- Google beats Perfect 10 in Ninth Circuit appeal over copyright suit over thumbnail images. (Earlier: Feb. 06, Jul. 05, Nov. 04.) [LA Times; WaPo; Bashman; Perfect 10 v. Amazon (9th Cir. 2007)]
- Judge thinks better over Brent Coon’s attempt to intimidate local press through subpoenas. Earlier: Apr. 24. [WSJ Law Blog]
- US Supreme Court throws out punitive damages ruling in Buell-Wilson case, lets rest of decision stand. Earlier: Jan. 4 and links therein. Beck and Herrmann also discussed the case in March in the context of a larger discussion of the appropriateness of issuing punitive damages against a company that relied on government safety standards in good faith. [LA Times; AP].
- Big LA Times piece on the still-pending Extreme Makeover suit, where a family seeks to hold ABC responsible for an intra-household dispute over the spoils of a reality show. Earlier: Mar. 4, Aug. 12, 2005. [LA Times]
- KFC may have won on trans-fats litigation, as David reported May 3, but they capitulate to Jerry Brown’s pursuit of Lockyer’s equally bogus acrylamide suit over the naturally-occurring chemical in potatoes (Oct. 05, Aug. 05, Aug. 05, May 05, Apr. 04, etc.). KFC will pay a nuisance settlement of $341,000 and will add a meaningless warning in California stores. (Tim Reiterman, “KFC to tell customers of chemical in potatoes”, LA Times Apr. 25).
- McDonald’s sued over hot coffee. Again. One of the allegations is that McDonald’s failed to secure the lid, which is a legitimate negligence suit, but there’s also a bogus “failure to warn me that coffee is hot” count. [Southeast Texas Record; and a Southeast Texas Record op-ed that plainly read Overlawyered on the subject]
Islamic Society of Boston uses litigation to silence its critics
Pajamas Media’s Martin Solomon reports on the Islamic Society of Boston’s extensive use of litigation to silence critics, ranging from moderate Muslims to a local interfaith group to local reporters and newspapers, who question whether the organization has ties to Islamic radicals. The David Project has a set of links to court documents. Daniel Pipes has also been covering the matter. ISB’s attorney is Howard Cooper, who recently won affirmance of a $2.1 million verdict against the Boston Herald, which had criticized a local judge (May 11). See also Jeff Jacoby, “New questions for the ISB”, Boston Globe, Apr. 25. Earlier on Overlawyered: Aug. 27 (ISB subpoenas talk show); May 19; Jan. 5, 2006.
When Whale It End?
Environmental groups keep suing the United States Navy (See: Oct. 2004, Jul. 2006, and Mar. 2006) over its use of sonar, on the speculative theory that sonar hurts whales. Now they’re at it again, filing a lawsuit yesterday in federal court in Hawaii. This time it’s Earthjustice, suing on behalf of the Ocean Mammal Institute, the Animal Welfare Institute, KAHEA, the Center for Biological Diversity, and the Surfrider Foundation, trying to stop naval exercises off the coast of Hawaii. (PDF copy of complaint.)
Regardless of what one thinks of the merits of using sonar or privileging whales over national security, it’s absurd that federal judges — experts, we think, neither in marine biology nor submarine warfare — should be the ones deciding these policy questions. But it’s more absurd that these issues get to be relitigated over and over and over again. Of course environmental groups are the ones filing these repeated lawsuits, but in the big picture, the blame for this situation should be laid at the feet of Congress, which passes vague environmental laws which create broad standing allowing infinite numbers of random bystanders to sue without having to suffer tangible personal harm. (“I like looking at whales.”) And, perhaps worse than the vagueness of the laws is the fact that so many of these laws simply exist to create a zillion procedural hoops to jump through. (To provide an idea of these hoops, this complaint alone alleges the following causes of action:
- Failure to provide public notice and an opportunity to comment in violation of Administrative Procedure Act and National Environmental Policy Act
- Failure to prepare an Environmental Impact Statement in violation of Administrative Procedure Act and National Environmental Policy Act
- Issuance of an inadequate Environmental Assessment in violation of Administrative Procedure Act and National Environmental Policy Act
- Issuance of an inadequate Biological Opinion in violation of Administrative Procedure Act and Endangered Species Act
- Failure to consult with the Hawaii State Coastal Zone Management Program For Undersea Warfare Exercises in violation of Administrative Procedure Act and Coastal Zone Management Act
Have your eyes glazed over yet?)
Whatever the appropriate policy balance to be struck here, it should probably be determined by Congress, and it should definitely be decided once and for all, rather than each and every time a submariner sneezes. If the Navy is to be required to use specific types of sonar or other equipment, or is to be denied permission to operate in certain locales, or whatever, then there ought to be a statute or regulation which spells these rules out explicitly, rather than allowing activist groups to rush to court on a weekly basis to get a judge to decide.
Updates – May 17
Updating a few of the earlier stories covered around here:
- Maybe it’s not so gay after all: Rebekah Rice, the California high school student who sued her school after they disciplined her for saying “That’s so gay,” has lost her lawsuit.
“All of us have probably felt at some time that we were unfairly punished by a callous teacher, or picked on and teased by boorish and uncaring bullies. Unfortunately, this is part of what teenagers endure in becoming adults,” the judge wrote in a 20-page ruling. “The law, with all its majesty and might, is simply too crude and imprecise an instrument to satisfactorily soothe deeply hurt feelings.”
Moreover, the judge picked up on the same irony we noted when we first covered the story:
“If the Rice family had not told everyone that Rebekah had been given a referral for saying ‘That’s so gay’ then no one else would have know it either, and she would not have been referred to as the ‘That’s so gay girl,'” the judge wrote.
(Update to the update: Matthew Heller has the opinion.)
- Contrary to what we had speculated, it appears that Pants Judge Roy Pearson still has a job and may continue to do so. According to an unnamed D.C. official, and exemplifying the attitude with which the tort reform movement is fighting, “I don’t think it’s appropriate not to reappoint someone just because they file a lawsuit. You can’t retaliate against someone for exercising their constitutional, First Amendment right to file a lawsuit to vindicate their rights.” (No, but you can retaliate against someone for filing a frivolous lawsuit.) Meanwhile, as a face-saving publicity stunt, the American Trial Lawyers Association filed an ethics complaint against Pearson; really, Pearson isn’t doing anything that ATLA doesn’t endorse in other situations.
- Remember Ted and Mary Roberts, the husband-and-wife team of San Antonio lawyers who hatched a blackmail scheme in which the wife had sex with married men and the husband threatened to sue them unless they paid him to keep quiet? (Ted’s been convicted; Mary is awaiting trial.) The bankruptcy trustee, acting on behalf of their estate, had sued the local San Antonio Express News for violating their privacy by reporting on their scheme; Howard Bashman reports that the Fifth Circuit affirmed dismissal of the lawsuit by a lower court. So the newspaper won a complete legal victory — but truthfully reporting on a criminal scheme by prominent lawyers nevertheless must have cost them six figures’ worth of legal expenses.
- O.J. Simpson will not be suing the Kentucky steakhouse that wouldn’t serve him. His lawyer — the one who rushed to announce that O.J. was a victim and that the steakhouse “screwed with the wrong guy” — now tries to blame the owner for “using the episode for publicity.” (Originally, May 10.)
- The bogus Equal vs. Splenda unfair competition lawsuit (Mar. 8) over Splenda’s “Made From Sugar, So It Tastes Like Sugar” slogan settled on undisclosed terms, moments before a jury announced its verdict. Although we don’t know the terms of the settlement, it shouldn’t be too hard to figure out the non-monetary part: just check whether Splenda changes its advertising.
US government: no more hiring contingent fee lawyers
An executive order signed today bars United States government agencies from hiring contingent-fee attorneys or expert witnesses to litigate on behalf of the government. The Institute for Legal Reform applauded the decision, and called for state governments to follow suit. A California court recently struck down such arrangements in that state as an inherently unethical conflict of interest. See County of Santa Clara v. Atlantic Richfield Company, No. 1-00-CV-788657, slip op. at 2 (Cal. Super. Ct. Apr. 4, 2007) (via the increasingly indispensable Beck and Herrmann). (Cross-posted at Point of Law.)
Not renting to lawyers
Professor Bainbridge has some thoughts on a policy apparently pursued by some landlords (at least when the law permits them to do so) (May 15).
How to spend $100 million not building a mall
In 1995 the Taubman Centers announced a plan to redevelop a defunct copper wire factory site in Syosset, just off the Long Island Expressway, into a high-end mall. Twelve years of grueling legal battles later, Taubman has spent $100 million, won most of the rounds in court, and signed up Neiman Marcus and other elite retailers, yet an end is nowhere in sight. And it happens that the civic coalition that has been so successful at running up Taubman’s costs has gotten some help from Simon Property Group, the large mall developer that currently dominates the local market and doesn’t welcome competition. On TimesDelete, unfortunately (Peter Applebome, “A Mall Plan, a Call to Arms, a Plot of Land Still Empty”, New York Times, May 13). Earlier coverage, not behind screen: Dawn Wotapka Hardesty, “For Taubman, no choice but to fight”, Long Island Business News, Dec. 29.
Sleeping in dumpster proves imprudent
Robert Baswell, 44 and homeless, went to sleep in a trash bin, which was a really bad idea: garbage collectors emptied the container into their truck, and Baswell
…was repeatedly crushed each time the truck compacted a new load of trash, breaking his legs and ribs.
The cringe factor on that is pretty high.
But now there’s another reason to cringe.
We got a press release from this man’s new lawyers — Steinger, Iscoe & Greene in West Palm Beach. The press release simply says that they are representing him, presumably for a future lawsuit.
(Rochelle E.B. Gilken, Behind the Yellow Tape (Palm Beach Post blog), May 10; “Man Crushed By Trash Truck Shares Story”, KFOX, May 15; law firm’s press release).
Got a “mean” boss? See ’em in court
We’ve reported before (here and here) on the campaign by activists to establish a cause of action arising from “workplace bullying”. Efforts to get the courts to create such a right have not fared well, but the National Law Journal reports growing interest around the state legislatures:
Connecticut, for example, wants to outlaw “threatening, intimidating or humiliating” conduct by a boss or co-worker and would ban repeated insults and epithets. The proposal doesn’t specify a penalty, but would only give workers the grounds to sue.
New York’s anti-bullying legislation targets malicious conduct by supervisors that hurts employees either physically or psychologically. Mental health harm could include humiliation, stress, loss of sleep, severe anxiety and depression. The bill also would punish retaliation of the complainant or anyone who helps the complainant.
As management lawyers warn, enactments of this sort could result in a large new volume of litigation; the ample scope for differences of opinion about what constitutes hurtful sarcasm or a humiliating memo style could turn the courts into ongoing “superpersonnel departments” dispensing financial balm for injured feelings in the workplace. (cross-posted from Point of Law).
Kentucky fen-phen follies: Abbott v Chesley and Bonar v Chesley updates
Earlier: May 11, May 8, Apr. 5, Apr. 4, etc.
- Barbara Bonar gets supporting testimony in her claims against Stan Chesley, but loses bench trial in case she brought over questionable settlement over Catholic church sex abuse. Bonar, the next president of the Kentucky Bar, will appeal. In the meantime, she faces trumped up ethics charges for representing class member opt-out settlements. (Andrew Wolfson, “Covington lawyer loses fee dispute case”, Louisville Courier-Journal, May 12).
- Angela Ford, who is bringing the lawsuit on behalf of Kentucky fen-phen victims ripped off by their attorneys against their co-counsel, Stan Chesley, is now also facing what seems to me retaliatory political pressure; a Hamilton County, Ohio, judge, apparently unaware of deposition commissions, is complaining that she subpoenaed an Ohio witness without being licensed to practice law in that state. For some reason, a Kentucky judge, Stanley Billingsley, is testifying on behalf of Chesley. An American Home Products witness contradicted defendants’ claims that they “set aside” some settlement money for future Kentucky claimants (who, under the U.S. Supreme Court Amchem precedent, could not be bound by the settlement). And the parties are in mediation tomorrow and Thursday, which, judging by Chesley’s attorney’s complaints about press coverage, implies a confidential settlement is near. Next court hearing is May 31. (Shelly Whitehead, “Fen-phen suit heads to mediation”, Cincinnati Post, Apr. 24; Beth Musgrave and Jim Warren, “Lawyers meet Wednesday to try to reach deal on fen-phen millions”, Lexington Herald-Leader, May 14).
- Angela Ford herself has a website, which is not surprising, but it does include a remarkable resource of publicly-available court documents related to the Abbott v. Chesley case.