The Washington Post quotes me on the hubris that the now-disgraced class-action potentate came to symbolize (Carrie Johnson, “Guilty Plea to End Crusading Lawyer’s Lucrative Run”, Sept. 19). Few tears will be shed in Silicon Valley (Wired “Epicenter” blog, Sept. 18). The John Edwards campaign says it’s handing over Lerach’s contributions to charity, and the Joe Biden campaign says it’s already done so; no word yet from Hillary Clinton, who took Lerach money for her Senate bid (Josh Gerstein, “Fortunes Darken for Lawyer Melvyn Weiss”, New York Sun, Sept. 19). More coverage: Lattman, What About Clients?, NAM Shop Floor. Plus: Ben Smith at Politico has more on the John Edwards connection: “Though he’s giving away the $4,600 from Lerach, Lerach is also listed as a bundler, and employees of the lawyer’s firm are his third-largest group of donors, mostly giving in the first quarter.” (Sept. 19).
Consumer protection where consumer protection is needed
Beck and Herrmann ask some pointed questions about principal-agent problems in plaintiff-side litigation.
Chicago Federalist Society panel on class actions
I’ll be speaking at the Tower Club 5 pm on Thursday, along with Paul Bland of the CL&P blog. If that’s not incentive enough to show up, there is apparently free food.
Lerach’s guilty plea
Following up on Walter’s Sep. 18 roundup, Lerach should be proud of his lawyers: his plea deal is for a single count of mispaying Steven Cooperman, drops all of the Torkelsen-related charges, will likely get him out of prison in under two years, requires the government to forgo prosecution of his current law partners, and doesn’t require him to cooperate with the prosecution of Melvyn Weiss. He may well be disbarred afterwards, but he’ll also be a multimillionaire in his late sixties who can retire comfortably even after paying an $8 million fine, and nothing stops plaintiffs’ firms from offering small fortunes to Lerach to act as a “non-legal consultant.” [plea agreement; WSJ; The Recorder; NY Times]
Relatedly, Wired reprints its 1996 “Bloodsucking Scumbag” article.
“A case of unchecked avarice coupled with a total absence of shame”
In unusually strong language, an appeals panel in south Florida has condemned the conduct of prominent Miami law firm Adorno & Yoss, which filed an intended class-action lawsuit against the city over an unconstitutional fire-rescue fee, and later (to quote the WSJ law blog) is alleged to have “reached a secret $7 million settlement and paid it out to seven individuals, thereby breaching its duty to the entire class”. In its defense, the law firm says that it had no fiduciary duty to the class since a class was never certified, but the appeals panel took a different view, saying that class certification was inevitable and that the case was handled throughout from a class perspective. “It defies any bounds of ethical decency to view class counsel’s actions as anything but a flagrant breach of fiduciary duty,” said Judge Juan Ramirez, writing for the court. In a concurrence, Judge Angel A. Cortiñas was if anything more severe in tone. “Plainly and simply, this was a scheme to defraud. It was a case of unchecked avarice coupled with a total absence of shame on the part of the original lawyers. The attorneys manipulated the legal system for their own pecuniary gain and acted against their clients’ interests by attempting to deprive them of monies to which they might otherwise be entitled. More unethical and reprehensible behavior by attorneys against their own clients is difficult to imagine.” (Billy Shields, “Fla. Court Calls Law Firm’s Role in Fire-Fee Deal ‘Reprehensible'”, Daily Business Review, Aug. 9). More links on the Miami fire-fee scandal here.
By reader acclaim: “Nebraska state senator sues God”
Sen. Ernie Chambers does not deny the silliness of his complaint against Jehovah over natural disasters and the like, but says it’s meant to make a serious point. You might think that the point would have to be how little sense it makes to give anyone the power to sue anyone over anything, but it turns out that Sen. Chambers actually opposes proposals in Nebraska to restrict the filing of meritless lawsuits, and thinks, with perhaps elusive logic, that his stunt somehow will make people agree with him on that. (KPTM with filing in PDF format, KETV, FoxNews.com, AP/Omaha.com, Volokh). The best picture to run with the story is definitely the Apr. 12, 2006 file photo at MyWay/AP News. Update Oct. 15, 2008: judge throws out suit.
Ninth Circuit tosses Corrie-Caterpillar case
“Caterpillar Inc. cannot be held legally liable for the use of its bulldozers in Israeli military operations because the equipment is paid for with American government funds and represents an extension of American foreign policy, a federal appeals court ruled.” (Josh Gerstein, “Caterpillar Escapes Liability For Israeli Bulldozer Operations”, New York Sun, Sept. 18). The court invoked the political question doctrine: “Allowing this action to proceed would necessarily require the judicial branch of our government to question the political branches’ decision to grant extensive military aid to Israel. …In this regard, we are mindful of the potential for causing international embarrassment were a federal court to undermine foreign policy decisions in the sensitive context of the Israeli-Palestinian conflict.” (Dan McLaughlin, Sept. 18). Earlier coverage on this site is here.
“The Corrie family was represented by the Center for Constitutional Rights and Seattle University Law School’s Human Rights Clinic.” (John G. Browning, “Legally Speaking; Sue the bulldozer company, and get crushed by common sense”, Southeast Texas Record, Sept. 11). Joining the family’s cause on appeal was Duke lawprof Erwin Chemerinsky, who, unrelatedly, has now been restored to an offered position as dean of the new UC Irvine school of law, following a bizarre offer-withdrawal that drew protests from across the political spectrum. Ken McCracken at Say Anything comments (Sept. 17) about the Ninth Circuit decision and the Irvine reinstatement, “For Chemerinsky, justice was served correctly to him in both instances.” More: Michael Krauss @ PoL.
“Judge tosses global warming lawsuit against car makers”
A major rebuke for former California AG Bill Lockyer and his successor, Jerry Brown, as well: “A federal judge in San Francisco today threw out a lawsuit filed by the state Attorney General’s office against the six largest automakers in what had been billed as a novel attempt to hold the companies financially liable for global warming. … U.S. District Judge Martin Jenkins said it would be inappropriate for the court to wade into issues pertaining to interstate commerce and foreign policy – matters that should be left to the political branches of government.” The judge’s order can be found here (PDF). (Henry K. Lee, San Francisco Chronicle, Sept. 18)(cross-posted from Point of Law).
September 18 roundup
- L.A. city council debating settlement of Tennie Pierce (firehouse dog food prank) case, apparently for several million [AP/Mercury-News; earlier]
- Lerach said to accept jail term of 2 years or less in plea deal, won’t testify against former partners [Washington Post, Point of Law; earlier]
- No shock, Sherlock: divorce cases said to have the highest rate of perjury in open court [Oregonian via WSJ law blog]
- Things you might not have known about the Duke/Nifong case unless you’ve read the new Stuart Taylor/K.C. Johnson book [Leo, Minding the Campus; Thernstrom]
- Take a wild guess as to one reason doctors are reluctant to communicate with their patients via email, despite the many potential advantages [Medical Economics via KevinMD]
- Latest suit charging casino should have recognized customer’s gambling addiction [Indianapolis Star; earlier]
- One brother kills the other in anger in the North Carolina woods, both members of a logging crew; ruled compensable under workers’ comp [Coppelman]
- My client, the dog: another trend piece on steady expansion of animal law [Boston Globe]
- Prankster gets American U. alumni mag to print erroneous report of two classmates as being gay. Defamatory? [New York Post, Smoking Gun; Julie Hilden a while back]
- Trial begins in Kentucky of civil suit arising from the string of McDonald’s strip-search hoaxes Ted wrote about last year [OnPoint News, Louisville C-J/USA Today]
- Woman who nearly froze to death after a night of drinking sues city, emergency personnel and taxi driver who dropped her at home [five years ago on Overlawyered]
Chemerinsky legally entitled to job?
The UC Irvine-Erwin Chemerinsky debacle has been covered extensively in the blogosphere — Walter has a roundup of links over at Point of Law. One thing is for certain, though: regardless of the wisdom of UC Irvine’s actions, it clearly has the right to choose its dean based on any (non-discriminatory) criteria it wants. If the university isn’t happy with Chemerinsky’s ideological viewpoint, it obviously has the right to choose someone more compatible, right?
Well, maybe not, as Eugene Volokh explains. Under the wonders of California employment law, the mere fact that someone has abhorrent views doesn’t give you the right to fire him, and it doesn’t give you the right to decide not to hire him:
In fact, if the statute is read according to its text, coupled with the way the California Supreme Court has interpreted it, then all California employers must retain employees despite their controversial off-the-job statements, even when those statements are incendiary and alienate the employer’s customers, donors, employees, or others.
[…]
So it seems that an employer’s policy (written or not) that it won’t hire or won’t retain employees who make public statements that alienate members of the public — or more specific policies applying to, say, racist statements, religiously bigoted statements, sexist statements, and the like — would be illegal.
Employers would thus not only be barred from firing employees because they are Democrats or Republicans. They would also be barred from refusing to hire Klansmen or people who have made racist, anti-Semitic, or anti-Catholic statements, even when the candidate is being hired for a high-profile public contact or leadership position, and when many of the employer’s customers would be deeply alienated by the person’s statements (past or future).
That one may well fall under a “damned if you do, damned if you don’t” situation; hiring an outspoken Klansmen will expose employers to potential liability for creating a racially hostile work environment.
And as a special employment-law related bonus: the AP explains that companies that might want to try to save money on health insurance by financially incentivizing employees to stay healthy have to worry about HIPAA (if they provide too much in the way of incentives), and the Americans with Disabilities Act (if employees can convince a court that their obesity is a disability).