- Litigation over high-tech products is rife, but major benefits for consumers can be hard to discern [Low End Mac]
- “United settles with female ex-pilot who found p0rn in cockpits” [Obscure Store]
- California suit charges negligent “laying on of hands” at church service [Lowering the Bar]
- UN resolution against “defamation of religion” imperils free speech [Paula Schriefer, Freedom House/CSM, Steyn/NR "Corner", National Secular Society (U.K.), Ilya Somin @ Volokh
- DivorceNetwork.com, social networking for those caught up in family law battles? [Ambrogi, Legal BlogWatch]
- Prosecutors behaving badly in Wayne County (Mich.), Miami, Santa Clara County [Radley Balko, Reason "Hit and Run"]
- After nine years, the notorious Bill Lerach California-unfair-competition-law suit against Kwikset (over several screws from Taiwan in a lock marked “Made in America”) finally winds down [California Civil Justice, earlier]
- Oklahoma AG Drew Edmondson to poultry companies: my pals will bankrupt you with massive verdicts unless you settle [Rizo/Legal NewsLine; more]
Posts tagged as:
s. 17200
That’s the explanation given by Charles J. O’Byrne’s lawyer for why his client didn’t file income taxes for year after year. I’ve never tried that one myself, but then, I’m not the chief aide to the governor of the state of New York, the way O’Byrne is. He has no plans to resign from his position. (Nicholas Confessore and Jeremy W. Peters, “Governor’s Aide Had ‘Late-Filing Syndrome,’ Lawyer Says”, New York Times, Oct. 23).
Relatedly or otherwise, Carolyn Elefant at Legal Blog Watch notes (Oct. 22) that Harpreet Singh Brar, known to Overlawyered readers for his abusive mass mailing of demand letters to California businesses,
came up with an even better defense to charges of failure to file tax returns on behalf of himself and his professional corporation: ineffective assistance of counsel. Sounds promising, except when you consider that Brar is an attorney who represented himself at trial. On appeal, he’s argued that he did not knowingly waive his right to counsel, and that he may have been under the influence of drugs and alcohol at the time of the waiver. Not surprisingly, the appeals court rejected Brar’s argument. (Source: Metropolitan News-Enterprise.)
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The mills of California lawyer discipline grind exceeding slow: five years after the scandal over Brar’s mass-mailing of extortionate demands to small businesses under the state’s unfair business practices act, and after Brar’s jailing for federal tax evasion as well as well as contempt of court for pursuing legal harassment, a state bar judge has recommended that he lose his license to practice. (In the matter of Harpreet Singh Brar, PDF, via CJAC). Earlier here, here, here, here, etc.
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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The New York Times “Small Business” section looks at how Garden Grove, Calif. liquor store owner Vinod Kapoor fought back when targeted by attorney Harpreet Brar, famed for his lawsuits demanding legal fees from small businesses over alleged regulatory infractions (see Aug. 20, 2002, Jul. 22, 2003, Nov. 1, 2004). Included are some updates:
In February, Judge Polos [Peter J. Polos of Orange County Superior Court] sent Mr. Brar to jail for two weeks for violating his order [not to name multiple businesses in one suit], calling him “an extortionist.”Mr. Brar said his experience in jail was a “nightmare,” which he said included watching several inmates be beaten by guards. Mr. Brar said he planned to represent several of them.
On April 16, Mr. Brar was suspended from practicing law for 30 days and placed on probation for two years for filing a frivolous motion and appeal against the attorney general and for using the courts as a delaying tactic, according to Kristin Ritsema, one of several supervising trial counsels at the state bar.
“I think he is a huge threat to the public,” Ms. Ritsema said.
Another local liquor store owner, Herve Domange, who is from Paris, said: “You couldn’t do this in France. In France, these lawsuits would not be possible. But I don’t want to say too much. I’m afraid I might get sued.” (Regan Morris, “Picking the Wrong Mom and Pop to Sue”, New York Times, Jun. 1).
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Three years ago California’s notorious Trevor Law Group was found to be mass-mailing demand letters to small businesses alleging violations of the state’s ultra-liberal s. 17200 unfair business practices act, then settling the complaints for cash. A major furor ensued, and the state bar and Attorney General Bill Lockyer made gestures toward reforming the law to prevent law firms from running “shakedown” practices. But did it work? Mike Cernovich notices that a law firm has placed an employment ad on Craigslist seeking “additional counsel” to handle an “expanding workload”. What kind of workload? Well, it’s “primarily in the practice of wage and hour law inclusive of class actions … almost all [of our] cases are settled and are rarely tried.”
That business about settling rather than trying “almost all cases” got Cernovich’s suspicions up, and then he “saw something that made my jaw drop:”
In assessing the nature of the work and return on time spent it is helpful to keep in mind that the burden of proof is always on the employer to establish that he has paid the correct wages. The law requires that the employer keep accurate and timely maintained records that show hours worked and amounts paid. Failure to maintain such records is almost always at the heart of the case ….Furthermore the employer will be liable for our legal fees if he is unable to defense the case. These two elements [the inability to prove us wrong and threat of attorneys fees] provide our clients with extraordinary leverage to resolve the matter.
Cernovich reads this as amounting to: “we sue employers knowing that it’s unlikely they’ll be able to produce records that will prove us wrong. … In other words, let’s just sue someone, hope he can’t produce any employment records to contradict us, threaten him with attorneys fees, and then settle the case post haste.” Or is he being too suspicious? (Mar. 8). (Updated/corrected shortly after posting to fix a mistake on my part about who placed the Craigslist ad; also retitled next morning.)
More on Trevor Law Group here and here. More on wage and hour law: Mar. 10, Jan. 9 and links from there.
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Just over a year ago, following numerous scandals about law firms’ filing of mass shakedown suits based on California’s s. 17200 unfair-competition law (UCL), the state’s voters curtailed somewhat the law’s extortive potential by requiring that actual harm to a complainant be shown. Last month, a California appeals court gave the nod to a second, potentially powerful way of restraining unwarranted s. 17200 suits, namely countersuits from outraged defendants. As Kimberly Kralowec notes (Dec. 20), “the Court of Appeal held that the litigation privilege did not bar a suit against lawyers accused of filing Trevor-like ’shakedown’ suits under the former UCL. [The Trevor Law Group was the most notorious filer of shotgun UCL suits -- ed.] In a now-familiar irony, the lawyers were themselves sued for violating the UCL, as well as for intentional interference with prospective economic advantage.” The case (Word document format) is American Products Co. v. Law Offices of Geller, Stewart & Foley, LLP.
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Tom Leykis’s highly successful Westwood One radio show is geared to reach men 25-34, an advertiser-coveted demographic. When Marty Ingels, a 67-year-old talent agent and former sitcom actor (1962’s I’m Dickens, He’s Fenster) called in to the show, he was eventually put on the air, but Leykis launched into a series of japes poking fun at his age. Ingels proceeded to sue under California’s super-broad Unruh civil rights act and its equally super-broad s. 17200 unfair competition law, but an appeals court has now agreed with the broadcaster’s request to throw out the suit as violative of the state’s SLAPP statute, which is aimed at restricting some lawsuits that threaten free speech. (Kenneth Ofgang, “C.A. Rejects Age Bias Suit Over Exclusion From Radio Talk Show”, Metropolitan News-Enterprise, May 31; Ingels v. Westwood One, opinion in PDF format courtesy FindLaw; Silicon Valley Media Law Blog, May 26).
Animal-rights extremist group PETA has failed in its effort to invoke California’s s. 17200 unfair-practices act to suppress a state advertising campaign characterizing California dairy products as coming from “happy cows”. Without comment, the state Supreme Court has denied review of an appeals court decision throwing out the lawsuit, which had held that official government activity (in this case that of the state’s farmer-funded milk advisory board) is not covered by the statute (see Nov. 30, 2004 and Jan. 16, 2005). (Bob Egelko, “State justices refuse PETA a hearing on the life of cows”, San Francisco Chronicle, Apr. 21).
California’s s. 17200, while handy in kneecapping private businesses which try to defend themselves in public controversies, can’t be used to silence speech by government: “An animal rights group’s challenge to a ‘Happy Cows’ advertising campaign by a state advisory board was rejected by a California appeals court in San Francisco today. The Court of Appeal said that a government entity can’t be sued for false advertising under the state’s Unfair Business Practices Act.” (”Animal rights group loses lawsuit against ‘Happy Cows’ commercial”, San Mateo County Times, Jan. 12; Mike McKee, “PETA Loses Suit Over California Cow Ads”, The Recorder, Jan. 13)(see Nov. 30). Update Apr. 23: California Supreme Court denies review.
One of the most justly unpopular of animal-rights groups is hoping to exploit the speech-suppressing potential of the California law invoked in Nike v. Kasky: “People for the Ethical Treatment of Animals Inc. accused the California Milk Advisory Board of violating the state’s unfair competition law by portraying an idyllic lifestyle for California dairy cows while knowing they endure a “harsh, uncomfortable and often painful existence.” The group is appealing a San Francisco judge’s ruling that the law’s false-advertising provisions cannot be invoked against a governmental entity such as the milk board. (Mike McKee, “PETA Cries Over Cow-Filled Milk Board Ads”, The Recorder, Nov. 18). For more on Nike v. Kasky, see Jul. 1, Jul. 9, Sept. 14, 2003. (Update Jan. 16, 2005: appeals court rules against PETA.)
As readers of this site know, voters in six states are considering legal-reform initiatives on today’s ballot. At my other website, the Manhattan Institute’s PointOfLaw.com, I’m planning to post regularly updated live coverage tonight of election returns on the measures, with special attention to any instances where the vote totals prove to be close. (I might also post the odd comment on other races of interest.)
The ballot measures are: Florida’s Amendment 3 (limiting lawyers’ med-mal fees), lawyer-sponsored Amendment 7 (removes confidentiality of medical peer review) and Amendment 8 (strips licenses of doctors who lose three malpractice verdicts); Wyoming’s Amendments C and D (authorizes legislative limits on med-mal awards); Oregon’s Measure 35 (limits med-mal awards); Nevada’s Question Three (limits med-mal awards) and lawyer-sponsored Questions Four (undercuts med-mal reform) and Five (forbids legislative reductions of liability); Colorado’s lawyer-sponsored Amendment 34 (expands right to sue over alleged construction defects), and California’s Proposition 64 (narrows scope of s. 17200 “unfair competition” law).
The timing: Florida polls close at 8 pm EST, Colorado and Wyoming at 9 pm, Nevada at 10 pm, and California and Oregon at 11 pm. I’m in the Eastern time zone, and intend to stay up until 2 am (11 pm Pacific) if that’s needed to follow any still-unresolved contests.
How readers can help: I’ll have access to standard online sources that cover these sorts of votes (big-city papers, Secretary of State websites) but in the past those sources have sometimes been slow to post totals, especially on “down-ballot” issues. I won’t have much access to local broadcast sources, for the most part. If you’ve got fresh news on your state to report, such as a local news organization’s calling a ballot contest one way or the other, email me at editor (at) pointoflaw – dotcom.
Once again, the liveblogging tonight will be going on at Point of Law, not here. [cross-posted from Point of Law, with slight changes][bumped 2:30 pm]
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More about the Magna Carta for California bounty-hunters known as the Unfair Competition Law or s. 17200, which Golden State voters have a chance to rein in tomorrow by approving the much-needed Proposition 64:
* Attorney Harpreet Brar, whose law firm of Brar & Gamulin was among those to arouse public outrage in the shakedown-lawsuit scandal of 2002-03, has been ordered to pay nearly $1.8 million for filing shoddy lawsuits against small businesses and seeking to settle them quickly for cash (see Aug. 20, 2002) (various news sources, via Legal Reader, Oct. 20);
* Justice David Sills’s spirited dissent in the “Six Screws” case in June (mentioned in my Friday WSJ piece) can be found, along with the majority opinion, here. An excerpt from Sills’s opinion to illustrate the flavor:
What is the difference between the $3 million attorney fees award here and the petty shakedowns which made the Trevor Law Group infamous in Southern California? Nothing but the size of the law firm and its target. As this court noted in People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1316-1317: “The abuse is a kind of legal shakedown scheme: Attorneys form a front ‘watchdog’ or ‘consumer’ organization. They scour public records on the internet for what are often ridiculously minor violations of some regulation or law by a small business, and sue that business in the name of the front organization.”Thus, if the Trevor Law Group sues an auto body shop over not having its license up to date, that is an abuse of the unfair competition law. But if a more established law firm sues a big corporation over an equally trivial putative violation — it is rewarded with $3 million in fees. The net result is to bless the same kind of abuse in which the Trevor Law Group engaged — looking for a hypertechnical violation of some law by a California business and then going after that business under section 17200 as a profit-making venture — with appellate holy water.
* Rutan & Tucker attorney Layne H. Melzer has published a succinct guide to the headaches s. 17200 can inflict on an unwary California businessperson (”A Step Toward Disarming California’s ‘Business Practice Bandits’”, undated, at Rutan site (PDF))
* On the other hand, as we mentioned Jul. 7, there’s a whole blog about s. 17200, written by a class action lawyer who has filed many cases using the law. She has published on the blog a description and defense of the law and a post in opposition to Prop 64. (Fixed 11/1 to correct description of blog’s author and to add last-mentioned link.)
* Tim Sandefur (Oct. 28) examines allegations that Prop 64 would impair the enforcement of environmental laws.
* According to the latest Field Poll (Oct. 30, PDF), proponents of Prop 64 have been gaining momentum as the word gets out about the measure. In late September the proposition was behind by twelve points, 26 to 38 percent. Now the deficit has been shaved to five points, 37 percent No and 32 percent Yes, with a gigantic 31 percent of likely voters still undecided. And Gov. Schwarzenegger has started storming the state at rallies to promote his “road trip to reform” which includes a Yes vote on 64, further improving the measure’s chances if its supporters can be made to turn out at the polls.
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I’ve got an op-ed in today’s Wall Street Journal (Walter Olson, “Stop the Shakedown”, Oct. 29) discussing ballot measures that voters will decide in six states next Tuesday on litigation reform. For more on California’s s. 17200 “unfair competition” law, discussed in the second half of the piece, follow this link; for more on malpractice law, see our medical liability pages (latest/ earlier).
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Following revelations that some Kryptonite bicycle locks can be easily picked, the maker has offered to replace all of the locks with new ones free from the flaw. This has however not mollified class action lawyers who’ve been rushing to sue the firm. “What if people don’t want a Kryptonite lock anymore?,” asks Darrell Palmer, one of two lawyers who filed would-be class actions in San Diego County Superior Court. Company spokeswoman Donna Tocci said that the newly revealed security issue “is not just a Kryptonite concern. Anything with a tubular cylinder — vending machines, soda machines, ignition systems, coin-operated laundry and other security products — could be a concern.” And indeed, lawyers pursuing intended class actions (and s. 17200 actions in California) have been suing other makers of U-locks as well, including Master Lock. (Pam Smith, “Plaintiffs Firms Lock Onto Kryptonite”, The Recorder, Sept. 28).
If you’re not reading our sister site PointOfLaw.com, you’re missing out on a lot. I’ve been doing about half my blog writing over there, on topics that include: a powerful new St. Louis Post-Dispatch investigation of asbestos litigation in Madison County, Ill. (here, here and here, with more to come, and note this too); the busy borrowings of Harvard’s Larry Tribe; when “not-for-profits” organize employment suits; Erin Brockovich’s respectability; crime without intent; experts and the CBS scandal; stay open through a hurricane, go to jail; suits over failure to put warnings on sand (yes, sand); West Virginia legal reform; Merrill Lynch/Enron trial; Hayek and the common law, reconsidered; getting creative about tapping homeowners’ policies; AdBusters sues to have its ads run; plaintiff’s lawyers represent criminal defendants to put drugmakers behind the eight ball; update on the law firm that competes on price; Spitzer and investors; Ohio med-mal crisis (and more); a welcome Schwarzenegger veto; dangers of firing your lawyer; ephedra retailer litigation; churchruptcies (if banks can do it…); and hardball in nonprofit hospital litigation.
Plus Ted Frank on tort reform in Mississippi and Jim Copland on California’s Proposition 64 (which would reform the notorious s. 17200 statute); the federal tobacco trial and Boeken; gender bias at work; and Rule 11 revival.
Better bookmark PointOfLaw.com now, before you forget.
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I’ve written a literary review of a historical novel (Emma Donoghue’s Life Mask) for Sunday’s New York Times Book Review; it has nothing at all to do with problems of the legal system. I’m at work on a second review for the same outlet and hope the relationship will be a long and happy one. (Walter Olson, “Women in Love”, Sept. 26).
Back on topic: yesterday’s publicity roundup omitted a few recent clips. To wit: I’m quoted in an article in Legal Affairs on the controversial new “litigation-finance” industry, which advances money to plaintiffs (often at very high interest rates) in exchange for a share of the booty (Daniel Brook, Legal Affairs, Sept./Oct.)(see Aug. 4, 2003). My Manhattan Institute colleague Robert Goldberg quotes me in a piece on the attacks on FDA general counsel Dan Troy over his initiative to have the agency intervene in state-court liability suits which threaten to contravene FDA policies (”The sacking of Troy”, Washington Times, Jul. 25)(see Jul. 14). And very kind things are said at PokerPulse Forums about me, about this site, and about my book The Rule of Lawyers in the course of a discussion of the lawsuits under California’s s. 17200 against Google, Yahoo, etc. for supposedly promoting online gambling (see Aug. 9).
Have you been skipping past items about California’s abuse-ridden s. 17200 business practices act (see Jun. 30, Apr. 22, Mar. 12, Feb. 16 and links from there) just because you don’t happen to live or do business in California? Then read on. Under a case currently on appeal to the state’s supreme court, a business located anywhere else in the country, perhaps even the world, can be sued under s. 17200 if it advertises for customers in California — and such advertising may take the form of maintaining a website accessible to California customers. In the case at issue, a Los Angeles appeals court ruled this March that several Nevada casino hotels “could be sued by a man seeking class action status on behalf of all California residents hit with a $3-per-night energy surcharge while staying in Las Vegas, Reno or other gambling towns.” The court held “that hotel advertisements, toll-free numbers and interactive Web sites provided sufficient contact to give Los Angeles-area resident Frank Snowney jurisdiction to sue in California” under the ultra-liberal state law. According to a Fulbright & Jaworski lawyer who is representing the casinos on appeal, the ruling “may affect any hotel, cruise ship, club, theater, museum, sporting venue, rental car company, restaurant, etc., operating exclusively outside of California, but accepting online reservations.” (Mike McKee, “Businesses Quake Over California Case”, The Recorder, Jul. 2). More: There turns out to be a whole blog dedicated to s. 17200, and it takes exception to the Recorder article’s slant, interpreting the pending case as primarily about the scope of state jurisdiction generally and only incidentally about s. 17200 (via Legal Reader).
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