Californian vexatious-litigant roundup

It looks as if, barring intervention by the U.S. Supreme Court, serial ADA litigant Jarek Molski and his lawyer Thomas Frankovich, longtime Overlawyered favorites both, won’t be filing any more accessibility lawsuits in California’s populous Central District. The Ninth Circuit’s decision not to disturb an order to that effect by the late Judge Edward Rafeedie, however, came by a surprisingly narrow margin, with nine judges dissenting. Among them, Judge Marsha Berzon said Rafeedie should not have acted unilaterally to bar the two from suing throughout the district, while Alex Kozinski went so far as to maintain that Rafeedie had failed to offer evidence in suggesting “that Molski is a liar and a bit of a thief”. The majority of judges, however — and the Ninth is among the last circuits anyone would accuse of an excessive wish to shut down litigation — disagreed. (Dan Levine, “9th Circuit Judges Blast Order Barring ADA Lawyer”, The Recorder, Apr. 9). One final bit from the account in the Recorder might cause the reader’s jaw to drop open, as it did mine:

Rafeedie died of cancer late last month, but Frankovich still holds a grudge.

“What he did is morally reprehensible,” the attorney said Monday. “Acting morally reprehensible creates bad karma, and sometimes you have to pay the piper for bad karma.”

In other news of vexatious California litigants:

For years, self-described public-interest litigator Burton Wolfe has bragged that he was one of the few people to get off the state’s so-called vexatious litigant list for self-represented plaintiffs who file frivolous lawsuits. Those who are put on the list can file “pro per,” or do-it-yourself, lawsuits only with a judge’s permission. But after enjoying a few years off the blacklist, the 75-year-old Wolfe has sued his way back onto the roster. … [His name was restored to the list after] he sued the San Francisco Food Bank and America’s Second Harvest for setting up what he calls a food “racket” in the privately owned low-income senior-housing Eastern Park Apartments where he lives.

(Lauren Smiley, “Vexatious Litigant Burton Wolfe Fighting Eviction After Threatening More Lawsuits”, San Francisco Weekly, Feb. 20). Perhaps the most celebrated of modern San Francisco’s vexatious litigants is Patricia A. McColm, who has been profiled in a number of news stories including Ken Garcia, “Woman who sues at drop of hat may get hers”, San Francisco Chronicle, June 6, 2000, reprinted at Forensic Psychiatric Associates site. Incidentally, the British court system is thoughtful enough to post its list of vexatious litigants online, an obvious aid to persons who might find themselves the target of threatened suits by persons on the list. But although the California courts have a webpage discussing the fact of their having a list, I could find no sign that they had posted the list itself online. Have any U.S. states (or Canadian provinces, etc.) done so?

“Lawsuit: Veterans Affairs has failed to prevent suicides”

The litigation seeks a court order forcing the federal veterans’ agency to step up its spending on mental health and counseling. The government’s response argues that

the courts have no authority to tell the VA how to operate and no business wading into the everyday management of a sprawling medical network that includes 153 medical centers nationwide.

The veterans are asking the judge “to administer the programs of the second largest Cabinet-level agency, a task for which Congress and the executive branch are better suited,” government lawyers wrote in court papers.

If the judge ordered an overhaul, he would be responsible for such things as employees workloads, hours of operations, facility locations, the number of medical professionals employed, and “even the decision whether to offer individual or group therapy to patients with” post-traumatic stress, the papers said.

(Paul Elias, AP/Palm Beach Post, Apr. 20). Update: Judge Samuel Conti dismisses suit as “misdirected” (Navy Times).

Update: Diet Coke sweetener class actions

We’ve been critical of would-be class action lawsuits claiming that Coca-Coca violates consumers’ rights by sweetening its fountain version of Diet Coke with a mixture of aspartame and saccharin, rather than aspartame alone as in the supermarket version. Now the Missouri Supreme Court has rejected class-action status for such a lawsuit, reversing a lower court; it “said the classification was overly broad, because it could have covered an indefinite number of people, many of whom did not really care how their Diet Coke was sweetened.” (AP/Kansas City Star, Apr. 15).

Ohio AG office harassment scandal

Do as we say, not as we do?

Ohio Attorney General Marc Dann is leading a group of 18 state Attorneys General seeking a ruling in the U.S. Supreme Court that employees can not be retaliated against by their bosses for filing a sexual harassment complaint.

The case comes at an ironic moment for Dann, as his office is investigating claims by two 26-year-old women who work at the Attorney General’s office that they were sexually harassed on and off the job by their boss, Anthony Gutierrez, a close friend of Dann’s who shared a Columbus condominium with him.

(“Dann Defends Woman Amid Own Office’s Sexual Harassment Flap”, Fox8 Cleveland, Apr. 16; Mark Rollenhagen and Reginald Fields, “Employee in Ohio attorney general’s office files police report”, Cleveland Plain Dealer, Apr. 19). Amid talk of a cover-up, Dann has also denied a request from the Columbus Dispatch under the state’s public records law “to review three months’ worth of e-mail messages between him and his then-scheduler, Jessica Utovich,” both of whose names turn up as possible witnesses in colorful text messages offered as evidence in the claims. “Dann in the past has said e-mails are public records and also has sought troves of messages from public offices when he was a state senator and the Democratic candidate for Ohio’s top legal office.” (James Nash, “Dann won’t release e-mails”, DispatchPolitics (Columbus Dispatch), Apr. 13; Julie Carr Smyth, “Sexual complaint probe at top cop’s office intensifies”, AP/Akron Beacon Journal, Apr. 18; Mark Naymik, “Dann has habit of hiring his friends; some have proved to be embarrassments”, Openers (Cleveland Plain Dealer blog), Apr. 12; Reginald Fields, “Dann employee files complaint with police”, Openers, Apr. 18).

After initial resistance, Dann did release some information that raised reportorial eyebrows:

In a surprising reversal, Attorney General Marc Dann’s office released 12 pages of notes that detail allegations of repeated sexual harassment and possibly an attempt to destroy text messages that may document the incidents. …

Dann’s Equal Employment Opportunity officer, Angela Smedlund, interviewed Cindy Stankoski and Vanessa Stout on March 31 about problems they had had with their boss, Anthony Gutierrez, who is Dann’s friend and former roommate.

Smedlund’s notes reveal the following:

Stankoski agreed to go out for drinks with Gutierrez last Sept. 10, but said she soon “felt tipsy and trapped.” She agreed to go to an apartment Gutierrez shared with Dann and Communications Director Leo Jennings III. She called and text-messaged friends that night.

In the margin, Smedlund wrote: “Leo & Tony destroyed texts Tony admitted to Charlie.” The notes do not identify Charlie’s last name.

Jennings and Gutierrez are now both on paid administrative leave.

(Laura A. Bischoff, “Dann’s office unveils documents detailing harassment report”, Lebanon, Oh. Western-Star, Apr. 16; Rollenhagen/Fields, “Reports show Dann was aware of Gutierrez’s history of troubles”, Cleveland Plain Dealer/Youngstown Vindicator, Apr. 18; Bertram de Souza, “Will Dann survive the crisis?”, StirFry (Youngstown Vindicator), Apr. 17). Perhaps unfortunately in retrospect, the noisily anti-business Dann had been lionized in the New York Times after his election as a possible “next Eliot Spitzer“.

More: Above the Law, John Phillips (“Other key words are pajamas, condo, inappropriate text messages, Hawaiian pizza, booze, passing out in a bedroom, unbuttoned pants upon waking up, and nothing on but his underwear.”), Law and More. Update: Dann’s emails with scheduler released (Dispatch via Genova)

“The unlucky troll”

It must be frustrating to own (or, depending on how one views the legalities, “own”) a patent on the JPEG photo format technology but then not actually be able to move in to collect royalties from “just about every web site that uses an image”. (Asher Hawkins, Forbes, May 5).

“$982 An Hour for Fen-Phen Plaintiffs’ Lawyers”

Philadelphia federal district court judge Harvey Bartle III has awarded $567.67 million in fees to plaintiff’s lawyers in the gigantic fen-phen litigation, which has lasted nine years. Judge Bartel accepted 70 firms’ claim to have spent 578,048 hours on the suit (Alison Frankel, American Lawyer, Apr. 10). Ted, at Point of Law, notes that the sum does not include large contingent fees obtained on behalf of claimants who opted out of the group settlement.

Welcome KTRH listeners

I was a guest on the Houston radio station this morning discussing personal responsibility and our propensity to litigate. A few recent cases possibly on point: “Inmate Sues Jail, Blames It for His Escapes“; five of her friends as well as the inevitable bar sued after college student’s fatal alcohol binge; and lawyer gambles away client money at the tables, then sues casinos for not stopping her. (Corrected original post title which got the call letters wrong).