Electronic Arts/Maxis, which makes the new evolution simulation game Spore, gave it more aggressive digital rights management than many users wish it had, so it’s off to court with a lawsuit filed by class action firm KamberEdelson and named plaintiff Melissa Thomas. (Chris Faylor, “Spore DRM Prompts $5M Class Action Lawsuit”, ShackNews, Sept. 24; Courthouse News, Sept. 23).
Grand Theft Auto IV debuts at midnight tonight to spectacular reviews, and the litigation is sure to follow…
Update: I incorrectly said I bought San Andreas for the Xbox 360. Of course, San Andreas was never available for the 360. I bought the June 2005 release for the original Xbox.
Update: More.
It “won’t accept any more filings” from the embattled anti-videogame attorney “without the signature of another Florida Bar member.” (DBR). Relatedly, Above the Law is retiring Thompson to a Hall of Fame in which he will be ineligible for further naming as ATL’s Lawyer of the Day, because it just isn’t fair to other lawyers who do outlandish things to let Thompson win so often.
Perennial Overlawyered favorite Jack Thompson may find that his doodles, or supplementary art, or whatever, on court filings are an expensive matter, as the Florida Supreme Court continues to consider disciplinary action against him. Aside from the extraneous picture matter, which includes images of “swastikas, kangaroos in court, a reproduced dollar bill, cartoon squirrels, Paul Simon, Paul Newman, Ray Charles, a handprint with the word ’slap’ written under it, Bar Governor Benedict P. Kuehne, a baby, Ed Bradley, Jack Nicholson, Justice Clarence Thomas, Julius Caesar, monkeys, a house of cards,” and so forth, Thompson, known for his crusades against violence and sex in videogames, is accused of engaging in constant filings that are “repetitive, frivolous and insult the integrity of the court,” and faces a possible order that would bar him from filing actions unless signed by another Florida bar member. Thompson rejects the charges, saying, “I have a right to file anything I want with the court.” (Alana Roberts, “Anti-Porn Crusader May Face Sanctions for ‘Meritless Filings’”, Daily Business Review, Feb. 22).
This can’t be true — too many policymakers and activists have invested careers in the contrary:
It is not the cartoons that make your kids smack playmates or violently grab their toys but, rather, a lack of social skills, according to new research.“It’s a natural behavior and it’s surprising that the idea that children and adolescents learn aggression from the media is still relevant,” says Richard Tremblay, a professor of pediatrics, psychiatry and psychology at the University of Montreal, who has spent more than two decades tracking 35,000 Canadian children (from age five months through their 20s) in search of the roots of physical aggression. “Clearly youth were violent before television appeared.”
(Nikhil Swaminathan, “Taming Baby Rage: Why Are Some Kids So Angry?”, Scientific American, Oct. 16).
Loser-pays is alas the exception in our system, but it does have its moments: after a judge declared unconstitutional a law in the state of Illinois attempting to ban the sale of violent videogames to minors, U.S. District Judge Matthew Kennelly ordered the state to pay $510,250 in legal fees to the game sellers, and it seems Kennelly meant business, since he has announced “the time for waffling has passed” as to the state’s coming up with payment. (John O’Connor, “Judge wants legal-fee payment plan from Blagojevich”, AP/Chicago Tribune, Dec. 11; Mark Whiting, 1up.com, Dec. 12; Slashdot, Dec. 13 and comment thread at Slashdot which mentions us and includes some discussion of loser-pays generally.
Another way videogames are responsible for violence? “A furious Mayor Thomas M. Menino vowed yesterday to bill Sony Corp. for the chaos that swirled around the release of its PlayStation 3 machine after Boston police had to quell crowds grown frenzied and unruly by the hype surrounding the coveted consoles.” (Marie Szaniszlo, “Lucky few got game: Crowds go after PS3s, mayor goes after Sony”, Boston Herald, Nov. 18)(via Cutting Edge of Ecstasy, who comments).
The lawyers just love to sue Rockstar Games (e.g., Aug. 17; Mar. 5; Jul. 27, 2005; Feb. 19, 2005; Dec. 29, 2003); this particularly ludicrous suit alleged that “Grand Theft Auto:San Andreas,” the first part of which takes place in an ersatz parody of Los Angeles, infringed the trademark of a local strip club, “The Play Pen” because the game’s version, “The Pig Pen,” (one of hundreds of locations in the game) had a similar name and also had a parking lot and a round awning. Judge Margaret M. Morrow rebuffed the claim. But it took 100 entries on the docket, numerous depositions of game designers, expert-witness surveys, and a 55-page judicial opinion before this common-sense issue could be resolved in court. Moreover, the PlayPen attorneys say they’ll appeal, subjecting the matter to the random-legal-opinion generation of the Ninth Circuit. (AP, Aug. 8; Trademark Blog; E.S.S. Entertainment 2000 v. Rock Star Videos, CV 05-02966 MMM (C.D. Cal. July 28, 2006)).
In the weird coincidence department, one of the junior defense attorneys in the suit is not only someone who has worked on behalf of the RIAA in their oft-criticized “spamigation” suits against individuals who allegedly illegally download songs, but a co-creator of the lonelygirl15 Internet phenomenon.
“Jack Thompson, the colorful Miami attorney who has become synonymous with lawsuits against video game companies, withdrew as the attorney for the plaintiffs in Fayette’s video game trial.”
…Thompson’s withdrawal comes after a hearing on a motion from the defense attorneys, who represent video game manufacturers and distributors, to revoke Thompson’s privilege to practice law in Alabama during the case. Judge James Moore granted Thompson, pro hac vice, the legal term for the temporary privilege, when the suit was filed.Defense Attorney Jim Smith claimed that Thompson bombarded him, his co-counsel Rebecca Ward and his law firm, Blank Rome, with threatening and harassing e-mails and letters. He also accused Thompson of violating legal ethics, misrepresenting an alleged past history of disciplinary problems and attempting to poison the jury pool with frequent press releases and appearances in the news media….
Since defense attorneys filed the motion, Thompson has claimed they were “coming after” him. He said Blank Rome’s strategy has always been to attack its opponents.
(”Robert DeWitt, “Attorney in Fayette case bows out”, Tuscaloosa News, Nov. 8). More coverage: IGN, GamePolitics.com, GameSpot News, The Inquirer. For more on Thompson’s antics, see Feb. 19, Oct. 21, etc.
“Video games seem to have two purposes these days: providing entertainment and keeping attorneys busy. Very busy.” (Tresa Baldas, “Video Game Industry Explodes With Legal, Regulatory Issues”, National Law Journal, Jan. 11). For our past coverage, see, among others, Sept. 26, 2003, May 24, 2004 and this selection of pre-2003 posts.
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“Republican Californian Congressman Duncan Hunter has introduced a bill titled the ‘Parents’ Empowerment Act,’ which would allow the parent or guardian of a minor to sue (in federal court) anyone who knowingly disseminates any media which contains ‘material that is harmful to minors.’” The bill would apply in cases where “a reasonable person would expect a substantial number of minors to be exposed to the material” and “the minor as a result of exposure to that material is likely to suffer personal or emotional injury or injury to mental or moral welfare.” “Compensatory damages under the bill would start at no less than $10,000 for any instance a minor is exposed to harmful entertainment products”, and liability would apparently extend to original publishers, final retailers, and everyone in between. (”House Bill Threatens Retailers”, icv2.com News, May 21; Jonah Weiland, “CBLDF: New Censorship Bill Turns Parents Into Prosecutors”, May 21; Alan Connor, “The Parents’ Empowerment Act: finding the porn in Harry Potter”, London Review of Books, May 20)(text of H.R. 4239, introduced Apr. 28, courtesy TheOrator.com). Focus on the Family, the religious-right group, likes the idea (Keith Peters, “Congress Considers Parents’ Empowerment Act”, Family News in Focus, May 3)(more on free speech and media law).
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Reparations madness, cont’d: almost 200 years after a slave revolt won Haiti’s independence, President Jean-Bertrand Aristide “has launched a controversial campaign to get France to repay its former colony billions of dollars in restitution. And he has already sent Paris a bill, down to the very last cent: $21,685,135,571.48.” A legal adviser to the Aristide administration is considering taking the case to international court (Jacqueline Charles, “Aristide pushes for restitution from France”, Miami Herald, Dec. 18; Henry Samuel, “You owe us $21,685,135,571.48″, Daily Telegraph (UK), Oct. 8; “The sad bicentennial of a once fabulous sugar colony”, The Economist, Dec. 18). No word yet on whether any reparations will be offered in the opposite direction for the 1804 massacres during which newly emergent strongman Jean-Jacques Dessalines ordered the slaughter of almost the entire French population resident in Haiti, an estimated 20,000 persons.
In other news, the highly popular videogame “Vice City”, part of the Grand Theft Auto series, has drawn fire from New York and Florida officials “and from the government of Haiti, which has threatened to sue the game’s manufacturer, New York-based Rockstar Games, its parent company, Take 2 Interactive Software Inc., and the game’s distributors. A Miami lawyer representing the Haitian government said the game violates the hate crime laws of Florida and other states. ‘It’s the kind of thing that has no business being sold because it’s not just a game,’ attorney Ira Kurzban told the Fort Lauderdale Sun-Sentinel. ‘It’s a teaching device for young kids and high school students. What is it teaching them? Violence, hatred and racism.’” (”Haitian, Cuban Leaders Denounce ‘Grand Theft Auto’”, WTVJ South Florida, Dec. 16). More on videogame lawsuits: Sept. 26 and links from there.
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“Claims by teenage boys in Tennessee that they were acting out the Grand Theft Auto game when they shot at vehicles are threatening to put the US entertainment industry back on trial.” (Rachel Clarke, BBC, Sept. 15; “Game blamed for murder, $100 million lawsuit likely”, Out-Law.com (UK), Sept. 26). Jeff Taylor at Reason Online has the full story (”You Do Know Jack”, Sept. 10) on Miami attorney Jack Thompson, impresario of this and other litigation against videogame makers (see Apr. 3-4, 2002). Thompson is the author of a fondly remembered letter to this site (”go to Afghanistan where your anarchist, pro-drug views will be greatly rewarded” — Apr. 11, 2002) and his website stopkill.com must be seen to be believed.
More: Will Baude points to a relevant opinion by Judge Richard Posner in American Amusement Machine Association v. Teri Kendrick, and Curmudgeonly Clerk also comments.
Numerous proposals abound to extend the right to vote to children of any age. Micah Schwartzman thinks it’s a questionable idea, but stops short of condemning it entirely. He asks:
Place yourself in the original position and ask: if I didn?t know how old I would be when the veil is lifted, what principles of political representation would I favor? One-(adult) person, one vote?
September 28-30 – Draconian hacker penalties? The counter-terrorism act (whose contents, as we have mentioned before, keep changing) was drafted to include what critics say are extraordinarily severe penalties for low-level forms of computer trespassing that bear no relation to terrorism. (Matthew Broersma, “EFF: Bill treats hackers as terrorists”, ZDNet (UK), Sept. 27; Kevin Poulsen, “Hackers face life imprisonment under ‘Anti-Terrorism’ Act”, SecurityFocus.com, Sept. 23). More on the bill’s progress: Declan McCullagh, “Congress Weighs Anti-Terror Bill”, Wired News, Sept. 25; “Wiretap Bill Gets Third Degree”, Sept. 26; Jonathan Ringel, “Surveillance Major Sticking Point in Anti-Terrorism Legislation”, American Lawyer Media, Sept. 26.
September 28-30 – Terrorists, American business execs compared. Was it a passing lapse of taste, sense and perspective in the early shock of the disaster that led New York Times columnist Thomas Friedman to compare the struggle against terrorism to the campaign against … cigarette companies? In his first column after the attacks, Friedman wrote that we need to encourage defections from within the world of Muslim extremism, just as “Americans were really only able to defeat Big Tobacco when whistleblowers within the tobacco industry went public and took on their own industry, and their own bosses, as peddlers of cancer.” A very fair analogy, that! (”Smoking or Non-Smoking?”, Sept. 14). And the way-out-there-leftist website TomPaine.com, from which we don’t really expect better, gave us this gem in January of last year: “The hype [about a terrorist threat] is unfounded, largely because there is no evidence of a world wide terrorist conspiracy against the U.S., and the few alleged terrorists that have actively targeted U.S. citizens have done so infrequently.” From stupidity the article proceeded to viciousness: “The actions of business executives — from tobacco sellers to weapons manufacturers — claim the lives of hundreds of thousands of Americans every year — 38,505 gun-related deaths in 1994, 6,112 workplace fatalities and 500,000 deaths from smoking in 1996 — many times more than the handful of terrorist incidents. These are the people we should be afraid of, and seek to restrain, rather than fictional characters that have more to do with Hollywood hype than political reality.” (Roni Krouzman, “The Terrorism Scare”, TomPaine.com, Jan. 19, 2000) (via WSJ OpinionJournal.com “Best of the Web”, Sept. 17). What is it to bomb the World Trade Center, after all, compared to the more menacing status of being the sort of business exec who would work in it? See also MichaelMoore.com, “Mike’s Message”, Sept. 19 (attributing character of Osama Bin Laden to his family’s being in the building contractor trade). (DURABLE LINK)
September 28-30 – Privacy claim by Bourbon Street celebrant. Just because she cavorted topless in New Orleans’ French Quarter during Mardi Gras doesn’t mean it was okay to videotape her and use the resulting footage in a compilation release entitled “Girls Gone Wild!”. “They’re really exploiting her, victimizing her,” says one of her lawyers; the idea that there might be cameras around doesn’t seem to have crossed her mind at the time. (James L. Rosica, “Poster girl sues makers of videos”, Tallahassee Democrat, Sept. 18)(& see update Mar. 6, 2002).
September 27 – Rush to reconcile. Different things seem important now, cont’d: “Dismissals in divorce cases have skyrocketed in the Harris County Family Law courts since the terrorist attacks of Sept. 11. Family-law attorneys have found that clients contemplating divorce, as well as those in the middle of one, now say they will try to patch things up.” (see Sept. 18) (Mary Flood, “Couples want peace at home”, Houston Chronicle, Sept. 25).
September 27 – “Shooting range sued over suicide”. “The family of a woman who shot herself in the head sues a business for renting her the gun.” She came in to the shooting range with her husband; the lawyer says the attendant should have seen that she’d been drinking (St. Petersburg Times, Sept. 25).
September 27 –Force majeure fights. Do the events of September 11 constitute a material change in circumstances, thus entitling businesses to get out of merger deals and other contractual obligations? Squabbling over that issue “should keep attorneys busy for years. ‘Unfortunately, there will be litigation, whether it’s meritorious or not,’ says James Salzman, a law professor at American University.” (”Collateral Damage”, Michael Freedman and Daniel Kruger, Forbes, Oct. 15).
September 27 – Where towers stood.
Who knows how empty the sky is
In the place of a fallen tower.
Who knows how quiet it is in the home
Where a son has not returned.
— Anna Akhmatova (1889-1966) (via Alex Beam, Boston Globe, Sept. 18, who says it’s from a cycle of poems, “Youth”)
September 25-26 – Vast new surveillance powers for state AGs? Mickey Kaus, on Kausfiles.com, expresses rightful unease about a most unpleasant little surprise in the counterterrorism package: he doesn’t “see why state attorneys general, the biggest showboaters in American politics, need to be given the power to employ the FBI’s ‘Carnivore’ email-tapping program without a court order.” He suggests they’ll “probably use it to ferret out tobacco users and sue them”. (”Hit Parade”, Sept. 22; see also Jacob Weisberg, “Microsuits: Why state attorneys general are suddenly suing everybody”, Slate, May 22, 1998). (But note that the contents of the legislative package keep changing rapidly; we couldn’t locate such a provision in the draft versions we consulted on the Electronic Frontier Foundation site.)
September 25-26 – Legal botches encouraged terrorists. “The international jihad arrived in America on the rainy night of Nov. 5, 1990, when [El Sayyid] Nosair walked into a crowded ballroom at the New York Marriott on 49th Street and shot and killed [extremist political figure] Rabbi Meir Kahane… With a room full of witnesses and a smoking gun, the case against Nosair should have been a lay-down. But the New York police bungled the evidence, and Nosair got off with a gun rap. At that moment, Nosair and [sidekick Mahmud] Abouhalima may have had an epiphany: back home in Egypt, suspected terrorists are dragged in and tortured. In America, they can hire a good lawyer and beat the system.” (Evan Thomas, Newsweek/MSNBC, Oct. 1).
September 25-26 – Third Circuit cuts class action fees. In a long-awaited ruling, the 3rd Circuit federal court of appeals last month ordered that a $262 million award of lawyers’ fees be slashed to a yet undetermined level in a $3.2 billion settlement of class action securities litigation against Cendant Corp. and its auditors, Ernst & Young. Objectors had argued that the case had been relatively easy to prove and that the award would pay lawyers at least 45 times their usual rates. The court “also criticized the use of ‘auctions’ to appoint lead plaintiffs’ counsel in securities class action cases”. (Shannon P. Duffy, “Cendant $3.2 Billion Settlement Upheld, but Attorneys’ Fee Award Must Be Reduced”, The Legal Intelligencer, Aug. 29) (see June 20 and Sept. 4, 2000).
The fee squabble had cast a spotlight on the tendency of many big class action firms to contribute heavily at campaign time to elected officials who by controlling state pension funds can put these lawyers in line for big fees by designating them to represent the state in such actions. “Milberg Weiss gave $127,125 to New York state candidates since 1999, including $16,000 to state auditor Carl McCall’s campaign for the Democratic nomination for governor,” and Barrack Rodos and Bernstein Litowitz have pumped big contributions into such states as Pennsylvania, California and Louisiana. The lawyers hired Harvard law prof Arthur Miller to defend their $262 million fee. (Tim O’Brien, “3rd Circuit Reviews Fees, Counsel Choice in Cendant Class Action Settlement, New Jersey Law Journal, June 4).
In a separate decision, involving a suit against CBS, the same appeals court ruled that “lawyers who represent shareholders in derivative actions [i.e., vicariously on behalf of the corporation] are not entitled to any fees unless the suit benefited the corporation.” It overturned a deal which would have given attorneys more than $580,000 in fees; the attorneys had claimed that the settlement of their derivative suit benefited shareholders by clearing the way for a $67 million settlement of a class action suit, but the judge said the test of benefit was whether shareholders were better off for its having been filed in the first place, not for its having been settled. (Shannon P. Duffy, “3rd Circuit Takes Back $580K in Lawyers’ Fees”, The Legal Intelligencer, Sept. 21).
September 25-26 – “Asbestos column raised awareness”. Steven Milloy of JunkScience.com fields reader reaction to his column raising the question whether asbestos insulation might have enabled the WTC towers to hold out longer before their collapse (FoxNews.com, Sept. 21) (see Sept. 17, 18).
September 24 – From mourning to resolution.
There is sobbing of the strong,
And a pall upon the land;
But the People in their weeping
Bare the iron hand;
Beware the People weeping
When they bare the iron hand.
— Herman Melville, “The Martyr”, on Lincoln’s assassination (via AndrewSullivan.com and John Ellis, FastCompany)
September 24 – “Despite Protection, Airlines Face Lawsuits for Millions in Damages”. The newly passed bill puts the federal government and its taxpayers on the hook for costs of further terrorist strikes in the near term, and assists the airlines in their quest for insurance, but does less than one might imagine to shield them (and a long list of other defendants) from lawsuits over the Sept. 11 attack. (Charles Piller, L.A. Times, Sept. 22). It does not restrict filing of mass suits on creative theories based on damage on the ground, but instead gives victims a choice of whether to apply for government compensation through a “special master” in lieu of suing. Trial lawyers have already begun volunteering to help claimants with the special master process, which could put them in a position to steer those claimants back toward court-based options, especially if the taxpayer-funded compensation packages prove less than generous. And the airline bailout, which includes billions in cash subventions, may come at a high cost of future Washington entanglement for the industry: “A last-minute addition to [the bill] will let the federal government take equity stakes in the cash-strapped carriers and may even open the door to a government role on their corporate boards, lawmakers said on Friday.” (Adam Entous, “Airline Bailout Allows US to Take Stake”, Reuters/Yahoo, Sept. 21) (Yahoo Full Coverage).
September 24 – Blame video games, again. Expect renewed scrutiny of both videogames and flight simulator software, either of which might assist bad guys as well as good guys in honing skills relevant to lawlessness in the air. (David Coursey, “How video games influenced the attack on America”, ZDNet, Sept. 21; Marc Prensky, “Video games and the attack on America”, TwitchSpeed.com, undated). On earlier rounds of agitation against game makers and entertainment companies, see Gwendolyn Mariano, “Columbine victim families sue over violent games”, ZDNet, April 24, and collected commentaries on this site.
September 24 – Miami jury to Ford: pay $15 million after beltless crash. It wasn’t one of the much-publicized Explorer/Firestone cases, but instead arose from the rollover accident of an Econoline van none of whose twelve occupants was wearing seatbelts. A Ford spokeswoman criticized the verdict: “‘No proof of a manufacturing defect was shown,’ she said. ‘This was simply a tragic accident compounded by passengers not being belted.”’ (”Ford to Pay $15 Million in Rollover Case”, Reuters/FoxNews.com, Sept. 21). And the Association of Trial Lawyers of America is showcasing on its website an $18 million jury verdict against GM in favor of an 18-year-old driver who fell asleep at the wheel at 70 mph in his Chevrolet S-10 Blazer SUV. The automaker “tried to introduce evidence that plaintiff had a blood alcohol level between .04 and .07 at the time of the accident, which was illegal given his age. [Plaintiff's attorney Michael] Piuze successfully moved to exclude this fact on the ground that plaintiff had admitted his responsibility for the accident.” (ATLA Law Reporter, May — Lambert v. General Motors).
September 21-23 – “The high cost of cultural passivity”. “FAA’s silly rules did exactly nothing to stop the hijackers” (Mark Steyn, National Post, Sept. 17; “Making it safe to fly” (letters to the editor), Washington Post, Sept. 21). What did help was the revolt of the heroic passengers on United Flight 93 (Rick Reilly, “Four of a Kind”, Sports Illustrated, Sept. 19; Dan LeBatard, “Final heroic act not forgotten by the many saved”, Miami Herald, Sept. 20; some particularly good commentaries from Virginia Postrel on Sept. 20 and earlier days; proposal for a monument to them). Writes Lisa Snell: “I would rather be on a hijacked airplane with someone inoculated by Power Rangers than someone who believes the inherent message of every school institution: that weapons are bad and that the authorities and the government will solve all problems and protect you” (quoted by Joanne Jacobs, Sept. 14).
September 21-23 – Judge to “Sopranos” suit: Fuhgetaboutit. Free speech prevails: “A judge on Wednesday dismissed a lawsuit filed by an Italian-American organization that accused the makers of the HBO television series ‘The Sopranos’ of offending Italian-Americans by depicting them as mobsters. ….The American Italian Defense Association sued Time Warner Entertainment Co. under the ‘individual dignity’ clause of the Illinois Constitution.” (AP, link now dead; “Judge dismisses ‘Sopranos’ lawsuit”, MSNBC/Reuters, Sept. 19) (see April 6-8).
September 21-23 – “Don’t sacrifice freedom”. We can win this one without giving up what makes us Americans (Glenn Reynolds, FoxNews.com, Sept. 14; Dave Kopel, “Don’t Press the Panic Button”, National Review Online, Sept. 21; Stuart Taylor Jr., “Thinking the Unthinkable: Next Time Could Be Much Worse”, National Journal/The Atlantic, Sept. 19; E. J. Dionne, “To Go On Being Americans”, Washington Post, Sept. 14).
September 21-23 – “Lawsuits From Attacks Likely to Be in the Billions”. Trial lawyers speculate about various targets for the vast amount of litigation they intend to file; on the list are airlines, New York’s much-sued Port Authority and a great many others. (Robert Gearan, New York Daily News, Sept. 19; “In aftermath of terror attacks, lawyers holding off on lawsuits, but they’re coming”, ABCNews.com, Sept. 20; “Attorneys hold off on flurry of lawsuits”, USA Today, Sept. 21; “S&P: Airlines Need Relief From Lawsuits”, Reuters/Yahoo, Sept. 20).
June 20 – The judge chips in. From suburban Washington, a story that ends with not your usual kind of wealth redistribution: moved by the plight of a couple facing eviction for falling $250 behind on their rent, Fairfax, Va. judge Donald P. McDonough simply handed his own money to the landlord’s stunned attorney and said, “Consider it paid.” “Not something you see much,” said bailiff Erin Cox, who was present. “Not something you see ever.” Odder and odder: four attorneys on hand for other cases, seeing the judge’s example, pulled out their own checkbooks and offered donations to the couple. (Michael Leahy and Leef Smith, “A Beneficent Bench”, Washington Post, June 10).
June 20 – “New York City moves to slash Cendant fees.” “New York City [recently] submitted legal papers challenging as “astronomical” the $262 million fee request — set under a court auction procedure — that was submitted by the law firms that negotiated the record breaking $3.1 billion settlement in the Cendant case.” The class action firms of Bernstein Litowitz Berger & Grossman in New York and Barrack, Rodos & Bacine in Philadelphia had been named by the court to represent investors seeking to recoup losses suffered in 1998 when the parent company of the Avis and Ramada Inn franchises conceded that its books showed massive accounting irregularities. (Daniel Wise, New York Law Journal, June 1) (update Sept. 4: judge approves fee).
June 20 – “A Civil Action” and Hollywood views of lawyers. In Boston this spring, the Federalist Society convened a panel discussion on Hollywood’s portrayal of lawyers and litigation, specifically the movie “A Civil Action”(our take on it) as well as clips from several other films. Featured on the panel were several of the attorneys involved in Anderson v. W.R. Grace, the case highlighted in “A Civil Action”, including Jerome Facher of Hale and Dorr (Beatrice Foods), Kevin Conway (plaintiffs), and Michael Keating and Marc Temin of Foley, Hoag & Eliot (W.R. Grace). The moderator was Evan Slavitt of Gadsby Hannah LLP (1 hour, 50 minutes — NetRoadShow).
June 20 – “Litigation grows in ailing nursing home industry”. Lawyers say rising rates of court action are understandable since there’s so much neglect and abuse in long-term care (a spokeswoman from “the Coalition to Protect America’s Elders, a group funded by trial lawyers,” agrees) while administrator Marty Goetz at the River Garden Hebrew Home in Jacksonville says good and bad home operators alike are being “sued to death”. After making nursing home suits a big business in Florida, lawyers have fanned out to nearby states such as Alabama and Tennessee. (Julie Appleby, USA Today, June 19). Three long-term-care operators have filed for bankruptcy recently: Louisville-based Vencor, the largest such chain; Albuquerque-based Sun Healthcare Group, and Atlanta-based Mariner Post-Acute Network, the second-biggest operator with more than 400 homes nationwide. Medicare reimbursement cutbacks are generally cited as the main reason, but Mariner chairman Francis Cash said “explosive litigation costs” were also a factor.
SOURCES: Healthcare Management Advisors HMA Strategy Advisor, Jan. 28; “Nursing Home Files For Chapter 11″, Jan. 18; Debra Sparks, “Nursing Homes: On the Sick List”, Business Week, July 5, 1999; Lindsay Peterson, “Industry Tries Another Battle Tactic,”, Tampa Tribune, March 22, link now dead; Coalition to Protect America’s Elders (pro-liability); ProtectOurParents.com (pro-legal reform, Florida Health Care Association).
June 19 – Welcome CNNfn, Intellectual Capital, CEI readers. Reed Karaim’s advice article for workers thinking of suing their bosses mentions this site and quotes our editor; we like the piece, but who gave it that headline? (Reed Karaim, “Work issues? Go to court”, CNNfn/WomenConnect, June 16). Intellectual Capital bestows on us a mention/ quote/ link in an article on disabled access and web design, and IC’s readers have joined in a discussion of the subject (K. Daniel Glover, “The Disability Divide”, June 15). And Max Schulz mentions this site in the Competitive Enterprise Institute’s latest Update (June).
June 19 – “‘Legislative Subpoenas’ Give Cities An Unfair Head-Start in Lawsuits”. “Should a city council be able to demand private books and records from a company it is considering suing simply to evaluate the city’s likelihood of succeeding in a lawsuit and how much it may be able to recover? The California Supreme Court is currently being urged to give carte blanche to any city, no matter how small, to demand financial and other information from its potential litigation opponents.” The asserted power “threatens every potentially unpopular business in the country.” (Daniel E. Troy (Wiley, Rein & Fielding and American Enterprise Institute), San Francisco Chronicle, June 13).
June 19 – Oh, to be in England. On ABC’s Politically Incorrect last Monday, host Bill Maher brought up the case (see June 12) of the deaf man who’s suing “Who Wants To Be a Millionaire?” because he can’t participate in its telephone screening process (”it seems like in this country you are not alive unless you are suing someone.”) Comedian Dennis Miller, star of HBO’s “Dennis Miller Live” said the case showed the need to make it easier to collect legal fees from those who file weak cases. Simon LeBon of Duran Duran: “That’s how it is in the U.K. If you’re wasting people’s time, you pay the cost, simple as that.” Miller: “Well, that makes sense. We have come over here … to get away from England because we found the laws repressive. I get over here and I find out their laws are better than ours.” (June 12 transcript; other show transcripts).
June 19 – Shoot-’em-ups: hand over your files. Per the Hollywood Reporter, federal investigators have asked the major studios “to turn over media and marketing plans for certain movies to determine whether the entertainment industry is peddling violent fare to young audiences,” citing sources “familiar with” the Federal Trade Commission probe of popular entertainment ordered by President Clinton after Columbine. “Sources said stacks of boxes of evidence” had been handed over to the federal agency, though with contents heavily redacted to remove proprietary data. The Commission is currently pursuing the probe under its Section 6 informal authority, under which it does not exercise formal subpoena power, but it could turn the proceedings into a probe under Section 5 authority, in which it would have such power. “While tobacco is federally regulated and movies, music and videogames are not, a veteran of the long court fights with the tobacco industry sees parallels between how the FTC probed cigarette marketing and how the FTC now seeks an education in entertainment marketing, especially to children.” (David Finnegan and Brooks Boliek, “Studios asked to show media (sic) their plans for violent films”, Hollywood Reporter/Norwalk (Ct.) Hour, May 8, not online).
Plus: the attorney general of Illinois has seen fit to conduct a “sting” operation on store owners’ sale of violent videogames to minors, though in general it’s not unlawful for them to sell minors those games. “Members of my staff also are researching alternative enforcement strategies if voluntary compliance is not forthcoming,” quoth the AG, Jim Ryan, whose website is emblazoned with the slogan, “For Children, For Families, For Illinois”. (David Hudson, “Illinois attorney general urges end to sales of violent video games to minors”, Freedom Forum, April 20). See also “No basis for liability” (editorial), Boston Herald, April 9 (expressing relief at court’s dismissal of Paducah lawsuit, see April 13); Damon Root, “The blame game”, Liberzine, April 11; Paul McMasters, “Target practice on the First Amendment”, Freedom Forum, Feb. 28).
June 16-18 – New subpage on Overlawyered.com: Overlawyered skies. Our newest subpage collects tidbits of every sort on what happens when law becomes airborne, including material on sport aviation, aerospace product liability, airline labor wrangles, and even UFO suits, along with of course crashes and their aftermath.
June 16-18 – No right to kick him out. Delaware real estate developer Louis J. Capano Jr. is suing the Wilmington Country Club after it expelled him for having made false statements to a grand jury. Last year, in a sensational case reported nationwide, a jury convicted Capano’s brother, former Wilmington attorney Thomas Capano, of murder in the 1996 disappearance and death of 30-year-old Anne Marie Fahey, who had been a secretary to the state’s governor. A judge later sentenced Thomas Capano to death. “During his brother’s trial, Louis Capano acknowledged that he lied to a federal grand jury in an effort to help his brother establish an alibi in connection with Fahey’s disappearance. He also admitted to helping dispose of some evidence connected to the slaying.” The country club subsequently voted out Louis Capano after learning of his admissions; its bylaws allow dismissal of members for conduct that is “disorderly or injurious to the club’s interest or reputation.” Last month he sued in the Court of Chancery seeking reinstatement and damages. (”Louis Capano Sues Wilmington Country Club for Reinstatement”, Delaware Law Weekly, May 11).
June 16-18 – Penalty for co.’s schedule inflexibility: 30 years’ front pay. “A federal jury in Pennsylvania awarded $1.5 million in a suit brought under the Americans with Disabilities Act by a woman who said her bosses at first accommodated her Crohn’s disease by letting her work from home on a flexible schedule but later reneged on that promise by insisting that she work specific days in the office.” Denise Davis, an insurance underwriter, said it was impossible for her to commit to being in the office any particular days because she never knew when her condition might flare up. “The eight-member jury awarded Davis the highest estimate of economic damages presented by the plaintiffs — $1.3 million — and $200,000 in compensatory damages. An economist testified at trial that Davis, who is currently 37, has already suffered losses of more than $40,000 in wages. And since no employer is likely to hire her while needing an accommodation, he said that a present-value estimate of her future lost wages up to age 67 is more than $1.2 million.” (Shannon P. Duffy, “Jury Awards Woman With Crohn’s Disease $1.5 Million in ADA Case”, The Legal Intelligencer (Philadelphia), June 1).
June 16-18 – Animated advocacy. Cross Circuit, a site decidedly in favor of the Second Amendment, carries a number of cartoon animations that may raise a smile, including an interactive game you can play (”Smith & Wesson Clinton Pacifier“) to get a feel for why so many firearms owners grow nervous when they hear about lawsuits intended to prevent the legal sale of any but “smart guns”. We also admit to having laughed at the London-nanny tale “Janet Poppins“, though we warn in advance that it is disrespectful to the presently serving Attorney General (requires Shockwave plug-in).
June 14-15 – The doctor strikes back. The courts make it next to impossible for a vindicated physician to turn the tables and sue the lawyer who filed a losing malpractice case, but Dr. John Guarnaschelli, a Louisville neurosurgeon, has managed to beat the odds. “Guarnaschelli charged that lawyer Fred Radolovich had sued him without any evidence that he was negligent, without consulting an expert, and without doing much of anything to determine whether he had a case. Radolovich later conceded in a deposition that the only doctor he consulted before filing the lawsuit [which was summarily dismissed] was one of his own clients — a family practitioner accused of fondling patients during gynecological exams. That doctor told Radolovich to go to a medical library instead….After a six-day trial, a Jefferson Circuit Court jury concluded on April 25 that Radolovich had maliciously prosecuted Guarnaschelli and ordered him to pay $72,000 in damages, including $60,000 in punitive damages.” Too many other good details to summarize here — don’t miss it (Andrew Wolfson, “Doctor strikes back at lawyer who sued him”, Louisville Courier-Journal, June 7; “Doctor sues lawyer for alleging malpractice”, AP/Lexington Herald-Leader, June 8).
June 14-15 – One gunmaker’s story. Freedom Arms is a small company in the town of Freedom, Wyoming, run by Bob Baker after being started by his father. It “makes collector guns, precise, modernized versions of the old western six-shooter that are sold to a small but multinational market.” “Freedom Arms customers must wait up to eight months for a handgun — far beyond the 24 to 72 hour waiting period debated by politicians — because the company only produces about 2,000 a year.” It has not, however, been spared the same litigation that has engulfed mass-market gun producers. In the much-discussed 1999 case of Hamilton v. Accu-Tek, it was one of 15 gunmakers a Brooklyn jury deemed negligent in their marketing practices, but not among those ordered to pay $500,000. “So far, Baker says he has spent more than $200,000 on legal bills and laid off 12 of his 35 employees to fight the lawsuits.” (”Gun Debate Hits Home for Opponents in Lawsuit”, AP/Salt Lake Tribune, April 20; Firearms Litigation Clearinghouse account of Hamilton v. Accu-Tek).
June 14-15 – “Trial lawyers give $500,000 as legislation heads to Senate floor”. With two major liability-curbing bills pending in the Senate, “trial lawyers in April contributed $508,000 to Democratic Senate campaigns,” reports AP. “The Houston law firm of Williams Bailey [a beneficiary of Texas tobacco fees] donated $250,000 of the total raised from trial lawyers in unregulated soft money during April by the Democratic Senatorial Campaign Committee.” A fund-raiser in Savannah during an Association of Trial Lawyers of America conference brought in $300,000: “Trial lawyers could chat with Democratic Sens. Tom Daschle of South Dakota, the Senate minority leader; John Edwards of North Carolina, a former trial lawyer himself; Charles Robb of Virginia and John D. Rockefeller IV of West Virginia.” Democratic Senatorial Campaign Committee spokesman David DiMartino “said there was no connection between the legislation and fund-raiser.” Trial lawyers have lobbied against both bills currently before the Senate: H.R. 2366 would limit punitive damages and the application of joint and several liability (paying an entire award when others were also responsible) for businesses with fewer than 25 employees, while H.R. 1875 would give defendants a right to have some class action lawsuits heard in federal rather than state court. Both bills are priorities of the U.S. Chamber of Commerce: “The trial lawyers have a lot of money, but the small-business community has a lot of votes,” said James Wootton, who directs the Chamber’s Institute for Legal Reform. (AP/FindLaw, June 2).
June 14-15 – The judge wasn’t asleep. A unanimous Second Circuit appeals panel has upheld a judge’s ruling that two lawyers and their clients should pay sanctions for the submission of dubious affidavits in an authorship dispute over the song “The Lion Sleeps Tonight“. In the lawsuit, four members of the 1950s musical group The Tokens said they had been fraudulently deprived of ownership rights for the 1961 hit (adapted from an earlier song on the Folkways label under the title “Wimoweh”, itself an adaptation of a traditional African song). The members testified in pretrial depositions that they first learned about the fraud in late 1992, but it developed that their 1996 lawsuit would therefore be barred by a three-year statute of limitations on this type of action. Attorneys Mitchell A. Stein and Stephen J. King then sought to present evidence that their clients had been mistaken in the depositions and had actually learned about the denial of authorship rights considerably later, which would salvage a chance to proceed. Judge Michael Mukasey of the federal court in Manhattan said that to credit the new version “would be to affect a level of naivete about human affairs that is not required even of judges,” and ordered Stein and King to pay $15,000, and their clients $7,680, to help “defray fees generated by their unreasonable conduct”. (Mark Hamblett, “Time-Barred Claim Leads to Sanction”, New York Law Journal, May 25) (versions of song, from Huga’s Pad) (Tokens fan site, Tom Simon).
June 13 – Can’t sue over affair with doctor. “A Grand Island woman who had sex with her gynecologist can’t sue him for negligence and emotional distress, the Nebraska Supreme Court said Friday.” Affirming a lower court opinion, the state high court “said the woman’s lawsuit failed partly because the relationship apparently was consensual.” The affair lasted for nearly six years, but the woman grew despondent after the doctor ended it. (Butch Mabin, “Court: Woman can’t sue doctor for negligence”, Lincoln Journal-Star, June 12).
June 13 – From the U.K.: watch your language. Stockport College in Manchester, England, has banned the use of more than forty “offensive” words and phrases, including “postman”, “chairman” and even “history” (sexist), “mad”, “manic”, “crazy” (demeaning to mentally impaired), “the deaf”, “the blind”, “slaving over a hot stove” (”minimizes the horror and oppression of the slave trade”), “normal family”, “ladies and gentlemen” (said to have “class implications”), The 15,000-student college says it “will make it a condition of service and admission that employees and students adhere to this policy”. (Martin Bentham, “College guide bans ‘lady’ and ‘history’ as offensive words”, Sunday Telegraph (London), June 11). And a public employment bureau in Staffordshire, England, recently told an employer that it could not place a recruitment advertisement that included the words “hardworking” and “enthusiastic”, which it deemed discriminatory. The bureau’s parent agency explained that in its opinion such terms, as well as terms like “reliable” and “smart”, are overly subjective and could foster discrimination against the disabled. However, the education and employment minister in the Blair government, David Blunkett, who is himself blind, ordered the policy reversed and the words permitted; his office issued a statement declaring that he “regards it as an insult to him personally to suggest that a disabled person cannot be reliable, hardworking and enthusiastic.” (Maurice Weaver, “Hardworking job seeker? Do not apply within”, Daily Telegraph (London), June 7; Andrew Mullins, “Over-enthusiastic jobcentre boss champions the cause of the lazy”, The Independent (London), June 7).
June 13 – Nader, controversial at last. As a presidential candidate scoring high enough poll numbers to affect the potential outcome in some close states, Ralph Nader seems on the verge of securing the thoroughgoing unpopularity in moderate liberal circles that has so long eluded him. Although the Associated Press still accepts his self-characterization as a “longtime advocate for the ‘little guy’”, the New Republic has been blasting away at the close ties Nader has formed with some not-so-little guys who share his antipathy to free trade, such as conservative textile magnate Roger Milliken: “Says Chip Berlet, an analyst at Political Research Associates who charts right-wing influence on lefty groups: ‘It’s a little strange — you come down to visit Nader and Milliken’s lobbyist picks you up.” (Ryan Lizza, “Silent Partner”, The New Republic, January 10; letters exchange between Joan Claybrook and Lizza, May 1, is not yet online). Still largely unaired in campaign coverage — but explored in pathbreaking articles by Forbes’s Peter Brimelow and Leslie Spencer a decade ago — are Nader’s much more longstanding ties to a far bigger set of big guys, the plaintiff’s trial bar, for which see links and quotes below.
SOURCES: On trade controversy, and general background: “Daily Notebook: Breaking the Silence” (third item), New Republic, May 22; John Judis, “Seeing Green”, May 29 (Nader “elevates the struggle with corporations into an apocalyptic conflict between good and evil” and turns business into a “bogeyman”); “Nader: Big Guys Invigorate Me”, AP/CBS News, undated, April (noting that Nader faces a handful of challengers for the Green Party nomination, including “Jello Biafra, former lead singer of the punk rock band the Dead Kennedys”); James Dao, “Nader Runs Again, This Time With Feeling”, New York Times, April 15 (reg) (critics charge “that despite his seemingly penurious way of living, he is actually quite wealthy, that he purposely spent almost nothing on his 1996 campaign to skirt federal election laws, which require candidates who spend more than $5,000 to file reports disclosing their assets”); Karen Croft, “Citizen Nader”, Salon, Jan. 26, 1999 (uncritical appreciation by former Nader employee); VoteNader.com (website for his candidacy).
On RN & trial lawyers, not online unless link given: Peter Brimelow and Leslie Spencer, “The plaintiff attorneys’ great honey rush”, Forbes, Oct. 16, 1989 (includes interview quotes from prominent trial lawyers: “‘We are what supports Nader. We all belong to his group. We contribute to him, and he fundraises through us,” says Fred Levin [Pensacola, Fla.] ([then-annual income from practice] $ 7.5 million). ‘I can get on the phone and raise $100,000 for Nader in one day,’ says Herb Hafif [Claremont, Calif.]. ‘We support him overtly, covertly, in every way possible,’ says Pat Maloney [San Antonio, Texas]. ‘He is our hero. We have supported him for decades. I don’t know what the dollar amounts would be, but I would think it would be very large, because we have the money and he has our unabridged affection. I would think we give him a huge percentage of what he raises. What monied groups could he turn to other than trial lawyers?’”); Peter Brimelow and Leslie Spencer, “Ralph Nader, Inc.”, Forbes, Sept. 17, 1990; Associated Press, Sept. 10, 1990 (quoting RN: “If they don’t retract I will take them to court”, an empty threat as it would seem); “Ralph Nader, pro and con”, Forbes, Oct. 29, 1990 (includes RN’s response); Leslie Spencer, “America’s third political party?”, Forbes, Oct. 24, 1994; Andrew Tobias, “Ralph Nader Is a Big Fat Idiot”, Worth, Oct. 1996; “Ralph Nader’s Dirty Little Secret”, New York Post (editorial), Mar. 19, 2000; Andrew Tobias, “Ralph Nader Really IS a Big Fat Idiot”, AndrewTobias.com, June 12, 2000.
June 12 – Rewarded with the bench. Probably no state official in the country has done more to organize mass litigation than Connecticut attorney general Richard Blumenthal, a key backer of gun, tobacco and Microsoft cases, among many others (see Dec. 2, March 31, Feb. 3, Feb. 16, April 11). Confirming (in case we didn’t already know) that marshaling such courtroom assaults is a good way to get ahead in American law, Blumenthal is now reported to be in line for a nomination by President Clinton to the powerful Second Circuit Court of Appeals, which handles cases from New York and Vermont as well as Connecticut. According to the Hartford Courant, compliant Senate Republicans are expected to confirm him quickly and without a fight. (Jon Lender and Michael Remez, “White House Eyes Blumenthal”, May 9; Michael Remez, “Blumenthal On Verge Of Court Nomination”, May 17; Michele Jacklin, “For The Last Time: Blumenthal Doesn’t Want To Be Governor”, May 17). Update Oct. 10: judgeship didn’t go through, now angling for Senate seat.
June 12 – Who wants to sue for a million?, part II. In March, four disabled Miami residents announced they were suing the hit game show “Who Wants To Be A Millionaire?”, saying the show hadn’t accommodated their efforts to become contestants, and “seeking class-action status for themselves and others who are deaf, blind or paralyzed and have problems using the phone or hearing the instructions.” (see March 24-26) Now Peter F. Liberti Jr., who is deaf and a resident of Tonawanda, N.Y., has filed a similar complaint. (Dan Herbeck, “Wanted: a fair hearing”, Buffalo News, June 8).
June 12 – Bestiary of the bar. In Cincinnati, Common Pleas Judge Fred Cartolano recently complained from the bench “that there are too many lawyers, too many law schools and too many opportunities for dishonest behavior. ‘There are only so many fleas that can feed on a dog,’ the judge said. ‘We have lawyers coming out of the woodwork. There’s not enough business for all the lawyers out there.’ Judge Cartolano spoke before sentencing Kenneth Schachleiter to six months in jail for stealing about $91,000 from the estate of an elderly client.” (Dan Horn, “Judge decries lawyers as ‘fleas’”, Cincinnati Enquirer, April 13). Fullerton, Calif. attorney Linda K. Ross, who practices family and probate law, has filed a lawsuit against GTE Directories Sales Corp. for mistakenly listing her name and phone number in a yellow pages directory under the heading “Reptiles”. “She is subject to a great many joke and hostile phone calls, hissing sounds as she walks by and other forms of ridicule,” according to the lawsuit, although Ross does concede that her own mother “laughed for 10 minutes.” (Citizens Against Lawsuit Abuse Houston website, “Briefs”, citing May 1 issue, Liability & Insurance Week; Cathy Martindale, “Bulletin Board”, Amarillo, Tex. Globe-News, Jan. 17). A new legal referral website bills itself as “SharkTank.com — Attorneys Ready To Attack Your Case”. And New York Observer columnist Chris Byron has penned this lyrical description of what happened to a company whose business went from bad to worse trying to lend to borrowers with bad credit records: “class action lawyers have now descended on the company as if drawn by fish guts and other chum to a feeding frenzy of great whales”. (”Shoddy Contifinancial collapses by lending to risky deadbeats”, March 27).
Point of Law Volokh