Thank you

Tonight’s posting winds up my stint as guest blogger. Thanks again to Walter Olson for having me here. Anyone who hasn’t should pick up a copy of his latest book, “The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law.” And, while you’re at it, read the amazon.com reviews — even a Madison County, Illinois class-action plaintiffs’ lawyer who says his firm is “routinely slagged” on this website admits the book is a “good read.”

Federal bills seek to curb abusive fast-food lawsuits

Sen. Mitch McConnell and Rep. Ric Keller have introduced legislation to bar obesity-related lawsuits against food manufacturers and sellers. (See “US Senator in bid to fry fast-food lawsuits,” ABC News Online, July 18). “Many Americans need to take greater care in what–and how much–they eat. But it is also time to curb the voracious appetite of the personal injury lawyers and put an end to this ridiculous and costly litigation before it gets out of hand,” said McConnell, who managed to work in references to The Onion and diet guru Richard Simmons during his remarks on the Senate floor. For the text of the bills, see S. 1428 and H.R. 339. Apparently undaunted, humorist and Cheez-Its addict Dave Barry says he has decided to “summon up my willpower and accept personal responsibility for filing a huge lawsuit against Big Food.” (“Fatal Attraction,” Washington Post, Aug. 3). See our archives for earlier commentary on fast-food suits – real and satirical.

In other obesity lawsuit-related news, The New York Times has a round-up of employment-discrimination lawsuits brought by obese workers. The newspaper reports that plaintiffs take two different approaches under the Americans With Disabilities Act: “Some claim that their employers should not discriminate against them because they are disabled. Others, using an argument that has had more success in the courts, insist that they are not disabled, and that employers unfairly assumed they could not do the job.” Washington defense lawyer Peter Petesch said: “There’s no magical mathematical formula to say this obese person has a disability and this other person doesn’t. … It’s an individualized assessment. Generally, to be fat or dumpy-looking or not as good-looking as the other applicant isn’t enough to prevail under the Americans With Disabilities Act.” (Steven Greenhouse, “Obese People Are Taking Their Bias Claims to Court,” N.Y. Times, Aug. 4).

Blumenthal embarrassed on gun suits, again

Headline-grabbing Connecticut AG Richard Blumenthal, whom we’ve slammed in this space previously for filing a dubious antitrust action aimed at punishing gun companies for having acted vigorously to stay out of the Clinton administration’s abortive Smith & Wesson deal, has just suffered an embarrassing defeat in his state’s high court. Blumenthal claimed that an email sent by one gun maker constituted proof that gun companies had acted criminally in resisting the S&W deal. But the Connecticut Supreme Court, hardly an assemblage of Second Amendment enthusiasts, has just ruled unanimously that Blumenthal’s claim was false. “[T]he e-mail reveals nothing that suggests an intent to break the law,” wrote Justice Joette Katz for the court. ” … Furthermore, to the extent that the e-mail refers to any action, it is the actions of others, and not of the respondents; it neither advocates that Kimber take any action of its own, nor that others take a particular action.” The new decision upholds the 2001 ruling of Hartford Superior Court Judge Vanessa Bryant that the e-mail was patently an “update of [firearms] litigation developments and does not advocate any criminal or illegal activity.” Will Blumenthal apologize? Will he finally start getting bad press? We’re not getting our hopes up (Thomas B. Scheffey, “Accidentally Sent Gun Industry E-Mail Found to Be Privileged”, Connecticut Law Tribune, Aug. 5).

“New Jersey bans drowsy driving”

Let’s criminalize everything dept.: “Sleep-deprived drivers who cause deadly crashes now face criminal penalties under a measure that became law Tuesday in New Jersey. The bill signed by Gov. James E. McGreevey allows prosecutors to charge a sleep-deprived driver with vehicular homicide, punishable by up to 10 years in prison and a $100,000 fine.” It is nicknamed “Maggie’s Law” after the victim of one such collision, thus confirming the truism that any enactment tagged with the given name of some recent victim (“Megan’s Law”, etc.) will combine sentimentality of intent with harshness of result (AP/CNN, Aug. 5). Meanwhile, in Watauga County, N.C., District Attorney Jerry Wilson is trying to charge a methamphetamine defendant with two counts under federal terrorism law — for “manufacturing a nuclear or chemical weapon” — in addition to more conventional drug charges. (“Prosecutor fighting meth using law that punishes terrorism”, Asheville Citizen-Times, Jul. 16) (via Volokh Conspiracy).

NYC to stick property owners with slip-fall bill

In recent years New York City mayors have sought a long list of sorely needed limitations on municipal liability, but have been rebuffed at each turn by the city council and state assembly. Now the city council has deigned to pass one item from City Hall’s request list, and — wouldn’t you know? — it’s the least logical and attractive of the bunch. Under a bill signed last month by Mayor Bloomberg, the city will no longer be liable for claims of injury following falls on sidewalks, currently a $50 million/year drain on the municipal fisc. Instead, the owners of adjacent buildings will be liable — even though they lack even the right (let alone the responsibility) to call in crews to dig up and re-lay sidewalks that cause a hazard by cracking or heaving out of alignment. Moreover, property owners will be required to maintain insurance against this unabatable hazard, which should keep trial lawyers happy by guaranteeing them a convenient pocket to go after. (Frank Lombardi, “City won’t pay up for sidewalk falls”, New York Daily News, Jul. 17). More: reader response and further discussion Aug. 7.

UK: fraud charges fly after collapse of claims group

An investigator has told the BBC that fraudulent claims were much more widespread than previously believed at the now-collapsed Accident Group, which had been the largest personal injury claims firm in Great Britain. “”At a very conservative estimate there were 200 people suspected of making claims up,” of a 1,500-person sales force, said Paul Stott. “With some of the people that I have dealt with, from the day that they started until their activities were brought under the umbrella of an investigatory procedure, every single claim that they wrote was fraudulent. It was apparent to a man with one eye.” (Pip Clothier, “Accident Group fraud investigator speaks out”, BBC News, Jul. 30). In Parliament, Merseyside MP Peter Kilfoyle “said sales reps targeted vulnerable, poverty-stricken people, enticing them to fabricate claims. He claimed some reps waited for vulnerable people outside Job Centres, others even stood outside Liverpool Prison to persuade people to claim they had a bad back caused by sleeping on lumpy mattresses.” Meanwhile, execs were tooling around in company-owned Ferraris and a Bentley and the company founder had amassed “assets in excess of ?40m, including a ?3.5m home in Cheshire”, said Mr. Kilfoyle (Ian Craig, “Sales reps ‘lay in wait for poor'”, ManchesterOnline, Jul. 18). The Accident Group made headlines in May when it suddenly announced that it could not pay its bills and dismissed 2,400 workers, informing many of them by text messages to their mobile phones (BBC, “Bust company sacks workers by text”, May 30).

“Homemakers contribute to Edwards”

Priceless short item — the fourth paragraph explains everything. (AP/Myrtle Beach, S.C. Sun News, Aug. 5) (via Kathryn Lopez of NRO “The Corner“, who notes: “Stay-at-home moms for Edwards? Not exactly”).

Addendum: “We have no problem if 100 percent of our money came from trial lawyers,” said Edwards spokeswoman Jennifer Palmieri this spring (AP/Amarillo Globe-News, Apr. 16).

Litigation finance runs afoul of champerty doctrine

Opining that “a lawsuit is not an investment vehicle,” the Ohio Supreme Court has ruled that a personal injury plaintiff who settled her case for $100,000 “need not honor a contract that required her to pay nearly $20,000” to a Nevada-based litigation finance company and an Ohio broker. What’s more, plaintiff Roberta Rancman is not required to return the $8,800 advanced to her by the two companies. A National Law Journal article takes a look at the litigation finance industry, in which “financiers typically offer cash advances to plaintiffs who might be out of work because of an injury or otherwise unable to meet their daily living expenses. The financiers get back their advance, not to mention a usually quite substantial premium, only if the suit leads to a settlement or an award.” (See Gary Young, “Two setbacks for lawsuit financing,” The Nat’l Law Journal, July 28). Update Oct. 25: litigation-finance firms pull out of Ohio after ruling.

“Humboldt Creamery fined for ‘over-reporting’ chemical release”

From California’s North Coast: “The U.S. Environmental Protection Agency has reached a settlement with Humboldt Creamery that requires the company to pay $5,000 for allegedly over-reporting the amount of nitric acid it released into the environment in 1999 and 2000. Ironically, the actual amount of nitric acid the creamery released was … zero pounds. That’s right, zip. Zilch. Nada. But it’s still being fined, simply because it reported incorrectly.” The company says the agency originally sought to impose a fine of $30,000 and declined to negotiate the issue unless the creamery hired its own lawyer. “It’s kind of a rare thing,” said Leo Kay of the EPA’s San Francisco press office. “Most fines involve under-reporting, not over-reporting.” (Jennifer Morey, Eureka (Calif.) Times-Standard, Jul. 16).