When is it legally safe to circulate or publish fiction based on characters created by someone else? C.E. Petit (“Scrivener’s Error”) has put up a long series of posts over the past month on the question: first, second, sidebar, third, fourth. Part 4 discusses the Marvel multiplayer gaming lawsuit (see Jan. 4) (via Bainbridge).
Archive for February, 2005
Batch of reader letters
We’ve posted four more items of reader correspondence on our letters page, including: a response from artist Iqbal Geoffrey concerning his suit against a London gallery; the importance of maintaining closed car windows when observing tigers in a natural setting; what Florida does to encourage posting of beware-of-dog signs; and a law student credits us with helping him win a prize.
“Inmate’s Rising I.Q. Score Could Mean His Death”
Atkins v. Virginia held that governments could not execute the mentally retarded (Sep. 29, 2003), and now activists who would protest the idea that testing could be used to track educational results because they give results too low for racial minorities are objecting that the same tests are resulting in scores too high for death row inmates. Daryl Atkins was intelligent enough to abduct Air Force man Eric Nesbitt, force him to withdraw money from an ATM, take Nesbitt to a remote area and then shoot him eight times, killing him, but his lawyers protest he’s too retarded to be executed. (Adam Liptak, New York Times, Feb. 6). Last week, the California Supreme Court has established rules guaranteeing that any decision in that state will require a great deal of litigation. (Bob Egelko, “Judging if a killer is retarded”, San Francisco Chronicle, Feb. 11; Claire Cooper, “Rules set for death row claims”, Sacramento Bee, Feb. 11).
More updates
The St. Petersburg Times has a feature on $15-million Dillard’s escalator settlement for Kerriana Johnson and her family (Feb. 2); just in time for Valentine’s Day, it’s a love letter to the plaintiffs’ attorney team of Justin Johnson and Michael Keane. It’s a little much, especially when the reporter marvels that Johnson and Keane were clever enough to videotape depositions, something that’s been all but standard practice for big cases for at least five years. Another all-too-typical strategy decision, credulously praised by the reporter who covered the trial: interrogate Dillard’s employees who had nothing to do with the accident, and then claim their ignorance about the facts shows the callousness of the corporation. (Jamie Thompson, “Legal ‘Odd Couple’ formidable in court”, Feb. 7; Jamie Thompson, “Witnesses recount store horrors”, St. Pete Times, Jan. 19). Interesting aspect we hadn’t previously commented on: the girl’s mother, Lori Medvitz, had been awarded only $20,000 by jurors; the settlement gives her (as opposed to her daughter) $3.8 million. None of the press coverage dares to suggest that there may have been a bit of a conflict of interest there. (Jamie Thompson, “Escalator suit ends in $15-million deal” St. Pete Times, Feb. 2).
The Los Angeles Times has more detail about the fraud case that led to a mistaken $1.8 billion verdict (Feb. 8); the defendant’s story is quite fishy. (Bob Pool, “Essay Flap’s Plot Takes Strange Turn”, Feb. 10).
Wanita Renea Young
Performance review can defame employee
Bad news for Illinois employers: “In a recent state appeals court ruling, a Chicago lawyer accused of allegedly cursing and displaying improper behavior during a performance review won a $300,000 defamation lawsuit against his employer, which fired him after the review. … The appeals court rejected CNA’s argument that what happened during a private corporate meeting — in this case the performance review — did not warrant a defamation claim because it was never printed.” (Tresa Baldas, “Lawyer Wins Defamation Suit Over Performance Review Claims”, National Law Journal, Feb. 10).
Update: Mississippi pharma-suit scandal
Two more guilty pleas, which means all twelve of the Fayette residents arrested have now pleaded guilty. “More arrests are expected in six weeks in the FBI and IRS investigation.” Attorneys’ fees and expenses are said to have absorbed about $100,000 apiece of the $250,000 that each defendant received from the settlement fund, which would make $1.2 million in all reaped by the law firms and their helpers for representing the dishonest claimants. (Jimmie E. Gates, “Fen-Phen case expected to net more guilty pleas”, Jackson Clarion-Ledger, Feb. 12). See Jan. 9, etc.
Victory in California
An appeals court has upheld a trial judge’s rejection of the lawsuit by San Francisco and nine other California cities and counties, which had sought to find the gun industry legally culpable for not instituting sales restrictions that go beyond any required by state or federal law. (Bob Egelko, “Court rejects suits against gun makers”, San Francisco Chronicle, Feb. 11). See Aug. 30, 2003, and our firearms litigation page generally.
Consumer bankruptcy reform
Todd Zywicki is making a strong case for it over at Volokh Conspiracy, and promises more posts to come.
N.Y. tobacco fee fracas
Attorney H. Neal Conolly quit the firm of Thuillez, Ford, Gold & Conolly shortly before it won the right to be part of the team of law firms representing the state of New York in the tobacco litigation. He argues, though, that having been involved in a “work in progress” he’s entitled to a share of the $84.3 million in fees payable to his former partners. “Six firms, including the politically connected Thuillez partnership, received a total of $625 million in fees for their role in negotiating the tobacco settlement. Thuillez Ford has had close ties to the Pataki administration and the administration of then New York Attorney General Dennis C. Vacco.” The fees work out to about $13,000 an hour. (John Caher, “Attorney’s Bid for Share of $84.3 Million Fee Moves Forward”, New York Law Journal, Jan. 12). More on N.Y. tobacco fees: see, among other posts, May 11-13, 2001, Jul. 30-31, 2002, and Aug. 10, 2003.