Overlawyered: Chronicling The High Cost Of Our Legal System

Michael Zwebner gets a prior restraint injunction

Michael Zwebner regularly sues critics and people remotely related to critics of his penny-stock corporation, UCSY, which has a track record easy to criticize (Feb. 17). He claims in a press release to have persuaded a Florida state court to enter a constitutionally suspect order:

Defendants, Dembovich and Villasenor … are forever barred from making, stating, mentioning, posting on the Internet anything which included the words “UNIVERSAL COMMUNICATIONS SYSTEMS, INC.” and “Airwater Corp.” “UCSY” or “Michael Zwebner” or any derivations thereof.

The defendants are further ordered to remove and cause to be removed from all web sites and any all references caused to be posted by them under the above and any other alias all postings which reference either Plaintiff and/or Plaintiffs’s President Michael Zwebner.

The purported order (which, in the press release, misspells “tortious”) also purports to bar third parties from “publishing” these posts (and arguably extends to linking to the posts) so it will probably be struck down as soon as Zwebner goes after a deep-pockets defendant (like, say, Google) that defends itself. (Universal Communications Sys. Inc. v. Dembovich, No. 2004-27383-CA-01 (Miami-Dade Cty., Fla.)). Where’s the SEC in all of this?

Amazingly, I see that the federal District of Oregon has agreed to enter a stipulated injunction barring another Internet poster from ever mentioning Zwebner in any context, true or otherwise. Related story: Polly Sprenger, “Dirty Laundry Airs on Stock Site”, Wired.com, Dec. 11, 1998.

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In N.M. for now, no “Right To Eat Enchiladas”

By enacting “cheeseburger bills” (see Mar. 13, Mar. 17 and Dec. 3, 2004) state legislators can attempt to make clear (in case courts had any doubt about the matter) that there is no cause of action against food purveyors for causing obesity in those who partake of their wares. Such bills have been making progress around the country, with 12 state legislatures enacting them in 2004 and others likely to follow this year. New Mexico, however, will not be among those states: both the Senate Judiciary Committee and the House Consumer and Public Affairs Committee have voted to shelve the idea on narrow party-line votes, with Democrats opposed to the legislation and Republicans in favor. “I don’t dispute the idea of personal responsibility, but I dispute the notion that any tort action is on its face frivolous,” said Rep. Gail Beam (D-Albuquerque), who chairs the House consumer committee. The bill had earlier passed the Senate Consumer and Public Affairs Committee. Its sponsors, Sen. Steve Komadina (R-Corrales) and Rep. Terry Marquardt (R-Alamogordo), had given it a locally adaptive title: the “Right To Eat Enchiladas Act”. (“Legislative roundup”, The New Mexican (Santa Fe), Feb. 23; Erin Madigan, “‘Cheeseburger’ bills fill state lawmakers’ plates”, Stateline.org, Feb. 15).

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Attorney accidentally sues himself

By reader acclaim, from the Illinois county that furnishes so much material for this site: “Alton attorney Emert Wyss thought he could make money in a Madison County class action lawsuit, but he accidentally sued himself instead.” Representing a client who’d bought and then refinanced a house, Wyss advised her that she might be entitled to file a lawsuit against the company that wrote the original mortgage over the $60 fee it charged for faxing two payoff statements, and soon signed her up for a class-action suit to be handled by himself and several other law firms, including the prominent Lakin firm. However, it developed that a company called Centerre Title, owned by Wyss himself, had been the party that collected the allegedly improper fees at closing, and when the mortgage-company defendant learned of this it moved to add both Centerre and Wyss as third-party defendants, much as Jerry, in the old cartoons, sometimes succeeds in bringing Tom’s tail around in circular fashion and presenting it for him to bite. The judge granted the motion, and rather than persist in a suit against himself Wyss resigned the client’s representation. The Madison County Record’s coverage includes deposition-transcript excerpts that serve as a reminder of how essentially passive clients often get steered into class actions in which the lawyers are the real parties in interest (Steve Corris, “Alton attorney accidentally sues himself”, Madison County Record, Mar. 8).

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Four law professors

…are out with a new study saying that medical malpractice payouts in Texas didn’t increase sharply between 1990 and 2002, hence no “crisis”, hence no case for damage limitations, etc., etc. (study; Reuters; N.Y.Times op-ed). Ted has some questions for the authors, though, at Point of Law. They seem like pretty good questions, too.

Other medico-legal topics covered recently at our sister website: the federal Health and Human Services department introduces an “early offers” pilot program; nurse-midwives call for reform; more criticism of New York Times coverage; and who gave the 66 cents?

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Vietnamese Agent Orange case dismissed

In a 233-page ruling, federal judge Jack Weinstein has dismissed a lawsuit on behalf of Vietnamese plaintiffs demanding compensation over the use of the defoliant Agent Orange during the Vietnam War. (William Glaberson, “Agent Orange Case for Millions of Vietnamese Is Dismissed”, New York Times, Mar. 10). As Julian Ku puts it, “If the plaintiffs can’t convince Judge Weinstein, who can they convince?” The case is separate from one that has been allowed to proceed seeking compensation on behalf of U.S. veterans, despite a settlement brokered and approved by Judge Weinstein years ago which had been widely thought to have resolved that category of claim (see Jul. 4, 2003).

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NYC gun-suit law

Lawprofs Anthony Sebok (Brooklyn) and Timothy Lytton (Albany) tend to view firearms liability litigation in a much more favorable light than I do. They agree, however, that New York City’s Gun Industry Responsibility Act, signed into law by Mayor Bloomberg earlier this year (Feb. 6; more), “may do more harm than good” and is likely to assist efforts in Congress to protect the gun industry from being taken to court over criminal misuse of weapons. They also say GIRA raises a second problem, little discussed so far: “whether local municipalities can create their own tort law, independent of their state legislatures or courts”. (“New York City’s Gun Industry Responsibility Act: Why It May Do More Harm than Good”, FindLaw, Mar. 7).

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