Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for August, 2003

California’s busiest disabled-law enforcer

“Must a rustic winery pave country lanes and a parking lot to welcome visitors in wheelchairs? … Facing off against the wineries is George Louie, the controversial head of the Americans with Disabilities Advocates in Oakland, California, who has sued hundreds of wineries, banks and stores to improve access for the disabled. ‘We hunt you down … We really do you in,’ he said in an interview. … Kathleen Finnerty, who has defended firms in many such cases, said difficult-to-meet rules to give access to the disabled have bankrupted some firms. A diaper shop in Oakland, a Berkeley winery, a Sacramento restaurant and a root beer stand have gone out of business following the suits, she said. … ‘Guys like George Louie who abuse the system, you know, create a problem for us with public perception, they create a problem with the courts,’ Wolinsky said [Sid Wolinsky, director of litigation of Berkeley-based Disability Rights Advocates]. ‘I’m totally opposed to that.’ Louie, who is black, said some of such criticism is fueled by racism.” (However, Disability Rights Advocates’ own more respectable uses of the ADA may prove equally or more damaging to the California economy: in a lawsuit going to trial this week, it’s trying to force the big clothing discounter Mervyn’s to uncrowd its merchandise displays so that wheelchair users can freely navigate between clothing racks, a step that if successful would markedly raise the cost of doing business.) (“California lawsuits test obligations to the disabled”, CNN, Aug. 8)(via Legal Reader).

“Virtually without exception, Louie’s defendants settle out of court by paying legal fees for both parties and the cost of facility upgrades. Bills commonly reach $10,000 — sometimes up to $100,000 — including at least $4,000 per case in awards to Americans With Disabilities Advocates. Last year alone, Louie said, revenues for Americans With Disabilities Advocates easily topped $500,000, mostly from out-of-court settlements.” Louie “likes to compare his organization to a well-oiled business” but claims not to draw a salary from AWDA. “In 1968, he was convicted of interstate transport of counterfeit checks and served more than six years in federal penitentiaries. He also said he served time in a state prison in the early 1980s for robbing a drug dealer.” (Mike Lee, “Disability activist sets sights on state’s wineries”, Sacramento Bee/Contra Costa Times, Jun. 8)(more on disabled-rights filing mills)(& welcome Reason “Hit and Run” readers).

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Fox’s thin pelt

Shrinking the parody exception? “Fox News Channel has sued liberal humorist Al Franken and the Penguin Group to stop them from using the phrase ‘fair and balanced’ in the title of his upcoming book. Filed Monday in Manhattan, the trademark infringement lawsuit seeks a court order forcing Penguin to rename the book, ‘Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.’ It also asks for unspecified damages. Fox News registered ‘Fair & Balanced’ as a trademark in 1995, the suit says.” The suit claims that Franken displays a “clear” intent “to exploit Fox News’ trademark, confuse the public as to the origins of the book and, accordingly, boost sales of the book”. (“Fox Sues Humorist Al Franken Over Slogan”, AP/Washington Post, Aug. 11). Last month it was reported that lawyers for Fox had sent a cease-and-desist letter to the Austin, Tex. creators of a T-shirt with a message “Faux News: We Distort, You Comply”, parodying the network’s well-known slogan. (Lee Nichols, Austin Chronicle, Jul. 11; AgitProperties website, Jun. 20).

In June radio talk show host Michael Savage, who at the time also had a TV talk show on MSNBC, sued three critics who had been urging advertisers to boycott his show (“Savage sues ‘rats'”, Southern Voice, Jun. 27; defendants SavageStupidity.com and TakeBacktheMedia). Separately, Savage’s producers fell short in an effort to argue that SavageStupidity.com’s domain name was “confusingly similar” to that of Savage’s own website and should be forfeited. (& more on the Fox/Franken case: New York Times, Eugene Volokh, Kevin Drum, Matt Yglesias, and (via InstaPundit) Alex Knapp, Jeff Jarvis)(& letter to the editor, Dec. 6).

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Upcoming in Milwaukee, Oklahoma City

This Thursday, Aug. 14, our editor will be giving a luncheon speech to the Milwaukee chapter of the Lawyers Division, Federalist Society (details). And on Wed., Aug. 20, he’ll address the Oklahoma Council of Public Affairs as the final speaker in its Summer Speaker series in Oklahoma City (flyer) (Tulsa Today). In conjunction with the OCPA event he’ll be heard on several broadcast shows in the Sooner State, including, on Tues. Aug. 12 at 1 p.m. CDT, station WKY with host Brandon Dutcher, and on Fri. Aug. 15 at 7:15 a.m. CDT, station KTOK with host Cam Edwards, as well as a discussion show (time TBA) on KFOR-TV (NBC, ch. 4).

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U.K.: “End this compensation nightmare, say judges”

“Britain’s most senior judges have demanded an end to ‘the culture of blame and compensation’ in a landmark ruling which decrees that individuals must take responsibility for their own actions. The Appellate Committee of the House of Lords has used its judgement in a compensation case to brand Britain’s growing U.S.-style claims system as an ‘evil’ that interferes with civil liberties and freedom of will.” Ruling in the case of a man who sued local councils after he ignored safety warnings and hurt himself diving into a lake, the judges warned that continued expansion of liability “has many evil consequences and one is certainly the interference with the liberty of the citizen” as well as the imposition of “a grey and dull safety regime on everyone.” An example of the latter? “This year, a historic cheese rolling event in Gloucestershire, in which participants race down a hill chasing cheeses, was cancelled because of safety fears.” (Charlotte Edwardes, Daily Telegraph, Aug. 3). “[E]ven rugby, incredibly, is under threat from the compensation culture. There is such a terror of litigation that the number of independent schools offering rugby has fallen by 30 per cent over the past 15 years.” (Boris Johnson, “Knock some sense into the children”, Daily Telegraph, Aug. 7). Plus: decision in Tomlinson v. Congleton Borough Council, via Southern Appeal)(& welcome Volokh Conspiracy readers).

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A career of suing foodmakers

“A fast-food company like McDonald’s may not be responsible for the entire obesity epidemic,” litigious law prof John Banzhaf tells Time, “but let’s say they’re 5% responsible. Five percent of $117 billion is still an enormous amount of money.” Brian Murphy, a recent Rutgers law grad who attended this summer’s Northeastern U. let’s-sue-foodmakers confab, said: “It’s a very important and pressing issue, and its outcome will be with us for years to come. I’m hoping to be able to build a career out of this issue.”

However, even many anti-sweets activists gag at Banzhaf’s notion of suing school districts that enter vending-machine deals. “Brita Butler-Wall, executive director of Seattle-based Citizens’ Campaign for Commercial-Free Schools, has been lobbying the school board for more than a year to get rid of the Coca-Cola contract. Yet, as a parent of an eighth-grader in a local public school, she says, ‘I don’t want to see our district spending its money hiring more lawyers to fight a legal battle.’ Adam Drewnowski, director of the Center for Public Health Nutrition at the University of Washington, says, ‘If you want to influence the school board, you run for a seat on the board. Threatening a lawsuit is almost like blackmail. It’s just unconscionable.'” (Laura Bradford, “Fat Foods: Back in Court”, Time, Aug. 3).

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Update: courts snuff tobacco-deal review

It’s been a great couple of weeks for impunity for the devisers and beneficiaries of the gigantic 1998 tobacco heist. On July 31 a New York appellate panel unanimously slapped down Judge Charles Ramos’s attempt to launch an inquiry under his own authority into the ethical status of the $625 million in fees awarded to lawyers representing the Empire State in the litigation. The panel found that Judge Ramos lacked authority to pursue such review in the absence of controversy between the parties to the litigation and said he had mistaken a variety of points of law along the way. The politically well-connected recipients of that $625 million bonanza had good reason to heave a sigh of relief, since it seems practically no one in the state other than Judge Ramos is curious as to what they did to become entitled to the money (Daniel Wise, “N.Y. Panel Rejects Review Of Tobacco Fee Award”, New York Law Journal, Aug. 1)(see Jul. 30-31, 2002 and links from there). Meanwhile, “[o]nce again, the 3rd U.S. Circuit Court of Appeals has rejected an antitrust challenge to the $200 billion settlement between the top four tobacco companies and 46 states, finding that while the mega-deal did result in stifled competition, the state officials who agreed to it are immune from suit.” Previously, a suit by cigarette wholesalers had been dismissed on the ground of antitrust law’s Noerr-Pennington doctrine, which immunizes anticompetitive conduct related to lobbying and government action itself; the newly dismissed suit was filed on behalf of consumers (Shannon P. Duffy, “Smokers’ Antitrust Challenge Rejected”, The Legal Intelligencer, Jul. 31).

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Victory in Michigan

A unanimous three-judge panel of the Michigan Court of Appeals has thrown out the city of Detroit’s lawsuit against gun manufacturers and dealers, along with the companion suit by surrounding Wayne County (see Aug. 30, 1999; . Reversing a lower court, the appeals panel found that state legislation enacted to bar such suits in 2000 was constitutional. (Dawson Bell, “Appeals court throws out Detroit, Wayne County lawsuits”, Detroit Free Press, Aug. 8; opinion in PDF format)

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“S. Africa asks U.S. to dismiss suits”

Reparations watch: “The South African government has asked a U.S. court to dismiss a series of controversial multibillion dollar apartheid lawsuits against major multinational corporations, saying they could destabilize the economy. In a motion filed with the U.S. District Court in New York yesterday, Justice Minister Penuell Maduna argued the lawsuits undermine South Africa’s sovereignty and its efforts to redress nearly 50 years of white minority rule under apartheid.” (Wambui Chege, Reuters/Boston Globe, Jul. 30, no longer online; “Government Asks US to Dismiss Apartheid Cases”, SAPA/AllAfrica.com, Jul. 29). For more on the background of plaintiff’s attorney Ed Fagan, impresario of this group of suits, see Jun. 24-25, 2002, Jan. 17-19, 2003, and Nov. 17-19, 2000. Update Jan. 2, 2005: judge dismisses claims.

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