We’ve earlier reported on the threat to the free market posed by social-conservative trial-lawyers seeking to hijack the Republican party. (See also this National Review article on the Astroturf “Center for a Just Society” that quotes me and Walter.) There’s now an organization, Texas Shark Watch (via Childs), tracking the trend in Texas, and demanding that Texas Republicans sign a pledge not to take trial-lawyer money. And they also blog. (Update: May 21).
Archive for 2006
Update: Microsoft fees in Calif.
A state appeals court has approved a $1.1 billion settlement in the California consumer class action case against Microsoft, one of many parallel consumer antitrust class actions against the tech giant filed in states across the country. Plaintiffs lawyers at Townsend and Townsend and Crew and other firms are likely to share roughly $101 million in fees for representing software buyers in the state; class members were offered vouchers good on future purchases, which is not how the lawyers are taking their pay, of course. (Marie-Anne Hogarth, “Law Firms Closer to Raking In $101M in Fees in Microsoft Case”, The Recorder, Jan. 12). Oh well, at least it doesn’t sound as bad as the Minnesota settlement.
Update: lawyers’ “pit bull” ads
The Florida Supreme Court has ruled (PDF) that the law firm of Pape & Chandler violated the state’s Rules of Professional Conduct for lawyers by marketing itself with the image of a spike-collared canine and the phone number 1-800-PIT-BULL (see Aug. 23, Sept. 19, 2004). The law firm says it is considering an appeal to the U.S. Supreme Court, citing precedents of First Amendment protection for lawyers’ advertising. (David L. Hudson, Jr., “Florida Muzzles Pit Bull Ads”, ABA Journal eReport, Dec. 2). Commentary: Capt. Fogg, D. McGowan, Giacalone, Schaeffer.
One QC’s view
Distinguished British lawyer Arthur Marriott QC, as quoted by Richard Ackland in the Sydney Morning Herald, and perhaps not entirely irrelevant to the situation in some other countries too:
The great ideas to assist the poor and bring about access to justice, such as the introduction of legal aid, have been met with an explosion in the number of lawyers. Other schemes such as no win-no fees encourage predatory lawyering. The payment of lawyers on a time basis does not provide an incentive for the efficient conduct of trials. And finally, efforts to reform the litigation system have systematically been sabotaged and wrecked by lawyers. As Napoleon said, the administration of justice is too important to be left to lawyers.
(“The rise and rise of the predatory lawyer”, Nov. 18).
Newspaper circulation scandal: lawyers get $40K, clients $15K
“The Minneapolis-based Star Tribune has agreed to pay $55,000 to end a lawsuit accusing it of cheating advertisers by inflating circulation numbers, according to a lawyer for two plaintiffs. The settlement agreement says that the two plaintiffs, Masterson Personnel and Alternative Staffing, will receive $15,000 in rebates from the newspaper for advertising in 2007. The bulk of the settlement, up to $40,000, goes to attorneys representing the plaintiffs.” (Tim Huber, “Star Tribune to pay $55,000 to settle circulation lawsuit”, St. Paul Pioneer Press, Dec. 20)(via Romenesko).
Update: the flying shrimp of death
The trial in the $10 million wrongful-death lawsuit against Benihana over a hibachi chef’s tossed shrimp that allegedly killed a man ten months later has begun. (Hat-tip: H.G.) Newsday tells of plaintiffs’ attorney Andre Ferenzo depicting a chilling scene: “We’re talking about pieces of cooked food thrown directly at people who are eating dinner in the restaurant!” Ferenzo even understands the dramatic importance of the Rule of Three, as he describes two previous shrimp tosses before the particularly fatal one that he blames for Jerry Colaitis’s death. (Caolaitis actually died of sepsis ten months later, and five months after the neck surgery his family claims was caused by dodging shrimp.) (Ann Givens, “Benihana shrimp toss cited in death”, Jan. 11).
We first reported on the case Nov. 23, 2004.
Chat room harassment
George Gillespie of Medina County, Ohio, is suing America Online for allegedly failing to do anything about teasing, humiliation and abuse he endured in one of the online service’s chat rooms. His suit also names individual defendants who live in Oregon and Alabama; Gillespie alleges that the Alabama man actually traveled to Ohio to further his campaign of harassment. Attorney Mark Tarallo of Holland & Knight in Boston believes the plaintiff “will face a tough battle, particularly in the fight with AOL.” (Tresa Baldas, “Chat Room Chatter Draws Lawsuit”, National Law Journal, Jan. 6; Julie Wallace, “Internet, civil liberties collide in unique lawsuit”, Akron Beacon Journal, Dec. 19).
“B.C. cat owner sues over deadly coyote attack”
Canada: “A Vancouver woman is suing the city and the B.C. government for allegedly failing to keep the streets safe after her pet cat was killed by two coyotes….In a statement of claim filed in B.C. Supreme Court, [Judith] Webster says she’s suffered and continues to suffer from post-traumatic stress and/or adjustment disorder, loss of enjoyment of life, and loss of past and future earnings.” (CanWest/Vancouver Province/Saskatoon Star-Phoenix, Jan. 4).
A Million Little Plaintiffs
An acquaintance—whose self-accounts have appeared in several books, radio stories, prominent magazines and web publications—published a short story in a “non-fiction” anthology. I was familiar with the underlying events and asked her about it, since, even aside from unacknowledged name-changes, it plainly had invented and exaggerated elements, and a twisted chronology meant to fit a story arc. “Of course it does. It’s creative non-fiction,” she responded in exasperation, introducing me to a new definition of “non-fiction” that I hadn’t previously been aware of.
So the James Frey scandal (or a smaller one involving the Times’ Modern Love section) doesn’t surprise me in the slightest; I’ve just come to assume that anything published under the memoir label in the twenty-first century is the modern-day equivalent of a Philip Roth novel that isn’t well-written enough to be successfully marketed as fiction.
The question is what will a court do when confronted with the inevitable free-riding class action, claiming that the publisher has committed consumer fraud, and demanding the right for every book owner to get a full refund and punitive damages (and, of course, a taste for the attorneys who took the entrepreneurial risk of typing up a summary of The Smoking Gun story and filing it in court), before settling for 50-cent coupons, a donation of remaindered books to a “Books for Addicts” program, and a multi-million-dollar attorney fee. Will there be a ruling that “non-fiction” memoirs that aren’t require labelling? If so, what are the First Amendment implications for other non-fiction books? A ruling that doesn’t provide a clear swath of protection for publishers could essentially abolish memoirs or first-person reporting, because a ruling that establishes any sort of rule calling Frey’s book consumer fraud (or even just potentially actionable consumer fraud) could encourage other attempts to sue other successful memoir-publishers for less egregious exaggerations. (This problem earlier arose with the Beardstown Ladies (Nov. 16, 1999), and the California Court of Appeal was far from sympathetic to the First Amendment issues.)
Random House appears to be attempting to pre-empt litigation by offering refunds to anyone who asks, which will surely be a smaller percentage of customers than a hired plaintiffs’ damages expert would testify to.
Prawfsblawg asks about Frey’s liability to the publisher, which seems to miss the point: what’s the publisher’s theory of damages? “You sold us a book that made us a lot of money”?
Also of interest to Overlawyered readers is the bullying letter sent by Frey’s lawyer to The Smoking Gun to try to keep them from publishing their findings. We may have our own story of bullying letters to tell shortly.
(And welcome Wall Street Journal and Malkin readers; do check out our main page and sister site.)
Indian land claims: give us Denver
We’ve covered this set of issues numerous times in the past, but here are some fresh details:
When the Indian Gaming Regulatory Act became law in 1988, no one imagined that it would become a Trojan Horse that would deliver Las Vegas-style casino gambling into communities across America. Having saturated local markets, many tribes are now seeking to acquire land near other, sometimes-distant, population centers, and converting it to “sovereign” territory, in an effort to shoehorn casinos into areas where they’re often not wanted by local populations. Once land becomes part of a reservation, it typically becomes exempt from local taxes, state labor laws, municipal ordinances, zoning restrictions and environmental review. In one of the most egregious cases, in 2004, the Cheyenne-Arapahoe Tribes of Oklahoma filed a 27 million acre land claim which included all of Denver and Colorado Springs, but offered to drop it in exchange for the approval of a Las Vegas-style casino near Denver Airport.
“These efforts are being funded by ‘shadowy’ developers who underwrite the litigation expenses, lobbyist fees and even the cost of land in exchange for a cut of the profits,” James T. Martin, the executive director of the United South and Eastern Tribes, told the Senate Committee on Indian Affairs in May 2005. “If even one of these deals is approved, the floodgates for this kind of ‘reservation shopping’ will open throughout the country.” (Mr. Martin, it should be said, is no opponent of gambling: his organization includes tribes whose main goal is to thwart new competition against their own casinos.)
(Fergus M. Bordewich, “The Least Transparent Industry in America”, Wall Street Journal, Jan. 5)(subscriber-only).