Even though the 9/11 commission (debunking certain widely circulated stories to the contrary) concluded that the government of Saudi Arabia did not fund al-Qaeda, several institutional victims of the terrorist attacks, including Cantor Fitzgerald Securities and the Port Authority of New York and New Jersey, recently filed suit against a long list of foreign entities including the Saudi government and various financial institutions for their alleged role in the attacks (Larry Neumeister, “Port Authority to Join Suit Against Saudi Arabia Over 9/11 Attack”, AP/Law.com, Sept. 13). The U.S. government has been highly critical of the freelance use of private litigation to second-guess the state of U.S.-Saudi relations, which has in no way deterred colorful asbestos-tobacco zillionaire Ron Motley from setting up his own mini-CIA-cum-State-Department-for-profit toward that end (Jennifer Senior, “Intruders in the House of Saud, Part II: A Nation Unto Himself”, New York Times Magazine, Mar. 14)(see Jul. 11, 2003). And in the New York Observer, Nina Burleigh in February profiled attorney Brian Alexander of the prominent plaintiff’s air-crash firm of Kreindler & Kreindler, who had “already filed a suit — on behalf of the families of more than 1,000 9/11 families?against a list of foreign entities hundreds of pages long.” (“Air Disasters, Legal Fees And Justice for the Victims”, New York Observer, Feb. 23).
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Saudi Arabia
“Say what you like about Osama bin Laden. He’s done wonders for the defamation bar,” says a British barrister. A group of wealthy Saudi businessmen are engaging in “libel tourism,” suing in British courts to silence American critics. British libel law, unburdened by the First Amendment, puts the burden on defendants to prove that their stories are true; the threat of libel suits often acts to deter journalistic inquiries, but now suits are being aimed at American publishers. The Wall Street Journal faces two lawsuits for a February 2002 report on Saudi support for terror that was reprinted in its European edition. (Michael Isikoff & Mark Hosenball, “Libel Tourism”, Newsweek Web, Oct. 22). (via Postrel)
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Profile of bigshot tort lawyer Ron (“U.S. foreign policy, c’est moi”) Motley, who after ultra-successful runs in asbestos and tobacco and a far less successful run against lead paint manufacturers has embarked on a crusade to sue various rich Saudi Arabians over Sept. 11 because they allegedly had paid off bin Laden over the years, whether from sympathy, fear or other motives. The State Department has repeatedly complained that the suit (with its demands for compulsory discovery of foreign nationals, etc.) threatens to upset the delicate management of U.S.-Saudi relations, but who (aside from the U.S. Constitution) says the executive branch should get to run foreign relations anyway? Quotes our editor (Tony Bartelme, “The King of Torts vs. al-Quaida [sic] Inc., Charleston Post & Courier, Jun. 22). Newsiest nugget to us: according to the article, Motley has hired full time to work on the case a well-connected Washington lawyer named Harry Huge; this is pretty rich once you consider something not spelled out in the article, which is that Huge served on most if not all of the arbitration panels that awarded the Ness Motley firm vast fortunes in the state tobacco litigation. What could be more ingenuous and conflict-of-interest-free than for Motley to turn around and give him a job?
Florida class action (Engle), 2003: “A $710 million loose end“, Jun. 24; ““Trial lawyers get spanked’“, May 24-26; “Court overturns $145 billion Engle award“, May 22-23. 2001: “Angles on Engle“, May 24. 2000: “‘Not even thinking about’ fees“, Aug. 11-13; “Smoking and responsibility: columnists weigh in“, Jul. 28-30; “‘Poll: majority disapprove of tobacco fine’“, Jul. 24-25; “Florida verdict: more editorial reaction“, Jul. 24-25; “Smoking and responsibility: columnists weigh in“, Jul. 28-30; Editorial roundup“, Jul. 19-20; “Florida tobacco verdict“, July 18; “Tobacco: why stop at net worth?” (punitive damage rulings by judge), Jul. 10; “Another Mr. Civility nominee” (Stanley Rosenblatt), Jun. 2-4. 1999: “$49 million lawyers’ fee okayed in case where clients got nothing” (secondhand smoke class action), Sept. 28; “Personal responsibility takes a vacation in Miami“, Jul. 8; “The Florida tobacco jurors: anything but typical“, Wall Street Journal, Jul. 12, 1999.
Tobacco fees reconsidered, 2003: “Senate panel nixes tobacco-fee clawback“, May 9-11; “Feds indict former Texas AG“, Mar. 8-9; “‘Not a pretty picture’“, Jan. 10-12. 2002: “Judge overturns $1.3 billion tobacco fee award” (Castano Group), Sept. 27-29; “Welcome Fox News viewers/ readers“, Aug. 2-4; “Tobacco fees: one brave judge” (New York), Jul. 30-31 (& Aug. 2-4, Jun. 21-23, Oct. 16-17, Oct. 25-27, 2002; Feb. 11 & Jun. 6-8, 2003; May 11, 2001).
“‘Lawyers who won $10 bil. verdict had donated to judge’“, Apr. 30, 2003; “A bond too far“, Apr. 4-6; “Appeals bonds, again“, Apr. 2-3; “Mad County pays out again” (“light” cigarette class action), Mar. 24, 2003.
“‘Nanny Bloomberg’” (NYC smoking ban), Oct. 22, 2002.
Tobacco fees, state by state, 2003: “‘Law firms in tobacco suit seek $1.2b more’” (Mass.), May 19 (& Jan. 2-3, 2002, Dec. 22, 1999); “Feds indict former Texas AG“, Mar. 8-9 (& May 22, Sept. 1-3, 2000; Jun. 21, Aug. 29-30, Nov. 12, 2001, Jul. 15, Jul. 30-31, 2002; Jan. 10-12, 2003). 2002: “Judge overturns $1.3 billion tobacco fee award” (Castano Group, California), Sept. 27-29; “Tobacco fees: one brave judge” (N.Y.), Jul. 30-31 (& Aug. 2-4, Jun. 21-23, 2002, Oct. 16-17, 2002, Feb. 11, 2003, May 11, 2001); “Dewey deserve that much?“, Mar. 6; “Mass., Ill., NYC tobacco fees“, Jan. 2-3. 2001: “Michigan tobacco fees“, Sept. 19-20; “Tobacco-fee tensions” (Fla. resumes investing in tobacco cos.), Jun. 21 (& letter to editor, Jul. 6); “Missouri’s tagalong tobacco fees“, Jun. 5 (& Sept. 21, 2000); “‘Lungren now a paid advocate for his former foes’” (Calif.), Apr. 5; “(Another) ‘Monster Fee Award for Tobacco Fighters’” (Calif. cities and counties), Mar. 21-22; “Reclaiming the tobacco loot“, Mar. 15; “Lawyers get tobacco fees early“, Mar. 5; “Tobacco arbitrator: they all know whose side I’m on“, Feb. 16-19. 2000: “Beehive of legal activity: Utah tobacco fees“, Nov. 6; “South Carolina tobacco fees: how to farm money“, Oct. 25; “Gore amid friendly crowd (again)” (Fla.), Apr. 12 (& “Dershowitz’s Florida frolic?“, Jul. 17; also see Dec. 8-10, 2000, Aug. 8-9, 2000, Dec. 27-28, 1999); “Sooner get rich” (Oklahoma), Jun. 7; “‘Lawyers’ tobacco-suit fees invite revolt’” (Ohio), May 23; “North Carolina (& Kentucky & Tennessee) tobacco fees“, May 2; “Connecticut AG has ‘no idea’ whether lawyers he hired are overcharging“, Feb. 3 (& update Feb. 16); “Pennsylvania tobacco fees: such a bargain!“, Jan. 10 (& Oct. 24, 2002). 1999: “Maryland’s kingmaker” (Peter Angelos), Oct. 19 (& Dec. 9, 1999, Oct. 16-17, 2000, June 21, 2001, Apr. 10, 2002); “Illinois tobacco fees“, Oct. 16-17; “My dear old tobacco-fee friends” (Kansas AG, like Connecticut’s, gave tobacco business to her old law firm), Oct. 11 (see also Sept. 21, 2000); “Boardwalk bonanza” (N.J.), Oct. 1-3; “News judgment“, Aug. 6; “Puff, the magic fees” (Wisc.), Jul. 13.
Tobacco-fee tycoons, 2003: “Class action lawyer takes $20 million from defendant’s side” (Joseph Rice), Mar. 15-16; “‘Not a pretty picture’“, Jan. 10-12; 2002: “Rumblings in Mississippi” (Scruggs, Minor), Oct. 9-10 (& Nov. 6); “Judge overturns $1.3 billion tobacco fee award” (Castano Group), Sept. 27-29. 2001: “Settle a dispute today” (O’Quinn vs. Jamail), Sept. 18; “Ness monster sighted in Narragansett Bay” (Rhode Island, Ness Motley), Jun. 7 (& see Oct. 6-9, 2000, July 17, 2000, Nov. 1, 1999). 2000: “Punch-outs, Florida style” (Robert Montgomery), Nov. 17-19 (& see Aug. 8, April 12, 2000; Aug. 21-22, 1999); “Friend to the famous” (Williams Bailey), Oct. 12; “Senator Lieberman: a sampler” (voted to curb tobacco fees), Aug. 8-9; “Trial lawyer candidates” (Minnesota’s Ciresi), Jul. 6 (& update Sept. 15-17; loses primary bid); “‘Lawyers’ tobacco-suit fees invite revolt’” (USA Today editorial), May 23. 1999: “Who’s afraid of Dickie Scruggs?“, Dec. 2; “Maryland’s kingmaker” (Peter Angelos), Oct. 19 (& Dec. 9, 1999, Oct. 16-17, 2000, June 21, 2001); “The Marie Antoinette school of public relations” (tobacco lawyers pose for photo shoot on their yachts, horse farms, etc.), Aug. 21-22; and see lawyers’ campaign contributions.
Humor: “Dave Barry on tobacco settlement, round III“, Sept. 16-17, 2002; “Dave Barry on tobacco suits, round II“, March 16, 2000; “Dave Barry on federal tobacco suit“, Oct. 26, 1999; “Cartoon that made us laugh” (“….We can’t take those off the market! Dangerous products are a gold mine for the government!”), Jan. 21-23, 2000.
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Terms of state tobacco settlement, 2003: “Appeals bonds, again“, Apr. 2-3. 2002: “We did it all for the public health, cont’d” (Alabama devotes more proceeds to tobacco farmers than to smoking reduction), Aug. 22; “Tobacco settlement funds go to tobacco promotion” (N.C.), Jun. 28-30; “‘Bush budget surprise: $25M for tobacco suit’” (Martha Derthick, Up in Smoke), Feb. 20. 2001: “Tobacco-fee tensions” (Fla. resumes investing in tobacco cos.), Jun. 21 (& letter to editor, Jul. 6); “Reclaiming the tobacco loot“, Mar. 15; “Push him into a bedroom, hand him a script” (Bill Clinton testimonial for tobacco lawyers), Mar. 9-11; “Lawyers get tobacco fees early“, Mar. 5; “Tobacco arbitrator: they all know whose side I’m on“, Feb. 16-19; “Safer smokes vs. the settlement cartel“, Feb. 7-8. 2000: “Missouri tobacco fees“, Sept. 21, 2000; “Tobacco- and gun-suit reading” (Stuart Taylor, Jr.), Aug. 21-22, 2000; “Challenging the multistate settlement“, Jul. 17, 2000. 1999: “‘Few Settlement Dollars Used for Tobacco Control’“, Dec. 27-28; “Tobacco bankruptcies, and what comes after” (state gov’ts, trial lawyers would become cigarette producers), Dec. 13; “How the tobacco settlement works” (the more cigarettes sold, the more money states get), Nov. 2; “Addictive tobacco money” (states sued over alleged burden on their taxpayers — so are they using the proceeds to cut taxes?), Sept. 7; “Collusion: it’s an AG thing” (terms of settlement cartelize cigarette industry), Jul. 29. Also see Walter Olson, “Puff, the magic settlement“, Reason, Jan. 2000.
“‘Tough tobacco laws may not deter kids’“, Jun. 7-9, 2002; “Blind newsdealer charged with selling cigarettes to underage buyer“, Sept. 16, 1999.
“Sin-suit city” (Banzhaf), Jun. 10, 2002.
“Ad model sues tobacco company“, May 1-2, 2002.
“Australian party calls for banning smoking while driving“, Jun. 3-4, 2002; “‘Positive nicotine test to keep student from prom’” (over-18 student, off-premises consumption), Apr. 26-28, 2002 (& update May 10-12: school backs down); “Judge orders woman to stop smoking at home“, Mar. 27-28, 2002; “‘Smokers told to fetter their fumes’” (smoking in homes that bothers neighbors), Nov. 26, 2001; “Utah lawmakers: don’t smoke in your car” (when kids present), Oct. 5-7, 2001; “Apartment smoking targeted“, Jan. 3, 2000.
“Australian party calls for banning smoking while driving“, Jun. 3-4, 2002 (document retention case); “International tobacco suits: not quite such easy pickings“, Feb. 1-3, 2002; “‘Saudi Arabia finally gets tough on terrorism!’“, Dec. 10, 2001; “More from Judge Kent” (Bolivian suit), Aug. 3, 2001; “Smoker’s suit nixed in Norway“, Dec. 18-19, 2000; “They call it distributive justice” (government of Saudi Arabia sues tobacco cos.), Nov. 16, 2000; “Spreading to Australia?“, Dec. 29-30, 1999; “Israeli court rejects cigarette reimbursement suit“, Oct. 7, 1999.
“Veeps ATLA could love” (Durbin, D-Ill., as guardian of tobacco lawyers’ fees), July 7, 2000 (& see Apr. 25, 2002).
“Competing interests: none declared”. “The unconflicted Prof. Daynard“, April 21-23, 2000 (& update: letters, Jan. 2001, June 2001; Aug. 2, Dec. 17, 2001).
Federal tobacco suit: our views: “‘Bush budget surprise: $25M for tobacco suit’“, Feb. 20, 2002; “Judge throws out half of federal tobacco suit“, October 2, 2000; “Good news out of Washington…” (House votes to cut off funding for suit), June 21, 2000 (& update June 26: action reversed, funds approved); “Feds: dissent on smoking = racketeering“, Sept. 23, 1999; “Guest column in Forbes by Overlawyered.com‘s editor“, Oct. 25, 1999.
“Prison litigation: ‘Kittens and Rainbows Suites’” (cellmate’s smoking violates rights), Jan. 11-13, 2002.
Boeken v. Philip Morris: “Boeken record“, June 19, 2001; “$5,133.47 a cigarette“, Jun. 11, 2001; “Tobacco plunder in Los Angeles” ($3 billion damage award), Jun. 8-10, 2001.
Federal tobacco suit: others’ views: “Columnist-fest” (Jacob Sullum), Jun. 22-24, 2001; “Blatant end-runs around the democratic process” (former Labor Secretary Robert Reich), Jan. 15-16, 2000; “Dave Barry on federal tobacco suit” (plus novelist Tom Clancy’s critique), Oct. 26, 1999; “‘This wretched lawsuit’” (Jonathan Rauch in National Journal ), Oct. 13, 1999; “Feds’ tobacco shakedown: ‘A case of fraud’“, Sept. 29, 1999 (roundup of editorial pages); “Feds as tobacco pushers” (columnist Andrew Glass recalls encouragement of smoking in U.S. Army), Sept. 24, 1999; “Hurry up, before the spell breaks” (leading plaintiff’s lawyer wants feds to sue fast since public losing interest), Sept. 24, 1999.
Regulation by litigation: “Tobacco- and gun-suit reading” (law prof Michael Krauss), Aug. 21-22, 2000; “Convenient line at the time” (tobacco is unique, said state attorneys general — sure), May 15; “Stuart Taylor, Jr., on Smith & Wesson deal” (“Guns and Tobacco: Government by Litigation”), Apr. 11, 2000; “Arbitrary confiscation, from Pskov to Pascagoula” (Michael Barone in U.S. News on threat to rule of law), Jul. 24-25, 1999; “Guns, tobacco, and others to come” (Peter Huber in Commentary on the new mass-tort cases as “show trials”), Jul. 20; “‘A de facto fourth branch of government’” (prominent trial lawyer Wendell Gauthier’s view of plaintiff bar’s role), Jul. 4, 1999.
“Dewey deserve that much?“, Mar. 6, 2002; “Health plans rebuffed in bid to sue cigarette makers“, Jan. 11, 2000.
“Terrorists, American business execs compared“, Sept. 28-30, 2001.
“Columnist-fest“, Jun. 22-24, 2001 (Amity Shlaes on asbestos synergy case); “Best little forum-shopping in Texas” (state’s Medicaid suit got filed in Texarkana, contributing $6.1 million to local economy), Aug. 27, 1999.
“The Kessler agenda” (former FDA chief calls for cigarette ban), Jan. 12-14, 2001; “Kessler rebuked” (FDA claim of authority over tobacco), March 27, 2000.
“Updates” (baby Castano suit nixed in N.Y.), Dec. 26-29, 2000.
“Wal-Mart’s tobacco exposure“, Sept. 25-26, 2000; “The Wal-Mart docket” (sued over tobacco sales), July 7, 2000.
“Another billion, snuffed” (antitrust lawsuit between snuffmakers), May 10, 2000.
“Hollywood special: ‘The Insider’“, Mar. 30, 2000.
“Because they still had money” (Hausfeld’s price-fixing suit), Mar. 2, 2000.
“Tobacco lawyers’ lien leverage“, Feb. 29, 2000.
“Feds’ tobacco hypocrisy, cont’d: Indian ‘smoke shops’“, Jan. 25, 2000; “Do as we say, please” (Indian tribes, after profiting immensely from tax-free smoke shops, turn around and sue suppliers), Jul. 14, 1999.
“The joy of tobacco fees“, Jan. 20, 2000.
“Calif. state funds used to compile ‘enemies list’“, Jan. 5, 2000.
“‘Trial lawyers on trial’” (Trevor Armbrister, Reader’s Digest), Dec. 23-26, 1999.
“Philadelphia Inquirer Tech.life: ‘Web Winners’” (this page is recommended), Dec. 15, 1999.
“Ohio tobacco-settlement booty“, Nov. 8, 1999.
“Public by 2-1 margin disapproves of tobacco suits“, Nov. 5-7, 1999.
“Not-so-Kool omen for NAACP suit“, Nov. 1, 1999.
“Minnesota to auction seized cigarettes“, Oct. 21, 1999.
“Reform stirrings on public contingency fees“, Oct. 15, 1999.
“Big guns” (tobacco example shaped gun litigation), Oct. 5-6, 1999.
“Plus extra damages for having argued with us” (“lesson of tobacco”: you can get punished for defending your product), Aug. 19, 1999.
“‘Settlement bonds’: are guns next?” (how Wall Street finances expropriation of industries), Aug. 5, 1999.
Do the tobacco wars that began in the mid-1990s represent an unprecedented triumph for public health? Are they an inevitable response to legislative gridlock on smoking policy? Or are they our legal system’s own updated version of the Gilded Age scandals that brought American government into disrepute a century ago, siphoning billions of dollars of publicly obtained money into the hands of politically connected attorneys? Commentaries on Overlawyered.com (above) may help you decide. In the mean time, the following links offer a way into the wider tobacco controversy:
Anti-tobacco groups, most of which are supportive of litigation as well as other coercive government actions aimed at curtailing tobacco sale and use, are well represented on the web. They include Tobacco.org, federally funded antitobacco activist Stanton Glantz’s Tobacco Control Archives, Americans for Non-Smokers’ Rights, Action on Smoking and Health, and the American Council on Science and Health. Tobacco.org’s links list is especially comprehensive. The empire associated with Prof. Richard Daynard, participant in tobacco suits, oft-quoted expert, and professor at Northeastern U., includes the Tobacco Products Liability Project and Tobacco Control Resource Center, as well as the State Tobacco Information Center. The Castano Group, a vast joint venture of trial lawyers cooperating to file tobacco class actions, maintains a website that is distinctly uninformative (unless you’re a lawyer/member or a cooperative pressie).
Relatively neutral sites include Yahoo Full Coverage.
Critics of the anti-tobacco crusade often note that it curtails individual liberty, freedom of contract and freedom of association. As part of its Breaking Issues series (“Fining Smokers“), Reason magazine includes a list of online articles skeptical of the government’s role in the tobacco field, while Reason senior editor Jacob Sullum is the author of 1998′s For Your Own Good : The Anti-Smoking Crusade and the Tyranny of Public Health. At the libertarian-oriented Cato Institute, Robert Levy has criticized “The Tobacco Wars“, written that “States Share Blame for Tobacco Lawyers’ Greed“, and called tobacco settlements “Dangerous to Your Liberty“; the state Medicaid suits, he argues, are “Snuffing Out the Rule of Law“. Cato’s Jerry Taylor describes the battle as “The Pickpocket State vs. Tobacco“. “The Anti-Tobacco Crusade” by Joseph Kellard, Capitalism magazine, March 1998, argues from a viewpoint supportive of Ayn Rand’s Objectivism. In Colorado, the Independence Institute maintains a Center for Personal Freedom run by Linda Gorman which draws the connection to other paternalist crusades on issues like drinking, seatbelt use and mandatory helmet laws. The Heritage Foundation’s Todd Gaziano makes the case that a proposed federal lawsuit against tobacco companies is “elevating politics over law” (July 30, 1999 Backgrounder). Overlawyered.com‘s editor has taken exception to the retroactivity of the crusade, to its manipulative treatment of children, and to the hardball or demagogic tactics used in the Castano and Engle cases. Rep. Chris Cox (R-Calif.) delivered a notable critique of the tobacco litigation at a Congressional hearing held Dec. 10, 1997 (no longer online).
An extensive site offering an aggressive defense of smoking and smokers, along with a large collection of links, is Forces International (“Fight Ordinances and Restrictions to Control and Eliminate Smoking”).
October 30-31 – “Give It Back to the Indians?” Just out: our editor has an article in the new issue of City Journal (Autumn) on how the sad history of Indian land claim litigation in the Northeast — in which, over the past 25 years, the courts have allowed tribes to revive territorial claims thought to have been resolved as long ago as the presidency of George Washington — may prefigure the misery in store if our legal system gives the go-ahead to lawsuits over slavery reparations. (DURABLE LINK)
October 30-31 – Deflating Spitzer’s crusade. Long but incisive article by Michael Lewis challenging the much-bruited notion that Wall Street skullduggery was mainly responsible for the boom and bust in tech stocks, and specifically deflating the pretensions of New York Attorney General Eliot Spitzer, who’s positioned himself at the forefront of the resulting legal crusade. Among Lewis’s key points: 1) the boom was no mere artifact of Wall Street hype, big firms like Merrill Lynch having mostly followed the investing public into tech mania rather than leading them there; 2) the line between visionary rethinking of current business practice and hallucinatory speculation was nowhere near as clear at the time as it seems in hindsight; 3) the supposedly occult conflict of interest between research and underwriting was hidden in such plain sight that anyone paying half-attention to the Street should have been aware of it; 4) the boom — even given its bust — did a great deal of social good; 5) the quest to clean up the stock-touting process obscures from the public the real lesson it would do well to absorb, which is that stock-picking advice from brokerages is generally useless whether sincere or not; 6) it’s not hard to read emails as establishing guilt if you let lawyers cherry-pick a few of them out of thousands while dropping their context. (Michael Lewis, “In Defense of the Boom”, New York Times Magazine, Oct. 27). For a contrasting view, calling Lewis’s article “nonsense”, see Peter Eavis, “The Billboard: Boom Boom”, New York Press, Oct. 28. On how Spitzer came into possession of the Merrill Lynch emails that enabled him to stage-manage much of this summer’s news flow, see Nicholas Varchaver, “Lawyers Target More Than Merrill”, Fortune, Jun. 10 (a plaintiffs’ lawyer evidently sent them over after settling a suit with the brokerage; the resulting Spitzer-driven publicity brought a bonanza of new cases to the lawyer’s door). (DURABLE LINK)
October 30-31 – Mistrial in Providence lead-paint case. “The six-member jury sent a note to the judge shortly after 2 p.m. that it could not reach a unanimous decision on whether the paints constituted a public nuisance.” (“Mistrial declared in landmark lead paint trial”, Providence Journal, Oct. 29; AP/Law.com, Oct. 30). “Four jurors [on the six-person panel] sided with the paint companies and two voted for the state. … About one minute after the mistrial became public, the stock prices of several defendants began shooting up …. The Sherwin-Williams Co. alone increased in value by nearly half a billion dollars.” (Peter B. Lord, “Trailblazing lead paint trial ends in deadlock”, Providence Journal, Oct. 30). So it’s back to surface-prep work for the closely watched effort to cover the world with litigation (see Oct. 28), and trial lawyers can’t be happy about the fact that their chief ally in the matter, Rhode Island attorney general Sheldon Whitehouse, will be departing office shortly. Have they painted themselves into a corner? Whitehouse for his part blames the paint companies for being “litigious”, recalling the famous French saying: “It is a very vicious animal. When attacked, it defends itself.” Update: see also “The Hand of Providence” (editorial), Wall Street Journal, Oct 31, reprinted at Texans for Lawsuit Reform site. (DURABLE LINK)
October 30-31 – “Nannies to sue for racial bias”. Great Britain: “Familes who hire nannies, cleaners and gardeners in their own homes face being sued for racial discrimination under a major shake-up of race relations laws. … Under plans to be published by the Home Office in the next fortnight, the Race Relations Act is expected to be tightened to include private householders as part of sweeping changes expected to trigger a flood of new tribunal cases. Householders could be taken to tribunals if they behave in a racist manner towards domestic help, for example, by refusing to hire a black carer for children. … The only exemption would be if they can show a ‘genuine occupational requirement’ to hire someone of a particular racial group — such as an elderly Muslim woman who wanted a home help who was also a Muslim. Critics will argue that the change could cause a legal nightmare for ordinary families, who could face bills for damages running into thousands of pounds unless they read up on the intricacies of employment law.”
Initial opposition to the new proposals appears to be tepid at best: thus the Conservative party’s shadow industry minister merely voices doubts about whether the measure is “likely to be effective,” while a spokesman for the Confederation of British Industry “said it would broadly welcome the changes,” though the CBI did express misgivings about another of the proposals in the antibias package, under which “for the first time the burden of proof in all employment tribunals would …be shifted so that it is effectively up to employers to prove they are not racist, rather than workers to prove that there was discrimination, so long as there is a prima facie case to answer.” (Gaby Hinsliff, The Observer (U.K.), Oct. 20). (DURABLE LINK)
October 30-31 – Monday: 13,555 pages served on Overlawyered.com. October 28 was one of our busiest days yet on the site, with traffic boosted by reader interest in our link roundups on the Moscow hostage episode (especially the WSJ‘s “Best of the Web” mention) on top of the 4,000-6,000 pages that we’re accustomed to serve on a more ordinary weekday. Thanks for your support!
P.S. Oops! Our unfamiliarity with our new statistics program led us to overcount: the Oct. 28 figure should have instead been 9,800 pages served, and the “regular” range 3,500-5,000. Still pretty good. (DURABLE LINK)
October 28-29 – Welcome WSJ Best of the Web readers. Readers looking for our earlier coverage of the Moscow theater siege will find it here and here.
MORE COVERAGE: Among accounts of the theater storming based on firsthand interviews are Alice Lagnado, “As dawn neared, a light mist suddenly came down”, Times (U.K.), Oct. 28, and Mark MacKinnon, “‘All they had to do was push the button’”, Globe and Mail (Canada), Oct. 28. The Bush White House declined to blame the Russian authorities for the hostage toll, saying responsibility rests with the captors: “The Russian government and the Russian people are victims of this tragedy, and the tragedy was caused as a result of the terrorists who took hostages and booby-trapped the building and created dire circumstances,” said spokesman Ari Fleischer. ( “White House: Blame Lies With Captors”, AP/Yahoo, Oct. 27). Other commentaries: Kieran Healy (Oct. 27), Mark Kleiman (Oct. 27); Mark Riebling reader comments. (DURABLE LINK)
October 28-29 – Ambulances, paramedics sued more. “A growing ambulance industry is learning that malpractice suits are not just for doctors anymore. … [one defense lawyer] says there’s a tough lesson to be learned in all ambulance cases. ‘You can do everything right, and you can still get sued.’” Includes a revealing quote from a Boston plaintiff’s lawyer about how he tries to get jurors so upset at alleged bumbling by ambulance operators that they “make short work” of the crucial question of whether that conduct was actually responsible for the patient’s injury. (Tresa Baldas, “Mean Streets”, National Law Journal, Oct. 23). (DURABLE LINK)
October 28-29 – Anticipatory law enforcement. Following the lead of some other jurisdictions, the city of Cincinnati has adopted new ordinances targeting men who patronize prostitutes (“johns”) by allowing the city to seize their cars. The ordinances don’t take effect until next month, which hasn’t kept the city police department’s vice unit from carrying out a significant number of car impoundments already, 13 in one week. “Even though the ordinances haven’t gone into effect yet, [Lt. John] Gallespie said the cars were impounded ‘for safekeeping.’” (Craig Garretson, “Police seize ‘johns’ cars”, Cincinnati Post, Oct. 21). (DURABLE LINK)
October 28-29 – R.I. lead paint case goes to jury. Rhode Island’s lawsuit against the lead paint industry, a concoction of ambitious trial lawyers and the politicians they love, has now gone to a jury after a two-month trial that’s been curiously underpublicized considering the case’s implications for American industry (“Jury deliberates for second day in lead paint case”, AP/CNN, Oct. 25). The state “is pursuing the novel claim that the defendant manufacturers and distributors of lead paint or lead created a public nuisance and should be held responsible for cleaning up what’s remaining in thousands of buildings in the state. The first phase of the trial will consider only one question — whether the presence of lead paint in Rhode Island buildings constitutes a public nuisance.” If the jury votes in favor of that theory, later phases of trial will consider such issues as fault and damages. (Margaret Cronin Fisk, “Rhode Island to Try First State Suit Over Lead Paint”, National Law Journal, Aug. 19).
Perhaps the best journalistic treatment we’ve seen of this travesty is found in a Forbes cover story from last year that is available now in fee-based archives (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14, 2001). The article explores how the nation’s richest tort law firm, Charleston, S.C.-based tobacco-asbestos powerhouse Ness Motley, moved into Rhode Island and quickly made itself the state’s largest political contributor, around the same time as it was picking up a contingency fee contract from state attorney general Sheldon Whitehouse to represent the state in the lead paint litigation. (Whitehouse proceeded to run for governor this year, but lost narrowly in the Democratic primary). To date, while trial lawyers have recruited numerous cities, counties and school districts around the country to sue paint makers, they have not persuaded any other states to join Rhode Island in its action (see our commentary of Jun. 7, 2001). At the same time, there are plenty of reasons to mistrust the contention that a “lead poisoning epidemic” can somehow be blamed for educational failure and crime among young people in inner-city neighborhoods like South Providence, R.I. Levels of lead exposure once typical of American children have now been retrospectively redefined as “poisoning”, thus ensuring the sense of a continuing crisis (see our commentary of Jun. 8-10, 2001). See also Steven Malanga, “Lead Paint Scam”, New York Post, Jun. 24. Update Oct. 30-31: judge declares mistrial after jury deadlock. (DURABLE LINK)
October 28-29 – Looking back on EEOC v. Sears. Among the most monumental and hard-fought discrimination lawsuits ever was the Equal Employment Opportunity Commission’s years-long courtroom crusade against Sears, Roebuck during the 1980s over the statistical “underrepresentation” of women in some of its employment categories, such as hardware and commission sales. (Sears won, and the case became one of the Commission’s most humiliating defeats.) In one of the controversies spawned by the case, Barnard College historian Rosalind Rosenberg was attacked by many colleagues in the field of women’s studies for supposedly betraying women’s equality by allowing her scholarship to be used in the retailer’s defense. Now John Rosenberg, who was formerly married to Rosalind Rosenberg and who also worked in the Sears defense, offers a partial memoir of the episode (Oct. 25) on a new weblog titled Discriminations in which his focus will be “on the theory and practice of discrimination, and how it is reported and analyzed.” (The piece begins with an introductory riff concerning UC Irvine history professor Jon Weiner, one of those assailing Rosalind Rosenberg in the mid-1980s controversy; Weiner recently caused many a jaw to drop by stepping forward in the Nation to defend disgraced Arming America author Michael Bellesiles.) (via InstaPundit). (DURABLE LINK)
October 28-29 – Satirical-disclaimer Hall of Fame. Lawyer-driven warning labels and disclaimer notices are easy to play for laughs, and readers often bring funny satires to our attention (like Dave Barry’s). Few are worked out in as much detail, however, as this splash page on the website of The Chaser, an Australian humor magazine (scroll down): “Maintain good posture at all times while reading … may cause paper cuts … Please avoid mixing The Chaser with water and glue, which could … cause some readers to be caught in a papier mache death trap. … The Chaser is flammable. Do not set fire to your copy of The Chaser, whether with a match, cigarette lighter … [or] shining a magnifying glass on a particular little spot. … Do not shred The Chaser and use it as confetti. … We make no guarantees as to the longevity of any marital unions formed whilst using The Chaser in any part of the ceremony …”. And a whole lot more — give it a look. (DURABLE LINK)
October 26-27 – Moscow hostage crisis, updated. According to Russian authorities, at least 118 hostages were killed and more than 700 were freed after security forces stormed the theater; most of the 50 terrorist captors were also killed and all or nearly all of the rest captured. After the terrorists started executing hostages, the crowd of captives had begun to flee in panic; security forces had also pumped a kind of sleeping gas into the theater. (“Moscow Hostage Death Toll Up to 118″, AP/ABC News, Oct. 27; “Russian forces storm siege theatre”, BBC, Oct. 26; Moscow Times). Contradicting earlier accounts from authorities, “Moscow’s chief physician said Sunday that all but one of the 117 hostages who died … were killed by the effects of gas used to subdue their captors.” (AP/Washington Post, Oct. 27). “If the theatre had not been stormed, all hostages would have been killed, the Interfax journalist who was among the hostages, Olga Chernyak, said.” (Interfax/Moscow Times, Oct. 26, and scroll for more entries). More links: AP/ABC News, Oct. 26; Washington Post, Oct. 27; BBC, Oct. 27; Damian Penny. Dilacerator offers a commentary (Oct. 26), as does Natalie Solent (Oct. 27). Thanks to InstaPundit and Eugene Volokh for their links to our extensive coverage below.
More: London’s Telegraph reports that it “has learned that a number of Arab fighters, believed to be of Saudi Arabian and Yemeni origin, were among the group that seized control of the theatre. ‘There were definitely Arab terrorists in the building with links to al-Qa’eda,’ said a senior Western diplomat. … Russian officials said that the hostage-takers had made several calls to the United Arab Emirates during the siege.” (Christina Lamb and Ben Aris, “Russians probe al-Qa’eda link as Moscow siege ends with 150 dead”, Sunday Telegraph (UK), Oct. 27). Although the Moscow terrorists (like those who carried out the hijacking of United Flight 93) had magnified public terror by allowing their captives to use cell phones to call their families, the tactic once again backfired, because the resulting exchange of information made it easier to thwart the terror plans: see Preston Mendenhall, “Cell phones were rebels’ downfall”, MS/NBC, Oct. 26. And Russia’s Gazeta reports that: “A 27-year-old resident of Chechnya has been detained by Moscow law enforcers on suspicion of having carried out the October 19 car bomb attack on a McDonald’s restaurant” in which one was killed and seven injured. Authorities had previously sought to blame the bombing on gangland rivalries, but “in the light of the recent events in Moscow, the prosecutor’s office does not rule out that the explosion may have been a terrorist attack.” (“Suspect detained in McDonald’s blast inquiry”, Gazeta.ru, Oct. 25). (DURABLE LINK)
October 25-27 – Updates. New developments in cases we’ve followed:
* “Manhattan Supreme Court Justice Charles E. Ramos on Tuesday froze further payments on a $625 million arbitration award to the six law firms that represented New York state in its litigation against the tobacco industry until he finishes reviewing the reasonableness of the sum.” (Daniel Wise, “Judge Freezes $625M Tobacco Award to Law Firms”, New York Law Journal, Oct. 23) (see Jul. 30-31).
* “The Canadian Transportation Agency has dismissed the complaint of an obese Calgary woman who argued her size was a disability and that airlines shouldn’t make her pay extra for a larger seat. ‘Being unable to fit in a seat should not be enough evidence of the existence of a disability as many people experience discomfort in the seat,’ the agency said in a decision released Wednesday. Calgary law professor Linda McKay-Panos, who described herself in documents as ‘morbidly obese,’ launched the process in 1997 after having to pay Air Canada for 1.5 seats because of her size.” (Judy Monchuk, “Federal board nixes Calgary woman’s bid for seat-price break for obese flyers”, Canadian Press, Oct. 23)(see Dec. 20, 2000). And in the United Kingdom, a “woman injured while squeezed next to an obese passenger on a trans-Atlantic flight has been given £13,000 ($20,000)” by Virgin Atlantic Airways. (“Woman squashed by plane passenger”, CNN, Oct. 22).
* In Paris, a panel of three judges has declared French writer Michel Houellebecq not guilty of inciting racial hatred after he was sued by four Muslim groups for delivering remarks contemptuous of Islam (“French author cleared of race hate”, BBC, Oct. 22)(see Aug. 23-25, Sept. 18-19).
* “A three-judge panel of the Michigan Court of Appeals has tossed a $29.2 million civil court judgment against The Jenny Jones Show, after deciding the syndicated chatfest should not be held liable for protecting a guest who was gunned down after revealing he had a crush on another man.” (Josh Grossberg, “‘Jenny Jones’ Vindicated”, E! Online, Oct. 23). The case is another setback for controversial Michigan attorney Geoffrey Fieger, who promptly launched a characteristically intemperate attack on the appeals judges (Stephen W. Huber, “Court tosses $29M award against ‘Jenny Jones Show’”, Oakland (Mich.) Press, Oct. 24) (see May 31, 2001). More: Michigan’s LitiGator (Oct. 25).
* “Voting 2-1, the 3rd U.S. Circuit Court of Appeals has ruled that the Southeastern Pennsylvania Transit Authority’s (SEPTA) physical fitness test for job applicants of its transit police force is perfectly legal — even though it has a ‘disparate impact’ on women — because it serves as a true measure of ‘the minimum qualifications necessary for the successful performance of the job.’ …the plaintiffs claimed that the test discriminates against women because it requires all applicants for the SEPTA police force to run 1.5 miles in 12 minutes.” (Shannon P. Duffy, “3rd Circuit Rules Fitness Test for Police Force Applicants Legal”, The Legal Intelligencer, Oct. 16) (see Sept. 15, 1999, Oct. 5-7, 2001). “Interestingly, two female appellate judges joined in the opinion rejecting this claim of sex discrimination, while a male appellate judge dissented,” notes Howard Bashman (Oct. 15).
* In Australia, a judge has ruled against the Pentecostal worshiper who sued claiming a “church had been negligent by not providing someone to catch her when she was ‘slain in the spirit’” during a 1996 service, causing her to fall down and strike her head on a carpeted concrete floor. (Kelly Burke, “Church not liable for Lord’s early fallers”, Sydney Morning Herald, Oct. 19)(see Oct. 1-2). (DURABLE LINK)
October 24 – Pa. statehouse race: either way, Big Law wins. “In a race that will easily break Pennsylvania gubernatorial spending records, the top givers are lawyers, by far. … [Republican Mike] Fisher has received $125,000 since June from two law firms he named, as attorney general, to handle a state lawsuit against tobacco companies.” (see Jan. 10, 2000). “But the firms, which split $50 million in legal fees, have hedged their bets by also donating $107,000 to [Democrat Ed] Rendell.” And the Pennsylvania Trial Lawyers Association has endorsed Rendell, who is considered less likely than Fisher to support curbs on medical malpractice lawsuits. (Tom Infield and Rose Ciotta, “Lawyers top givers to Fisher, Rendell”, Philadelphia Inquirer, Oct. 22). As mayor of Philadelphia, Rendell also made himself a booster of the abusive campaign of municipal litigation against gun manufacturers, though he held back from filing an actual suit given the unpopularity of such a move with the non-urban voters needed to win a statewide race in Pennsylvania (see Dec. 22, 2000). (DURABLE LINK)
October 24 – Suit: schoolkids shouldn’t attend rodeo. Two animal rights groups have filed suit “asking a San Francisco Superior Court judge to keep Bay Area schoolchildren from going to the free Grand National Rodeo day for students, which will be held at the Cow Palace on Thursday and may be repeated next year.” As many as 9,000 students are expected to attend the event. “Gina Snow, a spokeswoman for the San Francisco Unified School District, said children are only allowed to attend with parental permission, and that the decisions to participate are made by individual teachers.” Attorney David Blatte of Berkeley “focuses all his work on ‘animal law’”. (Dan Reed, “Suit: Rodeo bad for kids”, San Jose Mercury News, Oct. 23). And Matthew Scully’s new book Dominion, a conservative’s defense of animal welfare, “asks all the right questions about animal rights, even if it doesn’t canvass all the possible answers”, according to the summary of a review by Christopher Hitchens in The Atlantic (“Political Animals”, Nov.) (DURABLE LINK)
October 24 – “California Court Upholds $290 Million Injury Jury Award Against Ford”. “The California Supreme Court let stand on Wednesday a $290 million personal injury jury award levied against Ford Motor Co. stemming from a Bronco rollover accident in 1993. The justices, without publicly commenting, decided at their private weekly conference to uphold what Ford, in court briefs, called the nation’s largest personal injury award ever affirmed by an appellate court.” (Quicken/AP, Oct. 23; Mike McKee, “California Justices Let Stand $290M Award Against Ford”, The Recorder, Oct. 24). When the original trial verdict was reported, we looked in some detail (Aug. 24 and Sept. 17-19, 1999; see also Aug. 27, 2002) at the very curious influences that held sway during the jury’s deliberations, including one juror’s lurid dream revealing Ford’s guilt, and another’s misrecollection of a “60 Minutes” episode which purportedly proved the company’s bad faith. (DURABLE LINK)
October 24 – Russia’s fight, and ours. “Gunmen identifying themselves as Chechens took more than 700 people hostage inside a Moscow theater Wednesday night, threatening to kill some of the hostages and telling police they had mined portions of the building.” (“Chechen gunmen seize Moscow theater”, CNN, Oct. 23; Michael Wines, “Chechens Seize Moscow Theater, Taking as Many as 600 Hostages”, New York Times, Oct. 24 (reg); AP/ABC, “Rebels Take Moscow Audience Hostage”, Oct. 23). “Local media said children, Muslims and foreigners who could show their passports were allowed to leave the building. The reports could not be confirmed.” (Natalia Yefimova, Torrey Clark and Lyuba Pronina, “Armed Chechens Seize Moscow Theater”, Moscow Times, Oct. 24). Chechen militants have repeatedly seized civilian hostages in groups of hundreds and even thousands, as well as claiming credit for railway-station bombings in Russia (“Chechen rebels’ hostage history”, BBC, Oct. 24; “Chechen rebels hold at least 1,000 hostages in hospital”, CNN, Jan. 9, 1996; Adnan Malik, “Hijackers Free Women and Kids”, AP, Mar. 15, 2001; “Separatists’ history of hostages and horror”, Sydney Morning Herald, Oct. 24). Since 9/11 U.S. officials have been less inclined to dispute “Russia’s long-standing claim that the Chechen rebellion, which spills over into neighboring Caucasus republics, is not just a local independence movement, but has become a full-blown subsidiary of the global Islamic terror network headed by [Osama] bin Laden.” (Fred Weir, “A new terror-war front: the Caucasus”, Christian Science Monitor, Feb. 26). Also see, on the al-Qaeda-Chechnya connection, Mark Riebling and R. P. Eddy, “Jihad@Work”, National Review Online, Oct. 24, and BBC, Oct. 23. The Moscow Times has a list of the names of the Westerners who are being held hostage, who include three Americans, two Britons, two Australians, and a Canadian, as well as various others (Kevin O’Flynn, “Europeans, Americans Inside Theater”, Oct. 25). Asparagirl (Oct. 23) wouldn’t be surprised if it happened here.
More: In “footage aired by Qatar’s al-Jazeera satellite TV”, a chador-clad woman who said she was one of the Chechen hostage-takers said: “We have chosen to die in Moscow and we will kill hundreds of infidels.” (“We’ll kill hundreds of infidels: Hostage-taker”, AFP/Times of India, Oct. 24). “‘I swear by God we are more keen on dying than you are keen on living,’ a black-clad male said in the broadcast believed to have been recorded on Wednesday.” Another hostage-taker, while denying that the terrorists were operating as part of al-Qaeda, told the BBC: “We have come to die. …we want to be in paradise.” (BBC, “Hostage-takers ‘ready to die’”, Oct. 25). The Russian press is treating the unfolding events as “Russia’s Sept. 11″. (BBC, Oct. 25). In an echo that Americans will find familiar, “Many channels have broadcast chilling messages from the hostages themselves, calling from their mobile phones.” (“Distant war comes to Moscow”, BBC, Oct. 24).
According to London’s Evening Standard, the terrorists are disinclined to release any more of their foreign hostages because they suspect that international interest in the episode might wane if they did so. (“Britons still held in Moscow siege”, Oct. 25). Reportedly one of the American hostages, Sandy Alan Booker, 49, who was vacationing in Moscow, hails from Oklahoma City, Okla. (“Chechen Gunmen Threaten to Begin Killing Hostages at Dawn”, AP/FoxNews, Oct. 25). Update: Russian security forces storm theater, ending siege, with more than 100 hostages killed along with most of the captors: see Oct. 26.
FURTHER: Some London, Broadway and European theater owners have stepped up security, but Andre Ptaszynski, chief executive of Andrew Lloyd Webber’s chain of 14 London theaters, virtually boasts of not taking such threats seriously, explaining that an outrage by the Irish Republican Army against the West End is considered unlikely; apparently Ptaszynski is unable to think of any other groups that might harbor terrorist designs on London. (Matt Wolf, “Some Theaters on Alert After Siege”, AP/Yahoo, Oct. 25; “London theatres increase security”, BBC, Oct. 25 (via Jen Taliaferro). Riebling and Eddy, in NRO, note: “the tactics of Chechen jihadists are regarded by the FBI as a possible indicator of al Qaeda methods in the U.S.” (DURABLE LINK)
October 23 – Batch of reader letters. We’ve been remiss in keeping up with the inbox, but here are eight letters on subjects that include lawyers’ penchant for doing things expensively, a sane damage award in Ireland, Enron’s lawyers, lawsuits over avocados and anchovies, suitable targets of gamblers’ suits, George W. Bush’s record on tort reform, whether free speech should have a racism exception, and Western wildfires. More letters are on deck for later, too. (DURABLE LINK)
October 23 – Artificial hearts experimental? Who knew? “The widow of artificial-heart recipient James Quinn yesterday sued the maker of the device, the hospital where it was implanted, and the patient advocate who helped Quinn decide to have the surgery.” The 51-year-old man survived more than eight months after receiving the mechanical heart last November, but his “initially remarkable recovery was followed by months in the hospital.” The suit says Quinn had “no quality of life and his essential human dignity had been taken from him.” “Irene Quinn said yesterday that she and her husband did not know what they were getting into when they joined the clinical trial. They thought the machine would save his life, she said. She said they should have been told more about what earlier patients had experienced and that it should have been made more clear just how experimental the device was.” (Stacey Burling, “Widow sues artificial-heart maker”, Philadelphia Inquirer, Oct. 17; “Lawsuit over artificial heart”, CBS News, Oct. 17; MedRants, Oct. 18). (DURABLE LINK)
October 22 – “Judge: Disabilities Act doesn’t cover Web”. An important ruling, but one that’s unlikely to be the last word, on a controversy we’ve covered extensively in the past: “A federal judge ruled Friday that Southwest Airlines does not have to revamp its Web site to make it more accessible to the blind. In the first case of its kind, U.S. District Judge Patricia Seitz said the Americans with Disabilities Act (ADA) applies only to physical spaces, such as restaurants and movie theaters, and not to the Internet.” Quotes our editor who mentions the possible headaches the ADA could pose even to a modest site like this one, if it turns out to apply to the web. (Declan McCullagh, CNet/News.com, Oct. 21)(opinion). More: Matthew Haggman, “Judge Tosses Suit That Said ADA Applies to Business Web Sites”, Miami Daily Business Review, Oct. 25. (DURABLE LINK)
October 22 – “Nanny Bloomberg”. This site’s editor also has an op-ed in the Wall Street Journal today on the New York mayor’s crusade against smoking in bars. It’s available only to online subscribers of the Journal, unfortunately. (DURABLE LINK)
October 22 – “‘Penney’s prevails in shopper suit”. A Tennessee Court of Appeals judge has upheld a lower court’s rejection of a $600,000 lawsuit by Carolyn and Robert L. Wells against the retailer J.C. Penney. Mrs. Wells had told the court that she had been shopping for collectible crystal figurines on sale at a Penney store in Shelby County when an ill-mannered fellow shopper wrested two crystal bears from her hands, inflicting injuries on her shoulder, neck and back. However, Judge Holly K. Lillard said that the confrontation, which “demonstrates the dangers of the cutthroat arena of after-Christmas bargain shopping,” was one whose particulars the store could not have foreseen. (Tom Sharp, AP/GoMemphis.com, Oct. 12). (DURABLE LINK)
October 21 – Rethinking grandparent visitation. Among the litigation-encouraging developments in family law in recent years has been the rise of laws enabling grandparents to sue demanding rights to visit their grandchildren even against the wishes of a fit parent. But both courts and lawmakers are growing disenchanted with such laws. One Seattle attorney charges that grandparents with time on their hands engage in “recreational litigation”. (Annie Hsia, “About Grandma’s Visits …”, National Law Journal, Oct. 14). (DURABLE LINK)
October 21 – “Judicial Hellholes”. After surveying its members, the American Tort Reform Association presents a report describing the most frequently identified “Judicial Hellholes”, localities in which litigation abuse is common and civil defendants find it hard to get a fair trial. On the list are Alameda, Los Angeles and San Francisco counties, California; notorious counties in Mississippi, Illinois, and Texas; and others. Is your hometown court on the list? (“Bringing Justice to Judicial Hellholes 2002″, report in PDF format). (DURABLE LINK)
October 21 – “Our friends are at war, too”. “The first soldier to die in combat in Afghanistan was an Australian. … We’re not just fellow infidels, but brothers on a field of battle that stretches from Manhattan to Bali. If the American media don’t understand that, then the American president needs to remind them.” (Mark Steyn, “Our friends are at war, too”, Chicago Sun-Times, Oct. 20). See Oct. 14; also Tom Allard and Mark Baker, “PM’s vow: we’ll get the bastards”, Sydney Morning Herald, Oct. 21; Tim Blair, “Killing terrorists wipes out terror”, The Australian, Oct. 17; Virginia Postrel (scroll to Oct. 17 and Oct. 16 posts). (DURABLE LINK)
October 21 – “Demand for more ugly people on TV”. “Lecturer Trond Andresen of the Norwegian Institute of Technology in Trondheim accuses the media of discriminating against the ugly and emphasizing beautiful people whenever possible. Andresen wants higher ugly quotas on television. ‘Ugly people should be spotlighted in the media in the same way that the media wishes to emphasize persons from ethnic minorities,’ Andresen, a lecture at the Department of Engineering Cybernetics, said to newspaper Bergens Tidende.” (Aftenposten, Oct. 17). (DURABLE LINK)
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August 30-September 2 – Banish those desk photos of spouse at beach. A few years ago, when a Nebraska graduate student was targeted with a complaint from a university colleague for displaying a photo at his workplace of a woman in skimpy beachwear who happened to be his wife, some assumed it was a fluke case. But it wasn’t. “[D]esktop photographs of bikini-clad girlfriends or bare-chested husbands … could result in sexual harassment claims, lost productivity or a tarnished company image, say employment experts. ‘Employers have a duty to provide a work environment that is not objectionably and subjectively hostile, so the days of pinups in the locker room should be past,’ says John Lowe IV, an attorney in Kegler Brown Hill & Ritter’s Columbus labor and employment practice group.” Yep, they’re perfectly serious (Betsy Butler, “Dress code good strategy for desktop photo display”, Columbus Business First, Aug. 23). (DURABLE LINK)
August 30-September 2 – Intel sued in notorious county. Lawyers have filed a lawsuit seeking class-action status on behalf of personal computer owners “against Intel, Gateway, and Hewlett-Packard alleging the companies misled them into believing the Pentium 4 was a superior processor to Intel’s own Pentium III and AMD’s Athlon. The complaint — Neubauer et al v. Intel et al — was filed June 3 in the Third Judicial Circuit in Madison County, Illinois.” (Tom Mainelli, “Intel, PC Makers Sued Over P4 Performance”, PCWorld.com, Aug. 16; discussion, StorageReview forums). Litigation buffs will immediately recognize the chosen venue, Madison County, Ill., as being perhaps the most celebrated destination in the country for class-action “forum-shopping”, its courts recognized as unusually accommodating to the designs of the lawyers who file such suits. For one recent view of the county’s reputation, see: Adam Liptak, “Court Has Dubious Record as a Class-Action Leader”, New York Times, Aug. 15 (reg) (DURABLE LINK)
August 30-September 2 – Second Circuit: we mean business about stopping frivolous securities suits. The New York law firm of Jaroslawicz & Jaros “faces nearly $200,000 in sanctions after a federal appeals court said it had not received a severe enough penalty for an abusive securities fraud suit.” The 2nd U.S. Circuit Court of Appeals has weighed in three times on the case; among its rulings was that “the presence of some nonfrivolous claims in an otherwise frivolous complaint is not sufficient, standing alone, to establish that either the violation of Rule 11 [the main federal rule providing sanctions against meritless litigation] was de minimis or that the sanctions would create an unreasonable burden, for purposes of overcoming the statutory presumption of the PSLRA [Private Securities Litigation Reform Act of 1995].” (Tom Perrotta, “2nd Circuit Imposes Stiff Fine in Securities Fraud Case”, New York Law Journal, Aug. 27). Mr. David Jaroslawicz, of Jaroslawicz & Jaros, last figured in these chronicles on Jan. 17, 2000, after he was quoted in the New York Observer as hoping to spearhead a wave of sexual-harassment suits against the then-flush firms of New York’s Silicon Alley. (DURABLE LINK)
August 29 – 7.000 missing colors, many of them crisply green. Last week Palm, the handheld computer maker, conceded that although it had advertised its m130 model, introduced in March, as displaying 65,536 different colors or color combinations, the actual number is a mere 58,621 — “approximately 11 percent fewer color combinations than we had originally believed”, as a Palm spokeswoman said. Attorneys with the Philadelphia law firm of Sheller, Ludwig & Bailey promptly filed a lawsuit in Santa Clara, Calif. Superior Court seeking class-action status on behalf of Palm’s customers, traumatized as they no doubt were by this hue shortfall. Legal experts predict that Palm will most likely settle rather than face the legal uncertainties and bad publicity of a protracted suit, but that customers shouldn’t expect anything more than coupons, future discounts and the like. “It’s hard to put a dollar figure on how much you have been damaged because your computer won’t do some particular feat you might never ask it to do anyway,” said Norman Spaulding, a professor at the Boalt Hall School of Law at the University of California at Berkeley. (Elisa Batista, “Palm Handed Suit Over Colors”, Wired News, Aug. 24). (DURABLE LINK)
August 29 – Discrimination suit roundup. “The state of New Jersey has agreed to pay $250,000 to settle claims by three black men who said they were victims of racial profiling by the New Jersey state police. Attorney Stefan Presser of the American Civil Liberties Union of Pennsylvania said the settlement is the largest ever in a civil rights suit in which the victims were neither physically injured nor jailed” and says New Jersey should adopt it a model for other cases where black motorists were stopped and questioned without adequate justification. (Shannon P. Duffy, “New Jersey Settles Profiling Suit for $250,000″, The Legal Intelligencer, Aug. 22). The Taco Bell chain has agreed to pay $160,000 to settle the racial discrimination claims of a St. Louis family who, traveling 24-strong on a chartered bus through Cullman, Ala. in July 1998, waited about 15 minutes after requesting service. Each of the 24 will get about $1,000; the settlement “includes another $111,000 for attorney expenses and more than $17,000 in attorney fees.” (“Taco Bell settles discrimination lawsuit”, AP/NBC13.com, Aug. 26). And New York gubernatorial hopeful Andrew Cuomo, the former federal housing secretary and gun-suit backer, has called for legislation to make discrimination a felony — we’ll sleep a lot sounder knowing errant taco-chain managers are behind bars. (“Cuomo: Make Discrimination a Felony”, News12/The Bronx, Aug. 25). (DURABLE LINK)
August 28 – “Parents suing youth football league”. Texas: “Parents of a fifth-grade boy asked the courts Tuesday to throw a yellow penalty flag on Katy Youth Football over a rule change that switched players to different teams after practice started. In a lawsuit filed Tuesday, an attorney sued the Katy Youth Football league on behalf of his son. The boy had played with his grade-level team before being switched because of age to a junior high-level group with “significantly larger” players. Russell Van Beustring and his wife, Pamela Van Beustring, are asking a judge to order the league to revert to rules in place when children registered in May.” (Jo Ann Zuniga, Houston Chronicle, Aug. 20). (DURABLE LINK)
August 27 – Ford rollover verdict: you read it here first. We usually refrain from running items pointing out that we covered one or another litigation story before the major media picked it up. However, we can’t help noting for the record that we were three years (!) early in beating the New York Times to the facts of the case they gave front page treatment to yesterday, namely Romo v. Ford Motor, “the largest punitive award ever affirmed by an American court in a personal injury case: $290 million to the family of three people killed in the rollover of a Ford Bronco.” (Ford has asked the California Supreme Court to review an intermediate court’s upholding of the award.) We’re glad to see this case finally getting some attention, and glad to find the Times highlighting the same angle of the case that we found most striking, the very strange goings-on in the jury room: one juror recounted to her colleagues a gruesome, omen-like dream revealing Ford’s guilt, while another juror passed on to her colleagues the contents of a badly misremembered “60 Minutes” episode also supposedly establishing the carmaker’s malign state of mind. The Times sees all this as reason to hold a public debate about whether juries’ determinations of such issues as punitive damages are sufficiently reliable to count as law at all. We don’t mind having such a debate — we just wonder why we couldn’t have had it three years ago, when all the same facts were on the public record (see this site’s entries for Aug. 24, 1999 and Sept. 17-19, 1999). (Adam Liptak, “Debate Grows on Jury’s Role in Injury Cases”, New York Times, Aug. 26 (reg))(& update Oct. 24: California Supreme Court leaves verdict intact)
P.S. While on the subject of juror misconduct, Vanderbilt University law professor Nancy J. King found in a study “that modern-day judges, while acknowledging that sleeping jurors are a fairly common sight, do not see them as a serious threat to the fairness of trials.” So comforting! “In June, two members of the jury that convicted the accounting firm [Arthur Andersen] of obstruction of justice told Texas Lawyer, an affiliate of The National Law Journal and law.com, that two colleagues slept through parts of the six-week trial, and that the alleged nappers were in such a fog that one thought NASA was involved in the case and the other believed that prosecution star witness David Duncan was the one on trial.” In a 1987 case, Tanner v. United States, 483 U.S. 107, “a majority composed of the U.S. Supreme Court’s most conservative members” declined to overturn Anthony Tanner’s conviction for mail fraud despite testimony from two jurors that several of their colleagues had dozed off; one juror in his affidavit said “the jury was on one big party,” and that consumption of marijuana, liquor and cocaine at lunch all contributed to later drowsiness. (Gary Young, “Asleep at the Trial”, National Law Journal, Aug. 21). (DURABLE LINK)
August 27 – OxyContin wins one in West Virginia. A judge has dismissed a case filed against Purdue Pharma, maker of the pain medication, on behalf of the estate of a 41-year-old drug abuser who died after crushing the pills and injecting them into her bloodstream. The Charleston Daily Mail editorially draws some lessons about personal responsibility (Aug. 23)(see Apr. 10 and links from there). (DURABLE LINK)
August 26 – “Junk fax” suit demands $2 trillion. The Federal Communications Commission recently took enforcement action against the enterprise Fax.com for (it said) extensively violating the federal law banning unsolicited commercial fax-sending. Last week Silicon Valley entrepreneur Steve Kirsch (more) and another plaintiff filed suits demanding the federal statutory penalty of $500 for each unsolicited fax sent, trebled to a sum he estimates at $2.2 trillion; Kirsch says Fax.com boasts that it sends 3 million faxes a day. The gross national product of all countries on the globe stands at $29 trillion or thereabouts, which would leave the plaintiffs if successful with a claim on something like 7 percent of the earth’s annual output if they could collect it. And although it is not clear how many assets Fax.com will be found to have at the end of a suit, Kirsch is also suing for $500 per offending transmission Fax.com’s telecommunications provider, Cox Communications, as well as its advertisers. “‘We believe that there are companies with substantial assets in this group. We will seek treble damages of $1,500 per unsolicited fax from Fax.com and Cox Communications,’ Kirsch said in a statement.” (Bob Egelko, “2 trillion junk fax suit: Silicon Valley man demands Fax.com end unsolicited messages”, San Francisco Chronicle, Aug. 22; Andrew Quinn, “Lawsuits Seek $2.2 Trillion over ‘Junk’ Faxes”, Reuters/IEEE Spectrum, Aug. 23). Cox Communications is a NYSE-listed company with assets of $25 billion, according to Fortune. More on junk-fax suits as “Powerball for the clever”: July 24, 2001 and links from there. Fax.com’s own website seems to be doing its best to portray the company as dedicated to charitable endeavors for the recovery of missing children, with a remarkable lack of emphasis on how it actually makes its money. (DURABLE LINK)
August 26 – R.I.: no more cheap car leases? “A Rhode Island jury has held a car-leasing company vicariously liable for the negligence of a leased car driver, resulting in a $28 million personal injury award. The verdict against the Chase Manhattan Automotive Finance Corp. — one of the largest personal injury verdicts in the state’s history — followed the Rhode Island Supreme Court’s April ruling that long-term car-leasing companies can be held liable for the actions of leased car operators under the state’s owner and lessor liability statutes.” A lawyer for Chase warned of the impact on consumers: “‘There are about one million people in Rhode Island,’ he said. ‘Assuming only 50,000 people lease their cars, leasing can become prohibitively expensive’ if lessors have to pass on the cost of multimillion-dollar verdicts.” (Annie Hsia, “Car-Leasing Company Held Liable in Crash”, National Law Journal, Aug. 19). Updates: see Mar. 12-14 and May 21, 2003. (DURABLE LINK)
August 23-25 – Prominent French author sued for “insulting Islam”. In France, the latest chapter in the hate-speech-laws vs. free-speech saga: “Prize-winning French novelist Michel Houellebecq is being sued by four Islamic organisations in Paris after making ‘insulting’ remarks about the religion in an interview about his latest book. The action against Mr Houellebecq, 44, is being launched on 17 September by plaintiffs including Saudi Arabia’s World Islamic League and the Mosque of Paris.” The plaintiffs have also brought charges against a literary magazine, Lire, in which Mr. Houellebecq reportedly said that reading the Koran is “so depressing” and called Islam “the stupidest religion”. (“Author sued over Islam ‘insult’”, BBC, Aug. 22)(see Jun. 11-12). Update Oct. 25-27: Houellebecq acquitted. (DURABLE LINK)
August 23-25 – Canada: cash demanded for drug users and panhandlers inconvenienced by film crews. In Vancouver, B.C., which has become a popular site for Hollywood location filming, a group representing sex workers, drug users and homeless people has demanded compensation for film crews’ tendency to displace or disrupt illegal street activity. “The Vancouver Area Network of Drug Users, which represents about 1,000 residents of the seedy Downtown Eastside, has sent a letter demanding compensation to 30 production firms. They include Club Six Prods., currently filming MGM’s ‘Agent Cody Banks’ starring Frankie Muniz and Angie Harmon.” The letter states: “Sex trade workers must be compensated for displacement they experience at your hands in the same manner you would compensate a business if you were to use their locale during operating hours. The same must hold true for homeless people you push from beneath a bridge or doorway, and drug users you move from a park.” The letter also asks for financial compensation for loss of residents’ panhandling opportunities. (Don Townson, “Canadian Hookers Campaign Against Hollywood”, Variety/Yahoo, Aug. 21). (DURABLE LINK)
August 23-25 – Don’t ban peanut butter from schools. A small number of kids have serious peanut allergies, and schools — under pressure from activist parents and fearful of litigation — are beginning to ban the nutritious foodstuff from their cafeterias and halls. Don’t be stampeded, advises columnist Dennis Prager: there would be less overall disruption to children as a group if schools just made a point of keeping a stock of epinephrine, the antidote to allergic shock, on hand (syndicated/Town Hall, Aug. 21). (DURABLE LINK)
August 22 – Defying the link-banners. David Sorkin, “associate professor of law at The John Marshall Law School in Chicago, Ill., is the man behind Don’t Link to Us, a Web site that exists merely to flout what it terms ‘stupid linking policies.’ Sorkin’s site was launched in reaction to recent legal decisions in which courts upheld Web site terms and conditions that prohibited or restricted links,” including a decision in which a Danish court ruled that the NewsBooster site could not link to internal story pages within various news organizations’ sites. (Paul Festa, “Site fights ‘stupid linking’”, ZDNet News, Aug. 21). (DURABLE LINK)
August 22 – Jury clobbers NYC with $21 million slip/fall verdict. “A Manhattan jury has awarded more than $21 million to a woman who tripped over a four-inch protrusion of a broken parking sign and suffered serious head injuries as a result — the largest slip-and-fall verdict ever leveled against the city. Aides to Mayor Bloomberg are calling the verdict excessive, and have vowed to use it to illustrate why limits need to be placed on the city’s liability in personal injury cases.” (Errol Louis, “A Record Liability Verdict Is Brought In Against City”, New York Sun, Aug. 21). More coverage: Susan Huners, “Sidewalk Hazard Costs NYC $21 Million”, National Law Journal, Sept. 12. (DURABLE LINK)
August 22 – We did it all for the public health, cont’d. Although fewer than 300 acres of tobacco are grown in Alabama, “Tobacco farmers in Alabama have received $500,000 from the national tobacco settlement. … [Meanwhile,] only $350,000 is being spent for anti-smoking programs, with most of that aimed at young people. Let that sink in: More money from Alabama’s portion of the national tobacco settlement goes to people who grow tobacco than to those who are trying to get people to kick their tobacco habits.” (“Strange truths” (editorial), Birmingham News, Aug. 21). (DURABLE LINK)
August 21 – Judge questions “shotgun” naming of 282 defendants in trailer-mold case. According to a May 22 report in the Baton Rouge Advocate, the Fifth Circuit has agreed to examine a dispute between Lafayette, La. attorney Barry Domingue and U.S. District Judge Tucker Melancon, who is hearing a case filed by Domingue against no fewer than 282 manufacturers. The lawsuit, which seeks certification as a class action, purports to represent plaintiffs who “unknowingly bought poorly made manufactured homes defective in design, composition and construction. The lawsuit alleges that the defective design allowed condensation to create formation of a toxic mold in the walls, making occupants sick. The companies have denied that they produce an inferior product, and they are seeking dismissal of the case. During a hearing last month, Melancon ordered Domingue to disclose to the court all investigative files and any other materials used to develop the lawsuit. The judge said Domingue would have to explain why he included the 282 companies as defendants, even though many of them haven’t done business in Louisiana and many others have gone bankrupt. The judge said Domingue would be required to pay legal fees of any companies included in the lawsuit without proper justification.” The judge also expressed skepticism toward Domingue’s contention that the manufacturers had collectively conspired to conceal the dangers of mold in trailers and were thus each open to suit. Domingue contends that Judge Melancon has become an advocate for the defense side in the litigation. (Bruce Schultz, “Lawyer attacks critical judge in mobile-home suit”, Baton Rouge Advocate, May 22). (DURABLE LINK)
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February 8-10 – Crumbs from the table. “A Las Vegas jury has found that two attorneys committed malpractice in their representation of a brain-damaged man in a personal injury suit. It awarded the man, Jason Nault, $3.3 million. The lawyers had reached a $17 million settlement that gave Nault only $2.5 million — compared with $6.6 million to his wife, from whom he’s now divorced, and $6.8 million to the lawyers.” Attorney W. Randall Mainor of Las Vegas’ Mainor Harris, who with partner Richard Harris was found liable, “insists that the ruling throws a wrench in attorneys’ personal injury work.” However, attorney Gary Logan, who represented Nault on the malpractice claim, “said of Mainor and Harris, ‘This kind of conduct is the reason people hate lawyers.’ … Among the breaches in professional conduct that Logan alleged — some of which were raised at trial and some that were barred — were that another attorney, Joe Rolston, received a $2.2 million referral fee without ever receiving consent of his brain-damaged client, Nault.” Mainor “said that the fee paid to Rolston was an association fee, not a contingency fee.” Nault’s parents began caring for him in 1997. (Elizabeth Amon, “Malpractice Suit Tags Las Vegas Attorneys”, National Law Journal, Feb. 6). Update Jan. 1, 2005: Nevada Supreme Court reverses jury verdict.
February 8-10 – Overlawyered film sets. According to intellectual property expert Larry Lessig, moviemakers “must now ‘clear’ every image that appears in their films, obtaining permission even for minor items like posters in a dorm room, the advertisement on a passing truck, or a can of Coke in someone’s hands. It used to be, Lessig reports, you only had to do this if the item was immediately recognizable; now you have to do it if it shows up in a single stop-motion frame. Even the designers of buildings and furniture included in movie scenes are trying to claim the right to stop films that contain images of their products without permission.” (Glenn Reynolds, “Rights and wrongs”, TechCentralStation.com, Feb. 6).
February 8-10 – “Judge orders God to break up into smaller Deities”. The Onion on antitrust law, and very funny, too (Jan. 30). While we’re at it: James V. DeLong of the Competitive Enterprise Institute comments on the proposed Microsoft settlement (Jan. 25).
February 8-10 – 2,000,000 + pages served on Overlawyered.com. Exact figures are not available because the more comprehensive of our counter programs has gone on the fritz, but we think our tally passed two million pages late last year and now stands above two and a quarter million. Thanks for your support!
February 6-7 – Vandal’s dad sues store over blaze. “The father of a teen who helped spark the fatal Father’s Day blaze has filed a $2 million lawsuit against the store where the fire started.” Silverio Moreno’s “son and another boy tipped over a loose-lidded gallon of gasoline while spraying graffiti behind the store.” According to columnist Andrea Peyser, the younger child “told investigators that when Moreno came looking for his son, and saw what the boys did, he said: ‘Don’t say anything about it.’ Now dad “is suing the elderly owner of Long Island General Supply Co. for $2 million – claiming the store ‘carelessly and negligently permitted the building to explode,’ causing Moreno permanent injuries.” The suit has raised the ire of some widows of NYC firefighters killed in the blaze, although they themselves, it should be noted, “plan to file negligence suits against the hardware store in the future and they have not ruled out taking action against the city, said their lawyer, Michael Block.” (Jessie Graham, “Outrage at Suit By Firestarter’s Dad”, New York Post, Feb. 1; Andrea Peyser, “Of All the Gall! His Kid Is a Vandal — And He’s Suing?”, New York Post, Feb. 1). (DURABLE LINK)
February 6-7 – Chickens are next. In the latest stage of its campaign to use litigation to do an end run around what it considers overly permissive federal environmental agencies, the Sierra Club is targeting Kentucky farmers who raise chicken under contract with Tyson Foods (see Dec. 7, 2000, on hog farming). The suit contends that broiler operations should be counted as industrial emitters of ammonia gas because the individual chickens … well, it’s too indelicate to explain. (James Bruggers, “Sierra Club vows suit over chicken farms and dust they produce”, Louisville Courier-Journal, Feb. 5).
February 6-7 – Your home, their right to enter. Suburban Naperville, Ill. has emerged as the latest target in disabled rights activists’ campaign to require newly built private houses to be wheelchair-accessible — and if you’re a new homebuyer who doesn’t care for the cost and design trade-offs implicit in that, tough, you shouldn’t consider the house yours just because you’re the one paying for it (see Dec. 4, 2001, on Santa Monica) (Karen Mellen, “Making all new houses ‘visitable’”, Chicago Tribune, Feb. 5)(& see update Mar. 6)(& letter to the editor, Apr. 11).
February 6-7 – “Every Man a Cyber Crook”. “Shortly after it enacted the federal computer crime law, Congress amended it to allow victims to sue their attackers in federal court for damages. It is now proving to be a costly mistake. … in practice, private litigants have rarely used the civil provisions to pursue computer hackers, who, after all, usually don’t have very deep pockets. Instead, unfettered by the Department of Justice’s interpretation of federal law, litigants have used the computer crime laws to go after computer hardware manufacturers for product liability, Internet companies for software design, spammers and protesters for commercial and other protected First Amendment speech, and website operators for the installation and tracking of computer cookies.
“These unintended uses of the computer crime statute, and the court’s permitting the suits to proceed in many cases, creates a genuine risk that ordinary business activity and protected speech will be deemed to rise to the level of a computer crime, subject to federal prosecution.” (Mark Rasch, SecurityFocus.com, Jan. 7).
February 4-5 – “‘Let’s Roll’ Trademark Battle Is On”. Why’d she have to hire that lawyer? No sooner does the widow of Flight 93 hero Todd Beamer set up a foundation to honor his memory than its lawyer announces that he’s having it apply for a trademark on the now-famous phrase “Let’s Roll”, so that anyone who wants to use the words on hats or t-shirts will have to fork over a royalty. Since September 11 numerous other individuals have also sought to copyright the phrase, although it was in common use before that date. (AP/Las Vegas Sun, Feb. 1).
February 4-5 – Element in $290,000 award: failure to meet Messiah in person. Dateline Salt Lake City: “A jury awarded $290,000 to two women who said they were deceived by a fundamentalist church whose leaders promised to produce Jesus Christ in the flesh. The True and Living Church of Jesus Christ of the Saints of the Last Days was ordered Monday to pay $270,000 to Kaziah Hancock and more than $20,000 to Cindy Stewart for fraud, breach of contract and intentional infliction of emotional distress.” In exchange for substantial financial contributions from Hancock and Stewart, church founder Jim Harmston had allegedly promised the women various benefits including “membership in heaven’s elite and the chance to meet Christ on earth”. (AP/Boston Globe, Jan. 30)(see June 6, 2001).
February 4-5 – Stop, they said. An assistant professor of political science at the University of Manitoba is reportedly “fighting a $40 traffic ticket in provincial court by launching a constitutional challenge of stop signs — claiming the message they convey is too vague. In what may be one of the strangest legal arguments ever heard in the halls of the downtown Law Courts, Rod Yellon is seeking to prove the word ‘STOP’ isn’t a sufficient warning to motorists.” (excerpt said to be from the Winnipeg Free Press; quoted in Fresh Hell blog, Jan. 5).
February 4-5 – Reparations madness: gypsy survivors sue IBM. Representatives of European gypsies orphaned in the Holocaust want money and an apology from IBM because one of its German subsidiaries, taken over by the Nazi government before World War II, sold punch-card machines used to administer the concentration camp system. (“Gypsies Sue IBM, Claiming Machines Helped Nazis”, AP/Law.com, Feb. 1).
February 1-3 – “Aborigines claim kangaroo copyright”. “In Australia, a group of Aborigines has lodged a high court writ, seeking to stop the government from using the kangaroo and the emu on the national coat of arms. The Aboriginal activists say the representation of the animals — which they regard as sacred totems — is a breach of copyright.” They accuse the Commonwealth of Australia of cultural theft. (BBC, Jan. 29).
February 1-3 – Suicide plane crash blamed on acne drug. When a Florida 15-year-old crashed a plane into a Tampa skyscraper, press accounts were quick to link the incident to the boy’s prescription for the drug Accutane. “As only a handful of media outlets bothered to report a week later, an autopsy showed no trace of the drug in the boy’s system. … If you go to a Web site with an innocuous-sounding name like http://www.accutane_suicide_help.com/ you’ll find you’ve actually come across a lawyer-referral service.” (Michael Fumento, “Bumps in the Night”, Reason Online, Jan. 23; “Tampa Crash Pilot Had Acne Drug Prescription”, AP/Washington Post, Jan. 9). “Rep. [Bart] Stupak’s [D-Mich.] hearings and the recent press stories have all left out one set of voices: the millions of Accutane users who have benefited from the drug.” (Jaime Sneider, “Skin Deep”, Jan. 23) Update Apr. 18: family sues.
February 1-3 – King Cake figurine menace averted. Columnist James Lileks recalls how things used to be with the famous King Cake baked in New Orleans for Mardi Gras: “Since they were the Real Thing, brought directly from N’Awlins, they had small plastic baby Jesuses (Jesii?) embedded in their doughy redoubts. Whoever cracked a molar on the extruded holy infant was obliged to buy the next King Cake. In these litigious days, the store-bought cakes cannot hide the child lest someone choke and sue, so the package explains the tradition, says that a coin can be substituted for the plastic baby — and the coin is sitting ON TOP of the cake, meaning no one will be stupid enough to take that piece.” (“The Bleat”, Lileks.com, Jan. 29).
February 1-3 – International tobacco suits: not quite such easy pickings. U.S. judges have so far not been particularly inclined to loot and expropriate the nation’s tobacco industry for the benefit of such foreign governments as Guatemala, Nicaragua, Ukraine, and Ecuador, which with help from some entrepreneurial-sounding U.S.-based lawyers have sought to duplicate the 1998 feat of the state attorneys general. (Matthew Haggman, “Brazilian City Joins List of Foreign Entities Suing U.S. Cigarette Makers”, Miami Daily Business Review, Jan. 11). For details on the suit filed by that very needy and deserving claimant, the government of Saudi Arabia, see Nov. 16, 2000 and Dec. 10, 2001.
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November 19-20 – New frontiers in discrimination law: Harleys among the cyclamens. Lawmakers in Ohio, South Carolina and several other states are pushing legislation that would prohibit businesses from turning away customers on motorcycles. Georgia state Sen. Joey Brush, who rides a Harley-Davidson, “introduced the legislation because of a long-running dispute with Calloway Gardens, a private, nonprofit horticultural garden that doesn’t allow bikers to drive onto the grounds. The ban, in place for the garden’s entire 49-year existence, is meant to protect the serenity and peace for which the grounds are known, said spokeswoman Rachel Crumbley. ‘We feel it’s not a civil right to ride a motorcycle wherever you please,’ Crumbley said.” An Ohio rider who supports such legislation “said a waitress at a restaurant near Cincinnati once placed him and his wife in a corner away from other patrons when the couple pulled up wearing leather boots, chaps and vests.” But the biker community, which in the past has often sided with libertarian causes such as opposition to mandatory helmet laws, is far from unanimous on this one: “As a business owner, they should have right to decide who they want,” says spokesman Steve Zimmer of Ohio’s pro-biker ABATE group — clearly someone who hasn’t forgotten that biking is supposed to be about freedom. (Andrew Welsh-Huggins, “Laws Seek to Protect U.S. Bikers”, AP/Yahoo, Nov. 14). (& letters to the editor, Feb. 28) (DURABLE LINK)
November 19-20 – Can’t find the arsonist? Sue the sofa-maker. “With the two-year statute of limitations almost up, lawyers representing victims of New Jersey’s Seton Hall University dormitory fire are working frantically to find parties to sue.
“The fire, which authorities believe was intentionally started, broke out in the Boland Hall dormitory on Jan. 19, 2000, killing three students and injuring 58 others. Seton Hall, which enjoys charitable immunity from suit, has settled out of court with some of the plaintiffs. Still, lawyers contemplate suits against other people who may have contributed to the conflagration — the arsonists, the maker of the sofa that ignited and any other potentially responsible parties.” (Charles Toutant, “Seton Hall Fire Victims’ Lawyers Still Scrambling to Identify Defendants”, New Jersey Law Journal, Nov. 14) (see June 1, 2000). (DURABLE LINK)
November 19-20 – By reader acclaim: football’s substance abuse policy challenged. “New England wide receiver Terry Glenn has sued the NFL, claiming a disability makes it difficult for him to adhere to certain rules in the league’s substance abuse policy. … Glenn filed the complaint under the Americans with Disabilities Act, but it did not specify what disability Glenn suffers. Glenn claims he should not have been suspended by the NFL for the first four games of the season for violation of the substance abuse policy.” (“Glenn’s suit doesn’t specify disabilities”, AP/ESPN, Nov. 4). Plus: reader Rick Derer, outraged by the Casey Martin episode, has put up an ADA horror stories website to call attention to what he terms “the worst law ever foisted on the American people”.
November 19-20 – Municipal gun suits on the run. Cause for thanksgiving indeed: the lawless and extortionate municipal gun-suit campaign has been encountering one setback after another. “In a major victory for gun manufacturers, the 3rd U.S. Circuit Court of Appeals on [Nov. 16] upheld the dismissal of a suit brought by Camden County, New Jersey, that accused gun makers of creating a ‘public nuisance’ and sought to recoup the governmental costs associated with gun-related crimes.” Arguing the losing side were radical law prof David Kairys and class-action firm Berger & Montague. The three-judge panel was unanimous. (Shannon P. Duffy, “3rd Circuit Shoots Down Gun Suit Theory”, The Legal Intelligencer, Nov. 19). The city of Atlanta is desperately trying to keep its anti-gun suit alive in the face of legislation enacted by its parent state of Georgia making it as explicit as humanly possible that the city has no authority to press such a suit (Richmond Eustis, “Atlanta Asks State Appeals Court to Keep Alive Suit Against Gun Makers”, Fulton County Daily Report, Nov. 15).
Yale law professor Peter Schuck describes the gun lawsuits as based on the “most tenuous” theories yet of government rights of recoupment (“subrogation”) and tort law as “one of the last places” we should look to resolve the policy issues of gun control (“Smoking Gun Lawsuits”, American Lawyer, Sept. 10). And Bridgeport, Conn. mayor Joseph Ganim, who had taken perhaps the highest profile among Northeastern mayors in support of the gun suits, is likely to be less heard from for a while given his indictment last month on two dozen felony counts including extortion, bribery and mail fraud. (He denies everything.) (John Christoffersen, “In Connecticut, a growing and unwelcome reputation for corruption”, AP/Charleston (W.V.) Gazette, Nov. 16; Chris Kanaracus et al, “Ganim on the Spot” (pre-indictment coverage), Fairfield County Weekly, undated). See also Kimberley A. Strassel, “Bummer for Sarah Brady”, OpinionJournal.com, Nov. 15 (expressing optimistic view that municipal gun suits have been contained). (DURABLE LINK)
November 16-18 – Profiling perfectly OK after all. “State highway safety officials said they have received a $700,000 federal grant to help them crack down on two groups of chronic violators of the state’s seat belt law: drivers and passengers of pick-up trucks, and all male drivers and passengers between 18 and 55. … [Louisiana Highway Safety Commission Executive Director James] Champagne said state and federal studies have consistently shown pickup drivers and all male drivers are less likely to buckle up than any other groups of drivers or front-seat passengers. State law requires both the driver and front-seat passengers of vans, sports utility vehicles, cars and trucks to use seat belts. … Asked if the targeting of males and pickup drivers and passengers is profiling of a certain group, Champagne said, ‘Absolutely.’” To recap, then: the federal government strictly bans giving extra attention to 25-year-old males from Saudi Arabia at airport check-in. While they’re driving to the airport, on the other hand, it positively encourages them to be profiled. Perhaps the explanation is that it’s willing to swallow its scruples in order to combat really antisocial behavior — like failing to wear seat belts, as opposed to hijacking planes into buildings. (Ed Anderson, “Police to harness seat belt scofflaws”, New Orleans Times-Picayune, Nov. 10 — via InstaPundit). Meanwhile, the American Civil Liberties Union is soliciting racial-profiling plaintiffs in New Jersey. “The ACLU billboard, which went up last month, shows a photograph of two minority men and between them the words ‘Stopped or searched by the New Jersey State Police? They admit to racial profiling. You might win money damages,’ the sign reads. The ad includes the ACLU’s toll-free number.” (“Billboards in New Jersey Ask for Trooper Praise, Not Profiling Complaints”, FoxNews.com, Nov. 14).
November 16-18 – EEOC approves evacuation questions for disabled. To the relief of many in the business community, the Equal Employment Opportunity Commission has announced that it is not unlawful to ask workers about the state of their health for the purpose of formulating plans for emergency building evacuations. The September attacks called attention to the difficulty experienced in disaster situations by evacuees with such conditions as blindness, paraplegia, extreme obesity, and asthma. While employers may ask about problems that might impede evacuation, they should not insist on getting actual answers; EEOC officials recommend that they let each worker elect whether to disclose the information. The Americans with Disabilities Act has generally been interpreted as conferring on employees a broad legal right to conceal health problems from their employers. (Kirsten Downey Grimsley, “EEOC Approves Health Queries”, Washington Post, Nov. 1).
November 16-18 – Et tu, UT? Perhaps envying California its litigious reputation, the Supreme Court of Utah has ruled that it will not enforce releases in which parents agree to waive their children’s right to sue for negligence. The case involved a child thrown from a rented horse; the mother had signed a release before the accident, but then decided she wanted it invalidated so she could sue anyway. Attorney James Jensen, who represented defendant Navajo Trails, “listed many activities that now may be affected or curtailed, including school field trips, religious organization youth activities, scouting programs, amusement parks and ski resorts. ‘Anybody that provides recreational activities to minors,’ he said.” (Andrew Harris, “Utah High Court Says No Release of Liability to Children”, National Law Journal, Nov. 12).
November 15– “Poor work tolerated, employees say”. We keep hearing that if we were really serious about airport security we’d kick out those ill-paid Argenbright bag screeners and swear in a new 28,000-strong corps of federal employees to replace them. But a “new study concludes that federal workers themselves view many of their co-workers as poor performers who are rarely disciplined. The survey of 1,051 federal workers, conducted for the Brookings Institution’s Center for Public Service prior to the Sept. 11 terrorist attacks, found that on average federal employees believe 23.5 percent of their colleagues are ‘not up to par.’ Meanwhile, only 30 percent believe their organization does a very or somewhat good job of disciplining poor performers.” Those numbers are worse than the ones you get when you poll employees of private firms. At least when Argenbright botches things you can kick it out in favor of another contractor (Ben White, Washington Post, Oct. 30; Gregg Easterbrook, “Fighting the Wrong Fight”, The New Republic Online, Nov. 13).
November 15 – Lawyers’ immunity confirmed. In a dispute arising out of a developer’s plan to buy Fisher Island, home to many celebrities and wealthy persons, a Florida court has ruled that the developer cannot pursue a countersuit for tortious interference against residents who filed lawsuits aimed at derailing the deal, even if it can show they knew the suits to be unmeritorious. The court relied on a 1994 case in which the Florida Supreme Court ruled that an attorney’s acts in the course of litigation are subject to an “absolute” privilege: “We find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” Or, as the Miami legal paper puts it, “litigation itself is immune from litigation”. Put differently, people engaged in litigation boast an “absolute immunity” to engage in injurious behavior that would have a remedy at law if you or I tried it (Julie Kay, “Lawsuits of the Rich and Famous — and Their Two Dozen Law Firms”, Miami Daily Business Review, Nov. 1).
November 15 – Exxon Brockovich vs. Erin Valdez. The Ninth Circuit has struck down as excessive an Alaska jury’s $5 billion punitive award against Exxon over the Valdez oil spill, sending the case back for further litigation; compensatory damages are unaffected by the ruling (Henry Weinstein & Kim Murphy, “Court Overturns $5-Billion Judgment Against Exxon in ’89 Alaska Oil Spill”, L.A. Times, Nov. 8; Yahoo Full Coverage)(update Dec. 30, 2002: judge cuts award to $4 billion). Meanwhile, toxic-tort celebrity Erin Brockovich is helping spearhead a new effort to recruit plaintiffs from among the more than 15,000 workers who took part in the cleanup effort a dozen years ago, some of whom believe that it caused their health to take a turn for the worse. A Los Angeles Times account, after sympathetically relaying what would seem to be the most striking such cases the plaintiff’s team could come up with, concedes that “most health officials remain unconvinced that the cleanup left anyone sick”. (Nick Schulz, “Busy Bee Brockovich Looking to Sting Again”, TechCentralStation, Nov. 9; Kim Murphy, “Exxon Oil Spill’s Cleanup Crews Share Years of Illness”, L.A. Times, Nov. 5; Mary Pemberton, “Erin Brockovich probes Exxon complaints”, AP/ Anchorage Daily News, Nov. 6).
November 14 – “Rejoice, rejoice”. “[Y]esterday’s liberation of Kabul and much of the rest of Afghanistan is a great victory. … The moving scenes from the Afghan capital remind us … that most believing Muslims reject the rigorist insanity that bin Laden and the Taliban promote in their name, and are happy to worship God without having to wear a beard or a burqa. They can sing and dance again; women can work, and children can learn. The Taliban’s scorched-earth devastation of so many Afghan villages reveals their contempt for their own people, and their desertion of so many of their own Arab and Pakistani jihadis shows their capacity to betray. … Today, though, everyone who cast doubt on the possibilities of success and everyone who sneered at American ‘gung-ho’ should observe a period of silence. The rest of us should, to use a famous phrase from another war, ‘just rejoice rejoice’”. ((editorial), Daily Telegraph, Nov. 14; Paul Watson, “Taliban torturers on the run”, L.A. Times, Nov. 14; Christopher Hitchens, “Ha ha ha to the pacifists”, The Guardian, Nov. 14; Dexter Filkins, “In Fallen Taliban City, a Busy, Busy Barber”, New York Times, Nov. 13).
November 14 – Insurance market was in trouble before 9/11. With alarms being heard about an impending crisis in the availability of commercial insurance, it’s worth noting for the record that conditions were deteriorating rapidly in that market even before Sept. 11, mostly because insurers were pulling back from liability exposures: “Among the lines tightening the most are products liability, umbrella liability, contractor liability and nursing home liability, insurers and brokers say,” reported the July 2 issue of the trade publication Business Insurance. Also in scarce supply was coverage for “anything with an occupational disease exposure, like insulation and cell phones,” said one industry observer, Tom Nazar of Near North. “Generally, premiums for most liability lines are increasing anywhere from 25% to 60%,” with transportation risks seeing rate hikes of 100-200 percent and nursing homes 150 percent, said another insurance exec — all this well before the WTC attacks hit carriers with the largest losses from a single insured event in history. (Joanne Wojcik, “Transportation takes biggest hit in hardening market”, Business Insurance, July 2 (online subscribers only), and other contemporaneous coverage in the same publication). Directors’ and officers’ liability was another big problem area, especially for companies in fields such as high tech and telecom, financial services and health care. “The risks facing the steepest premium increases are pharmaceutical companies, nursing homes and contractors, especially organizations located in the litigious markets of California, Illinois and New York, insurance executives said.” In workers’ comp, “loss severity continues to deteriorate”.
And then there was asbestos: an August Standard & Poor’s report indicated that insurers were setting aside an additional $5-10 billion this year for asbestos claims, above earlier amounts reserved. “The implications to the insurance community are potentially devastating,” says the report. “Other analysts and ratings agencies recently have estimated that the insurance industry would need to put up as much as $20 billion to $40 billion more to cover their asbestos exposure. In May, ratings firm A.M. Best Co. calculated that insurers have set aside $10.3 billion to pay additional asbestos claims, having already paid out $21.6 billion.” A not-insubstantial portion of those sums, as we know, will go to compensate persons who are not sick from asbestos and never will be — raising once again the question of why we don’t try harder as a society to reserve the limited pool represented by insurance for situations where it’s really needed (Christopher Oster, “Insurers to Set Aside Additional Billions For Asbestos Claims”, Wall Street Journal, Aug. 1 (online subscribers only)). On proposals to bail out insurance markets since the attacks, see Scott Harrington and Tom Miller, “Insuring against terror”, National Review Online, Nov. 5. (DURABLE LINK)
November 14 – “Diabetic German judge sues Coca-Cola for his health condition”. Why should American lawyers have all the fun? In a trial that began Monday in Essen, Germany, Hans-Josef Brinkmann, 46, a judge in the east German town of Neubrandenburg, says the beverage company is partly responsible for his developing diabetes after drinking two bottles of Coca-Cola a day for years. He further “disputes the contention of the drinks company that Coca Cola is a ‘flawless foodstuff’ … Brinkmann plans to bring a similar case against Masterfoods, manufacturers of Mars Bars, Snickers and Milky Way chocolate candy, in January.” Whether Herr Brinkmann wins or loses these suits, we hope he’ll come to America — we bet he’d have no trouble landing a job at one of our law schools. (AFP/Times of India, Nov. 14) (more).
November 13 – From the paint wars: a business’s demise, a school district’s hypocrisy. “Sherwin-Williams Co. acquired Mautz Paint Co. Thursday after the local company said it could no longer afford facing a costly lawsuit filed by the city of Milwaukee. Bernhard F. ‘Biff’ Mautz, the company’s chairman of the board, said negotiations to sell the [family-owned] firm intensified in April after the city of Milwaukee filed suit seeking more than $100 million in damages over the manufacture of lead-based paints decades ago.
“‘Although we believe the city’s case is meritless and Mautz will ultimately be absolved of any responsibility, for the first time in our history we were faced with years of litigation, which even if (the plaintiff was) unsuccessful, would destroy our small company,’ he said. …
“The sale price was not released, but Mautz President Dan Drury said it was discounted to reflect the costs of the lawsuit. Founded in 1892, Mautz employed 260 people at its 33 retail stores and manufacturing plant. It had sales of $32 million last year. …
“Wisconsin Manufacturers & Commerce said the sale of the one of Madison’s oldest businesses will make it more difficult for the state to attract new businesses. ‘This is a sad day in the state of Wisconsin,’ said James S. Haney, the organization’s president. ‘This is every business person’s worst nightmare. Mautz got in the gun sights of the contingency fee trial lawyers and the bureaucrats and now another homegrown locally owned business with strong ties to the community is gone.’” (“Mautz announces acquisition by Sherwin-Williams”, AP/Janesville (Wis.) Gazette, Nov. 9).
Meanwhile: In Houston, where contingency-fee lawyers have been recruiting local school districts to go after paint companies, the lawsuit filed by the Spring Branch School District claims that residual paint from decades past exposes students and teachers to “a substantial risk of lead poisoning” — a dramatic charge indeed. Which left Jon Opelt, executive director of Citizens Against Lawsuit Abuse Houston and the parent of a child in the district, wondering why “the school district has never notified me, as a parent, of the presence of any health or safety risks related to lead. No cautionary notes have been sent home with my children. No alarming studies have been released discussing the severity of the problem in our schools.’”
Which naturally raises the question: is there a genuine lead hazard, which the district has been covering up from parents, or just a phony hazard, which their lawyers are conjuring up in an effort to squeeze money from manufacturers? Opelt: “Ron Scott, a lawyer for the school district, is quoted in a Houston Chronicle article as saying: ‘This isn’t a panic issue. People don’t need to feel their schools are unsafe.’ Duncan Klussmann, a district administrator, told me, ‘Your child is not at risk.’ These are the very same people who signed onto a lawsuit that says there is a ‘substantial risk of lead poisoning.’ What are we to believe? District officials are telling parents their schools are safe but their lawsuit demands millions of dollars for addressing a dangerous situation caused by lead paint. Both cannot be true.” (CALA Houston website, “Parent Urges School District To “Get The Lead Out“, “Contrary to Other Reports“, David Waddell, “Why Should Safety Be a Secret?“, Annette Baird, “District: Lead-paint concerns in check”, Houston Chronicle, Oct. 17). (DURABLE LINK)
November 13 – Update: ousted quartet member wins damages. “A Pennsylvania judge has ordered three members of the Audubon Quartet to pay their former colleague David Ehrlich more than $600,000 in damages, adding yet another dramatic twist to the legal battle that has largely silenced the internationally acclaimed quartet since February 2000 and cost the group its home at Virginia Tech.” (Kevin Miller, “Ousted quartet member should receive damages, judge rules”, Roanoke Times, Oct. 16; “In Support of the Audubon Quartet“; summary of court opinion) (see June 5, 2000, June 14, 2001). Update May 10-12, 2002: defendants could lose house.
November 13 – Women’s rights: British law, or Islamic? According to columnist Theodore Dalrymple of The Spectator, a misguided multiculturalism has led authorities in the United Kingdom to adopt a hands-off policy toward some British Muslim families’ trampling of their young daughters’ rights (“The abuse of women”, Oct. 27).
November 12 – “Morales trying to ‘clear the air’ before campaign”. Many assumed the political career of former Texas attorney general Dan Morales was dead, dead, dead after allegations began flying in the papers about the circumstances under which he’d hired outside lawyers to represent the state in the tobacco affair and share one of the largest fee windfalls in history (see Sept. 1-3, 2000). But now Morales wants to run for the U.S. Senate seat being vacated by Phil Gramm and is insisting with new vehemence that he never acted improperly and that it’s all been a misunderstanding. Two of his lawyers have “asked a state district court in Austin to let Morales lay the groundwork for a possible defamation suit by taking the sworn testimony of four former associates. Morales wants to question John Eddie Williams Jr. of Houston — one of five trial lawyers who shared $3.3 billion in legal fees from the tobacco case — and three former assistants in the attorney general’s office — Harry Potter of Austin and Jorge Vega and Javier Aguilar of San Antonio. He indicated that Williams and Potter, who was actively involved in the tobacco suit, could be targets of any suit he may file.” Pull up a chair, this promises to be interesting (Clay Robison, Houston Chronicle, Nov. 7). Morales also continues to deny “allegations by Houston trial lawyer Joe Jamail that Morales improperly solicited $1 million from each of several lawyers he considered hiring for the tobacco suit.”
November 12 – Short-sellers had right to a drop in stock price. At least that’s the premise underlying this press release and lawsuit from a class action law firm seeking the right to sue on behalf of short-sellers who feel their speculative bets against the stock of Intelli-Check Inc. were stymied by the company’s allegedly over-sunny fiscal projections. (“Speziali, Greenwald & Hawkins, PC Announces the Filing of a Class Action Suit on Behalf of Short-Sellers of Intelli-Check, Inc. (Amex: IDN) Securities”, Yahoo/PR Newswire, Oct. 18).
November 12 – “U.S. Debates Info on Chemical Hazards”. “Separate hearings in the House and Senate [were] held this week to reassess the safety of chemical and industrial facilities in the light of recent terrorist attacks. A key policy at stake is the so-called ‘right to know’ law, which requires the federal government to publicly disclose sensitive information about facilities around the country that could be used by terrorists to target the most dangerous locations.” Jeremiah Baumann, a spokesman for the Nader-empire U.S. Public Interest Research Group, called for preserving public access to the sensitive information. “‘Let’s at least make the bad guys work for it,’ countered Amy E. Smithson, a chemical and biological weapons analyst for the Henry L. Stimson Center think tank.” Smithson said “[t]he Clinton EPA’s decision to post those plans for some 15,000 plants on the Internet in August 2000 ‘wasn’t just bad, it was colossally bad’.” (John Heilprin, AP/Yahoo, Nov. 8) (see Oct. 1). More: Carol D. Leonnig and Spencer S. Hsu, “Fearing Attack, Blue Plains Ceases Toxic Chemical Use”, Washington Post, Nov. 10 (chlorine use at Washington sewage treatment plant); Jonathan Adler, “How the EPA Helps Terrorists”, National Review Online, Sept. 27; “Environmental Danger”, Oct. 11; Angela Logomarsini, “Laws that Make Terror Easy”, New York Post, Oct. 12; “‘Right To Know’ Hearings – Taking Away Terrorist Tools”, Competitive Enterprise Institute press release, Nov. 7.
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November 20 – Flow control. The Florida Supreme Court has a liberal and activist reputation, which is why many Gore supporters see it as their ace in the hole in the recount controversy (John Fund, “On the Bench for Gore?”, OpinionJournal.com (Wall Street Journal), Nov. 15; Robert Alt, “The Florida Supremes”, National Review Online, Nov. 16). “To scrounge for every last vote, Gore has flooded Fort Lauderdale with tough, seasoned Democrats, the sort who are used to keeping wafflers in line and to count and recount votes until they know exactly what it will take to outdo their opponents. Many of the hired hands speak with a Boston brogue,” reports the L.A. Times. A lawyer explains the routine to volunteers: “‘It’s very, very important that if you see any kind of mark — a scratch, a dent, a pinprick in Al Gore’s column — that you challenge.’ When someone then asked what they should do if they found a Bush ballot with an indent, the lawyer said: ‘Keep your lips sealed.’” (Elizabeth Mehren and Jeffrey Gettleman, “Seasoned Democratic Army Hits the Shores of Florida”, Los Angeles Times, Nov. 17). “[I]f you’re just counting existing ballots, there shouldn’t be any chads on the counting-room floor. But, whether by accident or design, the little fellers keep detaching themselves from the ballot, thereby creating more and more new votes.” (Mark Steyn, “Smooth man Gore starts to play rough”, Daily Telegraph (UK), Nov. 19; “Gore’s law: When you’re beaten to the punch, it’s the chads that count”, Nov. 17). See also Charles Krauthammer, “Not By Hand”, Washington Post, Nov. 17; Jurist special page on election 2000.
November 20 – “Judge fines himself for missing court”. “Hamilton Municipal Court Judge Paul Stansel believes he has no more right to skip court than the people who have to appear before him. Stansel found himself in contempt of court and fined himself $50 — half a month’s salary — after missing the Sept. 27 monthly court session because he was tending to his sick pony named Bubba and forgot it was court day, he said.” (Harry Franklin, Columbus Ledger-Enquirer, Nov. 7).
November 20 – How to succeed in business? Earlier this fall it was widely reported that Christian Curry received nothing from the settlement of his race and sexual orientation suit against Morgan Stanley Dean Witter, which had fired him after nude pictures of him were published in a sexually explicit magazine. See, for example, “Curry Drops Suit Against Morgan Stanley Dean Witter” (press release), Yahoo/Business Wire, Sept. 15 (quoting Curry: “I will receive no payment”); Dan Ackman, “L’Affaire Curry Ends In Settlement”, Forbes.com, Sept. 15 (“Curry got nothing, and said he was happy with that.”). However, the New York Post reported last month that Curry arrived at a press conference in a new red Ferrari to announce that he had just paid $2 million to buy a Harlem newspaper and “plans to start a modeling agency, a film and TV production company and a hedge fund.” According to the paper, “sources” tell it that the investment firm paid Curry $20 million on condition he keep quiet about the case. “The settlement was brokered in September, right before Morgan Stanley CEO Philip Purcell was to give his deposition.” Curry declined at the press event to comment on the status of his lawsuit; it is not clear how the earlier and more recent accounts can be reconciled with each other. (Evelyn Nussenbaum, “Curry Buys Newspaper, Has Big Plans”, New York Post, Oct. 20). See update, Nov. 23, 2003.
November 17-19 – Punch-outs, Florida style. Palm Beach tobacco law magnate Robert Montgomery is a frequent subject of commentaries in this space (see April 12, Aug. 8-9, 2000; Aug. 21, 1999; estimated tobacco fee $678 million), and somehow we knew he’d turn up as a player in the recount mess. Sure enough he’s acting as attorney for embattled county elections director Theresa LePore (Kathryn Sinicrope and Michele Gelormine, “Recount waiting game continues”, Palm Beach Daily News, Nov. 16). Montgomery, a major party donor, recently represented without charge the incumbent Democratic court clerk in Palm Beach against a public records lawsuit filed by Republican challenger Wanda Thayer; in that capacity he gave Thayer reason to feel really sorry she ever filed the action, putting her through a harsh deposition and menacing her with having to pay his $350-$500 /hour fee if she lost. Someone who represents the clerk of court free of charge against her opponent in a politically sensitive case is likely to stay a pretty popular guy around the courthouse, no? (Marc Caputo, “Attorneys carry clerk’s campaign”, Palm Beach Post, Sept. 26).
In the Broward County recount Republicans have noticed no fewer than 78 of the loose bits of paper known as “chads” lying on the floor of the recount facility and say the punchcard ballots are being over-handled in chaotic fashion by ad hoc election workers, some of them unknown to the official in charge. They’ve asked that the recount be halted until more secure procedures can be instituted, but a judge turned them down and a Democratic attorney ridicules their concerns (Sean Cavanagh, “Gore gets 13 more votes so far in Broward recount”, Fort Lauderdale Sun-Sentinel, Nov. 16; Marian Dozier, “Chad ‘fallout’ grows the more ballots are handled”, Nov. 15). “Q. If lawyers for Democrats and Republicans beat each other’s brains out for a few months in Florida, won’t that result in fewer lawyers? Who can argue with that? A. Like night crawlers, a complete new lawyer grows out of any piece of attorney sliced off in court. Their regenerative powers are frightening.” (Gary Dunford, “Night crawlers”, Canoe/Toronto Sun, Nov. 15).
November 17-19 – “U.S. Holocaust lawyer plans Austria train lawsuit”. Much-publicized New York attorney Edward Fagan is drumming up business among survivors of the Alpine tunnel calamity, which killed as many as 160. “The suits most likely would be filed in U.S. courts because they typically could award bigger damages than overseas courts”, even though the article cites no nexus whatsoever between the disaster and the United States as regards the great majority of victims, who were of Austrian or German nationality. Imagine how strange it would seem if a train full of Americans and Canadians crashed in Colorado and some lawyer from Austria flew in to propose that lawsuits be filed in his country. (Reuters/FindLaw, Nov. 14).
November 17-19 – “Tax collector found to owe $3,500 in delinquent taxes”. From Scranton, Pa., another entry for the do-as-we-say file: “I have no defense,” says Thomas Walsh, director of the county’s Tax Claim Bureau, of the city property tax bill on his home, which he’s left unpaid since 1991 and has now mounted to more than $3,500. “I just got behind.” (“Pay thyself”, AP/Fox News, Nov. 13).
November 17-19 – “Coca-Cola settles race suit”. The Atlanta-based soft-drink maker has agreed to pay $192.5 million to settle charges of race bias, “described by the plaintiffs as the largest ever in a race discrimination class action suit”. (CNNfn, Nov. 16) (see July 21, July 19).
November 16 – Palm Beach County “under control”. “There was evidence that the Gore campaign hoped to muscle up the forces at its disposal. An e-mail circulated to a trial lawyers organization sought at least 500 attorney volunteers to help out with recounts in selected counties.” (David Espo, “Bush Holds Narrow Lead in Fla.”, AP/Yahoo, Nov. 15). “The request was passed along on the Internet E-mail list of the National Association of Trial Lawyer Executives (NATLE) by the executive director of the group, Kathleen Wilson, suggesting they pass along the request to lawyers on the Internet E-mail lists they’re on.” The volunteer lawyers would be deployed in Volusia, Miami-Dade and Broward Counties, with the email describing the Gore forces as “comfortable that Palm Beach County is under control.” The organization NATLE “includes many executive directors and other officials with lawyer groups”. (“Gore Campaign Recruiting Lawyers”, AP/Washington Post, Nov. 14).
Judge-shopping? “Although most of the lawsuits filed to date have been in state court, one Gore supporter filed an action in federal court last week only to withdraw it the same day (apparently out of a concern that the judge assigned to the case, Reagan appointee Kenneth Ryskamp, would not look favorably upon it).” (Jay Lefkowitz, “It’s the Law, Stupid”, Weekly Standard, Nov. 20). Meanwhile, “[a] group with Republican links sued TV networks Tuesday and accused them of discouraging voters from going to the polls in the Florida Panhandle by erroneously projecting Al Gore would carry the state.” (“Group Sues Over Gore Projection”, AP/Washington Post, Nov. 14). “In the Stephen Sondheim song, when something bad happens in the circus, they send in the clowns. In America’s political circus, they send in the lawyers.” (Gavin Esler, “Don’t let the lawyers make a crisis out of America’s Political Drama”, The Independent (UK), Nov. 13) (cites our editor).
November 16 – Judge shopping, cont’d. U.S. International Trade Commission administrative law judge Sidney Harris has reprimanded Rambus Inc. for having abruptly withdrawn its patent violation case against Hyundai Electronics Industries Co. after it was assigned to him; the judge, who has a reputation as tough on patent-holders’ claims, concluded that the company did not want him to be the one to handle the case and had engaged in “blatant” judge shopping. The company denies the allegation. (Jack Robertson, “Rambus Slammed For ITC ‘Judge Shopping’”, Electronic Buyers News, Nov. 15; Dan Briody, “Litigation headaches send Rambus stock skidding”, RedHerring.com, Aug. 30).
November 16 – They call it distributive justice. Following the lead of numerous other overseas governments and other entities that have jumped on the tobacco-suit bandwagon in hopes of finding money, Saudi Arabia’s state-owned King Faisal Specialist Hospital says it is preparing litigation against international tobacco companies to recover the costs of treating smokers, to be filed in American courts and elsewhere. If successful, the litigation will presumably succeed in raising the price per pack paid by poverty-level smokers in Arkansas and West Virginia in order to ship the money off to that very deserving recipient, the government of Saudi Arabia. (“Saudi hospital to sue tobacco firms for $2.6 bn”, AP/Times of India, Nov. ![](http://wac.0873.edgecastcdn.net/800873/overlawyered/wp-includes/images/smilies/icon_cool.gif" alt=){kind=icon}
(& see update, Dec. 10, 2001)
November 15 – Foreign press on election mess. “‘Got a problem? Get a lawyer’ has become a maxim of American life, whether you scald yourself with a McDonald’s coffee or lose a presidential election.” (Philip Delves Broughton, “Lawyers will be winners of contest born in Disneyworld”, Daily Telegraph (UK), Nov. 10). “The confusion over the election results has paved the way for a stealthy and rapid seizure of power in the US. The lawyers have truly taken over.” (Julian Borger, “Lawyers are back: US is on trial”, The Guardian (UK), Nov. 11). “We are not in Florida or Kansas anymore. We are in . . . Chad.” (Mark Steyn, “She held up the ballot and she saw the light”, National Post (Canada), Nov. 13).
November 15 – Beep and they’re out. DuPage County Associate Judge Edmund Bart “has taken extreme offense to Traffic Court visitors who allow cellular phones or pagers to ring when court is in session. He has dealt with them extremely — by throwing those visitors behind bars.” (“Time for Some Order from the Court” (editorial), Chicago Tribune, Nov. 11).
November 15 – “ATLA’s War Room”. Much feared by defendants, the 61 litigation groups of the Association of Trial Lawyers of America enable plaintiff’s lawyers to map out joint strategy and share in the “exchange of documents, briefs, depositions, expert testimony, and general plaintiffs’-side lore”. The groups are noted for “Kremlinesque secrecy”: “Group chairmen, for instance, are not supposed to identify themselves as such in public, and journalists can only get their names from ATLA by agreeing not to quote them as chairmen. … The association does not post the list of litigation groups on its public Web site.” However, that list includes (according to Alison Frankel of The American Lawyer): AIDS, automatic doors, bad faith insurance, benzene/leukemia, birth defects, breast cancer, casino gaming, chorionic villus sampling (CVS), computer vendor liability, firearms and ammunition, funeral services, herbicide and pesticide, inadequate security (and its subgroup, the Wal-Mart Task Force), interstate trucking, lead paint, liquor liability, nursing homes, Parlodel, pharmacy, Stadol, tabloid outrage, tap water burns, tires, truck underride, and vaccines. Recent additions include firefighter and EMS hearing loss, Allercare subgroup of herbicides and pesticides group, laser eye surgery malpractice, MTBE, Propulsid, and Rezulin. (Alison Frankel, “ATLA’s War Room”, The American Lawyer, Oct. 16).
November 14 – Columnist-fest. People writing about things other than the election mess:
* How long would Mark Twain’s Tom Sawyer last if he were growing up today? He’s the kind of boy who plays hooky from class, joins a gang and commits petty crime, enjoys violent literature (pirate stories), tortures the family cat and even smokes. “Doubtless he’d be in therapy three times a week and jacked up on Ritalin. Or — most likely — he’d be in jail.” (Alex Beam, “Tom Sawyer and the end of boyhood”, Boston Globe, Oct. 31).
* Don’t count on the black-reparations bandwagon to provide benefits over the long term to anyone but the lawyers and other middlemen in charge, argues Linda Chavez (“Johnnie Cochran plays his card”, TownHall, Nov. 8).
* The case for Paula Jones’s outraged modesty in that Arkansas hotel room is looking pretty thin now that she’s taken her clothes off for Penthouse, but what exactly did reformers think would happen once the law began to turn unsubstantiated sex stories into enormously lucrative potential claims? “Women like Jones have been lured into becoming the workplace equivalent of Third World terrorists strolling around the office with suitcase bombs.” (Sarah J. McCarthy, “The Victim in the Centerfold”, LewRockwell.com, Nov. 11).
November 14 – “Fla. DUI Teen Sues Police”. “A teen-age driver seriously injured in an accident is suing the city because a police officer failed to arrest him for drunken driving minutes before the crash.” Richard L. Garcia of Bradenton, Fla. alleges that officers told him to drive home rather than taking him into custody despite his intoxication, which makes it their fault that he got into a serious accident minutes later. (AP/Yahoo, Nov. 13).
November 14 – “Survey: Jurors Anti-Big Business”. “Potential jurors often mistrust corporations and think they must impose billions of dollars in punitive damages to send them a clear message, according to survey results released Friday.” The survey is set to appear in this week’s National Law Journal. (Reuters/CBS News, Nov. 10).
November 14 – “Internet Usage Records Accessible Under FOI Laws”. “In an opinion sure to heighten the tension between some parents and school systems over the Internet’s role in publicly financed education, a New Hampshire judge has decided that a parent is entitled to see a list of the Internet sites or addresses visited by computer users at local schools.” Unless overturned on appeal, the ruling will entitle parent James M. Knight of Exeter, N.H. to inspect the logs of general student and faculty Internet use, not just those of his own children. However, the log files will be redacted in an attempt to prevent the identification of individual user names and passwords. Knight, a proponent of filtering/blocking software, had made the request under the state open records law. (Carl S. Kaplan, “Ruling Says Parents Have Right to See List of Sites Students Visit”, New York Times, Nov. 10 (reg); Slashdot thread).
November 13 – Election hangs by a chad. Once underway in earnest, plenty of observers fear, litigation on the 2000 presidential vote will “only spawn more litigation and drag on and on, to the detriment of the political system.” (R.W. Apple Jr., “News Analysis: Experts Contend a Quick Resolution Benefits Nation and Candidates”, New York Times, Nov. 12 (reg)). With the filing of a federal court action by the Bush people to block a planned “hand recount” in Palm Beach County, the legal battling now officially involves the candidates themselves; earlier, the Gore people had been backing litigation filed in the name of Florida residents without actually filing on their own (David S. Broder and Peter Slevin, “Both Sides Increase Legal Wrangling As Florida Begins Slow Hand Count”, Washington Post, Nov. 12). “There is a well-known trick among statistical economists for biasing your data while looking honest. First, figure out which data points don’t agree with your theory. Then zealously clean up the offending data points while leaving the other data alone.” Such a bias would be introduced in the Florida vote by recounting pro-Gore counties like Palm Beach, Broward and Dade so as to validate more ballots by inferring voters’ intent, without doing the same for pro-Bush counties like Duval (Jacksonville). (Edward Glaeser, “Recount ‘Em All, or None at All”, Opinion Journal (Wall Street Journal), Nov. 11). “The leverage that the Gore camp has,” writes columnist Molly Ivins, “is an injunction to prevent certification of the Florida result until that’s settled [namely, its expected demand for a Palm Beach County revote if the pending "hand recount" doesn't do the trick]. Without Florida, Gore wins the Electoral College.” Admittedly, however, “[a] system that managed to acquit O.J. Simpson cannot be counted upon to produce justice.” (“The right to seek justice is undeniable in Florida”, Fort Worth Star-Telegram, Nov. 11).
If you’re looking for truly ripe ballot irregularities, George Will suggests, look to the heartland: “Election Day saw Democrats briefly succeed in changing the rules during the game in Missouri: Their lawyers found a friendly court to order St. Louis polls to stay open three hours past the lawful 7 p.m. closing time. Fortunately, a higher court soon reimposed legality on the Democrats and ordered the polls closed at 7:45.” (“It All Depends on the Meaning of ‘Vote’”, New York Post, Nov. 12). A nice thing about those emergency public donation funds to hire teams of lawyers: there’s no limit on contributions and the parties will be really grateful (David Greising, “Al’s Now a Boy Named Sue, and It’s Not Helping”, Chicago Tribune, Nov. 10). Meanwhile, we note that a prominent Democratic campaign-law expert is denying that his party is “overlawyering” the Florida situation, while the New York Post‘s Rod Dreher uses another variant on the same term in discussing mistaken ballots: “Despite what some in this overlawyered culture seem to believe, the courts have no obligation to protect people from their own carelessness.” (Don Van Natta Jr. and Michael Moss, “Counting the Vote: The Nerve Center”, New York Times, Nov. 11, quoting Robert F. Bauer, no longer online; New York Post, Nov. 12).
November 13 – Vaccine compensation and its discontents. One of the more recently adopted no-fault compensation systems aimed at displacing personal injury litigation is the federal childhood vaccine compensation program, which since 1988 has paid out $315 million to some 1,445 claimants and turned away another 3,372 claimants on the grounds that they could not prove that the vaccines caused injury. The system has substantially reduced the number of lawsuits filed against makers of DPT (diphtheria, tetanus and pertussis (whooping cough)), which “dropped from 255 in 1986 to 4 in 1997″. However, the no-fault system itself partakes of some of the drawbacks of litigation, including delay and adversarialism. One thing it has succeeded in curbing, however, is jackpots for trial lawyers: “Lawyers representing claimants get paid whether a claim is successful or not, but they get closely monitored hourly rates — not the jackpots they occasionally win when they sue, say, tobacco or tire companies.” (Doug Donovan, “Needle damage”, Forbes, Sept. 4).
November 13 – Don’t give an inch. In Sunderland, England, merchant Steven Thoburn has become the first vendor to be prosecuted for sticking to English weights and measures despite an official mandate to convert to European metric alternatives. To coordinate with European Union rules, “British laws came into effect at the beginning of this year imposing fines of up to $8,000 and possible imprisonment on retailers if they refuse to adopt liters and meters.” (“Defiant Brit Vendor Taken To Court”, AP/FindLaw, Nov. 8).
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May 18-21 – “A Smith & Wesson FAQ”. An end run around democratic governance, an assault on gun buyers‘ Second Amendment liberties, a textbook abuse of the power to litigate: the Clinton Administration’s pact with Smith & Wesson is all this and more. When this website’s editor looked into the agreement’s details, he found them if anything worse than he’d imagined — for one thing, they could actually increase the number of people hurt because of gun malfunctions. (Walter Olson, “A Smith & Wesson FAQ”, Reason, June; see also David Kopel, “Smith & Wesson’s Faustian Bargain”, National Review Online, March 20, and “Smart Cops Saying ‘No’”, April 19).
May 18-21 – On the Hill: Clint Eastwood vs. ADA filing mills. The Hollywood actor and filmmaker got interested in the phenomenon of lawsuit mills that exploit the Americans with Disabilities Act (see our March 7, Feb. 15, Jan. 26-27 commentaries) when he was hit with a complaint that some doors and bathrooms at his historic, 32-room Mission Ranch Hotel and restaurant in Carmel, Calif. weren’t accessible enough; there followed demands from the opposing side’s lawyer that he hand over more than just a fistful of dollars — $577,000, the total came to — in fees for legal work allegedly performed on the case. “It’s a racket”, opines Eastwood. “The typical thing is to get someone who is disabled in collusion with sleazebag lawyers, and they file suits.” (Jim VandeHei, “Clint Eastwood Saddles Up for Disability-Act Showdown”, Wall Street Journal, May 9 — online subscribers only). The “Dirty Harry” star is slated to appear as the lead witness in a hearing on the bill proposed by Rep. Mark Foley (R-Fla.) to require that defendants be given a chance to fix problems before lawyers can start running the meter on fee-shift entitlements; the hearing begins at 10 a.m. Thursday, May 18 and the House provides a live audio link (follow House Judiciary schedule to live audio link, Constitution subcommittee; full witness list). The National Federation of Independent Business, Chamber of Commerce of the U.S., National Restaurant Association and International Council of Shopping Centers all like the Foley idea. Eastwood told the WSJ he isn’t quarreling with the ADA itself, and the proposed legislation would affect only future cases and not the one against him; but “I just think for the benefit of everybody, they should cut out this racket because these are morally corrupt people who are doing this.”
May 18-21 – “Dialectizer shut down”. “Another fun, interesting and innovative online resource goes the way of corporate ignorance — due to threats of legal action, the author of the dialectizer, a Web page that dynamically translates another Web page’s text into an alternate ‘dialect’ such as ‘redneck’ or ‘Swedish Chef’ and displays the result, has packed up his dialectizer and gone home”, writes poster “endisnigh” on Slashdot (May 17). (Signoff notice and subsequent reconsideration, Rinkworks.com site). Update: it’s back up now — see Aug. 16-17.
May 18-21 – Dusting ‘em off. A trend in the making? Complainants in a number of recent cases have succeeded in reviving enforcement of public-morality laws that had long gone unheeded but never actually been stricken from the books. In Utah, Candi Vessel successfully sued her cheatin’ husband’s girlfriend and got a $500,000 award against the little homewrecker (as she no doubt views her) under the old legal theory of “alienation of affection”, not much heard of these last forty or more years. (“Spouse Stealer Pays Price: Wife Wins Case Against Mistress for Breaking Up Marriage”, ABC News, April 27). Authorities in two rural Michigan counties have recently pressed criminal charges against men who used bad language in public, under an old statute which provides that “any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.” (“2nd man hit with anti-cussing statute”, AP/Detroit Free Press, April 27) (same article on Freedom Forum). And Richard Pitcher and Kimberly Henry of Peralta, N.M., “have been formally charged by Pitcher’s ex-wife under the state’s cohabitation law, which prohibits unwed people from living together as ‘man and wife’”. (Guillermo Contreras, “Couple charged with cohabitation”, Albuquerque Journal, March 11) (update: see May 8, 2001 for newer example).
May 18-21 – Campaign regulation vs. free speech. The state of Kentucky’s Registry of Election Finance has ruled that newspapers have a constitutional right to editorialize on behalf of candidates of their choice, rejecting a complaint that characterized such endorsements as “corporate contributions” made by the newspaper proprietors. (“Kentucky election agency: Newspaper editorials aren’t contributions”, AP/Freedom Forum, May 10). A general hail of dead cats has greeted the Congressional Democrats’ lawsuit charging House Majority Whip Tom DeLay with “racketeering” over campaign fundraising practices, with Democratic operative Paul Begala calling the suit “wrong, ethically, legally and politically.” (David Horowitz, “March of the Racketeers”, Salon, May 15; Michael Kelly, “Hammering DeLay”, Washington Post, May 10). And Mickey Kaus, on his recommended Kausfiles.com website, spells out in words of one syllable to pundit Elizabeth Drew why proposed bans on privately sponsored “issue ads” run smack into the Constitution’s guarantee of free speech (“Drew’s Cluelessness: Please don’t let her anywhere near the First Amendment!”, May 7).
May 18-21 – Gotham lawyers upset at efficient jury selection. A few years ago, led by its Chief Justice Judith Kaye, the state of New York began taking long-overdue steps to reform its notorious jury selection system, under which lawyers had often been permitted to browbeat and grill helpless juror-candidates for days at a time in search of the most favorably disposed (not to say pliable) among them. The changes, which bring the Empire State more into line with the practice around the rest of the country, have markedly reduced the time jurors and others must spend on empanelment. So who’s unhappy? The state’s bar association, naturally, which opposed reform in the first place, and now complains that “attorneys are feeling increasingly constrained by time limits and other restrictions”. A survey it conducted “suggests that many lawyers feel that new practices are cramping their style.” Yes, that was the idea (John Caher, “NYS Bar Favors More Voir Dire Leeway”, New York Law Journal, April 12).
May 17 – Not my fault, I. In 1990 Debora MacNamara of Haileybury, Ontario smothered her nine-year-old daughter Shauna as she slept. Found not guilty by reason of insanity, she spent five years in mental institutions before being released. Now she’s suing two psychiatrists and her family doctor for upwards of $20 million, saying they should have prevented her from doing it. The docs say she was “an uncooperative, recalcitrant patient who didn’t take her medication as prescribed, often cancelled appointments, wouldn’t let those treating her share critical medical information and either minimized or lied about both her symptoms and state of mind.” (Christie Blatchford, “Woman sues doctors for not stopping her from killing”, National Post, May 16, link now dead)).
May 17 – Not my fault, II. “Fourteen years after accidentally shooting himself in the hand, 19-year-old Willie K. Wilson of Pontiac is pointing the finger at his father and Smith & Wesson, suing both last week for at least $25,000 in Oakland County Circuit Court.” His lawyer explains that Willie isn’t actually angry at his pa but is just going after the homeowners’ insurance money. Hey, who could object in that case? (Joel Kurth, “Son sues father, Smith & Wesson”, Detroit News, May 16).
May 17 – Comparable worth: it’s back. This time they’re calling it “pay equity”, but a new study by economist Anita Hattiangadi and attorney Amy Habib for the Employment Policy Foundation finds no evidence that the much-discussed pay gap between the sexes owes anything to employer bias, as distinct from women’s individual choices to redirect energy toward home pursuits during childbearing years (EPF top page; “A Closer Look at Comparable Worth” (PDF)). Plus: the foundation’s comments on White House pay equity report (PDF); background on comparable worth; and writings by Diana Furchtgott-Roth of the American Enterprise Institute, “Still Hyping the Phony Pay Gap”, AEI “On the Issues”, March; Roger Clegg (“Comparable Worth: The Bad Idea That Will Not Die”, National Legal Center for the Public Interest, “Briefly…” series, August 1999 (PDF); and the Chicago Tribune‘s Steve Chapman (“Clinton’s Phony Fight for ‘Pay Equity’, Feb. 24).
May 17 – Update: judge frowns on Philly’s Mr. Civility. Following up on our March 13 commentary, federal judge Herbert J. Hutton has imposed sanctions on attorney Marvin Barish, including an as yet uncalculated fine and disqualification in the case, over an incident during a trial recess in which Barish threatened to kill the opposing lawyer with his bare hands and repeatedly called him a “fat pig”. Barish’s attorney, James Beasley (apparently the same one for whom Temple U.’s law school was renamed after a large donation), said if anyone merited sanctions it was the opposing counsel, representing Amtrak, for having engaged in legal maneuvers that provoked his client to the outburst; Barish is “one of the city’s most successful lawyers handling Federal Employers Liability Act cases”. (Shannon P. Duffy, “Judge Hits Lawyer with Fine Over Alleged Threat”, Legal Intelligencer (Philadelphia), May 2).
May 17 – Disabled vs. disabled. Strobe-light-equipped fire alarms — a great idea for helping the deaf, no? A sweeping new mandate to that effect is pending before the federal government’s Access Board, which would affect workplaces, hospitals, and motel rooms, among other places. All of which horrifies many members of another category of disabled Americans, namely those with photosensitive epilepsy and other seizure disorders: In a recent survey, 21 percent of epileptics said flashing lights set off seizures for them. “Should a seizure be caused by stroboscopic alarms during an actual fire emergency, that person would be incapacitated, leading to even more danger both from the seizure and from the emergency itself.” And then there are all the false alarms. … (Epilepsy Foundation, “Legislative Alert“, Capitol Advantage Legislative Advocacy Center; Access Board, Notice of Proposed Rulemaking, relevant section (see s. 702.3)).
May 16 – Federal commerce power genuinely limited, Supreme Court rules. Big win for federalists at the high court as the Justices rule 5-4 to strike down the right-to-sue provision of the Violence Against Women Act on the grounds that the Constitution does not empower Washington to muscle into any area of police power it pleases simply by finding that crime affects interstate commerce. (Laurie Asseo, “High Court: Prosecution of Rapists Up To States”, AP/Chicago Tribune, May 15, no longer online; U.S. v. Morrison, decision (Cornell); Center for Individual Rights; Anita Blair (Independent Women’s Forum), Investors Business Daily, reprinted Feb. 4).
May 16 – Deflated. After suing automakers up one side of the street for the sin of not installing airbags earlier, trial lawyers are now suing them down the other over the injuries the bags occasionally inflict on children and small-framed adults. Last month Ford got hit with a $20 million verdict in a case where an infant was paralyzed by a Mustang’s airbag, but last week a Detroit jury declined to find liability against DaimlerChrysler in a case where an airbag detonation killed 7-year-old Alison Sanders after her father ran a red light and broadsided another vehicle. (“Jurors clear DaimlerChrysler in 1995 air-bag lawsuit case”, Detroit Free Press, May 11, link now dead; Bill Vlasic and Dina ElBoghdady, “Air bag suits unlikely to stop”, Detroit News, May 12).
Who was it that spread the original image of air bags as pillowy, child-friendly devices, the right solution for all passengers in all circumstances? Lawyers now wish to blame Detroit, but Sam Kazman of the Competitive Enterprise Institute quotes the remarks of longtime Ralph Nader associate Joan Claybrook, who headed the National Highway Traffic Safety Administration during the Carter-era rulemaking: “Air bags work beautifully,” she declared, “and they work automatically and…that gives you more freedom than being forced to wear a seat belt.” (Letting people think an airbag might relieve them of the need to buckle up is now, of course, seen as horrifically bad safety advice.) Moreover, quoth Claybrook, the devices “fit all different sizes and types of people, from little children up to…very large males.” (“Only Smart Air Bag Mandate is No Mandate at All”, CEI Update, March 2).
Even more striking, CEI’s Kazman dug up this photo of Ralph Nader, who long flayed manufacturers for their delay in embracing the devices, using an adorable moppet as an emotional prop. Sam says the photo is from a 1977 press conference; he thinks it would make a lovely display in Nader’s planned museum of product liability law in Winsted, Connecticut. [DURABLE LINK]
MORE SOURCES: Bill Vlasic and Dina ElBoghdady, “Dead girl’s dad fights air bags”, Detroit News, March 29; Janet L. Fix, “Father’s heartbreak fueled lawsuit after 1995 accident”, Detroit Free Press, April 5; “The Deployment of Car Manufacturers Into a Sea of Product Liability? Recharacterizing Preemption as a Federal Regulatory Compliance Defense in Airbag Litigation”, Note (Dana P. Babb), Washington U. Law Quarterly, Winter 1997; Scott Memmer, “Airbag Safety”, Edmunds.com, undated web feature; Michael Fumento, “Paper Scares Parents for Politics and Profit”, 1998, on Fumento.com website.
May 16 – “Clinton’s law license”. “The Arkansas Supreme Court should take away Clinton’s law license because he lied under oath,” declares the editorially middle-of-the-road Seattle Times. “It’s unlikely that Clinton will want to practice after he leaves the White House, but this has more to do with the legal community upholding its own ethics than the president’s next career. The American Bar Association’s standards for lawyer sanctions leave little doubt: ‘Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information and causes serious or potentially serious injury to a party. …’ Last April, federal judge Susan Webber Wright found Clinton in contempt for ‘giving false, misleading and evasive answers that were designed to obstruct the judicial process’ while under oath in her presence. She also has filed a complaint with the Arkansas Supreme Court, but did not recommend a specific penalty. …Clinton should surrender his license or the court should take it.” (editorial, May 15). Plus: Stephen Chapman in Slate (“Disbar Bill”, May 12). [DURABLE LINK]
May 16 – The asset hider. Curious profession of a New Yorker whose specialty consists in finding ways to help wealthy men hide assets so as to escape legal obligations to their wives. The proprietor of “Special Services” of E. 28th St. also boasts of his skill in private investigation, which didn’t prevent him from falling for the cover story of a New York Post writer who posed as a divorce-bent Internet millionaire while secretly taping their lunch (Daniel Jeffreys, “The Wealthy Deadbeat’s Best Friend”, New York Post, May 15).
May 15 – Doctor cleared in Lewis cardiac case. A team of cardiologists told basketball star Reggie Lewis that his playing days were over. Then his wife helped get him transferred under cover of darkness to a new team of doctors who said he could go on playing. Then he collapsed on the court and died. And then Donna Harris-Lewis, having already collected on her husband’s $12 million Celtics contract, sued the docs for negligence. One paid $500,000 to settle, but last week Dr. Gilbert Mudge of Brigham & Women’s won vindication from a jury. (Sacha Pfeifer, “The verdict is in: no negligence”, Boston Globe, May 9; Dan Shaughnessy, “Everybody has lost in Lewis case; let’s move on”, May 9; Barry Manuel, “As usual, only lawyers won in Lewis case”, May 11, links now dead). Earlier, Harris-Lewis drew flak by comparing herself to the families of six firefighters who died in a Worcester warehouse blaze. “Lots of money is being raised for those families, and I need to be taken care of, too. Everybody has to say I’m greedy. But I do want my money back this time around. Why should I lose?” Well, ma’am, we could start a list of reasons. … (Steve Buckley, “What was Harris-Lewis thinking?”, Boston Herald, March 28).
May 15 – The four rules of sex harassment controversies. We thought we had ‘em memorized after the Anita Hill affair … then we had to unlearn all four during the late unpleasantness with President Clinton … and now they’ve all returned in coverage of the Pentagon’s Claudia Kennedy case. (David Frum, “Breakfast Table” with Danielle Crittenden Frum, Slate, May 12). In other harassment news, a jury has awarded $125,000 to a male waiter at a T.G.I. Friday’s near Tampa who said that female co-workers touched and grabbed him lewdly, that co-workers made fun of him when he complained, and that the restaurant chain proceeded to ignore his plight and retaliate against him. (Larry Dougherty, “Waiter wins suit against Friday’s”, St. Petersburg Times, May 5). And a Wisconsin appeals court has upheld a trial court’s award of $143,715, reduced from a jury’s $1 million, to a computer analyst who “said his boss spanked him with a 4-foot-long carpenter’s level during a bizarre workplace ritual” and then announced “Now, you’re one of us”. The boss testified that the spanking ceremony dated way back as an initiation at the Phillips, Getschow Co., a century-old mechanical contracting firm. (Dennis Chaptman, “Court upholds $143,715 award for spanking”, Milwaukee Journal-Sentinel, April 18).
May 15 – Convenient line at the time. Tobacco is special, said the state attorneys general who teamed up with trial lawyers to expropriate that lawful industry via litigation and share out the resulting plunder. It’s “the only product that, if used as intended, could be fatal.” And so they categorically dismissed critics’ fears that the tempting new ways of raising revenue without resorting to explicit taxation might soon be aimed at other industries. Who was fool enough to believe them? (Victor E. Schwartz, “Trial Lawyers Unleashed”, Washington Post, May 10).
May 15 – Gloves come off in Mich. high court race. We warned you it would get nasty (see May 9, Jan. 31), but not this soon. At a recent NAACP gathering, the Michigan Democratic Party circulated a flyer stating that incumbent Justice Robert Young opposes the 1954 U.S. Supreme Court decision in Brown v. Board of Education, which ended racial segregation in public schools. Young, who is African-American and whose record on the court has been conservative, terms the flyer “virulent race-baiting” and untrue and has demanded an apology. State Democratic chairman Mark Brewer dares Young to sue, but declines to name a source for the flyer’s characterization of his views on Brown. (Kathy Barks Hoffman, “Race for 3 spots on top court sparks charge of ‘race-baiting’”, AP/Detroit News, May 11; George Weeks, “Election of justices needs changing” (editorial), May 11).
May 12-14 – Microsoft opinion: the big picture. However well they’re doing in Judge Jackson’s court, Janet Reno’s trustbusters are getting slammed in the court of public opinion, which continues lopsidedly opposed to breakup. While a Harris poll finds less than 40 percent of respondents believing that Bill Gates’s company has treated its competitors fairly, that’s still a better rating than Joel Klein’s Antitrust Division gets: only one in three believe the government treated Microsoft fairly. (Paul Van Slambrouck, “High-tech trust-busting a bust with public today”, Christian Science Monitor, May 5; Manny Frishberg, “Public favors MS in antitrust”, Wired News, May 4). The Independent Institute’s Alex Tabarrok calculates that the loss in capital value of Microsoft as an enterprise amounts to $768 for every person in the United States, and that most of this sum can plausibly be attributed to the legal action rather than to business setbacks. (“The Anti-entrepreneurs,” May 1). Given that the rest of the high-tech sector has also taken a thrashing, economics Nobelist Milton Friedman says Silicon Valley “must rue the day that they set this incredible episode in operation” by siccing the government on their Seattle rival (statement reprinted at National Taxpayers Union site, April 28).
Does all this augur a revival of “vigorous”, sock-’em-hard antitrust enforcement, not much seen in the last couple of decades? If so, ABC’s John Stossel has some deserving nominees for breakup far more monopolistic than Windows ever was, including the U.S. Postal Service — yes, it’s still unlawful to compete with it in first-class service (“Give Me a Break: Government Protection?” (video clip), May 5). And Michael Kinsley wonders why the U.S. government, if it really takes trustbusting principles seriously, still takes such an indulgent, price-fixers-will-be-price-fixers approach toward OPEC — a genuinely noxious cartel that inflicts great damage on the American economy, and whose member countries (among them Russia, Norway, Venezuela and the spectacularly ungrateful Kuwait and Saudi Arabia) appear to suffer nary a repercussion in the conduct of U.S. foreign policy (“Readme: Oil Crooks”, Slate, March 27).
May 12-14 – Dismounted. “A therapeutic horse-riding program for 600 mentally impaired Oakland County children and teenagers is in jeopardy this summer, a potential victim of a liability impasse among lawyers and bureaucrats.” Parents praise the Silver Saddles program, but the county is unwilling to accept liability exposure for it, which could be financially catastrophic in the event of an accident to a young rider. (Hugh McDiarmid, Jr., “Riding-therapy program faces liability hurdle”, Detroit Free Press, May 5).
May 12-14 – Steady aim. Everyone who supports democracy — as well as everyone who opposes the abuse of litigation — should favor legislative measures aimed at reserving gun regulation to elected lawmakers rather than the machinations of ambitious trial lawyers, argues Vince Carroll of Denver’s Rocky Mountain News (“Gun bill puts halt to lawsuit abuse”, April 30). And Washington, D.C.’s Sam Smith, who shows regularly that there’s still life on the Left in his remarkable online Progressive Review (which we’re pleased to see often picks up items from this space), has put up a page of reasons “why politicians, moms, and progressives should stop pressing for more gun control laws” (“Wild Shots“).
May 11 – “Ad deal links Coke, lawyer in suit”. Both the Coca-Cola Co. and plaintiff’s attorney Willie Gary are denying a linkage between Gary’s role as a lawyer in the current high-profile race bias litigation against Coke and the company’s just-announced agreement — financial terms not disclosed — to become a major advertiser on a cable channel of which Gary is part owner. Last month amid fanfare the Florida lawyer arrived in Atlanta on his private jet (“Wings of Justice”) to assume representation of several of the original plaintiffs in the much-publicized employee litigation against the beverage company. “I want a settlement that’s fair and just,” he said then. “I don’t come cheap. I think big, real big.” On Tuesday Coke announced a major five-year deal to buy ads on the fledgling Major Broadcasting Cable Network, which Gary helped launch and of which he is chairman and chief executive. Gary says his clients are aware of the deal and says, “There’s absolutely no conflict. We’re not friends. We’re business people. Coke is not giving me anything. … It’s goods in exchange for service. … No way this is a conflict.’”
A sometime fund-raiser for the Rev. Jesse Jackson’s Rainbow/PUSH coalition, Gary is best known in legal circles for the ruinous $500 million verdict he obtained in a Jackson, Mississippi courtroom against the Loewen Group, a Canadian-owned funeral home chain, in what had previously seemed a routine commercial dispute (see our editor’s account). Last week he announced that he was demanding nearly $2 billion from the Burger King Corporation on behalf of Detroit restaurateur La-Van Hawkins, whose UrbanCityFoods business has not fared as well as expected in its operation of franchised hamburger units. Gary’s entry last month into the Coke case came at a time of unpleasant back-and-forth charges between some of the employees who were first to sue and class-action lawyers who had worked to assemble their and others’ complaints into a suit on behalf of the company’s entire black workforce, led by Washington, D.C.’s Cyrus Mehri, of Texaco fame (our account of that one), with the Mehri camp saying the individuals were holding out for too much money for themselves personally as distinct from the class, and a PUSH coalition activist, Joseph Beasley, countering that under the settlement anticipated from the class action the “lawyers get all the money” while “the black community is left high and dry”.
SOURCES: Henry Unger, “Ad deal links Coke, lawyer in suit”, Atlanta Journal- Constitution, May 10 (fee-based archive); Constance L. Hays, “Coke to Advertise on Channel Owned by Lawyer in Bias Suit”, New York Times, May 10, no longer online; Betsy McKay, “For Coke’s Big Race Lawsuit, a New Wild Card”, Wall Street Journal, April 14 (subscription); Beth Miller, “Cable network to focus on black families”, Media Central, Dec. 13; Trisha Renaud, R. Robin McDonald, and Janet L. Conley, “Money, Trust Behind Coke Split”, Fulton County Daily Record, April 14; “Burger King Has Greater Troubles: Internationally Renowned Trial Attorney Willie Gary Asks Burger King for $1.9 Billion”, Excite/PR Newswire press release from Gary’s firm, May 3; Eric Dyrrkopp and Andrew H. Kim, “Prospecting the Last Frontier: Legal Considerations for Franchisors Expanding into Inner Cities”, Franchise Law Journal, Winter 2000, reprinted at Bell, Boyd & Lloyd site.
May 11 – Tort fortune fuels $3M primary win. In Charleston, W.V., attorney and former state senator Jim Humphries has won the Democratic nomination in the Second Congressional District after investing $3 million from the fortune he made in asbestos litigation. Humphries’s “big-budget, slickly produced campaign” overpowered his primary rivals, who included one of the state’s best-known politicians, Secretary of State and former U.S. Representative Ken Hechler, as well as state senator Martha Walker, who chairs the state senate’s health and human resources committee; between them Hechler and Walker split about half the primary vote. The campaign “shattered all state records for spending in a congressional primary election.” Humphries now faces Delegate Shelley Moore Capito, R-Kanawha, who ran unopposed in the Republican primary. (Phil Kabler, “Humphreys’ $3 million pays”, Charleston Gazette, May 10).
May 11 – Stubbornness of mules a given. A federal court in North Carolina has dismissed a lawsuit by the producers of the soon-to-be-released film “Morgan’s Creek” against animal wrangler Alicia Rudd over the refusal of her trained mule to sit down on cue or cooperate in other ways on the set. The producers said the animal’s recalcitrance had prolonged shooting by an extra day, costing upwards of $110,000, but the judge said there was no proof that Rudd breached a promise or misrepresented her ability to control the mule. (“Judge finds stubborn mule no cause for action”, AP/CNN, May 8).
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