Strangely missing from the blog ad about the book “Supreme Discomfort” is a link to the review by Edward Whelan. See also Matthew Franck and John A. Foster-Bey.
Update: Kia Franklin and Roy Pearson and the $67 million pants
I’d like to make a correction. In my earlier post, I suggested that Milberg Weiss Justice Fellow Kia Franklin thought that Judge Roy Pearson’s $67 million lawsuit over a pair of pants was frivolous. I appear to have been mistaken in attributing such a common-sense view to her. Franklin has a lengthy post protesting that, while she thinks Pearson’s lawsuit is “ridiculous” and “crazy” (she has also called it “obscene”), she does not think it is “frivolous.” We regret the error.
But it is a useful illustration: when those who oppose civil justice reform say they don’t think frivolous litigation is a problem, it is because they define “frivolous litigation” so narrowly that even Roy Pearson’s lawsuit is not frivolous in their eyes. Well, that’s one way to make problems go away, by using doublespeak or narrow technical legal definitions to pretend they don’t exist instead of suggesting that there is a problem with the narrow technical legal definition.
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Oz high court: restaurant review was defamatory
Now it’s Australia where food writers are getting nervous: the country’s High Court decided that Sydney Morning Herald critic Matthew Evans had defamed the Coco Roco restaurant in 2003 in a review:
The flavours of the limoncello oysters “jangled like a car crash”, he wrote, while the sherry-scented apricot white sauce on a steak was a “wretched garnish”.
Overall, he concluded that “more than half the dishes I’ve tried at Coco Roco are simply unpalatable”.
The ruling does not however preclude the defendants from offering defenses as proceedings continue in the case. (Deborah Cameron and Helen Westerman, “Ruling leaves sour taste for food critics”, Melbourne Age, Jun. 15; Barbara McMahon, “Review of meal that ‘jangled like a car crash’ deemed defamatory”, The Guardian, Jun. 16). Eoin O’Dell at the Irish law site Cearta.ie has assembled a substantial links list on this and earlier restaurant-review lawsuits from various countries (Jun. 16). Previously at this site: Mar. 10, etc.
Avandia-suit spam
Unsolicited email is beginning to arrive in people’s inboxes soliciting clients to sue over the Glaxo SmithKline diabetes drug, Avandia. Bill Childs has more, as does Eric Turkewitz, who observes that no law firm is named in the ad, and proposes a course of action:
Figuring out which law firms have hired the spammer should be easy for an enterprising citizen-journalist, simply by filling out the form at the website that TortsProf linked to and waiting to see who calls or emails in response. Then publish the names online for the world to see.
Things might not be that simple, however. As earlier cases of spam of this sort indicate, such emails are typically sent by a middleman who assembles “leads” and then offers them for sale to actual law firms. The middleman, not being a lawyer, will claim not to be bound by bar rules against solicitation, while the law firms that buy the leads (if confronted on the matter) may or may not disclaim any knowledge of how the leads were generated. They’ll probably deny having hired an agent with instructions to send spam; but if someone happened to run a spam campaign just before selling them names, well, that’s not their doing, is it? So the New York bar-ethics rules are circumvented in perfect safety by all concerned, or so it would seem. Earlier: Jan. 8, 2006, Jan. 5, 2005, Mar. 29-31, 2002.
Pearsonesque $2 billion consumer-fraud lawsuit against Ford
The Ford Explorer is a sport utility vehicle. Judge Roy Pearson, excited by the $67 million he anticipates receiving for his pants, is bringing a lawsuit in California claiming that every California Explorer owner is entitled a total of $2 billion from Ford because the Explorer is allegedly prone to rolling over, using the California version of the law that Pearson is bringing his pants-suit over. Note that the damages are not for an actual rollover, just damages because of the “fraud” that the vehicle might roll over, though at least some models of the Explorer are in fact less dangerous than an average SUV in rollovers, and safer than the average vehicle in other types of accidents. (IIHS reports that the average fatality rate for mid-sized 2-door SUVs is 63 per million vehicles, and the average fatality rate for the 2-door Ford Explorer is 49 per million vehicles—and that latter number includes crashes caused by defective Firestone tires. Note that this is publicly available information: where is the fraud?)
Oh, sorry, it’s not Roy Pearson, it’s Arkansas attorney Tab Turner who is bringing the lawsuit. [Hudson Sangree, “SUV rollovers put Ford’s future in judge’s hands”, Sacramento Bee, May 24; official class notice from Sacramento County Court]
But because ATLA and Kia Franklin have condemned Roy Pearson’s lawsuit as a frivolous abuse of justice, I am sure that they will have no compunction against issuing the same criticism against millionaire trial lawyer Tab Turner for bringing a much larger and socially harmful lawsuit that might bankrupt Ford on the same bogus “consumer fraud” legal theory that Pearson used. Of course, there’s a difference between Pearson and Turner: Turner is asking for more money, and his claim has less factual basis.
Roy Pearson pants suit: the bottom line
Our editor, Walter Olson, in today’s Wall Street Journal:
A few observations:
• Phrases like “Do you realize I’m a lawyer?” uttered in the course of routine disputes with storekeepers, neighbors, school principals, etc., probably account for more of the legal profession’s aggregate unpopularity than any number of scandals in the actual representation of clients.• David and Goliath talk notwithstanding, legal action is often a powerful dis-equalizer of the playing field, as those who know how to work the system fleece the outsiders, the novices, the distracted and the trustful.
• Pretty much every other advanced country would have afforded the Chungs better protection against a lawsuit like this. Under proper “loser-pays” rules, the Chungs would be correctly construed as having won even if Mr. Pearson proves damages of, say, $1,000, since they would have prevailed on the actual issues in dispute. D.C. does have a weak “offer of judgment” rule that might let the Chungs recover some miscellaneous court costs — but not their major expense, lawyers’ fees — if Mr. Pearson loses or wins but a token sum. So even if they win, they’re bound to lose.
• The other source of Mr. Pearson’s power — his ability to hold the threat of huge penalties over the Chungs’ heads — arises from consumer laws that encourage complainants to multiply the stated penalty for a single infraction by the whole universe of a business’s clientele, or by all the days in the calendar, with no need to prove actual injury.
This sort of mechanical damage-multiplication has been a key engine in shakedown scandals in California (where roving complainants have mass-mailed demand letters to small businesses over technical infractions); in “junk-fax” litigation demanding billions from hapless merchants in Texas, Illinois and elsewhere; and in important sectors of litigation aimed at bigger businesses, including claims against credit-card providers and purveyors of “light” cigarettes. Whole dockets’-worth of opportunistic litigation would dry up if we revised these laws so as to require a showing of actual injury. Doing so would require overcoming epic resistance from the litigation lobby.
It’s nice to see that even the organized plaintiffs bar piously deplores Mr. Pearson’s abuse of the law. It would be even nicer if they agreed to stop opposing reforms that would give the Chungs of the world a fighting chance the next time around.
Scrap over “bandaged-client” graphic
Not just promotional and eye-catching, but creative and artistic too: “A New York lawyer who used a cartoon image of a heavily bandaged patient to advertise his personal injury practice may be entitled to copyright protection for the drawing, a federal judge has ruled.” Richard P. Neimark of Rockland County (toll-free number: 1-888-PAL-RICH) had been using the picture of a bandaged patient lying in a hospital bed in Yellow Pages ads and on his website and had even gone so far as to register it with the U.S. Copyright Office in 1990, so you can imagine his annoyance when a personal injury firm with an office in nearby White Plains, Ronai and Ronai, adapted the drawing for its own ad, later saying it thought the drawing was in the public domain. A federal judge has urged the parties to settle, noting that the Ronai firm had pulled down the graphic immediately and that no evidence had been presented of any actual injury. (Anthony Lin, “Copyright Infringement Suit Over Lawyer’s Advertising Cartoon Continues”, New York Law Journal, Jun. 11).
Funniest law blogs
Nicole Black is throwing a contest; thanks to the readers who nominated us (and the one who dissented was awfully nice about it too). P.S. We’ve made the finals and readers can vote through Jun. 25 (& discussion at QuizLaw).
That security patch your product needs? Sorry, we’ve patented it
Another new way to bring the idea of software patents into disrepute, per eWeek/SecurityWatch:
Security researchers, are you tired of handing your vulnerability discoveries over to your employer, as if that were what you’re paid to do? Helping vendors securing their products—for free—so that their users won’t be endangered by new vulnerabilities? Showing your hacking prowess off to your friends, groveling for security jobs or selling your raw discoveries to middlemen for a fraction—a pittance—of their real value?
Take heart, underappreciated, unremunerated vassals, for a new firm is offering to work with you on a vulnerability patch that they will then patent and go to court to defend. You’ll split the profits with the firm, Intellectual Weapons, if they manage to sell the patch to the vendor. The firm may also try to patent any adaptations to an intrusion detection system or any other third-party software aimed at dealing with the vulnerability, so rest assured, there are many parties from which to potentially squeeze payoff.
Intellectual Weapons is offering to accept vulnerabilities you’ve discovered, as long as you haven’t told anyone else, haven’t discovered the vulnerability through illegal means or have any legal responsibility to tell a vendor about the vulnerability.
Also, the vulnerability has to be profitable—the product must be “highly valuable,” according to the firm’s site, “especially as a percentage of the vendor’s revenue.” The product can’t be up for upcoming phaseout—after all, the system takes, on average, seven years to churn out a new patent. The vendor has to have deep pockets so it can pay damages, and your solution has to be simple enough to be explained to a jury. …
The firm says it “fully [anticipates] major battles.”
(“New Firm Eager to Slap Patents on Security Patches”, Jun. 7; Slashdot thread).