Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for February, 2009

“Acoustic radiation”

Some opponents of wind turbine farms in Maine say they’re concerned not just about audible noise but “low-frequency noise, so soft you can’t hear it,” from the installations, which they claim is linked to a wide array of health problems, not to mention “the strobe effect created by the sun setting behind the spinning blades, which some say can lead to seizures”. On an anti-turbine website, a New York doctor describes “acoustic radiation” as a mix of “audible sound, infrasound and vibration, in a pulsating character, that appear to trigger serious reported health problems in those families living near wind turbine installations.” State officials in Maine, on the other hand, would prefer to keep the focus on sound levels loud enough to actually be noticed:

The state’s chief medical officer has her doubts about turbine-related health effects. When it comes to potential hazards, “If anything, there’s evidence to put a moratorium on fossil fuels not on wind turbines,” Dr. Dora Ann Mills said Friday.

[Kathryn Skelton, Lewiston Sun-Journal] (& Solicitr, UK)

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Disney thrill ride therapeutic, woman says

“A Florida woman who claims the G-forces from a theme park ride relieve her chronic pain has sued Walt Disney World for breaching its contract with visitors by limiting her to four rides per visit on its Tower of Terror. … In a complaint filed last month in Osceola County, Fla., Denise Mooty alleges she needs the Tower of Terror for therapy rather than thrills.” Disney denies the charges and says Mooty was made to leave the park “for causing a disturbance within the presence of other guests and using foul language toward a Cast Member.” [Heller, OnPoint News]

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Bernard Madoff and Milberg Weiss, cont’d

A week ago I briefly noted that now-imprisoned securities class action king Mel Weiss appeared on the list of Bernard Madoff victims (163-pp. PDF courtesy WSJ, via Christopher Fountain) and observed how ironic it seemed that someone who made great claims to expertise in sniffing out stock fraud should have been taken in by it.

According to correspondence from New York securities lawyer (and longtime Weiss critic) Howard Sirota, however, there might be to the story than that:

I wouldn’t be so quick to jump to the conclusion that Mel Weiss [fouled] up investing with Madoff.

Weiss’ wife and son Stephen A. Weiss invested with Madoff, as did [Milberg Weiss partners] David Bershad and Pat Hynes.

In addition, convicted serial Milberg plaintiff Howard Vogel invested with Madoff.

Buchbinder Tunick, Milberg’s accountants and ironically Milberg’s principal forensic accounting experts, appear on the list, although the entries may be clients of the Buchbinder firm.

Class action firms Wolf Popper and Wolf Haldenstein also appear.

Sirota believes that other persons and entities on the Madoff victims list have also served as lead plaintiffs in securities litigation or as plaintiffs in other litigation handled by class-action firms. All of which could be mere coincidence, or could suggest that either Madoff himself or others in his circle might have played some role in funneling lead plaintiffs to the class-action bar. (Particularly in the “race to the courthouse” era that preceded the Private Securities Litigation Reform Act, having a stable of cooperative repeat plaintiffs was vital to the success of many plaintiff’s firms.)

One way to check this thesis, Sirota suggests, would be to check the names on the Madoff victims list against those on the list of plaintiffs maintained by the Stanford Law School securities class action clearinghouse to see whether there are any other noteworthy matches and if so whether they follow any particular pattern. He also asks whether some of the law firms that have been organizing task forces to recruit and represent plaintiffs in the Madoff scandals — they include the Milberg firm and Wolf Haldenstein — have adequately disclosed to potential clients in their literature that their firms’ own names figure on the Madoff victims list. More: Gary Weiss, Larry Ribstein.

Further: Yet more views. And in comments, a visitor says Wolf Haldenstein is on the list because clients of the firm invested with Madoff, not because the firm itself did.

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Snopes and CPSIA

How wrong — and how seemingly unembarrassed about being wrong — is the popular urban-legends site? After I raised the question on Friday, reader Meredith Wright wrote the site and got a highly unsatisfactory response, which I’ll reprint here (and have also printed in comments):

Comment (MW): First of all, I LOVE your website, and usually find it well-sourced. But your inboxer article on CPSIA is just incorrect. CPSIA is a poorly written law (and apparently a poorly READ law – most of the representatives and senators who voted for it never bothered to read it – kind of like the PATRIOT Act), but it IS going to impact a LOT of people who shouldn’t have to suffer, mostly small business owners and LIBRARIES.

Go to Overlawyered.com and check it all out. I have no ax to grind here
(although my representative is Waxman, one of the morons who wrote this stupid bill) and just want you to take a look at the other side of the
issue. At the very least, your article should be labeled “undetermined” not “false.”

Kind regards,
Meredith Wright

And the response:

From: snopes.com [email redacted]
Subject: Re: snopes.com: Page Comment
To: Meredith Wright [email redacted]
Date: Friday, February 13, 2009, 6:43 PM

It’s covered in our FAQ at http://www.snopes.com/info/faq.asp

Many of the texts we discuss contain a mixture of truth, falsity, and exaggeration which cannot be accurately described by a single “True” or “False” rating. Therefore, an item’s status is generally based upon the single most important aspect of the text under discussion, which is summarized in the statement made after the “Claim:” heading at the top of the page. It is important to make note of the wording of that claim, since that is the statement to which the status applies.

Urban Legends Reference Pages
http://www.snopes.com


* * *

So [this is W.O., editorializing, now, not Snopes or Wright] it doesn’t matter how often people read the Snopes item and conclude that the alarms over resellers and CPSIA are unfounded, hysteria, far-fetched, etc. The posting was narrowly accurate when it came to refuting one particular false sub-rumor, and so there’s no need to apologize for, let alone correct, the dismissive tone and poorly informed opinionizing on prospects for enforcement that led many readers into a wider and more serious error, namely thinking that children’s resellers who don’t “blatantly take a cavalier attitude” about customer safety would have no trouble living with the law’s requirements. If you believed Snopes on that, you would have been grossly unprepared for the convulsions in the children’s resale business that began making headlines in recent days.

Incidentally, for those keeping score, the Snopes entry gets other facts about the law wrong too. For example, it announces that “children’s products made after [emphasis added] February 10, 2009″ face lead certification requirements. This was not true either before or after the CPSC’s 11th-hour stay of certification enforcement: it was and is the date of sale or distribution, not of manufacture, that triggers the requirements. A small maker or dealer relying on the Snopes piece might have concluded that its pre-2/10 stocks were not affected by the certification controversy — big, big mistake.

(Public domain image: Grandma’s Graphics, Margaret Tulloch).
More research next time please

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Update: BlockShopper settles with Jones Day

In a case that sent alarms around the internet, the giant law firm had sued a startup website for supposedly impermissible linking; a judge let the suit go forward, and BlockShopper said it couldn’t afford to defend the case through trial [Alison Grant/Cleveland Plain Dealer, Ambrogi, Wendy Davis/Slate, ABA Journal, settlement agreement (PDF); earlier here, here, here, etc.]

More: Paul Alan Levy/CL&P, Ron Coleman, Sam Bayard/Citizen Media Law.

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CPSIA: “Books, left out at the curb…”

Bedtime without books
Cecilia Leibovitz in our comments section:

Today I noticed a small box of books that had been left out at the curb of a thrift shop here in Vermont. All but two were children’s books printed prior to 1985.

Feel free in comments to add your sightings, positive or negative, of what is happening in the world of kids’ resale. (More: Bookseller Nora O’Neill took six boxes’ worth of kids’ books off the shelves in her store, retail value $2,500, and is not happy about that: “Yes, Alexander, it is a Terrible, Horrible, No Good, Very Bad Day.” She also has an earlier post).

Some reactions to my coverage of the threat to pre-1985 kids’ books, both at this site and in my new opinion piece at City Journal: famed sci-fi writer Jerry Pournelle (scroll to Feb. 12), Justin Taylor/Between Two Worlds, Series Books for Girls, Liberty Maven/DownsizeDC, Melissa Wiley, The Catholic Bubble, Carter Wood/ShopFloor, and Ella’s Deli. I also got a very nice note from Michael S. Hart, founder of old-text-preservation volunteer group Project Gutenberg, one of my favorite things about the Internet. And if you haven’t read Mark Bennett’s post at Defending People, linked earlier, go do so. (More: Dilettante’s Dilemma, Jeff Sypeck (test, toss, or evade?), Todd Seavey, International House of Bacon (“Again — the single worst piece of regulation in my lifetime”)).

Adapting a theme taken up by Deputy Headmistress, Love2Learn Blog has started a meme of “My Five Favorite Endangered Books” at risk of disappearing from the market under CPSIA. She makes the important point that even when pre-1985 children’s literature remains available in post-1985 reprint editions, the physical quality is often not the same: in many cases binding and paper quality is lesser, color illustrations missing or shrunken or rendered only in black and white, all of which can rob the works of their original magic. Wikipedia’s “Illustration” article is worth a look. Commenters at Common Room also suggest one group of public figures who might be prevailed upon to speak out against what the law is doing: namely, living authors of pre-1985 (and out-of-print/oop) kids’ books. It’s a group that would include some fairly big names and might get noticed in the press.

Public domain graphic: Grandma’s Graphics, Mabel Betsy Hill.

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U.K.: Europe court says prisoners have right to use artificial insemination

“Six prisoners in British jails are applying to give sperm to their wives and partners after a landmark European court ruling concluded that their human rights were breached if they were stopped from having children. The inmates, all serving long terms, are basing their applications on claims they will be too old to become fathers once they have finished their sentences.” [The Guardian]

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CPSIA chronicles, February 13

Coping with strong winds

  • I’ve got a new opinion piece just up at City Journal on the pressure on thrift stores, inexpensive used-book dealers and other resellers to trash most of their stocks of pre-1985 children’s literature. Some of the ground it covers will be familiar to those who read Tuesday’s post at this site, as well as yesterday’s mention of CPSC commissioner Thomas Moore’s call last week (PDF) for some undefinedly large share of pre-1985 books to be “sequestered” until more is known about their dangers.

  • Several bloggers have pointed to this post at Semicolon Blog which reminds us that many post-1985 children’s books are also at risk of destruction, in particular those enhanced with decorative or amusement-providing elements in materials other than paper:

    My daughter works in a used bookstore. TODAY they pulled all the books from the children’s section that had any kind of metal or plastic or toy-like attachment, spiral bindings, balls or things attached, board books, anything that might be targeted under this law, and they very quietly trashed them all. I say “very quietly” because the bookstore had a meeting with employees and told them to be careful not to start a panic. If anyone asked what they were doing they were told to say that they were “rearranging their inventory.” No one was allowed to tell anyone about the new law, and no one was allowed to take any of the doomed-for-destruction books home or give them away.

    It should be noted that completely plain board books would be probably considered “ordinary” and thus safe to resell under the CPSC’s guidelines so long as they contain no special texturized elements such as rubber, foil, nubbly synthetic pretend-dinosaur-skin, genuine stink bugs encased in clear plastic, etc., etc.

    A lot of blogs have begun to notice the kids’ book issue, and I may round up highlights at some point. For now, start with Deputy Headmistress at Common Room;

  • Thanks to Esther of Design Loft for confirming something of which I’ve heard rumors for a while, namely that CPSIA bans ballpoint pens when designed or marketed for persons under 12, because of the irreducible minimum of lead in the mechanisms. Giving the kids adult ballpoint pens is still okay, but shipments of adult pens to, say, middle schools are at the very least under a legal cloud, and it is reasonably clear that pens with kid-oriented decorations on them have become unlawful to sell unless the decorations can be somehow expunged to do away with the kid appeal. A trade group called WIMA, the Writing Implement Manufacturers Association, is now petitioning for an exemption (PDF). I see that Deputy Headmistress is now on this in her usual thorough way;
  • Virginia Postrel’s superb piece at her Dynamist blog got a lot of attention, including links from leading bloggers Glenn Reynolds and Andrew Sullivan. She’s followed up with second and third posts, the latter of which asks:

    Why stop with products “primarily” for kids? Why not test everything a kid might encounter, from sofa cushions to bathroom mirrors?

    But maybe I shouldn’t say that. Public Citizen might get ideas.

  • More from Deputy Headmistress: “FedEx now requires a Certificate of Conformity as required by the CPSIA before they will accept any imported products,” with a roundup on motorcycles, substitute chemicals, and other topics. And I predict Public Citizen is going to rue the day it ever got the D.H.Mrs. on its case with its misrepresentations about the law;
  • Journalist Radley Balko blogs on the law at The Agitator (and also has kind words for my coverage, for which thanks). And Katherine Mangu-Ward reveals that she’s going to have an article on the law in an upcoming issue of Reason;
  • Who knew that the New York Times was so bad at covering the problems of the book, design and garment trades, and so good at covering crises in the world of motorcycles? But the proof continues;
  • Reader Adam L., fresh from this thread at PhillyBlog, writes:

    I was discussing your City Journal article with someone and
    they pointed out this Snopes article, which would seem to contradict
    yours. I am curious about your view.

    To which I wrote back:

    Snopes botched it. It’s true there was an erroneous rumor going around a few weeks ago that resellers would be legally required to do lead testing. The CPSC and others corrected this and pointed out that although resellers would be liable for selling anything over the lead ppm limit, they were not legally obliged to test, that is, they could take their chances. Hence Snopes is literally correct when it points out testing is not required, but flatly misses the wider story, which is that fear of liability is by no means an imaginary phenomenon since many older items (including some books) do flunk the new standards, even if posing no material risk to kids, and reliance on CPSC enforcement forbearance is chancy, especially since the CPSC is not the only source of enforcement for the law.

    Many people have written to Snopes in recent weeks asking them to correct their item, but they have done nothing.

    And then I pointed him to coverage at this site and elsewhere on thrift stores’ removal of books and other merchandise that pose no risk to kids but that cannot readily be known to comply with the law.

    I keep waiting for Snopes to correct, and they keep not doing so, even after the past week’s coverage of convulsions in the thrift store world. This is highly damaging because so many writers and editors check Snopes as a quick way to dismiss false alarms — I’ve done so myself many times, though I am less inclined to do so again. Is it time for someone to set up a “Shame on Snopes” page? (More: reader Meredith Wright wrote to Snopes and got a highly unsatisfactory response, reprinted in comments below);

  • Wisconsin bookseller Valerie Jacobsen charges Sen. Claire McCaskill (D-Mo.) with telling a “goofy whopper” about the safety problems that led up to the law’s passage;
  • Jacobsen also correctly pinpoints one of the key questions in the unfolding political struggle under CPSIA: will there be a hearing in Washington around which public and media interest might crystallize, and if so will it be under the full control of those who want to keep the law as it is, or will dissenting voices be heard too? She writes:

    Henry Waxman, chairman of the [House] Committee on Energy & Commerce and Bobby Rush, chairman of the Subcommittee on Commerce, Trade, and Consumer Protection, don’t want any reasonable amendment and are refusing to allow any discussion.

    They don’t want more hearings. They don’t want more talk. They want compliance. Waxman and Rush are the original sponsors of CPSIA, so you can see why they don’t want the damage they’ve caused to go on the record.

  • Attorney Sandra Ezell, Bowman & Brooke: “There are a lot of excellent products and excellent companies” that won’t survive CPSIA even though “they basically had no dog in the fight”. [Inside Counsel]

Public domain illustration: Ruth Mary Hallock, Grandma’s Graphics.

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