A case before the Nevada Supreme Court aims to open up new vistas of liability. [WSJ Law Blog].
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Posts tagged as:
Nevada
- Update: “Cash4Gold Drops Consumerist From Lawsuit” [its report; earlier] Unrelatedly, the same Consumers Union publication was taken in by a fake memo in which Australian McDonald’s supposedly plotted to defraud its customers [its revised post]
- “You just killed the homeowner. The bad guy is in there.” [Courthouse News and Scott Greenfield, Phoenix]
- “Reporter Who Survived Midair Crash Now on Risky ‘Libel Tourism’ Journey” [ABA Journal, Krauss/Point of Law, earlier; Joe Sharkey, Brazil]
- Permanent disbarment sought for “too drunk to join fen-phen conspiracy” Kentucky lawyer Mills [Courier-Journal]
- “Woman Blames Study Abroad Program for Rape in Mali” [OnPoint News]
- Ninth Circuit reinstates prosecution of Nevada lawyer, surgeon and consultant in injury-case furor spotlighted by Fortune mag [Legally Unbound, which by coincidence has just hosted Blawg Review #231; Las Vegas Review Journal; earlier]
- Punch line ad lib.: “Former terrorist wants to be lawyer” [Toronto Star] More: Lowering the Bar.
- “Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?” [Michael Masnick, Techdirt, Against Monopoly (Stephen Kinsella)]
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OnPoint News: “Taking employment law into uncharted waters, a $645 million lawsuit alleges the operator of the Hard Rock resort in Las Vegas is liable for the death of its former CEO’s girlfriend because it consented to his ‘hedonistic lifestyle.’” Family members of the 23-year-old woman, who overdosed on drugs in the former CEO’s suite, say the hotel should be responsible because it knowingly cultivated an image of high living, drug use and promiscuity, which made his conduct with respect to her something “within the course and scope of his employment”. The former CEO has already settled a wrongful-death suit brought by the woman’s father.
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“Prosecutors say a group of top lawyers and doctors conspired to collect millions in inflated damages by pushing accident victims into dubious surgery.” Riveting, detail-filled account of the alleged involvement of numerous Nevada lawyers and as many as 20 doctors in what prosecutors say was boldly and systematically organized misconduct, with even some sectors of the judiciary in the state at best cowed by the scheme’s managers. An elegant touch: physicians who played ball are said to have been assured protection from malpractice suits from many feared attorneys, while those not in on the scheme appear in some cases to have been at extra peril. This looks to be one of the year’s most important ventures into investigative journalism on the underside of litigation — don’t even think of missing it [Katherine Eban, Fortune, Aug. 19] More: discussed by Darleen Click and commenters, Protein Wisdom.
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There’s an old legal joke that goes: “If you’re weak on the facts, pound the law. If you’re weak on the law, pound the facts. If you’re weak on both the facts and the law, pound the table.”
Except the entrepreneurial trial bar has found an intermediate step: instead of pounding the table, pound the discovery requests. Persuade a judge that a discovery snafu was really a deliberate attempt at a cover-up, and get sanctions that prohibit the other side from defending itself. Because plaintiffs rarely have discovery obligations that are more than an infinitesmal fraction of a defendant’s discovery obligations, this can be a profitable strategy.
The strategy is not new–I saw it myself first-hand in the 1990s defending GM, and wrote a piece about a trial where John Edwards successfully used a variant. But as discovery gets more and more complex due to emails, voicemails, and instant-messaging, it becomes easier for the discovery snafu to happen, and it becomes harder for judges to distinguish between good-faith mistakes and bad-faith withholding of documents. You may recall a famous example in Florida where Morgan Stanley was precluded from introducing evidence about a transaction involving Sunbeam before the appellate court threw out the entire case.
A recent example of this sort of gamesmanship is going on now in Florida where a group of lawyers representing Ecuadorian shrimp farmers came up with a brand new implausible theory of their case–now alleging that runoff from a formulation of a Benlate fungicide that stopped being used in 1991 is what caused their damages in the mid-to-late 1990s, all so they can claim to a judge that DuPont’s failure to produce documents about this marginally relevant formulation (which was effectively identical to the other formulations, except it included two inert ingredients) deserved sanctions. And sure enough, the court ordered a civil death penalty: all of DuPont’s defenses have been stricken, even though there is no scientific evidence that fungicide runoff caused the virus that killed many Ecuadorian shrimp. (Aquamar S.A. v. DuPont, Case No. 97-020375 (Broward County, Fla.))
A similar case involving Goodyear and a civil death penalty sanction that resulted in a $30 million verdict is pending in the Nevada Supreme Court.
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- Driver on narcotic painkillers crashes car, lawyer says pharmacists liable [Las Vegas Review-Journal]
- Who’s that cyber-chasing the Buffalo Continental Air crash? Could it be noted San Francisco-based plaintiff’s firm Lieff Cabraser? [Turkewitz]
- Axl Rose no fan of former Guns N’ Roses bandmate or his royalty-seeking attorneys [Reuters]
- Cheese shop owner speaks out against punitive tariff on Roquefort, now due to take effect April 23 [video at Reason "Hit and Run", earlier]
- Too many cops and too many lawsuits in city schools, says Errol Louis [NY Daily News]
- Law professor and prominent blogger Ann Althouse is getting married — to one of her commenters. Congratulations! [her blog, Greenfield] Kalim Kassam wonders when we can look forward to the Meg Ryan film “You’ve Got Blog Comments”.
- “Louisiana panel recommends paying fees of wrongfully accused Dr. Anna Pou” (charged in deaths of patients during Hurricane Katrina) [NMissCommentor]
- U.K.: “Privacy Group Wants To Shut Down Google Street View” [Mashable]
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An odd invitation to join a Nevada suit. Is it on the level?
Because actually disbarring him would just have been too mean, at least in the eyes of the Nevada Supreme Court. Douglas Crawford blamed depression and gambling addiction for his client thefts. [ABA Journal]
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Clark County, Nevada: “A man claims Simon & Schuster defamed him in the book “Hot Chicks with Douchebags.” The man says his photo was taken without proper consent, and that he is not, in fact, a you-know-what. (Courthouse News, Nov. 18 via Justin Levine, Patterico; The Smoking Gun). Earlier here (different suit) and, relatedly, here. More: On Point News (protected “opinion”?)
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On October 1 a new law went into effect in Nevada requiring businesses to encrypt all “personal identifying information” (things like Social Security and drivers’ license numbers and credit card numbers) of customers in email and “electronic transmissions” more generally. The law has raised concern among, e.g., law offices and medical providers which often work with client documents containing such numbers; it will now be unlawful (say) to email such documents from a professional’s workplace to his or her home office absent encryption. Howard Marks at Information Week (Oct. 13):
Electronic transmission isn’t defined, so one interpretation would include the telephone — so if you forget the password to your online banking account, your bank will have to snail mail or fax you a new one. It does say “to a person outside of the secure system of the business,” so you don’t have to run out and encrypt all your disks like the vendor that brought this to my attention would like.
Don Sears at Baseline (Sept. 19) cites a Las Vegas lawyer on such problems with the law as “the lack of coordination with industry standards and the unclear nature of penalties both criminal and civil” and concludes “once again, the legal system and the IT industry are faced with potentially bigger compliance and liability issues than they probably intended.” At Davis Wright Tremaine’s Privacy and Security Law Blog (Feb. 27), Randy Gainer cites similar (but not identical) mandates moving forward in other states and also notes, “the overwhelming majority of reports of stolen and lost consumer data relate to stored data, not data in transit…. The limited, data-in-transit, encryption mandate in the Nevada statute will therefore do little to stem the tide of stolen and lost consumer data.” Marian Waldmann at Morrison & Foerster (Oct. 2007) notes California’s more sweeping but less specific mandate for businesses to implement and maintain “reasonable security procedures and practices”, and also points out that the determination of whether an out-of-state entity dealing with Nevada residents is “doing business” in the state, and therefore subject to legal mandates of this sort, has been described by the Nevada Supreme Court itself as “often a laborious, fact-intensive inquiry resolved on a case-by-case basis” in litigation. Other commentary: Sidley Austin, Lori MacVittie/DevCentral.
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“Hundreds of people in Alabama and Nevada have been prosecuted” for doing that, per Alex Tabarrok (Marginal Revolution, Aug. 15).
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The developer of a $3.9 billion casino resort on the Las Vegas Strip with the proposed name Cosmopolitan is being sued for trademark infringement by Hearst, publisher of Cosmopolitan magazine. A local IP attorney not involved with either side says the claim could “go either way” and is “not a frivolous lawsuit”. Does this mean there is evidence that the casino people were seeking to sow confusion about which business was which, or just that another valuable English word is falling prey to the trademark Enclosures? (Arnold Knightly, “Fashion mag publisher sues Strip project”, Las Vegas Business Press, Jul. 2).
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John L. Smith, whom the Las Vegas Review-Journal describes as its most widely read columnist, “has filed for bankruptcy after a two-year legal battle with Sheldon Adelson, owner of The Venetian resort. Adelson is suing Smith and his book publisher, Barricade Books, and alleging libel based upon Smith’s 2005 book ‘Sharks in the Desert: The Founding Fathers and Current Kings of Las Vegas.’ The Review-Journal was not named in the lawsuit.” Smith concedes the muckraking book contained inaccuracies about Adelson but takes issue with the tycoon’s claim of damages: “in the time since this book was published, Adelson has gone from 15th richest man in the world, according to the Forbes annual ratings, to sixth, so it’s hard to see how he has been harmed.” Barricade Books, associated with the late Lyle Stuart, also filed recently for bankruptcy. (A.D. Hopkins, ” Columnist pursues bankruptcy protection”, Las Vegas Review-Journal, Oct. 12) (via Romenesko).
The official recruitment of cosmetologists as informants (and as intermediaries steering customers to approved “domestic-violence” programs) continues, with programs reported in Florida, Idaho, Oklahoma, Virginia, Ohio and Maine, as well as Nevada and Connecticut (see Mar. 16 and Mar. 29, 2000). It’s not just black eyes or lacerations that the salon employees are supposed to be on the lookout for, either. A customer’s protestation that “he would not like that”, as a reason to turn down a new hairstyle, might be a sign of “controlling behavior” that needs watching. (”Salons join effort to stop violence”, Bangor Daily News, Jun. 15) (via van Bakel).
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