Archive for 2006

Justinian Lane: reform supporter?

Until now, we’ve ignored a small left-wing think-tank’s admitted attempt to create a Bizarro-world version of Overlawyered. The writers are a recent college graduate and a recent law-school graduate who don’t appear to have actually read anything reformers write in support of reform. (For example, one post links to Overlawyered when defending the infamous McDonald’s coffee lawsuit, but fails to address any of Overlawyered’s arguments for why the McDonald’s coffee case is meritless, and simply repeats ATLA propaganda that Overlawyered refuted.) The blog has consisted mostly of thoughtless regurgitation of trial-lawyer talking points; when original analysis is attempted, it rises to the level of self-parody, such as an analysis of Leonard v. Nationwide (see POL Sep. 7 and links therein) that ignores the language of the insurance policy, the relevant Mississippi precedent, the existing discussion in the blogosphere, and any semblance of public policy rationalization in lieu of a Wikipedia definition to argue that the decision (and the defendant) are racist because some African-American plaintiffs might lose as a result.

Another such post is Justinian Lane’s “The Myth of the Frivolous Lawsuit.” The standard trial-lawyer talking point on such issues is to redefine “frivolous lawsuit” to consist of an exceedingly narrow subset of what it is laypeople are talking about when using the term “frivolous lawsuits,” note that the legal system has some mechanisms to address this narrow subset of cases, and then conclude that there’s no problem and thus no need for reform. (Or, as per John Edwards, announce Potemkin legislation to tackle this artificially constrained set of “frivolous lawsuits” that does nothing to actually address the problems of the tort system.) But Lane, perhaps because of his unfamiliarity with the legal system, bites off more than he can chew and inadvertently proves the reformers’ point.

Read On…

One year for mouse-in-soup scam

Ricky Lee Patterson had been seeking a $500,000 settlement from Cracker Barrel restaurant. “Prosecutors brought charges after an examination of the mouse found that it died of a fractured skull, had no soup in its lungs and had not been cooked – all of which suggested the rodent was dropped into the customer’s soup after it had died.” (AP, Sep. 14).

Sacked for on-air threats, radio host wants $10M

“A morning radio host fired after he threatened the wife and young daughter of a rival during on-air rants has sued his former employer for breach of contract, alleging his comments did not breach acceptable decency standards.” Troi Torain, who broadcast under the name “Star”, was fired by Clear Channel’s Power 105 and later arrested for threatening to commit grotesque acts of abuse upon the 4-year-old daughter of a rival DJ, Raashuan Casey. A judge dismissed the charges on condition that Torain stay out of trouble for six months. His new suit says the episode wasn’t significant enough to warrant his dismissal; $10 million would help make things better. (Joshua Rhett Miller, “Star on attack with Clear Channel suit”, New York Metro, Sept. 14). More: Rafer Guzman, “Star: Notoriety good for business”, Newsday, Aug. 30.

Ivied halls, defended by lawyer phalanxes

“Large universities now employ the equivalents of small law firms on staff, and it’s worth pondering what this Perry Masonification of our schools says about how they operate. …As Ed Stoner, a retired Pittsburgh lawyer who, over a 30-year career, represented numerous schools in Western Pennsylvania, told me: ‘People [today] are much less inclined to think, “I wouldn’t sue the university, it’d be like suing my mother.” People tend to look at the university as one more institution that might have a lot of money.'” (Mark Oppenheimer, “College Goes to Court”, OpinionJournal, Jul. 14).

Update: “Entrepreneur” trademark fight

Back in a post of Aug. 31, 2003 we reported on the legal onslaught waged by Entrepreneur Media, publisher of Entrepreneur magazine, against Scott Smith, who had been so rash as to name his public relations shop Entrepreneur PR. Smith filed for bankruptcy after being told to pay a $1.4 million judgment, but the case has now taken a turn not so favorable for Entrepreneur Media. Last month a U.S. bankruptcy judge issued an order to show cause why he should not impose $10 million in sanctions on Entrepreneur Media and its lawyers, Latham & Watkins, over their conduct in the case, which included accusing Smith of hiding assets. “A hearing is set for next month.” (Kellie Schmitt, “Bankruptcy Judge Threatens $10M in Sanctions for Latham, Client”, The Recorder, Sept. 7).

“Shorts’ nemesis dumped a client’s shares”

“Texas plaintiffs’ lawyer James ‘Wes’ Christian, the legal mind behind the rash of claims alleging naked short-selling in penny stocks…was a consistent seller of several companies that he is representing in high-profile and bitter legal fights,” according to records obtained by the New York Post. For example, “in May 2001, several months after Nanopierce retained Christian to launch one of the initial lawsuits against naked short-sellers – and after the publicity surrounding the legal battle goosed the stock price – he began unloading blocks of stock.” Christian is partnering with regular Overlawyered mentionee John O’Quinn on the naked-short-selling lawsuits, which have not fared well in court thus far. (Roddy Boyd, New York Post, Aug. 18).

Reporter Christopher Faille interviewed me for an August 23 article in the subscriber-only HedgeWorld. The article quotes me as saying that Mr. Christian

“seems to be preserving a possible line of argument that inducing a stock-price rise isn’t really part of his business plan, he just happens to own these stocks because the companies pay him in shares, he would have been happy to take cash payment instead, et cetera.”

That was precisely what Mr. Christian said in the interview Tuesday—that he took the stock instead of cash simply because Nanopierce didn’t have the cash necessary for him to do the original pre-litigation due diligence.

Older ethical rules — now often fallen into disuse — used to discourage or prohibit lawyers from taking stakes in enterprises they represented in litigation. As the HedgeWorld article quotes me as saying, “If what attorney Christian is doing is consistent with the ethical rules of the Texas bar, maybe it’s time to revisit those rules.”

Election focus: Trial lawyers target Heather Wilson (R-NM)

The Democratic candidate, Patricia Madrid, is state attorney general and a former trial attorney; ATLA has provided her campaign $10,000 (among the $430,000 in trial lawyer contributions) and made an extensive ad buy. (Wilson press release, Aug. 31) Madrid’s office has been using taxpayer money to blanket the state with mailed pamphlets trumpeting recent settlements by the AG’s office, prominently featuring the same photo she uses on her campaign site. (Steve Terrell, “Roundhouse Roundup”, The New Mexican, Aug. 31).

Another Grand Theft Auto lawsuit

The lawyers just love to sue Rockstar Games (e.g., Aug. 17; Mar. 5; Jul. 27, 2005; Feb. 19, 2005; Dec. 29, 2003); this particularly ludicrous suit alleged that “Grand Theft Auto:San Andreas,” the first part of which takes place in an ersatz parody of Los Angeles, infringed the trademark of a local strip club, “The Play Pen” because the game’s version, “The Pig Pen,” (one of hundreds of locations in the game) had a similar name and also had a parking lot and a round awning. Judge Margaret M. Morrow rebuffed the claim. But it took 100 entries on the docket, numerous depositions of game designers, expert-witness surveys, and a 55-page judicial opinion before this common-sense issue could be resolved in court. Moreover, the PlayPen attorneys say they’ll appeal, subjecting the matter to the random-legal-opinion generation of the Ninth Circuit. (AP, Aug. 8; Trademark Blog; E.S.S. Entertainment 2000 v. Rock Star Videos, CV 05-02966 MMM (C.D. Cal. July 28, 2006)).

In the weird coincidence department, one of the junior defense attorneys in the suit is not only someone who has worked on behalf of the RIAA in their oft-criticized “spamigation” suits against individuals who allegedly illegally download songs, but a co-creator of the lonelygirl15 Internet phenomenon.