Bowing to pressure from 32 state attorneys general to curb the depiction of smoking in movies, the Moving Picture Association of America has just conceded “the basic principle that public-health lobbyists and politicians should have a big role in deciding what people will see, instead of letting the industry merely cater to its audience.” But state governments “have no more business determining what appears on movie screens than they do in deciding what goes into Judy Blume’s next novel. …The MPAA’s response validates the politicians in their intrusions, and beckons them to find new ways to regulate art and other matters that are supposed to be exempt from their control.” (Steve Chapman, syndicated/Orlando Sentinel, May 21). More: Michael Siegel, May 11, May 16, May 17; Jacob Sullum, May 16. Earlier: Sept. 1, 2003.
Archive for 2007
“The Panhandler’s Payday”
Eddie Wise got along by cadging a dollar here and a dollar there from strangers in the Bronx. Not in a thousand years would he have dreamed of waking up with $100,000 in his pocket, had he not had the good fortune to be wrongfully arrested. Thanks, NYC taxpayers! (Jennifer Gonnerman, New York magazine, May 14).
Charge: Little League didn’t teach base-sliding
On Staten Island, New York, “Jean Gonzalez is suing a beloved veteran coach for not teaching her son Martin how to slide properly”. The boy, 12 at the time, was hurt sliding into second base. Coach Leigh Bernstein, along with “the New Springville Little League, and its international umbrella organization, Little League Baseball and Softball Inc., are all named as defendants in the suit, which charges them with never teaching him ‘skills needed to avoid and/or minimize the risks of injury,’ specifically how to run bases and slide.” (James Fanelli and Mike Scholl, “Base Accusation”, New York Post, May 20).
Update: A million little refunds
Or maybe a few thousand, depending on how many readers send in for them: a judge has approved a settlement between Random House and class action lawyers who claimed that consumers had suffered injury from purchasing writer James Frey’s fictional autobiography, A Million Little Pieces. Earlier: last April 19 and many previous posts. As Ted reported early on in the controversy, Random House long ago offered refunds to dissatisfied readers of the book. (Thomas Zambito, ” Author’s $2.3M lie”, New York Daily News, May 18; “New York Judge Tentatively Approves Refunds for Buyers of James Frey’s Fabricated Memoir”, AP/FoxNews.com, May 18).
P.S. Here’s more from WSJ Law Blog, as well as a post of theirs from when the settlement was announced.
Update: Pizza Hut door victim awarded $311K
Following up on our Mar. 13 and Apr. 25 coverage: “Madison County Circuit Judge Nicholas Byron awarded Amanda Verett a $311,700 default judgment for injuries she allegedly received while holding a Pizza Hut door open for a Troy police officer.” Verett obtained the default judgment against defendant Clarence Jackson; co-defendant Pizza Hut filed a defense, so it will presumably be entitled to face a trial separately. Verett says her shoulder was jarred when Jackson suddenly moved the door or allowed it to move. According to testimony from her husband, she also slipped and fell on ice and snow on her driveway four days later; the couple appear to blame her injuries from that fall on her earlier bad experience with the Pizza Hut door. It’s a small world, lawsuit-wise, in the far-famed Illinois county: the chiropractor who’s been treating Verett, Mark Eavenson of Granite City, “is best-known as the most prolific filer of class action lawsuits in Madison County”. (Steve Gonzalez, “Byron awards $311,700 to Pizza Hut door victim”, Madison County Record, May 16).
Kentucky fen-phen follies: May 20
Most recently: May 15; at American.com.
- Curlin, the horse owned by fen-phen fraudsters Gallion and Cunningham, won the Preakness by a head. Curlin’s trainer is apparently ensconced in his own scandal, having served a six-month suspension for illegally drugging horses. (Andrew Beyer, “Making a Run for It”, Washington Post, May 20; Jennie Rees, “Curlin camp a crowded place”, Louisville Courier-Journal, May 20).
- Stan Chesley did not even show up to the court-ordered May 16 mediation session, allegedly forcing a rescheduling until May 23. (Chesley’s attorney says he was in contact with his client at the hearing.) Plaintiffs have asked for sanctions. (Paul Long, “Mediation over lawyer fees fails”, Cincinnati Post, May 18).
Web 2.0 beware: Fair Housing Counsel of San Fernando Valley v. Roommate.com
We’ve extensively covered the various fair-housing complaints against Craiglist (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, Dec. 1, 2006) for that service’s hosting ads for housing and roommates that fall afoul of non-discrimination laws—it’s technically illegal for a woman to say that she’s looking for another woman to share her apartment with, much less a co-religionist or someone without kids. We somehow missed the Santa Clara and San Diego lawsuits against Roommates.com over the same issue. While a district threw out the case, an appeal went to the Ninth Circuit Court of Appeals, and that was that: the three judges, Kozinski, Reinhardt, and Ikuta, wrote three separate opinions, with two of them deciding that there was enough for a suit to go forward on the grounds that there may be a cause of action under the Fair Housing Act because Roommate.com makes it easier for their users to express discriminatory preferences by using questionnaires that are then translated into searchable advertisements, thus supposedly running outside the Communications Decency Act’s immunity provision by being an “information content provider” because it is “responsible, in whole or in part, for the creation or development of [the] information”:
“By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing.”
Worse, Judge Kozinski’s opinion issues irrelevant dicta, apparently aimed at a suit not being litigated before him:
Imagine, for example, www.harrassthem.com with the slogan “Don’t Get Mad, Get Even.” A visitor to this Web site would be encouraged to provide private, sensitive and/or defamatory information about others — all to be posted online for a fee.
Kozinski posits that this site—plainly based on dontdatehimgirl.com (Apr. 9 and links therein)—would also flunk the CDA protection. (Cal Law reporter/blogger Brian McDonough notes this passage, but apparently thinks it’s just a joke and thus misses its significance.) The administrators of Autoadmit/xoxohth.com (May 3) might also be concerned about this dicta. (Rebecca Tushnet makes this point independently.)
This substantial narrowing of § 230(c) protections is also bad because it now means that a number of Internet sites that were plainly protected before no longer have unambiguous protection, a problem exacerbated by the lack of a clear majority opinion. Creative lawyering can argue that these websites might be within Fair Housing Counsel‘s fact-driven exception to the CDA exception, and thus get past the motion-to-dismiss stage, forcing defendants into expensive legal proceedings.
Elsewhere on the Internet: Volokh; Eric Goldman; Adam Liptak @ NYT; Slashdot; Laura Quilter; Aaron Perzanowski; Lillian Edwards; The Register. Joe Gratz has purchased harassthem.com.
Volokh separately argues the underlying laws are unconstitutional as applied to roommates.
More on government-hired contingency-fee lawyers
I had an op-ed in the Wall Street Journal yesterday on the subject, hailing the recent California state court decision which recognized the unethical nature of that class of fee arrangements for public counsel. More at Point of Law here; Ted had a related post on Wednesday.
The frivolous side of Funny Cide
Peter Lattman reported on Gary Farmer, a Florida judge who decided to try his hand at humorous legal writing in the course of deciding a lawsuit. Discussion of the opinion around the internet (see, e.g., Orin Kerr) focused on the propriety of a judge turning his job into a forum for self-promotion. Regardless of whether judges are allowed to have fun with their work, in my opinion, it wasn’t very funny at all. But perhaps I had lost my sense of humor after reading the ridiculous nature of the lawsuit.
The case was brought by the owners of the championship racehorse Funny Cide against the publishers of the Miami Herald, for a newspaper report that the horse’s jockey had used an illegal device to help him win the Kentucky Derby. The report was false, and the paper ran a correction. But that wasn’t good enough for the owners of Funny Cide; they sued in May 2005.
Their complaint? Although Funny Cide won the Preakness, the false report caused the horse to lose the Belmont Stakes, and hence miss out on the Triple Crown, which would have been worth large sums of money.
Their theory? Funny Cide’s jockey was so motivated to disprove the false report that he worked the horse too hard in the Preakness, which tired the horse out so it couldn’t win the Belmont three weeks later.
As you can imagine, this theory is (to use the technical legal term) loony. Even if they had a snowball’s chance of proving causation — as if there were no other possible reason a horse might lose a race? — they would also have to show that it was foreseeable by the Herald that their report would cause this to happen. This they obviously could not do, and so the court granted summary judgment to the newspaper. What makes this case especially egregious, though, is that the humorous opinion being discussed above wasn’t written by the trial court; Gary Farmer is an appellate judge. That’s correct: the horse’s owners appealed the dismissal of their frivolous lawsuit.
In case you were wondering, Bruce Rogow was listed as one of the attorneys for the horse’s owners.
Mr. Rogow has taught Civil Procedure, Federal Jurisdiction, Constitutional Law, Appellate Practice, Criminal Law and Legal Ethics.
West Virginia Attorney General Involved in Medicaid Fraud?
One of the tricks states have used in recent years to raise money without raising taxes is to sue companies for the products they manufacture, on the legal theory that the use of those products lead to increased state health care spending. (The most prominent example, obviously, is the tobacco Master Settlement Agreement.) Not surprisingly, it often turns out that this legal theory is more of a pretext by state attorney generals to get their names in the paper than it is to actually remedy the alleged harms caused by the companies.
In 2004, West Virginia settled with Purdue Pharma, the manufacturer of Oxycontin, over the increased Medicaid costs allegedly caused by addiction to the drug. The settlement was worth $10 million. Logically, then, that $10 million should have gone to the state’s Department of Health and Human Resources to defray Medicaid costs. But there was a problem. Two problems, actually. The first was that giving the money to the DHHR wouldn’t allow Darrell McGraw, the state Attorney General, to dole out money as he saw fit. The second was that the state shares its Medicaid expenses with the federal government, so giving money to the DHHR would enable the federal government to recover part of the settlement.
The first issue has caused political controversy in West Virginia, because McGraw has given out the settlement proceeds to pretty much everybody except the underfunded DHHR, including private law firms that he hired to work on the case. But even the money that the state actually kept was handed out by McGraw based on his personal whims ($500,000 to establish a state pharmacy school (!) at the University of Charleston) rather than by the state legislature, which is constitutionally tasked with making spending decisions about state money.
But the second issue may be causing legal controversy. Legalnewsline reports that the federal government is now investigating the state’s handling of the funds, trying to find out why it hasn’t been credited for its share of the Medicaid funds. But it’s not as if it’s a secret; the deputy attorney general recently testified as to their thinking:
“We have arranged a methodology that has prevented the federal government from coming back and seizing money,” Hughes said.
Or maybe not. If you’re going to try to cheat the federal government, you should probably be a little more subtle about it. No formal charges have been filed, to be sure, and the federal government may simply resolve the problem by withholding future federal payments to the state. But that certainly won’t fix the problem caused by McGraw’s behavior; it will leave a large hole in the state’s budget which could make them worse off than if he hadn’t sued Purdue in the first place.