- Ninth Circuit panel strikes down California’s Prop 8 [Volokh, Kerr, Magliocca, Lithwick, Steve Chapman]
- Judge dismisses PETA “killer whales enslaved” case [Caroline May/Daily Caller, CNN, earlier]
- “Patent Troll Claims Ownership of Interactive Web – And Might Win” [Joe Mullin/Wired, earlier; more on testimony by Web father Tim Berners-Lee] Update: Ding Dong! Jury rejects claim;
- “Further Analysis of the Bottle-Rocket Case” [Lowering the Bar, earlier]
- As patients suffer: “The War Over Prescription Painkillers,” start of a Radley Balko series [HuffPo parts one, two so far]
- Richard Epstein on federal fiat and Yale disciplinary procedure [Defining Ideas] Under new-style rules at Yale, will a professor even be aware he’s been accused and henceforth is to be “monitored”? [KC Johnson]
- Jim Copland testimony on abuses in government contingent-fee litigation [Manhattan Institute, PDF] “Parens patriae” proposal to replace class actions with state attorney general suits, but with private entrepreneurial bar still in saddle [Adam Zimmerman/Prawfs on Myriam Gilles/Gary Friedman, SSRN]
Tagged as:
animal rights,
attorneys general,
class actions,
colleges and universities,
Ninth Circuit,
patent trolls,
pharmaceuticals,
same-sex marriage,
Yale
- Washington Post pundit Dana Milbank’s lament: Obama isn’t doing enough to intimidate opponents [David Boaz, Cato]
- FDA defends itself against rising criticism on drug and device approval [NYT] NYT approaches the issue with a curious slant [Paul Rubin]
- California courts: what makes you think we need to follow SCOTUS on arbitration? [Cal Biz Lit, more, Russell Jackson] Senate anti-arbitration hearing could have used more truth in advertising [PoL]
- Pols want to fast-track favored L.A. stadium against environmental suits under California’s obstructor-friendly CEQA. Hmmm… why not fast-track everyone else too? [Gideon Kanner, Stephen Smith, SCPR, Paul Taylor, Examiner]
- State law forbids use of deadly force in defense of business property: “Burglar’s family awarded $300,000 in wrongful death suit” [Colorado Springs Gazette]
- One reason the Ninth Circuit may go off on more frolics: three-judge, one-clerk bench memos [Kerr]
Tagged as:
arbitration,
California,
criminals who sue,
environment,
FDA,
harassment law,
Ninth Circuit
I’ve got an instant analysis up at Cato at Liberty of the retailer’s big Supreme Court win today in Wal-Mart v. Dukes, the class action certification case. The Court ruled unanimously that the Ninth Circuit had jumped the gun in certifying the case as a class action, and 5-to-4 (Scalia writing) that plaintiffs had failed to assemble the evidence needed for certification. (& welcome Real Clear Politics “Best of the Blogs”, Atlantic Wire, Nicole Neily/Daily Caller, Jon Hyman, SCOTUSBlog)
More: Josh Blackman (with a comment on the Court’s recognition of the work of the late Richard Nagareda), Hans Bader, Jim Copland, John Steele Gordon. Spot-the-errors dept.: Dahlia Lithwick. Briefs and other resources on the case at SCOTUSBlog.
Tagged as:
class actions,
Ninth Circuit,
sex discrimination,
Supreme Court,
Wal-Mart,
Wal-Mart v. Dukes,
WO writings
- The Economist on the future of the legal business;
- Hairpin reversals of fortune in long-running Barbie v. Bratz doll fight [Cal Biz Lit, earlier]
- As I note in Schools for Misrule, institutional reform litigation is alive and well: Reinhardt says 9th Circuit should take over VA’s mental health efforts, Kozinski dissents [LAT, AP, The Recorder]
- Court rejects Koch suit over spoof website posing as Koch’s to make political points [EFF, earlier]
- “Romeo and Juliet” amendment could soften harsh Texas sex-offense laws [Lenore Skenazy] Law isn’t especially protective of teen boys persuaded to sign paternity declarations [Amy Alkon]
- “Disney Trademarks ‘Seal Team 6′” [Atlantic Wire]
- Great moments in human rights law: UK high court rules airplane hijackers should have been admitted to country as refugees [five years ago on Overlawyered]
Tagged as:
Alex Kozinski,
child support,
Disney,
libel slander and defamation,
Ninth Circuit,
trademarks
Developments in an emerging area of law much explored in my forthcoming book:
- “Developing Countries Could Sue for Climate Action — Study” [NYT/ClimateWire] “Do We Need Global Governance To Combat Global Warming?” [Ilya Somin/Volokh]
- From UN and oddly uncontroversial Human Rights Watch, pressure on U.S. to alter labor law in union-friendly direction [ShopFloor, Chamber Post]
- Recent academic conferences: “2009 National Forum on the Human Right to Housing” [Nov. 2009, Georgetown Law] “International and Comparative Law Review Symposium on the significance of the United Nations Convention on the Rights of Persons with Disabilities” [Loyola L.A., Mar. 2010]
- At whose expense? “UN General Assembly Invents a Right to Water and Sanitation” [GGW, BoingBoing]
- Again, some survivors of U.S.S. Cole attack on U.S. military personnel sue government of Sudan [Jay Nordlinger/NRO "Corner", related paper by Elizabeth Bahr, George Mason]
- Copying liberals’ homework, some anti-abortionists claim mantle of international human rights for their cause [NRO "Bench Memos," approvingly, via Ku/OJ]
- “An Eminently Sound Approach to (Supposed) International Human Rights Norms, from the 9th Circuit” [Volokh]
- What Keynes knew: after 92 years, Germany finally pays off the last Versailles reparations [Marian Tupy, Cato at Liberty]
Tagged as:
climate change,
international human rights,
international law,
labor unions,
Ninth Circuit,
Schools for Misrule,
United Nations
Much reaction in the comments at the San Francisco Chronicle to the Ninth Circuit’s “Chipotle Experience discriminates against the disabled” ruling. Earlier here. And Ted at PoL notes this significant passage rejected by the appeals court:
The [district] court found that Antoninetti had failed to show irreparable injury because he had not revisited either restaurant after Chipotle adopted its written policy and because his “purported desire to return to the [r]estaurants is neither concrete nor sincere or supported by the facts.” It also stated that Antoninetti’s “history as a plaintiff in accessibility litigation supports this Court’s finding that his purported desire to return to the [r]estaurants is not sincere. Since immigrating to the United States in 1991, Plaintiff has sued over twenty business entities for alleged accessibility violations, and, in all (but one) of those cases, he never returned to the establishment he sued after settling the case and obtaining a cash payment.”
More on ADA filing mills here. And I’ve now got a longer post up at Cato at Liberty comparing the policy problem of serial ADA complaints to that of patent trollery, mass filing of “citizen suits”, and the business model of recently formed copyright-holder RightHaven. More: Carl Horowitz, NLPC.
Tagged as:
ADA filing mills,
disabled rights,
Ninth Circuit,
restaurants
Among reactions and links to my Cato piece yesterday: David Frum, Brian Doherty/Reason “Hit and Run”, Richard Epstein/Ricochet, LoTempio Law Blog/Blawg Review #274, John Stossel/Fox Business (with kind words), Steve Bussey (ditto, with a historic-preservation-related reader comment).
In other news, a Ninth Circuit panel (Friedman, Nelson, Reinhardt) has ruled that the “Chipotle Experience” at Chipotle Mexican Grill, in which customers can watch their food being made behind a glass partition, violates the ADA “because the restaurants’ 45-inch counters are too high. The company now faces hundreds of thousands of dollars in damages.” [AP, Reuters, decision in Antoninetti v. Chipotle courtesy Leagle]. More: Ted at PoL and my followups here and at Cato at Liberty.
Tagged as:
disabled rights,
Ninth Circuit,
restaurants
Some 60,000 cell-phone users who had signed up to receive “promotional messages” from Nextones.com in order to get a free ringtone got just such a text message on January 18, 2006 advertising a cell-phone-related Stephen King book. This resulted in a class action that was thrown out on the grounds that plaintiffs had agreed to “terms and conditions” permitting such cell-phone advertising; moreover, the federal law prohibiting the use of an automatic telephone dialing system applied only to systems that dialed numbers randomly or sequentially, and the defendants were operating off of a list of opt-in telephone numbers.
The Ninth Circuit reversed. The issue, it said, was not whether phone numbers were sequentially dialed, but whether the equipment used could hypothetically sequentially dial telephone numbers. It also held that there was a disputed issue of fact whether King’s publisher, Simon & Schuster, counted as an “affiliate.”
Faced with the prospect of going to trial and the risk of $500 to $1500 damages assessed for each call (i.e., $30 to $90 million in damages) defendants have settled. There is a settlement fund of $10 million established, plaintiffs can submit claims that will pay $175 (or a pro rata amount if the fund is exhausted) and plaintiffs’ attorneys will ask for $2.725 million from that fund.
This is superficially all well and good, but if the claim response is the all-too-typical 1%, the attorneys may well collect 27 times as much as the class will get. Indeed, assuming that $1 million for notice and administration disappears from the fund, the full $10 million won’t be paid out unless over half the class signs up. There is also a mysterious $250,000 “cy pres” award whose destination is not specified in the notice or in the settlement.
If you’re a class member who received the text message in 2006, congratulations, you can get free money: fill out a claim form before September 20 (and kudos to the parties for allowing claimants to do it online); if you’re a class member who has concerns about the settlement, contact me.
Tagged as:
advertising,
cellphones,
class action settlements,
class actions,
cy pres,
Ninth Circuit
Tagged as:
Australia,
Brazil,
fraud,
Kentucky fen-phen settlement fraud,
libel slander and defamation,
McDonald's,
Nevada,
Ninth Circuit,
patent law,
Phoenix,
police,
third party liability for crime
“The 9th U.S. Circuit Court of Appeals in San Francisco ruled in favor of the retailer, finding that plaintiff Byron Chapman does not have standing to pursue claims for alleged barriers that he had not personally encountered and where he was not deterred from entering the store.” [Cynthia Lambert, California Civil Justice; Byron Chapman v. Pier 1 Imports (U.S.), Inc. opinion (PDF)]
Tagged as:
ADA filing mills,
Ninth Circuit
- Significant if true: Ninth Circuit may have finally decided that judges should stop micromanaging Forest Service timber sales [Lands Council v. McNair, Adler @ Volokh]
- GMU lawprof/former Specter aide whose law review output grabbed big chunks of others’ work without attribution doesn’t belong on the federal bench, though he may have a future at Harvard Law [Liptak, NYT; WSJ law blog]
- Update on gift card class actions (earlier) filed by Madison County, Ill.’s mother-daughter team of Armettia Peach and Ashley Peach [MC Record; more background here and here]
- If you regard demand letters from attorneys as menacing and aggressive, maybe you’re one of those “lawyer-haters” with cockamamie notions of loser-pays [Greenfield, and again]
- Just wait till Public Citizen goes after those “charities” that spend more on telemarketing than they raise by it — oh, wait a minute [LA Times via Postrel]
- U.K.: nursery schools urged to report as “racist” incidents in which pre-schoolers say “yuk” about spicy foreign foods [BBC, Telegraph, Taranto; the author speaks, via Michael Winter, USA Today]
- Blawg Review #167 creatively assigns each of 50+ blog posts to its own “state”, though it took some doing to associate us with “Maryland” [Jonathan Frieden, E-Commerce Law]
- I will NOT go around saying Miami-Dade judges are being paid off… I will NOT go around saying Miami-Dade judges are being paid off… [Daily Business Review, earlier]
- “‘I’m thinking of getting disability.’ … This individual figured that [it] was tantamount to a career choice”. [physician blogger Edwin Leap]
Tagged as:
environment,
Florida,
Harvard,
law schools,
Madison County,
nastygrams,
Ninth Circuit,
political correctness,
Public Citizen,
United Kingdom
- New FASB regulation may provide fodder for trial lawyers: publicly disclose your internal analysis of liability (thus giving away crucial settlement information and attracting more lawsuits), and/or face lawsuits when your disclosure turns out to be incorrect. [CFO.com; CFO.com; NLJ/law.com ($); FASB RFC]
- NBC settles a “You-made-me-commit-suicide-by-exposing-my-pedophilia” lawsuit. [LA Times; WSJ Law Blog; Conradt v. NBC Universal]
- A victim of overwarning? 17-year-old loses hat on Six Flags Batman roller-coaster ride, ignores multiple warning signs to jump multiple fences into unauthorized area, retrieves hat, loses head. [FoxNews/AP; Atlanta Journal-Constitution; TortsProf]
- Lots of Ninth Circuit reversals this term, as per usual. [The Recorder/law.com]
- A no-Twinkie defense doesn’t fly in a maid-beating case. [CNN/AP via ATL]
- The Chinese government demonstrates that it can enforce laws against IP piracy when it wants to [Marginal Revolution]
- “Justice Scalia said he thought that the United States was ‘over-lawed,’ leading to too many lawyers in the country. ‘I don’t think our legal system should be that complex. I think that any system that requires that many of the country’s best minds, and they are the best minds, is too complex. If you look at the figures, where does the top of the class in college go to? It goes into law. They don’t go into teaching. Now I love the law, there is nothing I would rather do but it doesn’t produce anything.’” [Telegraph]
- Above the Law commenters decidedly unimpressed by my looks. Looking forward to feminists rushing to my defense against “silencing insults.” [Above the Law]
Tagged as:
accounting,
defense lawyers,
media,
Ninth Circuit,
overwarning,
sued if you do,
suicide,
Supreme Court,
trademarks
