Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for April, 2006

“Drunk driver sues truck maker”

By reader acclaim: an FBI agent who was pulled unconscious from his burning truck with blood alcohol level of 0.306, and subsequently pleaded guilty to drunken driving, “has sued the maker of his pickup because it caught fire after he passed out behind the wheel.” The lawsuit, against General Motors and dealership Bill Heard Chevrolet, says Clymer “somehow lost consciousness” — possibly the empty bottle of Captain Morgan Rum found on the passenger seat had something to do with that? — and that while he lay there with the engine running the 2004 Chevy Silverado “somehow” began to give off smoke from some sort of combustion, which may or may not be code for “theory to be filled in later”.

At sentencing in November — he drew a suspended 30-day jail term and 48 hours community service — “Clymer’s lawyer said his client wanted to take responsibility for his actions.” (Brian Haynes, Las Vegas Review-Journal, Apr. 14).

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Jack Thompson update: Florida bar latest target

Overlawyered favorite Jack Thompson has followed through his threat to sue the Florida Bar for daring to investigate him for ethical violations. He also complained to the interim U.S. Attorney, who punted to the FBI, which will likely give the complaint the sound ignoring it deserves. The Daily Business Review story for some reason refers to the Alabama suit against video game “Grand Theft Auto,” which we had previously reported Jack Thompson had quit. (Carl Jones, “Anti-Porn Crusader Sues Over Bar Probe”, Daily Business Review, Apr. 14).

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Western Digital hard drive settlement

Two readers have written in to call attention to the terms of a settlement by Western Digital of a class action over the disparity between the announced size of its hard drives and the amount that is usable (settlement notice/FAQs). Reader Bill Evans says the settlement will “affect only aftermarket drives, class members to get $7.50 for each drive and will be able to download backup software. Lawyers get $485,000 plus $15,000 for expenses.”

Reader Mickey Ferguson writes:

Some months ago I bought a Western Digital hard drive. I now see that a class action suit was brought against WD, claiming that they misrepresented their drive capacities. What was the remedy? They offered me software – EMC Dantz Retrospect Express version 7.0 for Windows users and version 6.1 for Mac users – for which I have no use or interest. I have much better backup software that I’ve already purchased. Plus, it has been reported in various locations on the network to be incompatible with Microsoft Windows .NET 2.0 framework, a common component in many recent software programs.

There are no other remedies. Either I take the software, which has very little commercial value and none to me personally, or I write a letter to the court, voicing my concerns above, that will immediately be trampled by both plaintiff and defense attorneys, who both want the settlement to go through because the settlement essentially costs WD very little (useless software that they OEM anyway), and the plaintiff attorneys get their percentage of the settlement. As usual, the plaintiff attorneys make huge sums of money, and the actual victims get nothing of any particular value.

P.S. Just to be clear, I don’t feel like I’ve been harmed in any way, nor do I feel entitled to any settlement. I knew ahead of time exactly the game they play. All drive manufacturers have played the game, and this is just a way for an attorney to make a lot of money over nothing. If it were my preference, I’d rather the judge throw the entire suit out and sanction the lawyers for a frivolous lawsuit, but I know that would never happen, and frankly, there are some people out there who don’t know the difference between 1 GB and 1 billion bytes, to whom there is a claim of (very slight) harm.

Update: Jul. 3.

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“Eastern Law Firms Roll the Dice on Indian Law”

Tribal land claims are getting to be big business (see Jan. 12, etc.), and prominent law firms including Philadelphia’s Cozen O’Connor and Roseland, N.J.’s Lowenstein Sandler are among those lining up to assist Indian tribes (and their wealthy non-Indian backers) in filing lawsuits against hapless landowners as leverage for casino schemes. And here’s a choice quote from Robert Odawi Porter, director of the Syracuse University Center for Indigenous Law, Governance and Citizenship:

In cases where land-claim suits are funded by outsiders, the tribe is usually a passive participant in the litigation, says Porter. Such arrangements are permitted under the Indian Gaming Regulatory Act of 1988, which gives states authority to negotiate revenue-sharing agreements with tribal casinos.

“Everything is dictated by the developer — I call it the ‘sit back and take a check approach,'” Porter says.

(Charles Toutant, New Jersey Law Journal/Law.com, Mar. 20).

Also, updates: in late 2004 a federal court granted defendants’ motion to dismiss the Delaware Indians’ claim to land in the Allentown, Pa. area (Northampton County) including Binney & Smith’s Crayola factory (PDF, at Indianz.com)(see Feb. 9, 2004). And, alas, none other than the Bush Justice Department has weighed in with a petition for certiorari urging the Supreme Court to overturn a Second Circuit panel’s landmark ruling (see Jul. 29, 2005) which threw out the Cayugas’ lawsuit as not pressed in a timely enough way, a ruling which (if it stands) would cast doubt on the validity of of most of the new wave of Indian land litigation.

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Praising God for supervisor’s death

A Florida federal court has ruled that it’s not protected speech under religious discrimination law, according to Lou Michels at Suits in the Workplace (Apr. 5; West v. Shands Hospital & Clinics, Inc., N.D. Fla.) From Michels’s summary of the case:

The plaintiff, who had many difficulties with her supervisor, began telling her coworkers that the supervisor’s stroke was a sign of God’s “wrath” and an indication of Divine judgment. When the supervisor died, the employee noted that God’s vengeance was served and “victory is mine” to her coworkers. Her activities caused a major disruption in the office, with some shocked employees unable to work as a result of the Plaintiff’s celebration. The plaintiff was subsequently terminated for her conduct, and sued the hospital for race and religious discrimination under Title VII.

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Copyright protection for fashion?

The Council of Fashion Designers of America is pushing legislation slated for introduction by Rep. Robert Goodlatte (R-Va.) that would allow fashion innovators to sue competitors who knock off their distinctive look (as distinct from passing off goods under a false trademark, which is already uncontroversially actionable). What next — copyright protection for novel hairstyles? Julian Sanchez at Reason “Hit and Run” comments (Mar. 30; Eric Wilson, “O.K., Knockoffs, This Is War”, New York Times, Mar. 30). See Feb. 27.

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