“‘But it’s getting harder to sell,’ said Ms. Super [Laurie Super of Downingtown, Pa.,] , who was a Girl Scout. ‘Girls can’t go door to door without an adult these days. Our local Wawa stores [a Northeastern convenience chain] said that they couldn’t let the girls set up their booth anymore, because of liability issues. And the schools are already sending the kids out selling all the time.'” (Julia Moskin, “Crave Thin Mints? Girl Scout Cookies Available on eBay”, New York Times, Mar. 14).
Archive for March, 2004
Corporate law’s Jarndyce
“Corporate law’s version of Jarndyce v. Jarndyce — Cede & Co. v. Technicolor, Inc. (a.k.a., Cinerama, Inc. v. Technicolor, Inc.) — has dragged on for over two decades” and has now reached (perhaps) final completion in the Delaware chancery court. Professor Bainbridge has details (Mar. 11).
NYC police giving back seized cars
“The New York Police Department is trying to give back about 6,000 cars that were confiscated in the last five years or so from suspects in drunken driving and other criminal cases, city officials said yesterday.” The city’s practice of seizing vehicles in the absence of any finding of guilt — and sometimes notwithstanding actual acquittals of the drivers (see Jan. 31, 2000 and links from there) — fared badly before judges. Among those who deserve credit for correcting the abuses are federal judge Michael Mukasey, who handed down rulings chastising the city for its failure to observe due process, and Tom O’Brien, a lawyer for the Legal Aid Society who filed the original challenge in 1999. (Susan Saulny, “City Police Giving Back Seized Cars”, New York Times, Mar. 9)(via Vice Squad)(more on forfeiture/seizure: Mar. 19-20, 2001; May 25, 2000; Jul. 21, 1999).
Update: court OKs “ghost blurber” case, Sony likely to settle
After a California court of appeals ruled that a class action could go forward against Sony Pictures over its use of quotes from “ghost blurber” David Manning, the company said it was preparing to settle the case. (see Jun. 12, 2001). Judge Reuben Ortega, dissenting from his colleagues’ decision to let the suit proceed, wrote: “This is the most frivolous case with which I have ever had to deal. Imagine the great contribution this case will make to our quality of life and to justice in America. … A new day will dawn from which time no one will ever again be fooled by a promotion touting a movie as the greatest artistic accomplishment of the ages. From that day on, all persons will be able to absolutely rely on the truth and accuracy of movie ads. No longer will people be seen lurching like mindless zombies toward the movie theatre, compelled by a puff piece. … I cannot see breathing life into this farce. We should be occupying ourselves with resolving legitimate disputes instead of laughable cases designed not to gain anything for the plaintiffs, but rather to generate fees for the only true beneficiaries of this disgrace, the attorneys.” (opinion in PDF format).
Last year, Sony agreed to pay the state of Connecticut $325,000 following an investigation by grandstanding state AG Richard Blumenthal. The Connecticut connection that Blumenthal seized on? Well, it was that the (fictitious) Manning had been said to work for a (real) newspaper in Connecticut, the Ridgefield Press. “When the scandal was revealed, the Ridgefield Press demanded only an apology from Sony, which it got. ‘We’re not interested in grubbing money,’ [executive editor Jack] Sanders said. ‘A lot of people suggested we sue, but we’re not that kind of people. We just hope they don’t subpoena us to fly out and testify, unless they’re going to pay for transportation.'” (Emanuella Grinberg, “Moviegoers to settle with studio after being lured by phony critic”, CourtTV, Mar. 8). Update Aug. 3, 2005: Sony settles for $1.5 million.
Cheeseburger seconds
“Given that a 2003 Gallup Poll found that 89 percent of Americans don’t believe in blaming the fast-food industry for obesity, you’d think the bill is unnecessary. I take this vote as Washington’s way of recognizing that in America, a bad idea, given enough time, will gain support, take root and become law.” (Debra Saunders, “If you are what you eat, then sue”, San Francisco Chronicle, Mar. 12). “Victor Schwartz, a leading expert on tort law who has been advising the National Restaurant Association, says these lawsuits still face formidable obstacles. He thinks a greater danger to the industry is that at some point state attorneys general will start filing lawsuits demanding compensation for Medicaid expenses, as they did with tobacco.” (Jacob Sullum, “Fast Food Damnation”, syndicated/Reason, Mar. 5). Blogger Kevin Drum (Calpundit) is torn and, he says, open to argument: “On the one hand, I don’t think much of using civil damage suits aimed at a specific industry as a way of changing social policy. Down that road lies madness. But at the same time, I also don’t think much of Congress exempting specific industries from the civil justice system. That can lead to some madness of its own.” (Mar. 11). Vice Squad (Mar. 11) has links on various topics including McDonald’s elimination of its Supersize offerings and developments in the U.K. on food regulation. The roll call on Wednesday’s vote is here. (See Mar. 11 and links from there.) More: in a commentary for Knight-Ridder, Fort Worth editorialist Linda P. Campbell defends the suits (“A helping of tort with your fast food”, Nov. 12, 2003). Restaurants are feeling the heat (Kim Severson, “Make it a super size, then call your lawyer”, San Francisco Chronicle, Oct. 12, 2003).
Chocolates, roses, and s. 17200
Tim Sandefur has collected more examples of unsuccessful, but inevitably expensive, lawsuits invoking California’s abuse-fraught s. 17200 private-attorney-general “unfair competition” law (see Dec. 8 and links from there). All three were rejected by the Court of Appeal. In one case, Consumer Cause, Inc., associated with veteran s. 17200 impresario Morse Mehrban, had demanded damages from an auto show producer that had provided female visitors to its shows with complimentary chocolates and roses, but had made similar gifts available to men only after an affirmative request. In a second case, an attorney had sought to employ s. 17200 as a surrogate obscenity statute by suing AT&T cable services demanding a refund of all fees collected for showings of pay-per-view adult film fare. The attorney’s suit had also sought forfeiture of AT&T’s profits from the films, revocation of its cable franchise (useful as a negotiating point, that one), and of course attorneys’ fees. (Feb. 20). Yet a third s. 17200 suit was filed against abortion clinics arguing, to quote Sandefur, “that providing abortion without disclosing alleged health threats to the mother, was unfair competition under Business and Professions Code 17200”. It was dismissed under the state’s anti-SLAPP (use of litigation for harassment) statute (Feb. 24).
“Student’s mom to sue in bus attack”
Jacksonville, Fla.: “The mother of a 12-year-old boy whose videotaped beating on a school bus received national attention last month has formally notified the Duval County School Board that she is suing.” Eddie Farah, attorney for Sashemia Small, “said the attackers should have been in one of the school system’s alternative schools for students with discipline problems.” School Superintendent John Fryer, however, says: “If you were to go back and penalize every student who had more than one referral … we wouldn’t have enough alternative schools.” Small’s lawyers also say they intend to sue the First Student school bus company for failing to prevent the incident. In a company policy no doubt informed by fears of litigation, “First Student drivers aren’t allowed to touch students, even to break up a fight.” (Paul Pinkham & Cynthia L. Garza, Jacksonville Times-Union, Mar. 9).
$100 background check requirement to volunteer
A “growing number of school districts nationwide are adopting rigorous security policies for parents and others who want to volunteer.” The expense and inconvenience of the $100 background checks are dissuading many parents from participating. The New York Times blames this on post-9/11 terrorism concerns, but the real culprit goes unmentioned: fear of liability for failure to screen. Even though “there is no evidence that tighter screening of parent volunteers prevents problems,” the failure to screen could be used by a plaintiffs’ lawyer to hold a school district liable or the criminal behavior of a volunteer. (Tamar Lewin, “Want to Volunteer in Schools? Be Ready for a Security Check”, New York Times, Mar. 11) (via Jacobs). One such lawsuit is pending now in New Haven, alleging the city Board of Education should have taken steps to determine if a Yale professor who participated in a School Volunteers for New Haven mentoring program was a pedophile–even though the plaintiff admits a background check wouldn’t have turned up anything, he suggests that perhaps Professor Antonio Lasaga would’ve been deterred from applying for the program. Needless to say, the plaintiff also plans to sue Yale. (Michelle Tuccitto, “School board asks to get out of Lasaga sex abuse case”, New Haven Register, Mar. 10).
Meanwhile, an Orange County appeals court ruled recently in Wiener v. Southcoast Childcare Centers Inc., that a daycare center and its landlord, a church, could potentially be held liable for failing to put up a fence “to protect the children from out-of-control cars” when Steven Abrams deliberately drove his Cadillac onto a playground at 40 mph and murdered two children. The good news is that the California Supreme Court indicated skepticism of the tenability of the claim during oral argument this week. (David Kravets, “Court debates landowner liability for unforeseen crimes”, AP, Mar. 10; Mike McKee, “Calif. Justices Wary of Liability for Others’ Crimes”, The Recorder, Mar. 11). If the California Supreme Court reverses and dismisses the case, tort reform opponents will pooh-pooh concerns about the lawsuit, but meanwhile the daycare center and church will have been forced to litigate this in front of three levels of courts at great expense.
Senate refuses to block gun suits
The House-passed bill (see Feb. 25) that would have protected firearms makers from being held liable for criminals’ misuse of guns died last week in the Senate, although endorsed by a substantial majority of members of that body. Why? Well, it seems quite a few Senators had to pretend to like the bill, given its popularity with the voters back home, but in fact were happy to see poison pill amendments attached to it that they knew would lead to its demise. (Edward Epstein, “Gun-liability bill dies in Senate”, San Francisco Chronicle, Mar. 3). Editorial writers of leading newspapers opposed the lawsuit restrictions with sniffish near-unanimity; it’s not as if George Soros were funding a litigation campaign that placed them at risk of bankruptcy, after all. Gun-bias-watcher Alphecca (Mar. 8) finds a few balanced press accounts of the week’s doings, but not many. More: another helping from Alphecca. And the National Rifle Association’s Institute for Legislative Action ran a story last year (Chris W. Cox, “One Big Victory, Now Another Big Battle”, May 15, 2003) summarizing the progress of the bill as well as quoting highlights from my, and others’, House testimony.
Nuestros hermanos
For flowers or other expressions of support to the people of Spain, the address is:
His Excellency Inocencio Aris
Spanish Embassy
2375 Pennsylvania Ave. N.W.
Washington, D.C. 20037
Phone (202) 452-0100
For a list of Spanish consulates around the United States, click here. (via Dean Esmay, among others). Update: Glenn Reynolds has photos and eyewitness accounts of demonstrations of support for Spain in Washington, D.C. (more net reaction)