dean Sues Ex-Law Partner Over Fees”, June 28, Salt Lake Tribune, no longer online on Tribune site but Googlecached). The breast implant campaign was based on charges of systemic illness soon refuted in scientific studies, which didn’t stop trial lawyers from cashing in a $7 billion settlement.
Meanwhile: “Several of the plaintiffs’ lawyers in the massive Orthopedic Bone Screw case are putting the screws to each other as an ugly battle has erupted” over how a court divided $12 million in fees deriving from a $100 million settlement by Acromed Corp. Among the charges flying: fraud, contempt of court and abuse of process. (More on the bone screw litigation: Oct. 24, 2000.) (Shannon P. Duffy, “Disgruntled Lawyers Sue in Louisiana to Get Bigger Share of Bone Screw Fees”, The Legal Intelligencer, July 18). Last but certainly not least, anti-tobacco prof. Richard Daynard has followed through on his pledge to sue legal sultans Richard Scruggs and Ron Motley, claiming they’d promised to cut him in on a 5% contingency share of the maybe $3 billion they stand to haul in from the tobacco caper. “In his role as intellectual godfather of tobacco litigation, Daynard has been quoted in news articles hundreds of times — though always as a public health advocate, never as a private litigator.” (see April 21, 2000). Scruggs and Motley “said that if Daynard had indeed been a member of their legal team, his attacks on a settlement proposal favored by their clients, the states, would have been a serious ethical lapse.” (Myron Levin, “Tobacco Wars’ Huge Legal Fees Ignite New Fight”, Los Angeles Times, May 20, reprinted at NYCClash.com)
August 2 – “Baskin-Robbins lawsuit puts family in dis-flavor”. The Janze family of Alamo, Calif. is surprised to have gotten such a disrespectful reception in the press and on the Web for its lawsuit against the ice cream chain over a frozen confection strewn with fizzy “Pop Rocks”, a scoop of which they say sent their 5-year-old daughter Fifi to the hospital. “Shrek Swirl” is “one of several ogre-related treats tied to the animated movie ‘Shrek’.” Baskin-Robbins spokeswoman Debra Newton “said the Janzes’ complaint has been the only one reported to the company. ‘What we can tell you is that we have absolutely no indication that there are any safety concerns whatsoever with Shrek Swirl,’” Newton said. (Claire Booth, Knight-Ridder/Bergen County (N.J.) Record, July 19).
August 2 – “Ouch”, they explained. It’s every lawyer’s nightmare: to be the target of a judicial opinion as scathing as this one from federal judge Samuel Kent (S.D. Tex.). Neither side’s attorney gets out unscorched (Bradshaw v. Unity Marine, June 26, reprinted at National Review Online).
August 1 – Batch of reader letters. Latest assortment covers everything from exploding Pop-Tarts and special-ed “mainstreaming” to small claims reform, IOLTA and zero tolerance, and includes an explanation of an unusual photograph sent in by a reader.
August 1 – “Businesses bracing for flood of lawsuits after state court ruling”. “If you wear glasses, use a hearing aid or take medication for high blood pressure, you now may be legally disabled in California.” Sacramento’s homegrown version of disabled-rights law is even more sweeping than the federal Americans with Disabilities Act, and the divergence has been widened by a new state law that “significantly broadens the definition of disabled and throws open the courthouse doors to workers with a wide range of diagnosable ailments — from depression to chronic back pain.” Things got even dicier “when a state appeals court in Los Angeles ruled that the new law applies retroactively to potentially thousands of cases that arose before Jan. 1, when the law went into effect. Employers are bracing for an onslaught of claims, warning that the statute signals open season on business.” (Harriet Chiang, “Businesses bracing for flood of lawsuits after state court ruling”, San Francisco Chronicle, July 29; Mike McKee, “California Disability Rules Declared Retroactive: State Supreme Court May Have to Referee”, The Recorder, July 27).
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July 9-19 – Overlawyered.com takes a summer break. We’ll be taking off the next week and a half or two weeks and may update the site sporadically, or more likely not at all; the same goes for reading email. We reserve the right to come back in if we get even more upset than usual about something. Looking for reading material in the mean time? This makes the perfect chance to catch up on our voluminous archives, dating back to July 1999. Most of this older material is (in our opinion) pretty much as pertinent as the newest entries, since so little ever really seems to change in the beats we write about. (Jump in: 7/99, 10/99, 1/00, 4/00, 7/00, 10/00, 1/01, 4/01, 7/01)
July 7-8 – Update: Alabama high court reverses conviction in campaign-tactics case. In an 8-1 decision, the Alabama Supreme Court overturned the misdemeanor convictions for criminal defamation and witness tampering of Jasper attorney Garve Ivey and ordered him acquitted. The case arose (see Aug. 26, 1999; Sept. 1, 1999; Aug. 31, 2000) after an ex-prostitute leveled lurid sex charges against Lieutenant Governor Steve Windom. “The Supreme Court said the convictions can’t stand because Alabama’s criminal defamation law is unconstitutionally worded and because the witness tampering charge was brought in the wrong county,” reports AP. “‘Because of this disposition, this opinion cannot and should not be viewed as vindication of Ivey’s version of the evidence,’ Justice Champ Lyons wrote in the majority decision. …Ivey’s attorney, Barry Ragsdale, said the decision shows the Republican- dominated court can rise above politics to rule in favor of someone who has been a big supporter of Democrats.” Civil suits by Ivey and Windom against each other remain pending. (Phillip Rawls, “Supreme Court reverses attorney’s conviction in 1998 lt. gov. race”, AP/AlabamaLive, July 6).
July 6-8 – The rest of Justice O’Connor’s speech. Supreme Court Justice Sandra Day O’Connor’s speech earlier this week to a group of Minnesota women lawyers got front-page publicity because of its reflections on the shortcomings in the administration of the death penalty. That was not the only topic of her remarks, however. “O’Connor also said she is bothered by contingency fees that allow for big payoffs for victorious lawyers, especially in class-action lawsuits. ‘Such arrangements have made more overnight millionaires than almost any other businesses and the perverse incentives and the untoward consequences they are creating within our profession are many,” O’Connor said, adding that lawyers become ‘business partners of plaintiffs in seeking large-dollar recoveries rather than act as objective servants of the law.’ O’Connor also said she is worried that zero tolerance laws were too willing to sacrifice common sense for the politics of public safety.” (“O’Connor, in Speech, Blasts Death Penalty, Lawyer Fees and Zero Tolerance”, AP/ FoxNews.com, July 3).
July 6-8 – Batch of reader letters. Another large sack of correspondence in which readers send us moral support in the “Love Your Neighbor” affair; propose what to do with the trial lawyers who held secret what they knew about Firestone hazards while motorists perished; ask why Florida is investing in those demon tobacco companies; explain why the “tipsy topless dancer” injury case wasn’t one for the workers’ compensation system; criticize local TV’s coverage of the Manhattan drugstore handicapped access suit; and discuss the bagpiper “zero tolerance” case, Ohio auto insurance, and loser-pays. Two readers take us to task for our qualms about the negligent-homicide prosecution of the Tennessee mom who let her ill-fated two-year-old sit in her lap during a car ride; and a “proud lawyer” writes in to say “I think your website sucks”, and the rest of his letter doesn’t get any more complimentary from there.
July 6-8 – Research for lawyers, courtesy of their targets. A rash of age-discrimination suits is expected to follow recent business layoffs, especially given the impact of a federal law called the Older Workers Benefit Protection Act of 1990 which “requires companies to provide workers with age-specific data about who is targeted and who remains on the job after layoffs or early-retirement buyouts.” Put differently, the law requires employers to compile and hand over statistical ammunition so as to make life easier for lawyers who want to take them to court. It even requires them to inform workers of the exact, not just approximate, age of their departing colleagues — doesn’t that count as some sort of privacy violation? (Adam Geller, “A gray area”, AP/Austin American-Statesman, July 5). And the Sacramento Bee provides more details on that California legislation, authored by former state senator Tom Hayden, which furthers the cause of reparations litigation by “requir[ing] insurance companies doing business in the state during the 1800s to hand over archival records of insurance policies issued on the lives of slaves” and also directs the taxpayer-backed University of California to conduct research linking the modern California economy to the efforts of slaves. (“Slavery reparation movement advances with state legislation”, Fahizah Alim, Sacramento Bee, June 30). Gee, who do you think lobbies for laws like these?
July 6-8 – Estate-law temptations. According to Dominic Campisi, a San Francisco litigator who heads a committee on estate malpractice for the American Bar Association, ‘there are lots of attorneys that steal from estates.’ … Bad estate lawyers can easily skate free because their clients aren’t around to oversee them.” And do be extra careful around lawyers who are willing to be named beneficiaries in their clients’ wills. (Brigid McMenamin, “Lawyer Take All”, Forbes, May 28)(reg).
July 5 – Welcome Slashdot readers. Our coverage of Barney’s blustering lawyers is here. Also check out Declan McCullagh’s article on Wired News for more details (“Lawyers: Keep Barney Pure”, July 4). And another Slashdot poster points out that satire site Cybercheeze, the target of Barney’s lawyers, has its own permissions page which purports to ban linking to its site without using its logo — whoops, looks like we’ve just violated that policy. Or have we?
July 5 – Disparaging stadium nickname leads to suit. “Invesco Funds Group, which bought the naming rights to the new Denver Broncos stadium, announced Sunday that it plans to sue The Denver Post and sports columnist Woody Paige over Paige’s column in Sunday’s newspaper. Paige wrote that an unidentified Invesco executive told him some people in the company call Invesco Field at Mile High ‘The Diaphragm’ because they say it resembles the birth-control device.” The company says none of its execs would talk that way, even in private. Conclusion: it’s been defamed. (“Invesco to sue over column”, Denver Post, July 2).
July 5 – Harvard Law’s new Bob Barker program in animal rights. In recognition of a $500,000 gift, Harvard Law School has established the Bob Barker Endowment Fund for the Study of Animal Rights — the esteemed Mr. Barker, of course, being the longtime host of the TV game show “The Price Is Right” and a prominent supporter of the animal rights movement. “The Fund will support teaching and research at the Law School in the emerging field of animal rights law. The income generated by the gift will fund periodic courses and seminars at the Law School on animal rights taught by visiting scholars with a wide range of views and perspectives.” (HLS press release, June 13). Despite the nod toward “a wide range of views and perspectives”, we wonder whether Harvard would really have welcomed a mirror-image endowed fund on the study of animal law named after, say, Fred the Furrier. And if not, can we doubt that its imprimatur is effectively going to one side of this debate? Bonus: polymathic judge Richard Posner engages Princeton’s Peter Singer in a recent Slate online dialogue on critters’ entitlements (June 11: parts -1-, -2-, -3-, -4-) (via Arts & Letters Daily).
July 5 – “Scruggs interested in buying Saints”. “A multimillionaire trial lawyer says he would buy the New Orleans Saints and move them to Mississippi if it becomes an option. Richard Scruggs, a Mississippi plaintiffs lawyer who made several hundred million dollars from tobacco settlements, said he is interested in buying the team and moving it to Mississippi.” That money must just be burnin’ a hole in his pocket — or is it Angelos envy? And one of the rival groups of investors interested in the team is headed by another plaintiff’s lawyer, Walter Leger Jr. (AP/Jackson Clarion Ledger, June 29).
July 5 – Connecticut to “mainstream” retarded kids. In a recent disabled-rights court settlement, the state of Connecticut has agreed to educate many more retarded students in regular classes alongside other kids. There are good reasons to fear that such placements will often lead to serious disruption of the class for other students and the teacher — and also a slower learning pace for many retarded kids themselves than if they were in a class tailored to their needs. But given the binding nature of a court order, schools will probably find it hard to undo placements on a case-by-case basis when they don’t work out (“State agrees to mainstream more disabled kids”, AP/Christian Science Monitor, June 19). This site’s editor was on the Fox News Channel last Thursday predicting that (alas) lawyers in the rest of the country will soon be trying to bring the new Connecticut system to their states (see Heather Nauert, “Connecticut Agrees to Teach Some Mentally Retarded Children in Regular Classes,” FoxNews.com, July 6).
July 3-4 – “Reflections of a Survivor of State Judicial Election Warfare”. In this speech to the Manhattan Institute, Justice Robert Young of the Michigan Supreme Court, who with two colleagues survived vicious attacks to retain his seat in last fall’s elections, argues that the mounting acrimony and expense of state judicial campaigns arises from a philosophical clash between activist and traditionalist views of the judicial role, made worse by interest-group warfare, with trial lawyers intent on keeping state judiciaries in the hands of their friends (Manhattan Institute Civil Justice Report #2, June: html, PDF formats)
July 3-4 – “Lawyer says Yellow Book ad made him look bad, sues for damages”. Attorney Harvey W. Daniels of Greensburg, Pa. has sued the publishers of the Westmoreland County Yellow Book “for $500,000 in punitive damages and an unspecified amount in compensatory damages. … Daniels alleges the advertisement in the 2000-01 Yellow Book failed to mention that he is a personal-injury lawyer. He also claims that a photo with the previous year’s ad was ‘so grotesque that the plaintiff looked like an albino and discouraged any client from contacting’ him.” (AP/Boston Globe, June 29) (sorry, no illustration).
July 3-4 – “You get a coupon, he gets a fortune”. Vince Carroll of Denver’s Rocky Mountain News on the Blockbuster Video class action settlement (June 13).
July 3-4 – “Court Says Tipsy Topless Dancer Can Sue Club”. A Texas appeals court has ruled that dancer Sarah Salazar of San Antonio, who left work tipsy and had a car accident, can sue her employer, the now-defunct Giorgio’s Men’s Club, for encouraging her to drink with customers “so they would buy more drinks at inflated prices.” If she was employed by the club, shouldn’t this be a workers’ comp claim rather than a lawsuit? Or are we missing something? (Reuters, June 28) (& letter to the editor, July 6).
July 3-4 – Welcome Online Tonight listeners. Our editor was a guest Friday night on the radio show hosted by David Lawrence. Also: Virginia Postrel’s “The Scene“, congratulating us on our second birthday; Slithy Tove’s Live Journal (scroll to May 23); GrassRoots GunRights South Carolina; Infodrome.nl (in Dutch); San Francisco law firm Cox, Wootton, Griffin & Hansen; Declan McCullagh’s politechbot, June 26.
July 2 – Two views of Microsoft ruling. Richard Epstein finds the court of appeals’ unanimous ruling to be reasonably good news for Microsoft, and in line with the market’s expectations; but Jonathan Groner says the company is now in more trouble on the private suits and might still face a breakup down the road (Richard A. Epstein, “Phew!”, Wall Street Journal/ OpinionJournal.com, June 30; Jonathan Groner, “Not Good News for Microsoft”, American Lawyer Media, June 29; U.S. v. Microsoft (PDF — courtesy Law.com)).
July 2 – Facial-jewelry discrimination charged. Phone company Ameritech has told three line workers that it will not let them go to work with eyebrow rods and other inserted facial-piercings jewelry, which it worries could obstruct their vision or conduct electricity in an accident. The three say they’re being discriminated against and have filed a grievance. However, the company may risk being sued if it does let them wear the metal items, given OSHA rules calling for technicians who work near power lines to forgo wearing anything that conducts electricity, even wedding rings (Jon Van, “Piercings pit workers against Ameritech”, Chicago Tribune, June 21).
July 2 – Bounties for ratting out taxpayers? For nearly 10 years private San Francisco attorneys Michael Mendelson and Wayne Lesser have been goading the city to pursue IBM over its alleged use of property transfers to underpay city real estate taxes. The city did investigate and negotiated a deal in which the giant computer maker agreed to fork over more tax money, but that deal has been rejected by the board of supervisors and the eventual outcome remains uncertain. In the mean time, Mendelson and Lesser say they want “attorneys’ fees of about $14 million — 25 percent of the $56 million in back property taxes, interest and penalties they say the city is owed” — for having pushed the issue onto city lawyers’ agenda. Deputy City Attorney Owen Clements says the city neither needed nor wanted their help and “says city officials were on top of the matter before the two attorneys started making noise.” He’s also “adamant that, whatever the outcome of the case, the two lawyers have no fee due them. ‘There’s no such thing as tax bounty money.’” (Dennis J. Opatrny, “Battle Over Big Blue”, The Recorder, June 5).
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June 29-July 1 – Crowded drugstores illegal? For years lawyers have warned that cramped retail store layouts may violate the Americans with Disabilities Act because of the way they impede “access” by customers with wheelchairs and other mobility impairments. Now an advocacy group for the disabled has sued the Duane Reade drugstore chain, charging that many of its outlets in Manhattan are in violation, especially those with multiple levels and obstructed aisles. One plaintiff says some nonprescription medicines are placed on shelves too high for her to reach; another says she feels her privacy is compromised when a store employee assists her to the pharmacy area. In crowded locations such as midtown Manhattan, mandates for uncrowded drugstores will probably lead to the closure of some locations — thus making everyone go farther to get their prescriptions filled — and higher prices at the rest, given that rent per square foot is a major element of overhead cost. The law firm Fish & Neave is representing the disabled group, in conjunction with the not unironically named New York Lawyers for the Public Interest. (David W. Dunlap, “Tight Retail Spaces Prompt Suit by the Disabled”, New York Times, June 27; “Duane Reade Stores: Disability-Impaired”, VisualStore.com, June 27) (& letter to the editor, July 6).
June 29-July 1 – Ohio auto insurance wreck. The trial-lawyer-backed 4-3 majority on the Ohio Supreme Court has been doing creative things to expand the scope of coverage of auto insurance in the Buckeye State, with the unfortunate consequence that the price of it is soaring. “The court says that the insurance policies a business buys on its fleet of automobiles covers its employees and their families when driving their personal cars on vacation or on any other personal matter — from taking the kids to school to driving out for groceries.” (“Liability unlimited? This is not your father’s car insurance”, (editorial), Columbus Dispatch, June 3; “Court extends uninsured coverage beyond belief” (letter to the editor), Columbus Dispatch, June 2)(& letter to the editor, July 6). Update Nov. 2-4: bill to reverse court decision goes into effect after being signed by governor.
June 29-July 1 – Domain-name disputes are busting out all over. A site called BaseballProspectus.com thinks a site called BaseballPrimer.com is infringing on its intellectual property, right down to its initials “BP”, which we regret to inform them British Petroleum got to first (Sean Forman and Jim Furtado, “Unexpected Reader Mail”, BaseballPrimer.com, April 4 — includes lots of reader reaction). The Fox television network this spring sicced its lawyers on a science-education web site created by the University of Wisconsin-Madison, “The Why Files“, whose title it says infringes on the trademark of its series “The X-Files.” “I’m not sure if Fox is trying to get a legal hammerlock on the alphabet or what their motives are, but that’s what it seems,” said the “Why” site’s editor. (“Fox aims to shut down acclaimed science web site”, ESchoolNews, March 1). And the Tata Group, a diversified industrial group on the Indian subcontinent, has obtained a ruling from the World Intellectual Property Organization closing down a sixually* oriented website by the name of bodacious-tatas.com; Marc Schneiders, a commentator from the Netherlands who says he is not connected with either party in the controversy, has put up a (clean) site called bodacious-tatas.org explaining why he thinks this ruling is madness. (Tata Group’s view: “Tata Sons evicts porbographic* cyber squatter”, Aug. 28, 2000).
* Misspelled deliberately, to dodge filters.
June 29-July 1 – Cell phone follies. “The New York assemblyman who drafted a bill that bans the use of cell phones while driving is pushing a bill that would punish offenders of the law as if they’d been driving drunk.” In Connecticut, a bill introduced in the state senate “also makes eating, tuning the radio and reading in the car an offense.” (Elisa Batista, “Car Phone Ban Author Wants More”, Wired News, June 28).
June 29-July 1 – Now we are 2. Overlawyered.com began publishing July 1, 1999, which makes us two years old. Drop us a line with testimonials about how you first learned of the page, what your favorite feature is, stories that got picked up by the wider press after running here first, unlikely people who read us — all that sort of thing. We’ll publish some highlights and keep the rest as souvenirs.
June 28 – “Colorblind Traffic-Light Installer Gets Fired, Sues County”. Former traffic-light installer Cleveland Merritt is suing Palm Beach County, Fla., “for firing him because he is colorblind and couldn’t distinguish between red and green wires.” The Equal Employment Opportunity Commission has already ruled in his favor on his Americans with Disabilities Act claim, agreeing with his lawyer that “the county could have kept him on the job by assigning him to other duties not affected by his colorblindness.” There are “19 differently colored wires in a traffic light”. (AP/FoxNews.com, June 27).
June 28 – Chapman, Broder, Kinsley on patients’ rights. The American Medical Association recognizes that medical malpractice litigation operates with amazing randomness and is actually “a barrier to quality improvement” — so why exactly do they wish to expand it? (Steve Chapman, “Seeing your HMO in court”, Chicago Tribune, June 21). Backers of the Kennedy- McCain- Edwards bill rely to an extraordinary degree on anecdotes — keep that in mind the next time the trial lawyers start dismissing critics like us as anecdotal (David Broder, “Battle of Anecdotes”, Washington Post, June 26). And Slate editor Michael Kinsley calls the bill the perfect piece of legislation for our era, not meaning that in a complimentary way. “Republicans charge that Democrats are in the pocket of the Trial Lawyers Association, and it’s pretty true. But there are also strategic and even philosophical reasons why proposals like the patients’ bill of rights rely on lawsuits to do their dirty work.” They are a “way to impose rules on the private economy while avoiding the big-government stigma.” Unfortunately, the “downside of this approach includes the enormous, though hidden, cost of litigation (the lawyers, the punitive damages, etc.), the inconsistent standards of judge-made law as opposed to uniform rules,” and so on. Kinsley concludes that liberalism of this sort is “flawed … [but] better than nothing.” (“Liberalism a la Mode”, Slate, June 21). See also “Patients’ Right to Sue” (WSJ editorial), OpinionJournal.com, June 24).
June 28 – More things you can’t have: glowsticks. Some federal drug enforcement officials consider glowsticks, the neonlike tubes of light waved by concertgoers, to be “drug paraphernalia”, and a group of New Orleans “rave” promoters, attempting to comply with a court order, have barred the novelty items from their clubs. (Janelle Brown, “Sell a glowstick, go to prison”, Salon, June 20). Update Feb. 20, 2002: court strikes down.
June 28 – “Lawyers put profits above lives”. Why did Texas lawyers suing Firestone (see June 25) refrain for years from reporting the tire failures to the federal government’s safety agency, NHTSA, thus ensuring the danger would continue? They’ve claimed it was because they were afraid NHTSA would undercut their cases by investigating and wrongly clearing the tires, but Prof. Lester Brickman, a legal ethics specialist at Yeshiva University’s Cardozo Law School, holds out an alternative theory: “they didn’t want to alert other lawyers to the chance for profit”. (New York Post (op-ed), June 27).
June 27 – By reader acclaim: student sues law prof over class demonstration. Talk about learning by doing: a student is suing her law professor “for pulling a chair out from under her as a demonstration in a class on personal injury lawsuits. Denise DiFede, 30, charges Pace University Law prof Gary Munneke caused her ‘severe pain and mental anguish’ when he pulled the stunt.” She’s demanding $5 million and is also suing Pace University School of Law, in White Plains, N.Y., where the incident took place. “Munneke was teaching a ‘torts’ class, discussing Garrett vs. Daley — a case about a child who injured another kid when he pulled out a chair from under him.” DiFede’s lawyer said she “was badly injured because she has an ‘eggshell’ body and had undergone a back operation shortly before her fall.” (Dareh Gregorian, “Class Action”, New York Post, June 26; “Student Sues Professor Over Class Demonstration”, Reuters, June 26; Jim Knipfel, “Billboard: The Three Stooges Go To Law School”, New York Press, June 27).
June 27 – Educational privacy gone to extremes. The Family Education Rights and Privacy Act is another of those feel-good enactments whose cumulative effect on our national life has been so harshly punitive: it prohibits public schools from releasing any “education records of students … without the written consent of their parents.” Since that includes grades, it may now violate federal law for a teacher to disclose how a student scored in any class or project — even posting a child’s artwork on a wall with a gold star may be legally dubious, according to one school attorney. The U.S. Supreme Court has agreed to help clarify the law in a case where a teacher allowed students to “grade” each other’s work aloud, which meant the grades were necessarily “disclosed” as they were given. (“High court to hear school grade, honor roll case”, AP/CNN, June 26; “Why Is This In Court?” (editorial), Washington Post, June 27).
June 27 – Warren Buffett was wrong. Not long ago the famed investor, through his Berkshire Hathaway, bought a substantial stake in USG (Yahoo page), the big maker of drywall, joint compound, ceiling tiles and other familiar construction-site products. In doing so Buffett was widely reported to have placed a bet that the company’s legacy of asbestos litigation would soon be resolved through some agreed-on scheme of compensation for injured workers, despite the opposition of organized trial lawyers to any legislation that would remove claims from the tort system. No such reforms have been forthcoming, however, and on Monday USG joined Owens Corning, Armstrong World Industries, GAF, W.R. Grace and other major industrial companies that have lately sought protection from asbestos suits in the bankruptcy courts (“USG files for Chapter 11″, CNNfn, June 25; “USG Files for Bankruptcy, Blames Lawsuits”, Yahoo/Reuters, June 25; company site). As each company folds its hand, lawyers demand higher payouts from those remaining, in a joint-and- several-liability “last-man club”. While USG reported $3.78 billion in revenue last year, its asbestos-related payouts this year are expected to surpass $275 million, a large portion of which will likely go toward claims on behalf of persons never injured by its products, with more claims flooding in by the tens of thousands, the “vast majority”, it says, for workers who are not in fact ill (background). “We have said repeatedly that U.S. Gypsum can afford to pay for its own liability, but it cannot pay for the liability of other companies or pay everyone who was exposed to asbestos-containing products — yet that is exactly what is happening because of the high volume of new cases and other asbestos-related bankruptcies,” said chairman William C. Foote. The company’s management cites the party switch of Vermont Sen. James Jeffords as a reason for throwing in the towel, since a Senate organized by Democrats is unlikely to give the nod to any legislative fix for the litigation morass. (“USG Says It May Seek Bankruptcy Protection After Jeffords Decision”, Wall Street Journal, June 5).
Still not bankrupt is Crown Cork & Seal (Yahoo page), the big Philadelphia-based packaging company, which in 1963 “bought Mundet, a North Bergen, N.J. firm that made cork bottle caps and insulation that contained asbestos. Only interested in the bottle-cap business, Crown sold off the insulation part of Mundet just 93 days later. It neither operated the insulation business nor ever intended to. Crown has paid dearly for those 93 days, paying out millions of dollars to settle some 70,000 asbestos-related claims, and bringing the company to the edge of bankruptcy” with its aggregate payouts mounting into many hundreds of millions (Monte Burke, “An Affair to Remember”, Forbes, June 11 (reg)). Update Jun. 26-27, 2002: judge upholds bill passed by Pa. legislature limiting Crown’s asbestos liability (DURABLE LINK)
June 26 – Managed care debate. “The ‘patients bill of rights’ is the issue du jour, but the problems it was designed to address have largely passed,” writes Virginia Postrel. “Managed care operates in a market, imperfect though it may be. When patients are unhappy enough to complain to Congress, they’re also unhappy enough to complain to their insurance-buying employers — who are a lot more nimble than the political process.” As employers shop for plans that will not tick off their workforces too badly, many of the things people hated about managed care a couple of years ago are already being changed (VPostrel.com, “The Scene“, scroll to “Obsolete Reform”; and see Michael Lynch, “Timing Error”, Reason, July 1998). Those without health insurance currently constitute 17 percent of the U.S. population, and the Employment Policy Foundation estimates that the figure would increase to 23 percent by 2010 if Congress enacts the cost-inflating new bill, with 9 million more persons off the insured rolls (“Patients’ Rights Legislation: The Triangle of Health Insurance: Quality, Cost and Access”, June 20 (PDF). Not all the increase is attributable to the PBR, however, since the EPF’s paper says that the number would increase to 19 percent even without the change. Although Sen. McCain has described organized medicine’s support for the PBR as unanimous, the American Association of Physicians and Surgeons begs to differ (letter from Jane Orient, M.D., June 21). And employers are not inclined to credit assurances from trial lawyer-Sen. John Edwards (D.-N.C.) and other Kennedy-McCain sponsors that tagging them with liability for managed-care practices is the furthest thing from their minds (“Senate Patients’ Rights Debate Focuses on Employers”, Fox News, June 25).
June 26 – Spoof memo draws EEOC probe. Dateline Columbia, S.C.: the federal Equal Employment Opportunity Commission “has opened a preliminary inquiry into a tongue-in-cheek memo that urged female pages at the state House to dress more provocatively. The memo was written as a spoof reply to a dress code banning the pages, mostly University of South Carolina students, from wearing low-cut blouses or short skirts.” The memo’s anonymous authors also exhibited disrespect toward the Women’s Caucus, urging female pages to ignore future memos from the caucus. (Jim Davenport, AP/Nando, June 13).
June 26 – “Burn Victim Files Suit Over Yellowstone Scalding”. “A man is suing the federal government for negligence after he was badly scalded in a Yellowstone National Park thermal pool last year. Lance Buchi, 19, of Holladay, Utah, and two friends jumped into the 178-degree water at night on Aug. 21, apparently mistaking the pool for a narrow stream. … The three worked for Amfac Parks and Resorts, the park’s management company.” (“Burn Victim Files Suit Over Yellowstone Scalding”, AP/FoxNews.com, June 21). Update Sept. 6-8, 2002: judge lets case go forward.
June 26 – Welcome Bourque.org readers. Pierre Bourque’s page has been called the “Drudge Report of Canada” and we were stampeded by Canadian readers yesterday after he linked our piece on trial lawyers and tire defects. Also sending us visitors: John Armor’s American Civil Rights Union, conceived as a counterweight to the ACLU; WCSI Radio, Columbus, Ind. (among “sites of the week”, June 9); Green Party volunteer Paul Franklin in Santa Cruz, Calif.; “Libertarianistaj Organizoj kaj Aliaj Subtenantoj de Libereco“, a page for libertarian-minded speakers of Esperanto; Max Utens Press, publisher of “Informed Consent in Otolaryngology” and other medico-legal treatises; DomeLights.com “Cop’s Lounge” (“Links and other features of interest to cops and their friends”); CapitolGate, among the favorite sites of Ohio political consultant Mark R. Weaver (June 25); and Burton Randall Hanson’s “Law and Everything Else” page (featured site this week), among hundreds of others. Ask your favorite webmaster to give us a link as well!
June 25 – Trial lawyers knew of tire failures, didn’t inform safety regulators. “A group of personal-injury lawyers and one of the nation’s top traffic-safety consultants identified a pattern of failures of Firestone ATX tires on Ford Explorer sport utility vehicles in 1996,” reported Keith Bradsher in yesterday’s New York Times lead story. “But they did not disclose the pattern to government safety regulators for four years, out of concern that private lawsuits would be compromised.” By 1996 trial lawyers suing Bridgestone/Firestone, through the work of a consultant named Sean Kane, had identified 30 cases of tire failure, “a few” involving deaths. For the next four years, however, they chose not to file the safety complaints that would have called the pattern to the attention of the National Highway Traffic Safety Administration. They were afraid doing so might prejudice their chances of winning their cases because the agency might investigate and find no proof of a defect. Of the 203 reported U.S. deaths linked to failure of the tires, 190 occurred after 1996 and thus might in principle have been averted had the lawyers chosen to speak up.
“Dr. Ricardo Martinez, the administrator of the traffic safety agency from 1994 to 1999, said he was appalled to learn that information had been kept from his staff for years. He said he would have ordered an immediate investigation if anyone had told him of the tire problems. …Mr. Kane said that the lawyers’ first duty was to win as much money as possible for the crash victims whom they represented. The lawyers typically work on contingency and collect up to a third of any settlement or court verdict.”
Prominent legal ethicist Geoffrey Hazard Jr. of the University of Pennsylvania Law School agrees that current ethical codes leave lawyers with only a “civic responsibility”, not a legal duty, to report safety problems of which they become aware. “Ford engineers were falsely reassured in 1999 when they checked the federal complaint database and found it virtually empty — because lawyers had not filed complaints.” Even after a February 2000 Houston TV report on the tires triggered a NHTSA investigation, the lawyers withheld from the agency some information on problems with the tires: “You don’t want to be tipping your hand to the defendants,” said Mr. Kane, who since 1997 has been the partner for tire issues at a litigation consultancy called Strategic Safety. (Keith Bradsher, “S.U.V. Tire Defects Were Known in ’96 but Not Reported”, New York Times, June 24 (reg); see Sept. 15, 2000) (& letter to the editor, July 6). (DURABLE LINK)
June 25 – “Lawyers’ client bashed for due fees”. Dateline Australia: “Two Melbourne lawyers, one of them a QC, stood outside a conference room while a client who owed them money was bashed inside, a court was told yesterday.” Solicitor Alan Shnider is now facing criminal charges over the incident, as are two men who summoned property developer George Kallis to the rendezvous and then allegedly beat him while Shnider waited outside. (Melbourne Age, June 23). In other news, while public concern is on the rise in Australia about mounting litigiousness, some members of the Down Under bar are dismissing it all as a “myth” and “smokescreen” cooked up by their opponents — taking a leaf from their American counterparts, who’ve been sticking to that line for years (Larissa Dubecki, “Come up and sue me some time”, Melbourne Age, June 23).
June 25 – Barney’s bluster. After online joke site Cybercheeze ran an item proposing a variety of demises for the cartoon character Barney (“150 Ways to Kill the Purple Dinosaur“), it got this letter (June 6) from Barney’s owners, Lyons Partnership, L.P., advising: “We have reviewed your website and have concluded that it incorporates the use and threat of violence towards the children’s character Barney without permission from Lyons Partnership” and demanding that the item be pulled, to which the site owners fired off this massively rude reply (June 14).
June 22-24 – Columnist-fest. To read at the beach, or even inland:
* Christopher Caldwell on the Jenna Bush case and our absurdly puritanical youth-drinking laws (thanks so much, Liddy Dole) (“Pour, Little Rich Girl”, New York Press, June 6).
* Wendy McElroy on the EEOC’s finding that librarians suffered “second-hand harassment” when patrons were permitted to visit dirty websites (“The Next Wave of Office Politics: ‘Second-Hand Harassment’”, Fox News, June 6; see June 4).
* Amity Shlaes on the traveling circus of product-liability forum-shopping that has currently pitched its tent in Jefferson County, Mississippi (“Will Grisham soon be unemployed?”, Financial Times/Jewish World Review, May 30; see May 4-6).
* “Kennedy-McCain is the medical profession’s effort to counterattack its enemy, the insurance industry, using expensive lawsuits as a weapon. … the ultimate victims will be lower-income employees who will lose insurance coverage,” writes Morton Kondracke (“Patients Rights’ Bill Is Doctors’ Overkill In War With HMOs”, Roll Call, June 21).
* Jacob Sullum on the welcome dismissal of several municipal suits against the gunmaking industry (“Shot down”, Creator’s Syndicate/Reason.com, May 15) and on the reasons the Bush Justice Department should simply drop, rather than try to settle through negotiation, the lawsuit it inherited against tobacco companies (“A Real Racket”, National Review Online, June 21).
* Wrap-ups on the Court’s lamentable Casey Martin decision: Stuart Taylor, Jr., “Nice Guy Wins, Dumb Lawsuits to Follow”, National Journal/The Atlantic Online, June 5 (quotes our editor); John Leo, “Duffers in the Court”, Jewish World Review, June 6; David E. Bernstein (George Mason U.), “Casey Martin Ruling Is Par for the Course”, Wall Street Journal, May 30.
June 22-24 – Updates. Further developments in stories we’ve written about:
* In as belated and ungracious an apology as he could muster without sustaining further political damage, California AG Bill Lockyer now says he regrets his remark about locking Enron exec Ken Lay in a cell with tattooed “Spike” (June 1-3, 8-10) and doesn’t after all think “that prison rape is proper punishment for criminals” (“Lockyer Regrets ‘Crude Remark’”, L.A. Times, June 20).
* New York’s Rev. Al Sharpton, widely seen as wanting to clean up his affairs in preparation for running for office, has at last paid Steven Pagones the money he owes for defaming him in the Tawana Brawley case, thus ending a prolonged charade in which Sharpton claimed that the many tailored suits and other accouterments of his expensive lifestyle didn’t really belong to him and therefore couldn’t be seized to satisfy the debt (Dave Goldiner, “Rev. Al Pays Off Pagones in Brawley Slander Case”, New York Daily News, June 14; see Dec. 29, 2000).
* A California judge last month vacated an $88.5 million arbitration award of legal fees that would have been paid to Milberg Weiss and other politically connected law firms that successfully litigated a challenge to the state’s “smog impact fee” (see Dec. 5, 2000). The fee was supposed to remain “confidential” but leaked out anyway, resulting in a huge public outcry. (Statement, Dean Andal, member, Calif. Board of Equalization; Michael A. Glueck, “Sweetheart Deal Enriches Law Firm”, Orange County Register, Jan. 21, reprinted at Orange County CALA; Greg Turner, “State Gambles, Taxpayers Lose”, Cal-Tax Digest, February; “Taxpayers fleeced again: Lawyers’ bill for smog-fee suit should be challenged”, editorial, Sacramento Bee, Jan. 12; Kevin Livingston, “California Ups the Ante in Smog Fee Award Fracas”, Law.com, Dec. 15).
June 21 – “Catherine Crier Live” today. Our editor is scheduled to be a guest today on the Emmy award-winning journalist’s “Court TV” program, to discuss this website. (5 p.m. Eastern/Pacific).
June 21 – Annals of zero tolerance: bagpiper prom garb. In Holt, Mich., 17-year-old Jeremy Hix went to his school’s May senior prom “in his authentic bagpiper’s uniform, including a skandubh [skean dubh], a knife with a 3-inch blade. In keeping with Scottish tradition, Hix carried the knife in a sheath tucked into his sock.” Although he did not remove the knife from its sheath, a chaperone noticed it and reported him for weapons possession. Now Hix, “one year shy of graduation, is facing an expulsion that would effectively ban him from all Michigan public schools for the rest of his high school career.” Veteran teacher Bill Savage said the authorities are scared of not being punitive enough: “The school’s legal counsel is saying, ‘If we make an exception in this case, it will explode the litigation box wide open.’” (John Schneider, “Schneider: Legal Ploy”, Lansing State Journal, June 14) (& letter to the editor, July 6).
June 21 – Pregnant actress complains at being denied virgin role. In Great Britain, actress Bethany Halliday is filing a complaint with an employment tribunal against the famed D’Oyly Carte opera company, which taking note of her state of pregnancy declined to cast her in the role of a virginal teenager. In Gilbert & Sullivan’s “Pirates of Penzance“, the daughters of Major-General Stanley 
are supposed to have been raised in such delicacy and seclusion that they scream every time they see a man. The D’Oyly Carte producers noted that Ms. Halliday “would be at least six months pregnant at the time the show was due to open”, beyond which the show’s costumes call for tight Victorian corseting. Actors’ Equity is backing Ms. Halliday’s complaint, which may test the bounds of the widely noted “authenticity” exception to discrimination law, which allows an employer to take into account otherwise protected characteristics when they affect the believability of character portrayals. (“Pregnant singer ‘refused’ virgin role”, BBC, May 18; Art: Bab collection).
June 21 – Tobacco-fee tensions. A newly organized group in Maryland is calling for a boycott of baseball’s Baltimore Orioles until owner Peter Angelos retreats from his demand to be paid $1.1 billion for representing the state in the tobacco litigation. “‘We believe Mr. Angelos should be fairly compensated for his effort. However, as a matter of law, the $1.1 billion fee is totally outrageous,’ said Jeffrey C. Hooke, a Chevy Chase investment banker and co-founder of the organization called Project $1.1 Billion Recovery”. Earlier this month, “Maryland’s highest court found the lawyer’s argument that he [Angelos] is entitled to the full 25 percent [of the state's $4.4-billion recovery] to be ‘completely without merit.’” (Lori Montgomery, “Taxpayers Call for Boycott Against Angelos, Orioles”, Washington Post, June 10). (Update Apr. 10, 2002: Angelos settles for $150 million). Wrangling continues over Texas tobacco fees as new AG John Cornyn seeks to escape the Texarkana court of federal judge David Folsom, who appears less than well disposed to Cornyn’s efforts to investigate the circumstances under which the politically connected Big Five trial lawyers hauled home a $3.3 billion fee (Brenda Sapino Jeffreys, “5th Circuit Weighs Dispute Between Texas AG and Plaintiffs’ Lawyers Over Big Tobacco Litigation”, Texas Lawyer, June 12; see Sept. 1, 2000). And the state of Florida, which has helped lead the way in escalating the level of rhetoric against tobacco companies, has quietly decided to resume investing state pension fund money in those very same companies (“Florida approves pension fund investments in tobacco stocks”, AP/FindLaw, June 20) (& letter to the editor, July 6).
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January 19-21 – “Wacky warning label” winners. First place in the fourth annual Wacky Warning Label contest sponsored by Michigan Lawsuit Abuse Watch went to “a label on a pair of shin guards for bicyclists: “Shin pads cannot protect any part of the body they do not cover.” Second place? a “label on a toilet at a public sports facility in Ann Arbor, Michigan warning ‘Recycled flush water unsafe for drinking’ … Honorable mention went to a Texan who found a label on an electric wood router made for carpenters which cautions: ‘This product not intended for use as a dental drill.’” (Jan. 17; M-LAW site; Andrea Cecil, “Wacky warnings”, FoxNews.com, Jan. 17).
January 19-21 – Come to America and sue. Lawyers representing survivors of German victims of last summer’s Concorde crash near Paris airport have now sued Air France, Continental Airlines and several other defendants. And where have they filed their suit? Why, in the United States, naturally — which is thousands of miles from the crash site, but where we hand out much bigger tort awards than they do in France. (“Victims’ families file suit in Concorde crash”, CNN, Jan. 9; see Sept. 29).
January 19-21 – Turn off those registers. The Lemelson Foundation, famously hyperactive in patent assertion (see Aug. 28, 1999), has sued 135 national retail chains claiming that its patents have been infringed by their use of bar-code scanning technology. Representing defendants, Kenneth Chiate of Pillsbury, Madison & Sutro says that if the foundation prevails it could get a court to issue an injunction against using the familiar check-out method: “They could put a stop to the whole retail industry in this country… it could be devastating.” (Kirsten Andelman, “Pillsbury Wins Beauty Contest”, The Recorder (San Francisco), Nov. 7).
January 18 – Annals of zero tolerance: gun-shaped medallion. “School officials have suspended a third-grade student under the state’s zero-tolerance weapons law after he brought a 1 1/2-inch-long gun-shaped medallion to class. The boy apparently found the piece of jewelry in a snowbank and brought it to Owen Elementary School on Wednesday, school officials said. ‘State law takes precedence and requires us to take action even though it was a toy,’ said Donna Poag, director of elementary education for the Pontiac [Mich.] School District.” (“Third-grader suspended for gun-shaped medallion in school”, AP/CNN, Jan. 13).
January 18 – “Bogus” assault on Norton. Opponents of Interior Secretary-designate Gale Norton (Jan. 15, Jan. 5) have absurdly sought to depict her as pro-Confederacy based on a 1996 speech she gave to the Independence Institute. But as Mickey Kaus points out at Kausfiles.com: “The more inflammatory charges against Norton based on this speech appear to be almost totally bogus …. Norton’s opponents ask ‘Who is “we” in the phrase “we lost too much”‘? But ‘we’ clearly means ‘we Americans who should believe in states’ rights,’ not ‘we Americans who believe in the Confederate cause.’ …You might not find her speech convincing, but only a willful misreading turns it into any sort of secret embrace of the Confederate cause.” (left column, dated Jan. 17).
Meanwhile, the Sierra Club, in what may be another sign of an emerging working relationship between the more extreme environmental groups and activist trial lawyers (see Dec. 7), has made it an explicit part of its case against Norton’s confirmation that while a lawyer in private practice she “worked to dissuade state attorneys general” from turning paint companies (one of which she was representing) into the “next tobacco”. Other public figures who get in the way of this kind of retroactive expropriation through litigation should be duly warned: they, too, may turn up on the Sierra Club’s hit list (“NH Sierra Club opposes Norton confirmation”, AP/FindLaw, Jan. 17). (DURABLE LINK)
January 18 – What they did for lead-plaintiff status? A brief filed by New York’s Sullivan & Cromwell last fall alleged that class-action powerhouse Milberg Weiss Bershad Hynes & Lerach engaged in some fancy footwork in an attempt to gain the lucrative lead counsel position in a huge securities class action against Sullivan’s client, Oxford Health Plans Inc. “According to the brief, Milberg Weiss clients filed ‘misleading’ affidavits to ‘create the appearance that they had suffered substantial losses’ from trading in Oxford stock. In fact, one of Milberg’s two clients reaped a huge profit from his trading, while the other suffered much smaller losses than others vying to become ‘lead plaintiff’ and seize control of the litigation under the Private Securities Litigation Reform Act of 1995, the brief alleges. … Milberg Weiss’ response … contends that Sullivan & Cromwell ‘distorted the facts and ignored the law, all the while peppering their papers with outrageous and unfounded allegations.’” (Karen Donovan, “A Case of Ill-fitting Oxfords?”, National Law Journal, Oct. 3). More on the case: Peter Elkind, “The King of Pain Is Courting New Trouble”, Fortune, Oct. 2; Cameron Stracher, “Attorneys’ Fee-for-All”, New York, Oct. 23 (“S&C is just mad,” claims one lawyer, “because Milberg partners make more money than they do.”); Scott Gottlieb, “Presidency or Health Care Giant, There’s a Lawsuit in There Somewhere”, WebMD, Nov. 17. Update: a federal judge rejected the charges; see Feb. 21-22.
January 17 – “Coming soon to a school near you”. In Washington’s alt-weekly City Paper (Jan. 12-18), “Loose Lips” columnist Jonetta Rose Barras reprints the following letter, which “leaves even [her] speechless”:
District of Columbia Public Schools
Office of the General Counsel
Labor Management and Employee Relations
November 16, 2000
Dear Ms. [name withheld]:
On June 23, 2000, you were informed by letter that you would not receive an offer of employment with the District of Columbia Public Schools (DCPS) based on the results of your criminal background check. Based on your subsequent presentation of documentation that your 1984 charge for Uniformed Controlled Substance Act, Cannabis was no papered; that your 1984 charge for shoplifting was nolle prosequi; that your 1984 charge for assault with a dangerous weapon, razor was no papered; that your 1984 charge for destruction of government property was nolle prosequi; that your 1986 charge for assault with a deadly weapon was dismissed; that your 1987 charge for soliciting for prostitution was nolle prosequi; that your 1989 charge for assault with a dangerous weapon, razor was no papered; and that your 1992 Uniform Controlled Substance Act, possession with intent to distribute cocaine was dismissed. You are eligible for employment with DCPS.
If you have any questions or concerns, kindly contact Labor Management and Employee Relations at (202) 442-5373.
Sincerely,
Delores Hamilton
Acting Director of Human Resources
cc: Alfred Winder
Employee Services and Staffing
Office of the General Counsel
Labor Management and Employee Relations
Division of Security
Official Personnel File
January 17 – ABA’s toothless ethics proposals. The American Bar Association’s “Ethics 2000″ commission wants to revise lawyers’ ethical code, the Model Rules of Professional Conduct. But don’t get your hopes up: the panel shows little enthusiasm for requiring lawyers to observe basic consumer protection precepts such as the disclosure to clients of the billing methods they use or of the existence of alternatives to contemplated legal work. Public comments must be submitted before May. (David A. Giacalone, “Counselors Oughtta Counsel (Not Conceal)”, PrairieLaw, Dec. 7).
January 16 – “Holocaust Reparations — A Growing Scandal”. Back in the September issue of the American Jewish Committee’s journal Commentary, senior editor Gabriel Schoenfeld laid down a courageous challenge to the prevailing view of the World War II reparations crusade, pointing out the difficulties of resolving old title claims to bank accounts, insurance and real estate even when the holders of financial trusts are acting in good faith; questioning some reparations activists’ insistence on portraying in the worst possible light the actions during the war of such nations as the Netherlands and Switzerland; and exploring the often far from constructive role played by ambitious American lawyers and politicians. Now, in its January issue, the magazine publishes a “Controversy” in which numerous readers, including Deputy Secretary of the Treasury and key reparations negotiator Stuart Eizenstat, react to Schoenfeld’s article, and he responds to their criticisms.
January 16 – Batch of reader mail. The latest additions to our letters page discuss tax farming, things hospital staff do to so as not to risk being sued, lawyers’ monopoly on real estate transactions (and the state of the courts generally), and where to buy hallucinogens other than on eBay. Also, an attorney from Louisiana is really upset with us for our coverage of his client’s suit over racetrack payouts.
January 15 – The Times vs. Gale Norton. “The New York Times, for reasons that must be assumed to be political, has attempted to smear Gale Norton, President-elect George W. Bush’s choice for secretary of Interior,” writes Al Knight, columnist with the generally liberal Denver Post. Times reporter Timothy Egan sought to link Norton, who served as Attorney General of the state of Colorado, with inadequate law enforcement efforts in response to contamination from a gold mine in the town of Summitville, which allegedly led to the “death” of the Alamosa river. Don’t miss Knight’s devastating point-by-point correction of Egan’s numerous misimpressions: Knight concludes that “[a]ny mishandling of the [four-year-old] Summitville litigation can be directly traced to the EPA and to the Justice Department.” (Timothy Egan, “The Death of a River Looms Over Choice for Interior Post”, New York Times, Jan. 7 (reg); “Summitville gold mine is cast as a political boogeyman”, Denver Post, Jan. 10; “The blame for Summitville” (editorial), Jan. 11; via WSJ OpinionJournal.com).
National environmental groups’ jihad against Norton may have found a ready ear among some editors in cities like New York where, to quote Fran Lebowitz, the outdoors consists of the distance between one’s apartment lobby and a taxicab. But it exasperates many who actually worked with Norton in Colorado, to judge by a report in Denver’s other major paper, the Rocky Mountain News. “‘There was never one iota of reticence to pursue polluters on (Norton’s) part,’ said Patrick Teegarden, policy director for the Colorado Department of Public Health and Environment and himself a Democrat. ‘She took her role in enforcing our laws very, very seriously and did an excellent job on behalf of this agency.’” On the much-misrepresented “self-audit” issue (see July 19, 1999 and link to Schulte, Roth and Zabel article there), Norton’s position was backed by Democratic Gov. Roy Romer and by the state legislature. (Todd Hartman, “Ex-cohorts deny Norton was patsy for polluters”, Rocky Mountain News, Jan. 14). Some trial lawyers, meanwhile, have it in for Norton because as a private attorney she counseled a major paint manufacturer on how to resist the courtroom assault aimed at turning the decades-ago sale of lead paint into the next tobacco (Douglas Jehl, “Environmental Groups Join in Opposing Choice for Interior Secretary”, New York Times, Jan. 12 (reg)).
A Jan. 13 Times report, meanwhile, darkly announces that Norton “has repeatedly challenged some of the laws that she would be obligated to enforce.” As one example, it offers the famous case of Adarand Contractors v. Pena, in which Norton as AG declined to represent the state against a suit that “challenged Colorado’s support of a law setting aside some highway contracts for businesses headed by members of minority racial groups, a provision that Ms. Norton has opposed as unfair.” But Times reporter Douglas Jehl fails to note that higher courts, including the U.S. Supreme Court, proceeded to rule in Adarand’s favor, confirming Norton’s view. Writes Ira Stoll of the invaluable daily Times-watchdog newsletter, SmarterTimes: “It’s just flat-out false for the New York Times to report this Adarand matter as proof that Ms. Norton ‘has repeatedly challenged some of the laws that she would be obligated to enforce.’ She’d be under no obligation to enforce those racial set-aside laws as secretary of the interior — they are illegal and unconstitutional, as federal courts have repeatedly ruled. She was right to have challenged them.” And Stoll observes that the Denver Post‘s Al Knight “noted in a column that in opposing some of the state’s affirmative action policies in 1995, Ms. Norton was ‘doing precisely what the law requires her to do, make sure that the state is behaving in a lawful manner with minimal exposure to discrimination lawsuits.’” (Douglas Jehl, “Norton Record Often at Odds With Laws She Would Enforce”, New York Times, Jan. 13 (reg); SmarterTimes, Jan. 13) (write a letter to the Times). (DURABLE LINK)
January 15 – “Killer’s suit alleges job discrimination”. Committed to state psychiatric care since the 1978 killing of his wife and stabbing of his daughter and grandmother, Richard L. Greist is now suing the hospital where he’s a resident for allegedly discriminating against him by refusing to hire him for a job as clerk. His suit charges that Norristown State Hospital and the Pennsylvania Department of Public Welfare violated the Americans with Disabilities Act as well as the Constitution’s Equal Protection Clause. “Greist has been found to have paranoid schizophrenia and mixed-personality disorder.” He is being represented by attorney Neil O’Leary. (Kristin E. Holmes, “Killer’s suit alleges job discrimination”, Philadelphia Inquirer, Jan. 4) (more on killers’ rights: Jan. 7, 2000, Sept. 24, 1999).
January 12-14 – Hunter sues store over camouflage mask. Gregory Abshier, 42, of Kent City, Michigan, was paralyzed three years ago when he fell out of a tree stand used for bow hunting. He’s now suing retailer Meijer Inc. for selling him the camouflage mask he was using at the time, claiming he was overcome by fumes from its dyes. He’s being represented by the Southfield law firm of well-known litigator Geoffrey Fieger. Also named in the suit is Hunter’s Specialties Inc., of Cedar Rapids, Iowa, makers of the mask. (Doug Guthrie, “Paralyzed hunter sues Meijer over camouflage mask”, Grand Rapids Press, Dec. 26).
January 12-14 – The Kessler agenda. Critics used to say former food and drug chief David Kessler had a more extreme antilibertarian agenda on tobacco than he let on at the time, and you know what? They were right. He’s now out with a new book (A Question of Intent) arguing that the government should prohibit the sale of cigarettes to persons not already confirmed smokers (after all, wasn’t alcohol prohibition a roaring success?) and that it should establish a nonprofit monopoly enterprise to sell the things. (Duncan Campbell, “US call to ban cigarette sales”, Guardian (UK), Jan. 8).
January 11 – By reader acclaim. Among recent stories submitted by multiple correspondents:
* Latest McDonald’s coffee lawsuit: Teresa Reed of Murphysboro, Ill. says her ankle was burned on New Year’s Eve 1998 when the hot beverage spilled out of a cup holder in her mother’s car. She’s suing the local McDonald’s operator, along with Wal-Mart for selling the cup holder, another company for making it, and — best detail — her mom, asking $450,000. What, no suit against the automaker? (Karen Binder, “McDonald’s Being Sued; Couple Allege Coffee Was Served Too Hot”, Southern Illinoisan, Jan. 8; “McDonald’s Sued Over Spilled Coffee”, AP/Washington Post, Jan. 9) (more on hot beverage suits: Aug. 10 and list at end).
* In Vancouver, B.C., a “man who became a slave to crack cocaine is suing his alleged dealers, claiming they ‘owed a duty of care’ to their customers and should have known their activities could cause harm. ” (Greg Joyce, “Cocaine-addicted man files court claim, suing alleged dealers for damages”, CP/Ottawa Citizen, Jan. 3; “Crack addict sues dealers for lack of care”, Ananova.com, Jan. 4).
* As expected, Baltimore lawyer-Orioles owner Peter Angelos (asbestos, tobacco, lead paint) has sued companies connected with the cellular phone industry charging that radiation from the devices causes cancer, despite a further ebbing of the always-tenuous scientific backing for that proposition (National Cancer Institute, “No Association Found Between Cellular Phone Use and Risk of Brain Tumors”, press release, Dec. 21; Steven Milloy, “Junk science: Studies steal cell phone lawyer’s Christmas”, FoxNews.com, Dec. 22; Chris Ayres, “Vodafone sued over brain cancer”, The Times (London), Dec. 28; “Cancer scare hits cell firms”, CNNfn, Dec. 28; Richard Baum, “Mobile phone firms face fresh suits over tumours”, Reuters/ FindLaw, Dec. 28). Update Oct. 1-2, 2002: court dismisses case.
January 11 – In the gall department. Napster Inc., the company that made a huge success by encouraging its users to take a casual approach toward other people’s intellectual property, went to court last month to file a trademark-infringement suit. It’s suing a souvenir apparel-maker for allegedly selling T-shirts and other items bearing its well-known logo without its consent. (Benny Evangelista, “Napster Sues Firm for Trademark Violations”, San Francisco Chronicle, Dec. 30).
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June 30-July 2 – “Backstage at News of the Weird”. Chuck Shepherd writes the sublime “News of the Weird” feature, which is syndicated weekly to major papers and alternative weeklies nationwide. From time to time he’s asked which are “his favorite online scanning sites for weird news”. This site came in #4 of 6 — you’ll want to check out the whole list. (June 19).
Remarkable stories from the legal system turn up nearly every week both in “News of the Weird” and in the more recently launched “Backstage” column. Here’s one from the same June 19 number: “An Adel, Ga., man sued the maker of Liquid Fire drain cleaner for this injury (and follow this closely): LF comes in a special bottle with skull and crossbones and many warnings, but our guy thought, on his own that the bottle’s spout just might drip, so he poured the contents into his own bottle (which he thought would be drip-proof), whose packaging wasn’t able to withstand the LF and began to disintegrate immediately, causing the contents to spill onto his leg. So now he wants $100k for that.”
June 30-July 2 – Supreme Court vindicates Boy Scouts’ freedom. Matthew Berry, an attorney with the Institute for Justice who helped write an amicus brief for Gays and Lesbians for Individual Liberty, explains why the principle of freedom of association that protects the Boy Scouts from government dictation of its membership is also crucial in protecting the freedom of gays and lesbians (“Free To Be Us Alone”, Legal Times, April 24) (case, Boy Scouts of America et al v. Dale, at FindLaw). See also Independent Gay Forum entries on the subject by Tom Palmer and Stephen H. Miller.
June 30-July 2 – “DOJ’s Got the Antitrust Itch”. After a decade or two of quiescence, antitrust is on the rampage again, led by Joel Klein and other officials at the Justice Department’s Antitrust Division. (Declan McCullagh, Wired News, June 28).
June 30-July 2 – “Being a Lefty Has Its Ups and Downs”. Letter to the editor published in yesterday’s New York Times from our editor runs as follows: “To the Editor: At the City Council’s hearing on whether left-handed people should be protected by anti-discrimination law (Elizabeth Bumiller, “Council Urged to End a Most Sinister Bias”, June 22), a high school student called it discriminatory that banisters and handrails are often on the right side of public stairwells — at least from the perspective of someone climbing up. But people walk on stairs in both directions. It would seem the same stairwell that oppressively discriminates against lefties on the way up also discriminates against righties on the way down. Can they sue, too?
“The student also asserted that ‘societal discrimination results in the death of the left-handed population an average of 14 years earlier than the right-handed population.’ However, the study that purported to reveal such a gap was soon refuted. A 1993 study by the National Institute on Aging found no increase in mortality associated with handedness — not surprisingly, since insurance actuaries would long ago have made it their business to uncover such a correlation.” — Very truly yours, etc. (no longer online) (more on life expectancy controversy: APA Monitor, Psychological Bulletin, Am Journal Epidem — via Dr. Dave and Dee).
Postscript: Scott Shuger in Slate “Today’s Papers” promptly took a whack at us over the above letter, claiming we didn’t realize that big stairwells at places like high schools have two-way traffic patterns where people keep to the right, leaving lefties without a rail for the handy hand whether headed up or down. But if anything, this proves our point that the issue isn’t, as had been claimed, the insensitive decision to place handrails on one side but not the other: typically these larger stairwells have handrails on both sides. Instead the broader culprit for those who wish to steady themselves with their left hand is the walk-on-the-right convention. Had the advocate of an antidiscrimination law acknowledged that point, however, much of the steam would have gone out of her argument, since few in her audience would have been inclined to view the walk-on-the-right convention as fixable “discrimination”. Nor is there anything in the original coverage to indicate that her gripe was at the absence of center rails, which have inconveniences of their own.
June 29 – Failure to warn about bad neighborhoods. “A Florida jury has awarded $5.2 million to the family of a slain tourist after finding that Alamo Rent-A-Car failed to warn the victim and her husband about a high-crime area near Miami.” Dutch tourists Gerrit and Tosca Dieperink, according to the National Law Journal, “rented an Alamo car in Tampa and planned to drop it off in Miami”. When they stopped in the Liberty City area of Miami to ask directions, they were targeted by robbers who recognized the car as rented, and Mrs. Dieperink was shot and killed. Lawyers for her survivors sued Alamo, saying it was negligent for the company not to have warned customers — even customers renting in Tampa, across the state — of the perilousness of the Liberty City neighborhood, where there’d been numerous previous attacks on rental car patrons. After circuit judge Phil Bloom instructed the jury that Alamo had a duty to warn its customers of foreseeable criminal conduct, jurors took only an hour of deliberations to find the company liable, following a seven-day trial. (Bill Rankin, “Alamo’s Costly Failure to Warn”, National Law Journal, May 22; Susan R. Miller, “Trail of Tears”, Miami Daily Business Review, May 8.)
Which of course raises the question: how many different kinds of legal trouble would Alamo have gotten into if it had warned its customers to stay out of certain neighborhoods? Numerous businesses have come under legal fire for discriminating against certain parts of town in dispatching service or delivery crews (“pizza redlining”); one of the more recent suits was filed by a civil rights group against online home-delivery service Kozmo.com, which offers to bring round its video, CD and food items in only some neighborhoods in Washington, D.C., mostly in affluent Northwest. (Elliot Zaret & Brock N. Meeks, “Kozmo’s digital dividing lines”, MSNBC/ZDNet, April 12; Martha M. Hamilton, “Web Retailer Kozmo Accused of Redlining”, Washington Post, April 14).
June 29 – “Angela’s Ashes” suit. Frank McCourt (Angela’s Ashes, ‘Tis) and his brother Malachy (A Monk Swimming) have had a runaway success with their memoirs of growing up poor in Ireland and emigrating to America (4 million copies have sold of Angela’s alone). Now they’re being sued by Mike Houlihan, “who in the early 1980s raised $20,750 to stage and produce a McCourt brothers play called ‘A Couple of Blaguards,’” also based on their early life. The play had only modest success, though it has begun to be revived frequently with the success of the memoir books. Mr. Houlihan says he and several others are entitled to 40 percent of the profits from Angela’s Ashes and the other memoirs because they are a “subsidiary work” of the play. “That would be a nice piece of money, wouldn’t it?” says Frank McCourt, who says his old associate “has hopped on America’s favorite form of transportation — the bandwagon”. (Joseph T. Hallinan, “Backers of McCourt’s Old Play Say They Are Due Royalties”, Wall Street Journal, June 6 (fee)).
June 29 – “Trying a Case To the Two Minute Mind”. California attorney Mark Pulliam passes this one on: a recent brochure from the San Diego Trial Lawyers Association offered a sale on educational videos for practicing litigators, of which one, by Craig McClellan, Esq., was entitled “Trying a Case To the Two Minute Mind; aka Trial by Sound Bite” (worth one hour in continuing legal education credits). According to the brochure, “The presentation shows how to streamline each element of a trial based on the fact that most jurors are used to getting a complete story within a two minute maximum segment on the evening news. This video demonstrates the effectiveness of visual aids, impact words and even colors, to influence the juror’s perception and thought process in the least amount of time.”
June 28 – Oracle did it. Today’s Wall Street Journal reports that the big software maker and Microsoft rival has acknowledged it was the client that hired detective firm Investigative Group International Inc. for an elaborate yearlong operation to gather dirt on policy groups allied with Microsoft; the detective firm then offered to pay maintenance workers for at least one of the groups’ trash (see June 26). “The IGI investigator who led the company’s Microsoft project, Robert M. Walters, 61 years old, resigned Friday after he was named in stories about the case.” Oracle claims to have no knowledge of or involvement with illegalities — buying trash isn’t in itself necessarily unlawful — and IGI also says it obeys the law. (Glenn R. Simpson and Ted Bridis, “Oracle Admits It Hired Agency To Investigate Allies of Microsoft”, June 28 (fee))
June 28 – Born to regulate. Opponents say the Occupational Safety and Health Administration’s “ergonomics” proposals would tie America’s employers in knots in the name of protecting workers from carpal tunnel syndrome and other repetitive motion injuries (see March 17), and resistance from the business community is stiff enough that the regs ran into a roadblock in the Senate last week. However, Ramesh Ponnuru at National Review Online reports that “Marthe Kent, OSHA’s director of safety standards program and head of the ergonomics effort, couldn’t be happier at her job. ‘I like having a very direct and very powerful impact on worker safety and health,’ she recently told The Synergist, a newsletter of the American Industrial Hygiene Association. ‘If you put out a reg, it matters. I think that’s really where the thrill comes from. And it is a thrill; it’s a high.’ Later in the article, she adds, ‘I love it; I absolutely love it. I was born to regulate. I don’t know why, but that’s very true. So as long as I’m regulating, I’m happy.’” (Ramesh Ponnuru, “The Ergonomics of Joy” (second item), National Review Online Washington Bulletin, June 26). See also “Senate Blocks Ergonomic Safety Standards”, Reuters/Excite, June 22; Murray Weidenbaum, “Workplace stress is declining. Does OSHA notice?”, Christian Science Monitor, June 15.
June 28 – Giuliani’s blatant forum-shopping. Time was when lawyers showed a guilty conscience about the practice of “shopping” for favorable judges, and were quick to deny that they’d attempted any such thing, lest people think their client’s case so weak that other judges might have thrown it out of court. Now they openly boast about it, as in the case of New York City’s recently announced plans to sue gun makers. The new legal action, reports Paul Barrett of the news-side Wall Street Journal, could “prove especially threatening to the industry because Mr. Hess (Michael Hess, NYC Corporation Counsel) said the city would file it in federal court in Brooklyn. The goal in doing so would be to steer the suit to the courtroom of U.S. District Judge Jack Weinstein, who is known for allowing creative liability theories. … Mr. Hess said that New York will ask Judge Weinstein to preside over its suit because it is ‘related’ to the earlier gun-liability case [Hamilton v. Accu-Tek, now on appeal.]” (See also Nov. 1). (“New York City Intends to File Lawsuit Against Approximately 25 Gun Makers”, June 20 (fee)).
June 28 – From our mail sack: transactional-lawyer whimsy. New York attorney John Brewer writes: “This may just be a bit of transactional lawyer inside humor, or it may be evidence that the agnostic and individualistic themes in our culture have finally penetrated lawyers’ contract boilerplate (which for a variety of reasons tends to be an extraordinarily conservative-to-anachronistic form of stylized discourse). According to the April 2000 issue of Corporate Control Alert [not online to our knowledge], a provision in the documentation for the 1998 acquisition of International Management Services Inc. by Celestica Inc. contained a definition which read in part as follows:
“Material Adverse Change” or “Material Adverse Effect” means, when used in connection with the Company or Parent, as the case may be, any change or effect, as the case may be, caused by an act of God (or other supernatural body mutually acceptable to the parties) …
“In a sign that some of the old certitude remains, however,” John adds, “the accompanying article referred colloquially to the clause containing this language as a “hell-or-high-water” provision without any suggestion of mutually acceptable alternative places of everlasting torment.”
June 27– Welcome New Republic readers. Senior writer Jodie Allen of U.S. News & World Report tells us we’re her favorite website, which we consider proof we’re on the right track. Writing the New Republic’s “TRB from Washington” column this week, her theme is our legal system’s willingness to entertain all sorts of remarkable new rights-assertions that might have left Thomas Jefferson scratching his head, and she says readers who want more “can monitor such cases at Overlawyered.com.” We’ll help with the following thumbnail link-guide to cases mentioned in the column: drunken airline passenger, child left in hot van, right to non-sticky candy, bank robber and tear gas device, beer drinker’s restroom suit & Disneyland characters glimpsed out of uniform, haunted house too scary, high-voltage tower climber (& second case), killer whale skinny dip, obligation to host rattlesnakes, parrot-dunking, Ohio boys’ baseball team, school administrator’s felony, stripper’s rights, and murderer’s suit against her psychiatrists. (“Rights and Wrongs”, July 3). (DURABLE LINK)
June 27 – Reprimand “very serious” for teacher. Norwalk, Ct.: “After an in-house investigation that lasted more than a month, Carleton Bauer, the Ponus Ridge Middle School teacher who gave an 11-year-old girl money to purchase marijuana, has been reprimanded with a letter in his file.” The girl’s father, who was not notified of the disciplinary action taken against the teacher but was contacted by the press, felt the teacher’s union had been allowed to negotiate too lenient a treatment for Bauer, a 31-year teaching veteran, but Interim Superintendent of Schools William Papallo called the penalty “fair and equitable”, saying, “For someone who has worked so long, a reprimand is very serious”. (Ashley Varese, “Ponus teacher ‘lacked judgment’”, Norwalk Hour, June 16, not online).
June 27 – Peter McWilliams, R.I.P. Although (see above item) there are times when our authorities can be lenient toward marijuana-related infractions, it’s more usual for them to maintain a posture of extreme severity, as in the case of well-known author, AIDS and cancer patient, and medical marijuana activist Peter McWilliams, whose nightmarish ordeal by prosecution ended last week with his death at age 50. (William F. Buckley Jr., Sacramento Bee, June 21; Jacob Sullum, Reason Online/Creators Syndicate, June 21; John Stossel/ABC News 20/20, “Hearing All the Facts”, June 9; J.D. Tuccille, Free-Market.Net Spotlight; Media Awareness Project).
June 27 – AOL “pop-up” class action. In Florida, Miami-Dade County Judge Fredricka Smith has granted class action status to a suit against America Online, purportedly on behalf of all hourly subscribers who viewed the service’s “pop-up” ads on paid time. Miami attorney Andrew Tramont argues that it’s wrong for subscribers to be hit with the ads since they’re paying by the minute for access to the service (at least if they’re past their allotment of free monthly time), and “time adds up” as they look at them — this, even though most users soon learn it takes only a second to click off an ad (“No thanks”) and even though the system has for some time let users set preferences to reduce or eliminate pop-ups. The case seeks millions in refunds for the time customers have spent perusing the ads. According to attorney Tramont, “the practice amounts to charging twice for the same product. ‘AOL gets money from advertisers, then money from subscribers, so they’re making double on the same time,’ he said.” Please don’t anyone call to his attention the phenomenon of “magazines”, or we’ll never get him out of court. (“Florida judge approves class-action lawsuit against America Online”, CNN, June 25).
June 26 – Cash for trash, and worse? We’re glad we didn’t play a prominent role in defending Microsoft in its antitrust dispute, since we’d have found it very intrusive and inconvenient to have our garbage rifled by private investigators and our laptops stolen, as has happened lately to a number of organizations that have allied themselves with the software giant in the controversy (Declan McCullagh, “MS Espionage: Cash for Trash”, Wired News, June 15; Ted Bridis, “Microsoft-Tied Groups Report Weird Incidents”, Wall Street Journal, June 19 (fee); Glenn Simpson, “IGI Comes Under Scrutiny in Attempt To Purchase Lobbying Group’s Trash”, Wall Street Journal, June 19) (fee); Ted Bridis and Glenn Simpson, “Detective Agency Obtained Documents On Microsoft at Two Additional Groups”, Wall Street Journal, June 23 (fee)). Material surreptitiously obtained from the National Taxpayers Union, Citizens for a Sound Economy, and Independent Institute soon surfaced in unflattering journalistic reportage on these groups in the New York Times, Washington Post and Wall Street Journal, and two attempts were also made to get night cleaning crews to sell the trash of the pro-Microsoft Association for Competitive Technology. They’re calling it “Gatesgate”.
In other news, the New York Observer checks into what would happen if the giant company tried to flee to Canada to avoid the Justice Department’s clutches (answer: probably wouldn’t make any difference, they’d get nailed anyway) (Jonathan Goldberg, “The Vancouver Solution”, June 12). And over at the Brookings Institution, it’s a virtual civil war with fellow Robert Crandall arguing against a breakup and fellow Robert Litan in favor (Robert Crandall, “If It Ain’t Broke, Don’t Break It Up”, Wall Street Journal, June 14; Robert Litan, “The rewards of ending a monopoly”, Financial Times, Nov. 24; Robert Litan, “What light through yonder Windows breaks?”, The Globe and Mail (Toronto), June 11, all reprinted at Brookings site).
June 26 – “Was Justice Denied?”. Dale Helmig was convicted of the murder of his mother Norma in Linn, Mo. This TNT special June 20 impressed the Wall Street Journal‘s Dorothy Rabinowitz as making a powerful case for the unfairness of his conviction (“TV: Crime and Punishment”, June 19 (fee); TNT press release April 13). At the TNT site, links will lead you to more resources on errors of the criminal-justice system both real and alleged, including “Convicted by Juries, Exonerated by Science” (DNA exonerations); “The Innocent Imprisoned“; Justice: Denied, The Magazine for the Wrongly Convicted; CrimeLynx (criminal defense attorneys’ resource); and Jeralyn Merritt, “Could This Happen To Your Spouse or Child?” (Lawyers.com).
June 26 – Updates. Catching up on further developments in several stories previously covered in this space:
* In the continuing saga of leftist filmmaker Michael Moore (see Sept. 16), who made his name stalking the head of General Motors with a camera at social and business events (“Roger and Me”) and then called the cops when one of his own fired employees had the idea of doing the same thing to him, John Tierney of the New York Times has added many new details to what we knew before (“When Tables Turn, Knives Come Out”, June 17) (reg).
* Trial lawyers are perfectly livid about that New England Journal of Medicine study (see April 24) finding that car crash claimants experience less pain and disability under a no-fault system that resolves their claims relatively quickly. Now they’re throwing everything they can find at the study, lining up disgruntled former employees to question the researchers’ motives, saying the whole thing was tainted by its sponsorship by the Government of Saskatchewan (which runs a provincial auto insurance scheme), and so forth. (Association of Trial Lawyers of America page; Bob Van Voris, “No Gain, No Pain? Study Is Hot Topic”, National Law Journal, May 22).
* A Texas judge has entered a final judgment, setting the stage for appeal, against the lawyers he found had engaged in “knowingly and intentionally fraudulent” conduct in a product liability case against DaimlerChrysler where both physical evidence and witness testimony had been tampered with (see May 23). “Disbarment is a possible consequence, as are criminal charges, but none has yet been filed.” (Adolfo Pesquera, “Judge orders lawyers to pay $865,489″, San Antonio Express-News, Jun. 23). Update: see Mar. 17, 2003.
* It figures: no sooner had we praised the U.S. House of Representatives for cutting off funds for the federal tobacco suit (see Jun. 21) than it reversed itself and voted 215-183 to restore the funds (Alan Fram, “House OKs Funds for Tobacco Lawsuit”, AP/Yahoo, Jun. 23).
June 22-25 – Antitrust triumph. With great fanfare, the Federal Trade Commission announced this spring that it had broken up anticompetitive practices in the recording industry that were costing CD buyers from $2 to $5 a disc, saving consumers at least hundreds of millions of dollars. “So, how far have CD retail prices fallen since? Not a penny … Now, retail and music executives are accusing FTC Chairman Robert Pitofsky of misleading consumers and feeding the media ‘artificially inflated’ pricing statistics, possibly to camouflage the lusterless findings of the FTC’s costly two-year investigation of CD advertising policies.” A commission spokesman says it can’t release the basis of its pricing study because it’s based on proprietary information. (Chuck Philips, “FTC Assailed on Failed CD Price Pledge”, Los Angeles Times, June 2).
June 22-25 – More trouble for “Brockovich” lawyers. Latest trouble for real-life L.A. law firm headed by Ed Masry, dramatized in the Julia Roberts hit film “Erin Brockovich“: a wrongful termination suit filed by former employee Kissandra Cohen, who at 21 years of age is the state’s youngest practicing lawyer. Cohen alleges that when she worked for Masry he “made repeated sexual advances, and when she did not respond, he fired her. Cohen, who is Jewish, also claims that Masry and other attorneys in his office made inappropriate comments about her Star of David necklace and attire” and kept copies of Playboy in the office lobby. Also recently, Brockovich’s ex-husband, ex-boyfriend and their attorney were arrested in a scheme in which they allegedly threatened that unless Masry and Brockovich saw that they were paid off they’d go to the press with scandalous allegations about the two (the sort of thing called “extortion” when it doesn’t take place in the context of a lawsuit). (“Sex Scandal for Brockovich Lawyer”, Mr. Showbiz, April 28).
June 22-25 – Compare and contrast: puppy’s life and human’s. Thanks to reader Daniel Lo for calling to our attention this pair of headlines, both on articles by Jaxon Van Derbeken in the San Francisco Chronicle: “S.F. Dog Killer Avoids Three-Strikes Sentence”, June 2 (Joey Trimm faced possible 25 years to life under “three strikes” law for fatal beating of puppy, but prosecutors relented and he was sentenced to only five years); “Man Gets Five Years In Killing of Gay in S.F.”, April 25 (“high-profile” homicide charges against Edgard Mora, whom prosecutors had “long labeled a hate-filled murderer”, resolved with five-year sentence for involuntary manslaughter.)
June 21 – And don’t say “I’m sorry”. “Be careful,” said the night nurse. “They’re suing the hospital.” First-person account of how it changes the atmosphere on the floor when the family of a patient still under care decides to go the litigation route. Highly recommended (Lisa Ochs, “In the shadow of a glass mountain”, Salon, June 19).
June 21 – Good news out of Washington…. The House voted Monday to curb the use of funds by agencies other than Justice to pursue the federal tobacco lawsuit. The Clinton Administration claims the result would be to kill the suit (let’s hope so), but it and other litigation advocates will be working to restore the money at later stages of the appropriations process, and the good guys won by a margin of only 207-197 (June 19: Reuters; Richmond Times-Dispatch/AP; Washington Post) (It soon reversed itself and restored the funds: see June 26).
June 21 – …bad news out of New York. Mayor Rudolph Giuliani has joined the ranks of gun control advocates willing to employ the brute force of litigation as an end run around democracy. “[F]ollowing the lead of many of the nation’s other large cities, [Giuliani] announced yesterday that his administration would file its own lawsuit against handgun manufacturers, seeking tens of millions of dollars to compensate New York City for injuries and other damage caused by illegal gun use.” Maybe he wouldn’t have made such a good Senator after all (Eric Lipton, “Giuliani Joins the War on Handgun Manufacturers”, New York Times, June 20).
June 21 – Stress of listening to clients’ problems. Dateline Sydney, Australia: “A court awarded [U.S.] $15,600 in damages to a masseuse who suffered depression after listening to clients talk about their problems. Carol Vanderpoel, 52, sued the Blue Mountains Women’s Health Center, at Katoomba, west of Sydney, claiming she was forced to deal with emotionally disturbed clients without training as a counselor or debriefing to cope with resultant stress.” (“Singing the Blues: Masseuse wins damages for listening to problems”, AP/Fox News, June 20; Anthony Peterson, “$26,000 the price of earbashing”, Adelaide Advertiser, June 20).
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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. ![](http://wac.0873.edgecastcdn.net/800873/overlawyered/wp-includes/images/smilies/icon_cool.gif" alt=){kind=icon}
(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 
tattoo. 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).
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November 15 – Class-action coupon-clippers. Hard-hitting page-one Washington Post dissection of class-action abuse, specifically the “coupon settlements” by which lawyers claim large but notional face-value benefits for the represented class, which can serve as a predicate for high fees even if few consumers ever take advantage of the benefits. “The record in one case, against ITT Financial Corp., showed that consumers redeemed only two of 96,754 coupons issued, a redemption rate of 0.002 percent.” Settlement-confidentiality rules often make it impossible to learn how many coupons were redeemed. Groups like Public Citizen and Trial Lawyers for Public Justice, normally closely aligned with plaintiffs’-side interests, are crusading against the coupon abuses, fearing they’ll erode public support for the class action device and “sour the public” on the whole system.
The piece includes a profile of Chicago lawyer Daniel Edelman, who’s won millions in fees in about thirty consumer lawsuits, and is variously called by consumerist critics “the Darth Vader of class action settlements” and “the poster child for how to rip off consumers under the guise of helping them”: “I can think of no plague worse than to have a court impose the likes of Daniel Edelman…on absent and unsuspecting members of a class,” said one judge in a lawsuit against Citibank. Edelman was among the plaintiff’s lawyers in the famed BancBoston Mortgage case, whose outcome was described by federal judge Milton Shadur (who was not involved in it) as “appalling” and “astonishing”: “The principal real-money beneficiaries of the settlement,” Judge Shadur wrote, “turned out to be the class counsel themselves.” The consumer who originally objected to that settlement, Dexter Kamilewicz of Maine, “chose not to comment for this article, noting that Edelman’s firm had countersued him for $25 million. That case is settled, but he said he feared landing in court yet again.” (For more on lawsuits filed by class action lawyers against their critics, see Nov. 4 commentary). (Joe Stephens, “Coupons Create Cash for Lawyers”, Washington Post, Nov. 14, link now dead)
November 15 – Link your way to liability? Daniel Curzon-Brown, a professor of English, has sued TeacherReview.com, a student-run “course critique” site that provides a forum for anonymous praise and criticism of faculty at City College of San Francisco (CCSF) and San Francisco State University. “Free speech is great, but this is not about free speech,” said Brown’s lawyer, Geoffrey Kors, saying his client had been falsely labeled racist and mentally ill, among other damaging charges. (“Other teachers were called ‘womanizers,’ ‘reportedly homicidal’ and ‘drugged out.’”) In one of the suit’s more ambitious angles, the lawyers have joined CCSF as a defendant on the grounds that it “allow[ed] one of its student clubs to provide a link to the review site on a college-hosted Web page” which “helped to create the appearance of official backing for the site”. (“Teacher sues over ‘racist’ Web review”, Reuters/ZDNet, Oct. 21 — full story). Update Oct. 10, 2000: Curzon-Brown agrees to drop suit.
November 15 – Are they kidding, or not-kidding? We’ve read over both these opinion pieces carefully, and here are our tentative conclusions. We think Nancy Giuriati, writing in the Chicago Tribune‘s “Voice of the People”, probably is kidding when she suggests overeating be addressed as a public health problem through lawsuits against food companies along the lines of the anti-smoking crusade. (“Treat Eaters Like Smokers”, Nov. 9). On the other hand, we think Ted Allen, writing in the Legal Times of Washington, probably isn’t kidding when he suggests fans file class-action suits against hard-luck sports teams like the Boston Red Sox and New Orleans Saints. (“Sue da Bums?”, Nov. 1). It could be, however, that we’ve got things upside down — that Mr. Allen is kidding, while Ms. Giuriati isn’t. If you think you can help us out, or wish to call our attention to other who-knows-whether-they’re-joking proposals for the further extension of litigation (entries from law reviews especially welcome!), send your emails to AreTheyKidding -at -overlawyered – dot – com. Update Apr. 11, 2002: Ms. Giuriati writes in to say she wasn’t kidding.
November 15 – Gimme an “S”, “U”, “E”. Latest lawsuit over not making the high school cheerleading squad filed by Merissa D. Brindisi and her father, Richard, who claim it was arbitrary and unfair for Solon, Ohio, school officials to have used teacher evaluations as one factor in deciding who got on the squad. Another suit by an unsuccessful cheerleader contender was filed last month in nearby Lorain County, but was dismissed. (Mark Gillispie, “Solon ex-cheerleader, father file suit”, Cleveland Plain Dealer, Nov. 10 — full story.)
November 13-14 – Fins circle in water. Hoping to piggyback on Judge Jackson’s Microsoft findings of fact and attracted by the treble damages provided by antitrust law, “veterans from the cigarette wars are plotting to sue the company in a wave of private litigation. If the onslaught unfolds as expected, teams of lawyers will turn Microsoft into the next Philip Morris, tangling the company in courts across the country.” David Segal, “New Legal Guns Train on Microsoft”, Washington Post, Nov. 12 — link now dead). Same day, same paper, same byline: another profile of emerging trial lawyer strategy of mounting assault on their targets’ stock price in order to force them to the negotiating table (see “Deal with us or we’ll tank your stock“, Oct. 21). The announcement of a major trial lawyer offensive against HMOs destroyed $12 billion of value in a single day as the market reacted. “Most of the companies have yet to recover.” (David Segal, “Lawyers pool resources, leverage settlements”, Washington Post, Nov. 12, link now dead).
On Friday the stock of big New Orleans-based engineering and construction company, McDermott International Inc., important in the offshore oil business, fell by 35.5 percent following a 26.7 percent drop the previous day to hit a 10-year low. The company disclosed lower earnings and “said in its earnings statement that the settlement of asbestos claims was using up a growing amount of the cash flow of its Babcock & Wilcox (B&W) subsidiary”, one of the nation’s best known makers of power plants. “This unquantifiable asbestos liability puts a whole new spin on things. [McDermott] becomes an asbestos liability valuation play rather than an earnings recovery play,” said analyst Arvind Sanger of brokerage firm Donaldson Lufkin & Jenrette, who added that he thought the market had overreacted to the uncertainty. (“Asbestos Claim Worries Hurt McDermott”, FindLaw/Reuters, Nov. 12, link now dead)
November 13-14 – Update: ADA youth soccer case. Bang! Ouch! As reported here a week ago, parents insisted that 9-year-old Ryan Taylor, who suffers from cerebral palsy, be allowed onto soccer team despite administrators’ fears of injuries from his metal walker. Now they’ve filed suit under federal Americans with Disabilities Act (see “After Casey Martin, the deluge“, Nov. 5-7). (“Parents Sue Over Son’s Soccer Ban”, AP/FindLaw, Nov. 12, link now dead).
November 13-14 – Risks of harm. “One woman manager whom I spoke to, an architect who has worked in construction for a number of years, put it this way: ‘When a woman comes to me with a complaint, I want first of all to make sure that no harm comes to the woman. But I want to make sure that no harm comes to the man, too. Because if a charge of sexual harassment goes into his folder, he may never get another promotion in his entire life.’ [emphasis in original] — from the forthcoming book What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment, by Joan Kennedy Taylor (see yesterday’s entry).
November 12 – Turning the tables. Automaker DaimlerChrysler has sued plaintiff’s attorneys and a individual named client who it says cost it millions of dollars and harmed its reputation by naming it in what is says was a meritless suit. In June, the locally based law firm of Greitzer & Locks and Maryland attorney William Askinazi filed a class-action suit in Philadelphia against DaimlerChrysler, Ford, General Motors and GM’s subsidiary Saturn alleging that the companies’ seat design was defective and unsafe. Similar suits were filed in other states, and lawyers were quoted in one story as claiming the aggregate value of their claims could amount to $5 billion. But DaimlerChrysler and Ford say they were dropped from the Philadelphia case after the named plaintiff, Brian Lipscomb, was shown never to have owned cars manufactured by either automaker.
The German-U.S. company has been on something of a mission recently to fight what it sees as abusive litigation. It recently secured dismissal of an Illinois class action over allegedly excessive engine noise and in 1996 unsuccessfully sought fees after securing dismissal of a Seattle class action that turned out to have been filed without client permission. It succeeded last year in winning an $850,000 judgment against two lawyers in St. Louis who it alleged had taken confidential documents while working for one of its outside law firms and then used that information to file class-action suits against the automaker. “Class-action lawsuits should be used to resolve legitimate claims and not serve as a rigged lottery for trial lawyers,” said Lew Goldfarb, DaimlerChrysler vice president and associate general counsel, in a statement this week. “For too long, trial lawyers have been exploiting class actions, turning these lawsuits into a form of legalized blackmail. They launch frivolous cases because they believe that just the threat of massive class actions filed in many states can coerce a company into settlement. It’s time they started paying for some of the costs of abusing our legal system.” “DaimlerChrysler sues lawyers over lawsuit”, Reuters/Findlaw, Nov. 10, link now dead; “Automakers sued for allegedly defective seats”, Detroit News, Jun. 26)
November 12 – Suppression of conversation vs. improvement of conversation. “Another difficulty in dealing with sexual harassment as a legal problem is that almost all people accused of harassment, from the one whose joke is misunderstood to the hard-core opportunistic harasser…don’t believe they are hurting anyone. [emphasis in original] And we know from our experiences with alcohol and drug prohibition that people whose behavior is regulated and who don’t believe they are hurting anyone else overwhelmingly evade and resent the regulations….If you tell people that the way in which they relate to each other naturally is against the law, their immediate reaction is to think the law intrusive. If, by contrast, you tell people that they may have misunderstood each other but that they can learn to communicate more clearly, you are offering them a new skill without blaming half of them in advance.” — from What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment, by Joan Kennedy Taylor, a book to be published this month by New York University Press and the Cato Institute.
November 11 – We didn’t mean those preferences! At Boalt Hall, the law school of U.C. Berkeley, it’s de rigueur to consider race, gender and various other official preferences as entirely constitutional as a way of balancing out past collective hardship. However, there’s one form of official preference you’d better not speak well of lest you risk ostracism: veterans’ preference. “If you, despite your well-intentioned, fine-toothed combing of the Constitution, just can’t find a legal rule that says that veterans’ preferences are impermissible gender discrimination, then that is sexism. If you think that these veterans’ preferences are acceptable as a matter of policy — for the liberals who are willing to concede that there is a difference between constitutional permissibility and policy advisability — then that is extreme sexism.” — contributor Heather McCormick in The Diversity Hoax: Law Students Report from Berkeley, edited by David Wienir and Marc Berley (Foundation for Academic Standards and Tradition, 1999).
November 11 – Microsoft roundup. Peter Huber of the Manhattan Institute, author of Law and Disorder in Cyberspace, argues in yesterday’s Wall Street Journal that a breakup of the company would in fact be less destructive of value than seemingly more modest remedies that might require the company to prenegotiate its future business relationships or even its software revisions with competitors’ lawyers: “Complex remedial decrees invariably kick off endless rounds of follow-up bickering. Costs mount quickly. Private lawsuits follow. And antitrust law awards triple damages.” (“Breaking Up Isn’t hard to Do”, Wall Street Journal, Nov. 10 — requires online subscription). “Two branches of the federal government, which is a case study in institutional sclerosis, are lecturing Microsoft on the virtues and modalities of innovation,” notes George Will (“Risks of Restraining”, Washington Post, Nov. 9, link now dead). “The dynamism of technology long ago rendered the entire case moot,” argues a Detroit News editorial. “…It is doubtful, for example, that America Online would have paid $10 billion for Netscape if Microsoft’s Bill Gates had indeed rendered the Navigator [browser] worthless.” (“Microsoft: Punishing Success”, Nov. 9). Declan McCullagh at Wired News finds it surprising that the judge was so dismissive of the prospects of Linux, the open-source competitor to Windows (“Judge Jackson: Linux Won’t Last”, Nov. 8).
November 11 – Accommodating theft. In New Jersey, the Office of Attorney Ethics is seeking the disbarment of Tenafly lawyer Charles Meaden, who was arrested in 1996 for trying to buy $5,600 worth of golf clubs with a stolen credit card number. Mr. Meaden’s attorney, Linda Wong, argues that her client suffered from bipolar illness and was in a manic state at the time of the theft due to a change in his medication. “The panel has to send a signal to the public that disabilities can be accommodated.” The ethics body counters that Mr. Meaden’s use of the stolen number showed considerable planning, and added that he’d applied for guns four times in the two years before the arrest, each time denying that he’d been treated for psychiatric conditions. His lawyer’s response? Mr. Meaden, she said, was relying on his doctor’s assurance that depression was “not a psychiatric condition”, besides which “it was understandable that Meaden did not disclose his psychiatric history because the mentally ill face discrimination.” (Wendy Davis, “The Case of the Stolen Credit Card: Mental Illness or Well-Planned Heist?”, New Jersey Law Journal, Oct. 21 — full story)
November 10 – $625,000 an hour asked for time on stopped elevator. Nicholas White, 34, a production manager at Business Week, has filed suit asking $25 million from the owners of Rockefeller Center over an incident last month in which he got stuck on an elevator late one Friday and remained there, pushing buttons and banging on the door, for 40 hours before any building employees noticed. He had only a pack of Life Savers and three cigarettes to see him through the ordeal. “When he had to go to the bathroom, he would pry open the doors a little,” a friend of his told the New York Post. White’s lawyer, Kenneth P. Nolan, said last week that his client was “still in a state of shock” and “has not gone back to work”. (“Floor, please”, Fox News/Reuters, Oct. 21 (link now dead); “Man Trapped in Elevator Wants $25M”, AP/Washington Post, Nov. 3, link now dead; “Man, trapped in New York elevator 40 hours, sues”, Reuters/San Jose Mercury News, Nov. 4, (link now dead; Philip Delves Broughton, “Editor sues for $25-million after 40-hour elevator terror”, National Post (Canada) (originally Daily Telegraph, London), Nov. 6, link now dead)
November 10 – Annals of zero tolerance: more nail clippers cases. The Marshall Elementary School in Granite City, Ill. has suspended second-grader Derek Moss for three days after a custodian found him with a nail clipper. Earlier this fall in Cahokia, Ill., 7-year-old second-grader Lamont Agnew drew a 10-day suspension for possession of the same contraband. (Robert Kelly, “Another nail clippers incident reported”, St. Louis Post-Dispatch, Nov. 2 (link now dead)) Earlier this year Pensacola, Fla. administrators recommended the expulsion of 15-year-old sophomore Tawana Dawson for possession of a clipper with a two-inch attached blade; she’d lent it to a classmate to trim her nails. (“School calls nail clipper a weapon”, AP/APB News, June 7). In recent California cases, a 12-year-old Corona boy was expelled over a nail clipper, a decision later reversed; a Mission Viejo 10-year-old was suspended over a three-inch cap-gun toy on her key chain, and a Buena Park 5-year-old was transferred to another school after he brought into school a disposable shaver he’d found at a bus stop. (Oblivion.net)
November 10 – Welcome Progressive Review and Cal-NRA visitors. Haunted-house story is here; gun lawsuits vs. national security story, here.
November 10 – “The Dutch Boy isn’t Joe Camel.” The companies recently sued by Rhode Island “voluntarily stopped marketing lead-based paint for interior use in the 1950s — a generation before the federal government decided to ban interior lead paint in 1978,” writes Judy Pendell of the Manhattan Institute’s Center for Legal Policy (with which our editor is affiliated). You’d think withdrawing your product before you were obliged to would count as socially responsible, but no good deed escapes punishment. Nor, it seems, does any incorporated bystander with deep pockets: “Many of the defendants acquired their companies long after they had stopped making lead paint…If you can sue an industry that essentially shut itself down almost a half century ago, who’s next?” (“Trial lawyers’ next target: the paint industry”, Wall Street Journal, Oct. 18 — now online at the Manhattan Institute site, which boasts a growing collection of online reports on legal issues (link now dead)).
November 10 – Correction: the difference one letter makes. On Sept. 2 we ran an item about the role of charitable and social-service groups in efforts to take down the gun industry, and included the YMCA on the list of such groups. That was off base: it’s the YWCA that’s a participant in the Coalition to Stop Gun Violence, not its male counterpart. The mistake is one the anti-gun coalition itself unleashed on the world when it erroneously listed the YMCA on its list of supporting organizations. The Capital Research Center took the claim at face value in its report on anti-gun philanthropy, whence it made its way to our summary. Patrick Reilly of the Capital Research Center tells us he’s spoken with the coalition, which acknowledges its mistake and says it’s replaced the “M” version with the correct “W”. In the mean time, the poor YMCA has gotten calls from outraged supporters of the Second Amendment. Send those outraged calls to the YWCA instead.
November 9 – Gun jihad menaces national security. Colt Manufacturing is an important current, as well as historic, defense resource to this country: “We are one of the two suppliers of the M16 rifle and the sole supplier of the M4 carbine to the United States military, as well as many of our allies.” Yet the courtroom assault masterminded by American trial lawyers and carried out by their friends at city hall is quickly running the enterprise into the ground: legal defense costs are “astronomical”, financing and insurance are drying up, and managers have scant time to do anything but respond to legal demands.
“In connection with these lawsuits, Colt has been served with extraordinarily expansive and burdensome discovery requests seeking virtually every document in Colt’s possession related to the design, manufacture and marketing of firearms — military and otherwise. In our defense, waves of lawyers have descended on Colt and other legitimate gun manufacturers, scouring every corner and aspect of our business in an effort to respond to these unreasonable requests.”
If the municipal firearms litigation “forces us out of business, it also will leave the military without an experienced base to turn to during a time of crisis. In the opinion of the Department of Defense, it would take two to five years and significant government investment to return any of today’s weapon systems to their current level of operational reliability should we lose this present capability.”
“We are uneasy and troubled by the fact that we and other companies in the future may be driven out of business by a wave of lawsuits, even if the courts eventually find out that the plaintiff’s cases have no merit.” — Lt. Gen. William M. Keys U.S.M.C. (ret.), chief executive officer of the New Colt’s Holding Company, in testimony before the Senate Judiciary Committee Nov. 2. (full testimony) (overall hearings page).
November 9 – Hold your e-tongue. Though employees may still fondly imagine their screen banter to be somehow entitled to privacy, “e-mails not only are subject to discovery, but also can kill you in a courtroom,” explain two lawyers with Miami’s Becker & Poliakoff. The problem for companies that get sued is that “people who are normally careful of what they say in writing seem to feel that e-mail doesn’t count, and…say things in e-mails they would never say in person or by telephone.” All of which leads up to the following rather startling advice: “Businesses should have an e-mail policy. Consider such rules as ‘No e-mail may contain derogatory information about individuals or the competition.’” (Mark Grossman and Luis Konski, “Digital Discovery: Decoding Your Adversary”, Legal Times (Wash., D.C.), Oct. 20 — full column).
November 9 – “Banks’ good deeds won’t go unpunished”. Good Steve Chapman column on ill-advised laws adopted in San Francisco and Santa Monica, and under consideration for U.S. military bases, that forbid banks from charging a fee for non-customers’ ATM withdrawals; currently banks put automatic machines “in all sorts of relatively low-traffic, out-of-the-way places”, a trend likely to halt abruptly if the business becomes a legislated money-loser. (Chicago Tribune, Nov. 7 — full column).
November 8 – Microsoft ruling: guest editorials. Venture capitalist Jay Freidrichs of Cypress Growth Fund: “My gut is, this is not positive for the industry. The less government involvement, the better.” Peter Ausnit of San Francisco brokerage Volpe Brown Whelan & Co. is alarmed that the ruling could “open up Microsoft to thousands of lawsuits from every belly-up software firm in the world….Are they going to be set upon like the cigarette industry?” George Zachary, a partner at Mohr Davidow Ventures: “a scary reminder that if you make it to the top, someone will try to pull you down.” Venture capitalist Tim Draper: “Silicon Valley should be furious with the way our government is treating successful companies…Any would-be entrepreneur is getting a message from Washington that says: ‘Become successful but not too successful, or we’ll ruin your life.’” (David Streitfeld, “Glee, Gloom in Silicon Valley”, Washington Post, Nov. 6 (link now dead); Duncan Martell, “Silicon Valley Cheers Microsoft Ruling”, Yahoo/Reuters, Nov. 6 (link now dead)). Plus: Virginia Postrel, “What Really Scares Microsoft”, New York Times, Nov. 8; George Priest, “Judge Jackson’s Findings of Fact: A Feeble Case”, Wall Street Journal, Nov. 8 (requires online subscription).
November 8 – Ohio tobacco-settlement booty. A private firm with close links to prominent Columbus lobbyists has been angling for the contract to handle Ohio’s anti-tobacco ad campaign, financed from its share of the state’s settlement loot. It just so happens the next CEO of this firm is State Rep. E.J. Thomas, a key player in the divvying up of the tobacco spoils as chair of the House Finance-Appropriations Committee. “Does Mr. Thomas really believe nobody would have questioned his neutrality while voting to award tobacco contracts when he has been holding hands with one of the parties playing to win the jackpot?” editorializes the Toledo Blade. (“The smoking cigarette”, Oct. 24 — link now dead).
November 8 – Who loves trust-and-estates lawyers? Well, auction houses, for one, since these attorneys control so much asset-disposition business. And so a lot of buttering-up goes on: “At one of the largest annual gatherings of trust and estate lawyers in the U.S., held each year in Miami, Christie’s brings down hundreds of thousands of dollars in jewels so that the lawyers, or their spouses, can try them on. ‘I am not that easily swayed,’ says Carol Harrington, an estate lawyer from the Chicago law firm McDermott Will & Emery, who deals regularly with the auction houses. ‘But what woman doesn’t like having $40,000 in jewels around her neck?’” (Daniel Costello, “An Art Collection to Die For”, Wall Street Journal, Sept. 24).
November 8 – “Police storm raucous party to find members of anti-noise squad”. Moral of this report from southwest England: if you’re hoping to keep your job on the town noise-abatement committee, don’t hire three bands and throw a bash late into the night at city hall; after annoyed neighbors called in to report loud whoops and shrieks, police descended on the venue only to find the mayor and local dignitaries in attendance. (AP/CNN, Oct. 26, link now dead).
November 5-7 – “Scared out of business”. Boston Globe reports on decline of a Halloween tradition, the community haunted house, under pressure from building and safety codes (No emergency sprinklers! Combustible material! And children present, no less!) “In the future, the only option will be to drive to a big, slick venue and pay your $23.50 for a corporatized event that has nothing to do with community,” said Douglas Smith, an illustrator who used to help design the haunted house at Hyde Community Center in Newton Highlands, which has lately been discontinued along with two other haunted houses in Newton. “Only they have the resources. Only they can build to these codes.” “I’m very disappointed,” said 10-year-old David Olesky, who had been looking foward to the outing. “They can make rules, but they can’t drain all the fun out of everything. It’s unfair.” Now “the skull’s mouth, the body parts, and dozens of eyeballs remain packed in boxes” at the community center. “Within a few years, I imagine all amateur haunted houses will get shut down,” Smith told the Globe‘s Marcella Bombardieri. “Society is getting so concerned about liability that there’s no way to have fun.” (Oct. 29 — link now dead).
November 5-7 – Public by 2-1 margin disapproves of tobacco suits. New ABC News poll of 1,010 adults finds that by a 60-to-34 percent margin public doesn’t believe tobacco companies should have to pay damages for smoking-related illnesses. But not one of the fifty state attorneys general held back from filing such a suit — an indication these AGs are taking their policy cues from something other than their states’ electorates. As for trial lawyers, they know the luck of the draw will eventually assure them a certain number or juries and judges around the country willing to go along with the 34 percent view. That’s enough to cash in no matter what the majority may think. (ABC News.com, “Cigarette Makers Absolved: Six in 10 Reject Liability for Tobacco Companies”, Nov. 3).
November 5-7 – AOL sued for failure to accommodate blind users. Yes, AOL is big, but the legal theories being advanced under the Americans with Disabilities Act have the potential to redefine all sorts of websites, including publishing and opinion sites, as “public accommodations”. If you’re looking for a way to slow down the growth of the Web, try menacing page designers with liability unless they set aside their to-do list of other site improvements in favor of trooping off to seminars on how to fix nonaccommodative coding choices. (“Blind Group Sues AOL Over Internet Access”, Excite/Reuters, Nov. 5; case settled August 2000)..
November 5-7 – More details on Toshiba. Last Saturday’s L.A. Times, not in our hands before, adds a number of salient details to the story covered in this space November 3. Number of laptops involved: 5.5 million. The company agreed to settle “even though no consumer ever complained of losing data as a result of the glitch”. Company officials “said they had been unable to re-create the problem in the lab, except when trying to save something to a disk while simultaneously doing one or two other intensive tasks, such as playing a game or watching a video.” However, Toshiba was tipped toward settling when it heard that NEC Corp. considered the glitch a genuine one and learned moreover that there’d been an earlier advisory from NEC, thus opening up scenarios in which lawyers could argue that warnings had been callously ignored etc. The coupons will be much more valuable than the usual style of settlement coupons because owners “will be able to sell their coupons or use multiple coupons toward a single purchase.” But the public goodwill fund that will bulk out the rest of the $1 billion settlement if claims fall short may consist of donations of older hardware to charitable groups, a notoriously soft accounting category (Joseph Menn, “Toshiba OKs Settlement of $1 Billion Over Laptops”, Oct. 30, link now dead). Jodi Kantor, Slate “Today’s Papers”, also Oct. 30, reports: “The company’s credit rating was immediately downgraded, and its share price slipped 9%.” (Toshiba site)
November 5-7 – After Casey Martin, the deluge. Latest handicap-accommodation demand from the playing field: family of 9-year-old Ryan Taylor, who’s afflicted with cerebral palsy, asks for his right to play soccer in a metal walker. David Dalton, volunteer president of the Lawton [Okla.] Optimist Soccer Association league, says the walker is hazardous and a violation of the game rules. In addition, the league could get sued if another player smashed into it while trying to contest Taylor’s control of the ball, if any were so unsporting as to try that. However, “in 1996 a federal court in California ruled that a youth baseball league violated the Americans With Disabilities Act by excluding an 11-year-old with cerebral palsy who used crutches” and Houston disability-rights lawyer Wendy Wilkinson is rattling the saber, saying the ruling “definitely applies to this situation”. (Danny M. Boyd, “Disabled boy is barred from playing soccer with a walker”, AP/Fox News, Nov. 3, link now dead).
November 5-7 – “Land of the free…or the lawyers?” Nice editorial in Investors Business Daily on the deepening litigation crisis: “No industry or company is safe.” It even quotes our editor (Oct. 21, link now dead).
November 5-7 – Toffee maker sued for tooth irritation. Spreading across the Atlantic?, cont’d: Former Miss Scotland Eileen Catterson, a runway fashion model for ten years, has sued the makers of Irn-Bru toffee bars saying the sticky confection has left her with discolored teeth and sore gums. She is demanding £5,000 damages in Paisley Sheriff Court, which itself sounds like a fashion establishment. (Gillian Harris, “Model sues sweets firm over teeth”, The Times (London), Oct. 28).
November 4 – Criticizing lawyers proves hazardous. In July Publishers Clearing House, the magazines-by-mail company whose sweepstakes is promoted by Ed McMahon, agreed to settle a class action charging it with deceptive practices. The settlement provided for a maximum of $10 million in outlays by the company, to be divided roughly as follows: $1.5 million to send a notice of settlement to an estimated 48 million households in the class; $5.5 million or less to be refunded to dissatisfied magazine buyers that could muster the required paperwork, the exact sum to depend on how many did so; and $3 million in legal fees for the lawyers who filed the suit, sister-and-brother attorneys Judy Cates and Steven Katz of Swansea, Ill. and a third colleague.
The announcement did not sit well with St. Louis Post-Dispatch columnist Bill McClellan, who wrote August 27 that Cates and Katz “represent the modern version of the James Gang….They recently gained renown by galloping into the little town of Publishers Clearing House. They robbed the bank there, and rode away.” He added that “the way these class-action lawsuits usually work” is that “members of the class get very little. Usually nothing. Our lawyers get a lot. Always….It will be considered a cost of doing business, and like all such costs, it will be passed on to the consumers, who are, of course, the very same people who are allegedly benefiting from the lawsuit.”
And with that, almost before the popular columnist could tell what hit him, he was staring down the barrel of a writ. On August 30 Cates and Katz filed suit against McClellan in federal court in East St. Louis, Ill., seeking $1 million in damages for the libel of having been compared to bank robbers.
Unrepentant, McClellan followed up with a second and equally jocular effort, explaining that the lawyers had misunderstood: although upstanding Illinois might object to bank robbery, “Here in Missouri, we like the James Gang,” as folk heroes from the state’s Great Plains heritage. “So it is with the gallant class-action lawsuit lawyers. Close your eyes and see them the way I see them. They ride into town, file their lawsuits, reach their settlements and then, their saddlebags stuffed with money, they gallop into the night, but as they go, they throw coins to the cheering populace.
“And coins is the operative word, too,” McClellan added, pointing out that on average each of the represented households stood to gain something on the order of 12 cents, compared with $3 million for their lawyers. It is not recorded that Cates and Katz have dropped their suit or been in any other way mollified by this response. Bill McClellan, “Only Ones Who Gain From Class-Action Suits Are The Lawyers”, St. Louis Post-Dispatch, Aug. 27; “Missourians love James Gang and today’s robbers, too”, Sept. 1). Update: Nov. 30 (he criticizes them again, though case is still pending); Feb. 29, 2000 (they agree to drop suit).
November 4 – Bring a long book. It takes New York, on average, seven years to fully adjudicate discrimination cases filed with its Division of Human Rights. One woman in Orleans County spent 14 years in the system before obtaining a $20,000 award, while a complainant against Columbia University was still waiting for a hearing after 11 years. A federal judge has sided with the National Organization for Women in a suit demanding that the agency hire more employees on top of its current 190 to handle the case load; NOW wants that number tripled. (Yancey Roy, “State faulted on rights cases”, Rochester Democrat and Chronicle, Nov. 2 — link now dead).
November 3 – Toshiba flops over. Last Friday’s announcement by Toshiba Corp. that it had agreed to pay a class-action settlement nominally valued at $2 billion over alleged defects in the floppy-drive operation of its laptop computers appears to represent a genuine breakthrough for plaintiff’s lawyers who’ve for years been gearing up a push to extract cash from high-tech companies over crashes, glitches and other subpar aspects of the computing experience. Many still unanswered questions about the new developments:
* Has the glitch led to any problems at all in real-world use? Conspicuously absent from the coverage of recent days has been any word from victims of the glitch saying that on such and such a date they lost important data because of it. Yet if the plaintiffs’ side had such witnesses available, it’s hard to see why they wouldn’t have pushed them forward to public notice by now. Apparently the lawyers, through their expert, have found a way to configure Toshiba laptops so as to replicate data loss under carefully controlled demonstration conditions, but news coverage has not yet probed into the question of how artificial these conditions are or how likely they are to occur to real users who aren’t trying on purpose to get their computers to lose data. The plaintiffs’ theory, which seems rather convenient, is that the data loss is so subtle that people don’t know it’s happening or can’t trace it to the glitch afterward.
* Given the above, who if anyone has suffered damages? Next week Toshiba “will post on its Web site a free and downloadable software patch that eliminates the problem.” And a large percentage of laptop owners never or almost never use their floppy drive, preferring modem transmission of files. Yet all will be entitled to prizes.
* How valuable are those prizes? There’s some talk of refunds for recent purchasers, but presumably most would rather download a software patch than return a computer they like. (Toshibas are popular.) Others will get coupons mostly valued at $100-$225 “for the purchase of Toshiba computer products sold through Toshiba’s U.S. subsidiary”. Usually the face value of a coupon settlement is a highly unreliable guide to what the settlement is actually costing; otherwise a Sunday paper with $30 in grocery coupons in it would sell for $30. Yet Toshiba is taking a $1 billion accounting charge, and pledges to donate unclaimed amounts from the settlement fund to “a newly created charitable organization”. And it’s also agreed to pay a very non-imaginary $147.5 million to a not-so-charitable organization, the lawyers that brought the suit.
* Can the lawyers take their act industry-wide? “On Sunday night, four new suits were filed in U.S. District Court in Beaumont, Texas [where the Toshiba case had been filed only six months ago], against PC makers Hewlett-Packard Co. Compaq, NEC Packard-Bell and e-Machines Inc.” Compaq says there are specific diferences between its machines and Toshiba’s which render the case against it meritless. Pattie Adams, a spokeswoman for eMachines, said her company still hadn’t seen the suit but expressed the view that it. “doesn’t really apply to us…It appears to be about laptops, which we do not have, and the technology is from before we were even established.” As if that would save them in our current legal system! Another news report suggests the lawyers are busily trying to rope in governments as plaintiffs, à la guns-tobacco-lead paint: “federal investigators have attended laboratory demonstrations sponsored by plaintiffs’ lawyers intended to show the occurrence of the alleged defect, these people said. State and local agencies can opt to assert damage claims on their own.”
The law firm involved, Reaud, Morgan & Quinn, of Beaumont, Texas, may not be a familiar name to tech-beat reporters, but it’s quite familiar to those who follow high-stakes litigation. After growing rich on asbestos claims it moved into the tobacco-Medicaid suit on behalf of Texas (Forbes, July 7, 1997; Sept. 21, 1998 and sidebar). It also made the Houston Chronicle‘s list of top ten political donors in Texas (five of whom, all consistent Democratic donors, happen to have represented the state in tobacco litigation for $3.3 billion in fees). Beaumont, which also is home to another of the Big Five Texas tobacco firms, is sometimes considered the most plaintiff-dominated town in the United States. (DISCUSS)
Sources: Toshiba press release, Oct. 29; Terho Uimonen, “Toshiba Settles Floppy Disk Lawsuit”, IDG /PC World News, Oct. 29; Andy Pasztor and Peter Landers, “Toshiba to pay $2B settlement on laptops”, Wall Street Journal Interactive/ZDNet, Nov. 1; Michael Fitzgerald and Michael R. Zimmerman, “PC makers hit with ‘copycat’ suits”, PC Week/ZDNet News, Nov. 1; “More PC lawsuits filed”, AP/CNNfn, Nov. 2 (link now dead); “Laptop Illogic”, Wall Street Journal, Nov. 3.
November 3 – Flag-burning protest requires environmental permits. You’re so angry you want to burn a flag in public? You’ll have to fill out these two environmental permissions first, please, one for the smoke aspect and one for the fire aspect. We don’t think this is a parody. (Vin Suprynowicz, “Levying a Free-Speech Fee”, Las Vegas Review-Journal, Oct. 28 — full column)
November 3 – Welcome RiskVue and Latex Allergy Links readers. Coverage of EEOC protection of illegal aliens is here, and of possible Rhode Island-led suits against glove makers, here.
November 2 – School shootings: descent of the blame counselors. It may seem incredible to Americans, but after the 1996 massacre at Dunblane, Scotland, in which 16 kindergarteners and their teacher were killed, “not a single lawsuit was filed”. How different in Littleton, Colo., West Paducah, Ky., and Jonesboro, Ark., where busy litigators — call them blame counselors? — seem to outnumber grief counselors, aiming suits in all directions: at school districts, entertainment companies, gunmakers, and most controversially the parents of the killers. Many victim families still decline to sue, taking the older view of litigation as an obstacle to forgiveness and community reconciliation; others throw themselves vigorously into their suits as a cause, believing they’re helping expose deep-seated evils of today’s America or at least the negligence of certain bad parents; and then there’s the middle ground represented by one Columbine High School mother who says she’s forgiven the shooters’ parents, but, frankly, now needs the money. (Lisa Belkin, “Parents Suing Parents”, New York Times Magazine, Oct. 31) (see also July 22, 1999 and April 13, 2000 commentaries).
November 2 – “Responsibility, RIP”. Columnist Mona Charen comments on two auto safety suits, one of them the child-left-in-hot-van case discussed in this space Oct. 20. In the other case, $2 million went to the survivors of a Texas man who’d left a truck running on a hill and walked behind it. “You don’t need an owner’s manual to tell you that it’s dangerous to walk behind a running, driverless vehicle on a steep hill. This used to be known as common sense. But so long as juries return such verdicts, the concept of individual responsibility gets hammered ever lower…the trial lawyers’ wallets grow corpulent, and the populace is increasingly infantilized.” (Jewish World Review, Oct. 25 — full column)
November 2 – How the tobacco settlement works. “‘There’ll be adjustments each year based on inflation,’ said Brett DeLange, head of the Idaho attorney general’s consumer protection unit. Plus, ‘If cigarette volume goes down, our payments will go down. If volume goes up, our payments will go up even more.’” Why, it’s like Christmas come early! Of course DeLange denies that this arrangement will in any way dampen the state’s enthusiasm for reducing tobacco use. (Betsy Z. Russell, “Tobacco money gets closer to Idaho”, Spokane Spokesman-Review, Oct. 24 — full story) (see also July 29 commentary)
November 2 – Lockyer vs. keys. “October 12, 1999 (Sacramento) — Attorney General Bill Lockyer today sued 13 key manufacturers and distributors for allegedly failing to warn that their products expose consumers to the toxic chemical lead in violation of Proposition 65.” — thus a press release from the office of the California AG. From time immemorial, it seems, house keys have been made of brass, and brass contains lead. Whatever you do, don’t tell him about the knocker on your front door, or those robe hooks in the bathroom. (press release link now dead)
November 2 – Perkiness a prerequisite? Lawsuit charges local outlet of Just for Feet shoe chain with bias against black workers. Among evidence alleged: store “policy dictating employees should look like Doris Day or ‘the boy next door.’ Company representatives deny the existence of such a policy.” (“Shoe store accused of discrimination”, AP, Las Vegas Sun, Oct. 26 — full story)
November 2 – 80,000 pages served on Overlawyered.com. With help from our Canadian visitors, we hit a new daily traffic record last Thursday. New weekly and monthly records, too. Thanks for your support!
November 1 – New topical page on Overlawyered.com : family law resources. Divorce, custody, visitation, child support, adoptions gone wrong, and other occasions for overlawyering of the worst kind.
November 1 – Not-so-Kool omen for NAACP suit. Apparently unconcerned about retaining the good will of Second Amendment advocates, the National Association for the Advancement of Colored People is suing gunmakers for having catered to strong demand for their product in inner cities (see Aug. 19 commentary). Its potential case, however, is widely regarded as weak — so desperately weak that back on July 19 the National Law Journal reported the civil-rights group as angling to get the suit heard by Brooklyn’s very liberal senior-status federal judge Jack Weinstein because the underlying theories “might not succeed in any other courtroom in America”.
Now there’s another omen that the much-publicized lawsuit is unlikely to prevail: in Philadelphia, federal judge John Padova has dismissed a proposed class action which charged cigarette makers with selling in unusually high volume to black customers and targeting them with menthol brands and billboard ads. To bring a civil rights claim, the judge wrote, “[p]laintiffs would have to contend that the tobacco products defendants offer for sale to African Americans were defective in a way that the products they offer for sale to whites were not.” If a racial angle can’t be grafted onto the legal jihad against cigarette makers, is the same tactic likely to be any more successful when directed at gun makers?
Sources: Sabrina Rubin, “Holy Smokes!”, Philadelphia Magazine, February 1999; Shannon P. Duffy, “Court Urged to Dismiss Menthol Cigarette Class Action”, The Legal Intelligencer, April 8; Joseph A. Slobodzian, “A novel civil-rights lawsuit vs. tobacco industry is dismissed”, Philadelphia Inquirer, Sept. 24, link now dead; Shannon P. Duffy, “Judge Dismisses Smoking Suit”, The Legal Intelligencer, Sept. 24.
November 1 – Mounties vs. your dish. About a million Canadians are said to defy their country’s ban on the use of satellite dishes to receive international programming, though the Mounties’ website warns that violators “can face fines of up to $5,000 and/or up to 12 months in prison”. The ban applies not only to “pirate” watching (where viewers buy stolen code that lets them unscramble signals without compensating the satellite provider) but even to straightforward paid subscriptions to foreign satellite services. The only lawful option is to go through one of a duopoly of Ottawa-approved suppliers (Bell Express Vu and Star Choice). Good news on another front, though: Internet radio is letting listeners bypass the absurd and oppressive laws requiring Canadian content in that medium. Bring Internet TV soon, please! (Ian Harvey, “RCMP threatens a clean-up of illegal dishes”, Toronto Sun, Oct. 13 — full column)
November 1 – “Shoot the middle-aged”. That’s the title of a Detroit News editorial responding to the Michigan House’s unanimous approval of a bill allowing for doubling of criminal penalties when offenses are committed against the young or elderly. (Oct. 23 — full editorial).
November 1 – World according to Ron Motley. Even before tobacco fees, the Charleston-based plaintiff’s lawyer was “worth tens, maybe hundreds, of millions of dollars. But he’s about to get much richer. A billion or two or three richer….Sketching plans that would alarm many corporate executives, the 53-year-old lawyer will reinvest most of his newfound money to finance lawsuits against the makers of lead paint, operators of nursing homes, health maintenance organizations and prescription drug makers.” He calls the businesses he sues “crooks”. “Mr. Motley’s windfall [from tobacco] is likely to exceed $3 billion…’If I don’t bring the entire lead paint industry to its knees within three years, I will give them my [120-foot] boat,’ he says”.
In its flattering profile of the 53-year-old South Carolinian, yesterday’s Dallas Morning News quotes a pair of law profs who hint that the public should really be glad Motley is now personally reaping billions for representing government clients, because next time he sues some huge business it’ll be more of an even match. By that logic, we’d be better off if we let every lawyer who argues a case against, say, Microsoft, amass as much wealth as Bill Gates. Maybe the trial lawyers will figure out a way to make that happen too before long (Mark Curriden, “Tobacco fees give plaintiffs’ lawyers new muscle”, Oct. 31 — full story)
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