Dogs defending cats dept.: Denver’s Rocky Mountain News editorially criticizes the “fair housing” complaint against the online service over allegedly improper rental, roommate and property-sale ads (“Meddlers eye online freedom”, Feb. 19)(see Feb. 9).
Vioxx Two for Three, with 9650 At-Bats Remaining
Merck won the first test of Vioxx in a federal court, though the short-term nature of the plaintiff’s use probably made it one of the weaker cases facing the company.
(“Merck wins retrial of first federal vioxx lawsuit”, Bloomberg, Feb 17). Ted Frank has more at Point of Law.
What Goes Around, Comes Around
Apparently Amazon is facing yet another suit over patent infringement involving its website technologies. “The complaint accuses Amazon of using technology on its own Web site and for third parties such as Target.com that infringes on two Registrar Systems patents, Amazon said.” (“Amazon named in patent infringement suit”, Puget Sound Business Journal, Feb 17).
Though I am generally sympathetic to companies sued over software patents, particularly since the US Patent Office seems to have completely lost its mind in granting many of these patents, I have little sympathy for Amazon. After all, they were the ones to patent and then sue their rivals over “one-click” ordering.
My college roommate, who was a trade lawyer for quite a while, told me a story of a company trying to get their disposable cigarette lighter to pass the US child safety tests (I promise we will get back on topic in a second). I can’t remember the exact test, but it involved giving a bunch of children the lighter and observing how many in a certain amount of time could figure out how to defeat the childproofing. Apparently a key to success was to (literally) go out and find the slowest and dullest group of kids you could. Which brings me back to the one-click patent, where surely Amazon must have gone through a similar process to find a patent examiner who would declare one-click ordering “non-obvious” and patentable.
Another Step for Women’s Equality
In another giant leap for the equality of women, Broadway producer Dede Harris has demonstrated that its not just men who can get sued for sexual harassment. Paul Harris, “Turning the Tables on the Casting Couch” The Observer, Feb 19
“Feds say Pellicano taped client talks”
Well, this should be entertaining: “In a twist that could have many in Hollywood on edge, federal prosecutors revealed Thursday that they have taped conversations between indicted sleuth-to-the-stars Anthony Pellicano and clients who hired him to dig up dirt on rivals.” (Greg Risling, AP/Macon Telegraph, Feb. 16). More: Feb. 16, Feb. 7, etc. And the San Francisco-based Recorder has much more about this week’s indictment of a prominent Hollywood attorney in the unfolding scandal (Kellie Schmitt, “Attorney Terry Christensen Indicted in Case Involving Hollywood PI Pellicano”, Feb. 17).
El Defenzor on the Watts Law Firm
El Defenzor, a Corpus Christi paper of questionable credibility, claims to have uncovered e-mails among the plaintiffs’ bar in that town hand-picking judges for the bench at election time. Unfortunately, this germ of an interesting story is buried in bad punctuation and a deranged-sounding ungrammatical writing style that is consistent with what a commenter here calls “tinfoil hat-wearing.” But the quoted e-mails themselves have indicia of genuineness (including accurate e-mail addresses and corrections of typos in the title line in later iterations), and some of the other allegations in the story are consistent with stories that we have reported from the San Antonio Express-News and a newspaper-destruction scheme we documented in another Watts case. It’s also consistent with the reports filed with the Texas Ethics Commission; witness the disclosures by the front group “Good Government PAC,” which has the same address and office number as the Watts Law Firm.
Imagine what a credible journalist could do with this story! Sixty Minutes? Houston Press? Dallas Observer? Corpus Christi Caller-Times? Texas Monthly? Anyone out there?
Proliferation of Taser Suits
Taser International has experienced tremendous growth over the last few years, but now is facing a growing number of lawsuits. Some of these suits narrowly focus on police departments for their use of the Taser, while others name Taser itself in defective product suits. A quick scan of the news over just the last few days reveals suits in Georgia, Ohio, Tennessee, Canada, Florida, and Minnesota.
Taser claims that many of these suits have been dismissed. Taser faces some of the same problems faced by vaccine makers and even airbag makers – their product clearly saves lives vs. the alternative (i.e. getting shot with a real gun), but this “safer product” value proposition gets confused with “completely safe,” which leads to careless use and mistaken expectations.
Retailers Settle Katrina Gas-Price Suits
Over at Coyote Blog today, I observe that while most of us have shifted our attention away from Katrina, gas price “gouging” lawsuits against gasoline retailers still continue. Sunoco became the latest retailer to settle, paying New Jersey over $300,000 to be left alone. Many other states have also gotten into the act, including Aspiring Governor Eliot Spitzer, who would never miss an opportunity to score some populist points.
So, having spent months trying to explain markets and supply & demand and refute the silliness of the “price-gouging” concept, what are gasoline retailers doing today? Why, they are hauling credit card companies in front of Congress to accuse them of … price gouging (Coyote Blog, Feb 17). Also see Sept 2, Sept 1.
Overprosecuted
This is a bit off topic from civil litigation, but Tom Kirkendall, a Houston attorney following the Enron trial, makes the case that the Enron prosecution team or “task force” has been pushing the envelope of prosecution tactics, with disturbing results.
In an unprecedented move, the Task Force has named over 100 co-conspirators in the case. So, the potential definitely exists for substantial testimony about out-of-court statements going to the jury without the defense ever having an opportunity to cross-examine the persons who made the alleged statements. Moreover, fingering unindicted co-conspirators is an equally effective technique for the Task Force to prevent testimony that is favorable to the defense because persons named as unindicted co-conspirators are likely to the assert their Fifth Amendment privilege against self-incrimination and thus, not be defense witnesses during the trial. Thus, the Task Force’s liberal use of the co-conspirator tag has a double-whammy effect — not only does it allow the Task Force to use out-of-court statements against defendants without having the declarant of the statements subjected to cross-examination, it has also effectively prevented previous Enron-related defendants from obtaining crucial exculpatory testimony from alleged co-conspirators who have elected to take the Fifth and declined to testify.
Kirkendall argues that despite these tactics, the task force botched the broadband prosecution, and already seem to be making mistakes in the Lay/Skilling trial. He has a lot of fun, in particular, with the task force’s indictment against Lay and Skilling, which was apparently so poorly written that the prosecution itself has petitioned the court not to let the indictment be referred to in cross examination. (Tom Kirkendall, Houston’s Clear Thinkers, Jan 27)
Almost makes you nostalgic for Marcia Clark. But probably not Janet Reno. Over at CoyoteBlog, I wonder whether NJ prosecutors are more interested in upholding the law or getting front page pub in the NHL betting case.
Roger S. Braugh, Jr. responds
We frequently hear from plaintiffs’ attorneys that we don’t have the courage to print their side of the story; somehow, we always do. The latest challenge to our “moral fortitude” comes from Roger S. Braugh, who objects to our post on the Rose Marie Munoz case, where a woman who didn’t wear a seatbelt received a $29 million verdict in a failure-to-warn case where a recall notice had been issued. We’ve posted the full comment and my full response at the original post; a lengthy partial point-by-point rebuttal is after the jump here. In addition, Brough has offered to answer questions about the case; I’ve posted a preliminary list.
Brough’s complaint about those “spending millions of dollars” on tort reform is ironic; he is allegedly a member of what a community paper calls Mikal Watts’s “Millionaire Lawyers Club” that allegedly handpicks judges and influences elections on the 148th District Court in Corpus Christi. But given that a runaway plaintiffs’ bar is costing the American economy hundreds of billions of dollars a year, it’s unsurprising that some of the victims of that problem seek to fix it. But the plaintiffs’ bar outspends reformers by a 3-1 ratio.