Jerrold Kaplan, an inventor of an early handwriting recognition device for computers in the late 80’s, has filed an anti-trust lawsuit against Microsoft. The suit alleges that Microsoft’s Bill Gates actively sought to prevent other companies from doing business with Kaplan in order to eliminate Kaplan’s company. (“Computing pioneer says Microsoft conspired to ‘kill’ his company,” Greg Sandolval, AP News/North County Times, Jul. 5, 2005).
Archive for July, 2005
Jim Bohannon Show tonight
I’m scheduled to appear as a guest on the very popular Westwood One radio show tonight at 11 p.m. Eastern (refeeds for West Coast), discussing the coming Supreme Court battle.
New guestblogger Jeff Lewis
We’re pleased to announce that Jeff Lewis, who publishes the well-established Southern California Law Blog (cited in this space numerous times) and the promising new LawLimits (on which see Jul. 1), has agreed to join us this week as a guestblogger.
Deep Impact Update
With yesterday’s successful crash into a comet by NASA’s “Deep Impact” probe, the press is remembering a Russian astrologer’s nine-billion-ruble lawsuit in Moscow court claiming that the mission will “deform her horoscope.” (She claims it’s not about the money.)
We covered this on May 19, and the press reports that the case is scheduled for trial July 28. NASA representatives did not attend a July 4 hearing. Russian law supposedly allows “plaintiffs to recover an amount equal to the cost of the undertaking that allegedly does the harm.” (“Lawsuit aims to halt comet bomb”, Baltimore Sun, Jun. 27; AP, Jul. 5; Itar-TASS, Jul. 4).
Welcome Mona Charen readers
She gives both me and this website a kind mention in her column (“Stupid lawyer tricks”, syndicated/Jewish World Review, Jul. 1). The case of Carl Murphy, the young criminal trespasser in England, can be found here. Other cases mentioned (yes, we had them) include: drunk passed out in snowbank; Milwaukee volunteer; fen-phen indictments; train crash worsened his drinking.
In other publicity, columnist James Pinkerton quotes me on a New York federal judge’s ruling on panhandling which is likely to lead to the enrichment of some fairly unsavory characters (“Limousine Liberals and Crime on the Rise”, syndicated/Newsday, Jun. 14, reprinted at New America Foundation). State, Court and County Law Libraries News, newsletter of a subgroup of the American Association of Law Libraries, includes us on a short list of legal weblogs “you might want to check out” (Winter 2005, p. 21, PDF). And we figure in the Thomas-Jefferson-themed Blawg Review #13, this week’s assemblage of posts worth noting from law-related weblogs. (bumped Tues. morning).
Another thought on the Dick Schaap lawsuit
Walter’s entry below on the Dick Schaap verdict misses a fascinating part of the case. While Schaap’s family lawyer at trial blamed three doctors for failing to diagnose lung damage from use of the medicine amiodarone (and the jury mysteriously held one doctor negligent while exonerating the other two), just two years earlier, the Schaap family and its lawyer had a different story to tell. Then, the family announced, Dick Schaap was killed because of an infection caused by the hospital’s lack of adequate hygiene standards. Unfortunately for the Schaaps, the theory didn’t stand up and the hospital was dismissed from the case, but not before ABC Primetime Live credulously reported in 2003 the supposed scandal of the hospital’s failure to prevent a “velociraptor”-like infection.
It was a case study of what can go wrong in American health care today, said the family’s lawyer, Tom Moore.
“If you ever speak to a surgeon, ‘Doc, what can I expect with my hip replacement?’ — at the top of the list is infection, post-operative infection,” he said.
(The CBS Early Show repeated the story a few days later: ask yourself if you could predict from that news coverage that the hospital would be vindicated before trial.) Without being able to tell the jury about germs that act like deadly dinosaurs, Moore invented a new theory and settled for putting Billy Crystal on the stand to wow the jury with tales of Schaap’s generosity and talent. The defense lawyer, Mark Aaronson, seems to have put his finger on the matter:
“Is everybody who dies in a hospital the victim of medical negligence?” he asked rhetorically. “So ultimately, a theory had to be concocted in front of a jury in order for a claim of damages to be made.”
(Andrew Jacobs, “Jury Deliberates Lawsuit Over Death of Dick Schaap”, NY Times, Jun. 23).
Says he owns “stealth”, “hoax”, “chutzpah”
Abuses of trademark law:
Over the last few years, Leo Stoller has written dozens of letters to companies and organizations and individuals stating that he owns the trademark to “stealth.” He has threatened to sue people who have used the word without his permission. In some cases, he has offered to drop objections in exchange for thousands of dollars. And in a few of those instances, people or companies have paid up….
Mr. Stoller owns and runs a company called Rentamark.com, which offers, among other things, advice on sending cease-and-desist letters and Mr. Stoller’s services as an expert witness in trademark trials. Through Rentamark, Mr. Stoller offers licensing agreements for other words he says he owns and controls, such as bootlegger, hoax and chutzpah, and sells t-shirts and other merchandise through what the Web site calls its “stealth mall.”
Stanford lawprof Mark A. Lemley says Mr. Stoller’s sweeping claims are “based on a misunderstanding of how trademark law works” and that courts would be unlikely to assign liability unless a rival company’s use of a word led to consumer confusion with some product or service offered by his enterprises. However, many companies he has targeted are reluctant to incur the legal fees involved in defending their use of the words; one of his companies appeared before one federal judge in Chicago 33 times between 1995 and 1997 alone to assert its rights. (Colin Moynihan, “He Says He Owns the Word ‘Stealth’ (Actually, He Claims ‘Chutzpah,’ Too)”, New York Times, Jul. 4).
Nocera on Lerach
Via Kirkendall, Joseph Nocera profiles the legal career of William Lerach (Jun. 28, Jun. 27). (“The Lawyer Companies Love To Hate”, NY Times, Jul. 2). Larry Ribstein correctly quibbles:
[The 1995 Private Securities Litigation Reform Act] was not just, and maybe not even mostly, intended to make securities cases harder to “win,” as Nocera said, but harder to bring. This is an important distinction, since a main problem with class actions is the extent they are used to bludgeon (or, less charitably, blackmail) firms into settling cases that probably can’t be won, but that can cause plenty of trouble along the way. The plaintiff’s lawyer in effect “wins” the case by surviving a motion to dismiss, which is harder to do post PSLRA. Moreover, even apart from the motion, the case is likely to have more weight if big shareholders, rather than the lawyers and their stable of career suers, are behind it.
This distinction between eliminating nuisance cases and hobbling good cases is a big reason why Lerach and others are flat wrong about the effect of the PSLRA in inviting Enron.
Moreover, Nocera’s interview with Lerach makes clear why Lerach doesn’t like the Act — whatever his success post-PSLRA, he likes being able to bring weak cases. Lerach calls it his “business model.” He says it’s useful in training lawyers. One can’t tell from newspaper page how fully Lerach’s tongue was inserted in his cheek when he came up with that one.
See also Peter Burrows, “Payback Time for Lerach?”, Business Week, Jun. 30 (via Schaeffer).
Not about the money: a continuing series
It wasn’t about the money, which doesn’t keep the lawyer from complaining that the award was too low:
A jury found a cardiologist at Lenox Hill Hospital liable yesterday for the death of the sports journalist Dick Schaap after hip replacement surgery and awarded his family $1.95 million in compensatory damages….
His family had sought $21 million.
“This case was never about the money,” his widow, Trish, said after the verdict….
[Attorney Thomas Moore, who represents the family of the 67-year-old Schaap], also expressed some disappointment with the jury’s monetary award, saying it failed to consider Mr. Schaap’s future earnings. “He was at the zenith of his career when he died,” he said.
A lawyer for the defendant cardiologist, meanwhile, takes strenuous exception to the verdict against his client, contending it was based on erroneous science. (Andrew Jacobs, “Jury Awards Family $1.95 Million in Dick Schaap’s Death”, New York Times, Jul. 2). More: don’t miss Ted’s comments above, and welcome KevinMD readers.
“For Potential Juror, ‘Honest’ Response to Judge Backfires”
The story seems straightforward enough:
It may have been an inelegant description, but Stephen Caruso said he thought he was just being honest on Thursday afternoon when a judge asked if he could be fair and impartial toward a defendant on trial for kidnapping. No, Mr. Caruso said during the voir dire portion of jury selection. “I have been held up three times at gunpoint,” he said according to transcripts, adding, “I am already looking at him; I think he is a scumbag.”
Caruso now faces criminal contempt charges from the angry Judge William A. Wetzel of Manhattan Criminal Court, and the Times coverage is disapproving. (Andrew Jacobs, NY Times, Jul. 2 (via Betsy Newmark)). However, AP reports that the judge protests that Caruso “was screaming at the top of his lungs,” and Newsday notes that Caruso also gave a smart-aleck response when asked his profession, so there may be more to the story than the recounting by Caruso’s defense attorney.