ABC Good Morning America signs on to the litigation lobby war against freedom of contract by parroting a Public Citizen anecdote about the supposed horrors of arbitration–though the underlying problem (mistaken identity of Anastasiya Komarova) had nothing to do with the arbitration proceeding. Needless to say, none of the benefits of arbitration to consumers was mentioned, and only Public Citizen’s one-sided and misleading statistics were used. Nathan Burchfiel is on the case.
Archive for 2008
Client-chasing roundup
- Screening firm hired by Beaumont, Tex.’s Provost Umphrey to do mass silicosis x-rays at Pennsylvania hotels is fined $80,500 for breaking various state rules, like the one requiring that a medical professional be on hand [Childs]
- Milberg Weiss’s special way of obtaining perfectly pliant clients — that is to say by bribing them under the table — harmed other class members by increasing fees but not settlement sums, suggests a new study by St. John’s lawprof Michael Perino for Ted’s project at AEI [Carter Wood @ PoL]
- Time for Texas to join many other states in requiring lawyers to inform clients when practicing without professional liability insurance [SE Texas Record; earlier here, here and here]
- Lawyers, in concert with their public pension fund allies, jockey for control of securities case against Bear Stearns [Gerstein/NY Sun]
- Another court, this time in California, rules that a screw maker can’t sue a law firm on the claim that its solicitation of potential claimants wrongly portrayed the company’s products as defective; amicus brief from state trial lawyers group and Sen. Sheila Kuehl says relevant provisions of state’s “SLAPP” law were “meant to protect plaintiffs groups, not companies” [The Recorder via ABA Journal; earlier case from Tennessee]
- Most lucrative Google AdSense words still dominated by asbestos and other personal injury practice, the top terms being “mesothelioma treatment options” ($69.10 per click, and the point of obtaining the click is not to provide treatment options), “mesothelioma risk” ($66.46), and “personal injury lawyer michigan” ($65.85) [CyberWyre via NAM “Shop Floor”; more here, here, etc.]
“Mother Teresa, move aside”
Mel Weiss — yes, that Melvyn Weiss, of Milberg Weiss, the one who ran a corrupt but lucrative kickback scheme premised on systematic lies to judges over decades, then stonewalled its disclosure through years of investigation — “deserves recognition as ‘one of the greatest humanitarians of our time,’ according to a sentencing memo his lawyer filed Friday.” (Ben Hallman, “Urging Leniency, Big Names Go to Bat for Mel Weiss”, American Lawyer, May 28).
Included were more than 240 supportive letters filed by friends and well-wishers of the famously piratical class-actioneer. It’s hard to read the WSJ law blog’s excerpts from these letters without shedding a tear of admiration:
“Donald Kempf, the former chief legal officer at Morgan Stanley says that after an unexpected on-the-street encounter, Weiss offered to help Kempf find a certain kind of watch. “And he did.”
According to a letter submitted by a friend and art dealer in Sun Valley, Idaho, in a “spontaneous” gesture while in Vienna, Weiss bought the art dealer’s wife an expensive pair of boots.
(WSJ law blog, May 27). The roster (PDF) of character vouchers and pleaders for leniency includes many names familiar to readers of this site, including Stephen Susman, Benedict Morelli (president of the New York State Trial Lawyers Association), David Boies, Stan Chesley, Edward Labaton, and Christopher Seeger; the list is headed by lawprof and frequent Milberg Weiss expert witness Arthur Miller. We commented in February on the similar batch of letters on behalf of Weiss’s felonious collaborator Bill Lerach.
Breaking and exclusive: FACTA held unconstitutional
We’ve previously written about the problems of the Fair and Accurate Credit Transactions Act (FACTA), which imposes astronomical statutory damages on vendors whose credit card receipts fail to comply with ambiguous technical requirements. Today’s Daily Business Review recounts the tale of a small-business owner whose restaurant was hit with one of these suits, and how Congress has unanimously passed legislation, over some trial-lawyer objections, to shut down previous suits, though the bill far from solves the litigation problem from popping up again, and trial lawyers vow to continue pressing the suits. “U.S. Sen. Charles Schumer, D-New York, who sponsored the Senate bill, said, ‘Congress never intended for the law to be used to drive companies out of business with expensive legal cases that don’t involve any harm to consumers.'”
Meanwhile, Judge William M. Acker, Jr., of the Northern District of Alabama, had a series of summary judgment motions in four FACTA cases before him. He rejected the idea that class certification was inherently improper when the resulting statutory damages would bankrupt the defendant (an issue I discussed in my Liability Outlook on the subject), but held that the $100-$1000 statutory damages, without a showing of harm, were necessarily punitive in nature, and thus constitutionally impermissible under State Farm v. Campbell: Read On…
Breaking: Merck wins two more Vioxx cases on appeal
AP reports a Texas court has thrown out the infamous Ernst $26 million judgment; a New Jersey court has tossed $9 million of the judgment in McDarby. More details on Point of Law as available.
Ernst was the first Vioxx suit to go to trial. A jury awarded $253 million. Mark Lanier waited months before asking for a final judgment; at the time, I suggested that this was because he knew the case would be reversed on appeal, and did not want the bad publicity. Indeed, the appellate decision perhaps comes too late for Merck: the number of lawsuits increased from 6000 to 60000 in the months following publicity over the jury verdict, costing Merck billions of dollars in the later extortionate settlement.
With these two decisions, only three plaintiffs’ verdicts in favor of Merck remain.
Update: I still haven’t seen the McDarby decision, but an updated AP story indicates that it upheld the compensatory damages of $4.5 million, overturned the $9 million punitive damages verdict, and overturned the consumer-fraud judgment (which also saves Merck millions of dollars in plaintiffs’ attorneys’ fees).
Doesn’t Even Leave The Airport
“A New York lawyer is suing Delta Air Lines for $1 million, saying his family vacation turned into a nightmare after they were stranded in an airport for days and treated disdainfully by airline employees. Richard Roth, who filed the lawsuit on behalf of himself and his mother, said he planned the Christmas 2007 trip to Buenos Aires to celebrate his mother’s 80th birthday.” (Reuters/MSNBC, AP/Atlanta Journal Constitution). Best quote, arguably, from Roth: “I tried so hard not to sue them.” (New York Post). Scott Greenfield is not entirely admiring (or maybe he is, it’s hard to tell).
P.S. Okay, you win, then: Greenfield was being entirely admiring of the action, million-dollar-demand and all.
Thomas Bentey v. St. Thomas University Law School update
We wrote about this lawsuit when it was first filed in 2006, and were curious what was up with it. Bentey flunked St. Thomas U Law School; he then retained an attorney, Michael Lombardi, to sue numerous defendants alleging that it was consumer fraud for St. Thomas to admit him in the first place and seeking an injunction over Bentey’s contracts grade, suggesting a second person who should’ve flunked law school. The case was transferred from New Jersey to the Southern District of Florida in December 2006, and the multiple defendants filed a joint motion to dismiss in March 2007. The parties then apparently agreed that Bentey would voluntarily dismiss his case in April 2007; the terms of the settlement were not publicly discussed, but I’d be surprised if they weren’t simply a walk-away.
A Thomas Bentey who lives in New Jersey has a public Facebook page, though we make no representation that it’s the same Thomas Bentey.
Turkewitz April Fools joke still paying dividends
Blogger Eric Turkewitz fooled a lot of people with his April Fools Day blog-post about Supreme Court justices differing amongst themselves whether to recuse themselves from the pending cert petition in the fantasy-baseball case CBC Distribution v. Major League Baseball Advanced Media because of their own participation in a fantasy baseball league–a timely satire of the tsuris caused by individual Supreme Court members’ insistence in holding shares in individual stocks instead of mutual or index funds, which has caused recusals and 4-4 rulings.
But someone at American Lawyer didn’t get the memo when Turkewitz jumped up and said “Gotcha!” The hoax is repeated as fact (without attribution) in an unsigned squib on page 25 of the May 2008 issue of the $385-annual-subscription glossy. The moral is: don’t believe everything you read. Even if it’s in the extensively fact-checked mainstream media. The issue has been out for four weeks, and this post appears to be the first time someone has noticed the error publicly.
(As for the copyright issue in the fantasy baseball case, where baseball players claim intellectual property rights in their statistics, that really is before the Court in its certiorari conference Thursday the 29th; Overlawyered covered the Eighth Circuit opinion by Judge Morris Arnold October 23 and at the lower court level in 2005 and 2006.)
Blogosphere on Grand Theft Auto class action
This weekend’s post on my objection to the Grand Theft Auto “hot coffee mod” class action settlement drew commentary and link-love from GamePolitics, Escapist, and Above the Law. Sadly, no one has updated the Wikipedia page.
May 28 roundup
- More on that New Mexico claim of “electro-sensitive” Wi-Fi allergy: quoted complainant is a longtime activist who’s written an anti-microwave book [VNUNet, USA Today “On Deadline” via ABA Journal]
- Your wisecracks belong to us: “Giant Wall of Legal Disclaimers” at Monsters Inc. Laugh Floor at Disneyland [Lileks; h/t Carter Wood]
- New at Point of Law: AAJ commissions a poll on arbitration and gets the results it wants; carbon nanotubes, tomorrow’s asbestos? California will require lawyers operating without professional liability insurance to inform clients of that fact (earlier here and here); and much more.
- Actuaries being sued for underestimating funding woes of public pension plans [NY Times via ABA Journal]
- City of Santa Monica and other defendants will pay $21 million to wrap up lawsuits from elderly driver’s 2003 rampage through downtown farmers’ market [L.A. Times; earlier]
- Sequel to Giants Stadium/Aramark dramshop case, which won a gigantic award later set aside, is fee claim by fired lawyer for plaintiff [NJLJ; Rosemarie Arnold site]
- Privacy law with an asterisk: federal law curbing access to drivers license databases has exemption that lets lawyers purchase personal data to help in litigation [Daily Business Review]
- Terror of FEMA: formaldehyde in Katrina trailers looks to emerge as mass toxic injury claim, and maybe we’ll find out fifteen years hence whether there was anything to it [AP/NOCB]
- Suit by “ABC” firm alleges that Yellow Book let other advertisers improperly sneak in with earlier alphabetical entries [Madison County Record]
- Gun law compliance, something for the little people? A tale from Chicago’s Board of Aldermen [Sun-Times, Ald. Richard Mell]
- Think twice about commissioning a mural for your building since federal law may restrain you from reclaiming the wall at a later date [four years ago on Overlawyered]