• More on that New Mexico claim of “electro-sensitive” Wi-Fi allergy: quoted complainant is a longtime activist who’s written an anti-microwave book [VNUNet, USA Today "On Deadline" via ABA Journal]
• Your wisecracks belong to us: “Giant Wall of Legal Disclaimers” at Monsters Inc. Laugh Floor at Disneyland [Lileks; h/t Carter Wood]
• New at Point of Law: AAJ commissions a poll on arbitration and gets the results it wants; carbon nanotubes, tomorrow’s asbestos? California will require lawyers operating without professional liability insurance to inform clients of that fact (earlier here and here); and much more.
• Actuaries being sued for underestimating funding woes of public pension plans [NY Times via ABA Journal]
• City of Santa Monica and other defendants will pay $21 million to wrap up lawsuits from elderly driver’s 2003 rampage through downtown farmers’ market [L.A. Times; earlier]
• Sequel to Giants Stadium/Aramark dramshop case, which won a gigantic award later set aside, is fee claim by fired lawyer for plaintiff [NJLJ; Rosemarie Arnold site]
• Privacy law with an asterisk: federal law curbing access to drivers license databases has exemption that lets lawyers purchase personal data to help in litigation [Daily Business Review]
• Terror of FEMA: formaldehyde in Katrina trailers looks to emerge as mass toxic injury claim, and maybe we’ll find out fifteen years hence whether there was anything to it [AP/NOCB]
• Suit by “ABC” firm alleges that Yellow Book let other advertisers improperly sneak in with earlier alphabetical entries [Madison County Record]
• Gun law compliance, something for the little people? A tale from Chicago’s Board of Aldermen [Sun-Times, Ald. Richard Mell]
• Think twice about commissioning a mural for your building since federal law may restrain you from reclaiming the wall at a later date [four years ago on Overlawyered]

“A group in Santa Fe says the city is discriminating against them because they say that they’re allergic to the wireless Internet signal. And now they want Wi-Fi banned from public buildings. … [Arthur] Firstenberg and dozens of other electro-sensitive people in Santa Fe claim that putting up Wi-Fi in public places is a violation of the Americans with Disabilities Act. The city attorney is now checking to see if putting up Wi-Fi could be considered discrimination. But City Councilor Ron Trujillo says the areas are already saturated with wireless Internet.” (Gadi Schwartz, KOB, May 20).

• Plenty of reaction to our Tuesday post questioning the NYT school-bullying story, including reader comments and discussion at other blogs; one lawprof passes along a response by the Wolfe family to the Northwest Arkansas Times’s reporting [updated post]
• Geoffrey Fieger, of jury-swaying fame, says holding his forthcoming criminal trial in Detroit would be unfair because juries there hate his guts [Detroit News]
• Another Borat suit down as Judge Preska says movie may be vulgar but has social value, and thus falls into “newsworthiness” exception to NY law barring commercial use of persons’ images [ABA Journal]
• Employer found mostly responsible for accident that occurred after its functionaries overrode a safety device, but a heavy-equipment dealer also named as defendant will have to pay more than 90 percent of resulting $14.6 million award [Bloomington, Ill. Pantagraph]
• New Mexico Human Rights Commission fines photographer $6600 for refusing a job photographing same-sex commitment ceremony [Volokh, Bader]
• “Virginia reaches settlement with families of VA Tech shooting victims” [Jurist]
• Roger Parloff on downfall of Dickie Scruggs [Fortune]
• Judge in Spain fined heavily and disbarred for letting innocent man spend more than a year in jail [AP/IHT, Guardian]
• Hard to know whether all those emergency airplane groundings actually improved safety, they might even have impaired it [Murray/NRO "Corner", WSJ edit]
• “Freedom of speech is an American concept, so I don’t give it any value” — tracking down the context of that now-celebrated quote from a Canadian Human Rights Commission investigator [Volokh]
• Who was it that said that lawyers “need to be held accountable for frivolous lawsuits that help drive up the cost of malpractice insurance”? Hint: initials are J.E. [three years ago on Overlawyered]

New Mexico in recent years has been the scene of a little cottage industry in class-action settlements over insurance companies’ allegedly inadequate disclosure of charges on installment payments. Settlements often involve pledges to inform consumers more fully, modest coupons, and impressively large legal fees to the circle of law firms that file the cases. According to the U.S. Chamber of Commerce, nearly every large insurer selling life and disability coverage has been hit with a New Mexico class action in the past decade. Now, for the first time, the state high court is set to review one such settlement, in a case against First Colony/Genworth. The “settlements have not been free of controversy, with even some policyholder-plaintiffs describing the lawsuits as frivolous and the attorney fees as excessive”; cumulatively they have brought the class counsel more than $41 million in fees. (Thomas J. Cole, “New Mexico’s Supreme Court to Review Award of $6.5 Million in Attorney Fees in Suits Against Insurer”, Albuquerque Journal, Feb. 14 courtesy NM Legal Reform; earlier).

Three years ago we prematurely reported that sanity had (as of that point) prevailed in the New Mexico case where firefighters and emergency medical personnel, otherwise uninjured, were seeking to sue El Paso Natural Gas over the emotional trauma of witnessing the disaster scene after a 2000 pipeline explosion. Earlier this month, however, the New Mexico Supreme Court ruled the other way, poking a big hole in the “firefighters’ rule” which traditionally barred recovery by rescuers against those who cause accidents. Chief Justice Edward Chavez wrote that to throw out the emotional-distress suits would be to “reward reckless or intentional acts”. The suits now head to trial. (Stella Davis, “Responders can sue in pipeline explosion”, Carlsbad Current Argus, Dec. 5).

But first, a greeting, and a thank you to the Overlawyered boys for inviting me to guest-blog this week. I’m Ron Coleman, proprietor of the LIKELIHOOD OF CONFUSION® blog on trademark, copyright and free speech law, and a contributor to Dean’s World and other things. In short, I love practicing law so much that I spend most of the day blogging.

So much for self-promotion (if you can call it that) — now to the promotion of animal cruelty — it’s all the rage, after all:

A new state law against fighting roosters violates a treaty that ended the Mexican-American War, a cockfighting association claims in a lawsuit.

The New Mexico Gamefowl Breeders Association and six businessmen argued that the law infringes on rights protected under the 1848 Treaty of Guadalupe Hidalgo, which made New Mexico a U.S. territory.

The lawsuit contends the treaty guarantees civil, political and religious rights, privileges and immunities to the people of New Mexico.

Many of the association’s 2,000 members “are devoted to rural lifestyles, of which gamefowl breeding and-or participating in gamefowl shows and fights are, in New Mexico, long-standing, culturally bound and significant activities,” the lawsuit said.

Wow, some treaty! It guarantees the right to — well, to do what, exactly? Let’s ask the Humane Society:

Cockfighting is a centuries-old blood sport in which two or more specially bred birds, known as gamecocks, are placed in an enclosure to fight, for the primary purposes of gambling and entertainment. A cockfight usually results in the death of one of the birds; sometimes it ends in the death of both. A typical cockfight can last anywhere from several minutes to more than half an hour.

The birds, even those who do not die, suffer in cockfights. The birds cannot escape from the fight, regardless of how exhausted or injured they become. Common injuries include punctured lungs, broken bones, and pierced eyes. Such severe injuries occur because the birds’ legs are usually fitted with razor-sharp steel blades or with gaffs, which resemble three-inch-long, curved ice picks. These artificial spurs are designed to puncture and mutilate.

Nice. And, best of all, tanto auténtico! What judge could resist such a rootsy appeal to heartless blood lust? Plus there’s dinero at stake, too.

Okay, so what’s the legal theory again? Oh, yeah, that’s right: This novel civil right — the right to engage in any “long-standing, culturally bound and significant activities” — is enshrined in the Treaty of Guadalupe Hidalgo. Well, here’s the Treaty: You see the clause guaranteeing the inalienable right to “long-standing, culturally bound and significant activities”?

No? Okay, well how about just the piece about roosters? Any specifications for ice picks?

Me neither. The only thing I remember about the unlikely juxtaposition of ice picks and Mexico is a certain unpleasantness involving some murderous Bolsheviks. Now, we saw then that “breaking a few eggs” can be unpleasant, but these poor chickens deserve better. Plaintiffs in this lawsuit, however, don’t.

UPDATE: Wow. There’s more to this civil right than I thought!

“House Republicans are pushing legislation to protect airline passengers from lawsuits for reporting suspicious behavior that might be linked to a terrorist attack. Rep. Steve Pearce, New Mexico Republican, introduced the Protecting Americans Fighting Terrorism Act of 2007 on Thursday, a week after a lawsuit was filed by a group of Muslim imams who were taken off a US Airways flight in November.” (Dec. 6, Mar. 15, Mar. 22; Audrey Hudson, “Hill bill protects flying public”, Washington Times, Mar. 24). Syndicated columnist and blogger Michelle Malkin has been on top of developments (”The John Doe Manifesto”, National Review Online, Mar. 28; blog posts, Mar. 24, Mar. 27, Mar. 28).

The Minneapolis Star-Tribune has a response from the imams:

The imams’ Manhattan attorney, Omar Mohammedi, said the suit “is directed at the airlines and the airport, not passengers.”If someone has a legitimate security concern, we’re not going after that person,” he said. “Or if someone saw them praying and reported that out of ignorant fear, we aren’t going to target that.

“But if someone lied and made a false report with the intention to discriminate, such as in saying the imams made anti-American comments and talked about Iraq when in fact nothing like that ever happened, we have the right to challenge that,” Mohammedi said.

(Pamela Miller, “Attorney offers aid to defendants in imam suit”, Minneapolis Star-Tribune, Mar. 22). USA Today has editorially weighed in on the passengers’ side: “This legal tactic seems designed to intimidate passengers willing to do exactly what authorities have requested — say something about suspicious activity.” (”Our view on post-9/11 travel: Clerics’ lawsuit threatens security of all passengers”, Mar. 27; opposing view by Arsalan Iftikhar). See also Marc Sheppard, American Thinker, Mar. 27.

P.S. And now AP is on the case (”Imams removed from flight may sue passengers”, AP/MSNBC, Mar. 30), and Sen. Fred Thompson (”Suing for Silence”, National Review Online, Mar. 29). The imams have now amended their complaint to cast a seemingly less capacious net for John Does: Audrey Hudson, “Imams narrow target of ‘Does’”, Washington Times, Mar. 31.

• French court acquits satirical weekly that printed Mohammed cartoons (see Feb. 7) [DW]


• Subprime panic: “Does no one remember what it was like to get a mortgage before they were so easily securitized?” [Coyote channeling Tabarrok, Kirkendall and our own Ted]


• Food safety regulators have their eye on Amish bakers at farmers’ markets [AP/Ledger-Enquirer]


• Attorney Harpreet Singh Brar, notorious for mass filings against small business (Jun. 4, 2006, etc.), ordered “inactive” by California bar [Calif. Wage and Hour Law]


• “The litigation was much thicker than the music”, hence the downfall of 60s girl-group The Shangri-Las (Remember, Leader of the Pack) [NY mag, Althouse]


• Our comments section hits the big time [Chicago-Sun Times quotes Richard Nieporent on South Park]


• Special-needs teen brutally murders fellow student in affluent Boston suburb; did school officials keen on “mainstreaming” him downplay signs of trouble? [Globe, more, AP]


• New Mexico is 49th state to ban cockfighting, sport beloved of early American presidents [Walker @ Reason, Zincavage]


• Rudy Giuliani still vividly remembers defending NYC hospital lawsuits [Point of Law]


• “[Plaintiff husband] denied that he had been abducted by aliens, but stated that his [plaintiff] wife had been” [Cernovich]


• Forced marriage: don’t assume it only happens a world away [Dalrymple, Spectator]


• Lawyers stage sham trial aimed at inculpating third party [five years ago on Overlawyered]

Yes, it’s regular Overlawyered mentionee Jack Thompson (Aug. 17, Jul. 24, Jun. 25, etc.) at it again — how did you guess? This time he wants $600 million from Take-Two Interactive, Sony and other defendants over the rampage by 14-year-old Cody Posey on newsman Sam Donaldson’s New Mexico ranch, which left three members of the youth’s family dead in July 2004. It seems Posey had “obsessively” played the game Grand Theft Auto: Vice City. (AP/Washington Post, Sept. 25)(via KipEsquire). More: Lattman, Sept. 27.

Under the terms of a bill proposed in the New Mexico legislature, if a “drinker is caught with a blood alcohol content (BAC) exceeding 0.14, the bar owner will be deemed legally responsible and may lose his license” if the bar had served the drinker within the previous two hours. According to Nobody’s Business, this implies that bar owners in New Mexico who don’t want to break the law may be well advised to develop “paranormal gifts. …they must know if a customer who leaves their establishment intends to drink more over the next two hours — perhaps at a friend’s home.” (Jul. 10; “Proposed liquor law changes draw comments”, AP/Los Alamos Monitor, Jul. 6).

Animal rights activists on the march against owners and breeders of dogs and other animals in Bozeman, Montana, and Albuquerque, New Mexico (Stephen Bodio’s Querencia, May 24).

New Mexico state judge Daniel Sanchez last Tuesday agreed to a request by David Letterman’s lawyers to lift a restraining order previously entered on behalf of a Santa Fe woman who had accused the TV host “of using special code words such as ‘Oprah’ to woo her into marriage” (see Dec. 22, Dec. 23) (Stephen M. Silverman, “‘Absurd’ Letterman Restraining Order Tossed”, People, Dec. 28). Some comments: Wendy McElroy, Third Edge of the Sword, Meryl Yourish, In the Lion’s Den.

Thirteen courts have reported opinions looking at product-liability/failure-to-warn claims alleging that coffee was “unreasonably dangerous” and the provider was thus liable when the plaintiff spilled coffee on him- or herself. Twelve courts correctly threw the case out. Another trial court in New Mexico, however, didn’t, and became a national icon when the jury claimed that Stella Liebeck deserved $2.9 million in compensatory and punitive damages because McDonald’s dared to sell the 79-year-old hot 170-degree coffee.

The case is ludicrous on its face, as a matter of law and as a matter of common sense. Eleven years later, this should be beyond debate, yet somehow, it keeps coming up in the blogs, and we keep having to refute it. (Dec. 10, 2003, Aug. 3, 2004, Aug. 4, 2004).

Amazingly, rather than argue that the tort system shouldn’t be judged by the occasional outlier, the litigation lobby has succeeded in persuading some in the media and on the left that the Liebeck case is actually an aspirational result for the tort system, and, not only that, but that anyone who says otherwise is just a foolish right-winger buying into “urban legends” (Aug. 14, Aug. 16, and links therein). Even the Mikkelsons at snopes.com have made the mistake of buying into the trial lawyer hype, calling the case “perfectly legitimate” and effectively classifying the common-sense understanding of the case as an urban legend.

But the real urban legend has to be that the case has any legitimacy. Worse, this urban legend is being taught to a generation of law students by professors like Jonathan Turley and Michael McCann. Now, any peripheral mention of the McDonald’s coffee case provokes a gigantic backlash from the left, who, while congratulating themselves on their seeing past the common-sense view of the case and being above urban legends, spread a number of urban legends of their own about the case. Witness the 200-plus comment outpouring at Kevin Drum’s Political Animal blog. This post provides a partial rebuttal to some of the things said in that thread, and will hopefully serve as a FAQ in the future.

Continue Reading »

By enacting “cheeseburger bills” (see Mar. 13, Mar. 17 and Dec. 3, 2004) state legislators can attempt to make clear (in case courts had any doubt about the matter) that there is no cause of action against food purveyors for causing obesity in those who partake of their wares. Such bills have been making progress around the country, with 12 state legislatures enacting them in 2004 and others likely to follow this year. New Mexico, however, will not be among those states: both the Senate Judiciary Committee and the House Consumer and Public Affairs Committee have voted to shelve the idea on narrow party-line votes, with Democrats opposed to the legislation and Republicans in favor. “I don’t dispute the idea of personal responsibility, but I dispute the notion that any tort action is on its face frivolous,” said Rep. Gail Beam (D-Albuquerque), who chairs the House consumer committee. The bill had earlier passed the Senate Consumer and Public Affairs Committee. Its sponsors, Sen. Steve Komadina (R-Corrales) and Rep. Terry Marquardt (R-Alamogordo), had given it a locally adaptive title: the “Right To Eat Enchiladas Act”. (”Legislative roundup”, The New Mexican (Santa Fe), Feb. 23; Erin Madigan, “‘Cheeseburger’ bills fill state lawmakers’ plates”, Stateline.org, Feb. 15).

Consider scenic New Mexico, which runs an extra-long statute of limitations and thus will welcome claims extinct elsewhere. The tactic didn’t work, however, for ex-Congressional wife Carolyn Condit, who went there to sue USA Today to escape other states’ limits on stale claims. Unfortunately for her case, she could offer no evidence that the allegedly libelous article had circulated in N.M., “since only the first edition of USA Today was distributed in the state and the story appeared only in the second edition,” as AP noted; a federal judge accordingly threw out her suit last August for lack of jurisdiction (”Judge dismisses libel suit by wife of Gary Condit”, AP/North County Times, Aug. 5, via CalBlog, Jan. 14 and Jan. 26). For New Mexico forum-shopping by the plaintiffs in the “Dazed and Confused” case, see Ted’s Oct. 12 post (also Dec. 8). For more details on the lack of connection of that case to New Mexico, see the memorandum of defendants in support of motion to dismiss (courtesy Courthouse News (PDF)).

Philip Howard’s Common Good organization has announced (Dec. 16) its second annual Gatekeeper Awards for judges who rule inappropriate litigation out of court. (For the first round, see May 12, 2004). Winners this year include:

* An Indianapolis judge who ruled against an attempt to sue a cell phone company over an accident that a driver got into while using a cell phone;

* A New Mexico judge who, citing the privileges arising from the constitutional separation of church and state, refused to allow a surviving family to sue a Roman Catholic priest over allegedly insensitive remarks at a funeral which they said implied that the deceased was headed for Hell;

* A New Jersey judge who refused to allow a suit for negligent parental supervision after a five-year-old boy accidentally collided with and injured an sixteen-month-old girl at a block party;

* A Connecticut Supreme Court judge who wrote an opinion rejecting the doctrine of “self-compelled publication” in employment law, under which dismissed workers sue over injury to their reputation arguing that, whether or not their former employer has said anything damaging about them to outsiders, they have been obliged to spread the defamatory allegations themselves in the course of explaining themselves to potential future employers (see Aug. 10, 1999).

If you see Bobby Wooderson, Andy Slater or Richard Floyd of Huntsville, Texas, don’t ask them if they wanna smoke a joint. The three former classmates of “Before Sunset” director Richard Linklater have decided, eleven years after the fact, that the Linklater movie “Dazed and Confused” defames them by using similarly named characters. As evidence of his emotional distress, Wooderson cites the fact that his son was asked for autographs by his Harvard classmates. (But how did they find out if his son wasn’t bragging about the coincidence?) Another plaintiff told a desk clerk that he was “the guy from ‘Dazed and Confused’” and was supposedly mobbed by a lobby full of fans–no doubt because New Yorkers are so enthralled by the sight of such a celebrity. The three are so upset that people associate them with a movie that did $8 million in box office in 1993 that before they served Linklater with the suit, they had their attorneys issue a nationally-publicized press release. They’ve sued in New Mexico, because Texas law doesn’t allow one to wait eleven years before suing for defamation. Actor Wiley Wiggins complains about “the sad sacks back in Huntsville who are trying to cash in 11 years later over vaguely having something to do with a movie.” (Andrew Tran, “Modified names spur ‘Dazed’ lawsuit”, Daily Texan, Oct. 12; Tom Waddill, “Three Huntsville residents file suit over negative resemblances in popular cult film”, Huntsville Item, Oct. 11; Chris Rush Cohen blog, Oct. 8).

Full disclosure: I once represented co-defendant Universal years ago. But that was about the Grinch.

“A former Canadian sailor will not be allowed to sue Swissair for the trauma he suffered following the crash of Flight 111 in 1998, a Nova Scotia Supreme Court judge ruled today. Lorne Joudrey, 40, had argued that the airline should compensate him for the psychological damage that resulted from his role in the recovery operation in the days after the jet plunged into the ocean near Peggy’s Cove, N.S., killing all 229 people aboard.” (”Ex-sailor can’t sue Swissair over trauma”, Canadian Press/Toronto Star, Jul. 7). For a similar ruling from a federal judge in New Mexico, see Apr. 1.