Otherwise, the employer may just be setting itself up for wage-hour suits based on the premise that the after-hours use constitutes uncompensated overtime, says Mitch Danzig, “an attorney in the San Diego office of Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. Danzig advises his clients to give BlackBerrys only to employees who are exempt from overtime laws. ‘Plaintiffs’ firms are trolling for this,’ he said. ‘Now what you’re seeing on [plaintiffs'] firms’ Web sites are, “Have you been assigned a BlackBerry or a phone? If so, give us a call.”‘” (Ashby Jones, WSJ law blog, Apr. 22; Tresa Baldas, NLJ, Apr. 28). More: Jeffrey Hirsch, Workplace Prof Blog.

Following up on Jan. 22’s story from California: “It took a jury less than two hours Thursday afternoon to unanimously clear a real estate agent accused of failing in his duties to a couple he helped buy a tony Carlsbad home.” Marty and Vernon Ummel claimed that ReMax agent Mike Little had not kept them from overpaying for the house they bought with his help. (North County Times, San Diego Union-Tribune, Voice of San Diego).

• Judge expresses surprise at how many law firms want in on fees in Visa/MasterCard issuer settlement [NYSun]
• Mississippi bill would require a lawyer’s presence at real estate escrow closings; so rude to cite the profession’s self-interest as a factor [Clarion-Ledger]
• Following Coughlin Stoia’s lead, Mark Lanier announces he’s expanding into intellectual property litigation [The Recorder]
• Maryland legislation would require state-aided colleges and universities to report on what they’re doing to advance “cultural diversity” [Examiner via Bader/Open Market]
• New era at UK pubs? Under new directive, “employers will risk being sued if a bar worker or waitress complains of being called ‘love’ or ‘darling’, or if staff overhear customers telling sexist jokes.” [Daily Mail]
• ACLU just sued city of San Diego and snagged $900K in legal fees, but that’s no impediment to the city’s council’s enacting a special day of tribute to the group [House of Eratosthenes]
• George Wallace, who’s guestblogged here, hosts twin editions of Blawg Review #153 at his blogs Declarations & Exclusions and A Fool in the Forest, on piratical and Punchinello themes;
• Obama won’t support lowering drinking age [Newsweek]
• Such a shame for entrepreneurial plaintiffs, post-Proposition 64 if you want to sue a California business you might actually need to have been injured [CalBizLit]
• Time mag appeals $100 million Suharto libel ruling [IHT]
• Hey, no fair enforcing that fine print disclaiming liability for sweepstakes misprints [three years ago on Overlawyered]

• Speaking of patients who act against medical advice and sue anyway: doctor who advised against home birth is cleared by Ohio jury in $13 million suit [Plain Dealer and earlier via KevinMD]
• UK: “A feud over a 4ft-wide strip of land has seen neighbours rack up £300,000 in lawyers’ bills, and left one family effectively homeless.” [Telegraph]
• Last of the Scruggs judicial bribery defendants without a plea deal, Dickie’s son Zack, takes one [Folo]
• By reader acclaim: securities trader sues over injury from lap dancer’s attentions [AP/NY Sun]
• Amid the talk of FISA and retroactive telecom immunity, it would be nice to hear more about the actual lawsuits [Obbie]
• Australian worker loses suit over firing despite a doctor’s note vouching that stress of worrying about upcoming football game made it medically necessary for him to take day off to go see it [Stumblng Tumblr]
• Megan McArdle and Tyler Cowen toss around the question of federal FDA pre-emption of drug liability suits, as raised by Medtronic;
• Should Coughlin Stoia have bought those stolen Coke documents? For one lawprof, question’s a real head-scratcher [David McGowan (San Diego), Legal Ethics Forum] And WSJ news side is oddly unskeptical of trial lawyers’ line that the affair just proves their power to go on fishing expeditions should never have been curtailed [Jones/Slater]
• Dashboard-cam caught Tennessee cops red-handed planting marijuana on suspect, or so Jonathan Turley suggests — but could it be a little more complicated than that? [WSMV, AP/WATE] (& Greenfield)
• “Heck Baptists don’t even sue you for disagreeing with them,” though no doubt there are exceptions [Instapundit; NYT on Danish cartoons; Ezra Levant with more on those Canadian speech tribunals]
• Bestselling authors who sue their critics [four years ago on Overlawyered]

In February of last year, I wrote at length about an appalling jury verdict (June 2004) and disingenuous appellate decision in an SUV rollover case:

It went generally unnoticed last November when the California Supreme Court refused to review an intermediate court’s decision in Buell-Wilson v. Ford Motor Co. But then again, it went generally unnoticed when a jury awarded an arbitrary $368 million in damages in that case, when the trial judge reduced that verdict to an arbitrary $150 million judgment, and when an intermediate appellate court reduced that figure to an arbitrary $82.6 million (which, with interest, works out to over $100 million).

The US Supreme Court remanded to consider in light of Philip Morris v. Williams. For whatever reason, the California Court of Appeals decision to be even more disingenuous and say “We don’t care about Williams” reaffirming the $82.6 million got much more attention. Bruce Nye has the best analysis of the “thumb in your eye” decision; Lisa Perrochet also analyzes the verdict. John Rohan is critical. Press coverage: Recorder/Law.com; San Diego Union-Tribune; Reuters; AP/SJ Mercury News. Ford will appeal.

Do they often do business this way? The law firm of Coughlin Stoia, known as Lerach Coughlin before the departure of now-disgraced Bill Lerach, has been vying for lead counsel status in a shareholder class action against Coca-Cola. Now Roger Parloff at Fortune “Legal Pad” (Feb. 28) reports that a special master on the case has recommended that the firm be disqualified for “extremely troubling” conduct which it then defended after exposure using “pretextual” arguments. It seems two former Coke executives approached the law firm of Milberg Weiss (predecessor before its split of Coughlin Stoia), one of them in possession of more than 3,000 company documents he’d taken on departure, many stamped “confidential”. The law firm then agreed to pay the execs at least $75,000 to serve as “consultants”, part of the deal consisting of access to the documents, which it then used in its complaint.

When the consulting agreement came to light more than a year ago, Coughlin Stoia lawyers backed [Greg] Petro’s claim that neither he nor they had thought he was taking Coke documents without authority because, among other things, Petro had been ordered, when terminated, to “clean out his office.” Special Master [Hunter] Hughes found that such a command could not “rationally be construed to authorize Petro to walk off with company documents, any more than it authorized him to take the company’s desk, chairs, and computer.”

Hughes also rejected arguments that the firm was not really buying the documents, just entering into a consulting agreement, and a public-policy style argument that Petro’s conduct should be condoned because he was a whistleblower trying to expose corporate wrongdoing.

In a footnote, Hughes found that public policy arguments weighed in the other direction: “On a very practical level, for the Court to give Plaintiffs’ counsel a pass on this conduct, would simply invite terminated employees, particularly of public companies, to on a wholesale basis remove company documents following their termination in hopes they can sell them should the company be sued.”

More: San Diego Union-Tribune, ABA Journal, WSJ law blog (where several comments defend the law firm’s conduct).

• Surely not something 007 would do: judge reproaches Sean Connery and opponent neighbor over “slash-and-burn” litigation tactics in long-running townhouse dispute [NYLJ, NYTimes]
• Famed attorney Mark Geragos, suing San Francisco Zoo on behalf of tiger maulees, will wield the law like David’s mighty slingshot, or maybe that allusion is better avoided [AP/KPIX, Mercury-News, SFist]
• Clients, lawyers who formerly worked for it have many complaints ethical and otherwise about heavy-advertising San Diego law firm Pacific Law Center [Union-Tribune via San Diego Injury Board]
• Who knew the demanding workload of law students and federal-judge clerks left any time for (allegedly) tying up, robbing and torturing boyfriends? [Reynolds; Lat]
• The Scruggs et al prosecution continues to evolve and develop, but at present we haven’t much to add to the energetic threesome of sites that have been leading the news hunt [Rossmiller, Lotus/Folo, YallPolitics]
• UK man wrongly accused of rape will get public compensation, but minus a fee for bed and board at the prison [Daily Mail]
• Under Louisville’s new smoking ban, business owners are required to call cops if customers refuse to stop smoking inside [Catallaxy]
• Garry Wise takes issue with our comments on free speech in Canada, but we may be talking past each other since we never got to the question whether the proper fix is a motion by columnist Steyn to quash the dangerous inquiry [Wise law blog]
• Injury suits filed against little kids? “It does happen.” More on the Scott Swimm ski-collision case [L.A. Times/Chicago Tribune; earlier]
• Hope he’ll reconsider: David Giacalone says he’s weary of the legal-ethics beat he’s covered so well, and intends to leave it behind [f/k/a]

The recent controversy over attempts by organized lawyerdom to ban or restrict predispute arbitration contracts led to a Wall Street Journal editorial (”Party at Ralph’s”, Nov. 7) which in turn drew forth the following letter to the editor from David S. Rowley of San Diego (Nov. 14):

Although you got the lawyer-money connection in the Democratic anti-arbitration strategy exactly right, you skipped over the bodacious arrogance inherent in the phrase “alternative dispute resolution.” ADR is lawyer-speak for anything other than a lawsuit, making a lawsuit the “regular” way. ADR gets about the same treatment from the bar as “alternative” medicine gets from doctors.

Every time people sit down and reason together, some lawyer is losing money. Why not ban that? A lawsuit is the most expensive, time-consuming, disruptive and unpredictable of all dispute resolution models. That so many people are so quick to sue suggests that the lawyers have sold the masses on the “regular” way. What a tragic commentary on our times.

Earlier: Oct. 18. More thoughts on arbitration: ADRQueen, Oct. 16.

And, as the night follows the day, there descend the class-action shareholder lawyers, led in this case by San Diego’s not-at-all-tainted Coughlin Stoia of Bill Lerach fame. (”Crocs facing possible suit despite earnings hike”, Northern Colorado Business Report, Nov. 9; Keith DuBay, “Lawyers pounce on Crocs”, ColoradoBiz Magazine/Denver Post, Nov. 15). “Imagine that! Sandals seasonal? Who knew?” (Al Lewis, “Idiots’ lawsuit is nothing but a Croc”, Denver Post, Nov. 16).

You may recall the case of De Villers v. County of San Diego (Mar. 2006; Jul. 2006). Kristin Rossum was found guilty of poisoning husband Gregory de Villers and trying to make his death look like a suicide; his family sued both Rossum and her employer, the county of San Diego, and a jury found that Rossum was only 75% responsible, but that still put taxpayers on the hook for $1.5 million. An appellate court has stepped in to belatedly throw out the case against the County. (via On Point)

• She wore a wire: defense attorney says administrative assistant to one of the three lawyers in Kentucky fen-phen scandal worked as FBI mole, circumventing attorney-client privilege [AP, Courier-Journal, Lexington Herald-Leader, ABA Journal]
• Suing a lawyer because his deposition questions inflicted emotional distress? No way we’re going to open those floodgates, says court [NJLJ]
• Counsel Financial Services LLC, which stakes injury lawyers pending their paydays, says it’s “the largest provider of attorney loans in the United States and the only Law Firm Financing company endorsed by the AAJ (formerly ATLA)”; its friendly public face is a retired N.Y. judge while its founder is attorney Joseph DiNardo, suspended from practice in 2000 “after pleading guilty to filing a false federal tax return” and whose own lend-to-litigants operation, Plaintiff Support Services, shares an office suite with Counsel [Buffalo News] The firm’s current listing of executives includes no mention of DiNardo, though a Jul. 19 GoogleCached version has him listed as President;
• Patent litigation over cardiac stents criticized as “a horrendous waste of money” [N.Y. Times]
• More on the “pro bono road to riches”, this time from a California tenant case [Greg May, Cal Blog of Appeal]
• Not a new problem, but still one worth worrying about: what lawyers can do with charitable trusts when no one’s looking over their shoulder [N.Y. Times via ABA Journal]
• Has it suddenly turned legal to stage massive disruptions of rush-hour traffic, or are serial-lawbreaking cyclists “Critical Mass” just considered above the law? [Kersten @ Star-Tribune]
• “Look whose head is on a plate now”: no tears shed for fallen Lerach by attorney who fought him in the celebrated Fischel case [ChicTrib, San Diego U-T]
• “Jena Six” mythos obscures graver injustice to black defendants, namely criminal system’s imposition of long sentences for nonviolent offenses [Stuart Taylor, Jr. @ National Journal -- will rotate off site]
• Economist David Henderson on restaurant smoking bans [Econ Journal Watch, PDF, via Sullum, Reason "Hit and Run"]
• Technical note: we learned from reader Christian Southwick that our roundups were displaying poorly on Internet Explorer (Ted and I use other browsers) and we found a way to fix. So, IE users, please drop us a line when you encounter problems — we may not hear about them otherwise.

San Diego lawprof John “Jack” H. Minan’s “The Little Green Book of Golf Law”, published by the ABA and hitting bookstores about now, treats of errant balls and many other legal issues that arise in the Wodehouse-beloved outdoor game. I would note that “Iowa golfer Walter Olson”, portrayed unflatteringly in one of the stories, is guaranteed a different person from and unrelated to me. (Tod Leonard, “Law doesn’t control way ball bounces”, San Diego Union-Tribune, Sept. 11).

Although trademark law certainly has plenty of intricacies, the essence of trademarks is the protection of consumers from confusion in the marketplace. When one buys goods or services, one should be able to know the manufacturer of those goods or provider of those services. Except, of course, when lawyers get involved; then trademarks are just used by large businesses to stifle competition. Infoworld reports on how some companies are abusing trademarks to shut down smaller competitors on EBay. EBay, to avoid liability for trademark infringement by its sellers, is quick to shut down any auction when a trademark holder complains. And then makes it difficult for the seller to reverse the decision:

As she began the process of getting EBay to reinstate her account - which includes having to take a condescending online tutorial on intellectual property and swearing that you’ll never be bad again - the reader also was able to contact with other EBay sellers whose Don Ed Hardy auctions had been taken down. “Some sellers who had not yet actually sold any Don Ed Hardy goods were told by the fraud department that ‘test purchases’ had proven their goods were counterfeit,” the reader wrote. “Some were told that it didn’t matter they could prove their merchandise was authentic - Don Ed Hardy would continue to take down their listings via VeRO by citing ‘violation of a trade agreement’ between the company and its distributors. And all were threatened as I was with trademark litigation that could result in treble damages, paying their legal costs, etc.”

But the threat of running up legal fees with trademark lawsuits isn’t just felt by individual EBay sellers; even large companies — like ABC television — are afraid to fight ridiculous claims of trademark infringement:

“Sam I Am” isn’t—anymore.

The planned ABC fall comedy starring Christina Applegate has changed its name to “Samantha Be Good” after receiving a “cease-and-desist” letter from lawyers representing the rights-holder to Dr. Seuss characters, an attorney said Tuesday.

[...]

“We asserted a trademark infringement claim,” in a May 17 letter to ABC, said Jonathan B. Sokol, an attorney representing San Diego-based Dr. Seuss Enterprises, LP.

“People worldwide associate those characters with Dr. Seuss books and … Dr. Seuss vigilantly protects its trademark rights,” Sokol said.

The TV show’s original title might have confused people as to whether the company was sponsoring or otherwise involved with the program, Sokol said.

This is just a guess, but it’s unlikely that someone watching a sitcom in which Christina Applegate has amnesia is going to confuse it with Green Eggs And Ham, a book in which a cartoon character tries to entice another cartoon character to eat unkosher food with classic lines like “Could you, would you, with a goat?”

We’ve extensively covered the various fair-housing complaints against Craiglist (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, Dec. 1, 2006) for that service’s hosting ads for housing and roommates that fall afoul of non-discrimination laws—it’s technically illegal for a woman to say that she’s looking for another woman to share her apartment with, much less a co-religionist or someone without kids. We somehow missed the Santa Clara and San Diego lawsuits against Roommates.com over the same issue. While a district threw out the case, an appeal went to the Ninth Circuit Court of Appeals, and that was that: the three judges, Kozinski, Reinhardt, and Ikuta, wrote three separate opinions, with two of them deciding that there was enough for a suit to go forward on the grounds that there may be a cause of action under the Fair Housing Act because Roommate.com makes it easier for their users to express discriminatory preferences by using questionnaires that are then translated into searchable advertisements, thus supposedly running outside the Communications Decency Act’s immunity provision by being an “information content provider” because it is “responsible, in whole or in part, for the creation or development of [the] information”:

“By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing.”

Worse, Judge Kozinski’s opinion issues irrelevant dicta, apparently aimed at a suit not being litigated before him:

Imagine, for example, www.harrassthem.com with the slogan “Don’t Get Mad, Get Even.” A visitor to this Web site would be encouraged to provide private, sensitive and/or defamatory information about others — all to be posted online for a fee.

Kozinski posits that this site—plainly based on dontdatehimgirl.com (Apr. 9 and links therein)—would also flunk the CDA protection. (Cal Law reporter/blogger Brian McDonough notes this passage, but apparently thinks it’s just a joke and thus misses its significance.) The administrators of Autoadmit/xoxohth.com (May 3) might also be concerned about this dicta. (Rebecca Tushnet makes this point independently.)

This substantial narrowing of § 230(c) protections is also bad because it now means that a number of Internet sites that were plainly protected before no longer have unambiguous protection, a problem exacerbated by the lack of a clear majority opinion. Creative lawyering can argue that these websites might be within Fair Housing Counsel’s fact-driven exception to the CDA exception, and thus get past the motion-to-dismiss stage, forcing defendants into expensive legal proceedings.

Elsewhere on the Internet: Volokh; Eric Goldman; Adam Liptak @ NYT; Slashdot; Laura Quilter; Aaron Perzanowski; Lillian Edwards; The Register. Joe Gratz has purchased harassthem.com.

Volokh separately argues the underlying laws are unconstitutional as applied to roommates.

• 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]

A further stinging rebuff in court for the glamourpuss tort-chaser: “A judge on Friday dropped the Beverly Hills Unified School District from a lawsuit that claims an oil well on a high school campus caused cancer in former students. Superior Court Judge Wendell Mortimer Jr. said he was not persuaded that the well operating for decades at Beverly Hills High was a danger. He also found no evidence that the school district was aware of any danger.” (”Beverly Hills schools dropped from lawsuit over campus oil well”, AP/San Diego Union-Tribune, Mar. 23). For more on the Beverly Hills case, see Mar. 16, 2004, Nov. 3, 2005, and Dec. 1, 2006. For Brockovich’s rebuffs in Medicare-billing cases, see Mar. 15, etc.

Last week, Ted posted a court decision about a lawyer/client team who have turned the Americans with Disabilities Act — in theory, a law designed to protect actual consumers — into a full-time career, patronizing businesses for the specific purpose of being able to sue them. Not all such lawyer/client teams bother to even take the step of patronizing the businesses, however; some just skip the damages and go right to the extortion, hoping the defendants will pay rather than spend the money to defend themselves.

Many times, their business model works, but occasionally, it backfires, as it did last week on serial ADA litigant Theodore Pinnock. (Technically, Pinnock is the attorney, not the plaintiff. But why split hairs? The plaintiffs, Delores Jackson and the imaginary organization she “represents,” the Association of Women with Disabilities Advocating Access, are just fronts for Pinnock.) On Friday, a federal judge in San Diego sanctioned Pinnock, ordering him to take an ethics class and pay $15,000 in attorneys fees to Marcos Mout, a defendant he had sued last October. Mout owned a convenience store, and was sued because the store was allegedly inaccessible to the disabled. Well, not quite:

Jackson, who uses a walker, said she had “researched” the store and had photographic evidence of numerous violations. In the complaint, she said she had intended to patronize the store but would have been thwarted by problems with signage, the entrance door, interior paths, counter height, parking and the restroom, among many things.

The businessman’s attorney countered that the convenience store wasn’t even open to the public at the time Jackson was allegedly denied access, having been seriously damaged in December 2004 by a flood.

Mitch Wallis, attorney for convenience store owner Marcos Mouet, also told the court that the small store, which remains shuttered, didn’t even have a public restroom. Jackson’s lawsuit also alleged that interior pathways weren’t wide enough, but Mouet’s attorney noted that the shelves had been pushed against the wall to fix the flood damage.

Yes, but aside from those issues…

Incidentally, the Bizarro-Overlawyered crowd will tell you that frivolous suits are easily, quickly, and cheaply disposed of by the courts; this case illustrates yet again how badly they misunderstand the nature of the legal system. Because the suit against Mout’s convenience store made superficially legitimate allegations, it cost Mout at least $15,000 to defend the suit. (He actually claimed legal costs of $38,000 in making his motion for sanctions, but the court found that $15,000 was a more reasonable figure.) And that was for a suit that lasted “only” five months.

Previous coverage of Pinnock: Apr. 2006

“A federal jury in San Diego [Thursday] ordered Microsoft to pay $1.52 billion to Alcatel-Lucent for violating two patents for a technology used by hundreds of companies that allows users to play digital music on computers, cellphones and other portable devices.” (Alan Sipress, “Microsoft Loses Big In MP3 Patent Suit”, Washington Post, Feb. 23). Washington Post tech blogger Rob Pegoraro (Feb. 23):

Alcatel-Lucent’s patent payday has all the things that patent-abuse critics hate:

* “Submarine” patents, invoked years after a contested invention has hit the market? Check
* Claiming ownership of a media format most people use all the time? Check
* A plaintiff that’s failed to commercialize its own alleged invention? Check
* Extortionate royalty demands? Check

(via Kevin Drum, Feb. 23).