Overlawyered: Chronicling The High Cost Of Our Legal System

Help wanted (Calif. shakedown practice)?

Three years ago California’s notorious Trevor Law Group was found to be mass-mailing demand letters to small businesses alleging violations of the state’s ultra-liberal s. 17200 unfair business practices act, then settling the complaints for cash. A major furor ensued, and the state bar and Attorney General Bill Lockyer made gestures toward reforming the law to prevent law firms from running “shakedown” practices. But did it work? Mike Cernovich notices that a law firm has placed an employment ad on Craigslist seeking “additional counsel” to handle an “expanding workload”. What kind of workload? Well, it’s “primarily in the practice of wage and hour law inclusive of class actions … almost all [of our] cases are settled and are rarely tried.”

That business about settling rather than trying “almost all cases” got Cernovich’s suspicions up, and then he “saw something that made my jaw drop:”

In assessing the nature of the work and return on time spent it is helpful to keep in mind that the burden of proof is always on the employer to establish that he has paid the correct wages. The law requires that the employer keep accurate and timely maintained records that show hours worked and amounts paid. Failure to maintain such records is almost always at the heart of the case ….

Furthermore the employer will be liable for our legal fees if he is unable to defense the case. These two elements [the inability to prove us wrong and threat of attorneys fees] provide our clients with extraordinary leverage to resolve the matter.

Cernovich reads this as amounting to: “we sue employers knowing that it’s unlikely they’ll be able to produce records that will prove us wrong. … In other words, let’s just sue someone, hope he can’t produce any employment records to contradict us, threaten him with attorneys fees, and then settle the case post haste.” Or is he being too suspicious? (Mar. 8). (Updated/corrected shortly after posting to fix a mistake on my part about who placed the Craigslist ad; also retitled next morning.)

More on Trevor Law Group here and here. More on wage and hour law: Mar. 10, Jan. 9 and links from there.

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Update: Trump decamps to Camden

Caesar’s forum-shopping dept.: Donald Trump has filed his $5 billion defamation suit against author and New York Times reporter Timothy O’Brien (see Jan. 25, Feb. 12) not in the courts of some boringly obvious place like, say, Manhattan, but in Camden, New Jersey, which happens to be “where his golf buddy, George Norcross II, the state’s behind-the-scenes political kingmaker, holds court. In 2001, Norcross, an exec at Commerce Bank, was caught on tape boasting of having engineered a judgeship for a political foe ‘just to get rid of him.’ Norcross’s claim to control the New Jersey courts was only bluster, his longtime lawyer, William Tambussi, said at the time. Tambussi has also been retained by Trump in his suit.” (Geoffrey Gray, “Intelligencer: Trump’s Jersey Trump Card”, New York, Mar. 13).

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Arise, ye prisoners of high-paid brokerage jobs

The overtime-classification wars have reached Wall Street, with the result that $400,000-a-year stockbrokers are claiming with a straight face that they’re really hourly employees, contends Littler Mendelson’s Allan G. King:

In a spate of class action lawsuits against Merrill Lynch, Morgan Stanley, Prudential and other brokerages, filed principally in New York, securities brokers — who earned billions in commissions annually — now claim they were just hourly “wage earners,” who were misclassified by their employers to thwart the Fair Labor Standards Act and the California Labor Code.

Could we please, please get Congress to revisit the antediluvian FLSA and start preparing to repeal parts of it that make no sense today, or never made sense in the first place? (cross-posted from Point of Law).

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Notes on postal tenure

With the popularity of Netflix, New York magazine notes the rise of a new type of crime: postal employees’ stealing the easily identifiable red-jacketed DVDs from the mail. In addition to at least three such cases in New York City, “Inspectors have rounded up thieves in Detroit, San Diego, and Lyons, Colorado — where a carrier stole 503 discs before capture. Because civil-service rules make it nearly impossible to fire corrupt mail carriers, U.S. attorneys often agree to dismiss charges in exchange for their quitting.” (Eric Wolff, “Intelligencer: A Stranger In Your Queue”, New York, Feb. 20). But do their lawyers succeed in negotiating neutral references for them?

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Restrained, tasteful lawyer advertising, cont’d

A lawyer’s commercials depict him spinning “like a human tornado, generating cash for his clients,” and proclaim “GOAL” in soccer style as he gets checks. “As long as my ads are not false or misleading, I can say what I want to say,” says Glen Lerner, who’s currently in a dispute with the State Bar of Nevada about the wording of one of his slogans, “The Heavy Hitter”. “I’m selling a product. Me … I’m like the Ty-D-Bol man.” (Glenn Puit, “‘Heavy Hitter’ will sue”, Las Vegas Review-Journal, Mar. 2)(via Lattman).

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Jailing outdoor smokers

If the city of Calabasas, Calif., has no intention of doing so, how come it gave itself that authority in its recently enacted ordinance? (Jacob Sullum, Reason “Hit and Run”, Mar. 9). Among its other provisions, the ordinance also bans smoking in nonresidential outdoor spaces in the presence of even consenting non-smokers — including, apparently, a smoker’s spouse, parents, etc. — and provides for enforcement through bounty-hunting lawsuits by uninjured parties. (“Clean Air Calabasas”, Reason, Mar. 8).

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Link to Overlawyered

Just a reminder: if you like what you read on Overlawyered, please think of taking a moment to install a link to it on your website, or mention it in your email newsletter, or just tell a friend about it. That’s how we get new readers. Thanks!

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Organ obbligato

Long before their current “medical adventure”, I was a besotted fan of the writings of Virginia Postrel and Sally Satel, and also proud to count them both as friends. Now Virginia has single-handedly (single-kidneyedly?) refuted the old calumnies that tar libertarians as selfish, only out for Number One, etc. (Mar. 3, Mar. 7). Best wishes to them both for a speedy recovery.

“‘Bedbug’ pair back days later”

“A couple who filed a $20 million lawsuit against a Catskills hotel after allegedly being attacked by bedbugs returned to the resort for another stay just nine days later, a lawyer for the hotel told the Daily News yesterday. Leslie Fox and Stephen Cohen checked in at the Nevele Hotel on July 15, 2005 – then returned from July 24 to July 29, attorney Joseph O’Connor said. ‘The claim for a $20 million injury is not substantiated by her willingness to stay in the same section of the hotel two weeks later,’ he said.” Fox and her husband are being represented by Alan J. Schnurman of the law firm of Zalman & Schnurman, who says he has been contacted by another hotel patron reporting bedbug bites. (Helen Peterson, New York Daily News, Mar. 9; “Pair Suing Hotel Over Bedbugs Bites Return”, AP/Washington Post, Mar. 9).

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“There’s just no there there”

Mark Kleiman, on the alleged link between autism and thimerosal in vaccines (Mar. 6), commenting on the latest from Respectful Insolence (Mar. 6). Orac of Respectful Insolence also takes another whack (Mar. 2) at the emissions of the egregious Robert F. Kennedy, Jr. on the same controversy, as published (Mar. 1) in the Huffington Post. More: Feb. 21, etc.

P.S. And here’s Kathleen Seidel, who’s been covering the issue in depth at Neurodiversity Weblog (Mar. 1): “It’s time for RFK Jr. to come clean about the fact that he represents the interests of private litigants seeking compensation for supposed vaccine injury when in fact many of those litigants have no evidence that such injury occurred.. …Widespread suspicions are fueled by an aggressive public relations campaign engineered by wealthy PR maven and pioneering ‘mercury mom’ Sally Bernard, early litigant Lyn Redwood, their close associates, faux-journalists David Kirby and Dan Olmsted, and a core of personal injury lawyers who have cultivated this market for years. A lot of money has gone into convincing parents of autistic children that their kids were poisoned.”

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