Oprah for President? Cease and desist

Attorneys for the talk show host have fired off a cease and desist letter to retired Kansas City teacher Patrick Crowe, 69, over his efforts to draft her as a presidential candidate. In addition to demanding that he surrender his website oprah08.net (which lands visitors on this site) and give up his toll-free number 1-866-OPRAH08, the letter (courtesy Smoking Gun) insists (p. 2) that Crowe “refrain from using any and all references in any vehicle (including, without restriction, websites), for any reason, to Ms. Winfrey” or her properties. (Matt Campbell, “Quest to elect Oprah becomes publicity opera”, McClatchy/ Seattle Times, Sept. 23; Andrew Buncombe, “Oprah blocks bid to make her President”, The Independent (U.K.)/Belfast Telegraph, Sept. 22). Ann Althouse comments: “would Oprah be a good President? I think she’s too litigious.” (Sept. 24).

Deep pocket files: Plaintiff: McDonald’s should’ve warned me and my boss not to be gullible

McDonald’s week continues on Overlawyered (Sep. 22; Sep. 20). McDonald’s is being sued over a trend of strip search hoaxes we discussed two years ago.

Here, a caller from a payphone in Florida tricked a Hinesville, Georgia, McDonald’s male manager and 55-year-old male employee into strip searching and molesting a 19-year-old female employee, who put up with the telephone-instructed molestation for thirty minutes before putting an end to matters. The franchise immediately fired the two men three days after the February 2003 incident, and offered the female victim counseling and a new job, but she instead quit and sued the franchise and McDonald’s. McDonald’s did warn the franchise (and other franchises) about the hoax in 1999 and 2001, (and the McDonald’s training manual now explicitly rules out strip searches of employees rather than relying on common sense) but such warnings are, of course, evidence that they should have warned more, according to the plaintiffs. The district court threw out the suit against McDonald’s, and many of the claims against the franchisee.

The defendants’ attorneys apparently have little faith that the law will have the common sense the employees lacked and blame the appropriately responsible parties rather than the deep pockets: to avoid liability they are buying into the plaintiff’s theories and seeking to blame each other in September 15 arguments before the Eleventh Circuit on interlocutory appeal. Some more aggressive defense might have had an effect: “The whole thing is really stupid,” said Senior Judge Peter Fay. (Alyson M. Palmer, “Bizarre ‘Strip-Search Hoax’ Case Before 11th Circuit”, Fulton County Daily Report, Sep. 25).

Read On…

Minn. court: traffic-cam ticketing unlawful

The Minnesota appeals court took exception to a provision of the law providing that a car owner would be responsible for traffic infractions caught on camera unless he or should could prove someone else was driving. (Joy Powell, “Court upholds ruling against traffic cameras”, Minneapolis Star-Tribune, Sept. 23). For more on the evils of traffic-cams and contingency-fee law enforcement, see Sept. 6, 2001, Apr. 8-9 and Apr. 19-21, 2002, Mar. 10, 2004, and Mar. 31, 2005.

Calif. AG sues automakers for global warming

In a first-of-its-kind suit, California Attorney General Bill Lockyer is demanding damages from automakers for the impact of global warming. “Because, after all, the California attorney general is the one who should be deciding national policy on the global warming controversy,” notes Ted at Point of Law. Even accepting Lockyer’s contentions at face value, autos sold in California contribute less than 1 percent of global greenhouse-gas emissions (David Shepherdson, “Calif. sues over auto emissions”, Detroit News, Sept. 21).

Is Lockyer making it up as he goes along with the new suit, legal-theory-wise? It would seem so. His theory that autos constitute a nuisance have never been enacted as law even by the California legislature, yet he’s asserting it retroactively to punish past behavior by Detroit and Japan worldwide. His views clash strongly with those held by elected officials in many other states, which is one reason our system gives the U.S. Congress, rather than the California attorney general, the right to set national environmental policy. His notion that internal combustion engines might not be unlawful in themselves, but constitute nuisance in this case because manufacturers could be doing more to minimize their impact, makes as much sense (which is to say, no sense whatever) as if he sued California’s own drivers on the grounds that they contribute to the problem by taking unnecessary trips.

Prof. Bainbridge has quite a bit more to say about the abuse of power involved in using this type of litigation as an end run around the political branches of government which are the proper locus of authority on policy matters of this sort (Sept. 21).

Reader Earl Wertheimer writes: “I would rather see the automakers simply agree to stop selling cars in California. Let them walk & bicycle for a while. This would promote better fitness and also reduce future obesity lawsuits.”

Reader Loren Siebert writes: “I wonder if the discovery process will include how many motor vehicles the state of CA has purchased and operates.” And Nick Fenton at DTT Buzz has suggestions for more litigation (Sept. 20).

More: Lockyer “is unlikely to win” the suit, according to legal experts interviewed, especially since “a similar case brought by California and other states against utilities companies in 2004 failed in the courts”. “Even with a small chance of success, environmental advocates say the new legal action is useful and necessary”, one reason being “to pressure carmakers”. “I hope that automakers realise this will be the first of a series of lawsuits,” says Jim Marston of Environmental Defense. (Roxanne Khamsi, “California faces uphill battle on car emissions”, New Scientist, Sept. 22). EconBrowser (Sept. 24):

…the key question in my mind is not the extent to which reducing greenhouse emissions from vehicles may be a good idea, but rather whether, under previously existing U.S. law, it has been lawful to manufacture cars that emit carbon dioxide. I submit that it has, and if a judge somewhere now creatively determines that a company can be punished for such perfectly lawful behavior, then I fear that America is no longer a nation ruled by law, but rather ruled at the whim of whatever those currently wielding power happen to think might be a good idea.

Yet more: Brian Doherty, Reason “Hit and Run”, Sept. 21.

Ayaan Hirsi Ali in America

George Will profiles the brave Muslim feminist, which would be worthy of mention even if it didn’t lead off with this anecdote:

“While her security contingent waits outside the Georgetown restaurant, Ayaan Hirsi Ali orders what the menu calls “raw steak tartare.” Amused by the redundancy, she speculates that it is intended to immunize the restaurant against lawyers, should a customer be discommoded by that entree. She has been in America only two weeks. She is a quick study.”

See also Nov. 11, 2004; AEI, Aug. 28.

Wal-Mart sued for CDs’ naughty words

Speaking of class actions without cognizable causation: Wal-Mart refuses to sell albums that contain foul language, but a Tool CD that didn’t have the Tipper-Gore “Parental Advisory” label slipped through the cracks (as did another album with a song that had the phrase “menage-a-trois” in the lyrics). This is supposedly grounds for a class action lawsuit, but it’s really just a legalized extortion attempt, since if the court certifies the class, it will cost Wal-Mart about as much to defend the case as it would to just pay the plaintiffs’ attorneys a nuisance settlement. (I presume they’ve sued The plaintiffs will be disappointed because they failed to sue beneath the Class Action Fairness Act $5 million jurisdictional requirement to keep the case in judicial hellhole Cook County; the case is thus almost certain to be removed to federal court, and the federal appellate courts for Chicago scrutinize class action settlements too closely for the hit-and-run plaintiffs’ bar’s comfort.)

Even plaintiffs’ attorney David Fish is appalled at the blatant misuse of consumer fraud laws. Professor Childs isn’t impressed, either, and Peter Lattman comments.

Pelman v. McDonald’s going forward

The infamous class action litigation seeking to blame McDonald’s for the obesity of putative class members is going forward, having survived a third motion to dismiss. (Mark Hamblett, “N.Y. Judge Rebuffs McDonald’s Motion to Dismiss Deceptive Ad Claims”, New York Law Journal, Sep. 22). Judge Sweet’s opinion will be posted to the AEI Liability Project Documents in the News page later today. I discuss the Pelman case in my Taxonomy of Obesity Litigation paper. The failure of the motion means that, unless McDonald’s can persuade Judge Sweet to bifurcate discovery to resolve class certification issues first, the plaintiffs will be able to impose millions, and perhaps tens of millions, of dollars of litigation expenses on McDonald’s if they dare to defend themselves instead of buying off the class. Copycat litigation is likely.

Ironically, yesterday was the day that the folks at the Bizarro-Overlawyered site chose to attack pending legislation shutting down such ludicrous suits as “pure hype” because there supposedly were no such suits. (The House already passed the bill in a bipartisan 306-120 vote.) It’s a mystery to me why the special interest group of the litigation lobby is devoting so many resources trying to shut down legislation that they claim makes no difference. Earlier at Overlawyered: Apr. 20, 2005; Jan. 27, 2005; Sep. 4, 2003. Cross-posted at Point of Law.

Pro se suits: don’t blame lawyers, right?

Every so often someone suggests that poorly conceived pro se (self-represented without a lawyer) lawsuits can’t count as a symptom of an overlawyered society, since lawyers aren’t involved in them, right? I left a comment at Evan Schaeffer’s site the other day about this question and reproduce it here:

I agree that it’s fair to point out that many dubious legal claims are advanced by unrepresented pro se litigants, and also fair to point out that most lawyers would have advised against pressing many of these claims, and thus would have played a socially beneficial role had they been called into the case by the claimant.

I don’t agree that the moral is that such cases have no logical link to public discontent with the legal profession. Our system is set up so as to encourage marginal pro se claims (like marginal claims generally) through liberal rules of civil procedure that make it easier to get into court, rules on causation and damages that make longshot theories seem worth a try, lack of loser-pays, and so forth. These ground rules were largely developed by, and are certainly jealously guarded by, the profession that administers and makes its living from them, and that profession is assuredly not the hatters, the cobblers, or the cigar makers.