The U. S. Justice Department is looking at possible new indictments in the kickback investigation of powerhouse plaintiff firm Milberg Weiss Bershad & Schulman. (Apr. 7)
Here’s a telling sentence:
David Bershad, partner Steven Schulman (are) being looked at in connection with payments to Howard Vogel, a real estate broker and former lead plaintiff in several Milberg class actions.
Mr. Vogel must be prone to bad luck, eh?
The team of lawyers who recently won the largest-ever bad faith insurance verdict in Pennsylvania — more than $7.9 million — are asking U.S. District Judge Cynthia M. Rufe to make new law by awarding them $2.3 million in fees, the largest award of attorney fees that would ever have been granted in such a case.
The lawyers argue that the lodestar approach,under which their fee would be about $323,000, is flawed for two reasons: because the lawyers who bring such cases almost never bill for their work at an hourly rate, and their clients have most often agreed to a contingent fee in which the lawyers will be paid a set percentage of any verdict or settlement they win, usually one-third.
As a result, Tanner and Newman argue, the lodestar approach “unduly focuses the court’s scrutiny on a fictional contrivance as opposed to an approach which accurately reflects the manner in which such cases are handled.”
Of the $7.9m jury verdict, $6.25m is punitive damages, which, the defense argue, is a sufficient pot of money out of which the lawyers can extract their fees. (Law.com, Apr. 7)
For comprehensive coverage of this week’s verdicts in lawsuits against Merck, see Point of Law. In particular, Ted corrects reporters who keep passing on ill-informed assertions that the Cona/McDarby results are going to preclude Merck from raising its earlier defenses in the thousands of Vioxx cases yet to come, and that that New Jersey cases are being heard in “Merck’s home court“.
Other things you’ve been missing if you don’t check our sister site regularly:
* New regular contributors include Larry Ribstein (Ideoblog), Tom Kirkendall (Houston’s Clear Thinkers), and Sam Munson (Manhattan Institute);
* Theodore Dalrymple on a new history of vaccine litigation;
* Jim Copland on Rep. Cynthia McKinney and a class action on behalf of Capitol police;
* Ted on the Supreme Court’s recent Dabit decision on state-court securities suits (here and here); and on a new med-mal study;
* Michael Krauss on a tort suit in the U.S. against ExxonMobil over abuses by the Indonesian military;
* Jonathan B. Wilson on offer-of-judgment reform in Georgia (and more); and joint-and-several-liability reform in Pennsylvania, just vetoed by that state’s Gov. Ed Rendell;
* Posts by me nominating an Arizona lawprof for “the worst and most tendentious analogy in the history of the liability debate”; on doctors’ Good Samaritan liability; a ruling in the New York school finance case, an AG who dissents from his brethren on the tobacco deal; the Rhode Island lead paint verdict (here, here, etc.); Seventh Circuit judge Diane Sykes criticizes the Wisconsin Supreme Court; and lost-overtime suits on behalf of $400,000-a-year stockbrokers. And, of course, much much more — bookmark the site today.
Continuing to mix my business with pleasure, I pass along this fine prose from Ballarin, Inc. v. Licensing Board of Boston, 49 Mass. App. Ct. 506 (2000):
For some diners, consuming an appetizer of duck liver pâté, rolled in pistachio, lingonberry coulis, served with garlic pita points, followed by an entrée of venison au poivre, finished with a dessert of chestnut mousse gateau, apricot glacé, is still more rapturous if preceded by a dry martini or ended with a cognac. To satisfy that want, Ballarin, Inc., which operates The Hungry I restaurant at 71 1/2 Charles Street at the foot of Beacon Hill in Boston, applied in 1995 to the licensing board for the city of Boston for a seven-day all-alcoholic beverages license….
…At what was to be a first hearing on Hungry I’s application before the licensing board, proponents and opponents of the award of an all-alcoholic beverages license made known their views, by speech and writing. Among Hungry I’s adherents were some abutters and many patrons, one of whom touted the salubrious tendency of a Bloody Mary to increase levels of good cholesterol. Those opposed mustered all the political artillery–the Beacon Hill Civic Association and elected public officials. The principal argument advanced against granting the application was “opening of the floodgates”; i.e., were Hungry I to receive an all-alcoholic beverages license, how could the licensing board say no to others? The neighborhood would go down the drain….
Foreigners to Massachusetts might get the impression that rhetorical flourish is a sine qua non of our judicial appointees. Would that it were the case.
The California legislature passed a law in 1998 barring the intentional transmission of HIV, and now the California Supreme Court is considering whether to create a new tort of negligent transmission of sexually transmitted diseases. The coverage of the oral argument in Bridget B. v. John B. makes it sound more like a legislative debate than a legal discussion, but only one justice is noted as commenting on that fact. (Mike McKee, “Calif. Supreme Court Sees Need for Disclosure of Sexual History”, The Recorder, Apr. 6).
GruntDoc opens his mail to find one (Apr. 3).
“If you still think you would never confess to a crime you didn’t commit, listen to this.” Georgia Criminal Law Blog has a summary of the show (Mar. 31)(via Cernovich). Only seven states require that the full course of a police interrogation be taped in order to better evaluate the credibility of a confession; with the cost of such recording technology dropping ever closer to zero, it’s hard to see the case against a full-taping policy.
Maybe because this time they’re wrong. Actually, the Miami Herald’s headline is misleading, since the bill has little or nothing to do with gun control as conventionally understood: it “would expose businesses to criminal penalties if they ban workers from having guns in their cars parked in employee lots.” (Mary Ellen Klas, Miami Herald, Apr. 5).
In Australia, a professor faces punishment for politically unacceptable speech:
Academic Andrew Fraser will defy the Human Rights and Equal Opportunity Commission by not apologising to the Sudanese community for his study linking African refugees to high crime rates.
In a landmark ruling that raises fresh questions about the limits to which academics can engage in public debate, HREOC chairman John von Doussa has found Professor Fraser’s comments were unlawful because they amounted to a “sweeping generalisation” that was not backed by research.Professor Fraser was suspended last year from teaching at Sydney’s Macquarie University over his comments about Sudanese refugees in Australia.
(Greg Roberts, “Academic still links Africans to crime”, The Australian, Apr. 4)(via David Bernstein).
The previous post regarding California Judge Sill’s memorable opinion causes me to reflect on some of the more memorable opinions that form the landscape of Massachusetts jurisprudence over the years.
Perhaps one of the finest works of prose ever to constitute a legal opinion was crafted by Judge Paul Reardon, Chief Judge of the Massachusetts Supreme Judicial Court, in the case of Priscilla Webster v. Blue Ship Tea Room, 347 Mass. 421 (1964).
It seems that Ms. Webster, a native of New England (“a fact of some consequence,” noted the judge) patronized the Blue Ship Tea Room one day for a bowl of fish chowder, which contained haddock and potatoes (“in chunks (also a fact of some consequence),” noted the judge). While she was eating the chowder, a fish bone became lodged in her throat, and grievous injury ensued (the nature and extent of which were not in issue).
Ms. Webster sued the restaurant under a theory of breach of impled warranty of mercantability.
The Court determined that there was no breach of warranty, because one eating fish chowder in a restaurant on Boston Harbor ought to expect that a good chowder will have bones in it. But it is the language of Judge Reardon’s explanation that elevates the opinion to art form.
Rather than a dry recitation of legal holding suitable for a west keynote citation, Judge Reardon articulated the warranty holding in this fashion:
“No chef is forced to reduce pieces of fish in chowder to miniscule size in an effort to ascertain if they contain any pieces of bone, and a fish bone lurking in fish chowder, about the ingredients of which there is no other complaint, does not constitute a breach of implied warranty under the Uniform Commercial Code.”
After noting the defendant’s exhortation that “this court knows well that we are not talking of some insipid broth as is customarily served to convalescents” and quoting Daniel Webster’s recipe for fish chowder in a footnote, the Court observed:
“It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks upon a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds.”
Not only is the case noteworthy for its prose, but it also has been incorporated into law school contracts classes from coast to coast. Note the Google results.
The opinion is only available via subscription legal research sites, but anyone desiring a complete copy may leave a request in the comments and I will reply with atttachment. Please enjoy reading of this delightful bone of contention.