Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Delaware’

Blogs I wish I read more frequently: Patent Troll Tracker

Just as I was about to say I needed to revise my top-ten blog list to include the excellent anony-blogger Patent Troll-Tracker, I learned from today’s Recorder and WSJ that he has revealed himself as Rick Frenkel, Cisco IP attorney.

When I started the blog, I did so mainly out of frustration. I was shocked to learn that a huge portion of the tech industry’s patent disputes were with companies that were shells, with little cash and assets other than patents and a desire to litigate, and did not make and had never made any products. Yet when I would search the Internet for information about these putative licensors, I could find nothing. I was frustrated by the lack of information, and also by the vast array of anti-patent-reform bloggers out there, without a voice supporting what I did believe and still believe is meaningful reform.

(For the record, I liked the blog even before they praised me.) Plaintiffs’ attorney Ray Niro had put a bounty on the identity of the Troll Tracker, who had been critical of Niro’s tactics (as have Walter and I). Frenkel is considering shutting down his blog now that he is out of the closet; one hopes someone else picks up the torch, because he was performing a valuable service, to the extent that I had limited my blogging about it because he had the subject-area covered so well.

I missed the debate in November among Dennis Crouch, Michael Smith, and Frenkel on whether the Eastern District of Texas is “waning” as a magnet jurisdiction for patent plaintiffs (May 2006, Dec. 2005, Jan. 2005), or I might have made reference to it in my latest Liability Outlook on patent reform. Frenkel seems to have the best of that debate, and follows up:

Let’s highlight one really outstanding statistic from November: The number of defendants sued in the Eastern District of Texas in November 2007: 244. The number of defendants sued in Los Angeles, San Francisco/Silicon Valley, New York City, Chicago, Delaware, and New Jersey combined in November 2007: 162.

Patent lawyers often seem to be of a different stripe than other lawyers, and there is a similar patent-law-blogging community largely separate from the other law-bloggers. The commenters go mad at Crouch’s blog over the Frenkel revelation because Cisco is a strong patent reform supporter. Elsewhere: IPBiz; TechDailyDose; NetworkWorld; 271Blog; Mises Blog; and the anti-reform Patent Prospector.

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Something is Rotten in the State of Delaware

Why have some of the trial bar’s heaviest hitters in asbestos litigation infested Delaware – firms like including Simmons Cooper, Baron and Budd, and the Lanier law firm?

Why did the American Tort Reform Association (ATRA) place Delaware – which has always had a business-friendly reputation – on its “watch list” in the 2005 and 2006 editions of its “Judicial Hellholes” report?

One thing’s for sure – the trial bar’s legal talent isn’t circling Delaware because they love the state’s beautiful beaches.

The problem arises from a series of Delaware Supreme Court decisions that gave trial lawyers the green light to file hundreds of toxic tort cases. Out-of-state law firms are now busy turning Delaware into Ground Zero of the asbestos-litigation morass, but the overwhelming majority of plaintiffs have no connection to Delaware whatsoever. Approximately 80% of the plaintiffs in asbestos cases have never set foot in Delaware.

The numbers are startling. According to ATRA, in the year following May 2004 only 61 asbestos claims were filed in Delaware. But over the next 16 months, 272 asbestos cases were filed – a 345% increase. That number has now increased to 525 asbestos cases filed since May 1, 2005.

Due to this flood of lawsuits, the Delaware Superior Court has scheduled trials in as many as 85 cases to begin on a single day. The Court has also ordered defendants to try multiple cases in multiple courtrooms at the same time.

There are other warning signs. Delaware allows joint and several liability and has no limits on punitive damages. And newly-elected Attorney General Beau Biden is a former plaintiff’s asbestos lawyer.

Other states – such as Texas and Mississippi – have countered the flood of out-of-state lawsuits by enacting venue reforms – a measure that could help prevent the trial bar from turning Delaware into a “judicial hellhole.”

Steve Hantler

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“Obama Makes Inroads Into Edwards’ Trial Lawyer Base”

For better or worse, John Edwards isn’t as special this time around:

For years Edwards has relied on the support of his fellow trial lawyers’ deep pockets to help get him elected — first to the Senate and then three years ago, when he made a run at the White House and then became running mate to Sen. John Kerry, D-Mass., who won the Democratic nomination. But as Edwards mounts his second presidential bid, he has struggled to attract plaintiffs lawyers beyond his stable of longtime donors, just as other Democratic candidates, such as Sens. Hillary Clinton from New York, Barack Obama from Illinois, and Joseph Biden Jr. from Delaware, have been actively wooing the plaintiffs bar. …

Many of the trial lawyers who supported the Kerry-Edwards ticket in 2004 have chosen to throw their lot in with Obama or are keeping their options open by donating to multiple candidates. The fracturing of the trial-lawyer constituency could have dramatic effects on the total dollars Edwards will be able to raise. …

Also cited as hurting Edwards with some past givers: the steps he took to moderate his image on litigation reform during the 2004 campaign, including his endorsement of pre-screening of merit in medical malpractice cases. Even Sen. Biden is making inroads:

Biden has long been seen as a supporter of the trial lawyer community on the Senate Judiciary Committee, where he has opposed legal-liability proposals and bills that would limit claims against health-care providers. No candidate is more visibly tied to the trial bar than Edwards. But Clinton and Biden, who also headlined a national trial lawyer convention in Miami Beach in February, have both said they’re opposed to caps on punitive damage awards.

Despite Obama’s silence on the issues trial lawyers care about, those who support him say they are confident he will back trial lawyers when the time comes.

(Anna Palmer, Legal Times, Apr. 9).

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Search engines are not common carriers

The First Amendment and Section 230 of the Communications Decency Act protect search engines’ decisions about what content to carry; Google can’t be forced to run ads or “honestly” rank websites, according to a federal judge in Delaware. Eric Goldman has the details.

Goldman notes that this particular case, filed by a pro se litigant, was clearly frivolous, but the decision is still useful for Google, which, as the dominant player in the search engine game, faces suits elsewhere based on similar theories.

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“File when ready”

It’s best to choose your words carefully when writing about this aspiring Delaware politician. “Lawsuits have been a big part of Korn’s life for the better part of two decades….’I would sue anybody again if I had to, if something were not right or accurate,’ Korn said. ‘I will go to the ends of what it takes if I feel I’ve been slandered, libeled or maligned in any way.'” (Celia Cohen, Delaware Grapevine, Jun. 26).

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Delaware court hails non-aromatic fee request

Delaware Chancery Court Judge Vice Chancellor Leo Strine, a prominent figure in corporate law, recently was asked to rule on a petition for fees for lawyers who represented a minority shareholder in litigation involving fallen mogul Conrad Black’s Hollinger International. Per the WSJ:

“I feel queasy a lot of the times when I examine applications for attorneys’ fees,” the judge told lawyers in court. “But I have to get right in there, take my Maalox, ignore the vile smell.”

All of which was by way of paying a left-handed compliment to the fee petition before him, which by contrast in Strine’s view had the earmarks of legitimacy. (It was filed by minority shareholder Tweedy Browne Co. and its lawyers, Kirby McInerney & Squire and Bouchard, Margules & Friedlander).

The current case, he added, is different. It “isn’t even close to having an aroma that makes me queasy.”

(Elena Cherney, “When Investors Help Find Fraud, What’s It Worth?”, Wall Street Journal, Mar. 17)(sub).

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“Eastern Law Firms Roll the Dice on Indian Law”

Tribal land claims are getting to be big business (see Jan. 12, etc.), and prominent law firms including Philadelphia’s Cozen O’Connor and Roseland, N.J.’s Lowenstein Sandler are among those lining up to assist Indian tribes (and their wealthy non-Indian backers) in filing lawsuits against hapless landowners as leverage for casino schemes. And here’s a choice quote from Robert Odawi Porter, director of the Syracuse University Center for Indigenous Law, Governance and Citizenship:

In cases where land-claim suits are funded by outsiders, the tribe is usually a passive participant in the litigation, says Porter. Such arrangements are permitted under the Indian Gaming Regulatory Act of 1988, which gives states authority to negotiate revenue-sharing agreements with tribal casinos.

“Everything is dictated by the developer — I call it the ‘sit back and take a check approach,'” Porter says.

(Charles Toutant, New Jersey Law Journal/Law.com, Mar. 20).

Also, updates: in late 2004 a federal court granted defendants’ motion to dismiss the Delaware Indians’ claim to land in the Allentown, Pa. area (Northampton County) including Binney & Smith’s Crayola factory (PDF, at Indianz.com)(see Feb. 9, 2004). And, alas, none other than the Bush Justice Department has weighed in with a petition for certiorari urging the Supreme Court to overturn a Second Circuit panel’s landmark ruling (see Jul. 29, 2005) which threw out the Cayugas’ lawsuit as not pressed in a timely enough way, a ruling which (if it stands) would cast doubt on the validity of of most of the new wave of Indian land litigation.

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Licensed Handgun Carry Wins in Kansas

Over-riding the Governor’s veto, the Kansas legislature has enacted a “Shall Issue” law for issuing licenses to carry a concealed handgun for lawful protection. Before, Kansas was one of only four states without any provision for issuing concealed handgun licenses. One of the remaining three states, Nebraska, appears poised to enact a similar law, which the Governor has said he will sign.
Kansas is now among the 39 states which have a fair procedure to allow citizens to carry handguns for protection. Along with the three states (Nebraska, Wisconsin, IIllinois) that currently do not issue permits, eight other states issue permits according to the whim of a local official (Hawaii, California, Maryland, New Jersey, New York, Massachusetts, Rhode Island, and Delaware). A Shall Issue bill is moving through the legislature in Delaware. Rhode Island already has a Shall Issue law, although the law is nullified by administrative practice.
In Wisconsin, a Shall Iissue bill has been vetoed twice, with the vetos sustained by only one or two votes. In every state where Shall Issue proponents have gotten as close as they have in Wisconsin, the state has always eventually enacted a Shall Issue law–although sometimes the process can take a while.
So of the eleven remaining states that are not Shall Issue, two of them (Nebraska and Wisconsin) are nearly certain to change at some point in the future, and there is reasonable possiblity of change in Delaware. All that Rhode Island needs to change is the election of Attorney General who will not interfere with the state law that local goverments must issue carry permits to qualified applicants.
So the number of Shall Issue states could be 43 in the not too distant future. In the seven hold-out states, Shall Issue has passed one body of the legislature at least once in the three largest states: California, New York, and Illinois.
Every year, more and more Shall Issue states create “reciprocity” with each other, so that a person with a permit from her home state can carry her firearm lawfully in a other state while visiting. Currently, a carry permit issued by one state is valid in over half of all states. (See Packing.org for details.)
As the combined total of “no issue” or “whimsical issue” states declines into the single digits, and reciprocity continues to spread, it seems hard to deny that America is concluding that Shall Issue is sensible gun control — one that regulates firearms carrying but does not infringe the right to self-defense.
For more on the Kansas law, see this excellent article in the Wichita Eagle.

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