“Two physicians fed up with medical expert witness testimony gathered lawyers and doctors and founded the Coalition and Center for Ethical Medical Testimony this summer. … Their goal is to expose physicians who falsify credentials or mislead juries about standards of care, and they’re planning to arm physicians with the tools necessary to do the job.” (Tanya Albert, “Group aims to weed out deficient medical expert witnesses”, American Medical News (AMA), Aug. 18). Meanwhile, in a trend that outrages the organized plaintiff’s bar, medical societies are establishing tribunals to review and discipline doctors over expert witness testimony that they present in court. “Doctors whose testimony does not pass muster can be suspended or expelled from the societies.” Critics from the plaintiff’s bar say the medical societies will not conduct objective evaluations because of their members’ interest in retaliating against those of their number who testify against fellow doctors. “The giving of expert testimony should be considered the practice of medicine, and it should be the subject of peer review,” counters AMA president Donald J. Palmisano. “If someone comes into court and gives junk science, we don’t want fraudulent testimony in court.” Although attorney Robert Peck, who works closely with ATLA, is menacing the associations with charges of antitrust violation and witness intimidation, an opinion by the Seventh Circuit’s influential Judge Posner in 2001 upheld medical testimony peer review as socially valuable self-regulation that “furthers rather than impedes the cause of justice.” (Adam Liptak, “Doctors’ testimony under scrutiny”, New York Times, Jul. 6).
Posts Tagged ‘antitrust’
$550 million? We’re worth it
Or was it the miles? “Lawyers who represented millions of retailers in their suit against Visa and MasterCard on debit card processing costs said on Tuesday they are seeking among the highest class action legal fees ever for nailing down $3 billion in combined settlements.” Plaintiffs’ lawyers led by New York’s Constantine & Partners want $550 million plus expenses, per Reuters (“Retailers’ Lawyers Want $550 Mln in Fees”, Reuters, Aug. 19); $609 million plus expenses, per the New York Times (Jennifer Bayot, “Lawyers Seek Big Fee for Negotiating Credit Card Deal”, New York Times, Aug. 19). The lawyers have hired well-known Columbia law professor John Coffee to review(/defend) their fee. According to a press release from the lawyers, the deadline for class members to object is Sept. 5, and the fairness hearing in federal court in Brooklyn is scheduled for Sept. 25. (settlement website)
Update: courts snuff tobacco-deal review
It’s been a great couple of weeks for impunity for the devisers and beneficiaries of the gigantic 1998 tobacco heist. On July 31 a New York appellate panel unanimously slapped down Judge Charles Ramos’s attempt to launch an inquiry under his own authority into the ethical status of the $625 million in fees awarded to lawyers representing the Empire State in the litigation. The panel found that Judge Ramos lacked authority to pursue such review in the absence of controversy between the parties to the litigation and said he had mistaken a variety of points of law along the way. The politically well-connected recipients of that $625 million bonanza had good reason to heave a sigh of relief, since it seems practically no one in the state other than Judge Ramos is curious as to what they did to become entitled to the money (Daniel Wise, “N.Y. Panel Rejects Review Of Tobacco Fee Award”, New York Law Journal, Aug. 1)(see Jul. 30-31, 2002 and links from there). Meanwhile, “[o]nce again, the 3rd U.S. Circuit Court of Appeals has rejected an antitrust challenge to the $200 billion settlement between the top four tobacco companies and 46 states, finding that while the mega-deal did result in stifled competition, the state officials who agreed to it are immune from suit.” Previously, a suit by cigarette wholesalers had been dismissed on the ground of antitrust law’s Noerr-Pennington doctrine, which immunizes anticompetitive conduct related to lobbying and government action itself; the newly dismissed suit was filed on behalf of consumers (Shannon P. Duffy, “Smokers’ Antitrust Challenge Rejected”, The Legal Intelligencer, Jul. 31).
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).
In honor of Canada Day
The Loewen Group is a Canadian funeral home company that was the victim of a runaway Mississippi jury that held it liable for $500 million in damages in 1995 for ostensible antitrust damage to a local funeral home company worth less than $10 million. The company could not post the $625 million bond that was a prerequisite for appeal, and was forced to settle for $175 million. Loewen sued the US under NAFTA provisions prohibiting discrimination against foreign investors. The tribunal called the verdict a “disgrace,” but held that it was not a violation of NAFTA.
Archived class action materials, pre-July 2003
Madison County, Ill., 2003: “To tame Madison County, pass the Class Action Fairness Act“, Jun. 12-15; “The intimidation tactics of Madison County“, Jun. 9; “‘Lawyers who won $10 bil. verdict had donated to judge’“, Apr. 30; “A bond too far“, Apr. 4-6; “Appeals bonds, again“, Apr. 2-3; “Mad County pays out again” (“light” cigarette class action), Mar. 24. 2002: “Malpractice-crisis latest: let ’em become CPAs“, Oct. 7-8; “Intel sued in notorious county“, Aug. 30-Sept. 2. 2000: “Update: Publishers’ Clearing House case“, Feb. 29. 1999: “Criticizing lawyers proves hazardous” (columnist Bill McClellan makes fun of class-action attorneys, they sue him for libel), Nov. 4 (& Nov. 30; Feb. 29, 2000)
Securities class actions, 2003: “Prospering despite reform“, May 5; “‘Lawyers find gold mine in Phila. pension cases’“, Mar. 21-23; “NYC challenges class action fees; taxpayers save $200 million“, Feb. 28-Mar. 2 (& Jun. 20, 2000). 2002: “Updates” (Ninth Circuit ruling), Oct. 1-2; “Second Circuit: we mean business about stopping frivolous securities suits“, Aug. 29-Sept. 2; “Financial scandals: legislate in haste“, Jul. 12-14; “‘How to stuff a wild Enron’“, Apr. 22; “Judge compares class action lawyers to ‘squeegee boys’“, Apr. 18. 2001: “Short-sellers had right to a drop in stock price“, Nov. 12; “Third Circuit cuts class action fees” (Cendant, CBS/ Westinghouse), Sept. 25-26 (& on Cendant, June 20, Sept. 4, 2000); “Dotcom wreckage: sue ’em all“, Aug. 7-8; “‘2d Circuit Upholds Sanctions Against Firms for Frivolous Securities Claims’” (Schoengold & Sporn), July 23; “Razorfish, Cisco, IPO suits“, May 22; “Securities law: time for loser-pays“, Mar. 2-4; “3Com prevails in shareholder suit“, Feb. 21-22; “$1,000/hour for shareholder class lawyers” (Aetna case), Feb. 14-15; “What they did for lead-plaintiff status?“, Jan. 18 (& see Feb. 21-22). 2000: “Did securities-law reform fail?“, Nov. 10-12; “Emulex fraud: gotta find a defendant“, Sept. 4; “Fortune on Lerach“, Aug. 16-17; “Lion’s share” (commodity brokerage case), May 5-7; “Fee shrinkage“, May 3; “Celera stockholders vent at Milberg Weiss“, Apr. 25-26. 1999: “Piggyback suit not entitled to piggybank contents” (Second Circuit rejects fees in Texaco action), Oct. 9-10; “Effects of shareholder-suit reform“, Sept. 22.
Fee review, 2003: “Vitamin class action: some questions for the lawyers“, May 28; “Sauce for the gander dept.“, May 19; “NYC challenges class action fees; taxpayers save $200 million“, Feb. 28-Mar. 2 (& Jun. 20, 2000). 2002: “FTC cracks down on excessive legal fees“, Oct. 1-2; “Smog fee case: ‘unreal world of greed’“, Jul. 24. 2001: “Court’s chutzpah-award nominee” (Wells Fargo), Oct. 17-18; “Third Circuit cuts class action fees” (Cendant, CBS/ Westinghouse), Sept. 25-26 (& on Cendant, June 20, Sept. 4, 2000); “Coupon settlement? Pay the lawyers in coupons“, Mar. 16-18. 2000: “Fee shrinkage“, May 3; “‘Accord tossed: Class members ‘got nothing’” (Equifax, 7th Circuit), Jan. 6. 1999: “Class action fee control: it’s not just a good idea, it’s the law” (Ninth Circuit on “separately negotiated” fees), Nov. 30; “Piggyback suit not entitled to piggybank contents” (2nd Circuit, Texaco), Oct. 9-10.
Milberg Weiss Bershad Hynes & Lerach, 2003: “Prospering despite reform“, May 5; “Milberg copyrights its complaints“, Jan. 3-6. 2002: “Updates” (Ninth Circuit ruling), Oct. 1-2; “Smog fee case: ‘unreal world of greed’“, Jul. 24 (& Dec. 5, 2000, Jun. 22-24, 2001); “Judge compares class action lawyers to ‘squeegee boys’“, Apr. 18; “Milberg faces second probe” (Phila. politics), Feb. 27-28; “‘Probe of Milberg Weiss has bar buzzing’“, Jan. 28-29; “‘In a class of his own’” (Melvyn Weiss profiled in The Economist), Jan. 21-22. 2001: “NFL satellite ticket class action“, June 5 (& update Aug. 20-21: court disallows settlement); “Update: cookie lawsuit crumbles“, May 9; “‘Lawyers to Get $4.7 Million in Suit Against Iomega’” (zip drive defect allegations), May 8; “California electricity linkfest” (representing San Francisco), March 26; “(Another) ‘Monster Fee Award for Tobacco Fighters’” (Calif. cities and counties), March 21-22; “3Com prevails in shareholder suit“, Feb. 21-22; “$1,000/hour for shareholder class lawyers” (Aetna case), Feb. 14-15; “What they did for lead-plaintiff status?“, Jan. 18 (& see Feb. 21-22). 2000: “Fortune on Lerach“, Aug. 16-17; “Fee shrinkage“, May 3; “Celera stockholders vent at Milberg Weiss“, Apr. 25-26; “Class-actioneers’ woes“, Mar. 1; “Pokemon litigation roundup“, Jan. 10 (& Oct. 1-3, Oct. 13, 1999).
Toshiba laptop settlement: see separate page on high-tech law.
Microsoft class actions: “Microsoft case and AG contributions“, Apr. 3-4, 2002; “Columnist-fest” (proposed settlement), Nov. 27, 2001; “Hiring talent from the opposing camp“, Feb. 28, 2000; “In race to sue Microsoft, some trip“, Dec. 23-26; “Microsoft roundup“, Dec. 3-5; “‘Actions without class’“, Dec. 2; “Class actions vs. high-tech“, Nov. 23; “Vice President gets an earful“, Nov. 22; “Microsoft roundup“, Nov. 17; “Fins circle in water“, Nov. 13-14; “Microsoft roundup“, Nov. 11; “Microsoft ruling: guest editorials“, Nov. 8; “Why doesn’t Windows cost more?“, Oct. 27; “Are you sure you want to delete ‘Microsoft’?“, Oct. 11.
Employment class actions: see separate page on employment law.
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Overlawyered.com commentaries: “Texas’s giant legal reform“, Jun. 18-19, 2003. “To tame Madison County, pass the Class Action Fairness Act“, Jun. 12-15, 2003; “‘Reforming class action suits’” (Class Action Fairness Act), Apr. 25-27, 2003. “Judge kicks class-action lawyers off case” (H&R Block), May 15, 2003. “Class action lawyer takes $20 million from defendant’s side“, Mar. 15-16, 2003. “FBI probes Philadelphia’s hiring of class action firm“, Jan. 31-Feb. 2, 2003. “Ninth Circuit panel sniffs collusion in bias settlement fees“, Dec. 16-17, 2002. Auctions: “Third Circuit cuts class action fees“, Sept. 25-26, 2001; “Letter to the editor” (competitive bidding for class representation), Jun. 13, 2001 (& Oct. 1-2, 2002). “7,000 missing colors, many of them crisply green“, Aug. 29, 2002. “‘Junk-fax’ suit demands $2 trillion“, Aug. 26, 2002; “Junk-fax litigation: blood in the water“, July 24, 2001; “Junk-fax bonanza“, March 27, 2001; “Junk fax litigation, continued“, March 3-5, 2000; “In Houston, expensive menus” (unsolicited faxes), Oct. 22, 1999. “Penthouse sued on behalf of disappointed Kournikova-oglers“, Jun. 3-4, 2002. “The mystery of the transgenic corn“, May 14-15, 2002. “Editorial-fest“, Mar. 11, 2002; “Washington Post on class action reform” (good editorial), Aug. 29-30, 2001; “Actions without class” (Washington Post editorial), Dec. 2, 1999. “The thrill of it all: plaintiffs win 28 cent coupon“, Feb. 27-28, 2002. “‘Toyota buyers’ suit yields cash — for lawyers’“, Feb. 18-19, 2002; “Golf ball class action” (Acushnet Co.), Nov. 18-19, 1999; “Class action coupon clippers” (Washington Post on settlement abuses), Nov. 15, 1999. “‘Congress looks to change class action system’“, Feb. 11-12, 2002; “‘They’re making a federal case out of it … in state court’“, Nov. 7-8, 2001. “Selling out the class?” (allegations of collusive settlement in H&R Block case), April 5, 2001 (& see Dec. 3). “Swiss banks vindicated“, Nov. 1, 2001. Letter to the editor (lawyers’ own incremental billing disclosed?), Oct. 22, 2001 (& see Dec. 3). “Counterterrorism bill footnote” (forum shopping), Oct. 16, 2001; “Best little forum-shopping in Texas” (class actions make their way to Texarkana), August 27, 1999. “Employment class actions: EEOC to the rescue“, Sept. 10, 2001. “220 percent rate of farmer participation” (USDA black farmer settlement), July 25, 2001. “The rest of Justice O’Connor’s speech“, July 6-8, 2001. “Blockbuster Video class action“, June 11, 2001 (& see July 3-4 (Vince Carroll column)). “Letter to the editor” (First USA credit cards), June 13, 2001; “Bank error in your favor” (credit card holders), Sept. 27-28, 2000; & letter to the editor, Sept. 3, 2001. “Ghost blurber case“, June 12, 2001. “NFL satellite ticket class action“, June 5, 2001 (& update Aug. 20-21: court disallows settlement). “Insurance class settlement scuttled“, Feb. 26, 2001. “Florida lawyers’ day jobs, cont’d” (hotbed of class action filing), Dec. 11-12, 2000; “Florida’s legal talent, before the Chad War” (Florida Marlins ticketholders), Dec. 8-10, 2000. “Obese soldiers class action“, Nov. 10-12, 2000. “Sweepstakes, for sure” (American Family Publishers), Oct. 20-22, 2000; “Update: Publishers’ Clearing House case“, Feb. 29, 2000. “Courtroom crusade on drug prices?“, Oct. 19, 2000. “Class actions: are we all litigants yet?“, Aug. 23-24, 2000. Coke: “Class-action lawyers to Coke clients: you’re fired“, July 21-23, 2000; “‘Coke plaintiff eavesdrops on lawyers; case unravels’” (what do lawyers tell each other after they think their clients have hung up on the conference call?), July 19-20; “‘Ad deal links Coke, lawyer in suit’” (Willie Gary, suing Coke, cuts lucrative ad deal with it), May 11, 2000. “Target Detroit” (lawyers countersue DaimlerChrysler and exec personally), July 19-20, 2000; “Turning the tables” (DaimlerChrysler sues class action lawyers), Nov. 12, 1999. “Class-action assault on eBay“, July 13, 2000. “AOL ‘pop-up’ class action” (ads said to be unfair), June 27, 2000. “Rise, fall, and rise of class actions” (enormous increase in filing rates in past decade), Mar. 10-12, 2000. “Criticizing lawyers proves hazardous” (columnist Bill McClellan makes fun of class-action attorneys, they sue him for libel), Nov. 4, 1999 (update Nov. 30: he criticizes them again, though suit is still pending); “Update: Publishers’ Clearing House case” (judge approves settlement including legal fee request; agreement reached to end libel suit), Feb. 29, 2000. “Secrets of class action defense“, Feb. 25, 2000; “Mobile Register probes class action biz” (BancBoston and other mortgage escrow cases), Feb. 7, 2000. “AOL upgrade’s sharp elbows“, Feb. 12-13, 2000. “Weekend reading: columnist-fest” (Laura Pulfer on suit against Ralph Lauren outlet stores; Alex Cockburn on Swiss banks), Feb. 5-6, 2000. “From our mail sack: unclear on the concept“, Jan. 28, 2000. “Santa came late” (suit against Toys-R-Us for missing Christmas delivery), Jan. 19, 2000. “Pokemon litigation roundup“, Jan. 10, 2000; “Pokemon cards update“, Oct. 13, 1999; “Pokemon-card class actions“, Oct. 1-3, 1999 “Expert witnesses and their ghostwriters” (life insurance class actions), Jan. 4, 2000. “Lawyers for famine and wilderness-busting?” (anti-biotech), Jan. 3, 1999. “Class action toy story” (antitrust), Dec. 29-30, 1999. “‘In race to sue Microsoft, some trip’” (lawyers inadvertently copy details of pleadings in earlier cases), Dec. 23-26, 1999. “Rolling the dice, cont’d” (suits over online gambling), Dec. 7, 1999 (earlier report, Aug. 26). “Beware of market crashes” (class action sought against E*Trade for alleged computer-related trading losses), Nov. 26-28, 1999. “Are they kidding, or not-kidding?” (proposals for suits against makers of fattening foods, losing sports teams), Nov. 15, 1999. “Public by 2-1 margin disapproves of tobacco suits” (if class actions are filed on behalf of the public, why don’t they reflect public opinion?), Nov. 5-7, 1999. “Demolition derby for consumer budgets” (class action against State Farm over generic crash parts), Oct. 8, 1999. “Power attracts power” (Boies joins anti-HMO effort), Sept. 30, 1999; “Impending assault on HMOs“, Sept. 30. “$49 million lawyers’ fee okayed in case where clients got nothing” (secondhand smoke action), Sept. 28, 1999; “Personal responsibility takes a vacation in Miami” (tobacco class-action verdict), Jul. 8, 1999. “Judge throws out four WWII reparations lawsuits“, Sept. 20, 1999. “Tainted cycle” (Milwaukee taxpayers sue themselves), Sept. 2, 1999. “Three insurers sued for $100 million” (how the press covers class action announcements), Aug. 20, 1999. Resources on class actions are found at many different places on Overlawyered.com. For example, most of the massive lawsuits filed against individual industries over personal injury to classes of consumers are covered on pages specific to the subject matter of the cases, such as the pages on firearms litigation, tobacco litigation, managed-care litigation, breast implant litigation, product liability, and so forth. This page assembles resources on class actions as a procedural device and as an institution. Among topics covered are the unique role in this area of an “entrepreneurial” plaintiff’s bar that decides on its own behalf who and how to sue and lines up clients as needed; the history of the device and the reasons why it is either sharply limited or virtually unknown in the courts of other industrial democracies; the distinctive ethical problems that arise because of the extreme difficulty of policing lawyers’ faithfulness to the interests of the absent class; and the operations of the class action “industry” in the areas in which it has been a familiar part of the American legal landscape for decades, namely shareholder litigation and class actions over consumer and antitrust grievances aggregating large numbers of (usually smallish) claims. Background — procedural history, ethical issues: Overlawyered.com‘s editor wrote about class actions (as well as “champerty and maintenance”, the “invisible-fist theory”, and other topics) in Chapter 3 of his book The Litigation Explosion; an excerpt is online. Chapter 5 (“The New Town Meeting”) of Peter Huber’s book Liability: The Legal Revolution and Its Consequences contains a valuable discussion of the class action format, particularly as it applies to the so-called toxic tort; it is unfortunately not online. Lawrence Schonbrun, a Northern California attorney who has developed a specialty in filing challenges to excessive class action attorneys’ fee requests, wrote a prescient article in 1996 on “coupon deals”, “separately negotiated” fees from defendants, and other innovative ways the class action bar was finding to escape scrutiny of its remuneration. (“Class Actions: The New Ethical Frontier“) Shareholder litigation: A starting point for research on this topic is Stanford Law School’s comprehensive Securities Class Action Clearinghouse. See also the commentaries on this site. In Felzen v. Andreas (1998), Judge Frank Easterbrook of the Seventh Circuit wrote that “Many thoughtful students of the subject conclude, with empirical support, that derivative actions do little to promote sound management and often hurt the firm by diverting the managers’ time from running the business while diverting the firm’s resources to the plaintiffs’ lawyers without providing a corresponding benefit.” He cited a long list of scholarly articles including Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 Stanford L. Rev. 497 (1991), which found that the “structural characteristics common to securities class actions . . . combine to produce outcomes that are not a function of the substantive merits of the case.” and Roberta Romano, The Shareholder Suit: Litigation without Foundation?, 7 J. L. Econ. & Organization 55 (1991), which examined 39 shareholder suits filed between the late 1960s and 1987 and concluded that “shareholder litigation is a weak, if not ineffective, instrument of corporate governance.” In 1995 Congress passed the Private Securities Litigation Reform Act, which aimed to rectify some of the worst abuses in the field. This client memo from Fried, Frank describes the wider powers institutional investors obtained under the act to influence litigation going on purportedly in the name of investors such as themselves. In Polar International Brokerage v. Reeve, a New York federal judge rejected a proposed class action settlement and request for $200,000 in attorneys’ fees, saying it offered shareholders “nothing of real value”. (Deborah Pines, National Law Journal, May 24, 1999). Although the securities bar frequently alleges that well-known companies in Silicon Valley and elsewhere are run by crooked managements that fleece their shareholders, they ironically turn out to keep a lot of their (very substantial) stock holdings invested in the very same companies. (Paul Elias, San Francisco Recorder, June 8, 1999). Among the reasons is that in many cases they have accepted stock as payment for dropping earlier legal actions. Other class action resources: The Federalist Society publishes a Class Action Watch newsletter. The first issue is in conventional web-page format. The second issue is a PDF document (Adobe Acrobat needed to view; get it here). Among the better-known law firms representing class action plaintiffs are Milberg Weiss Bershad Hynes & Lerach LLP, Lieff, Cabraser, Heimann & Bernstein LLP, Cohen Milstein, Hausfeld & Toll, Krause & Kalfayan, and Barrack, Rodos & Bacine. Actuary Jack Patterson has written an account for a plaintiff’s lawyer readership of class actions against life insurance companies, one of the big practice areas of the 1990s. The class action bar also files many antitrust suits on behalf of large groups of consumers or business purchasers. The Antitrust Policy web site collects many worthwhile resources on antitrust law. Archived tobacco items, pre-July 2003
Tobacco fees reconsidered, 2003: “Senate panel nixes tobacco-fee clawback“, May 9-11; “Feds indict former Texas AG“, Mar. 8-9; “‘Not a pretty picture’“, Jan. 10-12. 2002: “Judge overturns $1.3 billion tobacco fee award” (Castano Group), Sept. 27-29; “Welcome Fox News viewers/ readers“, Aug. 2-4; “Tobacco fees: one brave judge” (New York), Jul. 30-31 (& Aug. 2-4, Jun. 21-23, Oct. 16-17, Oct. 25-27, 2002; Feb. 11 & Jun. 6-8, 2003; May 11, 2001). “‘Nanny Bloomberg’” (NYC smoking ban), Oct. 22, 2002. “‘Tough tobacco laws may not deter kids’“, Jun. 7-9, 2002; “Blind newsdealer charged with selling cigarettes to underage buyer“, Sept. 16, 1999. “Sin-suit city” (Banzhaf), Jun. 10, 2002. “Ad model sues tobacco company“, May 1-2, 2002. “Australian party calls for banning smoking while driving“, Jun. 3-4, 2002; “‘Positive nicotine test to keep student from prom’” (over-18 student, off-premises consumption), Apr. 26-28, 2002 (& update May 10-12: school backs down); “Judge orders woman to stop smoking at home“, Mar. 27-28, 2002; “‘Smokers told to fetter their fumes’” (smoking in homes that bothers neighbors), Nov. 26, 2001; “Utah lawmakers: don’t smoke in your car” (when kids present), Oct. 5-7, 2001; “Apartment smoking targeted“, Jan. 3, 2000. “Australian party calls for banning smoking while driving“, Jun. 3-4, 2002 (document retention case); “International tobacco suits: not quite such easy pickings“, Feb. 1-3, 2002; “‘Saudi Arabia finally gets tough on terrorism!’“, Dec. 10, 2001; “More from Judge Kent” (Bolivian suit), Aug. 3, 2001; “Smoker’s suit nixed in Norway“, Dec. 18-19, 2000; “They call it distributive justice” (government of Saudi Arabia sues tobacco cos.), Nov. 16, 2000; “Spreading to Australia?“, Dec. 29-30, 1999; “Israeli court rejects cigarette reimbursement suit“, Oct. 7, 1999. “Veeps ATLA could love” (Durbin, D-Ill., as guardian of tobacco lawyers’ fees), July 7, 2000 (& see Apr. 25, 2002). “Prison litigation: ‘Kittens and Rainbows Suites’” (cellmate’s smoking violates rights), Jan. 11-13, 2002. Federal tobacco suit: others’ views: “Columnist-fest” (Jacob Sullum), Jun. 22-24, 2001; “Blatant end-runs around the democratic process” (former Labor Secretary Robert Reich), Jan. 15-16, 2000; “Dave Barry on federal tobacco suit” (plus novelist Tom Clancy’s critique), Oct. 26, 1999; “‘This wretched lawsuit’” (Jonathan Rauch in National Journal ), Oct. 13, 1999; “Feds’ tobacco shakedown: ‘A case of fraud’“, Sept. 29, 1999 (roundup of editorial pages); “Feds as tobacco pushers” (columnist Andrew Glass recalls encouragement of smoking in U.S. Army), Sept. 24, 1999; “Hurry up, before the spell breaks” (leading plaintiff’s lawyer wants feds to sue fast since public losing interest), Sept. 24, 1999. Regulation by litigation: “Tobacco- and gun-suit reading” (law prof Michael Krauss), Aug. 21-22, 2000; “Convenient line at the time” (tobacco is unique, said state attorneys general — sure), May 15; “Stuart Taylor, Jr., on Smith & Wesson deal” (“Guns and Tobacco: Government by Litigation”), Apr. 11, 2000; “Arbitrary confiscation, from Pskov to Pascagoula” (Michael Barone in U.S. News on threat to rule of law), Jul. 24-25, 1999; “Guns, tobacco, and others to come” (Peter Huber in Commentary on the new mass-tort cases as “show trials”), Jul. 20; “‘A de facto fourth branch of government’” (prominent trial lawyer Wendell Gauthier’s view of plaintiff bar’s role), Jul. 4, 1999. “Dewey deserve that much?“, Mar. 6, 2002; “Health plans rebuffed in bid to sue cigarette makers“, Jan. 11, 2000. “Terrorists, American business execs compared“, Sept. 28-30, 2001. “Columnist-fest“, Jun. 22-24, 2001 (Amity Shlaes on asbestos synergy case); “Best little forum-shopping in Texas” (state’s Medicaid suit got filed in Texarkana, contributing $6.1 million to local economy), Aug. 27, 1999. “The Kessler agenda” (former FDA chief calls for cigarette ban), Jan. 12-14, 2001; “Kessler rebuked” (FDA claim of authority over tobacco), March 27, 2000. “Updates” (baby Castano suit nixed in N.Y.), Dec. 26-29, 2000. “Wal-Mart’s tobacco exposure“, Sept. 25-26, 2000; “The Wal-Mart docket” (sued over tobacco sales), July 7, 2000. “Another billion, snuffed” (antitrust lawsuit between snuffmakers), May 10, 2000. “Hollywood special: ‘The Insider’“, Mar. 30, 2000. “Because they still had money” (Hausfeld’s price-fixing suit), Mar. 2, 2000. “Tobacco lawyers’ lien leverage“, Feb. 29, 2000. “Feds’ tobacco hypocrisy, cont’d: Indian ‘smoke shops’“, Jan. 25, 2000; “Do as we say, please” (Indian tribes, after profiting immensely from tax-free smoke shops, turn around and sue suppliers), Jul. 14, 1999. “The joy of tobacco fees“, Jan. 20, 2000. “Calif. state funds used to compile ‘enemies list’“, Jan. 5, 2000. “‘Trial lawyers on trial’” (Trevor Armbrister, Reader’s Digest), Dec. 23-26, 1999. “Philadelphia Inquirer Tech.life: ‘Web Winners’” (this page is recommended), Dec. 15, 1999. “Ohio tobacco-settlement booty“, Nov. 8, 1999. “Public by 2-1 margin disapproves of tobacco suits“, Nov. 5-7, 1999. “Not-so-Kool omen for NAACP suit“, Nov. 1, 1999. “Minnesota to auction seized cigarettes“, Oct. 21, 1999. “Reform stirrings on public contingency fees“, Oct. 15, 1999. “Big guns” (tobacco example shaped gun litigation), Oct. 5-6, 1999. “Plus extra damages for having argued with us” (“lesson of tobacco”: you can get punished for defending your product), Aug. 19, 1999. “‘Settlement bonds’: are guns next?” (how Wall Street finances expropriation of industries), Aug. 5, 1999. Do the tobacco wars that began in the mid-1990s represent an unprecedented triumph for public health? Are they an inevitable response to legislative gridlock on smoking policy? Or are they our legal system’s own updated version of the Gilded Age scandals that brought American government into disrepute a century ago, siphoning billions of dollars of publicly obtained money into the hands of politically connected attorneys? Commentaries on Overlawyered.com (above) may help you decide. In the mean time, the following links offer a way into the wider tobacco controversy: Anti-tobacco groups, most of which are supportive of litigation as well as other coercive government actions aimed at curtailing tobacco sale and use, are well represented on the web. They include Tobacco.org, federally funded antitobacco activist Stanton Glantz’s Tobacco Control Archives, Americans for Non-Smokers’ Rights, Action on Smoking and Health, and the American Council on Science and Health. Tobacco.org’s links list is especially comprehensive. The empire associated with Prof. Richard Daynard, participant in tobacco suits, oft-quoted expert, and professor at Northeastern U., includes the Tobacco Products Liability Project and Tobacco Control Resource Center, as well as the State Tobacco Information Center. The Castano Group, a vast joint venture of trial lawyers cooperating to file tobacco class actions, maintains a website that is distinctly uninformative (unless you’re a lawyer/member or a cooperative pressie). Relatively neutral sites include Yahoo Full Coverage. Critics of the anti-tobacco crusade often note that it curtails individual liberty, freedom of contract and freedom of association. As part of its Breaking Issues series (“Fining Smokers“), Reason magazine includes a list of online articles skeptical of the government’s role in the tobacco field, while Reason senior editor Jacob Sullum is the author of 1998’s For Your Own Good : The Anti-Smoking Crusade and the Tyranny of Public Health. At the libertarian-oriented Cato Institute, Robert Levy has criticized “The Tobacco Wars“, written that “States Share Blame for Tobacco Lawyers’ Greed“, and called tobacco settlements “Dangerous to Your Liberty“; the state Medicaid suits, he argues, are “Snuffing Out the Rule of Law“. Cato’s Jerry Taylor describes the battle as “The Pickpocket State vs. Tobacco“. “The Anti-Tobacco Crusade” by Joseph Kellard, Capitalism magazine, March 1998, argues from a viewpoint supportive of Ayn Rand’s Objectivism. In Colorado, the Independence Institute maintains a Center for Personal Freedom run by Linda Gorman which draws the connection to other paternalist crusades on issues like drinking, seatbelt use and mandatory helmet laws. The Heritage Foundation’s Todd Gaziano makes the case that a proposed federal lawsuit against tobacco companies is “elevating politics over law” (July 30, 1999 Backgrounder). Overlawyered.com‘s editor has taken exception to the retroactivity of the crusade, to its manipulative treatment of children, and to the hardball or demagogic tactics used in the Castano and Engle cases. Rep. Chris Cox (R-Calif.) delivered a notable critique of the tobacco litigation at a Congressional hearing held Dec. 10, 1997 (no longer online). An extensive site offering an aggressive defense of smoking and smokers, along with a large collection of links, is Forces International (“Fight Ordinances and Restrictions to Control and Eliminate Smoking”). Archived technology law items, pre-July 2003[intellectual property, patent, copyright and trademark cases] Web liability issues, 2002: “‘Google sued over search ratings’“, Nov. 6; “AVweb capitulates to defamation suit“, Sept. 16-17 (& Sept. 18-19); “Defying the link-banners“, Aug. 22; “PetsWarehouse.com defamation suit, cont’d” (linking, metatags), May 22-23 (& May 27, 2002, Aug. 6, 2001); “A DMCA run-in” (linking to copyright violation), Apr. 16-17; “Web speech roundup“, Mar. 25-26; “Columnist-fest” (N.Y. Times v. Tasini), Feb. 11-12; “Web defamation roundup“, Jan. 18-20. 2001: “KPMG” (company thinks it can prohibit linking to its site), Dec. 11; “Words as property: ‘entrepreneur’” (domain name dispute), Nov. 1; “University official vs. web anonymity“, Oct. 30; “Domain-name disputes are busting out all over“, June 29-July 1; “Anonymity takes a D.C. hit” (Italy licenses web publishers), May 21; “Scientologists vs. Slashdot“, March 19-20. 2000: “Yahoo pulls message board“, Oct. 18; “‘Regulating Privacy: At What Cost?’” (Swedish privacy laws), Sept. 20; “Web-copyright update: ‘Dialectizer’ back up, ‘MS-Monopoly’ down“, Aug. 16-17; “Dangers of linking“, June 7; “Illegal to talk about drugs?“, May 30; “‘Dialectizer shut down’“, May 18-21; “eBay yanks e-meter auctions” (copyright claim), May 3; “Terminix vs. consumer critic’s website” (metatags), Mar. 31-Apr. 2; “More assertions of link liability” (DVD hack), Dec. 31-Jan. 2. 1999: “Link your way to liability?” (professor sues over “course critique” website), Nov. 15 (& update Oct. 10, 2000); “We ourselves use ‘sue’” (competitors’ names used as metatags), Sept. 25-26; “‘Don’t link or I’ll sue’” (“deep linking” suits), Aug. 13 (& update April 5, 2000: court rules deep linking not violation). Plus: our 404 message; & see data collection, disabled access issues. Home office regulation?: “OSHA & telecommuters: the long view“, April 7-9, 2000; “Update: OSHA in full retreat on home office issue“, Jan. 29-30; “OSHA at-home worker directive“, Jan. 8-9; “OSHA backs off on home-office regulation“, Jan. 6; “Beyond parody: ‘OSHA Covers At-Home Workers’“, Jan. 5, 2000. |
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Other Overlawyered.com commentaries: “Intel sued in notorious county“, Aug. 30-Sept. 2, 2002. “Sic ’em on Segway“, Aug. 1, 2002; “Segway, the super-wheelchair and the FDA“, Dec. 12, 2001. “‘Every Man a Cyber Crook’“, Feb. 6-7, 2002. “Draconian hacker penalties?“, Sept. 28-30, 2001. “‘Lawsuit demands AOL stop anti-Islamic chat’“, Sept. 3, 2001; “EEOC: unfiltered computers ‘harass’ librarians“, June 4, 2001. “Dotcom wreckage: sue ’em all“, Aug. 7-8, 2001. “Brace for data-disaster suits” (hacker attacks, viruses), May 29, 2001; “Suing Nike for getting hacked“, July 12, 2000; “Deep pockets blameable for denial-of-service attacks?“, Feb. 26-27; “Antitrust obstacles to hacker defense“, Feb. 10-11, 2000. “Anonymity takes a D.C. hit“, May 21, 2001. “Techies fear Calif. anti-confidentiality bill“, May 15, 2001. “Internet service disclaimers“, Dec. 13-14, 2000. “‘Stock Options: A Gold Mine for Racial-Discrimination Suits?’“, Dec. 11-12, 2000; “Feds’ mission: target Silicon Valley for race complaints“, Feb. 29, 2000. Labor law: “Digital serfs?“, Jan. 26-28, 2001; “Goodbye to gaming volunteers?“, Sept. 12, 2000 (& update Oct. 3); “Why rush that software project, anyway?” (California overtime law), March 29; “Microsoft temps can sue for stock options“, Jan. 11, 2000 (& see Feb. 17; letters, Dec. 20); “‘Click here to sue!’” (AOL volunteer suit), Sept. 7, 1999; “Click here to sue!” (employee misclassification suits), Aug. 19, 1999. “Tax software verdict: pick a number” (Mississippi verdict; government contracting), Sept. 5, 2000. “Class-action assault on eBay“, July 13, 2000 (update Nov. 22-23; class action certified). “‘Parody of animal rights site told to close’“, July 3-4, 2000 (& Aug. 29-30, 2001). “A Harvard call for selective rain” (some Internet regulation, not too much), July 3-4, 2000. “AOL ‘pop-up’ class action” (ads said to be unfair), June 27, 2000. “Harassment-law roundup” (Internet startups vulnerable), May 4, 2000; “Dot-coms as perfect defendants” (sex harassment suits), Jan. 17; “Harassment-law roundup” (Juno cases), Feb. 19-21, 2000.. “Silicon siege” (Ebay antitrust investigation, other cases; T.J. Rodgers warns against rapprochement with Washington), April 7-9, 2000. “Terminix vs. consumer critic’s website“, March 31-April 2, 2000. “Music stores sue Sony” (objecting to company-store hyperlinks included with CDs), Feb. 25, 2000. “Silicon siege” (AOL 5.0 upgrade), April 7-9, 2000; “AOL upgrade’s sharp elbows“, Feb. 12-13, 2000. “Green cards gather moss” (immigration delays), Feb. 4, 2000. “Santa came late” (Toys-R-Us e-tailing shortfalls), Jan. 19, 2000; “Beware of market crashes” (online brokerages “probably” liable for computer outages), Nov. 26-28, 1999. “Your fortune awaits in Internet law” (cybersquatting), Jan. 13-14, 2000; “Time to rent a clue” (domain name disputes), July 28, 1999. “Rolling the dice, cont’d” (suits over online gambling), Dec. 7, 1999 (earlier report, Aug. 26). “Mounties vs. your dish” (Canadian satellite law), Nov. 1, 1999. “Founders’ view of encryption“, Oct. 29, 1999. “In Houston, expensive menus” (junk faxes class action), Oct. 22, 1999 (update April 3, 2000: claims thrown out). “Foam-rubber cow recall” (Gateway Corp. premium), Oct. 22, 1999. “Feds: dissent on smoking = racketeering” (suit deems website advocacy unlawful), Sept. 23, 1999. “Effects of shareholder-suit reform“, Sept. 22, 1999. “Our award-winning errors” (this site’s 404 message), Aug. 14-15, 1999. “Weekend reading” (word counts on litigators’ briefs), Aug. 7-8, 1999. “Censorship via (novel) lawsuits” (lawyers blame school shootings on video games, Internet sites), July 22, 1999. “Thought for the day” (Cravath’s Robert Joffe on foreign companies’ unwillingness to let American law govern contracts), July 11, 1999. Archived Microsoft items, pre-July 2003Archived entries before July 2003 can also be found here.
2001: “Columnist-fest” (proposed settlement), Nov. 27; “Two views of Microsoft ruling“, July 2; “Microsoft v. Goliath” (Robert Samuelson essay), May 30; “Debate on Microsoft case” (Hazlett vs. Auletta), Mar. 2-4. 2000: “Microsoft wins one” (no direct Supreme Court review), Sept. 27-28; “‘A perverse use of antitrust law’“, Sept. 8-10; “Lenzner: ‘I think what we do is practice law’” (Oracle scandal), July 28-30; “Oracle did it“, June 28; “Cash for trash, and worse?“, June 26; “Jeff MacNelly, RIP” (three good cartoons), June 9-11; “Judge cracks wish bone“, June 8; “Microsoft opinion: the big picture“, May 12; “Microsoft case: commentators” (Samuelson, Tom Watson, Kinsley), April 19; “Bill Gates and the Nasdaq: why didn’t the Munchkins sing?“, April 13; “Krugman on MS: his ‘blood runs cold’“, April 11; “Silicon siege“, April 7-9; “Columnist-fest” (Larry Kudlow on $80B drop in MS stock evaluation), April 6; “Microsoft violated antitrust law, judge rules“, April 4; “Microsoft Windows downgrade” (parody site), March 27; “Hiring talent from the opposing camp” (co. hires prominent plaintiff’s lawyer Steven Berman), Feb. 28; “Microsoft temps can sue for stock options“, Jan. 11 (& see Feb. 17; letters, Dec. 20). 1999: “In race to sue Microsoft, some trip“, Dec. 23-26; “Roundup“, Dec. 3-5; “‘Actions without class’“, Dec. 2; “Class actions vs. high-tech“, Nov. 23; “Vice President gets an earful“, Nov. 22; “Roundup“, Nov. 17; “Fins circle in water“, Nov. 13-14; “Roundup“, Nov. 11; “Guest editorials“, Nov. 8; “Why doesn’t Windows cost more?“, Oct. 27; “Are you sure you want to delete ‘Microsoft’?“, Oct. 11; “The ‘we sue Microsoft’ business plan“, Aug. 31, 1999 (& update, Nov. 30, 2000). |