As good an argument for the Class Action Fairness Act as any: Trial lawyers sued Compaq in Texas over an allegedly defective disk controller, though none of the plaintiffs had ever suffered a malfunction or a loss of data, alleging a violation of Texas consumer fraud law on behalf of a nationwide class.  No dice: the Texas Supreme Court threw out the case, noting that Texas law did not permit the sort of nationwide class action contemplated by the plaintiffs.  End of story?  Nope: the same trial lawyers filed the same complaint again, this time in Oklahoma state court, and asked the Oklahoma state court to apply Texas law to a nationwide class.  “Sure thing!” the court rubber-stamped–applying an ersatz version of Texas law rejected by Texas courts.  The forum-shopping was able to extract $40 million in attorneys’ fees from a questionable coupon settlement, as an Overlawyered post noted August 6.  The Summer 2008 issue of State Court Docket Watch includes my essay discussing why this is a constitutionally problematic set of decisions by Oklahoma courts–written before, though published after, the Anthony Caso analysis for WLF.

Readers may recall the landmark case in which laptop maker Toshiba agreed to a notional $2 billion settlement (and a very crisp and real $147 million in plaintiff’s legal fees) to resolve charges that its laptops could under certain extreme conditions result in loss of user data, although no real-world customer appeared to have experienced the problem. Copycat lawsuits followed against other laptop makers, the supposed glitch being by no means unique to Toshiba, and at last report (May 11, 2001 and Aug. 14, 2004) Compaq had enjoyed much success in beating suits of this sort filed by Texas lawyers.

Apparently its luck didn’t hold up forever, though, because in May Judge Tom Lucas of the Cleveland County, Oklahoma District Court approved a nominal $640 million settlement of laptop glitch claims against Compaq and its parent, Hewlett-Packard, with $40 million in attorneys’ fees to various attorneys, including Reaud, Morgan & Quinn, the Beaumont, Texas firm of Wayne Reaud. (Tom Blakey, “Local court OKs $640M class settlement in computer lawsuit”, Norman Transcript, May 16)(settlement website).

According to a paper by Anthony Caso for the Washington Legal Foundation (PDF), the change in fortunes owed much to some successful forum-shopping. It seems plaintiffs in the first rounds had attempted to form a nationwide class action on the premise that the consumer law of Texas, Compaq’s home state, could properly be applied to the claims of customers in all 50 states. The Texas courts, however, wound up rejecting that premise.

…instead of taking no for an answer from the Texas Supreme Court – the final arbiter of Texas law, the class action attorneys convinced an Oklahoma court to rule that the case should be a nationwide class action, and that class action status could be premised on the idea that Texas consumer law applied to all of the claims. Ignoring the ruling of the Texas Supreme Court, the Oklahoma courts agreed with this argument and certified the case as a nationwide class action.

Unfortunately for all of us, the United States Supreme Court declined to review the case.

And the $40 million in fees? Reaud & co. would have nothing but the best talent in to bless the fees, per the Norman Transcript account:

Testimony at the April 29 hearing in Cleveland County District Court included that of Arthur R. Miller, a renowned legal scholar and commentator on civil litigation, copyright and privacy laws. Miller, a professor to the faculty of the New York University School of Law and the NYU School of Continuing and Professional Studies, estimated the coupon redemption rate would be as high as 30 percent — more than double the average redemption rate in settlement cases.

And if actual coupon redemptions come in far below a 30 percent rate — not that we’re necessarily ever going to find out — Prof. Miller’s reputation will suffer, right?

More: Beck & Herrmann call attention to an automotive class action case (Masquat v. DaimlerChrysler, alleging defect in rack and pinion steering systems) that also took advantage of Oklahoma’s willingness to apply manufacturer’s-home-state law to fuel nationwide class actions. They write that because of that distinctive handling of choice of law, “class action plaintiffs’ counsel now gravitate to Oklahoma as moths to light.”

The apparel chain, famed for the immodesty of its catalogues and advertising, has an “Abercrombie Kids” division; the allegation is that one of its Oklahoma store managers didn’t think an Islamic religious headscarf would fit the desired employee image. The local chapter of the Council on American-Islamic Relations says it has filed an EEOC complaint on her behalf. (PRNewswire/Breitbart, Jul. 31).

P.S. For another suit involving traditional Middle Eastern garb, see Jun. 17 (claim of right to wear loose-fitting garments around food machinery).

• Contriving to give Sheldon Silver the moral high ground: NY judges steamed at lack of raises are retaliating against Albany lawmakers’ law firms [NY Post and editorial. More: Turkewitz.]
• When strong laws prove weak: Britain’s many layers of land use control seem futile against determined builders of gypsy encampments [Telegraph]
• “U.S. patent chief: applications up, quality down” [EETimes]
• Plenty of willing takers for those 4,703 new cars that survived the listing-ship near-disaster, but Mazda destroyed them instead [WSJ]
• “Prof. Dohrn [for] Attorney General and Rev. Wright [for] Secretary of State”? So hard to tell when left-leaning lawprof Brian Leiter is kidding and when he’s not [Leiter Reports]
• Yet another hard-disk-capacity class action settlement, $900K to Strange & Carpenter [Creative HDD MP3 Player; earlier. More: Sullum, Reason "Hit and Run".]
• Filipino ship whistleblowers’ case: judge slashes Texas attorney’s fee, “calling the lawyer’s attempt to bill his clients nearly $300,000 ‘unethically excessive.’” [Boston Globe, earlier]
• RFK Jr. Watch: America’s Most Irresponsible Public Figure (r) endorses Oklahoma poultry litigation [Legal NewsLine]
• Just what the budget-strapped state needs: NY lawmakers earmark funds for three (3) new law schools [NY Post editorial; PoL first, second posts, Greenfield]
• In Indiana, IUPUI administrators back off: it wasn’t racial harassment after all for student-employee to read a historical book on fight against Klan [FIRE; earlier]
• Fiesta Cornyation in San Antonio just isn’t the same without the flying tortillas [two years ago on Overlawyered]

A jury has ordered the owners of an Oklahoma charter bus to pay $2.8 million to country singer Toby Keith and other members of his family after a 2001 accident in which Keith’s father, H.K. Covel, was killed after his truck crossed the median on Interstate 35 into the path of the bus. The family’s lawyer had produced an expert witness to testify that the bus’s brakes should have been in better repair and that the driver should have been better trained. Covel’s truck had been bumped by another vehicle and the family said it filed the suit to establish that the accident wasn’t his fault. (”Jury rules Toby Keith’s father not at fault in crash that killed him”, AP/KTEN, Dec. 24).

Here’s precisely why the Class Action Fairness Act was passed: in 2000, the Texas Supreme Court ruled that Texas law did not apply to out-of-state members of a putative nationwide class in a lawsuit filed against Texas business Compaq. So what do plaintiffs do? They just filed the same lawsuit in Oklahoma, and the Oklahoma Supreme Court disregarded the Texas Supreme Court opinion (as well as the constitutional requirements of the Full Faith and Credit Clause) to certify the exact same class that the Texas court rejected, holding that Texas law did apply to the nationwide class. Yesterday, the United States Supreme Court refused to intercede, and Hewlett-Packard will now face a class of 1.7 million customers: most risk-averse corporate defendants settle rather than attempt to vindicate their rights in such a circumstance. (AP/Law.com, Oct. 10). Such multiple bites at the apple would not be allowed if the suit were brought today.

“Two Sonics and Storm season-ticket holders plan to file a lawsuit today, accusing the new team owners of defrauding ticket buyers who believed assurances that they intended to keep the teams in Seattle.” The franchises have announced plans to move to Oklahoma City, but some fans say it won’t be as much fun to watch them in the mean time knowing they’re destined to leave. Seattle personal injury lawyer Michael Myers is representing Carolyn Bechtel and Patrick Sheehy in the suit, which was arranged by Save Our Sonics and Storm, a local group trying to block the move. (Jim Brunner, Seattle Times, Oct. 1). Separately, Seattle city officials have sued on different grounds: “The city wants a court order forcing the team to play out its lease at KeyArena through September 2010 instead of paying a cash settlement to leave early.” Owners say the team lost $17 million playing in Seattle last year. (”Blame flies as city sues Sonics”, Sept. 25).

For a while now, lawyers in Minnesota, Oklahoma and elsewhere have been suing companies that make over-the-counter cold remedies containing ephedrine and pseudoephedrine on the grounds that they were aware some buyers were using the drugs as raw material for illegal methamphetamine labs. Now such litigation appears to be gaining momentum in Arkansas, where many county governments have signed up to sue Johnson & Johnson, Pfizer, and other companies. “If successful, it could open up litigation against manufacturers of other produce used in making meth, such as drain cleaners and acetone.” (E. Alan Long, “Williams updates JPs on methamphetamine litigation”, Carroll County News, May 29; and see this, on anhydrous ammonia). As of last month, twenty-two counties had enlisted in the litigation, which seeks to recoup, among other things, money spent on the processing of criminal methamphetamine cases. “What more could we have done with a million dollars a year for our county? Would that have meant a half dozen more police officers? Would that have meant a better solid waste program? Who knows, what could your county have done with an extra million dollars,” asked Judge Bill Hicks of Independence County, a backer of the suits. (”Special Report: Meth Related Lawsuit Filed Against Pharmaceutical Companies”, KAIT, Aug. 1; Pharmalot via Childs)(& welcome Megan McArdle readers).

No matter how absurd a lawsuit is, the plaintiff usually has an elaborate, ingenuous theory to explain why he deserves to be compensated for injuries caused in some convoluted, indirect way by the nefarious defendant, and the obligatory disclaimer about the case “not being about the money” is usually tacked on. Usually. And then there’s James Schlimpert, president of Oklahoma-based Garage Storage Cabinets LLC.

When asked why he brought a suit against a competitor (Don Mitchell/MGCS) for misappropriation of trade secrets and tortious interference with his company’s dealer contracts, he explained, forthrightly:

When deposed, GSC President John Schlimpert testified that his company held no trade secrets, had no exclusive dealer contracts, and had filed the lawsuit for the sole purpose of putting MGCS out of business.

“I am amazed in some respects that the plaintiff said that, and he said it more than once, said his purpose was to put them out of business,” reads the court record issued by the District Court of Payne County, Honorable Larry Brooks, judge. “I think, under the plaintiff’s stated purpose, he was bringing it just to be vexatious to the defendants. I think it’s vexatious litigation.”

Wow. Still, for anybody who wasn’t already convinced by the Roy Pearson case, the history of the suit illustrates the difficulty courts have in protecting defendants from frivolous suits.

Because the complaint, on its face, seemingly stated legitimate causes of action, the only way for Mitchell to establish that the suit was frivolous was to conduct discovery and take the deposition of the plaintiff. Then Mitchell had to get lucky; if Schlimpert hadn’t foolishly admitted the fraudulent nature of his suit, the court would almost certainly treated the suit as legitimate. (Mitchell could still have won, but wouldn’t have gotten sanctions.) Once Mitchell got lucky, he had to make a motion to the court to have the case thrown out.

Then, after having the case thrown out, Mitchell had to make a separate application to the court for sanctions — he actually botched this procedure, but the court let the issue slide — and then had to participate in a hearing to try to establish how much those sanctions should be. All of that cost more money, more attorneys fees, with no guarantee that these costs would be recouped. Indeed, in this case Mitchell asked for $49,300, and the judge awarded only $31,500, because Schlimpert was successful in finding an expert witness to convince the judge that the lower number should have been sufficient to beat his frivolous case.

Moreover, the judge refused to penalize the plaintiff’s lawyer, finding that just because Schlimpert was acting in bad faith didn’t mean his lawyer was.

And then, after all that, Schlimpert appealed. Finally, this month, the appeals court upheld the trial court’s decision. And now Mitchell has to go back to the trial court, after having spent another $8,000 on the appeal, and has to hope the judge will make him whole.

P.S. In case you were wondering: this suit was filed in May 2003. It took 17 months from the time the suit was filed until the time the judge ruled in favor of Mitchell. It took another 17 months for the judge to award sanctions to Mitchell. After Schlimpert appealed, it took yet another 17 months for the appeals court to rule. In other words, more than four years elapsed. But — as mentioned — it’s still not over, because now Mitchell has to return to the trial court, to be awarded fees because of Schlimpert’s appeal.

• Criminal charges dropped against Oregon 13-year-olds over fanny-swatting in school corridors [CBSNews.com, Malkin, KGW.com and AP; earlier]


• Elasticity of “medical error” concept: Medicare will stop paying hospitals for treatment of “reasonably preventable” injuries that happen in hospitals, such as patient falls — we all know those are preventable given enough duct tape [NCPA, Right Side of the Rainbow; and before assuming that bed sores invariably result from negligent care, read this](more: Turkewitz)


• Yale University Press beats back libel suit in California court by Muslim charity over allegations in book scrutinizing terrorist group Hamas [Zincavage]


• Law firms, including Philadelphia’s senatorially connected Kline & Specter, already advertising for clients following Mattel toy recall [Childs]


• First class action against RIAA over its scattershot anticopying suit campaign [P2PNet]


• Four Oklahoma inmates claim copyright to their own names, demand millions from warden for using those names without permission, then things really start getting wild [UK Telegraph and TechDirt via Coleman]


• UCLA’s Lynn LoPucki, scourge of corporate bankruptcy bar, has another study out documenting soaring fees [WSJ Law Blog]


• Man who knifed school headmaster to death is expected to win right to remain in Britain on grounds deporting him would violate his human rights [Telegraph]


• Among targets of zero tolerance bans: jingle of ice cream trucks in NYC, screaming on Sacramento rollercoasters [ABCNews.com]


• Does California antidiscrimination law require doctors to provide artificial insemination to lesbian client against religious scruples? [The Recorder]


• Alabama tobacco farmers got $500,000 from national tobacco settlement, though fewer than 300 acres of tobacco are grown in Alabama [five years ago on Overlawyered]

In two cases in the last few months, federal judges have ordered the government to pay the defense costs of failed health care fraud prosecutions.

In Nevada, Judge Robert C. Jones awarded about $300,000, about 30% of the defense costs, to an Idaho doctor, finding that the losing case was frivolous because, the American Medical News reports, the government’s experts contradicted other experts in the case. (There is presumably more to the story than this, as the same is true in nearly every criminal trial involving expert testimony.) Half the claims were dismissed before trial, and the others were adjudged not guilty by a jury. The government has appealed. (Amy Lynn Sorrel, “Judge rules criminal fraud case against Idaho doctor is frivolous”, Aug. 20) (h/t P.N.).

And, in Texas, Judge Lynn Hughes awarded $391,000 to an Oklahoma attorney to cover part of his defense costs after being wrongly prosecuted on 54 counts of health insurance fraud. The court criticized prosecutors for misleading the grand jury and a “reckless disregard for the truth.” Again, the government will appeal. (AP/Tulsa World, “U.S. ordered to pay OKC attorney”, Aug. 13).

• Kind thanks to Oklahoma’s largest newspaper, The Oklahoman, for an editorial recommending that readers “visit… on a regular basis” a certain website that “offers frequent updates on a legal climate gone wild. …an amusing if sad reality check”. (”Batting zero: Litigation reform strikes out” (editorial), Jul. 12; see also 100 Ideas Oklahoma, Jul. 23).


• All that fine print on contracts — what sort of legal effect does it have, and should you feel obliged to read it? I’m quoted, as are legal bloggers David Rossmiller and Ron Coleman (Katherine Reynolds Lewis, New Orleans Times-Picayune, Jul. 29, and other Newhouse papers)


• Again with the guru business, and I can’t even fold my legs properly (Joe Palazzolo, “Giuliani Burnishes Conservative Credentials With Choice of Legal Policy Advisers”, Legal Times, Jul. 25)


• I’m quoted criticizing a federal lawsuit filed against the City of New York for its use of written tests to screen aspiring firefighters’ reading and writing skills (Ari Paul, ” Accuse UFA Head Of Racial Politics; Rip Support of Fire Test”, The Chief/Civil Service Leader, Jul. 27 — not yet available to nonsubscribers). Relevant links here, here, here, and here.

• Encouraging kids’ adoption is a great thing to do, but there are right and wrong ways of going about it [U.K. Daily Mail]


• Defensive medical testing: “Every day I work as a doctor, I must choose between committing malpractice and committing insurance fraud.” [Dr. Paula Hartzell in Medical Economics]


• After serving 2+ years for consensual sex with fellow teen, Genarlow Wilson (Feb. 8, Mar. 6) may walk free, or maybe not [CNN; views of some Andrew Sullivan readers]


• “We need to eliminate nuisance lawsuits through ‘loser-pays’ provisions.” [candidate Giuliani @ NRO]


• Boston Herald (May 11, etc.) pays $3.4 million to local judge to settle libel verdict [Globe]


• Blind squirrel finds acorn dept.: American Prospect weblog promotes a good idea, abolishing peremptory challenges [Tapped; more]


• Disciplinary hearing begins against Duke DA Nifong [ABCNews.com]; you’d think lacrosse player’s out-of-town alibi might have raised a red flag [K. C. Johnson via Cernovich]


• Another flap, this time from Oklahoma, about a doc who vows to turn away malpractice-suit advocates as patients [Enid News & Eagle via KevinMD]


• No shock, Sherlock: mud-slinging, money-flinging found to be big problems in state high court races [AP]


• In that curious saga of Madison County, Ill.’s oft-suing Peach family (earlier posts here and here) Armettia Peach has settled her leaky-roof case against Granite City [M. C. Record]


• New York “plastic surgery addict” loses case claiming doctor should have counseled her against going under the knife so often [six years ago on Overlawyered]

• Jack Thompson, call your office: FBI search turns up no evidence Virginia Tech killer owned or played videogames [Monsters and Critics]


• How many zeroes was that? Bank of America threatens ABN Amro with $220 billion suit if it reneges on deal to sell Chicago’s LaSalle Bank [Times (U.K.), Consumerist]


• Chuck Colson will be disappointed, but the rule of law wins: Supreme Court declines to intervene in Miller-Jenkins (Vermont-Virginia lesbian custody) dispute [AP; see Mar. 2 and many earlier posts]


• Oklahoma legislature passes, but governor vetoes, comprehensive liability-reform bill [Point of Law first, second, third posts]


• Good primer on California’s much-abused Prop 65 right-to-know toxics law [CalBizLit via Ted @ PoL]


• “Defensive psychiatry” and the pressure to hospitalize persons who talk of suicide [Intueri]


• Among the many other reasons not to admire RFK Jr., there’s his wind-farm hypocrisy [Mac Johnson, Energy Tribune]


• “Screed-O-Matic” simulates nastygrams dashed off by busy Hollywood lawyer Martin Singer [Portfolio]


• “Liability, health issues” cited as Carmel, Ind. officials plan to eject companion dogs from special-needs program, though no parents have complained [Indpls. Star; similar 1999 story from Ohio]


• First glimmerings of Sen. John Edwards’s national ambitions [five years ago on Overlawyered]

In 1921, there were massive race riots which led to the destruction of the black section of Tulsa, Oklahoma and the murder of dozens or hundreds of blacks. (See Wikipedia for one account.) At the time, the official story exonerated local whites, blaming the riot on blacks; eventually, the whole incident was forgotten. In 1997, the Oklahoma legislature set up a commission, which issued a report four years later which found that in fact white residents, aided and abetted by the local government, were at fault.

Enter the lawyers. Eighty-two years after the incident, Johnnie Cochran, Charles Ogletree and other prominent attorneys filed a federal civil rights suit against the city of Tulsa and the state of Oklahoma on behalf of the survivors, seeking monetary damages and injunctive relief. As you might expect, courts don’t look too kindly on eight-decade old lawsuits, and so the federal district and appellate courts dismissed the suit, on the grounds that the statute of limitations had long since passed. (The Supreme Court declined to hear an appeal.)

So now the lawyers (well, not Johnnie Cochran) are in Washington, trying to get Congress to retroactively extend the statute of limitations so they can sue. Ogletree is a driving force behind the slavery reparations movement, which so far has also foundered on statute of limitations issues; if he succeeds here, be assured that he won’t be resting on his laurels.

(To be clear, unlike many of the suits we chronicle on Overlawyered, the Tulsa suit is not inherently frivolous, and it may well be legitimate to assign blame to the city and state, for actions that (unlike slavery) were illegal even at the time. But, to reiterate: eighty years.)

• More on that Edwardsville, Ill. Pizza Hut door-swing case and its attorney-complainant [Madison County Record; earlier]


• Workers at U.K. health and safety agency told not to move chairs in the office, they might hurt themselves [Daily Mail via Nobody's Business]


• Lawyer who hoped for $25 million will appeal arbitrator’s ruling awarding him only a solitary buck ($1.00) for “redundant and unnecessary” work on San Diego pension crisis [Lattman]


• New at Point of Law: Ted on Sen. Fred Thompson, Oklahoma enacts liability reform, RFK Jr. as mass-tort tout, birthing balls, and much more;


• Title IX from outer space: now it’s Virginia’s James Madison U. axeing teams [USA Today; more]


• Westchester County, N.Y. dominatrix sues police dept., saying media frenzy dashed her hopes of Wall Street career [Journal-News; more on attorney Ravi Batra]


• Parodists, retire now: ex-N.J. governor McGreevey, disgraced after hiring unqualified paramour for key safety post, appointed to teach course on ethics [Orac]


• “School choice, but only for the most irritating parents” [Coyote on Supreme Court's pending special-ed case; more]


• Will tainted-pet-food episode give lawyers their long-sought breakthrough on loss-of-companionship, other intangible damages for animal injury? [NLJ; earlier]


• Disgruntled former partner withdraws charge of impropriety over Oz breast implant fees [The Australian; Aust. Prof. Liab. Blog; earlier]


• Dr. who delivered Illinois Gov. Blagojevich’s daughter throws in the towel [three years ago on Overlawyered]

• Update: Jarek Molski’s appeal of his “vexatious litigant” status [On Point]
• Watch what you say dept.: Beaumont plaintiffs’ lawyers subpoena newspaper. [Beaumont Enterprise; Southeast Texas Record; Houston Chronicle]
• “New York’s Most Obnoxious Lawyer.” If anything, the profile is soft. [Village Voice via ATL; see Apr. 16]
• Class action phishing [Oklahoma Attorney General]
• Tales of a Dallas poker raid [Balko]
• “If I was going to go into the newspaper business all over again, I’d be the lawyer who advises the paper to fire me and free up more money for legal fees.” {Steyn]
• “If you really want to understand inequality today you must first understand Harry Potter.” [MargRev]

The Oklahoma legislature, following the lead of a number of other states, attempted to limit unfounded claims for medical malpractice by mandating that all med mal suits be accompanied by an expert’s affidavit stating the expert’s opinion that the claim possesses merit.  The Oklahoma Supreme Court has now declared that requirement to be unconstitutional.  (See Business Insurance, "Okla. Expert Opinion Law Rules Unconstitutional", Dec. 20).

The Court states two grounds for its conclusion. First, the Oklahoma Constitution bars the legislature from adopting "special laws" in which different members of the same class are treated differently.  The Court concludes that the affidavit of merit requirement distinguishes medical negligence claims from all other negligence claims, in violation of the "special law" prohibition.  Second, the Court concludes that requiring potential med mal plaintiffs to bear the expense of obtaining a medical expert’s pre-litigation opinion — the Court estimates it to be between $500 to $5,000 — creates an economic bar at the courthouse door that impedes less wealthy claimants’ access to redress, thus depriving them of due process of law.

The court’s opinion in Monica B. Zeier vs. Zimmer Inc. and Theron S. Nichols, M.D., Oklahoma Supreme Court, No. 102472 (Decided Dec. 19, 2006) — which is not quite final and official as of this writing — is accessible through the Court’s website, here.