- Patent suit by firm called Parallel Processing demands that all Sony PlayStation 3 consoles be impounded and destroyed [ArsTechnica, Slashdot]
- It’s not all going to Edwards: a scorecard on presidential campaigns’ law-firm fundraising [National Law Journal]
- Link roundup on Oregon criminal charges against fanny-swatting 13-year-olds [Right Side of the Rainbow; earlier]
- New at Point of Law: Spitzenfreude is mirth derived from ethical pratfall of NY’s moralist governor; Florida’s insurance fiasco; more on those “medical” bankruptcies; Alabama judge appoints special prosecutor in Dickie Scruggs affair after feds take a pass; and much more;
- One hurdle for court action by survivors of slain Middle East contractors against Blackwater: the four men had signed contracts agreeing not to sue their employer [Henley; W$J]
- Saying swim diaper should suffice, Akron mom and “fair housing” advocates sue condo that barred pre-potty-trained kids from pool [AP/FoxNews.com]
- Not only are those punitive new Virginia traffic laws unpopular, but a judge has just declared them unconstitutional as well [Washington Post; earlier here and here]
- Pepsi settles class actions over minute quantities of benzene that might form when soft drink ingredients combine [Reuters, Food Navigator, Journal-News]
- U.K. considers making it easier for unmarried cohabitators to go to court when their households break up [Times Online]
- Did a securities fraudster use protracted depositions to browbeat his victims? [Salt Lake City Tribune]
- “Victims’ Rights Amendment” to U.S. Constitution, promoted as giving crime victims a fairer shake, is bad idea for lots of reasons [eight years ago on Overlawyered]
Archive for 2007
Assignment Desk: Edwards, Obama, and lobbyist money
At YearlyKos, John Edwards and Barack Obama sought to distinguish themselves from Hillary Clinton by saying they didn’t take money from registered lobbyists, and Clinton was booed for defending herself. (Also: Franke-Ruta.)
I found this curious: after all, Obama and Edwards showed up at the national convention of the lobbying group for the trial lawyers, the former Association of Trial Lawyers of America (who now call themselves the American Association of Justice). There, they gave speeches (as did Clinton, Biden, and Richardson). A look at the largest donors for Obama and especially Edwards shows a disproportionate number of active members of that lobbying group. Indeed, John Edwards’s finance chairman is Fred Baron, the former president of ATLA. If Obama and Edwards want voters to believe that Clinton is influenced by lobbyist money, what should we think about these two candidates’ debts to trial lawyers? Are we to believe that the critical difference is the lobbyist registration papers, at which point money becomes tainted and dirty? Are any reporters going to ask that hard question, or will they let the two candidates demagogue from the high ground as they take millions from the most pernicious special interest group in America?
Nifong’s media and law-school enablers, cont’d
An article in the new American Journalism Review (Rachel Smolkin, “Justice Delayed”, Aug./Sept.) lays out at length the sins of the media in covering the allegations of prosecutor Mike Nifong in the Duke lacrosse case. Leading offenders such as the Durham Herald-Sun, New York Times and TV’s Nancy Grace all come in for their share of reproach, but of note also is this on Wendy Murphy, feminist lawprof and frequent broadcast commentator on the case:
One prominent guest on Grace’s show and others was Wendy Murphy, an adjunct professor at the New England School of Law and a former assistant district attorney in Middlesex County, Massachusetts. On April 10, 2006, after defense attorneys announced that DNA results found no links to the athletes, Murphy told Grace, “Look, I think the real key here is that these guys, like so many rapists–and I’m going to say it because, at this point, she’s entitled to the respect that she is a crime victim.”
Emerging questions about the investigation did not prompt Murphy to reassess. Appearing on “CNN Live Today” on May 3, 2006, she posited, “I’d even go so far as to say I bet one or more of the players was, you know, molested or something as a child.” On June 5, 2006, MSNBC’s Tucker Carlson asserted, relying on a Duke committee report, that the lacrosse team was generally well-behaved. Rejoined Murphy: “Hitler never beat his wife either. So what?” She later added: “I never, ever met a false rape claim, by the way. My own statistics speak to the truth.”
Asked to evaluate her commentary, Murphy said in an interview: “Lots of folks who voiced the prosecution position in the beginning gave up because they faced a lot of criticism, and that’s never my style.” She notes that she’s invited on cable shows to argue for a particular side. “You have to appreciate my role as a pundit is to draw inferences and make arguments on behalf of the side which I’m assigned,” she says. “So of course it’s going to sound like I’m arguing in favor of ‘guilty.’ That’s the opposite of what the defense pundit is doing, which is arguing that they’re innocent.”
The last passage prompts Mark Obbie at LawBeat (Jul. 18) to reflect: “Has there ever been a clearer argument for the utter show-biz meaninglessness of such ‘debate’ shows?”
On a different note, the much-anticipated book on the controversy by Stuart Taylor, Jr. and K.C. Johnson, “Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case”, is due out a month from now and is already selling well on Amazon. More: John Steele Gordon, “Racial Role Reversal”, WSJ/OpinionJournal.com, Jun. 20.
Biting the hand that feeds us: Center for a Just Society
We’ve earlier discussed Ramesh Ponnuru’s expose of The Center for a Just Society, a trial lawyers organization that masquerades as conservatives; the article quoted both me and Walter. The Center has purchased a banner ad on our site, arguing for wide-ranging liability in the Enron litigation. We’re happy to run the ad, because the debate is entirely one-sided. Readers will note how the idea of causation, or statutory requirements, or Supreme Court precedent, or long-term negative impact on investors from expanded liability, is entirely ignored in Conner’s article, and the allegation of wrongdoing is entirely conclusory. Those interested in a more complete discussion of the issues in the Enron case may wish to review the expanded version of my Wall Street Journal op-ed available on the AEI website, or the opposition to certiorari by the defendants in the Enron litigation:
Putnam County Hospital update
We earlier discussed the case of osteopath John King (who now calls himself Christopher Wallace Martin after surrendering his medical license in two states). We’ll state up front: King was apparently deservedly fired for incompetence, and that undoubtedly includes some legitimate cases of malpractice. (Indeed, our original note was how West Virginia’s Putnam County Hospital could have perhaps avoided hiring King had not liability concerns prevented his previous employers from communicating problems to the hospital.) Whether it’s asbestos, fen-phen, or an incompetent osteopath, however, the legal system creates incentives for attorneys and plaintiffs to fake cases and free-ride off of the legitimately injured. A YouTube video documents some curious inconsistencies (which, to be frank, are not entirely persuasive to me for all six plaintiffs in the video). The judge has responded to the video by barring both sides from further communications with the media. (Lawrence Messina, AP/Lexington Herald Leader, Aug. 1; Chris Dickerson, West Virginia Record, Aug. 1; Turkewitz blog). The West Virginia Record calls for a prosecutorial investigation.
In the olive oil aisle
In this case, the accident-prone shopper’s bad luck was that the store had just installed a surveillance camera. The report is from South Florida’s CBS4.com.
From the comments: fine print
Reader Jim Finkel writes:
Re your post from the New Orleans paper on the fine print in contracts. As I have turned off my cookies (the usual paranoia), to read your article, you have to answer questions and assent for each of the following two pages of the three page article. So even reading the article about click-through, you have to click through and read the fine print. There has to be a point here.
What took so long?
I was wondering when former class members represented by Milberg Weiss would take a speculative flyer to convince a court that Federal Rule of Civil Procedure 60(b) does not preclude relief and sue the law firm over its kickback scandal and Peter Lattman reports that that has happened. Alas for schadenfreude, I am utterly unpersuaded by the complaint, which makes no attempt to jump that procedural hurdle: Fed. R. Civ. Proc. 60(b) prohibits reopening even judgments procured by fraud more than a year after they close, and I’m unaware of courts permitting end-arounds of the rule through collateral lawsuits. But perhaps the plaintiffs have an undisclosed legal trick up their sleeve for when the motion to dismiss comes.
Lattman’s blog posts on Milberg Weiss always attract an interesting flood of anonymous comments defending the firm, and this one is no different: one such comment suggests, perhaps libelously, that the suing law firm has its own history of kickbacks.
Serial spam litigation backfires on plaintiff
I think it’s fair to say that serial spam litigation is less lucrative than serial ADA litigation. Walter discussed the setback suffered by plaintiff James Gordon (June 2007), in which a federal court ruled that Gordon, who makes his entire living using anti-spam laws to sue emailers, had no legitimate claims because he had not suffered any damages (and indeed, could not, since his only “business” was filing lawsuits for receiving spam).
The court was clearly disgusted by Gordon and his attempt to manipulate the CAN-SPAM act to extort millions of dollars from an emailer, because not only did it rule against him, but this week it awarded attorneys’ fees to his victim. Now, regular readers of Overlawyered know that one of my pet peeves is that even when courts order sanctions, they often award mere token amounts which are inadequate to deter plaintiffs or reimburse defendants for their troubles. That wasn’t the case here; the court awarded $110,440 in fees and costs to the victorious defendants. (This was actually significantly less than the defendants had requested — half a million dollars — but the court found that this was grossly inflated and not substantiated by the defense counsel’s own billing records. Still, $110,000 is nothing to sneeze at.)
So this case provides lessons for both sides about being greedy:
- If you’re going to try to become a professional plaintiff, try to suffer actual damages — if possible, physical damages — rather than demanding millions of dollars for receiving emails. If you insist on suing without having been injured, at least try to be a sympathetic plaintiff in a wheelchair who can’t use public restrooms, rather than being a guy who sits around his living room in his pajamas looking at spam.
- If you’re up against an unsympathetic professional plaintiff, don’t squander the court’s goodwill by demanding far more in legal fees than you’re entitled to. And if you’re going to pad your fee request to the court, at least make sure that the bills you submit to substantiate your demands actually match the numbers you’ve told the court. Judges don’t like it when you claim that you spent 2,000 hours and your own records show that you’ve only spent 1,500 hours. The judge was so annoyed here that after he re-calculated the legitimate bills, he determined that they were grossly overinflated and slashed them by an additional 70%.
California ADA lawsuit mills: “Wheelchairs of fortune”
Serial ADA litigant (and Overlawyered repeat offender) Thomas Frankovich was profiled recently in SF Weekly. Overlawyered readers will be familiar with just about everything in there, from Frankovich’s extortionate tactics to his collaboration with professional plaintiffs like Jarek Molski, to his use of front groups in an attempt to make his litigiousness seem like a public service. (Frankovich, incidentally, does not work in a wheelchair accessible office.)
Matthew Hirsch of LegalPad reports that Frankovich is attempting to rehabilitate his image before the Ninth Circuit rules on whether he, and his fellow traveler Molski, are vexatious litigants:
Starting this month, Frankovich and a major client are offering defendants a deal: “You make your [entrance] doorway accessible, and we will waive any and all claims — including money damages,” he said.
Yes, but Frankovich is a lawyer, so be sure to read the fine print:
Frankovich said his clients who are affiliated with DREES will offer the front door deal if they are visiting only to check out the entrance. But if they spot a door that wheelchair users can’t open, then they go inside to shop and notice more problems, “that becomes something different,” Frankovich said, and the deal is off.