Under California law, if school districts do not comply with public records requests within a stated period, they can be liable for requesters’ legal fees. In July and early August, as many officials were leaving for vacation, various Bay Area districts received requests for “school board members’ statement of economic interest — a document that details an elected official’s investments”. When the statements were not forthcoming within the prescribed period, lawsuits promptly followed demanding legal fees. The requesting organization, which calls itself Nolex Group, turns out to be run by a lawyer and to have no immediately visible purpose other than filing the requests. The Emery Unified district settled for a reported $2,500, but others resisted, with one defendant’s lawyer calling the action a “holdup lawsuit” and another saying that “These guys are trying to line their pockets at the expense of schoolchildren.” After the local news media took an interest, Nolex, which appears to be based from the Walnut Creek home of attorney Scott Hammel (with help from attorney Byron Done), “said it planned to drop six suits it had filed against San Mateo County school districts.” Hammel has vehemently denied improper motivations. (Jahna Berry, “Calif. Schools Blast Records Request as ‘Holdup Lawsuit'”, The Recorder, Nov. 24; “Lawyers Target Schools For Easy Money”, KRON, Oct. 21; Ethan Fletcher, “Alleged shakedown suit dropped”, San Francisco Examiner, Dec. 7).
Workers get $211K, lawyers bag $2.57 M?
Speaking of class actions against Wal-Mart: “Six lawyers who represented Oregon workers in their fight for overtime pay from Wal-Mart say that the world’s largest retailer should pay them $2.57 million for the time and money they spent trying the case. Wal-Mart opposes the request, saying that it would be an exorbitant payday for a case that had a relatively small judgment. In September, a U.S. District Court judge in Portland awarded 83 Wal-Mart workers back wages, penalties and interest totaling $211,000, an average of $2,542 each.” (“Lawyers want $2.57 million from Wal-Mart”, Salem Statesman-Journal, Dec. 9)
Brousseau v. Haugen: another summary reversal of the Ninth Circuit
The Volokh Conspiracy’s Orin Kerr calls December 13th “Ninth Circuit Correction Day” because of two summary reversals of criminal-friendly decisions of the zany federal appellate court, which he summarizes nicely. (See also Dec. 7.) In one, Brousseau v. Haugen, the Court threw out a case that the Ninth Circuit had reinstated. Kenneth J. Haugen pled guilty to a felony, admitting that, while attempting to escape an arrest, he drove a Jeep through a “small, tight space” crowded with vehicles with “wanton or wilful disregard for the lives…of others.” But he sued the officer who apprehended him by wounding him with a shot as he was driving away (after disregarding multiple orders to surrender to an officer with a drawn weapon). The Ninth Circuit had wanted to let this case against the policewoman be decided by a jury for a supposed violation of civil rights. (David G. Savage, “Supreme Court Sides With Police”, LA Times, Dec. 13). Other police-chase lawsuits: Feb. 18; Sep. 21, 2003; Jul. 23, 2003; and older entries.
Flattering to be considered…
The magazine Legal Affairs is promoting an online poll to pick “the country’s most influential and important legal thinkers — the ones whose ideas are pushing the law forward (or backward, as the case may be).” The list of 125 names is divided among judges, academics, and writers/commentators (what, no practitioners?). Their selection of nominees (explained here) has already been criticized, and online polls are not likely to mean much given the technical ease of stuffing the ballot box in most cases.
In the “writers/commentators” category, as you’ll see, their search for candidate names led them very far down into the barrel, if not to scrape its bottom. Awfully flattering to be included in such company, though.
Class actions: Wal-Mart sued over obscenity in song
“Wal-Mart Stores Inc., which promotes itself as a seller of clean music, deceived customers by stocking compact discs by the rock group Evanescence that contain the f-word, a lawsuit claims.” (“Wal-Mart sued over Evanescence lyrics”, AP/USA Today, Dec. 11). On behalf of Melanie and Trevin Skeens, residents of Washington County, Md., attorney Jon D. Pels of the Bethesda, Maryland firm of Pels, Anderson & Lee LLC is demanding up to $74,500 for each copy sold of the CD in Maryland, and is vowing to expand the litigation into other states. (Julie E. Greene, “County couple sues Wal-Mart over lyrics”, Hagerstown, Md. Herald-Mail, Dec. 10). A Google search reveals that three years ago attorney Pels filed an intended class action against Atlantic Records, AOL Time Warner and Slip-N-Slide Records on behalf of a different Maryland parent, saying obscenities were not edited out of a supposedly “clean” version of Trick Daddy’s Thugs Are Us. (Eric Schumacher-Rasmussen, “Trick Daddy Accused By Maryland Mom Of Having Dirty ‘Clean’ LP”, VH1.com, Jun. 26, 2001). More: The Christian Science Monitor’s account is sympathetic to the claimants and their lawyer (Dec. 20).
UK religious insult bill
Britain’s Home Secretary defends the proposed incursion on free speech (David Blunkett, “Religious hatred is no laughing matter”, The Observer, Dec. 12) while a Spectator writer questions whether Blunkett has been “behaving in a manner that suggests he is as mad as a box of frogs” (Rod Liddle, “Ha ha! You can’t insult Islam but I can”, The Sunday Times, Dec. 12). See Jul. 16 and (Australia) Dec. 3. Plus: Matthew Parris weighs in (“Mockery, calumny and scorn: these are the weapons to fight zealots”, The Times, Dec. 11) (via Andrew Stuttaford).
Update: judge restrains frequent ADA filer
In California, U.S. District Judge Edward Rafeedie has issued an order labeling Jarek Molski of Woodland Hills a “vexatious litigant” because of patterns of abuse in his filing of hundreds of disabled-rights lawsuits against restaurants, bowling alleys, wineries and other businesses in the state (Sept. 21, Nov. 27, etc.). If upheld, the ruling would bar Molski from filing further suits without permission of a judge, who would have to be informed of Rafeedie’s order. “In three separate suits filed last year, for example, Molski, a law school graduate, claimed to have suffered identical injuries at three restaurants, all on May 20, 2003 — ‘highly unusual, to say the least,'” the judge wrote. The use of vexatious-litigant orders is considered rare; among legal professionals interviewed by the L.A. Times, Eve L. Hill, a visiting professor of law at Loyola-Los Angeles and executive director of the Western Law Center for Disability Rights, called Judge Rafeedie’s order “outrageous”, while Stanford law prof Pamela Karlan said it made “perfect sense” in that allowing misuse of the disabilities act risks generating a public backlash against it. (Henry Weinstein, “Disabled Man’s Suits Restricted”, Los Angeles Times, Dec. 11; “Lawsuit spree angers judge”, AP/Monterey County Herald, Dec. 12)(via Kemplog).
Judge Rafeedie also had harsh words for Molski’s attorney, Thomas E. Frankovich of San Francisco, saying he and his law firm had “aided and abetted” Molski’s “abusive litigation practices,” and “issuing an order that Frankovich’s firm and an organization affiliated with Molski called Disability Rights Enforcement Education Services had to come to court and show why they also should not be sanctioned.” Recently Frankovich filed five more lawsuits against businesses in the Central Coast town of Cambria, but this time the plaintiff is Nicole Moss rather than Molski. (Cynthia Neff, “New ADA lawsuits target Cambria”, San Luis Obispo Tribune, Nov. 11).
More from the Santa Maria Times:
A provision of California state law known as the Unruh Act allows Molski to demand $4,000 in damages per violation, per day.
Molski has said in the past that an average settlement is $20,000. He testified in the Los Angeles trial that he personally nets an average of $4,000 per settlement, after paying attorney’s fees, [Bakersfield attorney Craig] Beardsley said.
“There appeared to be 200 active cases ongoing at a time. You could extrapolate that out to $800,000 a year,” Beardsley said.
(Erin Carlyle, “Restaurant ready to fight lawsuit”, Santa Maria Times, Dec. 5).
Update: store’s refusal to permit display of facial jewelry not unlawful
West Springfield, Mass.: despite support for her position from the federal Equal Employment Opportunity Commission (EEOC), Kimberly Cloutier has failed to convince the First Circuit federal appeals court that she suffered unlawful religious discrimination when her employer, the Costco discount chain, fired her for refusing to remove or mask the jewelry in her various facial piercings. Cloutier said she was a member of the Church of Body Modification which ascribes religious significance to piercings. We covered the case Oct. 18-20, 2002. (decision, Cloutier v. Costco, Dec. 1) (via Michael Fox, Jottings By an Employer’s Lawyer, who comments). More: Appellate Law & Practice‘s apparently anonymous “S. COTUS” considers the original headline of this posting (“Update: facial jewelry not religiously protected”) misleading, since the circuit did not rule out religiously based protection for facial jewelry as a general matter but instead rested its decision on the grounds that “the only accommodation Cloutier considers reasonable would impose an undue hardship on Costco”. Headline accordingly fixed.
Litigation and business relocation
Should businesses making siting decisions seek out localities with a low per capita number of lawyers? Well, not really; lawyers do perform a great many functions besides filing lawsuits, and there’s far from a perfect correlation between the quantum of litigation risk in a locality and the number of attorneys in practice. The better course, if the objective is to avoid legal hassles, is to identify other indicators of a nonlitigious local business climate. That’s what I argued in a recent interview with Expansion Management magazine, said to be read by more than 45,000 site-selection executives. (Michael Keating, “Research Corner: The Cost of Litigation Comes Right Off the Bottom Line”, Oct.).
Sued for criticizing
National Law Journal covers the continuing tendency of companies to sue customers and others who post “gripe sites” complaining about their products and services (see Nov. 7 and links from there). “Currently, about a dozen gripe-site lawsuits are pending across the country.” Courts have been unfriendly to such suits, but some companies continue to pursue them, leading critics to suspect that they’re aimed at punishing the critics. (Tresa Baldas, “Trademark Lawsuits: The Price of Online Griping”, Dec. 2). There’s a site called webgripesites.com that monitors the action.