Torts roundup

  • “Fla. jury awards $75M to family of dead smoker” [AP] Bad trends catch on 10+ years later up North: Quebec becomes fifth province to sue tobacco companies [Montreal Gazette] We passed a law to let us win, so there: “Manitoba sues tobacco companies” [provincial press release]
  • “Can There Be Liability When Sending Texts To A Driver?” A debate [Ray Mollica and Mark Bower, Turkewitz; earlier here and here]
  • Ted Frank vs. Ron Unz on Vioxx health effects [PoL, American Conservative]
  • Major Florida PI firm denies State Farm claims-inflation allegations [Orlando Sentinel]
  • East St. Louis, Ill.: jury awards nearly $179 million to 3 injured grain elevator workers [Post-Dispatch]
  • Siding with plaintiff’s bar, Minnesota Gov. Dayton vetoes legislation reducing state’s general statute of limitations from six years to four, reducing prejudgment interest from current 10%/year, reforming offer of settlement rules, and allowing interlocutory class certification appeal [NFIB] He does however sign one protecting state/local governments [Star-Trib]
  • Multiple asbestos claims raise eyebrows in Delaware [SE Texas Record] On trends in asbestos litigation [Ben Berkowitz, Reuters]

“Sears lawsuit only benefits plaintiffs’ lawyers – 7th Circuit”

Reuters reports:

A federal appeals court on Wednesday put the kibosh on a shareholder antitrust suit against the board members of Sears Holding Corp, finding that the suit only served to enrich the plaintiffs’ lawyers.

The ruling from the Chicago-based U.S. Court of Appeals for the 7th Circuit marks the latest victory for Ted Frank, of the Center for Class Action Fairness, who argued that the suit was an abuse of the legal system and conferred no benefit on Sears shareholders at large. The 7th Circuit agreed.

“The only goal of this suit appears to be fees for the plaintiffs’ lawyers,” Judge Frank Easterbrook wrote for a unanimous three-judge panel.

More: Dan Fisher.

In Birmingham tomorrow

I’ll be speaking in Birmingham, Alabama tomorrow to a lunch gathering of the city’s Federalist Society Lawyers’ chapter, about my book on legal academia, Schools for Misrule. The event will be at noon at the Summit Club, Sixth Ave. N. More details here.

Speaking of Alabama, the Eleventh Circuit has broadly sided with artist Daniel Moore over his right to create and sell artistic depictions of Crimson Tide sporting events without paying a licensing fee to the University of Alabama [Jon Solomon/Birmingham News, AP/Tuscaloosa News, earlier here and here]

P.S. Music lover? You might see me at this.

“Refugees from the soda tyranny in NY will have sanctuary in London.”


London Mayor Boris Johnson on the Jon Stewart show. [Telegraph] Meanwhile, @pourmecoffee notes that “Each winning player gets time with Stanley Cup to do anything they want with it, except drink sugary drinks if you’re in NY.” Per Michael Jacobson of the CSPI, soft drinks are the “single biggest source of calories in the American diet.” Really? [ACSH] More: “Soda jerk: Bloomberg’s proposed ban is about power, not public health” [Shikha Dalmia, The Daily]

This just in: NYC Board of Health members also eye size limits on movie theater popcorn and milkshakes.

Free speech roundup

Institution-closing litigation: who speaks for the disabled?

Institutional-reform litigation, of the sort that since the 1960s has reshaped public school, prison, and foster-care systems, commonly proceeds on the basis of a fiction that the “public-interest” lawyers bringing suit speak for whole classes of students, prisoners, or foster children, even if few in the represented class actually chose to retain them. Even more than in consumer or antitrust class actions over money, the assumption that all the members of the represented class have the same interests or preferences often turns out to be a heroic one. Consider the successful wave of litigation against states in which advocates seek closure of large residential facilities for retarded persons in favor of the alternative now considered most modern, services provided “in the community” in group houses, families or other settings. This litigation has been fueled by a 1999 Supreme Court decision (Olmstead v. L.C.) accepting the idea that providing institutionalized persons with the wrong services, or not enough of them, constitutes a form of unlawful discrimination under the Americans with Disabilities Act. The U.S. Department of Justice has gotten into the act, too, and is arm-twisting states into “Olmstead settlements.”

Trouble is, some families of persons resident in institutions strongly believe that they are doing well at the particular institutions they are at, where they may have access to (for example) loved caretakers and friends or knowledgeable specialists who would become unavailable on transfer to a community setting. Unfortunately for them, when the disabled-movement or legal-services attorneys and the state governments agree to settle the Olmstead lawsuits, among the terms of the agreement is often a commitment to close the existing large residential facilities. The families who value those facilities are typically not present in the negotiating room.

So now we are beginning to see litigation around the country in which families plead for their children’s placements to continue as they are, even though these placements have already been ruled (in litigation to which they were at most a notional party) to violate their children’s ADA “rights.” Naturally, courts are reluctant to reopen issues that the parties to litigation deem settled, nor is it always even clear that the parents have legal standing to challenge the closures. [William Choslovsky, Chicago Tribune; WaPo, WRIC, and Richmond Times-Dispatch on Virginia situation; New Jersey, Bagenstos and more on legal background; Alkon]