Overlawyered: Chronicling The High Cost Of Our Legal System

Pirate’s booty indeed?

Speaking of which: “A New York appeals court has thrown out a $3.5 million class action settlement — and $790,000 in attorney fees — over snack foods that were found to have more fat than advertised. The court found that the trial judge who approved the settlement did not adequately consider the relevant factors in certifying a class over Pirate’s Booty snacks. The opinion also said the attorneys who worked on the case had offered an insufficient explanation of their work to justify the fees.” Manhattan journalist Meredith Berkman, who had filed the original suit, objected to the settlement and attempted to opt out of the class; her lawyer, David Jaroslawicz, said: “This is the type of thing that brought class settlements into disrepute”. (Tom Perrotta, “Court Rejects Class Settlement and Attorney Fees in Suit Over Nutrition Data”, New York Law Journal, Feb. 7). See Apr. 23-24, 2002.

More: Ted is covering the case in considerably more detail at Point of Law. Plus: David Giacalone (Feb. 10).

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“Low-Fat Diet Does Not Cut Health Risks, Study Finds”

A big oooops for one whole sector of obesity litigation and food nannyism in general:

“These studies are revolutionary,” said Dr. Jules Hirsch, physician in chief emeritus at Rockefeller University in New York City, who has spent a lifetime studying the effects of diets on weight and health. “They should put a stop to this era of thinking that we have all the information we need to change the whole national diet and make everybody healthy.”

(Gina Kolata, New York Times, Feb. 8). On the other hand: Cathy Young (Feb. 17) says the new study may not after all prove as much as it might seem to.

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Target sued: website not accessible to blind

Per the WSJ Law Blog (Feb. 7): The National Federation of the Blind (NFB), represented by Berkeley’s Disability Rights Advocates as well as two law firms, has sued discounter Target, alleging that it violates California disabled-rights law because its website is not operable by blind computer users. “The suit charges that the site lacks, for instance, compliant alt-text, an invisible code embedded beneath graphics that allows blind users to decipher images. The suit also contends that because the Web site requires the use of a mouse to complete a transaction, blind customers are unable to make purchases on their own.” As longterm readers of this site know, demands for website accessibility under the ADA and similar laws have been simmering for years; in 2002 a federal court turned down such a claim with respect to Southwest Airlines’ website, and two years ago (Jan. 8, 2004) a NFB activist said disability advocates were biding their time, waiting for the right case to reopen the issue. It sounds as if the Target lawsuit may be that case. (& welcome readers of John Dvorak, who calls us “the always entertaining Overlawyered.com”).

More: at WebStandards.org, one enthusiast for the lawsuit says that it also calls into question the practices of Amazon.com, whose shopping engine, according to this commentator, powers the Target site. As I discovered when I started writing on this subject six years ago, many advocates of “web accessibility” seem quite surprised to learn that anyone actually disagrees with them on the merits of the matter, as opposed to just not being well enough informed about it. And: coverage in Law.com’s Recorder (Matthew Hirsch, “Suit Alleges Target Denies Blind Access to Online Shopping”, Feb. 14).

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Trolls in the BlackBerry patch

Columbia lawprof Tim Wu on patents as “Weapons of Business Destruction”. How easily can patent examiners be prevailed on to grant a patent application?

On Nov. 1, 2005, the PTO issued Boris Volfson of Huntington, Ind., Patent 6,960,975 for his invention of an antigravity space vehicle (according to the application, “the spacetime curvature imbalance … provides for the space vehicle’s propulsion”).

(Slate, Feb. 6). More: Jan. 19, Sept. 16, etc.

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“No one is being force fed soda”

My op-ed on the litigation against Big Cola (see Feb. 2) draws an L.A. Times reader letter (Feb. 7). Also welcome Andrew Sullivan readers (Jan. 27). More by Sullivan: “Hey, these adverts are making me fat”, The Times (U.K.), Jan. 29; blog posts including Jan. 25 and Jan. 26. And see Philip Wallach, “There Are Deeper Pockets than ‘Big Soda'”, The American Enterprise, Dec. 15; John Luik, “Sponge Bob, Wide Pants?”, TCS Daily, Jan. 25; and Rogier van Bakel, Jan. 23.

On allegations of a link between food advertising and childhood obesity, see Todd Zywicki, Dec. 21 and links. According to John Hood (“Bill Won’t Stop War on Ads”, Carolina Journal, Nov. 11):

American children are now gaining weight even as they watch somewhat less commercial television than previous generations did. One study estimated that children saw about 15 percent fewer TV ads in 2003 than their counterparts did in 1994. Alas, that does not mean today’s kids are playing outside more. They simply have many more commercial-free alternatives such as premium cable, tapes and DVDs, and video and computer games.

Another unfortunate fact for advocates of regulating food advertising is that their pet idea has already been done to the max – that is, in the form of outright bans of ads targeting children – in places such as Sweden and Quebec. The obesity rate of Swedish children differs little from that of British children, however. The same is true in Quebec vs. other Canadian provinces.

Meanwhile, Jacob Sullum (“Dora the Exploiter”, syndicated/Reason, Jan. 25) comments on the Center for Science in the Public Interest’s suit against Viacom/Nickolodeon and Kellogg (see Jan. 20):

The plaintiffs say it’s not about the money. I believe them. This lawsuit, which CSPI and its allies plan to file under a Massachusetts consumer protection statute prohibiting “unfair or deceptive acts or practices,” is really about censorship. By threatening onerous damages, CSPI aims to achieve through the courts what it has unsuccessfully demanded from legislators and regulators for decades: a ban on food advertising aimed at children.

Earlier, Sullum reported on the CDC venturing into West Virginia to stalk obesity “vectors” (“Watching the Detectives”, syndicated/Reason, Aug. 26).

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Pellicano charged; Hollywood lawyers next?

Following a three-year FBI investigation (see Nov. 11, 2003), Hollywood private eye Anthony Pellicano pleaded not guilty to a 110-count federal indictment (PDF) unsealed Monday. “Pellicano, 61, is charged with organizing and masterminding a corrupt enterprise that allegedly wiretapped phones, entered private computers without authorization, committed wire fraud, bribery, identity theft and obstruction of justice.” Targets of his illegal snooping are said to include celebrities Sylvester Stallone and Garry Shandling and New York Times reporter Bernard Weinraub. (Andrew Blankstein and Greg Krikorian, “Pellicano Indicted on Racketeering Charges”, Los Angeles Times, Feb. 6; Roger Friedman, “Cruise, Jacko Lawyer Safe for Now”, Feb. 6; AP/Hollywood Reporter).

The FBI originally got on Pellicano’s trial following a bizarre 2002 incident in which a dead fish, a rose and a note that said “stop” were left on the car window of Los Angeles Times reporter Anita Busch, who was working on a story about actor Steven Seagal at the time. What has sent nervous ripples through Hollywood’s legal community is that Pellicano has worked for many prominent entertainment-industry lawyers, and prosecutors are highly interested in finding out how much they knew about his alleged tactics.

Several veteran Los Angeles lawyers who specialize in defending white-collar crime suspects said they had been retained by other attorneys who are under scrutiny in the Pellicano case.

The lawyers all spoke on condition that they not be identified because of the sensitivity of the situation, including the possibility that some of their clients could be indicted.

Some of them said they thought it highly likely that attorneys would be indicted in the near future.

Asked how serious the government was about indicting certain attorneys, one defense lawyer said: “Beyond serious.”

Added the lawyer: “That dead fish led to a treasure trove of stuff.”

(Greg Krikorian, Henry Weinstein and Chuck Philips, “Private Eye May Be Tried Again”, Los Angeles Times, Feb. 3). More: Defamer; Luke Ford; Robert W. Welkos, “Lawyer to Celebrities Is Subject of Inquiry”, L.A. Times, Feb. 7 (many persons whose privacy was allegedly infringed were on the other side of lawsuits from celebrity lawyer Bertram Fields, Pellicano’s most prominent lawyer-client); Kellie Schmitt and Justin Scheck, “Hollywood PI Pleads Not Guilty to Racketeering”, The Recorder, Feb. 7.

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Update: “Maag’s defamation suit is dismissed again”

Watch what you say about judges, yet again: For the second time, Illinois circuit court judge Patrick Kelley has dismissed a $110 million defamation lawsuit filed by former Madison County appellate judge Gordon Maag against groups that criticized him during his unsuccessful 2004 double run for a seat on the Illinois Supreme Court and for retention in his existing seat. Maag’s attorney, Rex Carr, vowed to appeal. (Paul Hampel, St. Louis Post-Dispatch, Jan. 9; Steve Gonzalez, “Maag’s defamation suit dismissed, again”, St. Clair Record, Jan. 9; “That’s two strikes, now spare us” (editorial), Madison Record, Jan. 15). Since losing the races, Maag has aimed defamation suits at a wide range of local and national groups that include the Chicagoland Chamber of Commerce, the American Tort Reform Association and even the Manhattan Institute for Policy Research, with which I’m affiliated (no, I don’t know what his theory for including it was, and I haven’t asked). For more on the controversy, see Dec. 23, 2004, as well as PoL Jun. 10, 2005 and assorted links there.

As usual, the funniest piece on the controversy came from the wonderful (and brave) columnist for the St. Louis Post-Dispatch, Bill McClellan, who explains that he is not among Judge Maag’s critics (after all, who likes getting sued?) but notices that “there seems to be some question as to whether he is a resident of Illinois, as he stated in one of his suits, or a resident of Alabama, as he stated in another.” (“With confusion over residency, lawyer’s critics feel vindicated”, Nov. 25).

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Federal judge fines EEOC $1m for frivolous lawsuit

“The U.S. Equal Opportunity Employment Commission must pay more than $1 million to a Pasadena law firm that it sued unsuccessfully last year for sexual harassment and pregnancy discrimination, a federal judge has ruled. U.S. District Judge Dickran Tevrizian…. found that the EEOC filed a ‘frivolous’ lawsuit against Robert L. Reeves & Associates, which practices immigration law.” (AP/San Diego Union-Tribune, Jan. 25). There’s a discussion at WorkplaceProfBlog (Jan. 26).

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