AEI lets me spend up to a day a week working on outside matters. I hadn’t done any litigating in a while, so when a pro bono opportunity for a good cause presented itself, I took it. Many other bloggers have already spoken on the issues presented by Abigail Alliance v. von Eschenbach, regarding the circumstances under which the FDA has the constitutional power to bar terminally-ill patients from being able to take potentially life-saving doctor-recommended drugs that have achieved Phase 1 approval, but have yet to receive Phase 2 approval from the FDA. (E.g., Jonathan Adler, Derek Lowe, Hans Bader, Orin Kerr, Eugene Volokh, Randy Barnett, Alex Tabarrok.) A 2-1 panel of the D.C. Circuit put limits on the FDA’s powers, but the full D.C. Circuit vacated for en banc review. With the able assistance of attorneys at O’Melveny & Myers LLP, Jack Calfee and I put together a group of all-star economists—Calfee, Dan Klein, Marginal Revolution blogger Alex Tabarrok, Ben Zycher, and one of my heroes, Sam Peltzman—and submitted an amicus brief on their behalf to the D.C. Circuit. While the case presents interesting issues of the due process clause and constitutional standing, the brief focuses on the economic issues underlying FDA drug regulation and the effect of the original panel’s decision on drug and medical safety.
Archive for January, 2007
Volokh just wants an aspirin
Eugene Volokh reasonably asks why he can’t get an aspirin when he has a headache in a restaurant. The fact that we’re posting this can give you a clue to the answer, but dozens of people educate him in the comments to his post.
More on privacy-protecting lawyers
The Anthony Pellicano wiretap scandal grinds on: Per a new report in the New York Times, attorney Terry Christiansen was happy to feed investor Kirk Kerkorian information obtained by Pellicano’s wiretaps on Kerkorian’s ex-wife, though no one has charged the investor with knowing about the taps. A lawyer for Christiansen terms the report “totally unfounded” and “a pack of lies”. (David M. Halbfinger and Allison Hope Weiner, “Lawyer Gave Information to Kerkorian”, Jan. 10).
Not entirely unrelatedly, a front-page report in the Wall Street Journal last month takes note that “Hewlett-Packard Co.’s much-criticized campaign this year to trace boardroom leaks has made ‘pretexting’ a dirty word in corporate circles. But the H-P project was far from the first to rely on pretexting, which generally involves impersonating people to get their phone or financial records, a review of recent business history shows. The practice for years has been almost a commonplace tool, resorted to in efforts ranging from commercial litigation to divorce fights to the search for deadbeat borrowers.” (John R. Emshwiller, “Hewlett-Packard Was Far From First To Try ‘Pretexting'”, Dec. 16). Hmmm… which profession is it that regularly gets involved in commercial litigation, divorce fights, and the search for deadbeat borrowers? Former HP general counsel Ann Baskins resigned after her role in failing to prevent the pretexting scandal came to light. How much company would Baskins have if the legal profession suddenly got serious about ‘fessing up to the practice? (Paul McNamara, “A deep look at the role HP’s top lawyer played in spy scandal”, Network World, Dec. 21; Sue Reisinger, “Did Ann Baskins See No Evil at HP?”, Corporate Counsel, Dec. 18).
January 11 roundup
- What assumption of the risk? $10.5 million jury verdict against airport in death of pilot for failure to rescue him in time after he crashed experimental plane. [Daily Herald]
- Dontdatehimgirl lawsuit (Jul. 6) update. [Bashman]
- The effectiveness of public defenders. [NYT; Expresso; Talk Left]
- And see also the new blog of an HLS-educated public defender in the Kafkaesque New Orleans criminal justice system. [Do Not Pass Geaux]
- Epstein on pharma, again. [Mass Tort Litigation Blog]
- “Your transactional lawyer just increased your lifespan. Aren’t corporate lawyers great?” [ATL]
- Perhaps the best MSM look at the effects of a minimum wage increase I’ve seen. [WaPo]
- Speaking of public policy, a nice view of Canada’s single-payer healthcare. [Frum]
- Did the New Deal prolong the Great Depression? [Marginal Revolution]
Yanking RIAA’s chain
Lawyers representing the recording industry have long been accustomed to demand $750 per downloaded song from alleged infringers, which cumulates into terrifying aggregate liability for many an individual defendant. In a case called UMG v. Lindor, attorney Ray Beckerman is advancing the argument that awards should instead be limited to the industry’s actual losses. (Capping awards at the level of actual damages — imagine that!) He’s also asking for discovery into the industry’s wholesale pricing arrangements by way of ascertaining what those actual damages might be. The industry really, really doesn’t want to disclose that information, so this should be interesting. (Eric Bangeman, “RIAA fights to keep wholesale pricing secret”, Jan. 3; Nick Farrell, “RIAA’s price secrets probed”, The Inquirer, Jan. 5).
Accept no imitations
Now, this is ridiculous: at the URL http://www.overlawyered.blogspot.com/ (no, I’m not going to give it a live link) someone or other has erected a pseudo-blog under the heading, “Overlawyered”, followed by a verbatim swipe of the paragraph (“Overlawyered explores an American legal system…”) which for years stood atop this site’s sidebar and currently stands atop our “about us” page. The imitation-Overlawyered blog has relatively little content, but one of its entries (dated May 05, 2006) consists of excerpts swiped verbatim from a post of Ted’s of Feb. 16, 2006 on this site about a South Texas legal case.
Other content on the pseudo-Overlawyered site suggests that the author(s) take an interest in the South Texas legal scene, and have established a large group of blogspot entities which blogroll each other under the banner of “Team Kenedeno” (more at http://teamkenedeno.blogspot.com/). These interlocking sites often sport not very accurate names such as corpuschristicallertimes.blogspot.com, microsoftdotcom.blogspot.com, and exxonmobile.blogspot.com, and at least one of them (at http://wattslawfirm.blogspot.com/) also contains a more extensive verbatim swipe from Ted’s Feb. 16, 2006 post, mentioned above.
I looked around for a while, but failed to find any appropriate “report abuse” procedure on the Blogspot/Blogger site. The nearest thing was a “Flag Objectionable Content” button which apparently triggers a review for hate speech, obscenity, etc., but does not offer any way of reporting the rather different problem arising here. Reader suggestions are welcome.
Update from Ted: “We’ve contacted the appropriate people. Thanks for everyone’s help.”
“Cisco Sues Apple Over Use of iPhone Name”
So the AP reports. Earlier press reports indicated that the two were close to a deal, but one suspects that the failure to close it before the sensation created by the announcement at MacWorld led Cisco to raise its price. Overlawyered readers anticipated the story Dec. 18. (Update: Ashby Jones has more detail.)
Further update: Cisco responds in the comments. NB that “raise its price” above doesn’t necessarily mean “money,” but can include other valuable consideration—such as access to Apple’s proprietary technology.
Rollover Economics II
Justinian Lane responds to my recent Liability Outlook about the Buell-Wilson case (Jan. 4 and links therein). The PDF version has pretty typesetting and graphics in lieu of substance, though I question the choice of Futura (a sans serif typeface designed for display) as the font for the main text, as well as the use of oversized bullets.
I was especially impressed that Lane responded to my criticism of the inaccuracy of the court’s description of the case by quoting the court’s description of the case, and my criticism of California evidentiary rules by citing California evidentiary rules. Lane doesn’t explore the implications of his explicit contention that juries get it right only seven percent of the time, an even better argument for reform if it were true than the one I made. Ironically for a piece that purports to “set the record straight,” Lane has more misrepresentations of my argument and factual errors than I have time to spend counting.
To take a non-obvious one, Lane’s description of the Grimshaw case is incorrect (or at least poorly worded, depending on what he means by “backfired”): comparative evidence in that case showing that the Pinto was safer than other subcompacts and no more likely to explode was excluded over Ford’s objection. (In the famous case against Ford brought by state prosecutors over the Pinto, Ford was allowed to introduce that evidence, and an Indiana jury acquitted Ford.) I leave it to the error- and non-sequitur-seeking reader to peruse Lane’s other arguments, including the claim that the amount of the award against Ford is justified because Lee Raymond contracted with Exxon to receive stock options that, after the share price went up, turned out after the fact to be worth a lot of money.
But let’s give credit to Bizarro-Overlawyered for their new tack of acknowledging the existence of other arguments, even if they still can’t bring themselves to address them head-on or link to what they purport to be commenting on. Judge for yourself.
Lerach’s slippery affidavit
If ever you wonder while trial lawyers have a bad reputation, there’s no need to invent sinister conspiracies between moderate Supreme Court justices and the Chamber of Commerce. Just take a look at the affidavit of one of the leading lights of the plaintiffs’ class-action bar, Bill Lerach, as he tries to argue to a court that his client cannot fire him. Roger Parloff did, and the results are entertaining; and other journalists could certainly learn a lesson from Parloff’s skepticism and willingness to read between the lines. Earlier: POL Dec. 15 and Dec. 28.
Patent troll, meet Rule 11
Just sending out batches of letters claiming infringement and demanding money may no longer be a workable business plan:
Based in the British Virgin Islands, Eon-Net is run by an evangelical minister-cum-inventor, who holds several patents (including one on a device for collecting “canine waste”). In March 2005 the company filed a patent suit in New Jersey against Flagstar, a $16 billion savings bank based in Michigan. The bank was one of 32 companies sued separately by Eon-Net for infringing a patent that, the company claims, covers technology that allows online shoppers to enter information into Web sites and have it transferred to the Web retailer’s computer. Eon-Net, which also has pending litigation against JetBlue Airways and Liz Claiborne Inc., had successfully extracted settlement money from ING Bank and Sony Corp. over the same patent.
Eon-Net’s enforcement method involved filing a complaint followed by a letter offering a settlement ranging from $25,000 to $75,000.
Flagstar decided to fight the suit, and its attorney, Melissa Baily of Quinn Emanuel, noticed that Eon-Net’s lawyers “had used nearly identical complaints and demand letters in all 32 suits,” suggesting a lack of careful advance investigation. Although Rule 11 sanctions are especially hard to obtain in the Ninth Circuit, Western District of Washington Judge Marsha Pechman agreed that the suit was both baseless and made without reasonable inquiry and, after ruling in favor of Flagstar on summary judgment in the case itself, ordered Eon-Net and its attorney, Jean-Marc Zimmerman, to pay the bank’s defense costs, estimated at more than $100,000. (Xenia P. Kobylarz, “Patent Trolls Put on Notice Over Generic Infringement Letters”, IP Law & Business, Dec. 14).