We’ve reported several times on the doings of a litigant who has asserted trademark rights over the use of the word “Edge” in videogames and related products and aggressively gone after many outfits whose names include that not-unusual word. Now another court, this time in Britain, has handed him a stinging rebuke. [Rob Beschizza, BoingBoing]
June 23 roundup
- Michigan sex abuse prosecution of dad falls apart; it was premised on ultra-controversial technique of “facilitated communication” with autistic daughter [Detroit Free Press; Ted Frank/Point of Law]
- Do demagogy and hardball work as trial techniques? [Steve McConnell vs. Ronald Miller and Max Kennerly]
- When lawyer-pundits consent to chase cameras [Scott Greenfield]
- Lawyer dad sues middle school girls over Facebook video [Houston Chronicle]
- So-called Precautionary Principle slipping into Restatement (Third) of Torts? [David Oliver]
- U.S Attorney in Maryland didn’t think Lauren Stevens case was strong enough to indict [Sue Reisinger/Corporate Counsel, White Collar Law Prof, Legal Ethics Forum, my Cato take]
- “The SLAPP-Happy Story of Rakofsky v. Internet” [Citizen Media Law, Atlantic Wire (“Meet the Lawyer Who Sued the Internet”), Popehat, earlier here and here]
NLRB’s “quickie election” unionization plan
Because its NLRB v. Boeing case just wasn’t controversial enough, the Obama National Labor Relations Board has decided to push — in double time — a new scheme for limiting the time management has for responding to a proposed vote on unionization.
Dear New York Times…
“…I Don’t Think ‘Moderate’ Means What You Think It Means” [David Lat, Above the Law]
Great moments in higher ed litigation
NPR “Marketplace” via James Taranto:
AMY SCOTT: The lawsuit began after Towson University started offering an MBA — a degree students could already get a short drive away at historically Black Morgan State University. Attorney Michael Jones represents the coalition suing the state. He says federal law prohibits states from starting new programs that are already established at a nearby Historically Black College or University, or HBCU.
MICHAEL JONES: Once these programs were duplicated elsewhere, it affected the abilities of the HBCUs to be competitive in terms of attracting students regardless of race.
“So You Got My Letter”
Patrick at Popehat has compiled “A Small Businessman’s Guide To Dealing With Obnoxious Letters From Lawyers.”
Welcome Philadelphia Inquirer readers
I’ve got an op-ed in today’s Philadelphia Inquirer on the Supreme Court’s Wal-Mart v. Dukes decision. The headline (“Reining in Frivolous Class-Action Lawsuits”) is theirs; I wouldn’t use the term “frivolous” to describe the case, which after all did convince the Ninth Circuit, if not any of the Supreme nine. An excerpt:
…The misconceptions about this case begin with the identities of the real combatants. On NPR’s Marketplace this week, Slate’s Dahlia Lithwick described the plaintiffs as “1.5 million female employees of Wal-Mart who are trying to file a class-action suit.” But, of course, most of those women are not “trying” to do anything of the sort.
Rather, a relative handful of them have hired lawyers, and those lawyers daringly sought to get themselves declared the legal representatives of the other 1.496 million (or however many), who have expressed no inclination whatsoever to sue. …
The message of this ruling is simple: Employees have to prove that they have been legally wronged, not just cash in because somebody else was.
More about Wal-Mart v. Dukes here, here, and here (& welcome readers from Ira Stoll/Future of Capitalism, Jonathan Adler/Volokh Conspiracy, State Bar of Michigan blog, Omaha World Herald (editorial), Real Clear Politics, and, on the headline issue, Elie Mystal/Above the Law).
June 22 roundup
- Supreme Court disbars Bill Lerach [Richard Samp, WLF] And check out the byline of the former class-action king’s recent contribution to The Nation; do you think it omits anything material? [h/t Bob Lenzner]
- Ted Frank guessed right on outcome of Wal-Mart case but still lost big betting on it [PoL]
- After feds seize online bettors’ money, Anne Arundel County, Maryland police department crows over windfall [CEI] And c’mon Maryland, surely we in the home state of H.L. Mencken and Frederick Douglass can do better in the liberty rankings than this;
- “Wrongful-Death Lawsuit Filed After Man Killed by Rooster” [Lowering the Bar]
- Hotel union behind California bill mandating fitted sheets [Daily Caller, earlier]
- Fifth Circuit upholds constitutionality of Texas law banning barratry (stirring up litigation) [Christian Southwick, Legal Ethics Forum]
- A Linda Greenhouse column I agree with? One of us must be slipping [vagueness in criminal statutes, see related Harvey Silverglate]
“Lawyers should never come between a nation and its troops”
Charles Moore, writing in the U.K. Telegraph, is dubious about Conservative proposals to turn a British “Military Covenant” of fair treatment for troops into enforceable law.
Wal-Mart v. Dukes: some early analysis
Yesterday’s decision was the most momentous Supreme Court pronouncement on class actions in many years, addressing issues that go far beyond the case at hand. A sampling of early analysis:
* Some consideration of merits okay at certification stage. Paul Karlsgodt:
For more than 30 years, plaintiffs’ counsel and many courts have cited the Court’s opinion in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) as prohibiting any examination of the plaintiffs’ claims on the merits at the class certification phase. Consistent with the majority trend in the lower federal courts, the Supreme Court’s decision in Wal-Mart Stores, Inc. confirms that a court should consider and resolve any issues of fact that are necessary to determine whether one or more elements of Rule 23 are satisfied, regardless of whether those issues may overlap or be identical to one or more issues to be decided in ruling on the merits of the plaintiff’s claims.
In its day the Eisen case was a milestone in the 1960s-1970s liberalization of class action procedure, and seemed at the time to authorize the plaintiff’s side to dream up all the actions it wanted while the defense side could not block the actions at the certification stage by pointing out that they were bogus on the merits. Russell Jackson bluntly assesses the case’s fate: “Stick a fork in Eisen v. Carlisle & Jacquelin. It’s done!”
* Statistical proofs can’t be used to bypass individualized defenses. At least in the context of back pay discrimination claims, all nine justices agreed that the company had a right to assert individualized defenses based on the details of particular cases rather than simply hand over a giant damage check based on some formula derived from statistical testimony. In particular, the Court said:
Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge, or modify any substantive right,” a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.
Russell Jackson draws out implications for actions far removed from the employment context:
This means that third-party-payor claims and consumer fraud class actions will not be able to prove causation or reliance using statistical proof like that proposed and rejected in McLaughlin v. American Tobacco Co., 522 F.3d 215 (2d Cir. 2008) in order to facilitate class certification. This is BIG NEWS!!!
* Subjective managerial discretion under less suspicion. Returning to the employment context, a key issue in the case is whether plaintiffs could assert the requisite common question by challenging Wal-Mart’s delegation of decentralized discretion to store managers over many issues of pay and promotion. The Court majority refused to entertain such a challenge. Michael Fox:
The 5-4 opinion seems to pull the teeth from what I have always considered one of the more dangerous Supreme Court opinions, Watson v. Fort Worth Bank and Trust, a 1988 decision which seemed to permit a disparate impact case any time an employer’s promotion practices were subjective (which was every employer) and there was a disparate impact (almost every employer).
If Fox is right, this is a giant step in the right direction, and helps correct a pernicious tendency in modern employment law to pressure large employers into maintaining more centralized (and inevitably more bureaucratic) personnel policies.