Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for July, 2008

Labaton Sucharow rebuffed again

“For the second time in less than a week, class action law firm Labaton Sucharow has been reprimanded for overreaching in its attempts to lead a major securities fraud action.” Having attained lead counsel status in one class action against American International Group, the firm sought to combine that case with others pending elsewhere that raised quite different claims against the much-sued insurer.

“As is readily apparent here, lead plaintiff’s Motion for Leave to Amend to add unrelated claims is a calculated attempt at judge shopping,” [Southern District of New York federal judge John] Sprizzo wrote. “It seems apparent that lead plaintiff is trying to usurp lead plaintiff status over claims which are properly in front of other judges.”

The decision came just three days after Southern District of New York Judge Jed S. Rakoff admonished Labaton Sucharow attorneys for perhaps not “fulfill[ing] their professional responsibilities” in their proposal of a co-lead plaintiff in In Re Monster Worldwide Securities Litigation, 07 Civ. 2237.

(Mark Fass, “Labaton’s Newest Bid to Lead Major Securities Fraud Action Rejected”, New York Law Journal, Jul. 22).

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Great moments in expert witness work

Philadelphia and New York City prosecutors say Richard Gottfried (who is not the New York state assemblyman of the same name) wrongfully obtained hundreds of thousands in court-appointed work as a sentencing expert for indigent criminal defendants, in the process collecting money for work never performed. Gottfried, who allegedly invented degrees for himself, knows a bit about sentencing from the other side: he’s an ex-convict whom authorities say had been involved earlier in mail fraud and a real estate scam. (AP/Washington Post; Bronx D.A. Robert Johnson release, Jul. 8; Philadelphia DA Lynne Abraham case listing, Mar. 13, 2006).

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Lawsuit: you excluded my service monkey

Latest disabled-rights lawsuit alleging exclusion of an emotional comfort/ psychiatric service animal: Debby Rose of Springfield, Mo. is suing Wal-Mart, Cox Health and the county health department over their refusals to let Richard, her macaque monkey, into various food and health settings. Richard assists Ms. Rose with her agoraphobia (fear of public and open places) and panic disorder. County officials sent out a mass mailing warning businesses that admitting monkeys such as Richard to the premises would violate health codes. (Springfield News-Leader; KSPR; Arbroath). Earlier coverage of emotional service animals: May 14, 2006 (airlines grapple with demands to seat large dogs and emotional-support goats); Feb. 28, 2005 (jury awards $314,000 to Royal Oak, Mich. woman over co-op’s no-pets policy); Oct. 18, 2005 (ferret in university dorm); July 12, 2005 (frequent-filing Californian); May 5, 2005 (Seattle grocery store owner fined $21,000); Oct. 25, 2004 (if you want to bring your pet into a San Francisco restaurant, get a note from your doctor); Dec. 2, 2004; Jul. 9, 1999 (Seattle clothing store owner made to pay fine and undergo re-education for not welcoming shaggy dog).

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Medical liability roundup

  • “The accusatory legal document begins with several remarks defaming the skills, education, ability, integrity, and honesty of the physician being charged.” [Donald May, State Policy Blog] But hey, don’t take it personally, lawyers say [Mark Crane, Medical Economics] Good luck with that [Chiaramonte/Examiner, KevinMD, more]

  • Law throwing open Florida doctors’ peer review to lawyers was bad enough, but now state high court has applied it retroactively to records created before law was enacted [KevinMD guest post; background at PoL here, here, and here]

  • Even the New York Times hails as “sensible” laws encouraging medical apologies by making them inadmissible as evidence of wrongdoing [editorial]; but see counterexample to the usual reportage [Berlin/Am. Journal of Roentgenology via Buckeye Surgeon]

  • A med-mal defense attorney says plaintiffs would win more often in proposed “health courts” than they do in the cases he handles [Medical Economics, more, and similarly]

  • More evidence, this time from study of orthopedists, that docs rated as cold or callous attract far more than their proportionate share of suits [Orthopedics Today]

  • EMTALA, the law forcing emergency rooms to take all comers, “has created the very conditions it sought to avoid” [Edwin Leap, M.D.O.D.] Watch for “free-standing” ERs that dodge mandate by refusing federal dollars [Scalpel or Sword?, Health Care BS] Semi-defense of law [Over My Med Body]

  • Besieged state of dispersed emergency rooms and specialists is one reason for use of those risky helicopters that fly patients to the big city [Williams/Health Business Blog, M.D.O.D.]

  • Docs should stand up to family members demanding futile or inappropriate end-of-life care [Musings of a Dinosaur] Relatedly, daughter on dying father: “if you give him any more morphine, I will sue you.” [Fat Doctor]

(Most links via the highly recommended one-stop shop for medical blogging, KevinMD, e.g. this post and this one on EMTALA.)

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Sued wrong party, wrist duly slapped

Brooklyn, N.Y. attorney Regina Felton held a judgment against an outfit named United Equities Corp. which she tried to enforce against an entity named United Equities Inc. Attorneys for the latter informed her repeatedly that despite the coincidence of names the two businesses had no connection to each other. Citing the New York courts’ definition of frivolous conduct, trial judge Arthur M. Schack ruled that Felton’s continued refusal to withdraw the action even after it was “crystal clear” that it was mistaken was “completely without merit in law” and “ignored UEI’s good faith attempts to resolve this matter without resort to lengthy and costly proceeding”. Nonetheless, he granted UEI only about half the $25,000 in attorneys’ fees it sought and “declined to add sanctions, calling the $13,287.50 in costs a ‘sufficient penalty.'” Maybe UEI would have been better off settling her demand for $10,000 at the outset. (Mark Fass, “Lawyer Ordered to Pay Fees After Pursuing ‘Frivolous’ Suit”, New York Law Journal, Jul. 9). Felton, whom New York law blogger Andrew Bluestone describes as “well known” (Sept. 27, 2007; more at Feb. 14, 2007) won notice a couple of years ago when she unsuccessfully argued before the Tax Court that she did not “consider herself” an employee of the law offices of Regina Felton, PC. (RothCPA, Sept. 18, 2006).

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July 20 roundup

  • Judge Henry Lackey, who went to feds to report bribe attempt by Dickie Scruggs associate, gets award and standing ovations at Mississippi bar convention, says he was just doing a judge’s job [NMC/Folo]

  • Related: should Ole Miss Chancellor Robert Khayat have used official university stationery for his letter pleading leniency for chum/ benefactor Scruggs? [Daily Mississippian and editorial via YallPolitics, continuing coverage at Folo; earlier]

  • Stephen Dubner: if lawyer/subscriber can sue Raleigh News & Observer over perceived decline in its quality, who’s next? [NYT/Freakonomics blog, earlier]

  • Maneuvering over retrial of Kentucky fen-phen defendants Gallion and Cunningham [Lexington Herald-Leader]

  • A Fieger sideshow: though acquitted in recent campaign laundering prosecution, controversial lawyer fared less well in lawsuit against Michigan AG Michael Cox; Sixth Circuit tossed that suit and upheld order that Fieger fork over attorney fees to Michigan Supreme Court Justice Stephen Markman over subjecting the justice to unfounded vilification [ABA Journal; fixed typo on Circuit]

  • Citing long history of frivolous litigation, federal judge in central Texas fines disbarred lawyer Charles Edward Lincoln and his client and bans Lincoln from bringing any more federal suits [SE Texas Record]

  • Faced with $18 million legal-malpractice jury verdict, Indiana labor law firm stays in business by agreeing to make token payment, then gang up on its liability insurer for the rest [Indianapolis Business Journal, Ketzenberger/Indy Star via ABA Journal]

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ADA claim: store wouldn’t let him use inline skates

Peter Jose Smith of Provo, Utah, is suing the Mercado Latino market, saying it violated his accommodation rights under the Americans with Disabilities Act because it wouldn’t let him wear inline skates in the store behind his wheelchair. Store owner Hugo Martinez said Smith, who has sued other local businesses, was asked to comply with the store’s policy against skates after he “was riding quickly in the store and bumped into another customer”. (Ace Stryker, “Disabled Provo man suing Latin market”, Provo Daily Herald, Jul. 18).

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Claim: Spitzer’s floozy used my lost ID

New Jersey dental assistant Amber Arpaio found herself an asterisk-to-an-asterisk in the history of political scandals when it was reported that Ashley Dupre used Arpaio’s lost driver’s license to pass for more than 17 when she made a “Girls Gone Wild” video that later became notorious after the exposure of Dupre’s paid liaison with Gov. Eliot Spitzer. So now Arpaio is suing Dupre and Joe Francis, impresario of the “Girls Gone Wild” series. The news coverage of the lawsuit contains no indication that Arpaio suffered any damage to her credit record or other tangible interests from the affair, but she wants upwards of $10 million in cash solace for defamation and invasion of privacy, and, per her attorney, because “when someone searches her name on the Internet, pornographic material comes up.” Much better, when someone searches her name on the Internet, for intimations of litigiousness to come up. (Nancy Dillon, “Duped by Dupre: N.J. woman charges Spitzer call girl with identity theft”, New York Daily News, Jul. 17; AP/Comcast, Jul. 17)(& Prettier Than Napoleon). Plus: complaint at The Smoking Gun (h/t commenter VMS).

More 7/22: Thanks to commenter Eric Turkewitz for pointing out that Dupre had posed as Arpaio in actual news coverage, not just in the signing of film releases and the like, which makes the basis for the suit less unreasonable than I had hastily assumed.

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Google AdWords class action

It will come as no surprise to anyone who surfs the Web much that many parked domains and 404 error pages on otherwise active websites carry Google keyword ads. (If you don’t know what a parked domain is, this is one; if you don’t know what a 404 error page is, here’s ours.) It might also seem reasonable that ads in these locations would be glanced at and even clicked on by some non-trivial number of visitors, who will often be looking for information on the relevant topic (that’s the idea behind keywords) and, frustrated in their initial search for content, might be ready to check out an advertiser’s substitute content. However, Boston lawyer Hal K. Levitte professes great dismay and consternation that 15 percent of the $887.67 he spent on his ad campaign went toward placements in such inferior spots, resulting in 693 clickthroughs and no actual conversions to prospect or client status. So he’d like class action status to sue for fraud and unjust enrichment on behalf of all other Google ad customers (Legal Blog Watch, Jul. 16).

P.S. From comments, reader J.B.:

Not sure what’s fraudulent here, when Mr. Levitte set up his ad campaign in Google AdWords he was given the opportunity to specify whether he wanted his ads to appear only on Google search result pages, or also in other places such as these parked domains.

In addition, Google gives you the option to pay less for clicks from these “inferior” spots, because as he found out, they often result in less-desirable visitors.

We in the technology world have a saying for people like Mr. Levitte: “RTFM”

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