- “Lying to a Lover Could Become ‘Rape’ In New Jersey” [Elizabeth Nolan Brown/Reason, Scott Greenfield]
- “A $21 Check Prompts Toyota Driver to Wonder Who Benefited from Class Action” [Jacob Gershman, WSJ Law Blog]
- On “right of publicity” litigation over the image of the late General George Patton [Eugene Volokh]
- HBO exec: “We have probably 160 lawyers” looking at film about Scientology [The Hollywood Reporter]
- Revisiting the old and unlamented Cambridge, Mass. rent control system [Fred Meyer, earlier]
- Lawyers! Wanna win big by appealing to the jurors’ “reptile” brain? Check this highly educational offering [Keenan Ball]
- “Suit claims Google’s listings for unlicensed locksmiths harmed licensed business” [ABA Journal]
- Nastygrams fly at Christmas time over display and festival use of “Jingle Bells”, Grinch, etc. [Elefant]
- Claims that smoking ban led to instantaneous plunge in cardiac deaths in Scotland turns out to be as fishy as similar claims elsewhere [Siegel on tobacco via Sullum, Reason “Hit and Run”]
- Myths about the costs and consequences of an automaker Chapter 11 filing [Andrew Grossman, Heritage; Boudreaux, WSJ] Drowning in mandates and Congress throws them an anchor [Jenkins, WSJ]
- Mikal Watts may be the most generous of the trial lawyers bankrolling the Texas Democratic Party’s recent comeback [Texas Watchdog via Pero]
- Disney settles ADA suit demanding Segway access at Florida theme parks “by agreeing to provide disabled guests with at least 15 newly-designed four-wheeled vehicles.” [OnPoint News, earlier]
- Update on Scientology efforts to prevent resale of its “e-meter” devices on eBay [Coleman]
- Scary: business-bashing lawprof Frank Pasquale wants the federal government to regulate Google’s search algorithm [Concurring Opinions, SSRN]
- Kind of an endowment all by itself: “Princeton is providing $40 million to pay the legal fees of the Robertson family” (after charges of endowment misuse) [MindingTheCampus]
YouTube received a flurry of takedown notices, but “quickly realized something was fishy, and began investigating.” It “rapidly became clear” that the entities filing the takedown demands “did not hold the copyrights to the materials they claimed to be infringed, including footage from a Clearwater City Commission meeting and a man-on-the-street interview. In addition, many of these videos were obvious fair uses, such as independent news reports.” (Eva Galperin, Electronic Frontier Foundation, Sept. 25)(via Ardia).
From a Rolling Stone investigative report on L. Ron Hubbard’s Church of Scientology (Janet Reitman, “Inside Scientology”, Feb. 23):
The church has a storied reputation for squelching its critics through litigation, and according to some reports, intimidation (a trait that may explain why the creators of South Park jokingly attributed every credit on its November 2005 sendup of Scientology to the fictional John and Jane Smith; Paramount, reportedly under pressure, has agreed not to rerun the episode here or to air it in England).
Yes, it’s the Scientologists again (see Apr. 16, 2004; Mar. 25-26, 2002; Mar. 19-20, 2001; May 3, 2000). This time they’re threatening a New Zealand parody site named ScienTOMogy.info, which is thus named in honor of Scientology adherent Tom Cruise (via Matt Welch, Reason “Hit and Run”, Oct. 19, headline and all). More: Ron Coleman, Likelihood of Confusion, Oct. 22.
“A former member and longtime critic of the Church of Scientology has been ordered by a Marin County judge to pay the church $500,000 for speaking out against the controversial religious movement.” Scientology defector Gerald Armstrong, in a 1986 settlement of earlier litigation with the church, had agreed to “maintain strict confidentiality and silence with respect to his experiences with the Church of Scientology” with a penalty of $50,000 for every offending utterance. “The church maintains that Armstrong has violated the agreement at least 201 times and owes it just over $10 million.” Armstrong’s “lawyer noted that his client had declared bankruptcy to avoid paying past damages won by Scientology, and Armstrong still vows to never pay a penny to the church.” (Don Lattin, San Francisco Chronicle, Apr. 13). See also Mar. 25-26, 2002; May 3, 2000.
March 29-31 — British judge rejects hot-drink suits. U.K. lawyers had hoped to replicate the success of the celebrated American case in which a jury voted Stella Liebeck $2.7 million (later reduced to just under $500,000, and settled out of court) after she spilled coffee in her lap. However, on Mar. 27 High Court Justice Richard Field ruled against lawsuits by 36 patrons whose lawyers had claimed that the burger chain failed to warn of risks of scalding, “served drinks that were too hot, [or] used inadequate cups … ‘I am quite satisfied that McDonald’s was entitled to assume that the consumer would know that the drink was hot and there are numerous commonplace ways of speeding up cooling, such as stirring and blowing,’ the judge said.” (“British Judge Rules McDonald’s Not Liable for Hot Drinks That Scald”, AP/TBO, Mar. 28; “Judge rules against McDonald’s scalding victims”, Daily Telegraph, Mar. 27).
March 29-31 — Florida’s ADA filing mills grind away. The clutch of Miami lawyers who’ve been making a tidy living filing disabled-accommodation claims against local entrepreneurs are moving their way up into central Florida, where they are suing tourist businesses along interstate corridors, reports the St. Petersburg Times (see July 20, 2001 and links from there). One motel owner hit with a complaint has agreed to pay off the plaintiff lawyer’s hefty “fee” in installments, but can’t tell a reporter how big it is, because as part of the settlement he is forbidden to disclose the amount. (“Big winners in disabled crusade? Lawyers”, St. Petersburg Times, Mar. 24).
March 29-31 — The lawyers who invented spam. “On April 12, 1994, Laurence Canter and Martha Siegel, two immigration lawyers from Arizona, flooded the Internet with a mass mailing promoting their law firm’s advisory services.” Widely reviled at the time, Canter is still quite unapologetic: “Yes, we generated a lot of business. The best I can recall we probably made somewhere between $100,000 to $200,000 related to that — which wasn’t remarkable in itself, except that the cost of doing it was negligible.” (Sharael Feist, “Spam creator tackles the meaty issue”, ZDNet News, Mar. 26).
March 27-28 — Judge orders woman to stop smoking at home. In Utica, N.Y., Justice Robert Julian has ordered Johnita DeMatteo, if she wants to continue visitation rights with her 13-year-old son, to stop smoking in her home or car, even in the boy’s absence. “While similar rulings have been made in cases where children are in poor health, Julian’s ruling is apparently the first involving a healthy child who is not allergic to smoke” or suffer from a condition like asthma that would be worsened by it. (Dareh Gregorian, “Judge Bars Mom from Smoking”, New York Post, Mar. 26; Samuel Maull, “Judge Imposes Smoking Ban on Mother”, AP/Washington Post, Mar. 25)(see Oct. 5 and Nov. 26, 2001). Following the publication of a new study suggesting the possibility of a link between smoking and sudden infant death syndrome, anti-smoking activists are excited to think they may now have the leverage needed to obtain legal measures against smoking by parents in homes. “Ms. [Gail] Vandermeulen of [Ontario] Children’s Aid said attempts to curb smoking in the home have so far proved unworkable. In 1999, for example, the association drew up a policy trying to keep foster parents from smoking. ‘It caused quite a controversy; people felt they had a right to do what they want to do in their own homes,’ Ms. Vandermeulen said. (Carolyn Abraham, “Secondhand smoke linked to SIDS”, Toronto Globe & Mail, Feb. 21). And anti-smoking activists, in a report financed by the government of California, are demanding that an “R” rating be attached to movies in which anyone smokes, putting Golden Age Hollywood films off limits to the underage set unless they drag an adult to the theater with them (“Anti-smoking groups call for movie ratings to factor in tobacco”, Hollywood Reporter, Mar. 12; “The Marlboro woman” (editorial), The Oregonian, Jan. 28 (Univ. of Calif.’s Stanton Glantz)). (DURABLE LINK)
March 27-28 — “The American Way”. Thanks to James Taranto at WSJ “Best of the Web” (Mar. 26) for this pairing of quotes:
* “They evil ones didn’t know who they were attacking. They thought we would … roll over. They thought we were so materialistic and self-absorbed that we wouldn’t respond. They probably thought we were going to sue them.” — President George W. Bush, Mar. 21.
* “Whether or not we invade Iraq to topple Saddam Hussein, let’s go about this the American way. Let’s sue him.”– Nicholas Kristof, New York Times (reg), Mar. 26.
March 27-28 — Reparations suits: so rude to call them extortion. What happened on Wall Street when the first three major U.S. companies were named in lawsuits demanding reparations for slavery? “In afternoon New York Stock Exchange trading, Aetna shares were up 44 cents at $37.78, CSX shares were up 66 cents at 37.55, and FleetBoston shares were up 24 cents at $35.38.” Should we interpret that as a recognition of the frivolous nature of the suits, or as investors’ vote of sympathy for the first extortion targets among many more to come? (Christian Wiessner, “Reparations Sought From U.S. Firms for Slavery”, Reuters/Yahoo, Mar. 26; “Suit seeks billions in slave reparations”, CNN, Mar. 26; text of complaint in PDF format, courtesy FindLaw; James Cox, “Aetna, CSX, FleetBoston face slave reparations suit”, USA Today, Mar. 24). Reparations activists are shrewdly structuring their meritless suits as guilt-seeking missiles, aimed at corporations nervous about their image and, coming up, the juiciest target of all: elite colleges and universities. At Princeton, for example, an early president of the college was recorded as owning two slaves at his death, and “numerous trustees and antebellum-era graduates owned slaves.” Reason enough to expropriate Old Nassau — get out your wallets, alums. (Andrew Bosse, “Reparations scholars may name University in lawsuit”, Daily Princetonian, Mar. 12; Alex P. Kellogg, “Slavery’s Legacy Seen in the Ivory Tower and Elsewhere”. Africana.com, Aug. 28, 2001) (see Feb. 22).
“It’s never about money,” lawyer Alexander Pires of the Reparations Coordinating Committee said last month. (Michael Tremoglie, “Reparations — ‘It’s Never About Money'”, FrontPage, March 4). “To me it’s not fundamentally about the money,” said radical Columbia scholar Manning Marable, who is also helping the reparations effort. (Kelley Vlahos Beaucar, “Lawsuit Chases Companies Tied to Slavery”, FoxNews.com, Mar. 25). Translation: it’s about the money. And next time you are inclined to be overawed by the reputation of Harvard Law School, consider that an ornament of its faculty, Prof. Charles Ogletree, not only is a key adviser to the reparations team but also co-chairs the presidential exploration committee of buffoon/spoiler candidate Al Sharpton, whose name will be forever linked with that of defamation victim Steven Pagones (see Dec. 29, 2000). (Seth Gitell, “Al Sharpton for president?”, Boston Phoenix, Feb. 28 – Mar. 7). (DURABLE LINK)
March 27-28 — Why your insurance rates go up. To the Colorado Court of Appeals, it makes perfect sense to make an auto insurer pay for a sexual assault that took place in a car. (Howard Pankratz, “Court: Attack in car insured”, Denver Post, Mar. 15). Update Oct. 15, 2003: state’s Supreme Court reverses by 4-3 margin.
March 25-26 — Web speech roundup. The famously litigious Church of Scientology has had some success knocking a major anti-Scientology site off the Google search engine (the offshore Xenu.net, “Operation Clambake”) by informing Google’s operators that the site violates copyrighted church material under the Digital Millennium Copyright Act. (Declan McCullagh, Google Yanks Anti-Church Sites”, Wired News, Mar. 21; “Google Restores Church Links”, Mar. 22; John Hiler, “Church v Google, round 2″, Microcontent News, Mar. 22) (via Instapundit)(see Mar. 19, 2001). The National Drug Intelligence Center, a unit of the U.S. Department of Justice, acknowledged in December that it monitors more than 50 privately operated websites that provide information about illegal drugs. In a report, the Center warned that many such sites include material “glamorizing” such substances or are “operated by drug legalization groups” with an aim to “increase pressure on lawmakers to change or abolish drug control laws.” Yes, it’s called “speech” to you, buddy (Brad King, “DOJ’s Dot-Narc Rave Strategy”, Wired News, Mar. 13; “Government Admits Spying on Drug Reformers”, Alchemind Society, Mar. 15; National Drug Intelligence Center, “Drugs and the Internet”, Dec. 2001; more on what DoJ calls “offending” websites).
Companies continue to wield threats of litigation with success against individuals who criticize them on investor and other message boards: “Dan Whatley …lost a $450,000 defamation lawsuit for statements he had made about a company called Xybernaut on an Internet message board. He said he didn’t even know the suit existed.” (Jeffrey Benner, “Online Company-Flamers: Beware”, Wired News, Mar. 1). The Texas Republican Party recently threatened legal action against a parody website aimed at calling attention GOP links to the failed Enron Corp., but succeeded only in giving the site’s operators far more publicity than they could have gotten in any other way (Eric Sinrod (Duane Morris), “E-Legal: Republican Party of Texas Goes After Enron Parody Web Site”, Law.com, Mar. 5). The Canadian government has demanded that pro-tobacco website Forces Canada cease using a version of the national flag’s maple leaf (which turns out to be a trademarked logo) as a design feature, claiming it could confuse viewers into thinking the site is officially sanctioned (Joseph Brean, “Take Canadian flag off Web site, government tells smokers’ group”, National Post, Jan. 30). And the Electronic Frontier Foundation along with law school clinics at Harvard, Stanford, Berkeley, and the University of San Francisco have launched the new Chilling Effects Clearinghouse, aimed at assisting site owners worried about being accused of violating copyrights or trademarks. It includes special sections devoted to fan sites, poster anonymity and other issues, and publishes examples of lawyers’ letters commanding site owners to cease and desist, popularly known as nastygrams. (Gwendolyn Mariano, “Site reads Web surfers their rights”, Yahoo/CNet, Feb. 26). (DURABLE LINK)
March 25-26 — La. officials seek oyster judge recusal. “The Louisiana Department of Natural Resources is asking a state district judge to remove himself from hearing oyster lease damage cases because he has already awarded a former client and the client’s family almost $110 million from two previous cases. Monday, state District Judge Manny Fernandez is set to begin hearing more lawsuits claiming the Caernarvon Freshwater Diversion damaged oyster leases in St. Bernard Parish. The state says at least one plaintiff in the case is a former client of Fernandez’s and that man’s family and related companies received damage awards in recent Fernandez decisions. … The upcoming case is the latest in a string of oyster damage suits that, if upheld on appeal, will cost the state more than $1 billion, according to the state’s motion.” (Mike Dunne, “DNR asks judge to step down”, Baton Rouge Advocate, Mar. 16). (DURABLE LINK)
March 25-26 — Tribulations of the light prison sleeper. David Wild, serving a sentence for murder at a medium security prison in British Columbia, is asking C$3 million in damages over what he calls the prison’s “inhumane” practice of conducting head counts in the middle of the night, which “has caused him to lose a full night’s sleep 509 times over five years.” In particular, Wild’s suit “says prison guards acted thoughtlessly and carelessly by rattling door knobs, stomping down stairs, turning on lights and talking loudly on two-way radios in the middle of the night.” Federal Court Justice James Hugessen has already ruled that the case can go forward, rejecting the Canadian government’s attempt to get it thrown out as frivolous or vexatious. (Janice Tibbetts, “Prison guards wake me up too much, murderer claims in $3.1M lawsuit”, Southam/National Post, Mar. 12). (DURABLE LINK)
March 22-24 — “O’Connor Criticizes Disabilities Law as Too Vague”. Another noteworthy public speech from Supreme Court justice Sandra Day O’Connor on a topic dear to our heart, namely the way the Americans with Disabilities Act created a massive new edifice of rights to sue without making clear who was actually covered by the law or what potential defendants had to do to comply. Law professor Chai Feldblum, who played a key role in guiding the law to passage while with the American Civil Liberties Union’s Washington office, counters by saying that its backers were not rushed and devoted much care and attention to drafting the bill’s provisions. Note that this does not actually contradict the charge of vagueness, but only Justice O’Connor’s charitable assumption that the vagueness was inadvertent; it is consistent with our own long-voiced opinion that the bounds of the law were made unclear on purpose. (Charles Lane, Washington Post, Mar. 15). For the Justice’s comments last summer on the relation between contingency fees, class actions and the litigation explosion, and on zero-tolerance policies, see July 6, 2001. (DURABLE LINK)
March 22-24 — Lawyers stage sham trial aimed at inculpating third party. Arizona bar authorities say opposing lawyers in a medical malpractice case cut a secret deal in which the lawyers for the physician defendant “promised not to object to any of the plaintiffs’ evidence in return for the plaintiffs’ promise to dismiss the case before the jury began deliberations.” A second defendant, Scottsdale Memorial Hospital, had already been dismissed from the case on summary judgment, and for the plaintiffs the point of the maneuver “was to create a record that would help them in seeking reconsideration of the summary judgment in favor of the hospital”. Both parties were aware that the physician defendant’s resources were insufficient to pay the claim if successful. The trial judge had been suspicious of the plaintiffs’ motion to withdraw the case, and later discovered the secret agreement when considering their motion to reconsider the summary judgment in favor of the hospital.
The state bar of Arizona brought a disciplinary action against Richard A. Alcorn and Steven Feola, who had represented the doctor. (The plaintiff’s attorney involved in the deal, Timothy J. Hmielewski, is from Florida). A hearing officer recommended against punishing the two, “concluding that the lawyers had a ‘good faith belief’ that they had no duty to disclose the secret pact”. However, both a disciplinary panel and the Arizona Supreme Court disagreed, and the latter ordered Alcorn and Feola suspended from practice for six months. It “concluded that the scripted trial and prearranged dismissal worked a serious fraud on the court and the public.” The trial judge had also “ordered all the attorneys involved to pay a $15,000 fine each for committing a fraud on the court and duping the court into conducting ‘a mock trial at the taxpayers’ expense.’ That sanction was affirmed on appeal.” (“‘Sham Trial’ Slammed, ABA Journal eReport, Mar. 8; In re Alcorn, Ariz. No. SB-01-0075-D.) (DURABLE LINK)
March 22-24 — Arsenic: one last dose? Last year some environmental groups did their best to make the public think that by pulling back the Clinton administration’s last-minute arsenic rules the incoming Bush White House was trying to let “polluters”, specifically the mining industry, get away with dumping the poison into town drinking water supplies. “This decision suggests the Bush Administration is caving to the mining industry’s demands to allow continued use of dangerous mining techniques,” said Sierra Club executive director Carl Pope. (Sierra Club release, Mar. 20, 2001). “This outrageous act is just another example of how the polluters have taken over the government,” said Natural Resources Defense Council senior attorney Erik Olson. (NRDC release, Mar. 20, 2001). Critics of the stringent Clinton rule said its real victims would be ratepayers and taxpayers in the Southwest where municipal water systems would be forced to spend huge amounts to remove traces of naturally occurring arsenic that had been causing no evident health effects (see Sept. 11, 2001 and links from there).
So who was right? The Bush people ran into a p.r. disaster and soon backed down, but this week’s L.A. Times report from Albuquerque, N.M., which has more arsenic in its water than any other big American city, suggests that the enviros won their victory on the issue by misleading the public. Pretty much everyone the paper talked to in Albuquerque, from the Democratic mayor on down, dislikes the new standard: “many people here say the rule will do little more than cost the city $150 million, and Albuquerque and the state of New Mexico are suing to block it.” Did mining operations cause the city’s high arsenic levels? No, “volcanoes and lava flows are responsible”. (Elizabeth Shogren, “Albuquerque Battles to Leave Arsenic in the Water”, L.A. Times, Mar. 18). See also Robert McClure, “Mining, arsenic rules are next on Bush’s list”, Seattle Post-Intelligencer, Mar. 21, 2001: “Virtually all arsenic in drinking water is naturally occurring.” Mining companies wind up being affected indirectly by drinking water standards because of rules that treat mine runoff water as pollution if it flunks drinkability standards, even (absurdly) if the natural occurrence of substances like arsenic in the soil meant that the water would not have met the standard with or without mining operations. (More: Nick Schulz, “Greens vs. Poor People”, TechCentralStation, Nov. 6; Jonathan Adler, “Wrong way on water”, National Review Online, Nov. 13). (DURABLE LINK)
March 19-20 — “Kava tea drinker alleges bias in FedEx firing”. Taufui Piutau of San Bruno, Calif., a native of Tonga, was pulled over by a California highway patrolman in 1999 and charged with driving while impaired. It turned out he’d downed dozens of cups of kava tea, a popular Pacific Islander beverage widely regarded as having relaxing medicinal effects. A jury last November deadlocked on whether to convict him and prosecutors decided to drop the case, but by then Federal Express, Piutau’s employer, had suspended him without pay from his driving job over the off-duty incident. Now he’s suing the company for — guess the theory — religious discrimination, saying enjoyment of the beverage is a custom of a religious nature. (Ann E. Marimow, San Jose Mercury-News, Mar. 14).
March 19-20 — Scientologists vs. Slashdot. “In the face of legal threats from the Church of Scientology, Slashdot pulled down an anonymous posting that quoted a copyrighted church tract, known as Operating Thetan, Section III (OT III). ‘It’s an open forum, but as of today it’s a little less open than it was yesterday,’ says Robin Miller, the editorial director of Slashdot’s parent, the Open Source Development Network. ‘And we’re not happy about that.'” (Roger Parloff, “Threat of Scientologists’ Legal Wrath Prompts Slashdot to Censor a Posting”, Inside.com, March 16; Slashdot thread; Church of Scientology; some of its critics (“Operation Clambake“); Declan McCullagh, “Xenu Do, But Not on Slashdot”, Wired News, Mar. 17).
March 19-20 — Why they seize. “Kansas law enforcement officials on Monday strongly opposed a reform forfeiture bill that would send money seized in drug cases to education. Currently, law enforcement agencies can keep most of the money once it is legally confiscated. Law enforcement officials told the House Judiciary Committee that if their agencies were not allowed to keep drug money, forfeitures could become extinct in Kansas”. Kind of confirms what critics have said about the motivations for forfeiture law, doesn’t it? (Karen Dillon, “Kansas law enforcement officials oppose reform forfeiture bill”, Kansas City Star, Mar. 12; see May 25, 2000).
March 19-20 — Microdonation update. Amazon’s new micropayment “Honor System” for small and nonprofit websites has had at least one big success so far, as you may have heard: Andrew Sullivan’s personal site has taken in an envy-inducing $6,000 from his fans. That’s way ahead of most other popular sites: for example, the well-thought-of ModernHumorist.com says that as of March 9 it had received $509.99 from 209 readers, according to its “Tip Jar” account. Reason editor-at-large Virginia Postrel writes that her weblog/commentary “The Scene” “is pulling in about 500 page views a day — the poor woman’s approximation of visitors — and in the last month has netted contributions of $457.38 via Amazon and, in the last week, $27.50 via PayPal.”
So how’re we doing at Overlawyered.com, comparatively? As of Sunday evening we’d taken in about $404.50, from sixty readers, for an average donation of about $6.50. That’s not shabby at all. But we do notice that our readers are showing a far lower rate of participation than Virginia’s: we’ve been getting around 3,500 page views per weekday lately, so if our readers were as generous as hers we’d have raised a kitty that was seven times as high instead of a little lower. Another way of looking at it is that although it takes many thousands of regular readers to get us up to that 3,500-page daily volume, only an average of two of those readers a day actually throw coins in the hat. (No wonder Amazon calls it the Honor System.) We’ve just installed, on our PayPage, a new feature where you can watch donations climb and see your own added to the total. Thanks (again) for your support!
March 16-18 — Coupon settlement? Pay the lawyers in coupons. In a “blistering” 27-page ruling, Broward County, Fla. circuit judge Robert Lance Andrews has slashed a $1.4 million class-action legal-fee request by the New York law firm Zwerling Schachter & Zwerling to about $294,000, and “ordered that a quarter of the fees be paid in $10 to $60 travel vouchers — the same vouchers awarded to the 80,000 plaintiffs in the suit”. The suit had accused Renaissance Cruises Inc. of padding port charges. “Too often, [Judge Andrews] wrote in the ruling, lawyers use class actions as cash cows that ultimately don’t yield much for plaintiffs. … ‘Essentially, these vouchers have no value whatsoever,’ said [Edwin H.] Moore, president and chief executive of the James Madison Institute, a Tallahassee, Fla., think tank. ‘It’s kind of absurd, taking a cruise for hundreds of dollars and getting $10 off.'”
The judge further accused the lawyers of engaging in “fuzzy math” and said they had piggybacked on enforcement efforts by the Florida Attorney General, who had investigated cruise lines’ practice of passing on “port charges” to vacationers greater than those actually incurred. “Andrews said he considered denying plaintiffs’ lawyers any legal fees, ‘on the basis of their blatant disregard of their ethical obligations to the class and to the court.’ In fact, before ruling on legal fees, Andrews rebuffed 13 law firms that claimed to have had a hand in the class action.” Zwerling Schachter says it expects to appeal. “(Tom Collins, “Florida Judge Slashes Fee Request, Blasts Attorneys Suing Cruise Lines”, Miami Daily Business Review, Mar. 15).
March 16-18 — Compulsive grooming as protected disability. Last month a three-judge panel of the Ninth Circuit U.S. Court of Appeals, reversing a lower court, ruled that medical transcriber Carolyn Humphrey can proceed with her claim that her firing by a Modesto, Calif. hospital was unlawful. Humphrey, “an otherwise excellent employee, compiled a history of tardiness and absenteeism because of grooming and dressing rituals that took hours, sometimes all day. … [Her suit claims] the obsessive trait that drove her relentless primping had not been accommodated, as required by the Americans With Disabilities Act.” (Denny Walsh, “Compulsive grooming a true disability? Perhaps”, Sacramento Bee, March 14).
March 16-18 — Wife: hubby’s tooth discovery deprived me of companionship. Ronald Cheeley of Alamance County, N.C. “is suing Hardee’s, claiming he found a tooth in a biscuit from a one of the chain’s Burlington restaurants. … The lawsuit does not say whether Cheeley actually put the tooth in his mouth. … Cheeley’s wife, Queen Williamson Cheeley, is also named as a plaintiff in the lawsuit, which claims the incident has deprived her of companionship.” (Bill Cresenzo, “Tooth found: Man sues Hardee’s”, Burlington (N.C.) Times-News, Feb. 15) (via Obscure Store)
March 15 — Reclaiming the tobacco loot. If the Bush administration has its way, the politically connected lawyers who helped themselves to billions for representing the states in the great tobacco shakedown may soon have to turn a large share of that booty over to their clients, the fifty states (see our earlier coverage of the fees, the settlement and the lawyers). “President Bush proposed during the campaign to apply to lawyers in mass tort cases the Internal Revenue Code provisions that govern fiduciary breaches of duty by pension fund trustees, foundation executives, and employees of 501(c)(3) non-profits. Under this so-called Jim and Tammy Faye Bakker provision of the 1996 Taxpayer Bill of Rights, overreaching fiduciaries have the ‘choice’ of refunding their excess payments or paying a federal tax of $2 for every dollar they keep.” Contrary to some early reports that President Bush had dropped this plan, “[p]age 80 of the president’s budget contains this terse and, to taxpayers, cheering sentence: ‘The budget also assumes additional public health resources for the States from the President’s proposal to extend fiduciary responsibilities to the representatives of States in tobacco lawsuits.'” (Michael Horowitz, “Can Tort Law Be Ethical?”, Weekly Standard, Mar. 19; Ramesh Ponnuru, “A Good Tobacco Tax”, National Review Online, Mar. 14). And hurrah for the U.S. Chamber of Commerce, which has just filed Freedom of Information Act requests to obtain information from 21 states about the magnitude of fees paid to the tobacco lawyers, which it says may exceed $100,000 an hour (U.S. Chamber release; the Chamber’s Institute for Legal Reform; “Group Targets ‘Outrageous’ Legal Fees in Tobacco Case”, Yahoo/Reuters, Mar. 14).
March 15 — No more Indian team names? “The U.S. Commission on Civil Rights will vote next month on a statement that would condemn sports teams or mascots named after American Indians as violations of the 1964 Civil Rights Act. If adopted and widely accepted, the statement could eventually lead to a cutoff in federal funding for schools that cling to traditions like the University of North Dakota Fighting Sioux or the University of Illinois’ mascot Chief Illiniwek.” (Catherine Donaldson-Evans, “Civil Rights Commission Considers Condemning Sports Teams Named After American Indians”, FoxNews.com, Mar. 13 (related story and links, right column, includes this page); John J. Miller & Ramesh Ponnuru, “Home of the Braves”, National Review Online, March 9) (& see letter to the editor, April 16).
March 13-14 — Hypnotist sued by entranced spectator. During a show by mesmerist Travis Fox at the Puyallup Fair last September, fairgoer Joshua Harris of Tacoma agreed to participate but “felt such a threat from a space alien mask that he broke his hand trying to ward off the extra-terrestrial. And now he’s suing. … ‘If people get up there and participate, you have to make sure it’s safe,’ said Harris’ attorney, George Christnacht.” (Karen Hucks, “Entertainment hypnotist being sued for negligence”, Tacoma News-Tribune, March 8).
March 13-14 — Judge throws out Hollywood- violence suit. Citing the First Amendment’s guarantee of free speech, Louisiana state judge Bob Morrison on Monday “threw out a lawsuit against director Oliver Stone that claimed his movie ‘Natural Born Killers’ led to a young couple’s bloody crime spree.” (“Judge Throws Out Movie Lawsuit”, AP/FindLaw, March 12). “It’s depressing that a suit that should have been thrown out on the first pass could result in such a waste of time, energy and money. We’ve created a new legal hell where everyone is entitled and no one is responsible,” said Stone (“Notable Quotes”, Reuters/Yahoo, March 13).
March 13-14 — “Nursing homes a gold mine for lawyers”. Week-long series in the Orlando Sentinel and South Florida Sun-Sentinel (series overview) examines mounting crisis in Florida nursing homes, where lawsuits have multiplied several-fold in recent years as lawyers have learned to deploy a liberal “Resident’s Rights” law that allows them to recover damages without proving negligence. Even the Lutheran Haven home, which hasn’t been sued in its 52 years, faces a liability insurance bill of $175,690 a year. (Diane C. Lade, “Money remains root of nursing homes’ woes”, March 6; Bob LaMendola and Greg Groeller, “Nursing homes a gold mine for lawyers”, March 4; Jeff Kunerth, “Even never-sued home feels insurance’s squeeze”, March 5). “Nursing homes are often in a Catch-22 when it comes to restraining patients. One tenet of the state’s nursing-home residents’ bill of rights guarantees residents the right to safety. Another tenet guarantees their freedom from ‘physical and chemical restraints.'” (Diane C. Lade and Greg Groeller, “Bedsores, falls make homes ripe for suing”, March 4; Jeff Kunerth, “Broken bones ended in lawsuit”, March 6; Jeff Kunerth, “A rarity: Lake lawsuit went to trial”, March 4).
As frequently happens with these newspaper group efforts, the tone is weirdly inconsistent, with one of the lead reporters buying much of the pro-litigation side of the story (Greg Groeller, “Elderly care put to test”, March 4) while many of the other installments in the series tend to document the need for curbs on suing (“Collapse of care” (editorial), March 11). Both nursing home operators and trial lawyers have been pouring money into Tallahassee, where lawmakers are considering such curbs. Among the attorneys opening their wallets is “Jim Wilkes, a sharp and politically connected nursing-home litigator from Tampa who said he probably gave at least $1 million of his own money to campaigns in the last election cycle. ‘If you took the national and state money that my firm has contributed to campaigns, I could have probably retired on the money,” Wilkes said.” Mark Hollis, “Nursing homes, lawyers plan fight in capital”, March 6). Six of eight publicly held for-profit home operators are now operating in bankruptcy, and a plaintiff’s lawyer concedes the possibility that “[t]he entire industry would end up being regulated through the bankruptcy courts.” (Lade, “Money remains”, March 6). Update: the National Law Journal‘s Margaret Cronin Fisk reports on the trend (“Juries Treat Nursing Home Industry With Multimillion Dollar Verdicts”, Apr. 23): “In the past 12 months, there have been verdicts of $312 million and $82 million in Texas, $5 million in California, $20 million in Florida and $3 million in Arkansas. … One Florida-based law firm, Tampa’s Wilkes & McHugh, has about 1,000 cases pending.”
March 12 — We have some to send you. The level of litigation in Japan is still minuscule by U.S. standards, but it has doubled over the past decade, and rural areas experience a perceived lawyer shortage. “Japan has set a goal of reaching France’s level of one lawyer per 1,900 people. That compares with its current level of about one per 7,155 people and America’s world-beating one lawyer per 295 people.” “One unfortunate side effect [of the obstacles to litigation in Japan] has been a social dependence on organized crime for help in settling thorny disputes,” according to the head of the American Chamber of Commerce in the island country. (Mark Magnier, “No Joke: Send More Lawyers”, Los Angeles Times, Mar. 9).
March 12 — More Tourette’s discrimination suits. John Miller is suing Gold’s Gym in Totowa, N.J., saying it terminated his membership because of the involuntary tics caused by his Tourette’s Syndrome. ‘I want these people to realize . . . I guess I do want them to be hurt a little — to realize what they’ve done to me,” he said. The Bergen Record also reports that in October, “a jury in New York City awarded $750,000 to the Metropolitan Museum of Art’s former assistant banquet manager after finding the museum’s food contractor had fired him illegally because of the disorder.” (Jennifer V. Hughes, Bergen County Record, Feb. 9) (earlier Tourette’s cases: August 21 and July 26, 2000).
March 12 — Welcome National Review Online readers. The pseudonymous author, described as an officer of the Los Angeles Police Department, writes: “The Soviet menace may have faded into the history of another era, but the American legal profession, with its standing army of some half-million attorneys, presents as grave a threat to western civilization as has ever existed. For proof of this, I recommend to the strong of heart a visit to Overlawyered.com, a website that will at once amuse, bemuse, and horrify.” We’re headed toward a banner day for traffic, testimony to NR Online‘s popularity. (“Jack Dunphy”, “Disorder in the Court”, March 12).