Another study finds no link between the measles-mumps-rubella (MMR) vaccine and rising incidence of autism. (BBC, Mar. 3). For more on the litigation-fueled efforts to establish such a link in Britain, see our earlier reports: Dec. 29, 2003 and Feb. 25, 2004. More: Helene Guldberg, “MMR, autism and politics” (interview with Dr. Michael Fitzpatrick), Spiked-Online (UK), Jun. 23, 2004.
“Disabled golfer files complaint”
Says Robert Trent Jones Golf Trail in Tuscaloosa won’t provide free golf carts. (Stephanie Taylor, Tuscaloosa News, Dec. 15). The National Golf Course Owners Association maintains a page on ADA issues and compliance. At Cybergolf, Jeffrey D. Brauer (“Must golf courses accommodate wheelchair golfers?”, undated) discusses the impact of wheelchair-access regulation on golf course design: “The golf industry at first feared that ADA might outlaw contoured greens and fairways, and possibly sand bunkers, to achieve disabled access. Future rules revisions may eventually eliminate features like ‘perched’ greens and steep banks, but for now, traditional golf course architecture is not compromised by the guidelines.” And federal prescriptions on the design of miniature golf courses can be found here.
AEI: Who Is to Blame for Obesity?
A webcast of today’s American Enterprise Institute panel on obesity and lifestyle litigation is now on-line. I spoke at the second panel, moderated by AEI’s Michael Greve, along with activists Richard Daynard and Alison Rein, and Thomas Haynes of the Coca-Cola Bottlers’ Association. Todd Zywicki moderated an earlier panel on empirical research on the causes of obesity.
Helping themselves to class action funds
Federal prosecutors say they’ve caught two men masterminding unrelated complex schemes to siphon off large sums from class action settlements by falsely posing as members of the class. Richard Lagerveld was charged with mail and wire fraud after settlement administrators in two class actions mailed $9.2 million to his stated address in San Diego, which was in fact a homeless shelter. Authorities said he had a long criminal record including aliases and stolen identities; in one of the class actions, he submitted forged brokerage records to document his claim that he’d owned $145 million worth of stock in Oxford Health Plans, the target of securities litigation. In a second case, he collected a check for $2.3 million after claiming to be an owner of a fictitious company that had purchased glass from companies settling a class action. In the other case, inmate Alan N. Scott, who resides in the Schuylkill federal correctional institution in Pennsylvania, is charged with orchestrating an $8 million assortment of false settlement claims of which about $200,000 had been received as of the time of his arrest. According to the U.S. Attorney’s office, Scott used co-conspirators to correspond with claims administrators in about 90 securities class actions, “and routinely sent directions and correspondence to his co-conspirators by falsely labeling the correspondence ‘legal mail.'” (Onell R. Soto, “Ploy paid man millions, authorities say”, San Diego Union-Tribune, Jan. 18; Department of Justice press release, Feb. 9; Robert E. Kessler, “Two are charged in separate scams”, Newsday, Feb. 10; Securities Litigation Watch, Jan. 18).
Flint’s mayor retreats
On Jan. 21 Mayor Don Williamson of Flint, Mich., issued an executive order directing the city not to do business with any enterprise or person who had sued the city during the previous five years. Last week he announced a retreat from that policy, his spokesman saying a record of having sued the city would henceforth be considered as one factor among others rather than as an automatic bar to doing business.
Williamson’s original order had been criticized on various grounds, and the local ACLU chapter had threatened — what else? — to sue the city over the policy. Now, it should be noted that a municipality’s blanket refusal to do business with lawsuit-filers very likely might run afoul of various laws: employment discrimination statutes, to take one notable example, typically include provisions banning employers from “retaliating” against persons who sue under them. Other state laws on topics such as procurement might also be plausibly implicated, and perhaps constitutional doctrines as well. On the other hand, news accounts portray the ACLU chapter as adventurously asserting some sort of universal if heretofore unenumerated right not to be retaliated against by any official body on the grounds of a record of litigiousness — so that an asphalt contractor, for example, with a record of getting into repeated wrangles with the city over the terms of past contracts might have a constitutional right not to have that held against it in future competition for business. Given Flint’s announced policy of continuing to consider proneness to litigation as one factor among others, it may be predicted that the controversy has not been finally put to rest. (Christofer Machniak, “Flint’s no-sue policy modified”, Flint Journal, Feb. 25; “Flint rescinds policy barring business with companies who have sued city”, AP/Detroit Free Press, Feb. 24).
Library molester case: Ladell Alexander v. DBS Security
Pro se prisoner litigation isn’t the biggest problem facing society, but the case of Ladell Alexander is impressive in its chutzpah. Alexander molested a little boy in a St. Joseph County, Indiana library, and was convicted of the crime. Judge Sharp threw out Alexander’s lawsuit against the library security company for not doing enough to stop him, making the obvious point “Though every decent and moral person wishes that he had been prevented from committing this hideous crime, no one owes Mr. Alexander anything for having not done so.” (“Molester tries to sue those who didn’t stop him”, South Bend Tribune, Dec. 9 ($); LibraryLaw Blog reprint of Alexander v. DBS Security, No. 3:04-CV-703 AS (N.D. Ind.)).
Judge slashes “figurehead” class fee
“New York’s Bernstein Litowitz Berger & Grossman and Boston’s Berman DeValerio Pease Tabacco Burt & Pucillo had asked for 7.5 percent of the settlement amount, or around $22 million, for serving as co-lead plaintiffs’ counsel in a suit against pharmaceutical giant Bristol-Myers over its $2 billion investment in biotechnology company ImClone” and over a 2002 earnings restatement (see “Won Its Case, Still Paid $300M To Settle”, Aug. 2). But federal judge Loretta Preska of the Southern District of New York cut the allowed fee to $12 million, observing that the case piggybacked on an SEC enforcement action and on statements already in the public record: “Among securities class actions, this case as a whole was neither unique nor complex.” Moreover, it “is not thirty times more difficult to settle a thirty million dollar case as it is to settle a one million dollar case.” And in a footnote, Judge Preska wrote that the 7.5 percent fee negotiated between the lawyers and their clients should not be accorded a presumption of fairness because the lead plaintiffs — which included the Teachers’ Retirement System of Louisiana, the Louisiana State Employees’ Retirement System, the General Retirement System of the City of Detroit and the Fresno County Employees’ Retirement Association — had acted as “mere figureheads” for fee-seeking lawyers. Bernstein Litowitz partner Erik Sandstedt said the intimation that the pension funds served as mere figureheads “is completely untrue”. (Anthony Lin, “Judge Halves Fees Sought in Bristol-Myers Securities Class Action”, New York Law Journal, Feb. 28).
ADA cruise ship case
Peggy McGuinness at Opinio Juris discusses (Feb. 28).
Garage jumping
By reader acclaim: “Teenagers in Orlando, Fla., are leaping between 80-foot high public parking garages in a new trend called ‘garage jumping.'” And when some of them fail to make it from one structure to the other, what do you think happens next? Right-o: attorney Vincent D’Assaro is now “filing a lawsuit against the city of Orlando and the private garage owner” on behalf of Tim Bargfrede, 18, who fell six stories and was knocked unconscious on impact after a failed jump. D’Assaro says the fence was “very, very short” and inadequate to prevent a teen from (deliberately) making the jump. The family says “both garages need to take responsibility”, it being apparently too much to expect young Bargfrede to do so. (“Teens Leaping For Thrills In ‘Garage Jumping’ Trend”, Local6.com (WKMG-TV), Mar. 1; “Teen survives six-story fall from garage”, St. Petersburg Times, Jan. 1).
Hiring jurors as consultants
Unseemly? Dangerous to the legal system’s reputation for integrity? If so, that hasn’t stopped some lawyers from hiring as consultants jurors who served on panels hearing their cases, including a much-publicized Orange County, Calif. rape trial that ended in a hung jury. We were onto the trend last Sept. 24, and now the Christian Science Monitor covers it (Marty Graham, “Flap ensues over hiring ex-jurors”, Mar. 2).