“[O]n Sept. 11, 2003, America may be a politically divided nation, but it is hardly a broken one. The terrorists have failed. The resolve of a people to eradicate those who attacked this country hasn’t wavered. Now, as then, the most heartbreaking aspect of Sept. 11 is the 3,000 people who are not here with us to observe it.” (Chicago Tribune (editorial), Sept. 11).
Archive for 2003
Class action roundup: lap dances, Register.com, Poland Spring
Houston attorney David George has filed intended class-action lawsuits on behalf of local resident Paul Brian Meekey against three strip clubs, claiming the clubs violated Texas law by adding a $5 credit card surcharge to the $20 price of a lap dance. The suit demands a refund of all such charges paid over the past four years, plus attorney’s fees. According to attorney George, state law flatly forbids merchants from imposing surcharges on credit card transactions, even, presumably, in cases where those transactions are costly for merchants to provide because of a high later dispute rate. “Another lawyer tried filing similar cases in 1999 but abandoned them, in part out of fear that clients would only be angry when they received notice at home about refunds.” (Mary Flood, “Seeking a redress of lap-dance surcharges”, Houston Chronicle, Aug. 31). (Update May 3, 2005: appeals court lets suits proceed).
In other news, Register.com has settled a class action over its supposedly deceptive former practice of initially pointing newly registered domain names to a “Coming Soon” Page which included advertising. Class members will get a $5-off coupon toward future Register.com services, named plaintiff Michael Zurakov will get $12,500, and the lawyers will ask for up to $642,500. Thanks, lawyers! (settlement notice; Ed Foster, The Gripe Line, InfoWorld, Aug. 27; Slashdot thread). And Nestle’s Poland Spring bottled water subsidiary “has negotiated a proposed settlement for a class-action lawsuit alleging that the company’s bottled water does not come from a spring and is not completely safe. … The settlement calls for Poland Spring to offer discounts or free water worth $8,050,000 over the next five years, contribute $2.75 million to charities during the same period and step up its monitoring of water quality. It also would pay the two lawyers involved in that case $1.35 million.” The deal is drawing peals of outrage from lawyers pushing ten similar class actions who are upset that the class was not properly represented — being angry about the possibility of being cut out without fees has absolutely nothing to do with it. “Each of the lawsuits contends that Poland Spring’s water is not actually natural spring water because it is drawn from wells.” (Edward D. Murphy, “Poland Spring makes deal on lawsuit”, Portland Press-Herald, Sept. 3; notice of settlement (PDF)). Update Jun. 25: how much did consumers actually get? Darned if one columnist can find out.
9/11 lawsuit moves forward
Gregg Easterbrook, in his new blog for The New Republic, is critical of the lawsuit against airlines over 9/11 and a recent decision of a federal judge to permit that lawsuit to go forward:
We were all going through those checkpoints and riding on those planes, all as a society sharing the risk–including the federal judge who himself was getting on those planes though he now says it could have reasonably been foreseen they would be crashed into buildings. How odd he himself didn’t foresee it. (Sep. 10).
Judge Hellerstein’s Sep. 9 opinion is on-line.
Latest ADA filing mill
It’s in Philadelphia, and the Inquirer does a good job of exposing its workings (L. Stuart Ditzen, “Business owners call flood of disability suits an ambush”, Aug. 31) (see Aug. 12 (Calif.) and earlier coverage).
Rx: Hired-gun control
“Two physicians fed up with medical expert witness testimony gathered lawyers and doctors and founded the Coalition and Center for Ethical Medical Testimony this summer. … Their goal is to expose physicians who falsify credentials or mislead juries about standards of care, and they’re planning to arm physicians with the tools necessary to do the job.” (Tanya Albert, “Group aims to weed out deficient medical expert witnesses”, American Medical News (AMA), Aug. 18). Meanwhile, in a trend that outrages the organized plaintiff’s bar, medical societies are establishing tribunals to review and discipline doctors over expert witness testimony that they present in court. “Doctors whose testimony does not pass muster can be suspended or expelled from the societies.” Critics from the plaintiff’s bar say the medical societies will not conduct objective evaluations because of their members’ interest in retaliating against those of their number who testify against fellow doctors. “The giving of expert testimony should be considered the practice of medicine, and it should be the subject of peer review,” counters AMA president Donald J. Palmisano. “If someone comes into court and gives junk science, we don’t want fraudulent testimony in court.” Although attorney Robert Peck, who works closely with ATLA, is menacing the associations with charges of antitrust violation and witness intimidation, an opinion by the Seventh Circuit’s influential Judge Posner in 2001 upheld medical testimony peer review as socially valuable self-regulation that “furthers rather than impedes the cause of justice.” (Adam Liptak, “Doctors’ testimony under scrutiny”, New York Times, Jul. 6).
It’s our swirl
Lawyers for Jamba Juice, a national chain known for fruit smoothies, have sent a cease-and-desist letter to the owners of Hullaballoo, a restaurant in the Old Town neighborhood of Salinas, Calif., demanding that the restaurant stop using its logo, which like Jamba’s is based on a tornado-like swirl. “‘What, are you kidding me?’ Hullaballoo co-owner Todd Fisher said of his initial reaction to the letter. ‘You serve everything you have in a paper cup. We’re fine dining. Our (logo) is a wine glass swirling with a fork and knife and spoon, yours is a blender. Quite different.'” Bob Wecker of the Wecker Group advertising agency, who devised the Hullaballoo logo, said whirls and swirls were commonplace long before Jamba came on the scene. (Virginia Hennessey, “A great big Hullaballoo”, Monterey County Herald, Sept. 7). Jamba’s mission statement says the company believes in “Fun, Integrity, Balance, Empowerment, Respect”.
AAA sued over stranded motorist’s murder
In the latest lawsuit seeking to find a large enterprise liable for the murder of a stranded female motorist, the survivors of Melissa Gosule are beginning a trial against the AAA auto club over the dilatory way in which it set about rescuing her after her car broke down on Cape Cod in 1999. Ms. Gosule instead accepted a ride from a stranger who turned out to have a long criminal record, and who murdered her. “Every year, the American Automobile Association, with a dues-paying membership of more than 46 million in the United States and Canada, gets about 30 million calls from motorists who need help with dead batteries, flat tires and other roadside problems.” (Denise Lavoie, “Auto club goes on trial over slaying of motorist”, AP/San Francisco Chronicle, Sept. 8). Last month (see Aug. 9) the Nebraska Supreme Court ruled that the family of Amy Stahlecker could not sue the Ford and Firestone companies after a tire blowout left her stranded at the side of the road, where she was picked up and murdered by a stranger. Update Sept. 14: AAA case settles.
“Hacking-by-subpoena ruled illegal”
Fishing expeditionists, proceed at your own risk: “Issuing an egregiously overbroad subpoena for stored e-mail qualifies as a computer intrusion in violation of anti-hacking laws, a federal appeals court ruled Thursday, deciding a case in which a litigant in a civil matter subpoenaed every single piece of e-mail his courtroom adversary sent or received.” Judge Alex Kozinski of the Ninth Circuit wrote the opinion in the case, in which commercial litigant Alwyn Farey-Jones via his attorney, Iryna Kwasny, demanded emails from his opponent, a company named Integrated Capital Associates. (Kevin Poulsen, Security Focus, Aug. 29; opinion (PDF) courtesy IP Watchdog). The Federal Rules of Civil Procedure “impose on parties seeking discovery an obligation to ensure that their requests do not impose an ‘undue burden or expense.'” (Jeff Cooper, Aug. 29).
More: At Security Focus, Mark Rasch writes: “This decision, while motivated by a legitimate desire to protect privacy and force lawyers to obey the rules, nevertheless dramatically expands the meaning and intent of the computer crime in a way that could permit hundreds of thousands of people to be prosecuted” for such instances of “unauthorized use” or “trespass” as sending unauthorized emails or putting at-work computers to personal use. “Let’s get real. What the lawyers did was issue an overbroad subpoena. … The defendants in this case did not break into any computers — and saying that they did is bad for those who value liberty and prosecutorial restraint.” (“Forgive Me My Trespasses”, Sept. 8).
Expert batting averages
Compulsive gamblers not faring well against casinos
Although hope springs eternal among some trial lawyers and foes of legalized gambling that casinos might be made legally responsible for the losses of problem gamblers they negligently failed to eject from their premises, courts are still unwilling to see it that way, with three cases early this year all resulting in strong pro-casino opinions. (I. Nelson Rose, “Compulsive Gamblers Lose Again, In Court”, Jun. 2). Among them was the widely publicized case (see Sept. 12, 2002) of David Williams, who sued the Aztar casino for failing to exclude him although it had reason to know he was violating an order to stay away. U.S. District Judge John Tinder wrote that the case was barred by applicable precedent and added: “Whether this case is viewed as a claim for just compensation… or an effort to hit the jackpot in litigation that he couldn’t achieve on the river boat casino… through this lawsuit and a plethora of federal and state law theories, Williams seeks a determination that the gambling industry owed him a duty to protect him from himself. Despite his counsel’s creative efforts, and regardless of Williams’ sympathetic plight, neither federal nor Indiana law provides him any refuge or reward.” (“Compulsive gambler loses lawsuit against Casino Aztar”, Louisville Courier-Journal, reprinted CasinoMan, Mar. 7; “Problem gambler asks court to reverse ruling”, Las Vegas Review-Journal, May 14).