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| ARCHIVE -- JUNE 2000 (II) |
June 20 -- The
judge chips in. From suburban Washington, a story that
ends with not your usual kind of wealth redistribution: moved by the plight
of a couple facing eviction for falling $250 behind on their rent, Fairfax,
Va. judge Donald P. McDonough simply handed his own money to the landlord's
stunned attorney and said, "Consider it paid." "Not something you
see much," said bailiff Erin Cox, who was present. "Not something
you see ever." Odder and odder: four attorneys on hand for other
cases, seeing the judge's example, pulled out their own checkbooks and
offered donations to the couple. (Michael Leahy and Leef Smith, "A
Beneficent Bench", Washington Post, June
10).
June 20 -- "New
York City moves to slash Cendant fees." "New York City
[recently] submitted legal papers challenging as "astronomical" the $262
million fee request -- set under a court auction procedure -- that was
submitted by the law firms that negotiated the record breaking $3.1 billion
settlement in the Cendant case." The class
action firms of Bernstein Litowitz Berger & Grossman in New York
and Barrack, Rodos & Bacine in Philadelphia had been named by the court
to represent investors seeking to recoup losses suffered in 1998 when the
parent company of the Avis and Ramada Inn franchises conceded that its
books showed massive accounting irregularities. (Daniel Wise, New
York Law Journal, June 1) (update Sept.
4: judge approves fee).
June 20 -- "A Civil
Action" and Hollywood views of lawyers. In Boston this
spring, the Federalist Society convened a panel discussion on Hollywood's
portrayal of lawyers and litigation, specifically the movie "A Civil Action"(our
take on it) as well as clips from several other films. Featured
on the panel were several of the attorneys involved in Anderson v. W.R.
Grace, the case highlighted in "A Civil Action", including Jerome Facher
of Hale and Dorr (Beatrice Foods), Kevin Conway (plaintiffs), and Michael
Keating and Marc Temin of Foley, Hoag & Eliot (W.R. Grace). The
moderator was Evan Slavitt of Gadsby Hannah LLP (1 hour, 50 minutes --
NetRoadShow).
June 20 -- "Litigation
grows in ailing nursing home industry". Lawyers
say rising rates of court action are understandable since there's so much
neglect and abuse in long-term care (a spokeswoman from "the Coalition
to Protect America's Elders, a group funded by trial lawyers," agrees)
while administrator Marty Goetz at the River Garden Hebrew Home in Jacksonville
says good and bad home operators alike are being "sued to death".
After making nursing home suits a
big business in Florida, lawyers have fanned out to nearby states such
as Alabama and Tennessee. (Julie Appleby, USA Today, June
19). Three long-term-care operators have filed for bankruptcy recently:
Louisville-based Vencor, the largest
such chain; Albuquerque-based Sun
Healthcare Group, and Atlanta-based Mariner
Post-Acute Network, the second-biggest operator with more than 400
homes nationwide. Medicare reimbursement cutbacks are generally cited
as the main reason, but Mariner chairman Francis Cash said "explosive litigation
costs" were also a factor.
SOURCES: Healthcare Management Advisors HMA Strategy
Advisor, Jan. 28; "Nursing Home Files For Chapter 11", Jan.
18; Debra Sparks, "Nursing Homes: On the Sick List", Business Week,
July 5, 1999;
Lindsay Peterson, "Industry Tries Another Battle Tactic,", Tampa Tribune,
March 22, link now dead; Coalition
to Protect America's Elders (pro-liability); ProtectOurParents.com
(pro-legal reform, Florida Health Care Association).
June 19 -- Welcome
CNNfn, Intellectual Capital, CEI readers. Reed
Karaim's advice article for workers thinking of suing
their bosses mentions this site and quotes our editor; we like the
piece, but who gave it that headline? (Reed Karaim, "Work issues?
Go to court", CNNfn/WomenConnect, June 16). Intellectual Capital
bestows on us a mention/ quote/ link in an article on disabled
access and web design, and IC's readers have joined in a discussion
of the subject (K. Daniel Glover, "The Disability Divide", June 15).
And Max Schulz mentions this site in the Competitive Enterprise Institute's
latest Update (June).
June 19 -- "'Legislative
Subpoenas' Give Cities An Unfair Head-Start in Lawsuits".
"Should a city council be able to demand private books and records from
a company it is considering suing simply to evaluate the city's likelihood
of succeeding in a lawsuit and how much it may be able to recover? The
California Supreme Court is currently being urged to give carte blanche
to any city, no matter how small, to demand financial and other information
from its potential litigation opponents." The asserted power "threatens
every potentially unpopular business in the country." (Daniel E.
Troy (Wiley, Rein & Fielding and American Enterprise Institute), San
Francisco Chronicle, June
13).
June 19 -- Oh,
to be in England. On ABC's Politically
Incorrect last Monday, host Bill Maher brought up the case (see June
12) of the deaf man who's suing "Who Wants To Be a Millionaire?" because
he can't participate in its telephone screening process ("it seems like
in this country you are not alive unless you are suing someone.")
Comedian Dennis Miller, star of HBO's "Dennis Miller Live" said the case
showed the need to make it easier to collect
legal fees from those who file weak cases. Simon LeBon of Duran
Duran: "That's how it is in the U.K. If you're wasting people's time,
you pay the cost, simple as that." Miller: "Well, that makes sense.
We have come over here ... to get away from England because we found the
laws repressive. I get over here and I find out their laws are better
than ours." (June
12 transcript; other
show transcripts).
June 19 -- Shoot-'em-ups:
hand over your files. Per the Hollywood Reporter,
federal investigators have asked the major studios "to turn over media
and marketing plans for certain movies to determine whether the entertainment
industry is peddling violent fare
to young audiences," citing sources "familiar with" the Federal Trade Commission
probe of popular entertainment ordered by President Clinton after Columbine.
"Sources said stacks of boxes of evidence" had been handed over to the
federal agency, though with contents heavily redacted to remove proprietary
data. The Commission is currently pursuing the probe under its Section
6 informal authority, under which it does not exercise formal subpoena
power, but it could turn the proceedings into a probe under Section 5 authority,
in which it would have such power. "While tobacco is federally regulated
and movies, music and videogames are not, a veteran of the long court fights
with the tobacco industry sees parallels between how the FTC probed cigarette
marketing and how the FTC now seeks an education in entertainment marketing,
especially to children." (David Finnegan and Brooks Boliek, "Studios
asked to show media (sic) their plans for violent films", Hollywood
Reporter/Norwalk (Ct.) Hour, May 8, not online).
Plus: the attorney general of Illinois has seen fit to conduct
a "sting" operation on store owners' sale of violent videogames to minors,
though in general it's not unlawful for them to sell minors those games.
"Members of my staff also are researching alternative enforcement strategies
if voluntary compliance is not forthcoming," quoth the AG, Jim Ryan, whose
website is emblazoned with the
slogan, "For Children, For Families, For Illinois". (David Hudson, "Illinois
attorney general urges end to sales of violent video games to minors",
Freedom Forum, April
20). See also "No basis for liability" (editorial), Boston
Herald, April 9 (expressing relief at court's dismissal of Paducah
lawsuit, see April 13); Damon Root, "The
blame game", Liberzine, April
11; Paul McMasters, "Target practice on the First Amendment", Freedom
Forum, Feb.
28).
June 16-18 -- New
subpage on Overlawyered.com: Overlawyered skies.
Our newest subpage collects tidbits
of every sort on what happens when law becomes airborne, including material
on sport aviation, aerospace product liability, airline labor wrangles,
and even UFO suits, along with of course crashes and their aftermath.
June 16-18 -- No
right to kick him out. Delaware real estate developer
Louis J. Capano Jr. is suing the Wilmington Country Club after it expelled
him for having made false statements to a grand jury. Last year,
in a sensational case reported nationwide, a jury convicted Capano's brother,
former Wilmington attorney Thomas Capano, of murder in the 1996 disappearance
and death of 30-year-old Anne Marie Fahey, who had been a secretary to
the state's governor. A judge later sentenced Thomas Capano to death.
"During his brother's trial, Louis Capano acknowledged that he lied to
a federal grand jury in an effort to help his brother establish an alibi
in connection with Fahey's disappearance. He also admitted to helping dispose
of some evidence connected to the slaying." The country club subsequently
voted out Louis Capano after learning of his admissions; its bylaws allow
dismissal of members for conduct that is "disorderly or injurious to the
club's interest or reputation." Last month he sued in the Court of
Chancery seeking reinstatement and damages. ("Louis Capano Sues Wilmington
Country Club for Reinstatement", Delaware Law Weekly, May 11).
June 16-18 -- Penalty
for co.'s schedule inflexibility: 30 years' front pay.
"A federal jury in Pennsylvania awarded $1.5 million in a suit brought
under
the Americans with Disabilities Act
by a woman who said her bosses at first accommodated her Crohn's disease
by letting her work from home on a flexible schedule but later reneged
on that promise by insisting that she work specific days in the office."
Denise Davis, an insurance underwriter, said it was impossible for her
to commit to being in the office any particular days because she never
knew when her condition might flare up. "The eight-member jury awarded
Davis the highest estimate of economic damages presented by the plaintiffs
-- $1.3 million -- and $200,000 in compensatory damages. An economist
testified at trial that Davis, who is currently 37, has already suffered
losses of more than $40,000 in wages. And since no employer is likely
to hire her while needing an accommodation, he said that a present-value
estimate of her future lost wages up to age 67 is more than $1.2 million."
(Shannon P. Duffy, "Jury Awards Woman With Crohn's Disease $1.5 Million
in ADA Case", The Legal Intelligencer (Philadelphia), June 1).
June 16-18 -- Animated
advocacy. Cross
Circuit, a site decidedly in favor of the Second Amendment, carries
a number of cartoon animations that may raise a smile, including an interactive
game you can play ("Smith
& Wesson Clinton Pacifier") to get a feel for why so many firearms
owners grow nervous when they hear about lawsuits intended to prevent the
legal sale of any but "smart guns". We also admit to having laughed
at the London-nanny tale "Janet
Poppins", though we warn in advance that it is disrespectful to the
presently serving Attorney General (requires Shockwave
plug-in).
June 14-15 -- The
doctor strikes back. The courts make it next to
impossible for a vindicated physician
to turn the tables and sue the lawyer who filed a losing malpractice case,
but Dr. John Guarnaschelli, a Louisville neurosurgeon, has managed to beat
the odds. "Guarnaschelli charged that lawyer Fred Radolovich had
sued him without any evidence that he was negligent, without consulting
an expert, and without doing much of anything to determine whether he had
a case. Radolovich later conceded in a deposition that the only doctor
he consulted before filing the lawsuit [which was summarily dismissed]
was one of his own clients -- a family practitioner accused of fondling
patients during gynecological exams. That doctor told Radolovich to go
to a medical library instead....After a six-day trial, a Jefferson Circuit
Court jury concluded on April 25 that Radolovich had maliciously prosecuted
Guarnaschelli and ordered him to pay $72,000 in damages, including $60,000
in punitive damages." Too many other good details to summarize here
-- don't miss it (Andrew Wolfson, "Doctor strikes back at lawyer who sued
him", Louisville Courier-Journal, June
7; "Doctor sues lawyer for alleging malpractice", AP/Lexington Herald-Leader,
June
8).
June 14-15 -- One
gunmaker's story. Freedom Arms is a small company in the
town of Freedom, Wyoming, run by Bob Baker after being started by his father.
It "makes collector guns, precise, modernized versions of the old western
six-shooter that are sold to a small but multinational market." "Freedom
Arms customers must wait up to eight months for a handgun -- far beyond
the 24 to 72 hour waiting period debated by politicians -- because the
company only produces about 2,000 a year." It has not, however, been
spared the same litigation that has engulfed mass-market gun
producers. In the much-discussed 1999 case of Hamilton
v. Accu-Tek, it was one of 15 gunmakers a Brooklyn jury deemed negligent
in their marketing practices, but not among those ordered to pay $500,000.
"So far, Baker says he has spent more than $200,000 on legal bills and
laid off 12 of his 35 employees to fight the lawsuits." ("Gun Debate
Hits Home for Opponents in Lawsuit", AP/Salt Lake Tribune, April
20; Firearms Litigation Clearinghouse account
of Hamilton v. Accu-Tek).
June 14-15 -- "Trial
lawyers give $500,000 as legislation heads to Senate floor".
With two major liability-curbing bills pending in the Senate, "trial lawyers
in April contributed $508,000 to Democratic Senate campaigns," reports
AP. "The Houston law firm of Williams Bailey [a beneficiary of Texas
tobacco fees] donated $250,000 of
the total raised from trial lawyers in unregulated soft money during April
by the Democratic Senatorial Campaign Committee." A fund-raiser in
Savannah during an Association of Trial Lawyers of America conference brought
in $300,000: "Trial lawyers could chat with Democratic Sens. Tom Daschle
of South Dakota, the Senate minority leader; John Edwards of North Carolina,
a former trial lawyer himself; Charles Robb of Virginia and John D. Rockefeller
IV of West Virginia." Democratic Senatorial Campaign Committee spokesman
David DiMartino "said there was no connection between the legislation and
fund-raiser." Trial lawyers have lobbied against both bills currently
before the Senate: H.R. 2366 would limit punitive damages and the application
of joint and several liability (paying an entire award when others were
also responsible) for businesses with fewer than 25 employees, while H.R.
1875 would give defendants a right to have some class action lawsuits
heard in federal rather than state court. Both bills are priorities
of the U.S. Chamber of Commerce:
"The trial lawyers have a lot of money, but the small-business community
has a lot of votes," said James Wootton, who directs the Chamber's Institute
for Legal Reform. (AP/FindLaw, June 2).
June 14-15 -- The
judge wasn't asleep. A unanimous Second Circuit appeals
panel has upheld a judge's ruling that two lawyers and their clients should
pay sanctions for the submission of
dubious affidavits in an authorship dispute over the song "The
Lion Sleeps Tonight". In the lawsuit, four members of the 1950s
musical group The Tokens said they
had been fraudulently deprived of ownership rights for the 1961 hit (adapted
from an earlier song on the Folkways label under the title "Wimoweh", itself
an adaptation of a traditional African song). The members testified
in pretrial depositions that they first learned about the fraud in late
1992, but it developed that their 1996 lawsuit would therefore be barred
by a three-year statute of limitations on this type of action. Attorneys
Mitchell A. Stein and Stephen J. King then sought to present evidence that
their clients had been mistaken in the depositions and had actually learned
about the denial of authorship rights considerably later, which would salvage
a chance to proceed. Judge Michael Mukasey of the federal court in
Manhattan said that to credit the new version "would be to affect a level
of naivete about human affairs that is not required even of judges," and
ordered Stein and King to pay $15,000, and their clients $7,680, to help
"defray fees generated by their unreasonable conduct". (Mark Hamblett,
"Time-Barred Claim Leads to Sanction", New York Law Journal, May
25) (versions
of song, from Huga's Pad) (Tokens fan
site, Tom Simon).
June 13 -- Can't
sue over affair with doctor. "A Grand Island woman who
had sex with her gynecologist can't sue him for negligence and emotional
distress, the Nebraska Supreme Court said Friday." Affirming a lower
court opinion, the state high court "said the woman's lawsuit failed partly
because the relationship apparently was consensual."
The affair lasted for nearly six years, but the woman grew despondent after
the doctor ended it. (Butch Mabin, "Court: Woman can't sue doctor for negligence",
Lincoln Journal-Star, June
12).
June 13 -- From
the U.K.: watch your language. Stockport
College in Manchester, England, has banned the use of more than forty
"offensive" words and phrases, including
"postman", "chairman" and even "history" (sexist), "mad", "manic", "crazy"
(demeaning to mentally impaired), "the deaf", "the blind", "slaving over
a hot stove" ("minimizes the horror and oppression of the slave trade"),
"normal family", "ladies and gentlemen" (said to have "class implications"),
The 15,000-student college says it "will make it a condition of service
and admission that employees and students adhere to this policy".
(Martin Bentham, "College guide bans 'lady' and 'history' as offensive
words", Sunday Telegraph (London), June
11). And a public employment bureau in Staffordshire, England,
recently told an employer that it could not place a recruitment advertisement
that included the words "hardworking" and "enthusiastic", which it deemed
discriminatory. The bureau's parent agency explained that in its
opinion such terms, as well as terms like "reliable" and "smart", are overly
subjective and could foster discrimination
against the disabled. However, the education and employment minister
in the Blair government, David Blunkett, who is himself blind, ordered
the policy reversed and the words permitted; his office issued a statement
declaring that he "regards it as an insult to him personally to suggest
that a disabled person cannot be reliable, hardworking and enthusiastic."
(Maurice Weaver, "Hardworking job seeker? Do not apply within", Daily
Telegraph (London), June
7; Andrew Mullins, "Over-enthusiastic jobcentre boss champions the
cause of the lazy", The Independent (London), June
7).
June 13 -- Nader,
controversial at last. As a presidential candidate scoring
high enough poll numbers to affect the potential outcome in some close
states, Ralph Nader seems on the
verge of securing the thoroughgoing unpopularity in moderate liberal circles
that has so long eluded him. Although the Associated Press still
accepts his self-characterization as a "longtime advocate for the 'little
guy'", the New Republic has been blasting away at the close ties
Nader has formed with some not-so-little guys who share his antipathy to
free trade, such as conservative textile magnate Roger Milliken: "Says
Chip Berlet, an analyst at Political Research Associates who charts right-wing
influence on lefty groups: 'It's a little strange -- you come down to visit
Nader and Milliken's lobbyist picks you up." (Ryan Lizza, "Silent Partner",
The New Republic, January
10; letters exchange between Joan Claybrook and Lizza, May 1, is not
yet online). Still largely unaired in campaign coverage -- but explored
in pathbreaking articles by Forbes's Peter Brimelow and Leslie Spencer
a decade ago -- are Nader's much more longstanding ties to a far bigger
set of big guys, the plaintiff's trial bar, for which see links and quotes
below.
SOURCES: On trade controversy, and general background:
"Daily Notebook: Breaking the Silence" (third item), New Republic,
May 22;
John Judis, "Seeing Green", May
29 (Nader "elevates the struggle with corporations into an apocalyptic
conflict between good and evil" and turns business into a "bogeyman");
"Nader: Big Guys Invigorate Me", AP/CBS News, undated,
April (noting that Nader faces a handful of challengers for the Green
Party nomination, including "Jello Biafra, former lead singer of the punk
rock band the Dead Kennedys"); James Dao, "Nader Runs Again, This Time
With Feeling", New York Times, April
15 (reg) (critics charge "that despite his seemingly penurious way
of living, he is actually quite wealthy, that he purposely spent almost
nothing on his 1996 campaign to skirt federal election laws, which require
candidates who spend more than $5,000 to file reports disclosing their
assets"); Karen Croft, "Citizen Nader", Salon, Jan.
26, 1999 (uncritical appreciation by former Nader employee); VoteNader.com
(website for his candidacy).
On RN & trial lawyers, not online unless link given:
Peter Brimelow and Leslie Spencer, "The plaintiff attorneys' great honey
rush", Forbes, Oct. 16, 1989 (includes interview quotes from prominent
trial lawyers: "'We are what supports Nader. We all belong to his
group. We contribute to him, and he fundraises through us," says
Fred Levin [Pensacola, Fla.] ([then-annual income from practice] $ 7.5
million). 'I can get on the phone and raise $100,000 for Nader in
one day,' says Herb Hafif [Claremont, Calif.]. 'We support him overtly,
covertly, in every way possible,' says Pat Maloney [San Antonio, Texas].
'He is our hero. We have supported him for decades. I don't
know what the dollar amounts would be, but I would think it would be very
large, because we have the money and he has our unabridged affection.
I would think we give him a huge percentage of what he raises. What
monied groups could he turn to other than trial lawyers?'"); Peter Brimelow
and Leslie Spencer, "Ralph Nader, Inc.", Forbes, Sept. 17, 1990;
Associated Press, Sept. 10, 1990 (quoting RN: "If they don't retract I
will take them to court", an empty threat as it would seem); "Ralph Nader,
pro and con", Forbes, Oct. 29, 1990 (includes RN's response); Leslie
Spencer, "America's third political party?", Forbes, Oct. 24, 1994;
Andrew Tobias, "Ralph Nader Is a Big Fat Idiot", Worth, Oct. 1996;
"Ralph Nader's Dirty Little Secret", New York Post (editorial),
Mar. 19, 2000; Andrew Tobias, "Ralph Nader Really IS a Big Fat Idiot",
AndrewTobias.com, June
12, 2000.
June 12 -- Rewarded
with the bench. Probably no state official in the
country has done more to organize mass litigation than Connecticut attorney
general Richard Blumenthal, a key backer of gun,
tobacco and Microsoft
cases, among many others (see Dec. 2, March
31, Feb. 3, Feb.
16, April 11). Confirming (in
case we didn't already know) that marshaling such courtroom assaults is
a good way to get ahead in American law, Blumenthal is now reported to
be in line for a nomination by President Clinton to the powerful Second
Circuit Court of Appeals, which handles cases from New York and Vermont
as well as Connecticut. According to the Hartford Courant,
compliant Senate Republicans are expected to confirm him quickly and without
a fight. (Jon Lender and Michael Remez, "White House Eyes Blumenthal",
May 9; Michael Remez, "Blumenthal On Verge Of Court Nomination", May 17;
Michele Jacklin, "For The Last Time: Blumenthal Doesn't Want To Be Governor",
May 17). Update Oct. 10:
judgeship didn't go through, now angling for Senate seat.
June 12 -- Who
wants to sue for a million?, part II. In March,
four disabled Miami residents announced
they were suing the hit game show "Who Wants To Be A Millionaire?", saying
the show hadn't accommodated their efforts to become contestants, and "seeking
class-action status for themselves and others who are deaf, blind or paralyzed
and have problems using the phone or hearing the instructions." (see
March 24-26) Now Peter F. Liberti
Jr., who is deaf and a resident of Tonawanda, N.Y., has filed a similar
complaint. (Dan Herbeck, "Wanted: a fair hearing", Buffalo News,
June
8).
June 12 -- Bestiary
of the bar. In Cincinnati, Common Pleas Judge Fred
Cartolano recently complained from the bench "that there are too many lawyers,
too many law schools and too many opportunities for dishonest behavior.
'There are only so many fleas that can feed on a dog,' the judge said.
'We have lawyers coming out of the woodwork. There's not enough business
for all the lawyers out there.' Judge Cartolano spoke before sentencing
Kenneth Schachleiter to six months in jail for stealing about $91,000 from
the estate of an elderly client." (Dan Horn, "Judge decries lawyers
as 'fleas'", Cincinnati Enquirer, April
13). Fullerton, Calif. attorney Linda K. Ross, who practices
family and probate law, has filed a lawsuit against GTE Directories Sales
Corp. for mistakenly listing her name and phone number in a yellow pages
directory under the heading “Reptiles”. “She is subject to a great
many joke and hostile phone calls, hissing sounds as she walks by and other
forms of ridicule,” according to the lawsuit, although Ross does concede
that her own mother "laughed for 10 minutes." (Citizens Against
Lawsuit Abuse Houston website, "Briefs",
citing May 1 issue, Liability & Insurance Week; Cathy Martindale,
"Bulletin Board", Amarillo, Tex. Globe-News, Jan.
17). A new legal referral website bills itself as "SharkTank.com
-- Attorneys Ready To Attack Your Case". And New York Observer
columnist Chris Byron has penned this lyrical description of what happened
to a company whose business went from bad to worse trying to lend to borrowers
with bad credit records: "class action lawyers have now descended on the
company as if drawn by fish guts and other chum to a feeding frenzy of
great whales". ("Shoddy Contifinancial collapses by lending to risky deadbeats",
March 27).
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