- Biggest recruit yet for climate recoupment suits: NYC Mayor Bill De Blasio sues blaming five oil companies for Superstorm Sandy [Seth Barron/City Journal, John Timmer/ArsTechnica, WSJ; Stephen Bainbridge on parallel divestment effort]
- California cities/counties suing oil companies: climate change will be our ruin. Same cities/counties selling bonds to investors: risk? what risk? [Andrew Scurria/WSJ; John O’Brien/Forbes] Santa Cruz joins several other Bay Area counties in action [Nicholas Ibarra, Santa Cruz Sentinel]
- Can’t spell “Oedipal” without “O-i-l”: Rockefeller heirs bankroll #ExxonKnew crusade against great-granddad’s company [Reeves Wiedeman, New York mag]
- Same article takes disbelieving tone about possibility that state AGs’ campaign might trample anyone’s First Amendment rights [memory refresher] More about that in this Margaret (Peggy) Little and Andrew Grossman 2016 Federalist Society podcast and my Twitter thread about it;
- National Association of Manufacturers launches legal initiative to push back against industrywide and attorney-general tort, nuisance, and public-recoupment suits, notably on climate and lead paint [John Siciliano, Washington Examiner; Linda Kelly, The Hill; NAM’s Manufacturing Accountability Project and its coverage of the art of “climate attribution,” the early failed Kivalina suit (more on which), origins of Global Warming Legal Action Project]
- Pssst, Vice — in profiling Steve Berman you might want to be aware that a few other attorneys claim some minor role in also having “won a $200 billion settlement from tobacco companies in the 90s” [compare claims of lawyers organizing opioid suits]
German social media law: early takedowns spur outcry
“A new law meant to curtail hate speech on social media in Germany is stifling free speech and making martyrs out of anti-immigrant politicians whose posts are deleted, the top-selling Bild newspaper said on Thursday” under the headline “Please spare us the thought police!” [Michelle Martin, Thomson Reuters] In one probably intended effect of the draconian law — drafted by Chancellor Angela Merkel’s ruling Christian Democrats — Twitter moved to take down some pronouncements by politicians from the nationalist Alternative für Deutschland (AfD) party. But the NetzDG enactment, as it is known, has quickly had a number of less expected applications, including the blockage of a satirical publication that had mimicked the tone of an AfD leader, and even the deletion of a years-earlier tweet by Justice Minister Heiko Maas, a champion of the law, in which he had called an author an “idiot.” [Reuters; AFP/The National; DW; Tim Cushing/TechDirt; earlier here, here, here, here, and here]
Best of Overlawyered — August 2017
- “California: ADA lawsuit mill destroys family’s restaurant dream“;
- “UK tourists abroad file wave of food poisoning claims“;
- Brady Campaign talks couple into suing gun dealer, guess who gets left high and dry;
- EEOC: “gentleman’s club” broke law by refusing to hire male barkeep;
- $41.7M verdict against school for failing to warn of tick bites on field trip to China;
- “If you’re an eclipse viewer and you’re hurt on someone else’s property, you could have a claim“;
- “Seattle landlords aren’t to know about would-be tenants’ criminal records“;
- “Maybe the best outcome in the case would be if the [New York Times paid Sarah Palin] $0 damages, but the editor who wrote the false words resigned in shame.”
Challenge to Seattle law banning choice of tenants
“In Yim v. City of Seattle, PLF is challenging an anti-discrimination law that prohibits landlords from choosing their own tenants. Today, we filed our opening brief to ask the Court to invalidate this oppressive and brazen violation of fundamental rights. Under Seattle’s ‘first-in-time’ rule, a landlord must offer a rental unit to the first person who submits an adequate application.” [Ethan Blevins, Pacific Legal Foundation, earlier on Seattle law purporting to require landlords to rent to first qualified tenant who applies] The law has been rationalized in part as a way to restrict the operation of “unconscious” bias. “The Seattle law illustrates an important downside of trying to use government regulation to offset the subconscious cognitive biases of the private sector: there is little, if any reason to believe that voters and politicians are less biased than the people whose behavior they are trying to regulate. Much of the time, they are likely to be more so.” [Ilya Somin]
Liability roundup
- Company that advances money to claimants against New York City also donates generously to New York politicos [Shawn Cohen, Julia Marsh, Rich Calder and Bruce Golding, New York Post and followup (“LawCash execs showering Schneiderman with campaign contributions”), as well as editorial and followup]
- Jesner v. Arab Bank (whether corporations are exposed to liability under Alien Tort Statute) argued at Supreme Court [John Bellinger and Andy Wang, Lawfare; Anthony J. Bellia and Bradford R. Clark, Lawfare; Just Security symposium; Federalist Society teleforum with William Casto and Samuel Estreicher]
- For defendants in pending patent litigation, T.C. Heartland decision on patent venue may not offer a get-out-of-Texas card [Jeffri A. Kaminski, WLF]
- Top ten class action related developments of 2017 [Paul Karlsgodt; plus Andrew Trask on the class action issues of ascertainability and Spokeo standing in 2017]. And Jim Beck offers a defense perspective on most and least helpful court decisions of the year for pharmaceutical and medical device makers;
- Missed this from 2014: how tort law creates pressures (before any dispute arises) to intrude on privacy [Eugene Volokh, Columbia Law Review]
- “Alabama SC: Settlement schedule violates due process rights, class members deserve more information” [Jessica Karmasek, Legal NewsLine; MedPartners securities action]
Court rejects claim of liability for lobbying
A Florida appeals court has rejected a car-crash victim’s lawsuit against a retailer for allegedly lobbying county lawmakers for bad roadway design [Eugene Volokh]
Insurer owes $200,000 after drunken game of “chicken”
The insurance policy had excluded coverage for injuries arising from “illegal use of alcohol,” but a Sixth Circuit panel ruled that since the 22-year-old’s actual consumption of the alcohol hadn’t been unlawful — though his decision to operate a dirt bike while intoxicated afterward was — the exclusion did not apply. Back to the drawing board on contract language for the insurer [John Agar, MLive; Lowell, Mich.]
Trump’s first clemency
Under the circumstances, eight years (as opposed to 27) was long enough for Sholom Rubashkin to serve behind bars for bank fraud and other financial misconduct, especially since by interfering in his bankruptcy proceedings the U.S. government had itself driven up the cost of his actions to creditors, thus pushing him into a higher sentencing range. There were other irregularities in his trial as well. But let’s hope that President Trump extends clemency to other equally deserving inmates who lack the money and influence to call forward a campaign on their behalf [Mark Joseph Stern, Slate] More: Des Moines Register, WLF, NBC.
Best of Overlawyered — July 2017
- “$600,000 award for not accommodating employee’s ‘Mark of the Beast’ beliefs“;
- “Teen steals machete and kills her Uber driver,” resulting lawsuit seeks damages from Walmart;
- “Maine tried to raise its minimum wage. Restaurant workers didn’t want it.”
- Delaware man spends $40,000 in legal battle with neighbors defending his right to build a garage;
- Court rejects Orange County, Calif. police union’s argument that smashing merchant’s surveillance cameras should give cops “reasonable expectation of privacy” thus ruling out admission of videotape of their misconduct in store afterward;
- “To: brandenforcements@… Mr. Forcements — may I call you Branden?”
- Hearsay? “Parrot said to have repeated ‘don’t (expletive) shoot’ in murder victim’s voice; wife convicted”;
- “Sangria served to kids by mistake and someone must pay” despite lack of any reported ill effects
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The Claire’s asbestos scare
How a plaintiff’s expert consultant, working with others associated with the litigation biz, helped touch off a cosmetics panic. “Jewelry store Claire’s said [Jan. 4] that lab results certified its products as asbestos-free, following allegations of the toxic substance in its products last month.” [Lauren Hirsch, CNBC]