I was getting ready to turn thumbs down on the BlogAd in the right column, the one that looks like it was placed by a class action lawyer soliciting clients. (Reader comments welcome: should we turn down ads promoting litigation?) Then I took a closer look at it…
Update Aug. 3: much more on the ad, from the WSJ.
Now that litigators from the National Resources Defense Council have won a temporary restraining order from a federal judge under the terms of the National Environmental Policy Act, the U.S. Navy says it will employ less effective passive sonar, rather than active sonar, in exercises off Hawaii intended to simulate anti-submarine warfare. The NRDC complained that when the Department of Defense granted the Navy a temporary exemption from the Marine Mammals Protection Act for purposes of the exercises, it was trying to evade being sued. (” Whale lawsuit forces Navy to change sonar plan”, AP/CNN, Jul. 5). “The Navy, in a statement after the ruling, said sonar was ‘the only effective means we have to detect and quickly target hostile submarines and keep sea lanes open,’ and that sonar operators needed training at sea ‘to protect our nation’s ships, shores and allies.’…. The sonar use is meant to test whether quiet, diesel-powered submarines like those used by Iran, North Korea and China can be detected.” (Tony Perry, “Judge Temporarily Bars Navy From Using Sonar Said to Harm Whales”, Los Angeles Times, Jul. 4) “The Navy says it must practice hunting submarines near the Hawaiian islands because that’s the type of environment where it most likely will face an emerging threat of submarine warfare.” (AP/Houston Chronicle, Jul. 4)(& welcome readers from Michelle Malkin, who provides more background on the controversy).
Each year Gerald Skoning, a prominent employment lawyer at Chicago’s Seyfarth Shaw, assembles his pick of the ten most bizarre employment cases of the previous year, and each year the National Law Journal publishes the roundup but omits to put it online. So I’ll just quote my two personal favorites from the latest list (“Last year’s bizarre cases”, Mar. 20):
…A federal district court in Oklahoma has dismissed a 70-year-old office worker’s claim that her employer discriminated against her because she was not fired. Mary Wyatt, who had worked for Occidental Petroleum for more than 24 years, argued that she should have been fired and awarded a severance package. The court disagreed, reasoning that, “Plaintiff has not suffered an adverse employment action by the continuation of her employment.” I commend the court for its eminently sensible recognition that the continued opportunity to earn a living isn’t discrimination.
…A federal court in Pennsylvania has ruled that a weight loss center did not violate the Americans with Disabilities Act by refusing to hire a salesman who weighed 350 pounds because it was concerned his appearance was inconsistent with the sale of its products. The court dismissed Bob Goodman’s claim, stating: “The mere fact that Defendant was aware of Plaintiff’s weight and rejected [him] for fear that his appearance did not accord with the company image was not improper.” I salute this weighty contribution to commonsense jurisprudence.
For another you-should-have-fired-me case, see May 11, 2004. For coverage of previous Skoning roundups, see May 12, 2005 and links from there.
The website invites women to post negative “reviews” warning others against men who are poor dating material. Now it’s being sued by Pittsburgh criminal defense lawyer Todd Hollis, who says false and defamatory material about himself appeared on the site. (Moustafa Ayad, “City lawyer sues ‘don’t date him’ Web site”, Pittsburgh Post-Gazette, Jun. 30; Carl Jones, “Scorned Attorney Sues Kiss-and-Tell Web Site”, Miami Daily Business Review, Jul. 5; Robert Ambrogi, Legal Blog Watch, Jun. 30; Lattman, Jul. 3; Evan Brown, Jul. 1.
Peter Nordberg points us to an unpublished Fourth Circuit opinion upholding an expert’s testimony as to damages. Mary Lafontaine Parmenter’s investment advisor moved her $730,000 account into stock mutual funds in late 1999, increasing its value to $1.1 million at the height of the stock market bubble in 2000 (even as she was withdrawing $6000/month), whereupon it declined in value to $342 thousand. The expert argued that the most serious breach of the investment advisor’s duties came when he failed to consolidate the gains, and that losses should be counted from the peak of the account’s value. I don’t doubt that the investment advisor could have been found to be inappropriately aggressively investing Parmenter’s money; but if he was doing so inappropriately in April 2000, he was doing so inappropriately in 1999, when he made her half a million dollars; there’s something unseemly about the calculation of loss. Hindsight is nice: if the expert, F. John Hermann, could accurately forecast account value peaks, he’d be a billionaire rather than an expert-for-hire.
The opinion also reveals that the plaintiff’s attorney successfully tricked the defendant into conceding that an accurate SEC disclosure form that he had filed was inaccurate; the appeals court offered no relief because of lack of evidence that the tactic was intentional.
From “Decision of the Day: A daily summary of the best (and worst) of federal appellate decisions” (Jul. 3):
Money Can’t Buy Love, Or Permission to Land Your Personal Jet
Tutor-Saliba Corp. v. Hailey, 04-34524 [PDF](9th Cir., July 3, 2006)Poor Ron Tutor. All he wanted to do is land his personal jet at an airport in Hailey, Idaho. The airport wouldn’t let him due to weight restrictions, so he was forced to fly in a less comfortable private jet. As a result, Tutor’s vacation at his Sun Valley home got off to a very bad start. Tutor sued the airport and the City of Hailey on various grounds, including under 42 U.S.C. § 1983 for allegedly violating his rights to due process, equal protection, and interstate travel. The district court predictably found these claims were frivolous and awarded partial fees to the defendants, totaling $88,000 (in addition to costs of around $70,000). On appeal, the Ninth affirms the decision to award fees but remands to the district court for recalculation. Am I the only one who hopes the district court finds a way to increase the fee award on remand?
“Decision of the Day”, incidentally, was launched by “Robert Loblaw” in October, and can be found here.
P.S.: In email, Prof. Childs advises that site author “Robert Loblaw” quite possibly may have borrowed that screen name from a similarly named lawyer-character on “Arrested Development”, who can be viewed here.
Kevin M.D. takes ATLA president Ken Suggs to task for the aggressive claim that defensive medicine doesn’t exist. Speaking of hoaxes, Suggs also repeats the long-refuted myth that insurance companies are to blame for higher malpractice premiums. At this rate, ATLA needs more than a name change.
That’s what plaintiffs’ lawyers will receive for a federal class action that was dismissed on summary judgment for lack of evidence. The Eleventh Circuit had previously pooh-poohed defendants’ claims that the potentially bankrupting scope of the class action would force them into extortionate settlements. For refusing to pay protection money, United Healthcare and Coventry avoided paying millions of dollars in settlement money, but still had to pay their own attorneys and experts millions—and faced substantial risk that a court and a jury would get the decision wrong. Details at today’s Point of Law.
“A prominent civil rights attorney who was indicted this month on tax charges has sued a retired police detective for writing a letter that expressed ‘glee’ at the news. Stephen Yagman claims in the suit filed Wednesday that the three-paragraph letter he received from Jerry Le Frois caused him ‘extreme emotional distress.’ Le Frois’ June 23 letter says he felt ‘glee and profound satisfaction’ when he learned that Yagman had been charged earlier this month in a 19-count federal indictment. Le Frois identified himself as a former member of the Los Angeles Police Department’s Special Investigations Section, which was a frequent target of Yagman’s civil rights suits.” (“Attorney sues former L.A. cop who expressed ‘glee’ he was indicted”, AP/Sacramento Bee, Jun. 29). More watch-what-you-say-about-lawyers posts: Apr. 18 and links from there.
When workers exhibit this malady — roughly definable as losing their temper or blowing their stack to a pathological degree — are employers obliged to accommodate them under the Americans with Disabilities Act? (Jon Coppelman, Workers Comp Insider, Jun. 14).