| Overlawyered.com commentaries: “Texas’s giant legal reform“, Jun. 18-19, 2003. “To tame Madison County, pass the Class Action Fairness Act“, Jun. 12-15, 2003; “‘Reforming class action suits’” (Class Action Fairness Act), Apr. 25-27, 2003. “Judge kicks class-action lawyers off case” (H&R Block), May 15, 2003. “Class action lawyer takes $20 million from defendant’s side“, Mar. 15-16, 2003. “FBI probes Philadelphia’s hiring of class action firm“, Jan. 31-Feb. 2, 2003. “Ninth Circuit panel sniffs collusion in bias settlement fees“, Dec. 16-17, 2002. Auctions: “Third Circuit cuts class action fees“, Sept. 25-26, 2001; “Letter to the editor” (competitive bidding for class representation), Jun. 13, 2001 (& Oct. 1-2, 2002). “7,000 missing colors, many of them crisply green“, Aug. 29, 2002. “‘Junk-fax’ suit demands $2 trillion“, Aug. 26, 2002; “Junk-fax litigation: blood in the water“, July 24, 2001; “Junk-fax bonanza“, March 27, 2001; “Junk fax litigation, continued“, March 3-5, 2000; “In Houston, expensive menus” (unsolicited faxes), Oct. 22, 1999. “Penthouse sued on behalf of disappointed Kournikova-oglers“, Jun. 3-4, 2002. “The mystery of the transgenic corn“, May 14-15, 2002. “Editorial-fest“, Mar. 11, 2002; “Washington Post on class action reform” (good editorial), Aug. 29-30, 2001; “Actions without class” (Washington Post editorial), Dec. 2, 1999. “The thrill of it all: plaintiffs win 28 cent coupon“, Feb. 27-28, 2002. “‘Toyota buyers’ suit yields cash — for lawyers’“, Feb. 18-19, 2002; “Golf ball class action” (Acushnet Co.), Nov. 18-19, 1999; “Class action coupon clippers” (Washington Post on settlement abuses), Nov. 15, 1999. “‘Congress looks to change class action system’“, Feb. 11-12, 2002; “‘They’re making a federal case out of it … in state court’“, Nov. 7-8, 2001. “Selling out the class?” (allegations of collusive settlement in H&R Block case), April 5, 2001 (& see Dec. 3). “Swiss banks vindicated“, Nov. 1, 2001. Letter to the editor (lawyers’ own incremental billing disclosed?), Oct. 22, 2001 (& see Dec. 3). “Counterterrorism bill footnote” (forum shopping), Oct. 16, 2001; “Best little forum-shopping in Texas” (class actions make their way to Texarkana), August 27, 1999. “Employment class actions: EEOC to the rescue“, Sept. 10, 2001. “220 percent rate of farmer participation” (USDA black farmer settlement), July 25, 2001. “The rest of Justice O’Connor’s speech“, July 6-8, 2001. “Blockbuster Video class action“, June 11, 2001 (& see July 3-4 (Vince Carroll column)). “Letter to the editor” (First USA credit cards), June 13, 2001; “Bank error in your favor” (credit card holders), Sept. 27-28, 2000; & letter to the editor, Sept. 3, 2001. “Ghost blurber case“, June 12, 2001. “NFL satellite ticket class action“, June 5, 2001 (& update Aug. 20-21: court disallows settlement). “Insurance class settlement scuttled“, Feb. 26, 2001. “Florida lawyers’ day jobs, cont’d” (hotbed of class action filing), Dec. 11-12, 2000; “Florida’s legal talent, before the Chad War” (Florida Marlins ticketholders), Dec. 8-10, 2000. “Obese soldiers class action“, Nov. 10-12, 2000. “Sweepstakes, for sure” (American Family Publishers), Oct. 20-22, 2000; “Update: Publishers’ Clearing House case“, Feb. 29, 2000. “Courtroom crusade on drug prices?“, Oct. 19, 2000. “Class actions: are we all litigants yet?“, Aug. 23-24, 2000. Coke: “Class-action lawyers to Coke clients: you’re fired“, July 21-23, 2000; “‘Coke plaintiff eavesdrops on lawyers; case unravels’” (what do lawyers tell each other after they think their clients have hung up on the conference call?), July 19-20; “‘Ad deal links Coke, lawyer in suit’” (Willie Gary, suing Coke, cuts lucrative ad deal with it), May 11, 2000. “Target Detroit” (lawyers countersue DaimlerChrysler and exec personally), July 19-20, 2000; “Turning the tables” (DaimlerChrysler sues class action lawyers), Nov. 12, 1999. “Class-action assault on eBay“, July 13, 2000. “AOL ‘pop-up’ class action” (ads said to be unfair), June 27, 2000. “Rise, fall, and rise of class actions” (enormous increase in filing rates in past decade), Mar. 10-12, 2000. “Criticizing lawyers proves hazardous” (columnist Bill McClellan makes fun of class-action attorneys, they sue him for libel), Nov. 4, 1999 (update Nov. 30: he criticizes them again, though suit is still pending); “Update: Publishers’ Clearing House case” (judge approves settlement including legal fee request; agreement reached to end libel suit), Feb. 29, 2000. “Secrets of class action defense“, Feb. 25, 2000; “Mobile Register probes class action biz” (BancBoston and other mortgage escrow cases), Feb. 7, 2000. “AOL upgrade’s sharp elbows“, Feb. 12-13, 2000. “Weekend reading: columnist-fest” (Laura Pulfer on suit against Ralph Lauren outlet stores; Alex Cockburn on Swiss banks), Feb. 5-6, 2000. “From our mail sack: unclear on the concept“, Jan. 28, 2000. “Santa came late” (suit against Toys-R-Us for missing Christmas delivery), Jan. 19, 2000. “Pokemon litigation roundup“, Jan. 10, 2000; “Pokemon cards update“, Oct. 13, 1999; “Pokemon-card class actions“, Oct. 1-3, 1999 “Expert witnesses and their ghostwriters” (life insurance class actions), Jan. 4, 2000. “Lawyers for famine and wilderness-busting?” (anti-biotech), Jan. 3, 1999. “Class action toy story” (antitrust), Dec. 29-30, 1999. “‘In race to sue Microsoft, some trip’” (lawyers inadvertently copy details of pleadings in earlier cases), Dec. 23-26, 1999. “Rolling the dice, cont’d” (suits over online gambling), Dec. 7, 1999 (earlier report, Aug. 26). “Beware of market crashes” (class action sought against E*Trade for alleged computer-related trading losses), Nov. 26-28, 1999. “Are they kidding, or not-kidding?” (proposals for suits against makers of fattening foods, losing sports teams), Nov. 15, 1999. “Public by 2-1 margin disapproves of tobacco suits” (if class actions are filed on behalf of the public, why don’t they reflect public opinion?), Nov. 5-7, 1999. “Demolition derby for consumer budgets” (class action against State Farm over generic crash parts), Oct. 8, 1999. “Power attracts power” (Boies joins anti-HMO effort), Sept. 30, 1999; “Impending assault on HMOs“, Sept. 30. “$49 million lawyers’ fee okayed in case where clients got nothing” (secondhand smoke action), Sept. 28, 1999; “Personal responsibility takes a vacation in Miami” (tobacco class-action verdict), Jul. 8, 1999. “Judge throws out four WWII reparations lawsuits“, Sept. 20, 1999. “Tainted cycle” (Milwaukee taxpayers sue themselves), Sept. 2, 1999. “Three insurers sued for $100 million” (how the press covers class action announcements), Aug. 20, 1999.
Resources on class actions are found at many different places on Overlawyered.com. For example, most of the massive lawsuits filed against individual industries over personal injury to classes of consumers are covered on pages specific to the subject matter of the cases, such as the pages on firearms litigation, tobacco litigation, managed-care litigation, breast implant litigation, product liability, and so forth. This page assembles resources on class actions as a procedural device and as an institution. Among topics covered are the unique role in this area of an “entrepreneurial” plaintiff’s bar that decides on its own behalf who and how to sue and lines up clients as needed; the history of the device and the reasons why it is either sharply limited or virtually unknown in the courts of other industrial democracies; the distinctive ethical problems that arise because of the extreme difficulty of policing lawyers’ faithfulness to the interests of the absent class; and the operations of the class action “industry” in the areas in which it has been a familiar part of the American legal landscape for decades, namely shareholder litigation and class actions over consumer and antitrust grievances aggregating large numbers of (usually smallish) claims. Background — procedural history, ethical issues: Overlawyered.com’s editor wrote about class actions (as well as “champerty and maintenance”, the “invisible-fist theory”, and other topics) in Chapter 3 of his book The Litigation Explosion; an excerpt is online. Chapter 5 (”The New Town Meeting”) of Peter Huber’s book Liability: The Legal Revolution and Its Consequences contains a valuable discussion of the class action format, particularly as it applies to the so-called toxic tort; it is unfortunately not online. Lawrence Schonbrun, a Northern California attorney who has developed a specialty in filing challenges to excessive class action attorneys’ fee requests, wrote a prescient article in 1996 on “coupon deals”, “separately negotiated” fees from defendants, and other innovative ways the class action bar was finding to escape scrutiny of its remuneration. (”Class Actions: The New Ethical Frontier“) Shareholder litigation: A starting point for research on this topic is Stanford Law School’s comprehensive Securities Class Action Clearinghouse. See also the commentaries on this site. In Felzen v. Andreas (1998), Judge Frank Easterbrook of the Seventh Circuit wrote that “Many thoughtful students of the subject conclude, with empirical support, that derivative actions do little to promote sound management and often hurt the firm by diverting the managers’ time from running the business while diverting the firm’s resources to the plaintiffs’ lawyers without providing a corresponding benefit.” He cited a long list of scholarly articles including Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 Stanford L. Rev. 497 (1991), which found that the “structural characteristics common to securities class actions . . . combine to produce outcomes that are not a function of the substantive merits of the case.” and Roberta Romano, The Shareholder Suit: Litigation without Foundation?, 7 J. L. Econ. & Organization 55 (1991), which examined 39 shareholder suits filed between the late 1960s and 1987 and concluded that “shareholder litigation is a weak, if not ineffective, instrument of corporate governance.” In 1995 Congress passed the Private Securities Litigation Reform Act, which aimed to rectify some of the worst abuses in the field. This client memo from Fried, Frank describes the wider powers institutional investors obtained under the act to influence litigation going on purportedly in the name of investors such as themselves. In Polar International Brokerage v. Reeve, a New York federal judge rejected a proposed class action settlement and request for $200,000 in attorneys’ fees, saying it offered shareholders “nothing of real value”. (Deborah Pines, National Law Journal, May 24, 1999). Although the securities bar frequently alleges that well-known companies in Silicon Valley and elsewhere are run by crooked managements that fleece their shareholders, they ironically turn out to keep a lot of their (very substantial) stock holdings invested in the very same companies. (Paul Elias, San Francisco Recorder, June 8, 1999). Among the reasons is that in many cases they have accepted stock as payment for dropping earlier legal actions. Other class action resources: The Federalist Society publishes a Class Action Watch newsletter. The first issue is in conventional web-page format. The second issue is a PDF document (Adobe Acrobat needed to view; get it here). Among the better-known law firms representing class action plaintiffs are Milberg Weiss Bershad Hynes & Lerach LLP, Lieff, Cabraser, Heimann & Bernstein LLP, Cohen Milstein, Hausfeld & Toll, Krause & Kalfayan, and Barrack, Rodos & Bacine. Actuary Jack Patterson has written an account for a plaintiff’s lawyer readership of class actions against life insurance companies, one of the big practice areas of the 1990s. The class action bar also files many antitrust suits on behalf of large groups of consumers or business purchasers. The Antitrust Policy web site collects many worthwhile resources on antitrust law.
Tagged as:
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Bill Lerach,
Bill McClellan,
champerty,
Chrysler,
class actions,
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Houston,
libel slander and defamation,
Madison County,
Melvyn Weiss,
Milberg Weiss,
Philadelphia,
reparations,
State Farm,
Switzerland,
The Litigation Explosion,
tobacco,
Toyota,
Willie Gary
February 20-21 – Updates. Further developments in stories familiar to our readers:
* Britain: “Five market traders — the so-called metric martyrs — have lost their High Court battle for the legal right to trade in pounds and ounces.” (see Dec. 15, 2001) (”Metric martyrs lose battle for pounds and ounces”, Ananova.com, Feb. 18)
* The Taco Bell chain has settled on undisclosed terms a lawsuit charging it with financial responsibility after several of its employees partied on their own time and one got into a fatal car crash; the suit charged that the employees had discussed liquor acquisition while working together at the restaurant (see Nov. 29, 2001) (Jeff Arnold, “Suit Against Taco Bell After Fatal Wreck Resolved”, Fort Smith (Ark.) Times-Record, Jan. 4; KTHV-TV (Little Rock), “Taco Bell Settles a Lawsuit Accusing Them of Contributing to the Death of a Teen”, Jan. 7).
* “Pacifiers, glow sticks and other paraphernalia associated with ‘rave’ parties cannot be banned from the gatherings,” federal judge Thomas Porteous has ruled in New Orleans, despite prosecutors’ contention that the funmakers are linked to drug use (see June 28, 2001) (”Rave Party Items Can’t be Banned Says Federal Judge”, WWL-TV (New Orleans), Feb. 4).
February 20-21 – Trial lawyer smackdown! According to Roll Call, Pascagoula, Miss. tort tycoon Dickie Scruggs has threatened never again to support Sen. John Edwards (D-N.C.) because of Edwards’ unfair treatment of federal appeals court nominee Charles Pickering. “If Scruggs follows through on his stated mission, it would deal a serious financial blow to Edwards, himself a former trial lawyer who has relied heavily on the legal industry to underwrite his burgeoning national ambitions. … While Scruggs himself has not been a direct financial backer of Edwards, lawyers have been the Senator’s single largest backer, and many of Scruggs’ friends are among Edwards’ supporters. In the 1998 election cycle he received $905,280 from lawyers and law firms, the fourth most of any candidate in that cycle, according to the Center for Responsive Politics.” (Paul Kane, “Edwards’ Tactics Draw Ire”, Roll Call, Feb. 18).
February 20-21 – Firehouse blues. Near Brighton, England, “A 5ft 1in firewoman who is too short to carry out some of her duties yesterday claimed sex discrimination after she was taken off active duty. … after a number of incidents in which she was not tall enough to handle equipment.” Katie Reid, 31, complained to an industrial tribunal that the East Sussex Fire Authority was sexually discriminatory in having “failed to accommodate her height when designing equipment and in the operation of fire appliances.” (Thomas Penny, “Tiny firewoman sues her brigade”, Daily Telegraph, Jan. 30) (via Bonehead of the Day). And authorities in Anchorage, Alaska have ordered the removal of girlie magazines from firehouses, explaining that the city could be at risk of losing a lawsuit if it lets them stay; a former firefighters union president said he was told that even tamer fare like Maxim has to go. (”Anchorage tells fire halls to eliminate risqué magazines”, JuneauEmpire.com, Feb. 18). (DURABLE LINK)
February 20-21 – “Bush Budget Surprise: $25M for Tobacco Suit”. Appalling: as part of a big increase sought for the budget of the Justice Department’s Civil Division (from $170 million to $240 million), the Bush administration has bowed to its enemies and endorsed the Clinton administration’s lawless federal expenditure recoupment suit against tobacco companies. Who knew John Ashcroft and the Bush White House were this easy to push around? (Vanessa Blum, Legal Times, Feb. 15). Plus: we highly recommend political scientist Martha Derthick’s new book on the tobacco litigation, Up in Smoke: From Legislation to Litigation in Tobacco Politics (order it from CQ Press). Derthick, professor emerita at U.Va. and also with the Brookings Institution for many years, assembles a truly damning indictment of the ways tobacco lawyers and state attorneys general managed to usurp powers constitutionally reserved to lawmakers. (DURABLE LINK)
February 18-19 – “The $200 Billion Miscarriage of Justice”. Best article we’ve seen in quite a while on the asbestos outrage: “the ultimate mass farce … The avalanche of new claims being brought by ever less impaired plaintiffs alleging ever more marginal medical conditions caused by ever more fleeting exposures to asbestos dust has triggered a new wave of bankruptcies … Like the employees of Enron, employees of [newly bankrupted big companies like Owens Corning and Federal-Mogul] have seen their retirement savings vanish in a flash. … But those employees’ losses have thus far gone unbemoaned by Congress.” (Roger Parloff, Fortune, March 4).
February 18-19 – Overprotecting the kids. “A significant body of research evidence now indicates that there has been a drastic decline in children’s outdoor activity and unsupervised play. For example, it has been calculated that the free play range of children — the radius around the home to which children can roam alone — has, for nine-year-olds in the UK, shrunk to a ninth of what it was in 1970. Evidence also shows that more and more of children’s activities are being organised or supervised by adults.” Yet the most often cited reasons for parental anxiety, road accidents and abduction by strangers, are rarer than ever.
“Local authorities, educational staff or outdoor activity instructors are too often blamed for accidents — which can only make them more cautious about providing challenging activities for children. There have been a rising number of litigations against providers of play facilities and organisers of adventure pursuits. Perhaps most damaging is that a climate has been created in which all unsupervised play is regarded as high risk, and parents or teachers who allow it are seen as irresponsible.” (Jenny Cunningham, “Play on”, Spiked Online, Jan. 3) (via InstaPundit).
February 18-19 – “Toyota buyers’ suit yields cash — for lawyers”. Under a newly approved class action settlement, thousands of customers will get $1,200 coupons, rather than cash, from a Memphis Toyota dealership charged with cheating buyers. “The lawyers who brought the suit — Richard Fields, Saul Belz and Earle Schwarz — get $1.3 million in legal fees.” Some customers have expressed indignation that in order to get any of their money back they have to patronize the dealership again. “The outcome also may provide fodder for federal lawmakers, including Rep. Ed Bryant (R-Tenn.), who are attempting to push reforms of the class-action system. … ‘Justice is there for the victim and the defendant and not just for the lawyers to make money,’ Bryant said Thursday.” (Louis Graham, Memphis Commercial Appeal, Feb. 15).
February 18-19 – Lawyers swallow lion’s share in estate dispute. A contest over the A$154,000 estate left by a 44-year-old Australian has ended with the following resolution: the decedent’s original family is to get $22,000, his live-in male partner is to get $10,000, $10,000 will go to the cost of selling his house, and lawyers and their expenses have swallowed up the remaining $112,000. (”Battle over gay partner’s estate won by lawyers”, AAP/The Age (Melbourne), Feb. 13).
February 15-17 – Kaiser Aluminum bankrupt. North America’s third-biggest aluminum producer “filed for Chapter 11 bankruptcy protection Tuesday, blaming depressed prices and asbestos litigation”. (”Kaiser Aluminum: Prices, asbestos suits force Chapter 11 filing”, Chicago Tribune, Feb. 13; “The Job-Eating Asbestos Blob” (editorial), Wall Street Journal/ OpinionJournal.com, Jan. 23).
February 15-17 – “The Enron mythos”. The story of the energy company’s collapse has been propelled by the conventions of pack journalism, with the New York Times the worst offender (see Kausfiles.com, scroll to Jan. 25). Employee benefits expert Tom Veal, on his Stromata site, dispels a few of the widely circulated misconceptions — check out for example Feb. 2, on the sinister-sounding practice of “locking down” 401(k) plans. (Jan. 15-date). The Times professes to be scandalized at the discovery that many, many investment banks and accounting firms cooperate with big-company clients to structure transactions in ways that dress up their balance sheets: “Actual accounting fraud may or may not be demonstrated in the Enron case — although media and political hysteria makes finding the truth difficult. … But this much is clear: The more widespread the Enron practices are shown to be, the more likely they were NOT malevolent.” (”Robert Musil”, Man Without Qualities blog, Feb. 14 (and see other entries))(& see Mar. 6).
February 15-17 – “‘Preserving’ History at Bayonet Point”. Yes, historic preservation of old buildings is a worthy goal, but the owner of an 1874 home in Midland, Mich. isn’t convinced it should be accomplished through legal compulsion: “One of my neighbors is an 85-year-old woman who has lived in her home for 35 years. She found working with the Historic District Commission (HDC) so distressing that she decided to live with the ongoing damage caused by roof leaks rather than seek approval for correcting the problem. ‘I will let my house fall down before I deal with those people again,’ she commonly says. Score one for the history police, but not for history.” (Paul Arends, Mackinac Institute, Dec. 3).
February 15-17 – Omit a peripheral defendant, get sued for legal malpractice. Here’s a classic way the system feeds on itself, threatening to punish lawyers if they hesitate before pushing lawsuits in cases of less than clear-cut liability: “A New Jersey appeals court reinstated a legal malpractice claim Dec. 27 against a firm whose medical negligence suit against a doctor prescribing tetracycline failed to include a challenge to a 1963 manufacturer warning about the drug’s side effects. The court ruled the adequacy of the warning has never been settled as a matter of law in New Jersey, and a jury can decide whether the lawyers committed malpractice for not raising it.” (Henry Gottlieb, “Malpractice Case Reinstated Against Lawyers for Not Suing Drug Maker”, New Jersey Law Journal, Jan. 4).
February 15-17 – Welcome bloggers. Among webloggers who link to us, besides biggies InstaPundit, Mickey Kaus, Virginia Postrel, and Andrew Sullivan, are: MBaceron, Breaching the Web, Despatches from Flyover Country, Gene Hoffman, Libertarian Rant, Megan McArdle, Sean McCray, Bob Owen, and Kyle Still, among others.
February 13-14 – Didn’t know cinema seats retracted. Australia: “A teacher’s aide who was unaware cinema seats retracted has won her case against Hoyts cinemas after hurting herself at a trip to the movies. The win could force cinemas, theatres, sports stadiums and even Sydney Opera House to warn the public of the possible dangers of their seating. … While sitting down in the cinema, the child she was caring for became rowdy. [Plaintiff Diane] Burns got up to calm him down, unaware, she claims, that her seat retracted after she left it.” Burns was described as “not a regular filmgoer”. (Sarah Crichton, “Warning: movie seats can harm your health”, Sydney Morning Herald, Feb. 9).
February 13-14 – British Telecom claims to own hyperlinks. Hey, this is getting serious! “A British company claimed in federal court Monday that it owns the patent on hyperlinks — the single-click conveniences that take a Web surfer from one Internet page to another — and should get paid for their daily use by millions of people. But a federal judge with a laptop on her desk warned that it may be difficult to prove that a patent filed in 1976, more than a decade before the World Wide Web was created, somehow applies to modern computers.” (Jim Fitzgerald, “British Company Claims Patent on Hyperlinks”, AP/Law.com, Feb. 12; Michelle Delio, “Judge Dubious About Link Patent”, Wired News, Feb. 11; “Why This Link Patent Case Is Weak”, Feb. 12). Update Oct. 1-2: court dismisses case.
February 13-14 – Blue-ribbon excuse syndromes: rough divorce predisposed him to hire hitman. After Bryan Boyd McGann’s wife filed for divorce, he “ranted and raved” to a police informant for months about his desire to have her killed, then met with a supposed hitman and agreed on a $10,000 murder-for-hire contract. At trial for solicitation of capital murder, McGann attempted to introduce the expert testimony of a psychiatrist, Dr. James Grigson, to support the theory that the stress of the divorce had made him more susceptible to being entrapped by police into such a scheme. Asked whether a normal, law-abiding citizen might under some circumstances be induced to pay money to a hitman who had promised to kill his wife, Grigson testified, “Absolutely …. Even though you’re a law abiding citizen, whenever you’re into a very nasty divorce or a very contested child custody case, your strongest emotions are — are going to be stimulated.” The court disallowed the doctor’s testimony. (David J. Rubin, J.D., “Psychiatrist Claims Divorce Is Deadly”, Forensic Panel Letter, Aug. 20, 2001) (appellate opinion, Texas v. McGann, Sept. 14, 2000 (PDF format)).
February 13-14 – Defend yourself in print and we’ll sue. The Nike Corporation had no sooner published advertisements defending its overseas labor practices than it was sued by a freelance lawyer, under the state’s “private attorney general” laws, for supposed inaccuracies which violated a state law against unfair business practices and false advertising. The case is now pending before the California Supreme Court. Writes a reader: “Amazing! Take out an ad arguing your own side of a public debate and get sued by a ‘private attorney general” looking for a bounty.’” (Mike McKee, “Nike Ads Not Actionable, California Justices Hint”, The Recorder, Feb. 8).
February 11-12 – New Yorkers officially back to normal. At least in one way, they’re suing like mad: Dana Gross of Manhattan is seeking $10 million in compensatory and $10 million in punitive damages against Ticketmaster and Madison Square Garden, saying that $100 tickets to a Michael Jackson concert (she bought six) had bad locations and obstructed views. The case seeks class action status (Dareh Gregorian, “‘Tick’ed-off Jacko Fan Sues for $20M”, New York Post, Feb. 8). (Update Oct. 23, 2004: judge allows suit to move forward as class action). “A Long Island woman who sued her former church for $4 million, claiming she suffered serious injuries when a minister pushed her to the floor while trying to bless her, settled her case yesterday for $80,000. … [Her lawyer Andrew] Siben said the woman was unavailable to discuss her case because the Almighty told her not to comment. … ‘If God told her not to speak, she’s not going to violate that’”. (Kieran Crowley, “80G from L.I. church heals pain in the apse”, New York Post, Feb. 5). And: “From rescue workers who say they have lung problems to business owners who say their shops were damaged, 1,300 people have given notice they may sue New York City for a total of $7.18 billion over the aftermath of the World Trade Center attack. … The vast majority are from firefighters who say the city gave them inadequate respiratory protection at the smoldering trade center site.” (Michael Weissenstein, “1,300 People Give Notice of Intent to Sue New York City”, AP/Law.com, Feb. 8).
February 11-12 – “Congress Looks to Change Class Action System”. Nationwide class actions, unless they are very small, belong in federal courts: “In addition to giving judges more leeway over settlements or awards, the Class Action Fairness Act 2001 would move all cases involving people in more than one state seeking $2 million or more in damages into federal court from the state courts.” (Kelley Beaucar Vlahos, “Congress Looks to Change Class Action System”, FoxNews.com, Feb. 7).
February 11-12 – Columnist-fest. All first-timers:
* “[C]opyright protection for ‘Let’s roll?’ If they get it, I’m going to register ‘Hurry up,’ ‘Pick up your socks’ and ‘Why didn’t you go before we left home?’” (Cory Farley, “Let’s roll right into court”, Reno Gazette-Journal, Feb. 9)(see Feb. 4).
* Upstate New York outdoors columnist J. Michael Kelly is unimpressed with the Consumer Product Safety Commission’s campaign against the Daisy airgun, saying that CPSC really seems to be objecting to features that are industry standards: “Gravity-feed magazines, for example, have been used in BB guns for more than 100 years.” (”BB gun recall appears suspicious”, Syracuse Post-Standard, Dec. 30)(see Dec. 21).
* The plaintiffs in New York Times v. Tasini acted like they were doing freelance writers some great favor by establishing that publications could not include their work in electronic databases such as Nexis without their explicit permission. It wasn’t such a great favor in practice: “Faced with the time-consuming and expensive chore of tracking down everybody who might have rights to the articles in their databases, publishers are just taking the articles out.” (Linda Seebach, “Writers win battle and everyone loses”, Minneapolis Star-Tribune, Feb. 2).
* Stop the presses, an Ellen Goodman column we agree with (on the stacked presidential bioethics panel headed by Leon Kass): “Cure or quest for perfection?”, Boston Globe, Jan. 24. For more on the panel, see Nick Gillespie, “Birthmarks and Bioethics”, Reason, Jan. 18; Jerome Groopman, “Science Fiction”, The New Yorker, Feb. 4; Virginia Postrel’s Dynamist.com, many entries in recent weeks; and Jonathan Rauch, “Therapeutic Cloning: Why Congress Should Butt Out”, National Journal, Dec. 15, reprinted at Reason.com.
February 11-12 – Setback for Lemelson estate. “Hundreds of companies facing infringement suits by inventor Jerome Lemelson’s estate won a victory Thursday when a federal appeals court ruled that unreasonable delay in prosecuting a patent may prevent its enforcement.” The panel of the U.S. Court of Appeals for the Federal Circuit was split 2-1. Foes of Lemelson patent claims (see May 10, 2001) complain that he filed many “submarine” patent claims which he did not pursue as inventions but which surfaced decades later in the form of royalty demands as companies opened up new technologies (Brenda Sandburg, “Lemelson Foes Win Key Patent Ruling”, The Recorder, Jan. 29).
Tagged as:
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Australia,
bankruptcy,
Dickie Scruggs,
divorce,
firefighters,
John Edwards,
Long Island,
New Jersey,
tobacco,
Toyota
January 9-10 – Minimum GPA for study abroad said unfair to disabled. “A 19-year-old sophomore is suing Macalester College in St. Paul for discrimination and mental anguish because the school denied his application for a German study abroad program set to begin this month. Macalester officials told Colin Kennedy he was turned down for the program because he did not maintain a 2.5 grade-point average his first two semesters. … Kennedy claims depression prevented him from excelling at his studies during his first two semesters and that the school failed to make reasonable accommodations for his illness.” (Hannah Allam, “Macalester sued over denial of study abroad”, St. Paul Pioneer Press, Jan. 3). However, the U.S. Supreme Court has just dealt a blow to liberal interpretation of the ADA in the workplace, ruling unanimously that it does not entitle an employee to accommodation of a physical ailment that impairs her ability to do the job, unless the ailment also interferes with major life activities more generally (”Supreme Court limits disabilities law in unanimous decision”, CNN, Jan. 8; Warren Richey, “In workplace, tougher standard on job-related injuries”, Christian Science Monitor, Jan. 9; Charles Wolfe, “Toyota Suit Before High Court Raises ADA Issues for Business”, AP/Law.com, Nov. 7). “The justices are right,” says a Washington Post editorial (”Injuries and Disabilities”, Jan. 9). (DURABLE LINK)
January 9-10 – Updates. Further developments in possibly familiar controversies:
* In the litigation over Atlanta day-trader Mark Barton’s murderous 1999 rampage (see Dec. 5), a judge has dismissed the building owner, manager and security company as defendants, but let suits proceed for now at least against the two day-trading companies where Barton committed killings. (Trisha Renaud, “Suits Against Day-Trading Firms Survive Summary Judgment in Rampage Case”, Fulton County Daily Report, Dec. 10) (see update Dec. 19, 2003)
* On November 1 a court in New York City dismissed all remaining charges in the “cybersex” case against Columbia University student Oliver Jovanovic, bringing to a close one of the most controversial sexual-abuse prosecutions in recent years (see Dec. 23, 1999) and casting a shadow over the departure from the Manhattan D.A.’s office of celebrated prosecutor Linda Fairstein. The case is the latest to call in question the application of “rape shield” laws, which sometimes operate to exclude evidence highly probative of defendants’ innocence in cases of claimed sexual coercion (Cathy Young, “Excluded Evidence”, Reason, Feb.; Nat Hentoff, “Rashomon in the Bedroom”, Village Voice, Nov. 2 (mature content); defense site Cybercase.org).
* No sooner had the Pfizer company heaved a sigh of relief over a defense verdict in its first jury trial over recalled diabetic drug Rezulin (see Dec. 19) than it lost big in a second case: a Corpus Christi, Texas jury awarded $43 million in actual damages and the company quickly agreed to an undisclosed but presumably substantial settlement (Miriam Rozen, “Parties Settle Rezulin Case After Jury Awards $43 Million in Actuals”, Texas Lawyer, Jan. 2).
* In France, following a U.S.-imitative court decision allowing families to file “wrongful birth” damage suits on behalf of disabled children for violation of their “right not to have been born” (see Dec. 11), ob/gyns have responded by “refusing to carry out ultrasound scans on pregnant women … The protest action could have an impact on thousands of women.” (”Scan strike by French doctors”, BBC, Dec. 3).
January 9-10 – Fair is foul, and foul is fair. In a case where Philadelphia cops failed to prevent a schizophrenic from hurting himself, a few whispered lawyer incantations magically transmute a case of possible negligence into an “extreme and outrageous” instance of “intentional infliction of emotional distress”. (Lori Litchman, “Intentional Infliction of Emotional Distress Claim Against Police Goes Forward”, Legal Intelligencer, Nov. 14). And the Supreme Court of Pennsylvania has ruled that “sudden” might actually mean “gradual”, in another of those pollution-insurance cases where that kind of stretch occurs so often. (Lori Litchman, “Supreme Court Ruling Deals Blow to Insurers Over Pollution Clause”, Oct. 22).
January 7-8 – Like father, like daughter? Illinois House Speaker Michael Madigan has for years been the chief guardian of trial lawyer interests in the state legislature. Now his daughter Lisa is running for attorney general of the state, and gathering in endorsements from such potentates as Chicago mayor Daley. (Fran Spielman, “Daley backs Madigan for attorney general”, Chicago Sun-Times, Jan. 4).
January 7-8 – “Slipping straight to the jury”. “Grocery stores around the country spend $450 million annually to defend slip-and-fall claims, according to the Bedford, Texas-based National Floor Safety Institute. … The average slip-and-fall claim nationwide is for $3,900, while the cost to litigate a lawsuit has reached $100,000, says Russ Kendzior, executive director of the institute. … Last month, however, the Florida Supreme Court dramatically changed the rules in ways that delighted the plaintiffs’ bar and infuriated the defense bar and business groups. In a unanimous ruling, the state’s high court rewrote the rules, dramatically shifting the burden of proof away from the plaintiff and onto the shoulders of the defendant. Now, if a customer takes a tumble, it’s up to the store to prove that it exercised reasonable care to keep its floors clean.” (Susan R. Miller, Miami Daily Business Review, Dec. 13). (Update Apr. 15, 2002: legislature partially undoes ruling.
January 7-8 – Defoliant litigation proves evergreen. “Seventeen years after a class action settlement intended to end lawsuits over Agent Orange, the 2nd U.S. Circuit Court of Appeals has ruled that two Vietnam veterans may sue companies that made the product.” (Bob Van Voris, “Agent Orange Suits Still Viable, 2nd Circuit Says”, National Law Journal, Dec. 12; Michael Fumento on Agent Orange).
January 7-8 – Canada: front-row spectator sues “reckless” exotic dancer. “A stripper and the bar where she worked are being sued by a man who claims the dancer kicked him in the face while he watched the show. Greg Bonnett of suburban Coquitlam, B.C., alleges he was enjoying the performance from a front-row seat at the Barnet Hotel in nearby Port Moody when the stripper swinging around a pole put her foot in his face.” Bonnett says he suffered a broken nose, blurred vision, headaches and difficulty breathing. (”Man says stripper kicked face, broke nose”, Canadian Press/azcentral.com, Nov. 28; Jay Nordlinger, “Impromptus”, National Review Online, Dec. 11 (next to last item)). More Canadian exotic dancer litigation: Aug. 14 and May 23, 2000.
January 4-6 – Welcome InstaPundit.com, AndrewSullivan.com readers. Two of the hottest webloggers around have included this site on their ongoing recommend lists: “all-powerful hit-king” Glenn Reynolds did it a week or two ago (see left column) and now we’re on Andrew Sullivan’s just-redesigned site (he says we offer “Peerless scrutiny of legal insanity.”). We’ll never be hungry for traffic again!
January 4-6 – Paroled prisoner: pay for not supervising me. From Canada: “The National Parole Board is facing a unique lawsuit over a crime committed by a paroled prisoner: a $1.6-million negligence claim from the criminal himself, who says he should never have been let go unsupervised. …’I feel the CSC and CSC parole are responsible for my every move while under their supervision,’ [Mark] Turner says in an affidavit filed in the Federal Court of Canada.” (Colin Freeze, “Paroled convict sues board over release”, Globe and Mail, Jan. 2) (via Damian Penny’s blog, which sports the motto: “You report. I decide.”)
January 4-6 – Memo to welfare commissioner: defy suit-happy activists. Mayor Mike Bloomberg’s new welfare chief, Verna Eggleston, faces a tall order trying to build on the successes of her Giuliani-era predecessor Jason Turner, writes Mickey Kaus. “She has to aggressively resist the demands of the city’s highly litigious ‘advocate’ community, which will pressure her to sign crippling consent decrees that effectively transfer power over the city to the ‘advocates.’ … ” (Kausfiles.com, Jan. 2 — see “Hit Parade”, left column)
January 4-6 – “Woman Wins Verdict, but no Money, Against Seagal”. Notable quote from action star Steven Seagal’s attorney after the case was over: “Just because you curse in the workplace doesn’t mean you should have to write a check.” (Reuters, Dec. 21).
January 4-6 – Mom wants to be sued. “Children have the right to sue their mothers over injuries caused by bad driving during pregnancy,” a Florida appellate court ruled. Talk about lawsuits that are collusive rather than genuinely adversarial: the mother herself is the one who’s been pushing for her daughter’s right to sue her, so that the family can get at the insurance money. (Catherine Wilson, “Judge: Miami girl can sue mom for injuries suffered as a fetus”, AP/Fort Lauderdale Sun-Sentinel, Dec. 19).
January 2-3 – Environmental lawsuits vs. military readiness. The high accuracy of American air and ground military targeting in Afghanistan is the result of “practice, practice, practice” over years of peacetime exercises at proving grounds and bombing ranges at home. But environmentalist lawsuits are increasingly tying up the armed services’ use of training grounds across the country, with the Vieques controversy just the most visible of many. Marine Corps Maj. Gen. Edward Hanlon Jr., commander at Camp Pendleton, warned Congress earlier this spring: “Our ability to train is being slowly eroded by encroachment on many fronts.” (Michelle Malkin, “Hostile Fire from Eco-’Extremists’”, syndicated/Capitalism Magazine, Dec. 11).
January 2-3 – “Hot-dog choking prompts lawsuit”. “The family of Kevin Rodriguez, a Coral Springs sixth-grader who choked to death on a hot dog, has filed a wrongful death lawsuit alleging the county School Board failed to serve him food that is safe to eat.” (Wanda J. DeMarzo & Daniel de Vise, Miami Herald, Dec. 28).
January 2-3 – Mass., Ill., NYC tobacco fees. “Despite having already received a record $178 million fee, a Boston law firm yesterday asked Suffolk Superior Court to force Massachusetts to pay it an additional $282 million for its work on the state’s suit against the tobacco companies.” Brown Rudnick Freed & Gesmer says it is entitled to collect on a 25 percent contingency deal, and points out that the suit when first dreamed up was considered virtually untenable, which they seem to think is something worth rewarding about it. (Frank Phillips, “Law firm asks court for more tobacco money”, Boston Globe, Dec. 28)(see Dec. 22, 1999). Illinois tobacco lawyers, who think their $121 million fee award isn’t enough and want another $800 million, have won a ruling from the state supreme court allowing their suit to proceed in a Cook County court and not in the state Court of Claims. (Chicago Sun-Times, “Judge will decide lawyers’ fees”, Dec. 4, no longer online) (see Oct. 16-17, 1999). And “a lawyer who is suffering from breast cancer sued her former firm, claiming the firm failed to pay her $1.7 million she earned representing New York City in its litigation against the tobacco industry. Janis L. Ettinger says New York’s Storch Amini & Munves told her she would not be paid further for her work because ’she could not realistically be a part of the future of Storch Amini by virtue of her illness.’” Private businesses have paid large sums under the Americans with Disabilities Act to settle claims that they have discriminated against employees suffering from grave illnesses. (Daniel Wise, “New York Lawyer Sues Firm Over Share of Tobacco Fees”, New York Law Journal, Nov. 6).
January 2-3 – The talk of Laconia. Un-neighborly doings in central New Hampshire, where local political activist Harriet E. Cady is suing store owner Bernard J. Salvador over his appearance at an August board of selectmen meeting of the town of Sanbornton. “Cady alleges Salvador made a statement in which he referred to her as a ‘lunatic,’ then read a letter against her. She said in his letter, which was published in some area newspapers, that he referred to her as ‘Little Hitler from Deerfield.’” So now she’s suing him for $1 million, saying the epithet had caused her emotional distress and damage to her reputation that “could have a cataclysmic effect on her ability to champion her political causes.” Cady has been involved in lawsuits against the town of Sanbornton in the past. (Gordon D. King, “Woman files $1m slander and libel suit”, Laconia Citizen, Dec. 12).
Tagged as:
Atlanta,
attorneys general,
Canada,
emotional distress,
France,
Germany,
Illinois,
libel slander and defamation,
Massachusetts,
New Hampshire,
Pennsylvania,
Philadelphia,
strippers and exotic dancers,
tobacco,
Toyota,
wrongful birth and wrongful life
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