- “Plaintiffs’ Attorneys to Get $800,000 in Preliminary Settlement, Class Members Receive Zero” [Calif. Civil Justice covering Bluetooth settlement in which Ted was objector; earlier here and here]
- “Lawyer Jailed for Contempt Is Freed After 14 Years” [Lowering the Bar, earlier]
- Money makes the signals go ’round: another probe of red-light cameras yields few surprises [Chicago Tribune, Chicago Bungalow, Bainbridge on Washington, D.C.]
- Previously little-known company surfaces in E.D. Tex. to claim Apple, many other companies violate its patent for touchpads [AppleInsider via @JohnLobert]
- Child endangerment saga of mom who left kids at Montana mall is now a national story [ABC News; earlier post with many comments; Free Range Kids and more]
- Meet Obama Administration “special adviser on ‘green’ jobs” Van Jones [“Dunphy”, McCarthy at NRO “Corner”]
- Irrationality of furloughs at University of Wisconsin should provide yet another ground to question New Deal-era Fair Labor Standards Act [Coyote]
- Australia’s internet blacklist is so secret you can’t even find out what sites are on it [Popehat – language] Oz to block online video games unsuitable for those under 15 [BoingBoing]
Archive for 2009
The civil litigation death penalty
There’s an old legal joke that goes: “If you’re weak on the facts, pound the law. If you’re weak on the law, pound the facts. If you’re weak on both the facts and the law, pound the table.”
Except the entrepreneurial trial bar has found an intermediate step: instead of pounding the table, pound the discovery requests. Persuade a judge that a discovery snafu was really a deliberate attempt at a cover-up, and get sanctions that prohibit the other side from defending itself. Because plaintiffs rarely have discovery obligations that are more than an infinitesmal fraction of a defendant’s discovery obligations, this can be a profitable strategy.
The strategy is not new–I saw it myself first-hand in the 1990s defending GM, and wrote a piece about a trial where John Edwards successfully used a variant. But as discovery gets more and more complex due to emails, voicemails, and instant-messaging, it becomes easier for the discovery snafu to happen, and it becomes harder for judges to distinguish between good-faith mistakes and bad-faith withholding of documents. You may recall a famous example in Florida where Morgan Stanley was precluded from introducing evidence about a transaction involving Sunbeam before the appellate court threw out the entire case.
A recent example of this sort of gamesmanship is going on now in Florida where a group of lawyers representing Ecuadorian shrimp farmers came up with a brand new implausible theory of their case–now alleging that runoff from a formulation of a Benlate fungicide that stopped being used in 1991 is what caused their damages in the mid-to-late 1990s, all so they can claim to a judge that DuPont’s failure to produce documents about this marginally relevant formulation (which was effectively identical to the other formulations, except it included two inert ingredients) deserved sanctions. And sure enough, the court ordered a civil death penalty: all of DuPont’s defenses have been stricken, even though there is no scientific evidence that fungicide runoff caused the virus that killed many Ecuadorian shrimp. (Aquamar S.A. v. DuPont, Case No. 97-020375 (Broward County, Fla.))
A similar case involving Goodyear and a civil death penalty sanction that resulted in a $30 million verdict is pending in the Nevada Supreme Court.
A word for Hosting Matters
No, we haven’t begun accepting advertising, but we figured we’d put in a good word for Hosting Matters, whose hosting services we’ve been using for years and whose support staff over that time have helped extricate us from more than one baffling technical impasse arising from software oddities, DOS attacks and so forth. If you follow the linked graphic, or just click here, you’ll find the details of a promotion they’re doing for an “unmetered” hosting plan (not quite the same as “unlimited”, as they explain) which provides a lot of availability at a low price for those who manage growing websites. If you sign up through us, we also get some sort of credit on our own hosting bill, which I suppose puts this in the category of blog posts that the Federal Trade Commission is so keen on regulating.
“Hearing-impaired football fan sues Ohio State”
“A hearing-impaired Ohio State University football fan has sued the school, arguing that the university should offer captioning on the scoreboard and stadium televisions because he can’t hear the announcers.” [Akron Beacon-Journal]
U.K.: “Even mathematicians run scared of our libel laws now”
According to Nick Cohen in the Observer/Guardian, some British mathematicians are afraid to publish critiques of “quant” models and techniques employed in the banking and financial worlds for fear of being taken to court under the country’s famously pro-plaintiff defamation laws. More on the Singh case (critic sued by chiropractic association) here and here.
“Lawsuit claims Apple, Mafia sent threats via iPod”
Anyone suing over anything dept.: a Florissant, Mo. man proceeding pro se (without a lawyer) “is suing Apple because he says two of the company’s iPods contained illegal receivers that allowed the Mafia to send him threatening messages, according to court documents obtained by CNET. … The alleged motive for the threats was that the Mafia wanted McKenna to work as a fashion model for them at a New York modeling agency.” The suit also names the St. Louis County police department and other defendants. [CNet, The Petition Site, AppleInsider, Gizmodo]
July 19 roundup
- Federal court rules “shy bladder syndrome” an ADA-protected disability [World of Work via Hyman]
- “Goldman Sachs Backs Down in Long Legal Battle With Blogger” [American Lawyer, WSJ Law Blog, Coleman, earlier]
- San Diego: unforeseen consequences of “anti-blight” lender regulation [Outside the Box]
- 1,000 lose jobs as environmental litigation halts Northern California refinery project [Wood, ShopFloor, update]
- City of Detroit lawyers on ethical hot seat after former mayor’s texting coverup scandal [ABA Journal, earlier]
- What happens when IP law firms breed homegrown patent trolls? [Ron Coleman]
- “It’s kind of like the practice of law, except that the clients are more likely to leave happy.” [Glenn Reynolds being naughty on Instapundit]
- U.K.: Owner of copyright to John Cage’s avant-garde “four minutes and thirty-three seconds of silence” work sues later impresario whose album track includes one minute of silence [seven years ago on Overlawyered; New Yorker treatment]
When business arrives
Don’t
…steal $2.2 million by pocketing, e.g., clients’ medical and car-crash liability settlements and a real estate escrow [attorney Marc A. Bernstein, 54, of Bernstein & Bernstein LLP in Manhattan, according to two indictments; Mortgage Fraud Reporter, NY Post; license suspended in April; earlier]
“Few plaintiffs in Ford case use coupons as lawyers reap millions”
Fewer than 100 consumers out of a million covered in a class-action lawsuit settled in Sacramento Superior Court have redeemed coupons to buy a new Ford, but that hasn’t stopped their lawyers from cashing in on a sweet payday.
So far, the dollar value remitted to plaintiffs in the Ford Explorer rollover class-action lawsuit has added up to about $37,500. Meanwhile, squadrons of lawyers from 13 firms from Sacramento to Woodbridge, N.J., have raked in more than $25 million in attorneys’ fees and expenses.
More: The Recorder. And Ted in comments flags our coverage of the case two years ago.