Archive for February, 2005

Senate passes Class Action Fairness Act

By a 72-26 vote, with 18 Democrats and Vermont’s Jeffords joining a unanimous roster of Republicans, the Senate has approved this bill, which would 1) move most interstate class actions from state into federal court and 2) regulate various practices such as the use of coupon settlements. House approval and a Presidential signature are expected in short order, giving the returning Bush administration its first major legislative victory and dealing a rare defeat to the Association of Trial Lawyers of America. Such defeats have been so rare that CAFA, though hardly radical and not a little watered down from earlier versions, probably constitutes the most ambitious tort-reform measure to pass at the federal level in recent decades. (New York Times).

For some of this site’s past posts on the bill, see Apr. 25-27, Jun. 12-15 and Jun. 25, and Sept. 28, and Oct. 21, 2003. Jim Copland and others have wall-to-wall coverage of the new developments at Point of Law, including posts on the roll call; background (including links to four past Manhattan Institute studies on the issue); the “magnet-court” problem; and last but not least, a new Manhattan Institute study by Yale law prof George Priest taking a closer look at some widely circulated statistics about class settlements, and opining that CAFA would be a useful if limited first step in addressing the problems raised by such litigation.

Elsewhere on the web, some plaintiff’s-side observers are pointing out that the new rules ushered in by the bill will likely be actively beneficial to the practice of some lawyers who specialize in filing such suits (though detrimental to others’), and that some businesses that get sued are likely to find their position worsened (not only may they find it harder to enter cheap coupon settlements, for example, but they may face a proliferation of one-state-only class actions). See, in particular, Evan Schaeffer and C. E. Petit (“Scrivener’s Error”). Meanwhile, Dwight Meredith perhaps surprisingly “do[es] not oppose the proposed reform of class action suits” but believes its GOP sponsors are being inconsistent, and Bill Childs wonders if there’s more to the debate besides money. Finally, Baseball Crank points out a possibly headache-making technical aspect of the bill.

“What the Doctor Saw”

“The court system through the eyes of a surgeon sued for malpractice/The jury needed just 15 minutes to end the case, but first orthopedist Stephen M. McCollam had to live under its cloud for four years.” Outstandingly reported account of a surgeon’s professional liability trial from the standpoint of the defendant and his family as well as the lawyers on both sides. Long, detailed, and in PDF format, but must reading (S. Richard Gard, Jr., “What the Doctor Saw”, Fulton County Daily Report (Atlanta), Jan. 31). Plus: letters, some very angry, from lawyers and other readers of the Daily Report (Feb. 7); Feb. 7 follow-up from Gard, who’s editor and publisher of the Daily Report as well as the author of the piece (via SymTym).

Able-bodied applicants only? Mr. Trump, you’re sued

Latest disabled-rights suit against a reality TV show: “‘The Apprentice’ may be entertainment, but it also amounts to a protracted job interview, says James W. Schottel Jr., who filed a federal case in St. Louis claiming that audition rules demanding ‘excellent physical’ health are discriminatory.” (Peter Shinkle, “Trump’s show discriminates, lawsuit says”, St. Louis Post-Dispatch, Feb. 8). In an earlier lawsuit, deaf and blind plaintiffs alleged that ABC violated accessibility rules by requiring the use of a touch-tone phone in the application process for its show “Who Wants To Be A Millionaire?” (see Jun. 21-23, 2002). Update Mar. 23: case settles.

Billed for 94-hour day

“Norwich, Conn., solo Timothy C. Spayne has paid the federal government $1.24 million to settle allegations that he billed Groton, Conn.-based Electric Boat for up to 94 hours in a single day for representing EB employees in workers’ compensation cases. U.S. Attorney Kevin J. O’Connor called it one of the most egregious instances of government fraud during his more than two years in office.” (Keith Griffin, “Billing for 94-Hour Day Nets Solo $1 Million Fraud Charge”, Connecticut Law Tribune, Feb. 7).

Sues university over B-minus grade

Bob Whitney, 52, is suing the University of Nevada, Las Vegas after getting a B-minus grade from a history professor who Whitney says discriminated against him because of his conservative beliefs. “He seeks at least $10,000 for emotional duress, tuition, books and living expenses.” He also “claimed [Eugene] Moehring’s fast-paced lectures prevented him from taking complete notes,” and says a graduate coordinator humiliated him by yelling at him in front of his wife. (“Student sues university over grade”, AP/CourtTV, Feb. 4).

TV and radio today: Fox, NRA News

Fox News’s “DaySide” has booked me today to discuss an assortment of unusual or colorful lawsuits recently noted on this site. I’m scheduled to be on between 1 and 2 p.m. Eastern, probably around 1:20 p.m. (Update: for more on the cases discussed, follow the links: high-speed cop chase; train crash worsened his drinking; “Fear Factor“; pharmacy theft; concert noise; “beware of dog” signs.)

Also, at 4:40 p.m. Eastern, I’ll be live on the Cam Edwards show, which streams at nranews.com (National Rifle Association) and Sirius satellite radio, to discuss my NY Times piece on NYC gun law (more).

Update: charges dropped in lawyer-joke case

“A couple of jokers from Long Island got the last laugh yesterday after a grand jury dismissed charges they had caused a disturbance when they told lawyer jokes in front of an attorney.” (see Jan. 13, Jan. 14, Jan. 30). “It’s still legal in America to tell jokes — even about lawyers,” said their attorney, Ron Kuby. (Devin Smith, “Good ‘Gag’ Rule”, New York Post, Feb. 9).

Gibson Dunn punished for meritless lawsuit

Steve Morton, heir to the salt fortune, asked Steve Seltzer to evaluate the early 20th-century painting “Lassoing a Longhorn”, thought to be a C.M. Russell; Seltzer instead identified it as the work of a less famous artist, his own grandfather, the Russell contemporary O.C. Seltzer. This meant the painting’s value was not about $650-800 thousand, but perhaps a tenth of that. So Morton hired the big law firm Gibson Dunn & Crutcher, and sued Seltzer in federal court for the difference plus punitive damages. Unfortunately, though Morton did have evidence the Russell signature wasn’t altered, he couldn’t find any experts who backed his theory of the painting’s provenance, while Seltzer lined up nine affidavits that supported his conclusion. Morton dropped the lawsuit, and Seltzer then sued Morton, the law firm, and the apparently-now-retired lawyer, Dennis Gladwell. A Montana state court jury found malicious prosecution, and awarded $21 million in damages, based in part on Gibson Dunn’s earnings. The damages award seems improper (it’s punishing the law firm for being large, rather than for wrongdoing); one hopes it is reduced to something in line with the actual damages to Seltzer–legal fees, any economic damages from the brief loss in reputation (though Seltzer doesn’t charge for his authentications), plus perhaps some reasonable non-economic damages for the stress of litigation.

But one would have more sympathy for the defendants if they hadn’t been the first to be using litigation to make unreasonable demands; if all Morton and his attorneys wanted, as they claimed, was to clear the painting’s title, he didn’t need to seek punitive damages against Seltzer. The defendants will appeal. (Kathleen Schultz, “Jury awards artist $21 million”, Great Falls Tribune, Feb. 8; Kathleen A. Schultz, “Seltzer jury may receive case today”, Great Falls Tribune, Feb. 4; Kathleen A. Schultz, “Art collector defends position in malicious prosecution trial”, Great Falls Tribune, Feb. 3; Kathleen A. Schultz, “Seltzer outlines personal suffering in civil suit”, Great Falls Tribune, Feb. 2; David Hewett, “Owners Sue Art Expert, Art Expert Sues Owners”, Maine Antique Digest, Oct. 2003).