Erin Brockovich speaks! (But what does Darby Shaw think?)

Erin Brockovich, the real-life character who brings fictional lawsuits, thinks my criticism of her trolling for clients in Avandia lawsuits is “shameful”. She should know from shameless.

I was very amused by Brockovich’s remark “It is no coincidence that thousands on Avandia now have heart attacks.” Really? Thousands of people who saw Erin Brockovich in the theaters have had heart attacks, and many others have had strokes. Some even contracted cancer! Coincidence, or has Ms. Brockovich put movie royalties ahead of safety?

Early termination cell phone fees

Lawyers purporting to act on behalf of Verizon Wireless customers are seeking $1 billion, and an arbitrator says the claim can go forward as a class action. Wait a minute, aren’t we always hearing that arbitration is set up so this sort of action would never stand a chance? (Jeffrey Silva, “Verizon Wireless faces class action over ETFs”, RCR Wireless News, Jan. 28; Jason Mick, DailyTech, Jan. 30).

A letter thus begins

As you may not be aware, we are both lawyers and both litigators, for whom the usual barriers to litigation are minimal….

According to the New York Times, that’s the opening line of the letter sent by husband-and-wife attorneys Jonathan Selbin and Jenny Selbin to neighbor Galila Huff, curtly warning that she’d better keep cigarette smoke from escaping her apartment or they’d see her in court. (Josh Barbanel, “Neighbor vs. Neighbor”, Feb. 17). Earlier coverage here. More: Bainbridge.

What liberal media bias? Part DCCXIV

Associated Press:

The Supreme Court has refused to offer help to Hurricane Katrina victims who want their insurance companies to pay for flood damage to their homes and businesses.

As David Rossmiller notes,

As if the choice in a case is simply going where your sympathies lie, and when the court decided not to take the appeal, the halls rang with evil laughter and mocking statements such as this: “We will extend no help to Katrina victims because we love to see them suffer and we love to support our evil twins, the insurance companies who steal from them.”

The Fifth Circuit, of course, simply enforced the insurance policies as written, and noted that the word “flood” included a flood caused by the breach of the levees in New Orleans, reversing a district court that disingenuously held otherwise. And the Supreme Court simply refused to make the appeal of that obvious decision one of the 1% of petitions for certiorari that it grants.

Update: Mark Obbie, while also critical of the lede, writes:

Read On…

Privacy law and criminal investigations, cont’d

Following up on our discussion of HIPAA and the New York therapist murder, police have reported a break in the case, arresting a mentally disturbed man who has told investigators of having been committed to a mental institution 17 years ago by Dr. Kent Shimbach, the doctor who was injured in the rampage (and who shared offices with the therapist who was killed, Kathryn Faughey). Dr. Shinbach apparently has told investigators that he did not recognize the assailant and has no memory of any contact with him in the past.

Helen Smith (“Dr. Helen”) at Pajamas Media recalls the case of Vallejo, California psychologist Ira Polonsky, Ph.D., “who was shot and killed by what family members believe was a former patient. Unfortunately his death is still a mystery. Why? Blame the confidentiality laws in California:”

…police have been stymied in pursuing that line of investigation because of confidentiality laws protecting Polonsky’s patient records and appointment books.

Vallejo police detectives are in touch with a court-appointed attorney – a “special master” – who is working with the county court to see if there can be at least a limited review of protected records, but neither police nor court officials will comment on progress in that area.

And Hans Bader takes note of a recent Volokh thread discussing cases in which it seems Massachusetts privacy law was construed to prohibit the taping of ransom discussions with kidnappers (Commonwealth v. Jackson, 1976, mentioned in passing here) and a Florida court considered (but rejected!) the argument that a murderer’s privacy was infringed by his victim’s having tape recorded the murder.

February 19 roundup

  • Raising ticket revenue seems more important to NYC authorities than actually recovering stolen cars [Arnold Diaz/MyFoxNY video via Coyote]
  • Subpoena your Facebook page? They just might [Beck/Herrmann]
  • Rhode Island nightclub fire deep pockets, cont’d: concert sponsor Clear Channel agrees to pay Station victims $22 million, adding to other big settlements [ProJo; earlier]
  • Manhattan federal judge says “madness” of hard-fought commercial suit “presents a cautionary tale about the potential for advocates to obscure the issues and impose needless burdens on busy courts” [NYLJ]
  • Wooing Edwards and his voters? Hillary and Obama both tacking left on economics [Reuters/WaPo, WSJ, Chapman/Reason, WaPo editorial]
  • Sad: if you tell your employer that you’re away for 144 days on jury duty, you actually need to be, like, away on jury duty [ABA Journal]
  • New at Point of Law: Florida “three-strikes” keeps the doctor away; court dismisses alien-hiring RICO suit against Tyson (and more); Novak on telecom FISA immunity; fortunes in asbestos law; Ted on Avandia and Vioxx litigation; new Levy/Mellor book nominates Supreme Court’s twelve worst decisions; and much more;
  • U.K.: “Lawyers forced to repay millions taken from sick miners’ compensation” [Times Online]
  • Outside law firm defends Seattle against police-misconduct claims: is critics’ beef that they bill a lot, or that they’re pretty good at beating suits? [Post-Intelligencer]
  • Cincinnati NAACP is campaigning against red-light cameras [Enquirer]
  • Omit a peripheral defendant, get sued for legal malpractice [six years ago on Overlawyered]

BlogAds: one reader’s comment

General readers are undoubtedly aware that the appearance of a BlogAd in our right-hand column in no way implies that we agree with its content, and sharp-eyed readers may have noticed that we’ve in fact run more than one with views that run counter to our own. With that in mind, here’s a letter from New York reader Jason Abrams:

I’m still a huge fan of your site, but I’m disappointed by the appearance of an advertisement for NumbersUSA on the right-hand side as a BlogAd. I understand that sometimes blog owners have no initial control over the content of the ads, but there must be a way to exercise some restrictions on the types of organizations that can run ads on your site. Based on what I have gathered to be the leanings of your editors and contributors, I wouldn’t imagine your site to be much of a recruiting ground for this borderline hate group.

It may be worth pointing out one aspect of the way BlogAds works: the blog owner approves an ad based on an initial submission of the “creative” (picture and text), but then the advertiser can freely change the creative as the week or month or quarter goes on. Sometimes later versions of an ad are more arresting or abrasive than the first version, or differ in other material ways. I don’t know how precisely this affects the overall run/not run calculus, but it seems like an interesting weakness in the process.

The fall of William Lerach… in Mother Jones?!

Stephanie Mencimer (via NAMblog) writes in Mother Jones Feb. 14:

Large corporations have long argued that class action lawyers are nothing more than extortionists who shake down big companies every time their stocks fall, forcing them to settle or risk fiscal ruin from a big jury verdict. Given what’s known now about how Lerach operated his law firm, it’s hard to say that the perception is only spin.

Mencimer, though, gives too much credit to Lerach’s self-serving “corporate crime fighter” identity. Lerach sued indiscriminately. To the extent that a small proportion of the defendants in Milberg Weiss cases were actual wrongdoers, it was a function of a stopped clock being right twice a day. It was because Lerach sued so often without actual evidence of wrongdoing that his early suit against Enron was dismissed: when faced with the biggest corporate scandal in history, Lerach couldn’t actually make the case until after the fact. Given that the decades of jail time Enron and WorldCom executives are facing, and the fact that a Lerach suit was at least as likely to be against the innocent as the guilty, it’s hard to say that the Lerachs of the world added much in the way of deterrence of corporate wrongdoing, as opposed to the deterrence of corporate investment. All Milberg Weiss and its successors accomplished was to transfer wealth from investors to their own pockets, with a taste for the politicians like Bill Clinton and other Democrats who helped weaken or block efforts to reform the securities laws. Ken Lay raised a fraction as much money for Republicans without any sort of quid pro quo, yet his relationship to Bush has gotten far more attention than Lerach’s relationship to the Democrats and the favors they did for him at the expense of everyday investors.

Pro bono as profit center III: Skadden and Chinatown restaurant case

Another instance of the decidedly Pickwickian sense in which some in the legal profession use the term pro bono:

Last year, a federal judge awarded nearly $1 million in attorney fees, costs and prejudgment interest to Skadden, Arps, Slate, Meagher & Flom in a case involving workers at a restaurant in New York’s Chinatown. Chan v. Triple 8 Palace, No. 1:03-cv-06048 (S.D.N.Y.). The New York firm took the case pro bono in an attempt to collect unpaid tips on behalf of the workers.

The firm succeeded. But its request for attorney fees turned heads, especially since the workers received about $700,000.

“And you also had a large law firm telling everybody that they’re doing the case pro bono,” said Daniel A. Hochheiser, a partner at New York’s Hochheiser Hochheiser & Inwood, which represented the restaurant.

“The general understanding of pro bono is that you’re volunteering your time and effort without compensation, or without expectation of compensation,” Hochheiser said.

The case is being compared in several quarters to the Seattle school-suit fee request discussed in this space Sept. 7 and Sept. 23. (Amanda Bronstad, National Law Journal, Feb. 8; Elefant; Cal Blog of Appeal (to whom we’re happy to send the traffic). We briefly noted the Skadden fee ruling last summer.

P.S. Commenters point out — and it’s appropriate to note here as well — that Skadden, unlike Davis Wright Tremaine, says it’s giving away the fee award.

$1,500 per mesothelioma lead

According to a website maintained by MediaBids, an online advertising broker, the Boston law firm of James Sokolove as of recently was offering $1,500 for every mesothelioma “lead” that publishers could bring in through print ads. The offer was apparently good whether or not the patient elected to sign up with Sokolove’s firm, and whether or not the patient had worked in an asbestos-related trade, so long as the diagnosis was a genuine one. Mesothelioma is a fatal cancer accepted by the legal system as a “signature” of asbestos exposure. (Ann Knef, “Sokolove’s ‘creative’ advertising skirts ethics rules, says professor”, Madison County Record, Feb. 14). The relevant page on MediaBids was visible within the past few days, but appears to have been taken down now. For more on how avidly lawyers seek to reach this category of patients, see Sept. 5 and Oct. 13, 2007, etc. More on Sokolove here and here.

P.S. MediaBids page GoogleCached here.