You may recall the entertainingly stupid lawsuit filed by Michael J. Zwebner and his penny-stock holding company Universal Communication Systems against CNN and Wolf Blitzer (Feb. 17). No surprise, Rule 11 sanctions were granted—the judge found that each of the three independent reasons for granting sanctions under Rule 11 applied to this case. Zwebner’s attorney, John H. Faro, demonstrates his uncertain grasp of the law by continuing to blizzard the court with papers, including filing a premature appeal purporting to divest the district court of jurisdiction and fundamentally misunderstanding the concept of “bad faith” litigation by arguing that the Rule 11 sanctions were inappropriate because the lawsuit was filed for “tactical” (!) purposes. One hopes that the court awards fees over the collateral litigation tactics so that the defendants are not worse off for having sought Rule 11 sanctions. One further hopes that the Florida Bar steps into protect other defendants and clients from Faro. A similar lawsuit brought by Zwebner and Faro against Lycos appears to have been dismissed this week; the same message board has fun discussing these and other Zwebner lawsuits. See also Mar. 12.
“The law of mythological food fears”
“Proposition 65 deserves to be renamed ‘the law of mythological food fears,'” says Sandy Szwarc in Tech Central Station about acrylamide suits. See Aug. 31, Aug. 29, May 26, Apr. 6, 2004, etc.
“Next tobacco” watch: many Wall Street suits fizzle
After the stock market’s tech-driven bubble popped a few years back, lawyers advertised heavily for burned-investor clients, hoping to reap billions at the expense of Wall Street firms whose research had been exposed as shoddy or worse. But expectations have deflated, and now Pensacola, Fla.’s Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, whose doings are often chronicled in this space, has settled about 300 or so investor claims against Merrill Lynch “for approximately three cents on the dollar”. Although it is far from unusual for plaintiffs to recover sums in arbitration, lawyers have had trouble proving that most of their clients relied on the tainted research in making investment decisions. A Merrill Lynch spokesman claims the firm has “overwhelmingly prevailed in these cases”, while a plaintiff’s lawyer counters that “we are not doing too badly”. (Susanne Craig, “Heard on the Street: Payouts low in research suits”, Wall Street Journal/Pittsburgh Post-Gazette, Oct. 13). More: Jul. 10, 2003.
Drowns while fleeing cops, family sues for $50M
New Jersey: “A $50 million lawsuit is being filed against Hoboken and its police department by the parents of a 16-year-old boy who drowned in the Hudson River shortly after escaping from Hoboken Police Headquarters.” On Oct. 5, 2004 Vincent “Woody” McConnell Jr. was arrested on an outstanding warrant and on being taken in asked if he could use the public rest room at the station house. According to police, he then unscrewed the security grate on the small window in the rest room and escaped; with cops in pursuit, he climbed a railing, “escaped from an officer holding his arm and jumped into the water,” which has dangerous currents at that point in the river. Friends of McConnell say they don’t believe he would have jumped. He’s being represented by attorney Robert Bianchi. (Michelangelo Conte, “Suit Blames Cops”, Jersey Journal, Oct. 12).
Font size, redesign, newsletter, cont’d
As regular readers may have noticed, we’ve tried out a variety of design tweaks over the last week. In response to reader requests, we’ve also installed a simple font size switcher toward the top of the right-hand column, which however works only for users of the Internet Explorer browser. Users of Firefox, Opera and most other browsers can alter font sizes relatively easily by executing simple commands from their mouse or keyboards. To enlarge the fonts on a page viewed in Firefox, for example, press Ctrl-+ (“Control” key simultaneously with plus sign).
Our thanks also for the patience of bulletin subscribers: Google Groups took more than twelve hours to deliver many copies of last night’s newsletters, and some users (including ourselves) have run into technical difficulties lately with the Google Groups site. To change your subscription, visit this site (requires Google registration). And should you ever wish to unsubscribe from the newsletter without going on the Web, just send an email from the relevant account to Overlawyered-unsubscribe – [ at] – googlegroups – [dot]- com.
Also: after installing the redesign/rehosting, we got word that our RSS feeds were returning broken links to those of you who keep up with the site that way. We think we’ve fixed that problem now, but if not, please let us know.
Deep pocket files: Foradori v. Captain D’s
On December 22, 2000, 15-year-old Michael Foradori Jr. walked into a Captain D’s seafood restaurant in Tupelo, Mississippi for dinner; while there, he started flirting with the girlfriend of one of the employees, which resulted in a shouting match. “‘This (employee) was kind of picking on him, he started threatening him, he even hit him with a wadded up paper,’ said Joey Langston, Foradori’s attorney.” (More on Langston at Point of Law, May 13.) A manager restored order by kicking everyone out of the restaurant; outside, a cook who clocked out for the evening got into an altercation with Foradori, and pushed him over a wall, breaking his neck and paralyzing him. (Naomi Snyder, “Captain D’s customer gets $20.8M”, Tennesseean, Oct. 13; “Jury awards paralyzed man $21M”, Clarion-Ledger, Oct. 13; Northeast Mississippi Daily Journal, Oct. 13).
For this, the national Captain D’s chain in Nashville was held responsible to the tune of $20.8 million by a federal jury that deliberated for two hours. Foradori’s attorneys argued that the manager should have “stopped the argument” and that training about workplace violence would have prevented the accident.
A war story
On Evan Schaeffer’s blog, the pseudonymous junior associate “Stan Stankowski” tells a ribald tale (which may or may not be true or exaggerated) of dealing with a foul-mouthed plaintiff’s attorney who demonstrates that it’s not just defense attorneys who can be obstructionist.
Latest newsletter
Our free periodic newsletter went out to subscribers last night, summarizing recent postings in terse yet wry style. There is some evidence, however, that the mailing has still not reached many subscribers. To read the latest installment — or to join or leave the list, change your address, etc. — visit this page (requires Google registration).
“Trailblazing Anti-Tobacco Litigator Agrees to Disbarment”
No need for a public accounting dept.:
In a rare case of thievery at a large New Jersey firm, tobacco litigation pioneer Alan Darnell admitted that he misappropriated money from his partners and clients at Woodbridge’s Wilentz, Goldman & Spitzer and has volunteered for disbarment.
The reporter’s description of thievery in Garden State legal circles as “rare”, in case you were wondering, turns out to mean it’s not often the lawyers are caught misappropriating their own partners’ or clients’ funds in prohibited ways.
By bowing out of the profession before the investigation was complete, Darnell saved himself and 140-lawyer Wilentz Goldman from a public airing of the details of what money he took, whom he took it from and what he did with it.
Oh, well then that’s okay. Mustn’t risk giving the general public a peek at such matters, after all.
Darnell, who was known for filing asbestos and pharmaceutical claims, “was a leading member of the Wilentz Goldman team that represented plaintiffs in mass tort and product liability cases. …Big tobacco was his biggest target.” Wilentz, Goldman & Spitzer is perhaps the state’s best-known plaintiff’s firm (one of its ads) and is also renowned for its political connections, which have brought it much lucrative state business.
The state’s Office of Attorney Ethics will also be sealing the records of its investigation of Darnell, and it doesn’t appear that there are further legal proceedings against him in the offing. Remember this story next time lawyers denounce the alleged conspiracy of silence regarding doctors’ misconduct (Henry Gottlieb, New Jersey Law Journal, Oct. 6).
Licensing eBay sellers, cont’d
First it was Ohio contemplating a requirement that people get an auctioneer’s license before selling goods on eBay (Mar. 21). Now it’s North Dakota, which is considering whether to force small consignment merchants like Mark Nichols to take instruction in talking rapidly and interpreting hand gestures before listing merchandise for others on the online service. (Dale Wetzel, “Internet sellers may need auctioneer license”, AP/Bismarck Tribune, Oct. 10).