Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for April, 2005

New post category: “Eat, Drink and Be Merry”

It’s been a while since we’ve added any new topical categories, so we’ve just created one that’s been overdue: Eat Drink and Be Merry, covering lawsuits over bacon cheeseburgers and obesity, booze sales, foreign objects that turn up in the chili or bottled water, calorie-labeling goofs, and, of course, hot coffee spills. We might throw in a few related stories about claims of “addictive” entertainment, too. Several of these topics are obviously closely related to the themes of our ever-popular personal responsibility subpage, which will remain unchanged.

A word about our topical pages (which are a great way to use the site for research, or just browse what we’ve published on a topic you find of interest): our subpage on product liability is a catch-all for cases in that category that don’t fit into the more specific pages covering guns, tobacco, cars, aircraft, microchips, and so forth (and now food and drink). If you’re interested in product liability as a general subject, you should consider visiting these other pages too. And our subpage on environmental law ranges somewhat afield to take in topics that include zoning, landmark preservation, mold claims and (always a favorite) animal rights. The full list of topics can be found along the right column of Overlawyered’s front page, just below the list of archives arranged by month.

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“Which merger deals draw lawsuits?”

…asks Forbes. Its answer: “The ones that are sure to generate big fees, of course.” University of Arizona law professor Elliott Weiss and New York University economist Lawrence White studied lawsuits filed in Delaware Chancery Court over mergers of Delaware companies between 1999 and 2001. Of 564 mergers, 104 attracted lawsuits, and there was a pattern: the deals sued over “were among the largest, often involved all-cash offers and in more than half the cases the acquiring company owned stock in the firm it was buying.” As it happens, “Delaware law subjects cash takeovers and buyouts by controlling shareholders to much tougher scrutiny than most stock-swap mergers” and in such deals acquirers frequently anticipate negotiations with independent directors, and thus enter a somewhat lower initial bid to leave scope for concessions. It is common, however, for the lawyers who sue to wait for the deal price to rise and then claim credit for having made that happen, thus entitling them to compensation: “according to the study, they sought and got fees averaging $1,800 an hour in the cases where the price rose.” The authors “conclude that in many cases lawyers are ‘exploiting their “license to litigate” primarily to enrich themselves.'” (Daniel Fisher, “Free Riders”, Feb. 14).

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Cow-pie bingo scratched

Among the latest recreational activities to fall afoul of liability fears: the cow-pie bingo event at Westby, Wisconsin’s Syttende Mai Festival, an annual celebration of Norwegian folk heritage (pictures). Last year, it seems, a Holstein named Baby managed to escape the designated containment, and although nobody was hurt some kids were scared, causing the organizers to reconsider the whole venture. “In cow pie bingo, a large area is marked as a grid with up to 500 squares, and gamblers bet $2 a square (six for $10) on where Baby will deposit a fresh meadow muffin.” (George Hesselberg, “Hopping Holstein shuts down cow pie bingo”, Wisconsin State Journal, Apr. 24).

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Update: S.F. client-bilker

A judge has sentenced once-prominent San Francisco attorney Nikolai Tehin to 14 years in jail for stealing $2 million in settlement money from clients he represented, including impoverished tenants and brain-damaged infants on whose behalf malpractice suits had been filed (see Jul. 16, 2003). (Jeff Chorney, “Lawyer Who Stole $2M From Clients Draws 14-Year Sentence”, The Recorder, Apr. 20).

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Easy to read, that’s us

Via Prof. Bainbridge (Apr. 22) comes word of an automatic checker that will rate the readability of a website, assigning it scores according to its “fog index”, its reading ease, and the educational level it demands of readers. When we run the current front page of Overlawyered.com through the checker it tells us, among other things, that our average sentence contains 8.24 words, of which 15.48% are of three syllables or more. (The first number seems low; maybe the checker is using a nonstandard definition of “sentence”.) At any rate, our “fog index” stands at 9.49 on a scale on which Time and Newsweek stand at 10 (that is, slightly harder to read than us) and most popular novels score between 8 and 10. On the alternative “Flesch reading ease” measure, on which “Authors are encouraged to aim for a score of approximately 60 to 70,” we come in at 65.29. Finally, on the “Flesch-Kincaid grade level” calculation, we score a 6.20, suggesting that a seventh grader might be capable of following along with the posts here, though we can’t recall hearing from any who do. As a check, we ran the March 2005 archives through and got a slightly more difficult rating: 10.74 fog (comparable to the WSJ), 60.25 reading ease, and a grade level of 7.58. Overall, we come off as easier to read than Prof. Bainbridge himself or the Volokh Conspiracy, but not so easy to read as Glenn Reynolds — no great surprise on either front.

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Update: PETA vs. “Happy Cows” ads

Animal-rights extremist group PETA has failed in its effort to invoke California’s s. 17200 unfair-practices act to suppress a state advertising campaign characterizing California dairy products as coming from “happy cows”. Without comment, the state Supreme Court has denied review of an appeals court decision throwing out the lawsuit, which had held that official government activity (in this case that of the state’s farmer-funded milk advisory board) is not covered by the statute (see Nov. 30, 2004 and Jan. 16, 2005). (Bob Egelko, “State justices refuse PETA a hearing on the life of cows”, San Francisco Chronicle, Apr. 21).

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Update: Blockbuster late fees

To settle litigation filed by the attorneys general of 47 states, the Blockbuster video chain

has agreed to take down the “No Late Fees” signs in its video stores. Customers will continue to pay extra to rent movies for longer than a week — but Blockbuster won’t call that a late fee.

It will be a “restocking” fee or something similar.

The company also agreed to make refunds available for some customers who paid under the earlier policy, and to pay $630,000 to the state AGs for their pains. New Hampshire and Vermont declined to join the action, with the head of consumer protection in New Hampshire explaining that there hadn’t been complaints from his state’s customers; New Jersey continues to pursue its own suit (see Mar. 10). (Michael D. Sorkin, “Blockbuster settles case over signs advertising no late fees”, St. Louis Post-Dispatch, Mar. 30; Peter Lewis, “State settles Blockbuster late-fee allegations”, Seattle Times, Mar. 30; “N.H. opts out of Blockbuster late fees settlement”, Portsmouth Herald News, Mar. 31).

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Newspaper purchase costs juror over $30k

Gerardo N. Lara was convicted by a jury of first-degree murder in the stabbing of his wife, Marissa Lara. But the defense attorney saw one of the jurors buying a newspaper during the trial; at a mistrial hearing, the juror, Lindy L. Heaster, denied the purchase, but a videotape from the 7-11 proved otherwise, and the judge threw out the verdict. Heaster’s been held in contempt for violating the court’s orders to disregard press coverage and lying to the court, and could be socked with the costs of the trial.

While the juror certainly committed contempt and (from the news reports) seems to have committed perjury, I wonder if the mistrial remedy for the defendant is a bit extreme. The April 15 Washington Post Heaster bought had no coverage of the trial. And if Heaster read the April 15 Potomac News coverage of the trial, the only thing she learned was that an argument the defense wanted to make that the judge refused to tell the jury. Should the law recognize the potential for harmless error here? I’ve turned on comments; please keep discussion civil and limited to this topic. (Tara Young, “Indiscretion Gets Juror In Trouble”, Washington Post, Apr. 22; Maria Hegstad, “Judge declares mistrial in Lara case”, Potomac News, Apr. 21; Tara Young, “N.Va. Murder Conviction Erased by Juror Buying Newspaper”, Potomac News, Apr. 21; Rob Seal, “Lara found guilty”, Potomac News, Apr. 16). More discussion: Apr. 25 post.

Read On…

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Breaking news: Finger-pointing III

Anna Ayala was arrested late last night, and San Jose police will hold a press conference at 1 this afternoon to announce charges–bad timing for Wendy’s, since this means that the exoneration from a month of bad publicity from a finger supposedly found in its chili that has substantially hurt its sales in California and Las Vegas will take place in the Friday evening news cycle. Previous entries: Apr. 9 and Apr. 20.

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