Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2007

KFC doesn’t owe millions for selling fast food

In June 2006 (Overlawyered), a Maryland resident named Arthur Hoyte, in conjunction with the Center for Science in the Public Interest, sued Kentucky Fried Chicken for selling food made with trans fats; he claimed that he didn’t realize (despite being a medical doctor!) that fast food might not be the healthiest option for his diet. And this, of course, was KFC’s fault.

Yesterday, a federal judge dismissed the lawsuit, pointing out that it didn’t even identify any injury suffered by Hoyte, and mocking him for pretending not to realize that fast food might contain trans fats. (“The suggestion is that, by its silence, KFC misled plaintiffs into believing that its products did not contain harmful trans fat. This is a questionable premise at best […] Especially since, as plaintiff submits, consumers have a ‘growing awareness of trans fat and the need to avoid it.’ If consumers are increasingly aware of trans fat, where do they expect to find it if not in fast food restaurants?”)

This is a big victory for restaurateurs — as KFC pointed out in its motion, under the logic espoused by Hoyte (who was seeking class action status), effectively everyone who ever ate a meal at a restaurant would have a cause of action against the restaurant, and could claim a minimum of $1500 in damages. (Although Hoyte’s claim was about trans fats, the same reasoning would apply to virtually every other ingredient in existence, since any one of them might represent a potential health risk if eaten to excess.)

But it certainly won’t end the CSPI’s attempt to achieve via litigation what it can’t through regulation; Hoyte’s claim failed only because D.C. courts have narrowly interpreted the badly-drafted D.C. Consumer Protection Act to require that plaintiffs demonstrate an injury before suing, and because he wasn’t creative enough in drafting his complaint to allege the right kind of injuries. This suit was no more frivolous than the similar suits filed against McDonalds, some of which courts have been extremely tolerant of. (See, e.g. Sep. 2006)

Update: Hans Bader comments over at CEI’s Openmarket blog, noting the irony that at one time, CSPI actually used to teach that trans fats were safer than saturated fats.

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Imus in the courtroom?

Fortune is reporting that Don Imus has hired a lawyer and is planning to sue CBS for the 40 million left on his contract. The argument would apparently be that Imus was only doing what CBS hired him to do, and therefore it was a breach of contract to fire him for his statements. He may well have a plausible case.

But Imus has hired one of the nation’s premiere First Amendment attorneys, and the two sides are gearing up for a legal showdown that could turn on how language in his contract that encouraged the radio host to be irreverent and engage in character attacks is interpreted, according to one person who has read the contract.

The language, according to this source, was part of a five-year contract that went into effect in 2006 and that paid Imus close to $10 million a year. It stipulates that Imus be given a warning before being fired for doing what he made a career out of – making off-color jokes. The source described it as a “dog has one- bite clause.” A lawsuit could be filed within a month, this person predicted.

If he does proceed, it won’t be the first Imus-related suit filed since his firing; that honor goes to CBS itself, which sued a Southern California radio station for copyright infringement for rebroadcasting Imus shows after it was pulled from the air. The case settled a week later, with the station agreeing to stop and CBS agreeing not to seek damages.

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What happens in Gaza, stays in Gaza

In July 2002, Israeli Air Force planes bombed a building in Gaza to kill a Hamas leader; fifteen people died. Whatever one thinks about the wisdom of that decision, it’s hard to figure out what this fighting between Hamas and Israel has to do with the island of Manhattan. But that didn’t stop the misnamed Center for Constitutional Rights from suing, in 2005, Israeli government official Avi Dichter in federal court in New York City,

Sensibly, the judge hearing the case, William Pauley dismissed the suit yesterday, determining that the Arab-Israeli conflict would probably not be solved by trial lawyers. But although this case was decided sensibly, it represents yet another attempt by citizens of foreign countries to conduct foreign policy in American courtrooms.

Pauley noted the U.S. government had argued in court papers that the suit, brought by the Center for Constitutional Rights, threatened to involve the courts in policing armed conflicts across the globe, exceeding the role of the courts and intruding on the executive branch’s control over foreign affairs.

If this suit were sustained, it’s hard to see what foreign war couldn’t be fought by trial lawyers in U.S. courts, given that neither the plaintiffs nor the defendant in this case had any connection to the United States.

Mom: I never authorized lawyer to sue school over football injury

Curious doings in Camden, N.J.:

Nita Lawrence, whose son Shykem was paralyzed in a scrimmage football game between Woodrow Wilson and Eastern Regional high schools on Aug. 25, said Monday she never gave a Michigan lawyer authorization to file paperwork naming both high schools in a potential $10 million lawsuit.

In fact, Lawrence said she fired [Ronald R.] Gilbert in early March after he tried to receive advance payment from Bollinger Insurance, the company that provides coverage for student athletes in the Camden School District.

“We didn’t say we were suing nobody,” Lawrence said. “All we wanted was the insurance company to pay for my son’s medical bills. That’s all we wanted.

“We don’t want no $10 million. We’re living fine. Whatever the insurance company doesn’t pay, Medicaid pays. We don’t need a lawsuit. Now, we’ve got all these people against us and it’s not fair because it’s not true.”

A $10 million notice of claim dated Mar. 20 names 18 people, including football coaches, principals and superintendents, as possible defendants. (Chuck Gormley, “Mom: No suit authorized over son’s injury”, Camden Courier-Post, May 1; “Michigan lawyer confirms he’s off Lawrence case”, May 2).

Further information on Fenton, Michigan attorney Ronald R. Gilbert can be found here. Gilbert appears to be the guiding spirit behind two seemingly philanthropic outfits, the Foundation for Spinal Cord Injury Prevention, Care & Cure and the Foundation for Aquatic Injury Prevention. Visitors to the two groups’ websites rather quickly run into discussions of liability and legal options which would seem helpful, no doubt unintentionally, to attorney Gilbert’s client intake efforts.

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Updates – May 2nd

  • Remember those lawsuits over Yankee pitcher Cory Lidle’s plane crashing into an apartment building? (Mar. 2, Apr. 4). Well, the NTSB has issued its final report on the plane crash, and came to the shocking conclusion that poor piloting was involved. But, despite the NTSB’s expertise, it wasn’t able to determine whether Lidle or his instructor, Tyler Stanger, was doing the piloting.

    Does anyone think that the NTSB’s findings, or failure to uncover this information, will affect in any way the progress of the lawsuits which depend on the answer? (Does anyone think that it will in any way prevent the litigants from finding hired gun experts to testify as to who was piloting?) It seems unlikely:

    The Lidle and Stanger families are suing the plane’s manufacturer, and their lawyer criticized the NTSB’s conclusions.

    “It’s not surprising, the Safety Board always blames the pilot in an accident,” said the lawyer, Todd Macaluso. The families fault the plane’s steering mechanism, though the NTSB found no evidence of system, structure or engine malfunction.

  • If you choose to flee from police at speeds of up to 90 miles per hour on well-traveled roads, and the police try to stop you, the Supreme Court sensibly says that you can’t sue the police for violating your constitutional rights when you get injured as a result. (Previously covered: Feb. 27)

    The Supreme Court vote was 8-1, but what was apparently the decisive evidence was that the police officer had a video of the chase (Realmedia), which the Justices were able to review for themselves. If they had been forced to rely upon the description of events by the various parties, the officer would probably have been forced to go to trial.

  • Remember that story of the New York City subway hero who sued his attorney because he claimed that the contract he signed with her to exploit his publicity was unfair? (Overlawyered, Mar. 28) Well, reader Phil Grossman points us to this update:

    The lawyer who’s getting sued for allegedly using “undue influence” to sign Subway Superman Wesley Autrey into a bad deal says she’s the victim – and now she’s suing him.

    Diane Kleiman has filed counterclaims against the selfless hero, charging him with breach of contract. She’s also seeking money for her legal fees and “damages to her reputation.”

    “They’re making me look like a shyster. I’m not a shyster,” Kleiman told The Post. “I’m not money hungry. This is not who I am.

    I’m pretty sure that being forced to publicly deny that you’re a shyster is a bad thing, reputationwise.

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Litigious clients file lawsuits

Courtesy of Judicial Reports, a cautionary tale for lawyers: be careful when you accept litigious clients. The law firm of Wallace & Minchenberg wasn’t, and it came back to bite them:

Bennett A. Cohen kept getting hurt in elevators — or so he claimed. The lawyers he hired to exact compensation from the culprits responsible for the injuries he allegedly sustained in four elevator mishaps between 1989 and 1992 must have suspected that their litigious client might eventually turn on them, as he did. When the last of the elevator tort claims collapsed, Cohen sued the law firm for malpractice for allegedly mishandling his slam-dunk tort suits.

A lower court in Brooklyn refused to dismiss Cohen’s suits, but the Appellate Division said that law firms can’t be guilty of malpractice for failing to properly prosecute cases without any merit to begin with.

I’m sure that’s of great comfort to the elevator maintenance companies who were originally sued by the law firm on behalf of Cohen.

(Too bad Cohen was representing himself pro se in his lawsuit against Wallace & Minchenberg. Otherwise he could have sued the lawyers who represented him in this lawsuit for failing to win against his former lawyers.)

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Bill padding, and lots of it

Two-thirds of lawyers queried in a new survey say they’ve seen specific instances of bill padding, a figure that hasn’t changed much since 1995. On two related questions, the numbers are actually getting worse, as Nathan Koppel notes at the WSJ Law Blog (May 1): “54.6% of the respondents (as compared with 40.3% in 1995) admitted that they had sometimes performed unnecessary tasks just to bump up their billable output”, and “the percentage of attorneys who admitted that they had double billed rose from 23% in 1996 to 34.7% in 2007. And only 51.8% regarded the practice as unethical in 2007, as compared with 64.7% in 1995,” although most ethical authorities not surprisingly frown on that practice. Ted has some further thoughts at Point of Law; the study data, gathered by Cumberland/Sanford lawprof William Ross, is here (PDF). More: Jun. 24.

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“Pregnancy brain”

That belitting phrase was uttered not by a supervisor, nor yet by a co-worker, but by a private citizen at a hearing where Amy Lee was being flayed by public commenters for her performance as assistant director of San Francisco’s Building Inspection Department. Even so, it has now resulted in a settlement in which the city has agreed to fork over $156,000 in damages and attorneys fees to resolve Lee’s charges of sexual harassment and pregnancy discrimination. Supervisor Tom Ammiano, not generally known as an enthusiast for employer’s rights, nonetheless

cast the lone vote on the board against the settlement [and] called the payout ludicrous.

The “pregnancy brain” remark was out of bounds, Ammiano said. But it was made at a public meeting, where officials take shots all the time, he said.

“You can’t control public comment,” Ammiano said.

Lee remains on the public payroll. (Phillip Matier and Andrew Ross, “Former chief of Building Inspection gets damages”, San Francisco Chronicle, Apr. 30).

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