- Reminder: federal panel finally mulling reform of ultra-costly pretrial discovery, now’s the time to send comments [Kyl/WSJ, earlier]
- Michigan woman convicted of false rape claim had sent man to prison for 10 years in earlier case [ABA Journal]
- Strickland, key figure in disastrous CPSIA law and then chief at NHTSA, lands at BigLaw’s Venable [AutoNews, Detroit News]
- A religious accommodation too far? Devout student at secular university asks not to work with female classmates [York U., Ontario; CBC via @amyalkon, also related on Nova Scotia aikido class] Inviting shop clerks to set up “no booze/pork” check lines is a sensitivity too far [Andrew Stuttaford, Secular Right]
- “Top 2013 Jury Awards: Price-Fixing, Nursing Home Liability, Defamation” [Margaret Cronin Fisk, Bloomberg] Top legal ethics stories of 2013 [Legal Ethics Forum and followup on R v Farooqi & Ors]
- Liberate history-talk: “Another Battle Against Silly Tour-Guide Regulations” [Ilya Shapiro] Handing out $1,000 fines in Charleston, S.C. [Brian Doherty]
- “The line between Salon and Granma is getting awfully blurry” [@dandrezner; more about DoNotLink.com]
- Dropping a legal cinderblock on his head: I’m quoted on CPSC’s aggressive legal action against former Buckyballs CEO Craig Zucker [Barbara Hollingsworth, CNS; NYT covers story; earlier here, etc.] Related, CPSC finally holds public hearing on magnet sets standard [WLF Legal Pulse].
- SCOTUS sleeper Bond v. U.S., on treaty power + toxic love triangle, no longer a sleeper as George Will devotes column to it [syndicated/WaPo, earlier]
- “The Ideological Migration of the Economics Laureates” [Daniel Klein et al, Econ Journal Watch via Tyler Cowen and Arnold Kling]
- Steven Teles’s diagnosis: “Kludgeocracy in America” [National Affairs; reactions from Brink Lindsey (“libertarianism serves as America’s superego while progressivism supplies the ego and id”), Ilya Somin, Nicholas Geiser/CEI “Open Market”]
- Farewell to Blawg Review’s “Ed.,” whose identity I never learned [Ron Coleman/Likelihood of Confusion, ABA Journal, Mark Bennett/Defending People; Overlawyered hosted Blawg Review #33 in 2005 and #220 in 2009; see also mentions and #56 at Point of Law]
- “Emotional linkbait”: police, press rush far ahead of evidence in many claims of bullying-induced suicide [Kelly McBride, Poynter]
- Wow: Columbia, S.C. interim police chief says he’ll come after advocates of pot law reform [Popehat]
- Eliciting false testimony among sins: “Ninth Circuit finds ‘textbook prosecutorial misconduct'” [Legal Ethics Forum]
- Syracuse: jurors say insurance company lawyer observing trial got uncomfortably close [Above the Law]
- South Carolina: “Prosecuting attorney is accused of dismissing charges in exchange for sexual favors” [ABA Journal]
- Judge, handing down six-year sentence, calls defense lawyer’s briefing of witness a “playbook on how to lie without getting caught” [Providence Journal]
- Kentucky high court reinstates $42 M verdict against lawyers for fleecing fen-phen clients [Point of Law] Accused of bilking clients, prominent S.C. lawyer surrenders license, pleads to mail fraud [ABA Journal]
- Former Kansas attorney general accused of multiple professional violations: “Phill Kline is indefinitely suspended from practicing law” [Kansas City Star]
- “Nonrefundable ‘Minimum Fee’ Is Unethical When Fired Lawyer Will Not Refund Any of It” [BNA]
- Florida attorney John Morgan, suing NASCAR over crowd injuries, says waiver on back of ticket isn’t valid [Mike Bianchi, Orlando Sentinel, scroll to “Open Mike”; John Culhane, Slate] Idaho court denies assumption-of-risk “Baseball Rule” in foul-ball case [CBS]
- “Pennsylvania vs. NCAA: case dismissed” [antitrust; Rob Green, Abnormal Use]
- 1911 article: aviation “as safe as football”: 47 aviation vs. 60 football fatalities in 1909. [Kyle Graham, @tedfrank] “Do no harm: Who should bear the costs of retired NFL players’ medical bills?” [WaPo] “Retired Jocks Dig for Gold in the California Hills” [Jon Coppelman on state’s generous worker’s comp arrangements, earlier]
- “The Derrick Rose lawsuit and emotional distress claims in South Carolina” [Frances Zacher, Abnormal Use]
- “Parents of autistic New Jersey teen sue so he can play on” [Brick, N.J. football team; WPVI]
- NY Yankees successfully challenge company’s effort to trademark “Baseball’s Evil Empire” [Ilya Somin, Michael Schearer]
- “Memo to Roger Goodell: I’ll take my NFL football without Obamacare propaganda, please” [Bainbridge]
Yesterday, in the case of Maracich v. Spears, the Supreme Court ruled that the Driver’s Privacy Protection Act of 1994 (DPPA) prohibits trial lawyers from accessing names and contact information from states’ drivers license databases with the intention of soliciting potential clients for litigation. Under DPPA, the general rule is that states must keep the information in such databases private; there is a “litigation exception” for queries intended to investigate or prepare for legal proceedings, but the Court ruled that soliciting clients was not part of its scope. As I argue in a new post at Cato at Liberty, the dispute brought about a curious reversal in the polarities displayed in the case of Maryland v. King earlier this month: the pro-privacy justices in that case were more likely to be willing to dispense with privacy this time, and vice versa.
The underlying lawsuit (Kevin Russell at SCOTUSBlog and background here, here) also involves a bit of a reversal: class action lawyers are themselves being sued in a class action. The majority opinion by Justice Anthony Kennedy sketches in some of the background:
In the case now before the Court, petitioners are South Carolina residents whose personal information was obtained by respondents from the South Carolina DMV and used without their consent to send solicitation letters asking them to join the lawsuits against the car dealerships. Petitioner Edward Maracich received one of the letters in March 2007. While his personal information had been disclosed to respondents because he was one of many buyers from a particular dealership, Maracich also happened to be the dealership’s director of sales and marketing. Petitioners Martha Weeks and John Tanner received letters from respondents in May 2007. In response to the letter, Tanner called Richard Harpootlian, one of the respondent attorneys listed on the letter. According to Tanner, Harpootlian made an aggressive sales pitch to sign Tanner as a client for the lawsuit without asking about the circumstances of his purchase.
Some of these points may be relevant on remand, because the court will be asked to consider whether the original solicitation letter (marked “SOLICITATION”) had the predominant purpose of investigating the developing lawsuit, or of attracting clients for it. And this leads to the third turnabout. In the second class action, the one over privacy and the lawyers’ use of the DMV database, petitioners are seeking specified statutory damages of $2,500 for each person whose privacy was breached, which could add up to an “astronomical” (as Justice Ginsburg put it in her dissent) sum of hundreds of millions of dollars in all. Indeed, the majority opinion as well as the dissent signaled disquiet at a possible assessment of damages so far out of proportion to any actual harm done — a phenomenon we have seen again and again in statutory class or group damages cases in the past. Some trial lawyers have in the past pooh-poohed, as the griping of sore losers, complaints about mechanical multiplication of statutory damages into huge sums (e.g. FACTA, junk faxes, song piracy, California Labor Code). In this case, such multiplication could pose a threat to the fiscal well-being of some of their own number. (& welcome TortsProf, Legal Ethics Forum, SCOTUSBlog, JOLT Digest (Harvard Journal of Law and Technology) readers)
- “David Marcus on The History of the Modern Class Action” [Andrew Trask]
- Ted Frank profiled [American Lawyer] Related: “Expert in legal-fee fight blasts ‘make believe’ game over cost of contract lawyers to do doc review” [ABA Journal; CCAF on games case]
- “Statutory Penalties and Class Actions: Social Justice or Legalized Extortion?” [Paul Karlsgodt, DULR Online]
- Lawyers in Ford Explorer case claimed $500M benefit to class, on way to pocketing $25M fee; actual coupon redemptions $74,000 [Lawrence Schonbrun, American Thinker]
- Genesis Health Care Corp. v. Symczyk: can defendant moot class action by settling lead plaintiff’s complaint? [Karlsgodt, Trask, Fed Soc]
- Incentive problems of cy pres: a mini-roundup [Jennifer Johnston comment, JLEP, via Trask, Alison Frankel/Reuters on Ben & Jerry’s case, PoL on U. of South Carolina, Daniel Fisher on Facebook case]
- Reactions to SCOTUS ruling in Comcast v. Behrend [Richard Epstein, Point of Law; Max Kennerly with a plaintiff’s view; Fed Soc podcast with Ken Lee (Jenner & Block); Manhattan Institute podcast with Ted Frank]
A South Carolina jury awarded the default judgment against a now-defunct property management firm that had called with an eviction threat over two-months’-behind rent; the tenant in a deposition “said she had asked the manager to refrain from speaking with her mother because of her fragile health.” [Charleston Post and Courier]
I much enjoyed my trip there last week, sponsored by the Federalist Society chapter and with Prof. Jacqueline Fox providing a spirited counterpoint to my remarks on Schools for Misrule. The school has posted a Facebook photo album of the event.
I’ll be speaking at these five law schools in October, sponsored by the Federalist Society and at lunchtime unless otherwise specified:
Oct. 3, University of Oregon, Eugene, Ore., on tort law and the “invisible fist” theory (U of O calendar).
Oct. 29, Boston University, Boston, Mass., topic to be announced.
Oct. 30, New England School of Law, on tobacco litigation, debating Ilana Knopf.
To inquire about having me speak to your group, email editor – at – overlawyered – dot – com.