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Scientology

December 2 roundup

by Walter Olson on December 2, 2014

  • “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]

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December 11 roundup

by Walter Olson on December 11, 2008

  • 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]

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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).

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…can get you in considerable trouble with the City of London constabulary, it seems. (Volokh; Sullum, Reason “Hit and Run”).

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The incident we reported on Feb. 28 has developed into quite a news story — see, for example, Andrew Sullivan, Mar. 16 and many other recent posts.

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).

More on Scientology and litigation: Oct. 25, 2005, Apr. 16, 2004; Mar. 25-26, 2002; Mar. 19-20, 2001; May 3, 2000.

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“A cult named Sue”

by Walter Olson on October 23, 2005

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)

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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).


May 10 – Another billion, snuffed. You don’t have to be a Microsoft shareholder to wonder whether antitrust law has become a destabilizing influence on the business world. In late March a Paducah, Ky. federal jury ordered U.S. Tobacco, the number one maker of snuff and chewing tobacco, to pay a staggering $1.05 billion to its smaller competitor Conwood in an antitrust dispute. UST, whose annual sales are $1.5 billion — meaning that the verdict equals the entire gross revenue it takes in over eight months of a year — makes such brands as Skoal and Copenhagen, while Conwood manufactures the Kodiak brand. The finding of $350 million in damages will be automatically trebled under antitrust law if not overturned. “Both companies accused each other of removing display racks from stores, making under-the-table cash rebates to win retailers and holding strategy sessions to plot out how to eliminate the other from the lucrative retail-checkout market.” (No! Not strategy sessions!) In addition, “Conwood attorneys accused U.S. Tobacco of spreading rumors that Conwood’s snuff contained stems and was stale.” (“U.S. Tobacco Co. Faces $1.05B Payout”, AP/Milwaukee Journal Sentinel, March 29; Andrew Edgecliffe-Johnson, “US tobacco group faces possible $1bn payout”, Financial Times, March 30)

May 10 – Court okays suit against “flagging” of test conditions. In San Francisco, federal judge William Orrick Jr. has rejected a motion to dismiss a case in which Oakland-based Disability Rights Advocates is suing the Educational Testing Service, charging that it’s discriminatory for ETS to “flag” test scores taken under special conditions. “Accommodations” such as extra or unlimited time, the right to have questions explained, and the right to use calculators have become common in recent years following the aggressive use of disabled-rights law by test-takers; in a majority of cases the operative diagnosis is not a traditional disability such as blindness or paraplegia, but one such as learning disability or attention deficit disorder. If the lawsuit succeeds in banishing the loathed asterisk, test-takers will win the right to conceal from downstream institutions, such as medical schools and employers, the fact that a particular result was achieved with extra time or other assistance. (Michael Breen, “ETS Discrimination Case Goes Forward”, The Recorder/CalLaw, April 14).

DRA director of litigation Sid Wolinsky is also representing parents in a challenge to the state of Oregon’s refusal to allow test-takers to use automatic spell-check on statewide exams. “I see an enormous amount of potential litigation” ahead on such issues, he says. In Woburn, Mass., some special-needs students are given the whole day to complete a writing exam normally administered in ninety minutes, another indication that “two national movements [are] on a collision course: disability rights and educational standards.” (Daniel Golden, “Meet Edith, 16; She Plans to Spell-Check Her State Writing Test”, Wall Street Journal, Jan. 21 (fee-based archive)).

May 10 – This side of parodies. Infant wins one-billionth-litigant prize as America adopts as new motto “It’s not my fault” (Paul Campos, “Everyone suits up for latest litigation”, Rocky Mountain News, May 2). Grim news you always feared about “gateway sodas”: (“Mountain Dew Users May Go On To Use Harder Beverages”, The Onion, April 26). And the colorless, odorless, tasteless industrial solvent and prominent component in acid rain that kills thousands of people each year, most through inhalation but also from withdrawal symptoms given its evident addictiveness. Contamination is reaching epidemic levels — the horror must be stopped! (“Ban dihydrogen monoxide!”, Donald Simanek site, undatedstored Google search).

May 9 – Mother’s Day special: Arizona unwanted-birth trial. At a trial under way in Phoenix, Ruth Ann Burns is suing her family physician and obstetrician for failing to diagnose her pregnancy as early as they should have. She says she’d have aborted her two-year-old toddler Nicholas had she known in time that he was on the way, though he is perfectly healthy and she claims to dote on him now. The doctors say Burns herself didn’t think she was pregnant when she first sought medical attention and say when the pregnancy was discovered she still had time to pursue an abortion, but chose not to. (Senta Scarborough, “Doctors sued for unwanted pregnancy”, Arizona Republic, May 4). A columnist for the Arizona Republic wonders what the boy will think when he grows up and learns that his mother swore out oaths as to his unwanted, impositional nature (E.J. Montini, “Unwanted boy blooms in the future”, May 7).

May 9 – Not with our lives you don’t. More evidence that rank-and-file police aren’t happy about Clintonites’ scheme to skew city gun procurement to punish manufacturers that don’t capitulate to lawsuits (see April 14-16). Many cities presently allow officers a choice of which gun to carry, and Smith & Wesson hasn’t been a popular choice in recent years. “Local officials acknowledge they are reluctant to risk hurting morale by ending officers’ ability to choose their weapon,” the news-side Wall Street Journal reports — “morale” being a bit of a dodge here, since the risks at issue go beyond the merely psychological. In Flint, Mich., the mayor has asked the police department to buy S&Ws, “but the chief’s firearm experts have rated the Sig Sauer as more durable and accurate, and the police rank-and-file prefer the better-known and easier-to-shoot Glock.” Miami-Dade is “considering offering a $100 rebate for selecting a Smith & Wesson”, in effect establishing the kind of experiment of which cost-benefit analysts are so fond, measuring people’s willingness to accept cash payment in exchange for giving up a degree of perceived personal safety. A second obstacle to the scheme is that most jurisdictions have open-bidding laws aimed precisely at keeping politicos from pitching public business to favored contractors on a basis other than price and quality, but Sen. Charles Schumer (Democrat, New York) helpfully plans to introduce legislation to allow bypass of such laws. (Vanessa O’Connell, “Plan to Pressure Gun Makers Hits Some Snags”, Wall Street Journal, April 11, subscription site).

Plus: The gun lawsuits have become an issue in the presidential contest, with Vice President Al Gore, one of their ardent supporters, assailing Texas Governor George W. Bush for not pledging to veto legislation that would curtail them (“Bush, Gore camp trade questions on guns, credibility”, AP/FindLaw, May 5). And: this weekend’s pro-gun-control “Million Mom March” in Washington, D.C. has picked up endorsements ranging from President Bill Clinton to plaintiff’s class-action firm Bernstein, Litowitz, Berger & Grossmann LLP and the Association of Trial Lawyers of America — if that’s much of a range, politically speaking (March sponsors list, link now dead; ATLA endorsement; Terence Hunt, “Clinton Endorses Million Mom March”, AP/Yahoo, May 8, no longer online).

May 9 – In Michigan, important judicial races. Eyes of knowledgeable litigation reformers this fall will be on Michigan where three Supreme Court justices appointed by Republican Gov. John Engler — Clifford Taylor, Robert Young and Stephen Markman — are up for election (see Jan. 31). The trio enjoy a growing reputation as thoughtful jurists who share a skepticism toward expansive new liability doctrines; the state’s trial bar is expected to pour almost limitless funds into its attempt to defeat them. “The head of the Michigan Trial Lawyers’ Association has said privately that individual law firms have pledged as much as $500,000 each for the effort”. (Abigail Thernstrom, “Rule of Law: Trial Lawyers Target Three Michigan Judges Up for Election”, Wall Street Journal, May 8, reprinted at MI site).

May 8 – No more Fenway peanut-throwing? For nineteen years Rob Barry has worked in the stands at Boston’s Fenway Park, tossing bags of peanuts to hungry Red Sox fans. Grown-ups gasp and children cheer at his sure aim in lobbing the bags across intervening rows of spectators, but now he’s in trouble with management: “Aramark, the company that provides remarkably mediocre hot dogs and $4.50 cups of beer, has a rule, and that rule prohibits vendors from throwing food in the stadium.” Although admittedly “there are no recorded cases of catastrophic injury caused by a bag of peanuts,” you can never be too safe: before long some other food vendor might follow his example, “and soon you’ll have a cotton candy spear sticking through some young fan’s eye and a cash settlement that could cost the Red Sox Nomar Garciaparra.” Barry says he’s thinking of just retiring if he can no longer practice the peanut-tosser’s art: his father worked at Fenway for 45 years, while two beer-serving sisters have put in a combined 44 years. (Brian McCrory, “Vendor tossed from the game”, Boston Globe, May 5, link now dead).

May 8 – “Lilly’s legal strategy disarmed Prozac lawyers”. Little-noted story of how drugmaker Eli Lilly & Co. has managed so far to fight off a wave of lawsuits over its antidepressant Prozac, quietly settling some stronger cases while maneuvering aggressively to win a favorable jury ruling in the relatively weak one arising from the Wesbecker (Standard Gravure) shooting-spree in Louisville. (Jeff Swiatek, Indianapolis Star, April 22).

May 8 – Trial lawyers’ political clout. “Invited Speaker: President William Jefferson Clinton” — highlight of the brochure in last week’s mail promoting the Association of Trial Lawyers of America’s 2000 annual convention in Chicago. (Does not currently appear in online version (PDF)). Among other scheduled speakers: Sens. Richard Durbin (D-Illinois) and Max Cleland (D-Georgia). “Who will be the most influential political player making independent expenditures in this year’s presidential election?” asks Wall Street Journal editorialist John Fund. The AFL-CIO, the religious right, the NRA? More likely lawyers flush with new tobacco fees: “a comprehensive study by Citizens Against Lawsuit Abuse found that trial lawyers gave 78 percent of all contributions to the Texas Democratic Party in the 1998 election cycle, when Bush was running for re-election.” (“Invasion of the Party Snatchers”, MSNBC, May 2). Last year by a 4-3 majority, the Ohio Supreme Court tossed out a 3-year-old tort reform package. Per Ohio Citizens against Lawsuit Abuse, “since 1992 the four justices in the majority received $1,528,054 from personal injury attorneys”, compared with $70,704 for the three dissenting justices. Doug Bandow, “Buying Justice: Plaintiffs’ Lawyers Reap Huge Dividends by Investing in Judges and Politicians”, syndicated column, Dec. 16, 1999, reprinted in Cato Daily Commentary, Dec. 28, 1999.

May 8 – Atlantic City mulls bond issuance to finance lawsuit payouts. The New Jersey resort city is so frequently sued, especially in employment and police cases, that it’s considering issuing special bonds to cover a possible $12.3 million exposure from 23 lawsuits. (Henry Gottlieb, “Suit City, Here We Come”, New Jersey Law Journal, April 4).

May 5-7 – Pro malo publico. Elite law firms endlessly congratulate themselves on the pro bono publico work they perform, seeing it as the “penance they pay for serving a capitalist system”, in Judge Laurence Silberman’s words. Too bad so much supposedly public-interest litigation is in reality actively harmful to the public interest as well as to the persons and institutions on its receiving end, argues Heather Mac Donald. Despite its reputation for being done gratis, pro bono work often brings in very rich court-ordered fee awards from opposing parties, and it also helps shape the legal profession’s continuing impulse to use the courtrooms for feats of social engineering. Homeless advocate Robert Hayes, who has fought for a new right of shelter-on-demand for the homeless, was asked why he litigated rather than taking his case to the legislature. “Personally, I don’t like politics,” he replied. “It’s really hard.” (Heather Mac Donald, “What Good Is Pro Bono?”, City Journal, Spring).

May 5-7 – Lion’s share. Tangled class action litigation against commodities brokerage, now the subject of a petition for review before the Supreme Court, in which plaintiffs’ lawyers were accorded $13 million in fees, twice the $6.5 million that their clients wound up getting. “The system stinks,” says Paul Dodyk of Cravath Swaine and Moore. “The class gets screwed.” Also mentions this website (Bernard Condon, “Conspiracy of Silence”, Forbes, May 1).

May 5-7 – Comment of the day. Accepting an award for general excellence at the National Magazine Awards on Wednesday, William L. Allen, editor in chief of National Geographic, said: “I would hug my staff, but our legal department has advised me not to.” (Alex Kuczynski, “Levity Prevails as Awards Are Handed to Magazines”, New York Times, May 4, no longer online).

May 5-7 – Liked your car so much we kept it. Last year New York City seized Pavel Grinberg’s 1988 Acura, Joe Bonilla’s brand-new Ford Expedition, and Robert Morris’s 1989 Grand Prix, on suspicion of their owners’ drunken driving. However, all three men were cleared of the charges in a court of law. So of course the city gave them their cars back, right? Don’t be naive…. (Gersh Kuntzman, “Rudy Driven To Excess in His DWI Crackdown”, New York Post, Feb. 7).

May 4 – Sports lawsuits proliferate. “More and more, the sports section looks like the rest of the newspaper. First commerce swallowed chunks and now the law has come along to take a bite. In the last few days, we’ve read stories about coaches suing players, fans suing players and now another player preparing to sue his league.” Toronto coach Butch Carter has now dropped his suit against Knick forward Marcus Camby (see April 25-26), but it’s still “getting tougher by the minute for pro sports leagues to call their own shots…. The chain of command in sports is being yanked at every opportunity, from all sides, often with the aid of the court system.” (Jim Litke, AP/Excite, April 27; “Raptors’ coach doesn’t get apology”, AP/ESPN, undated).

May 4 – Splash of reality. A judge has imposed sanctions of $10,000 each against New Rochelle, N.Y. attorney Gordon Locke and client Kenneth Lariviere “for bringing a frivolous breach-of-contract action against members of a board that refused to authenticate a work the two men claimed was painted by Jackson Pollock. Justice Emily Jane Goodman dismissed the action as a ‘laughable and clumsy attempt at fraud, by an individual who, like everyone familiar with the artist’s work, wishes he owned a Jackson Pollock painting.'” Cerisse Anderson, “Lawyer Fined for Frivolous Suit Over Artwork”, New York Law Journal, April 12).

May 4 – Harassment-law roundup. “The Internet start-up community is going to be a major target for sexual harassment litigation,” says management-side attorney Gregory I. Rasin of Jackson Lewis Schnitzler & Krupman, though the progress of such legal action is for the moment impeded by a job market so robust that would-be plaintiffs are “getting six job offers on the way to their lawyers’ offices,” as his colleague Garry Mathiason puts it. (Melinda Ligos, “Harassment Suits Hit the Dot-Coms”, New York Times, April 12). The Equal Employment Opportunity Commission has been filing enforcement actions to back up its position that employers violate the law if they fail to move quickly enough in cleaning up sexually and racially offensive graffiti in employee restrooms and preventing recurrence (“Chicago EEOC Makes Second Move Against On-the-Job Racist Graffiti”, Employment Law Weekly, Jan. 20). The case of Boston bar owner Tom English, subject to charges of “hostile public accommodations environment” by the Massachusetts Commission Against Discrimination for putting up allegedly insensitive seasonal bar decorations, calls attention to a troubling collision between bias law and free speech, writes UCLA First Amendment specialist Eugene Volokh (“Watch What You Say, Or Be Ready to Pay”, Jewish World Review, April 13; Federalist Society Free Speech and Election Law Newsletter, sixth March item). And a jury has awarded Staten Island cop Susan Techky $50,000 after she “testified that male officers wouldn’t talk to her, left pornographic magazines in the co-ed bathroom and watched sex videos in her presence in their quarters,” as well as keeping nude pin-ups in their locker area, which she had to walk through to get to hers. “Island cop wins discrimination suit”, Staten Island Advance, April 21).

May 3 – Ministry of love-discouragement. Complete bans on dating among office-mates are “unrealistic and difficult to enforce,” according to an attorney’s advice column on how lawyers representing management can ward off possible harassment-law liability for their firms. “More practical is to prohibit dating between management and nonmanagement personnel and to discourage, but not completely prohibit, romantic relationships between co-workers. This may require co-workers to disclose immediately any relationship to their immediate supervisor.” To reduce the likelihood of later invasion-of-privacy claims against the employer, such policies “should put employees on notice that the company reserves the right to inquire into employees’ personal lives if necessary to determine whether a relationship exists…. [A]n employer may want to include in its nonfraternization policy a statement indicating that in the event of an office relationship, the company may request that employees execute an agreement attesting to the voluntary nature of their relationship” — this to forestall the pattern now becoming familiar in which “an employee may decide, after an unpleasant breakup, that the relationship was not consensual after all.” (Nicole C. Rivas, “Employment law: ‘love contracts'”, National Law Journal, Feb. 7, not online).

May 3 – eBay yanks e-meter auctions. “E-meters” are electrical devices employed by practitioners of the Church of Scientology in counseling church adherents. Although previously used devices have been resold by private owners for years and were apparently not the subject of licensing agreements that would limit resale, the Church now asserts a copyright interest in the objects that would allow it to legally restrict their distribution, and eBay has recently begun pulling auctions of e-meters to avoid a legal run-in with the church, known in the past for frequent court clashes with its opponents. Critics say it’s another example of how the Digital Millennium Copyright Act encourages online providers to err on the side of timidity when presented with copyright assertions. (“eBay E-Meter Auctions Yanked”, Slashdot, April 28).

May 3 – Fee shrinkage. The Second Circuit U.S. Court of Appeals has upheld a federal court’s ruling that two class-action firms representing plaintiffs burned in the Drexel Burnham Lambert fiasco of the 1980s should receive $2.1 million in fees, less than 20 percent of the $13.5 million they sought. The two law firms — Milberg Weiss Bershad Hynes & Lerach and Abbey, Gardy & Squitieri — had argued that it was appropriate to apply a “multiplier” of six to the otherwise going rate for legal fees because a fee recovery of 25 percent was a “benchmark” in the practice of class action law (the recovery for the class was $54 million). However, the appeals panel upheld Judge Shirley Wohl Kram’s reasoning that the case was a promising one with almost certain prospects of a large recovery, so that enhancing rates “would likely result in [counsel's] overcompensation.” (Mark Hamblett, “Cut in Drexel Case Attorneys’ Fees OK’d”, New York Law Journal, March 31).

May 3 – Little League lawsuits. No, they’re not just figments of tort reformers’ imaginations. In Waynesboro, N.C., Nicolas and Alina Rothenberg are suing the national and local Little League, along with local game officials, over an incident where their son was hit in the mouth with a ball, losing two teeth and experiencing “extreme pain and suffering” and emotional distress. “It was an accident,” said Tammy Meissner, the wife of defendant Michael Meissner. “My husband was hitting the ball just like he’s been hitting the ball for years and years and years.” (“Accident prompts Little League lawsuit”, AP/Winston-Salem Journal, April 23, no longer online). Another clip from mid-1998, datelined Naugatuck, Ct., describes how two teammates, both 8 years old at the time of the incident, wound up in court after Michael Albert swung his bat in the dugout and hit Brittany Gauvin in the head. (“Little League lawsuit pits 10-year-olds against each other”, AP/Danbury News-Times, June 8, 1998).

May 2 – “Access excess”. Our editor’s May Reason column explores the dangers posed by the Americans with Disabilities Act to the freedom of the Net: countless private websites are currently considered “inaccessible” and will apparently be obliged to undergo systematic redesign, an expensive and cumbersome process that will go far to stifle creative freedom in HTML design (see earlier commentaries). This column has already drawn one of the biggest reader reactions of anything we’ve published in a long time — in future updates we’ll try to share highlights from some of the many thoughtful letters that have come in. (Walter Olson, “Access Excess”, Reason, May; also reprinted at Jim Glassman’s Tech Central Station).

May 2 – North Carolina (& Kentucky & Tennessee) tobacco fees. The three leaf-growing states were among the last of the fifty to sign onto the Medicaid reimbursement lawsuits against cigarette companies, and by necessity did little of the heavy lifting in developing the case. North Carolina attorney general Mike Easley picked private lawyer John McArthur to handle the state’s grower-advocacy role in the tobacco negotiations, a task McArthur also performed for the other two states; conveniently, he happened at the time to be coming off a stint as counsel to Easley himself. Now he’s rumored to be in line for $1.5 million in fees, concededly far lower than the take of lawyers who represented other states. Why aren’t more precise figures public? McArthur says it’s because of lawyer-client confidentiality. Easley is favored for the state’s gubernatorial nomination in today’s Democratic primary, and a spokesman for his primary rival, Lt. Gov. Dennis Wicker, has called for more light to be shed on the fee details: “Certainly the people have a right to know if the attorney general’s office is North Carolina’s version of ‘Who Wants to Be a Millionaire'”. Reporter David Rice of the Winston-Salem Journal writes that “Easley has repeatedly talked about his role in the tobacco settlement, but reporters and others always got the impression that the state hired no outside lawyers in the case”; now Easley says his earlier statements indicating that no outside lawyers had been hired were mischaracterized. (David Rice, “Wicker aide calls for the disclosure of attorney’s fee”, Winston-Salem Journal, April 25; Ben White, “Primary Season Resumes in N.C., Ind.”, Washington Post, May 1, links now dead).

May 2 – IRS drops penny-collection efforts. “The Internal Revenue Service has stopped collection procedures against a Roswell[, N.M.] businessman who inadvertently came up 1 penny short on his tax return. Ernest Spence, owner of Valley Glass Co., had been required to pay $286.50 in penalties and interest for the mistake.” Mr. Spence says the error was unintended and resulted from not carrying the fractional penny while doing the arithmetic on the return. (“IRS backs off man’s penalty for 1-cent mistake”, AP/Dallas Morning News, April 30).

May 2 – Columnist-fest. More to catch up on:

* “It’s not about money, most of the plaintiffs or their lawyers will say, it’s about the healing process. Baloney.” Anne Roiphe on the prospect of Columbine litigation (“Feeling Tired? Blue? Cranky? Just Sue!”, New York Observer, May 1, link now dead).

* George Will invokes the many sound arguments against the Victim’s Rights Amendment to the Constitution (“Tinkering Again”, Washington Post, April 23). Will has been on a roll recently with columns on death row innocents, campaign regulation and the First Amendment, the Boy Scouts case, and campaign regulation again.

* Jacob Sullum on S&W’s hapless attempt at a “clarification” of its HUD-brokered settlement: “Perhaps it is dawning on Smith & Wesson’s executives that it can be dangerous to show weakness in the face of statist demands. Too bad they didn’t pay closer attention to the fate of the tobacco companies, whose efforts at appeasement have only whetted their opponents’ appetites.” (syndicated column, April 19).

May 1 – Tort city, USA. Other cities face a handful of slip-fall cases each year, but New York City gets 3,500, paying out $57 million plus large legal defense costs. When all types of injury litigation are included, the total reaches a staggering $420 million plus defense costs. What makes the political climate in New York so hostile to the city’s interest as a lawsuit defendant? One reason is the number of powerful Gotham politicians with ties to tort practice, such as Bronx Republican state senator Guy Velella, whose law firm’s successful cases against New York City include two separate injury suits on behalf of his parents. Or Assembly Speaker Sheldon Silver, who rents office space from well-connected tort firm Schneider, Kleinick, Weitz, Damashek & Shoot. Or Brooklyn Democrat Helene Weinstein, who chairs the state assembly’s Judiciary committee and “is of counsel to her father’s personal-injury firm … It’s rather like having a Microsoft lawyer in charge of the Congressional committee overseeing antitrust policy.” A jury recently took just an hour to reject a $10 million suit against the city by assemblyman John Brian Murtaugh, who had slipped on ice in a city park while walking his dog and broke his wrist. (John Tierney, “In Tort City, Falling Down Can Pay Off”, New York Times, April 15).

May 1 – “Jury flipped coin to convict man of murder”. You think this sort of thing doesn’t really happen, but it did happen last week in Louisville: “A jury unable to decide on a verdict tossed a coin last week to convict a man of murder, prompting a judge to declare a mistrial … The Jefferson County Circuit Court jury of five men and seven women deliberated about nine hours over two days last week before finding Phillip J. Givens II guilty of murder for killing his girlfriend, Monica Briggs, 29, last May.” Givens faced life in prison on the murder rap, but Judge Kenneth Conliffe declared a mistrial after word reached him of the method the jury had used to break its deadlock: one of the jurors told someone, who told a court employee, who told the judge. (Kim Wessel, Louisville Courier-Journal, April 25).

May 1 – Funny hats and creative drawing. As part of a discrimination settlement, employees of Detroit Edison now have been given an in-house “Learning Zone” where they can “map out their careers, create personal Web sites and even work on their resumes.” A reporter notes that the room “looks like a preschool for adults,” with “puzzles, funny hats, puppets and wall-mounted drawing boards.” One of the plaintiffs in the lawsuit, who has now been installed as “facilitator” of the zone, says that it makes “people feel safe, warm and creative … It’s about the employees.” (Brenda Rios, “Building Careers”, Detroit Free Press, April 27).

May 1 – In praise of bugs. “[Computers] should just work, all the time”, opines one popular tech columnist, and many others (including advocates of more stringent bug liability) likewise promote the view that “defects are a moral failing, and a complete absence of defects must be assured, whatever achieving this goal does to the cost and the schedule. But is achieving bug-free software always in the customer’s best interest?” (Gene Callahan, “Those Damned Bugs!”, Dr. Dobb’s Journal, Dec. 3, 1999, adapted as “In Praise of Bugs”, Mises Institute, March 27).