The Houston Chronicle has more on Joe Jamail’s defeat of John O’Quinn in the expense-ethics battle earlier detailed in this space (Jul. 19, etc.). Several of the experts quoted seem at pains to minimize the seriousness of O’Quinn’s ethical lapse, but there’s a good quote at the end from Dallas legal-malpractice lawyer Randy Johnston: “When John O’Quinn goes up against Joe Jamail, I promise you, it isn’t all about the money.” Why? Because it’s about the ego too. (Mary Flood, “Legal trend of leveling suits against fellow litigators likened to cannibalism”, Houston Chronicle, Jul. 21)(via ShopFloor).
Guestblogger thanks
Our thanks to Steve Hantler of Chrysler for some provocative posts which stirred considerable reader interest. His post on global warming litigation drew links from (among others) Prof. Bainbridge and New York magazine’s “Intelligencer”.
Corporate Governance and Regulatory Reform
A few years ago, I was drafting some public comment letters to the FTC and DOJ in a series of cases where the regulators accused physician groups of “price fixing” during contract talks with third-party insurers. While reviewing three separate cases involving physician groups in different markets, I noticed that the defendants all retained the same defense lawyer. Further research revealed that said lawyer previously worked at the FTC, where he developed the very theory of antitrust liability now being used against his clients. Indeed, this lawyer authored a book on the policy.
The Roberts Court and Liability Reform
The latest AEI Liability Outlook explores my take on the tort reform implications of October Term 2006.
Bar wasn’t safe for her to dance on
Illinois: “A woman who tried to dance atop the bar at a Joliet tavern is suing the establishment after she fell and shattered her ankle.” Amy Mueller, who is in her early twenties, wants damages from Samy’s Bar and Grill for “allowing [her] to climb upon the bar without a step-stool, ladder or other device used for safety.”
“They encouraged their patrons to dance on the bar — they cajole them, they yell at them, but they fail to take any safety precautions whatsoever,” said Frank Cservenyak Jr., Mueller’s attorney.
Cservenyak adds that he “wouldn’t take a case I believe is frivolous.” (Steve Schmadeke, “Woman who hurt her ankle sues bar”, Chicago Tribune, Jul. 23; “Woman suing Joliet tavern for broken ankle”, AP/ABC7Chicago, Jul. 23).
A Conspiracy of One
It’s good to be back at Overlawyered. For those of you not scarred by my prior guest-blogging stint, this is Skip Oliva, director of the anti-antitrust Voluntary Trade Council, regular co-blogger for the Mises Institute, and freelance paralegal-for-hire.
Since antitrust is my bread and butter, I’ll spend some time this week examining the impact of the four antitrust cases decided in the last Supreme Court term. I’ll also discuss some lesser-known antitrust cases that I’ve been following (and in some cases, directly participating in); and maybe I’ll even address some purely non-antitrust legal topics as well.
But let’s start with—you guessed it—an antitrust case. Last week the U.S. Third Circuit Court of Appeals decided Cosmetic Gallery, Inc. v. Schoeheman Corporation (download PDF), one of the first appellate decisions that relies on the Supreme Court’s May decision in Bell Atlantic v. Twombly. In Twombly, a 7-2 court held that a complaint alleging a conspiracy to restrain trade under Section 1 of the Sherman Act required more than “an allegation of parallel conduct and a bare assertion of conspiracy”; there must be “enough factual matter (taken as true) to suggest that an agreement was made.”
In the Third Circuit case, a New Jersey company that operates hair salons and retails related hair care products (Cosmetic Gallery) sued a Pennsylvania distributor of said products (Schoeneman). Specifically, the issue is “salon-only” products that are normally sold, as the name suggests, only through salons. Distributors like Schoeneman agree to manufacturers’ restrictions on the sale of these products to, according to the Third Circuit, “increase the cachet and prestige” of the products.
A Climate of Greed Never Changes
Among the nightmare scenarios of global warming, there’s one only now coming into view – and it’s definitely manmade: As predictable as the rising seas, we can expect a flood of class-action lawsuits trying to cash in on the issue.
Climate change promises to be “a lucrative new field” for the tort bar reports the Newark Star-Ledger. A Rutgers law professor predicts that global warming will make for “one of the biggest legal practices in the next 20 years.” (The Star-Ledger, 7/8/07)
The opinion is shared by the president of the World Resources Institute: “Companies that generate significant carbon emissions,” he warns, “face the threat of lawsuits similar to those common in the tobacco, pharmaceutical and asbestos industries.” (The Toronto Star, 4/29/07)
And if you thought asbestos and tobacco litigation were profitable, try to imagine all the “mass tort” cases that global warming will inspire. Energy companies, coal mines, any firm at all that generates carbon dioxide – these industries and many more can expect to find themselves accused of causing climate change.
Some law firms already have “climate-change groups” studying the possibilities. Another hint of things to come was a class action suit was filed on behalf of Mississippi residents against oil and coal companies after Hurricane Katrina – arguing that company emissions caused the climate change that caused the hurricane. (Star-Ledger, 7/8/07).
In Alaska, the Inuits claim that their island is sinking because of global warming. The aggrieved islanders haven’t decided who to sue yet – but they’ve got a Houston trial lawyer working on it. (Star-Ledger, 7/8/07)
All of which proves nothing at all about the actual causes or dangers of global warming. It’s just more evidence of a climate of greed and opportunism in the trial bar. And that’s one climate that never changes.
July 23 roundup
- Not sure you’ve got probable cause for your motorist stop? Why not just fabricate it? [Grits for Breakfast]
- California Attorney General Jerry Brown cracks down on a prolific filer of Prop 65 (toxic warning) cases, New Canaan, Ct.-based Clifford Chanler [The Recorder]
- Man mounts San Francisco rooftop with apparent “self-destructive” intent, rescue effort by firefighters fails, now family’s suing the city [SF Chronicle]
- Why Mort Zuckerman says the law is the opposite of sex [Lattman, from offline New Yorker mag]
- Who’s stirring the pot on client litigation against big law firm Hogan & Hartson? [Lat] Update: it’s a former client [Turkewitz]
- Some top judges in Australia embarrassed after confessing activist leanings to an American academic who was writing it all down [The Australian]
- Cost of defending against a white-collar crime prosecution: seven figures if you’re lucky [Lattman via Lat]
- New at Point of Law: chiding Supreme Court Chicken Littles, more on Canadian sovereignty and the Conrad Black trial, reasonable degrees of expert witness certainty, making litigation instead of steel, Michael Krauss criticizes Virginia Tech compensation fund;
- If you can’t do something about the falling petals, maybe your flower shop shouldn’t be in the train station [U.K. Telegraph]
- Illinois tells lawyers to hire a doctor to certify merit of med-mal claim, but permits that doctor to remain anonymous [three years ago on Overlawyered]
Update: Judge rejects “Extreme Makeover” lawsuit
A judge has dismissed a case filed by five orphaned siblings against ABC Television based on the aftermath of their appearance on “Extreme Makeover: Home Edition”. The Higgins siblings said they expected to wind up with a new home after the show’s filming, but later disagreements with the couple who had hosted them, and who held title to the newly built mansion, led to their departure from the house. Awarding summary judgment, Judge Paul Gutman threw out the siblings’ case against ABC, the reality-TV producers and the homebuilder, saying that their remedy, if any, could be only against the host couple, Phil and Loki Leomiti. (AP/ABCNews.com, Jul. 17). Our earlier coverage: Mar. 4, May 17, etc.
No-fault laws boost divorce rate by 10 percent?
So contends a new literature survey from the social-conservative Institute on Marriage and Public Policy (Douglas W. Allen and Maggie Gallagher, “Does Divorce Law Affect the Divorce Rate? A Review of Empirical Research, 1995-2006“, PDF, requires registration; “Split Decisions” (interview with Maggie Gallagher), Newsweek, May 23). New York, among the few states to have retained fault-based divorce laws, is considering a move to no-fault.