Updating our March 2008 coverage: The New Hampshire Supreme Court ruled last month that an attorney could properly be convicted of extortion for sending a demand letter threatening patently baseless litigation. The lawyer had sent the letter (which included a demand for monetary payment) to a hair salon threatening litigation over its purportedly discriminatory setting of different rates for men’s and women’s haircuts. A crucial element in the decision was that the lawyer did not in fact have a client in hand with a potential complaint as an actual customer of the salon. [Eugene Volokh, Above the Law; State v. Hynes, PDF] “Assistant Attorney General Elizabeth Baker said Hynes sent letters to at least 19 salons in the state.” [Concord Monitor 2008 coverage]
Posts tagged as:
New Hampshire
- House Ways & Means — yep, Charlie Rangel’s own — passes bill slamming taxpayers for innocent errors [James Peaslee, WSJ, via Alkon]
- Must protect the children! “Parents banned from British school sports event” [Common Room] After-school pickup procedures can get a little crazy too [Free-Range Kids, Florida]
- Once again, America’s Most Irresponsible Public Figure® (that’d be RFK Jr.) sounds off on an environmental dispute to which he turns out to have personal financial ties [Greenwire via Eco-Pragmatism]
- Allegations in ugly Florida law firm breakup include misallocation of Hillary Clinton campaign money [DBR]
- When in court, try to avoid following the example of “Girls Gone Wild” impresario Joe Francis [Lowering the Bar and more, earlier]
- “Judge Allowed to Sue N.Y. Daily News, But Not a Lawyer Thought to Be a Source” [ABA Journal, NYLJ]
- New Hampshire judge rules for divorced father who disapproves of homeschooling [Volokh]
- ABA Journal is taking nominations for its annual best-of “Blawg 100″ list [hint, nudge]
Harvard Law School’s Cyberlaw Clinic and the Reporters Committee for Freedom of the Press have submitted an amicus brief in the case, urging the New Hampshire Supreme Court to uphold the website’s position on First Amendment grounds. The popular site Mortgage Lender Implode-O-Meter had published a New Hampshire Banking Department document containing information about a private company; that company proceeded to sue the site demanding that the document be taken down, and also demanded discovery of how the document had come into the site’s possession. Earlier here.
The state is suing the Town Fair Tire chain, saying its outlets in New Hampshire (a state with no sales tax) should have collected tax on Massachusetts residents’ purchases and sent it off to Boston on their behalf. It was supposed to know which customers these were by checking their cars’ license plates. [Daniel J. Flynn, City Journal] More: TaxProf covered the suit in February.
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Around New England, thousands of owners of gas stations and auto repair shops are being billed tens of thousands of dollars apiece for a $65 million Superfund cleanup. Their offense? They were the ones “who made the effort to properly dispose of waste oil and antifreeze by sending it to the sprawling Beede Waste Oil Co. in Plaistow, N.H. Now they are being punished for their conscientious ways.” [Boston Globe]
- UPDATE 5:45 p.m. Eastern: Well, that was quick. A source reports that Congressional staffers hastily announced that they’re canceling the hearing next week and that the idea is “not likely to ever be brought back”. Someone must have realized that letting people from around the country get in front of a microphone and talk about the effects of this law would not exactly do wonders for the image of Henry Waxman, Public Citizen, PIRG, or Consumer Federation of America. More: Rick Woldenberg confirms cancellation/disinvitation.
- A prime objective for critics of the Consumer Product Safety Improvement Act in recent weeks has been to obtain a hearing on Capitol Hill that might focus lawmaker and press attention on the law’s many unexpected and harmful effects. Now it looks as if that might be happening. Rick Woldenberg:
I have been invited to testify before the Subcommittee on Regulations and Healthcare of the House Committee on Small Business next Thursday. The purpose of this hearing is to explore Small Business issues related to the CPSIA. The Subcommittee is still looking for small businesses to testify. … If you are motivated to testify, you may want to reach out to the Subcommittee staff to volunteer, or if you have a Congressman on the Subcommittee, contact their Washington office urgently. …
- Relatedly, Whimsical Walney, whose time seems to have been in part freed up for blogging by the CPSIA-induced shutdown of her Bay-Area-based children’s line, offers some advice here and here on how to talk with lawmakers about the act.
- If you still haven’t taken a look at it, Daniel Kalder’s excellent BooksBlog entry in The Guardian (U.K.) on CPSIA and older books, which quotes from my City Journal article, is here. It’s drawn attention around the world, including places like France, Italy, and Romania.
- Speaking of books, America’s libraries appear to have dodged catastrophe for now with the help of the American Library Association’s (understandable under the circs) last-minute embrace of the position that unless someone announces otherwise, it’s going to assume the law doesn’t apply to library stacks or circulation (earlier; commentary on the shift, Deputy Headmistress and Rick Woldenberg). Thus: Cincinnati Enquirer (”We’re hopeful saner heads will prevail and they’ll exempt us,” says Emily Sheketoff of the ALA), Middletown (Ohio) Journal, Brown County, Ohio, News-Democrat.
So it seems to be mostly the librarians who are the most literal-minded and obedient about following guidance from high government authorities, or who are most legally risk-averse, or something, who are taking drastic steps like tarping over their pre-1985 stacks or planning to discard the volumes entirely or excluding older kids’ books from their used-book sales (in which case they’ll wind up….where?). Esther at Reading Loft/Design Loft has been picturing how libraries will look if they can’t make an exemption stick. And I didn’t notice it when it ran last month, but Annoyed Librarian had a funny rant at Library Journal about the law. Perish the thought, of course, that any library might ever want to acquire a pre-1985 book for kids’ use. - Popular conservative talk host Hugh Hewitt has continued his coverage of the law. Per one transcript, he discussed it with star columnist Mark Steyn who knew about the youth motorsports debacle:
In my little corner of New Hampshire, every 12-year old boy loves taking an ATV, loves riding it around up in the hills. And the idea that the lead in it is going to cause that kid to keel over, is preposterous. This is government by insanity…
On the other hand, Mark Riffey passes along word that popular talker Glenn Beck doesn’t plan to cover the issue because “there’s no public outcry” (a paraphrase second-hand of what might be a staffer’s view, or his, it’s not clear). What? Does he restrict his reading diet to the New York Times?
- Wacky Hermit at Organic Baby Farm is angry: “When you have to consult a lawyer before you hold a church benefit sale, you are not in America.” (some rude language).
- In the first-linked item above, Woldenberg also reports on an announcement by the Consumer Product Safety Commission’s chief of enforcement, Gib Mullan, that the commission intends to shift its enforcement methods in a more punitive direction, handing out many more penalties than previously in order to achieve more deterrent effects on businesses of all sizes. This is well in line with the clear guidance the commission has been given by Henry Waxman and colleagues in Congress. Next Thursday, if those planning the hearing do their jobs right, many in Congress might for the first time hear some voices that no one thought to consult when the law hurtled toward passage last summer. [REPEATING THE UPDATE: Hearing reportedly canceled.]
Public domain images: Grandma’s Graphics, Mabel Betsy Hill and Elson’s Basic Readers.
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Another academic-poetry litigation brawl: “New England College has filed a federal lawsuit alleging that the former director of its master’s-degree program in poetry stole faculty members and students from the New Hampshire institution and re-created the program at Drew University, in New Jersey”. New England College had offered the country’s only master’s program of its sort, but now six faculty members have departed to join the fledgling program at the New Jersey institution. (Chronicle of Higher Education; Concord Monitor).
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[Bumped on breaking news: A federal court in New Hampshire has quashed the subpoena and ordered attorney Clifford Shoemaker to show cause why he should not be subjected to sanctions. Also: Orac. Earlier Monday post follows:]
Autism blogger Kathleen Seidel reports that the online free speech project at Public Citizen has agreed to provide her with legal assistance in responding to vaccine lawyer Clifford Shoemaker’s subpoena (see earlier coverage here, here, and here). One way to read this is as a fairly devastating commentary on just how weak Shoemaker’s position is, since there is ordinarily no more potent public presence on behalf of the plaintiff’s side in pharmaceutical litigation than Public Citizen. Seidel also has discovered that as a Shoemaker target she is in distinguished company:
I learned that on March 26, 2008 — the same afternoon that I was greeted at my doorstep with a demand for access to virtually the entire documentary record of my intellectual and financial life over the past four years — Dr. Marie McCormick, Sumner and Esther Feldberg Professor of Maternal and Child Health at the Harvard School of Public Health, and Professor of Pediatrics at Harvard Medical School, was subjected to a similar experience at her Massachusetts home.From 2001 to 2004, Dr. McCormick chaired the Immunization Safety Review Committee of the Institute of Medicine (IOM), charged with analyzing and reporting on data regarding the safety of vaccination practices. …As a result of her voluntary work on the committee, Dr. McCormick has found herself a frequent target of suspicion by plaintiffs, their attorneys and advocates, and opponents of vaccines, who disagree with its conclusions, and whose legal and political positions are not supported by its reports.
McCormick’s lawyers are likewise seeking to quash the subpoena. Much more here (& Beck & Herrmann, Orac, Pharmalot).
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I’ve often linked in the past to the work of New Hampshire blogger Kathleen Seidel, whose weblog Neurodiversity presents a fearless, systematically researched, and frequently brilliant ongoing critique of autism vaccine litigation. A prominent plaintiff’s lawyer in that litigation, Clifford Shoemaker of Vienna, Virginia, has just hit Seidel with an astoundingly broad and sweeping subpoena (PDF) demanding a wide range of documents and records relating to her publication of the blog. Seidel has been sharply critical of Shoemaker’s litigation, and indeed the subpoena arrived only hours after she posted a new Mar. 24 entry, “The Commerce in Causation“, critical of his legal efforts.
The subpoena contains no indication that Seidel herself is accused of defaming anyone or violating any other legal rights of any party. Instead it seems she is being dragged in as a third-party witness in Shoemaker’s suit on behalf of his clients, Rev. Lisa Sykes and Seth Sykes, against vaccine maker Bayer. Although Seidel has been a remarkably diligent blogger on autism-vaccine litigation, I can find no indication that she is in possession of specialized knowledge that Shoemaker would not be able to obtain for his clients through more ordinary means.
Instead, the first phrase that occurred to me on looking through the subpoena was “fishing expedition”, and the second was “intimidation”. Several clauses indicate that Shoemaker is hoping to turn up evidence that Seidel has accepted support from the federal government, or from vaccine makers, which she says she hasn’t. Also among the documents demanded: Seidel’s correspondence with other bloggers. As she puts it in her response:
The subpoena commands production of “all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com” – including but not limited to material mentioning the plaintiffs – and the names of all persons “helping, paying or facilitating in any fashion” my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis® and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any “religious groups (Muslim or otherwise), or individuals with religious affiliations,” and any other “concerned individuals.”…Plaintiffs and their counsel seek not only to rummage through records that they suspect pertain to themselves, but also through my family’s bank records, tax returns, autism-related medical and educational records, and every communication concerning all of the issues to which I have devoted my attention and energy in recent years.
Seidel has responded with a self-drafted motion to quash the subpoena, and expresses confidence that a judge will rule in her favor, and perhaps go so far as to agree with her contention that it constitutes sanctionable abuse. Should the subpoena somehow be upheld and its onerous demands enforced, it could signal chilly legal times ahead for bloggers who expose lawyers and their litigation to critical scrutiny (& welcome Instapundit, Pure Pedantry, P.Z. Myers, I Speak of Dreams, Law and More, Open Records, Matt Johnston readers. And Orac/Respectful Insolence, with what he terms an “important rant“. More reactions here and here).
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Now this could crimp the business plans of quite a few attorneys:
A Manchester lawyer who threatened to sue a Concord salon for pricing haircuts differently for men and women and then took money to settle the matter was found guilty of theft by extortion.A jury took about 1½ hours to convict Daniel Hynes, 27, on Wednesday. Assistant Attorney General Elizabeth Baker said Hynes sent letters to at least 19 salons in the state.
One arrived Dec. 20, 2006, at Claudia’s, the North Main Street hair salon owned by Claudia Lambert. In the letter, Hynes said prices should be based on the time a cut takes or on the length of hair, instead of on gender. He wrote: “I demand payment in the amount of $1,000 in order to avoid litigation,” according to court documents. …
Hynes said yesterday that he plans to appeal.
“The conviction goes against the First Amendment,” he said. “People have a right to petition the courts. In my case, I wanted to address my concern with the Human Rights Commission.”
Asked why he sent letters to salons instead of contacting the commission directly, Hynes said lawyers often settle out of court.
“I believe it’s more appropriate to attempt as amicable a resolution as possible,” he said.
… In one court document, he argued that the price structure that he saw as discriminatory had caused him stress and mental anguish, despite the fact that prices for men were less than those for women. He said he was being denied an “inherent benefit in being treated equally.”
(Chelsea Conaboy, “Lawyer guilty of salon extortion”, Concord Monitor, Mar. 21; Greenfield, Mar. 23; Above the Law, Mar. 25; Pasquale, Concurring Opinions, Mar. 24).
Prof. Bainbridge (Mar. 25) cites California’s experience with the now somewhat reformed s. 17200 unfair business practices law, which empowered freelancing lawyers to send out demand letters to businesses over a wide variety of alleged infractions. He concludes that the answer is to amend underlying laws which sweep too broadly in banning business practices, authorize damage claims unrelated to actual injury, and so forth. Although I much appreciate the kind suggestions for further reading he offers in his post, I can’t say I entirely go along with the idea that the scope for possible abuse would vanish if only the underlying laws were written properly. At Concurring Opinions, incidentally, one commenter draws a connection to RIAA’s mass production of demand letters against file-sharers, while another warns that for a target to complain to the authorities of extortion, as did the New Hampshire salon owner, might itself be construed by many courts as “retaliation” against the filer of a discrimination claim and thus as grounds for penalties on its own.
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All-New England edition:
- Massachusetts bar-exam flunker drops suit over gay-marriage question [Boston Herald, OnPointNews; see Jul. 7]
- “We cannot get rail service between Nashua and Boston because a cap on liability may be unconstitutional in New Hampshire thanks to the trial lawyers” [letter in Nashua Telegraph; earlier news story]
- Whodunit? Everyone, as in a certain Christie novel: Rhode Island nightclub fire lawsuits name 93 different defendants [New York Times; see Feb. 16, 2006]
- Update: skull-fragment-keeping officer Callahan departs the Norwalk, Ct. police force [Created Things; earlier Jan. 23 and Jun. 21]
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- Judge Ramos disallows settlement of Citigroup directors derivative suit: deal had met defendants’ needs, plaintiff’s lawyers’ too, but not shareholders’ [PDF of decision courtesy NY Lawyer]
- Drove a golf cart into the path of his car as it was being repossessed, jury decides he deserves $56,837 [MC Record]
- Per ACOG, 92 percent of NY ob/gyns say they’ve been sued at least once [NY Post edit; more]
- New British online-gambling law could trip up some virtual-world/massively multiplayer online games [GamesIndustry.biz]
- Good news for bloggers: Iowa-based site can’t be sued in New York just because it answered questions from NY reader and accepted NY donations [Best Van Lines v. Walker, Second Circuit; McLaughlin]
- Another great idea from Public Citizen: let’s not use new drugs till they’ve been on the market for seven years [Pharmalot via KevinMD]
- After conviction of Mississippi trial lawyer Paul Minor in judicial corruption scandal, squabbling drags on over sentencing [Jackson Clarion-Ledger]
- Conservative public interest law firms “can win some big cases [but] are notorious for lacking follow-through” [Tushnet, L.A. Times]
- Contestants in Australian business dispute probably wound up spending more on the litigation than had been at stake in the first place [Sydney Morning Herald]
- New at Point of Law: New Hampshire governor vetoes trial lawyers’ bill; global warming litigation to be bigger than tobacco?; the Times notices HIPAA;
- It’s my emotional-support dog, and my lawyer says you have to let it into your store [eight years ago on Overlawyered, before these stories started getting common]
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I smell class action:
Frequent N.H. Speeder Wants Limit Raised
DOVER, N.H. – A man with a penchant for speedy driving has come up with an unusual tactic for beating speeding tickets — raise the limit. So far this year, Larry Lemay has been ticketed four times for speeding.
Rather than slow down, Lemay is suing the state Department of Transportation to study traffic and speed limits across New Hampshire, to see whether limits could be raised. Lemay’s lawsuit, filed in Strafford County Superior Court, also asks a judge to order the Transportation Department to pay for his legal fees and the cost of the study, an estimated $1,853.
Lemay said he believes many speed limits are set intentionally low so the state can cash in on drivers.
“The state is making a lot of money doing this, and I want it stopped,” he said. “It’s wrong.”
Dave Hilts, the assistant attorney general representing the state, said Lemay’s view that higher speed limits would lead to safer driving is shared on the Internet by many speed limit abolitionists, but is misguided.
“Common sense will tell you that going too slow is only a hazard when other people are going much faster,” said Hilts. “It’s kind of a weird case.”
As for Lemay’s suggestion that the state sets low speed limits just to catch people with tickets:
“It seems ridiculous to me. I don’t know what incentive the state would have to do that,” Hilts said. “I’ve not seen any evidence that that occurs. I don’t believe it.”
I’m not sure exactly what this lawsuit is meant to accomplish. So he wins, and a judge orders the state to do a “study” that it doesn’t want to do? Want three guesses as to what the study is going to say?
On the other hand, I might have to give him a call to see if I can file an amicus brief. I have a lot of parking tickets that I think violate my right to park on the sidewalk.
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Is it, or isn’t it?
- It is: “Hopefully this means a better life,” says the energy company employee who won a $40 million judgment (almost half of it punitives) against Qwest Communications after the telephone pole he was working on collapsed and injured him. He was lucky; had he worked for the phone company, he likely would have been barred from suing by worker’s comp laws.
“I could hear my heart pounding, pulsing faster and faster, and I tried keeping calm, but when they started reading the verdict I was in a state of shock,” he said. “It’s justice.”
- It isn’t: “The lawsuit wasn’t about money, he said.” That’s New Hampshire resident Joseph Hewett, the rejected applicant for The Apprentice who settled his age discrimination lawsuit against Donald Trump and the producers of the show.
“This was never about a disgruntled applicant trying to get back at (Trump’s) organization, it just gave me an opportunity to advocate on behalf of a protected class,” he said. “This was about the fact that I believe an entire class was aggrieved.”
His evidence that age was what kept him off the show was a slam dunk; after all, he “claimed he was qualified for the show because he graduated magna cum laude from college and because of his ‘many years of experience maintaining large commercial properties.’”
- Well, maybe it is: Human rights advocacy groups have been (mis)using the Alien Tort Claims Act for years to litigate foreign events in American courts, but those advocacy groups were motivated primarily by ideology. Now class action law firms, sensing an opportunity, are getting in on the action. Overlawyered repeat offender Motley Rice (many links) is suing officials of the United Arab Emirates on behalf of boys from South Asia and Africa who claim to have been kidnapped and enslaved as camel jockeys in the UAE; the case has no connection whatsoever to the U.S.
The human rights movement isn’t thrilled because they figure that these lawyers are really in it for the money and not the cause; conservative tort reformers aren’t thrilled because they see it as just another example of entrepreneurial lawyering by trial lawyers.
John M. Eubanks, a lawyer with Motley Rice who represents the former jockeys, disputed both points.
“We’re trying to right wrongs that have been committed,” Mr. Eubanks said. “It’s not about money. It’s about exacting some form of justice.”
Uh, yeah:
Pressed, Mr. Eubanks conceded that the case was at least partly about money. “There is a contingency fee,” he said. “These cases do cost a lot of money. We don’t get paid unless we collect.”
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- Whoops! Insurer’s lawyer backtracks and scrambles for cover after saying some Miami/Dade judges “are being paid off” [Daily Business Review; possibly related, scroll to mention of Miami near end]
- Climate’s different up there: Google and Wikipedia sued for libel in Canada over user-generated content [Rob Hyndman]
- Lawyers implicated in Ky. fen-phen scandal are owners of Curlin, horse that placed third in Kentucky Derby [Courier-Journal, Sun-Times, Sports Network, WSJ law blog]
- “As a lawyer, I hear stories about lawsuit abuse all the time,” but Judge Pearson’s pants suit takes the cake [Nasty Brutish & Short; also lively discussion at Digg]
- Ramps of gold: serial ADA-suit filers George Louie, David Gunther and others launch wave of sidewalk suits against Northern California towns [Contra Costa Times]
- $250 fine for releasing a balloon into the air in New Hampshire? Criminalizing nearly everything [National Law Journal; also Ayn Rand]
- Helpful, if scary: “12 Important U.S. Laws Every Blogger Needs To Know” [Aviva Directory]
- U.K. lawyers ordered to pay back tens of millions of pounds in excessive fees earned for representing sick miners [Times Online Apr. 16, Apr. 25, Apr. 10; Telegraph]
- Did Rosie O’Donnell come out for loser-pays on ABC’s “The View”? Someone please get a transcript [Bill Boushka]
- Japan doesn’t furnish us with much material, but here’s one about magicians suing TV broadcasters for revealing secrets behind coin tricks [Above the Law]
- Sensitivity vs. sensitivity: female drummers allowed to sue over their (culturally authentic) exclusion from ritual drumming at Native American powwow [five years ago on Overlawyered]
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Peter Lattman at WSJ law blog (Apr. 10) discusses political maneuvering in the two early-Presidential-deciding states. It turns out that both states have (in the persons of Bill Shaheen and Jerry Crawford, respectively) Democratic kingmakers who happen to be trial lawyers. Not that this makes them so different from other states from coast to coast….
Multi-billion dollar (and down) extortion edition:
- Merrill Lynch and CSFB appeal extortionate Enron class-action certification. [Point of Law; AEI (Feb. 9); WLF brief]
- More on the extortionate and lawless $500 billion Wal-Mart class certification. [Point of Law]
- Mississippi Supreme Court rejects extortionate medical monitoring class actions. [Behrens @ WLF]
- Lawyer Daniel Hynes tries to extort $2000 from New Hampshire bar holding Ladies’ Night. [Foster's Daily Democrat (h/t B.C.)]
- Colorado Civil Justice League stops legislative attempt at giveaway to local trial lawyers. [Point of Law]
- Wisconsin court: family can be sued for babysitter’s car accident when returning home from dropping off child. [AP/Insurance Journal]
- Fox seeks to dismiss Borat suit on anti-SLAPP grounds. [Hollywood Reporter Esq. via WSJ Law Blog]
- Passaic County jury: $28M for “wrongful birth.” [NorthJersey.com]
- Former AG (and Dem) Griffin Bell: “Judicial Leadership Emerging In Asbestos And Silica Mass Torts” [WLF]
- Utah legislature considering med-mal reform for ERs. “Neurosurgeons in this town have to pay over $90,000 a year just for the privilege of getting out of bed on a Friday night to drain the blood from the brain of a victim of a drunk driver crash. And they say, I’m not gonna do it. Because the patients are sicker. The procedures are sometimes more invasive and more risky with more complications. Why take that risk if they don’t have to?” [KCPW via Kevin MD; Provo Herald]
- A little-read blog promoting a soon-to-be-pulped fictional account of tort reform is really begging for a link from us, what with three out of the last five posts making amateurish (and often false) personal attacks on this site’s authors or soliciting others to also fling poo. No dice.
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