Incumbent West Virginia Supreme Court Justice Warren McGraw (see Sept. 4) withstood a stiff challenge in Tuesday’s Democratic primary. The race was one of the more expensive in state history, with plaintiff’s lawyers and labor unions backing McGraw and business groups heavily supporting challenger Jim Rowe, who won the endorsement of both Charleston papers. McGraw must still face Republican Brent Benjamin in November. (Toby Coleman, “McGraw defeats challenger”, Charleston Daily Mail, May 12; Scott Wartman, “Some say Justice race most important”, Huntington Herald-Dispatch, May 5).
Archive for May, 2004
Calif. Microsoft payday, cont’d
More scrutiny of that request for a bodacious $258 million in fees for lawyers who sued Microsoft on behalf of California consumers (see Mar. 31) in what the company says was a piggyback action restating allegations from its federal antitrust case. In defending their request, the lawyers — prepare to shed a tear — say they had to work on the case over “the entire Thanksgiving holiday weekend” in 2001, among other things. Although Microsoft says it has allocated $1.1 billion to compensate California consumers, it “could end up spending much less. The deal enables anyone who bought a computer in California to get vouchers worth $5 to $29 per Microsoft product, but only a small fraction of the millions eligible have applied for the money.” (David Kravets, “California lawyers say they deserve $258 million for suing Microsoft”, AP/San Francisco Chronicle, May 12). Update Sept. 23: judge slashes fee to $112 million.
Uncivil Virginia: debate continues
The newly enacted Virginia statute which bans private contracts and other unspecified “arrangements” that “purport[] to bestow the privileges or obligations of marriage” (see our posts of Mar. 19, Apr. 18, Apr. 23) gets wider discussion, in places that include a Washington Post editorial (“Uncivil Disunion”, May 9) and a commentary by UCLA’s Eugene Volokh (May 10). Andrew Sullivan (May 6) linked to our coverage last week in sounding the alarm about the law. A range of further views: Obsidian Wings, Beaverhausen, Ramesh Ponnuru, Justin Katz. It should be noted that although several of the above commenters express a high degree of certitude (sometimes in opposite directions) as to whether the bill would or would not ban various forms of private arrangements commonly entered into by same-sex couples (e.g. medical powers of attorney, wills, pooling of assets), the actual experience under the law is more likely to consist of a prolonged guessing game as to whether or not such devices, singly or in combination, are or are not too “marriage-like” to be upheld as valid — and that guessing game is likely to impose significant costs on hapless persons caught up in the Virginia legal system even if the law is eventually construed narrowly or struck down. Update May 31: response to Ponnuru defense of law.
“Gatekeeper awards” from Common Good
Common Good, the advocacy group chaired by author Philip K. Howard (The Death of Common Sense, The Collapse of the Common Good) and whose motto is “Reforming America’s Lawsuit Culture”, on Apr. 8 announced its first “Gatekeeper Awards” honoring judges who throw out lawsuits that would better never have been filed. Among the cases praised: a Pennsylvania Supreme Court opinion excluding scientific testimony to the effect that Doritos, the snack food, is intrinsically unsafe in texture; a Virginia high court ruling upholding assumption of risk in the case of a baseball spectator hit by a ball; a Third Circuit decision holding that a “public school third-grader cannot sue for being prevented from soliciting classmates’ signatures for a petition opposing a voluntary class trip to the circus”; an Eighth Circuit opinion excluding punitive damages in the case of a patently accidental air crash; and the Nevada Supreme Court’s ruling (see Nov. 7) that a passenger cannot sue a homeowner over injuries sustained when a car crashed into a flowerbed.
Court rejects should-have-fired-us-earlier suit
The Fifth Circuit has rejected a claim that Employers Casualty Co. violated the Employee Retirement Income Security Act, otherwise known as ERISA, by wrongfully failing to terminate a group of employees during a reduction in force (RIF). The workers argued that being fired would have entitled them to an enhanced retirement package and that the company fell short of its fiduciary responsibility when it refrained from giving them the axe. (“Court rejects workers’ claim that they should have been fired sooner”, California Employment Law Letter/HRHero.com (M. Lee Smith Publishers), Feb.). The case was Bodine v. Employers Casualty, Dec. 12, 2003 (No. 03-20190).
U.K.: “Teachers want to sue children for false accusations”
Fixing the adversarial classroom, or just escalating its madness? “Children and parents who maliciously wreck teachers’ careers by false accusations should be forced to pay compensation, the second biggest teachers’ union [in Britain] said yesterday.” The National Association of Schoolmasters Union of Women Teachers “voted to seek a change in the law to allow children to be sued for compensation and forced to pay the money out of future earnings.” (Liz Lightfoot, Daily Telegraph, Apr. 15). “Only 69 of the 1,782 allegations of abuse made by children against NASUWT members in the past 10 years have led to convictions. In 1,378 cases no action was taken at all, the union says.” (Lucy Ward, “Teachers call for right to sue false accusers”, Guardian, Apr. 15).
Great Tobacco Robbery developments
In March Moody’s lowered its rating of New York City’s tobacco settlement bonds (which securitize the future flow of booty to the city from the great 1998 robbery) in light of the Second Circuit’s highly significant decision in Freedom Holdings v. Spitzer (see Jan. 12) exposing the settlement to antitrust challenge (Reuters/Forbes, Mar. 23). The Second Circuit itself denied a petition for rehearing (opinion Mar. 25 in PDF format). The General Accounting Office published a report confirming that states are spending most of the proceeds on their general budgets rather than on anything related to the weed or its effects (March report in PDF format, via the University of Tennessee’s AgPolicy.org page on tobacco litigation, which has a number of useful resources), which in turn touched off a number of caustic commentaries (“States Spend Mega-Billion Tobacco Settlement On Budget Shortfalls”, Competitive Enterprise Institute, Mar. 23; Christine Hall, “States Spend Tobacco Settlement on Budget Shortfalls”, Heartland Institute, May 1; see Nancy Zuckerbrod, “States rely on tobacco settlement to fix budgets”, AP/Louisville Courier-Journal, Mar. 23). Also check out the debate between CEI’s Sam Kazman and ever-blustering Connecticut Attorney General Richard Blumenthal on CNNfN (Mar. 18). Vice Squad (Mar. 27) has further updates on the efforts of state governments to curtail small and independent cigarette producers by way of protecting the anticompetitive arrangements established in the 1998 settlement (see Feb. 28). And the Clinton-initiated federal racketeering lawsuit against the tobacco industry, the continued prosecution of which must surely count as among the low points of the Bush Administration’s domestic record, is apparently headed toward trial in September or thereabouts (“Federal suit against tobacco moves toward trial”, AP/Helena Independent Record, Mar. 22).
The Rule of Lawyers: the softcover edition
If you enjoy this website, and especially if you want to learn more about the “big” lawsuit campaigns that generate fortunes for lawyers and tag industries with billions in liability, you would probably enjoy my book The Rule of Lawyers, which got a fair bit of attention when it was published last year. Now St. Martin’s, the publisher, has come out with a new softcover edition, just now posted on Amazon at an attractively priced $10.47. It includes a newly written epilogue in which I discuss major developments of the last year such as the fast-food litigation, the enactment of comprehensive tort reform in Texas, and the surprise move by the ABA to support reform of asbestos and class-action litigation, as well as the latest twists in gun, tobacco, fen-phen and lead paint courtroom battles, among others.
The hardcover edition of The Rule of Lawyers continues to be available here and seems to be a popular gift for Father’s Day and for new graduates, law school or otherwise. The Manhattan Institute maintains a site that compiles publicity about the book, related op-eds, etc. As for the spanking new softcover, the publisher tells me that the first copies will be in hand today, and that it will ship later this month. Its back cover is graced with an excerpt from Robert Lenzner’s rave review of the book for Forbes.com, in which he calls it: “A truly gripping read about tort lawyers … a brilliant expose of the way courts are being overwhelmed by mass tort actions.” (& thanks to David Giacalone for (end of item) his kind words).
“Liability crisis ends century of deliveries”
Human interest: Family physicians Jim Schwieterman M.D., and Tom Schwieterman M.D., who are brothers, are “scheduled to deliver their last baby in September, stopping a more than 100-year run of their family bringing children into the world in Mercer County, Ohio.” Their practice in the rural town of Maria Stein dates back to their great-grandfather, and has never had a lawsuit payout. But obstetrics is a high-risk field legally speaking: their insurance company “was asking for $80,000 for the brothers to keep delivering the 60 or so babies a year that they average”, up 150% or so from six years ago. “And given how long their family has been in the community, neither wanted to move 20 miles west to Indiana where tort reform is established and rates would have been 75% less.” The brothers will continue in medical practice aside from obstetrics. (Tanya Albert, American Medical News (AMA), May 3).
Update: Cubs settle with rooftop owners
The Chicago Cubs have settled their longstanding dispute with owners of neighboring buildings over what the Cubs considered unlawful viewing of baseball games from the buildings’ rooftops. (See “The right not to be looked at?”, Dec. 18-19, 2002). The rooftop businesses agreed to share revenue with the team, in most cases amounting to 17 percent of their gate, as compensation for availing themselves of the disputed photons. (“Cubs reach agreement with last rooftop business”, AP/ESPN, Apr. 9). Dan Lewis comments at Armchair GM (Apr. 9).