The piping plover is a neurotically fragile bird that abandons its low-lying nests on beaches in response to noise, and suffers from being prey for dogs, raccoons, foxes, and skunks, its only defense being relatively ineffective camoflauge. Though the Fish & Wildlife Service under the Reagan, Bush, and Clinton administrations did not believe it necessary to create critical habitats for the thousands of plovers that remain, the Clinton administration eventually settled a lawsuit brought against it by agreeing to establish a critical habitat in 2001. (The efforts may be for naught, since plovers migrate to Canada, and not even Canada provides such dramatic protections for endangered species, much less “threatened” species.) Now, a number of towns up and down the East Coast have been required to cancel their fireworks ceremonies on the grounds that the noise might interfere with the nesting. Jerry Della Femina, the inventor of the “Meow Mix” theme-song used to “torture” Guantanamo prisoners, is especially unhappy that his annual fireworks party has been cancelled, and has been using his advertising wiles to generate publicity on the issue; in response, a local Fish & Wildlife official has threatened him with prison rape, but that hasn’t stopped Della Femina from publishing his recipe for Garlic Piping Plover. (Paul Vitello, “Clash of Beach-Nesting Species: Plover and Human”, NY Times, Jul. 2; Julia C. Mead, “Those Little Birds on the Beach Mean No Fireworks in the Sky”, NY Times, Jun. 23; Kai Ma, “Plovers force cancelation of July 4th fireworks in East Hampton”, Newsday, Jun. 24; Seth Harkness, “Fireworks canceled to keep birds safe”, Portland Press Herald, Jul. 2; Marina McGowan, “Piping Plovers Cancel Fourth of July Fireworks”, Long Island Press, Jul. 3; Kitty Merrill, “Indy Goes Inside: The Great Plover Controversy Of 2005”, The Independent, Jun. 29; Jerry Della Femina, “The Grinch Who Stole The Fourth Of July”, The Independent, Jun. 29). In Stone Harbor, New Jersey, the federal government required dredging to protect the plovers, with a cost to local taxpayers of $3 million. In exchange, nine pairs of plovers were able to establish nests, four of which produced young, and one plover of these young fledged—a three-million dollar bird. (Richard Degener, “Settlement on table in Cape spoils case”, Press of Atlantic City, Mar. 22; DOJ press release, Feb. 12, 2003).
Archive for July, 2005
New York judge thrown off the bench
Brooklyn Surrogate Michael H. Feinberg, elected to the bench in 1996, appointed a law school buddy, Louis R. Rosenthal, counsel to the public administrator, and then rubber-stamped $8.5 million in fees to him without making legally-required findings to justify the large awards—money taken from the estates of those unfortunate enough to die without a will in Brooklyn. The State Commission on Judicial Conduct wasn’t impressed with his excuse that he hadn’t actually read the law he failed to apply. The state’s high court, the Court of Appeals, affirmed his removal from the bench, and there will be a new judge elected, who will have to clean up the messy files left behind. “A probe of 25 files during 2004 found such disarray that [the administrator] closed the books on one dead Brooklyn resident’s estate without distributing 48 U.S. savings bonds. The bonds later showed up in an employee’s desk drawer, the report said.” (John Caher, “Judge Loses Seat After Showing ‘Shocking Disregard’ for Law”, New York Law Journal, Jul. 1 (via Legal Reader); Nancie L. Katz, “News helps get dirty B’klyn judge axed”, NY Daily News, Jun. 30; Nancie L. Katz, “Big mess in B’klyn court for estates”, NY Daily News, Jul. 1; In the Matter of Hon. Michael H. Feinberg (NY Jun. 29, 2005); NYSCJC decision, Feb. 10, 2005).
Perfect 10 Takes On Amazon
We previously covered the litigious pornography company’s similar lawsuit against Google on Nov. 24, complaining about the credulous press coverage. AP repeats its mistakes, but tech magazine Red Herring does a better job. (“Erotica Site Sues Amazon”, Jul. 1).
“He grabbed girl’s arm — now he’s a sex offender”
The judge agreed that 28-year-old Fitzroy Barnaby of Evanston, Ill. probably didn’t have any sexual intention when he grabbed a 14-year-old girl’s arm to chastise her (he says) for walking in front of his car. But unlawful restraint of a minor, the offense of which Barnaby was convicted, automatically qualifies as a sex offense under Illinois law. “Now, [Barnaby] will have to tell local police where he lives and won’t be able to live near a park or school.” “I don’t really see the purpose of registration in this case. I really don’t,” said Cook County judge Patrick Morse. “But I feel that I am constrained by the statute.” (Steve Patterson, Chicago Sun-Times, Jul. 1).
Update: duPont, R.I. settle paint case
Although the giant chemical company refuses to characterize it as a settlement, duPont has agreed to donate $10 million or more toward education, research, and the cost of lead remediation for 600 homes in exchange for being dropped from Rhode Island’s action. Other defendants that remain in the case are Sherwin Williams Co., NL Industries Inc., Atlantic Richfield Co., Millennium Holdings LLC, American Cyanamid Co. and ConAgra Inc. A lawsuit filed by the state’s former attorney general against the manufacturers ended in a hung jury in Providence in 2002; a new trial is set for September. The product has not been sold for interior use in this country in approximately a half century. (“DuPont settles for millions in Rhode Island suit on lead paint”, AP/USA Today, Jun. 30). For our coverage of the case and the controversy generally, see this set of links. Courts have dismissed a number of other lawsuits seeking to impose financial responsibility for lead-paint-related woes on paint and pigment makers, including suits filed by the cities of Chicago (see Oct. 13, 2003) and Milwaukee (see Aug. 3, 2003). Update: Point of Law, Sept. 13, 2006 (controversy over donations).
Our sixth anniversary
Incidentally, Overlawyered.com was launched Jul. 1, 1999, which makes today our sixth anniversary (or should it be birthday?).
Broadcast appearances
I’m scheduled to join a reporter and anchor in the studios of New York’s WCBS-Channel 2 this afternoon to discuss the retirement of Justice Sandra Day O’Connor; look for me sometime in the 5-to-6 p.m. slot.
More (7:30 p.m. Eastern): I’ll be on WCBS-TV again tomorrow between 9 and 10 a.m. for a second appearance. And (updated) on Monday morning I did two Texas radio phone interviews, including KTSA (San Antonio) with Steve Gehrlein, on the battle over Justice O’Connor’s seat, and KOLE (Beaumont), on the litigation explosion. P.S. on WCBS I mentioned Judge Edith Jones. It’s fun to be a mentioner!
How Stella Lost Her Groove And $35,000 Or More In A Contra Costa County Superior Court Hearing
Terry McMillan, whose affair with a man half her age was dramatized her novel “When Stella Got Her Groove Back,” might have thought her prenuptial agreement, negotiated after five months with his attorneys, protected her against gold-digging, but her now ex-husband is challenging the validity of it in a threatened bid for the millions of dollars she’s earned as a writer during their six-year marriage, and has already punished her failure to give into the extortion by submitting embarrassing court filings, which the press has been happy to publicize. (And not only is he young and good-looking, but the Diablo Valley College drop-out knows how to use terms like “Hobson’s choice” and “de minimus [sic]” in a sworn affidavit!) To add insult to injury, a judge has ordered her to pay her ex-husband’s attorney’s fees of $25,000 so he can litigate the matter against her. (Phillip Matier, Andrew Ross, “Epilogue for ‘Stella’ author: a messy divorce”, SF Chronicle, Jun. 26; Ann Gerhart, “Terry McMillan’s Epilogue to ‘Groove’ Affair”, Washington Post, Jun. 29 (via Weiner)).
LawLimits.com
A new blog from Jeffrey Lewis (also of Southern California Law Blog). Its mission: “exploring topics of malicious prosecution, abuse of process, anti-SLAPP procedures, legal malpractice and other areas around the boundaries of the practice of law”.
“Merck on trial”
Writes Larry Ribstein (Jun. 24): “It’s bad enough the corporate fraud trials are about resentment, but now guilt by resentment seems to be spreading to products liability cases.” In a Vioxx trial expected to begin next month in South Texas, according to a WSJ report, folksy plaintiff’s lawyer Mark Lanier is planning to lay on the exec-bashing with a trowel while going light on such matters as the explication of statistical significance in side-effect data. See Barbara Martinez, Lawyer Outlines Attack on Merck For Vioxx Trial”, W$J, Jun. 24. More: Point of Law, Feb. 8. Further coverage: Jul. 11, Jul. 15, Jul. 29, Aug. 19 ($253 million jury verdict).