Longtime Overlawyered favorite Geoffrey Fieger, a fixture in Michigan politics and personal injury law for many years, and his law partner Vernon (Ven) Johnson were indicted by a federal grand jury on charges of unlawfully “conspiring to make more than $125,000 in illegal contributions to presidential candidate John Edwards’ 2004 campaign”. Fieger, who’s being represented by Gerry Spence, says it’s all a plot by Republicans in the U.S. Department of Justice. (Oakland Press; Detroit News, more; Detroit Free Press, more)(& Pattis).
Amanda Marcotte, as accurate as ever
Friend of Overlawyered Amber Taylor writes:
I have my suspicions that when the Republicans talk up “tort reform” to stop “nuisance lawsuits”, they’re not exactly talking about stuff like this. [Short version: scientist posts negative reviews of a book on his blog, criticizing its new theory of developmental biology as having no basis in reality; the word “crackpot” was used. The author, a critic of “Darwinian orthodoxy,” sues.]
Right. That would be why the tort reform proponents at Overlawyered covered the story days before Marcotte got around to it. That coverage was even noted at the website Marcotte quoted. But why acknowledge facts when inaccurate smears are available?
Just so. Earlier Marcotte: Feb. 16, Feb. 2 and links therein.
Open thread: question for discussion
Paging Professor Volokh, Ronald Bailey, and other libertarian bloggers: On what principled grounds can one distinguish between a ban on foie gras and a ban on dogfighting? If one accepts limits on the libertarian principle for animal cruelty, does that not imply that a democratic society can rationally choose to bar production of foie gras? I’m happy to have dogfighting outlawed. I’d prefer not to outlaw foie gras. Do I have any argument for the distinction besides my personal preference? Is it just the intelligence difference between dogs and geese? If so, why do we allow bacon? (Or does Deuteronomy have that last question right?)
Update: I’m late to the discussion apparently. Jim Henley, Julian Sanchez (who takes the hard-line view), and Megan McArdle (and Part 2); McArdle points to vegetarian libertarian Robert Nozick’s take.
Update from Alex Tabarrok: “After attending dogfights it’s rumored that on some nights Michael Vick would continue his bloody activities by dining on cow’s flesh. No word yet on whether prosecutors will be seeking additional prison time.”
Frivolous — but honest about it
No matter how absurd a lawsuit is, the plaintiff usually has an elaborate, ingenuous theory to explain why he deserves to be compensated for injuries caused in some convoluted, indirect way by the nefarious defendant, and the obligatory disclaimer about the case “not being about the money” is usually tacked on. Usually. And then there’s James Schlimpert, president of Oklahoma-based Garage Storage Cabinets LLC.
When asked why he brought a suit against a competitor (Don Mitchell/MGCS) for misappropriation of trade secrets and tortious interference with his company’s dealer contracts, he explained, forthrightly:
When deposed, GSC President John Schlimpert testified that his company held no trade secrets, had no exclusive dealer contracts, and had filed the lawsuit for the sole purpose of putting MGCS out of business.
“I am amazed in some respects that the plaintiff said that, and he said it more than once, said his purpose was to put them out of business,” reads the court record issued by the District Court of Payne County, Honorable Larry Brooks, judge. “I think, under the plaintiff’s stated purpose, he was bringing it just to be vexatious to the defendants. I think it’s vexatious litigation.”
Wow. Still, for anybody who wasn’t already convinced by the Roy Pearson case, the history of the suit illustrates the difficulty courts have in protecting defendants from frivolous suits.
Because the complaint, on its face, seemingly stated legitimate causes of action, the only way for Mitchell to establish that the suit was frivolous was to conduct discovery and take the deposition of the plaintiff. Then Mitchell had to get lucky; if Schlimpert hadn’t foolishly admitted the fraudulent nature of his suit, the court would almost certainly treated the suit as legitimate. (Mitchell could still have won, but wouldn’t have gotten sanctions.) Once Mitchell got lucky, he had to make a motion to the court to have the case thrown out.
Then, after having the case thrown out, Mitchell had to make a separate application to the court for sanctions — he actually botched this procedure, but the court let the issue slide — and then had to participate in a hearing to try to establish how much those sanctions should be. All of that cost more money, more attorneys fees, with no guarantee that these costs would be recouped. Indeed, in this case Mitchell asked for $49,300, and the judge awarded only $31,500, because Schlimpert was successful in finding an expert witness to convince the judge that the lower number should have been sufficient to beat his frivolous case.
Moreover, the judge refused to penalize the plaintiff’s lawyer, finding that just because Schlimpert was acting in bad faith didn’t mean his lawyer was.
And then, after all that, Schlimpert appealed. Finally, this month, the appeals court upheld the trial court’s decision. And now Mitchell has to go back to the trial court, after having spent another $8,000 on the appeal, and has to hope the judge will make him whole.
P.S. In case you were wondering: this suit was filed in May 2003. It took 17 months from the time the suit was filed until the time the judge ruled in favor of Mitchell. It took another 17 months for the judge to award sanctions to Mitchell. After Schlimpert appealed, it took yet another 17 months for the appeals court to rule. In other words, more than four years elapsed. But — as mentioned — it’s still not over, because now Mitchell has to return to the trial court, to be awarded fees because of Schlimpert’s appeal.
Web disputes of the future two weeks
A popular blog meme is the Mingle blog rating (e.g. Bainbridge, Opinio Juris). You won’t see it here: movie ratings are trademarked by the Motion Picture Association of America, and they come down like a hammer on those who use the trademarks, and this blog-meme not only uses the letter rating, but the actual MPAA symbol. Unfortunately, US trademark law forces the MPAA to take a heavy-handed approach, because of the alternative: forty years ago, they did not seek trademark protection for their new “X” rating and as a result, the rating became a generic symbol for hard-core pornography (and infantilized the commercial moviegoing public: because now most theaters and brick-and-mortar video stores refuse to offer anything rated harder than “R”, we no longer get such movies, unlike the early 1970s when major studios would make X-rated movies with stars like Marlon Brando or Dustin Hoffman).
(And how well does the blog meme work? Well, the gizmo shares the MPAA’s left-leaning sensibilities: we got bumped to a “PG” because of multiple uses of the word “gun.”)
Cuba? You mean they have government-run health care there?
For all his newfound capitalist prowess, it seems Sen. John Edwards still isn’t familiar with some fairly basic geopolitical facts on the ground:
“I’m going to be honest with you — I don’t know a lot about Cuba’s healthcare system,” Edwards, D-N.C., said at an event in Oskaloosa, Iowa. “Is it a government-run system?”
(ABCNews.com “Political Radar”, Aug. 17)(via Weigel)(disclaimer).
“…A possible vomit point for clients”
That’s one description of why some law firms have been reluctant to cross the psychological threshold of $1,000/hour fees for top lawyers’ services. That doesn’t mean they’re not going ahead with the increase, though. (Debra Cassens Weiss, “Top Lawyers Bill $1,000 an Hour”, Aug. 22; Althouse, Aug. 22; WSJ Law Blog, Aug. 22; Barry Leonardini, Aug. 22). It’s still fairly paltry compared with some contingency fees, of course, as with the tobacco-Medicaid caper, where the Litigation Lobby successfully defeated as too chintzy a $20,000/hour cap and some estimates of fees obtained ran five times that high.
Imams drop “John Doe” defendant
While they’ve agreed to let the fellow passenger off, they continue to sue US Airways and the Minneapolis airport commission. (Michelle Malkin, Aug. 22; Audrey Hudson, “Imams drop passenger from lawsuit”, Washington Times, Aug. 22; Joseph Goldstein, “Imams Drop Fellow Passenger From Discrimination Lawsuit”, New York Sun, Aug. 23; earlier).
More on Insurance Fair Conduct
My last post commented on Washington’s Insurance Fair Conduct Act. The Act is up for public vote as Referendum 67. Check out the web sites advocating approval or rejection of the measure.
The “Approve 67” web site struck me as a bit demagogic–the main page shows a young girl clutching a teddy bear being comforted by (apparently) her father. The next shot is a man in a wheelchair, face cast sullenly downward. (Ostensibly suffering from insurance company malfeasance.) The final shot is a generic image of an emergency clinic. Then, under the “Take Action” column on your left there’s a link to “Share Your Insurance Horror Story.” (As of this writing there is a grand total of three “horror” stories.)
Under the endorsements tab, trial lawyers are notably absent–at least from the list. There are, however, multiple labor organizations as well as the Washington State Democratic Party. Under the “About Referendum 67” tab [with my comment]:
If an insurance company unfairly denies a legitimate claim, your only recourse is to sue. But if you win, the only thing they have to pay is the amount of the original claim [not true, just ask millionaire prankster dentist Robert Woo.] Referendum 67 creates an incentive [there already are incentives: coverage by waiver or estoppel, Olympic Steamship attorney fees and the Washington Consumer Protection Act (CPA)] to treat legitimate claims fairly by allowing the court to assess penalties if an insurance company illegally denies or delays payment of a legitimate claim.
Referendum 67 would help to ensure that the insurance industry honor their commitments to treat all policyholders honestly by making it against the law [it’s already against the law, silly–see the existing RCW and WAC] to unreasonably delay or deny legitimate claims.
The News Tribune in its story Let’s not try to fix an insurance industry that’s not broken says:
That the system is working well is illustrated by a storm of a different sort: the windstorm that smashed into Western Washington earlier this year. Within less than four months of the event, according to a recent study, 90 percent of the 42,000 claims were settled, for $170 million in compensation. Most of the remaining claims remained unsettled due to lack of qualified contractors or the time needed to rebuild homes. Only three complaints were filed with the insurance commissioner’s office.
I don’t know if I would characterize this legislation as a jackpot for trial lawyers, but it’s probably unnecessary and will increase the frequency of litigated first party claims at the greater expense of the insurance paying public. It’s up to Washington voters to get it right.
Bloomberg gun lawsuits will go on
Last year, New York City Mayor Bloomberg filed federal lawsuits against bunches of gun stores across the country; we’ve covered these suits extensively. (See, e.g. May 2006, Jun. 2006, Sep. 2006). NYC sent people to stores in places such as Georgia, Ohio, Virginia and South Carolina; these city agents then conducted “stings” in which they made supposedly illegal firearms purchases. Bloomberg then sued these stores, claiming that the guns were ending up in New York City and that the stores should for some reason be liable for this.
Somehow, despite the fact that whatever illegal sales took place did so in Georgia, Ohio, Virginia and South Carolina, the suit ended up in the Brooklyn courtroom of federal Judge Jack Weinstein, the man who has never seen a products liability case he couldn’t endorse. The gun stores moved to dismiss the suits on the grounds that New York courts have no jurisdiction.
Last week, Weinstein rejected the gun stores’ motion in a 99 page opinion (PDF) replete with anti-gun rhetoric (about criminals who “terrorize” the city and descriptions of guns as “Saturday Night Specials”) and citations to his own decisions in previous gun-litigation cases (Jul. 2003) So the suits will continue; a trial date has been set for January.
Republican presidential-non-candidate Fred Thompson doesn’t think much more of these suits than we do.