- Update to Jan. 5 post: “Gifties” lose t-shirt battle. Amber Taylor is not impressed by Posner’s opinion, though. [Above the Law; Taylor]
- Update to our earlier odometer class action; turns out SAE gives odometers a 4% leeway, so Honda is paying millions for following industry standard. Nissan is still fighting the suit, and other manufacturers will likely be hit. [Gannett/Asbury Park Press]
- $12M for suicide despite hospital workers putting themselves in danger in unsuccessful attempt to prevent death [Birmingham News]
- Electric slide inventor sues YouTubers who perform dance wrong. [CNet (h/t LN)]
- Now the NFL wants to trademark “The Big Game.” [Schwimmer; earlier on Overlawyered]
- NAM blog on punitive damages, likes what I have to say. [NAM blog]
- “Kiss life sciences goodbye if lawsuit bills are passed.” [Detroit News via NAM blog; Manhattan Institute]
- “When Flirting at Work Is Flirting With Trouble” [New York Times]
- AG Lockyer’s office hid millions of dollars of giveaways to trial lawyer donors. [Point of Law roundup of links]
- Maybe it’s time to stop calling myself a fifth-string talking head and recognize that I’m a fourth-string talking head. [Financial Times; Forbes.com; Madison County Record]
Posts Tagged ‘Detroit’
Rapper asks $900 million for Canadian border hassles
Jerome Almon, who owns the Detroit rap music label Murdercap, has sued Canadian officials demanding $900,000,000 over alleged hassles in his attempts to cross the border. Almon, whose musical oeuvre includes works entitled On Ya Neez Bitch and How Stella Got My Backhand, says that although his police record contains arrests only and not convictions, Canadian border control personnel have delayed his entry to the country on dozens of occasions, sometimes for hours. He is representing himself in the suit. (“Detroit rapper sues over alleged Canadian border hassles”, CBC, Jan. 17; Paul Egan, “Detroit record label head alleges harassment against border officials”, Detroit News, Jan. 18; P2Pnet).
December 14 roundup
- Ford wins an Explorer rollover lawsuit brought by family of unseatbelted accident victim, but press coverage is skimpy. [Detroit News]
- Milberg Weiss’s claims for $12 million in fees viewed skeptically, cut in half. [Lattman; WSJ]
- Dog food prank plaintiff Tennie Pierce is “the O.J. of the Fire Department.” Contrary to what one may think, this is apparently meant as a compliment, suggesting a racial divide that can’t be entirely attributable to whites. [LA Times]
- SDNY Clinton appointee Judge Scheindlin thinks she’s smarter than Judge Easterbrook, throws pension law into mess again. See POL Nov. 12 and Aug. 8 for background. [Business Insurance; Cooper v. IBM]
- Nifong gets around to releasing DNA results that appear to exonerate indicted Duke lacrosse players. Earlier: Oct. 12, etc. [AP/ABC News]
- Judge won’t censor Borat DVD, but frat-boy lawsuit goes forward. [Reuters]
- Criminal speeds away from DC police, hits innocent motorist, DC taxpayers liable for $1M. [WaPo]
- Similarly: negligent driver veers across three lanes of highway traffic into oncoming vehicle, killing 18-year old; taxpayers liable for $2M because SUV was able to smash through the median. [AP/King County Journal]
- Today’s Ninth Circuit Follies edition: lawless reopening of final sentences. [Kerr @ Volokh; Bashman; Carrington v. US; Lat]
- Robert Ramsey files two more lawsuits claiming simultaneous asbestosis and silicosis in Madison County against several dozen defendants. [Madison County Record]
- UK: 100-pound fine for misfiling trash. [Market Center Blog via Overcriminalized]
- Inhofe’s take on global warming. [Senate]
- Trial lawyer puts money where his mouth is. Check back in ten years to see whether it’s lawyers or insurers who are really at fault for medmal insurance crisis. [Point of Law]
- I blame the fact I joined Friendster for this. [PrawfsBlawg]
Calif. AG sues automakers for global warming
In a first-of-its-kind suit, California Attorney General Bill Lockyer is demanding damages from automakers for the impact of global warming. “Because, after all, the California attorney general is the one who should be deciding national policy on the global warming controversy,” notes Ted at Point of Law. Even accepting Lockyer’s contentions at face value, autos sold in California contribute less than 1 percent of global greenhouse-gas emissions (David Shepherdson, “Calif. sues over auto emissions”, Detroit News, Sept. 21).
Is Lockyer making it up as he goes along with the new suit, legal-theory-wise? It would seem so. His theory that autos constitute a nuisance have never been enacted as law even by the California legislature, yet he’s asserting it retroactively to punish past behavior by Detroit and Japan worldwide. His views clash strongly with those held by elected officials in many other states, which is one reason our system gives the U.S. Congress, rather than the California attorney general, the right to set national environmental policy. His notion that internal combustion engines might not be unlawful in themselves, but constitute nuisance in this case because manufacturers could be doing more to minimize their impact, makes as much sense (which is to say, no sense whatever) as if he sued California’s own drivers on the grounds that they contribute to the problem by taking unnecessary trips.
Prof. Bainbridge has quite a bit more to say about the abuse of power involved in using this type of litigation as an end run around the political branches of government which are the proper locus of authority on policy matters of this sort (Sept. 21).
Reader Earl Wertheimer writes: “I would rather see the automakers simply agree to stop selling cars in California. Let them walk & bicycle for a while. This would promote better fitness and also reduce future obesity lawsuits.”
Reader Loren Siebert writes: “I wonder if the discovery process will include how many motor vehicles the state of CA has purchased and operates.” And Nick Fenton at DTT Buzz has suggestions for more litigation (Sept. 20).
More: Lockyer “is unlikely to win” the suit, according to legal experts interviewed, especially since “a similar case brought by California and other states against utilities companies in 2004 failed in the courts”. “Even with a small chance of success, environmental advocates say the new legal action is useful and necessary”, one reason being “to pressure carmakers”. “I hope that automakers realise this will be the first of a series of lawsuits,” says Jim Marston of Environmental Defense. (Roxanne Khamsi, “California faces uphill battle on car emissions”, New Scientist, Sept. 22). EconBrowser (Sept. 24):
…the key question in my mind is not the extent to which reducing greenhouse emissions from vehicles may be a good idea, but rather whether, under previously existing U.S. law, it has been lawful to manufacture cars that emit carbon dioxide. I submit that it has, and if a judge somewhere now creatively determines that a company can be punished for such perfectly lawful behavior, then I fear that America is no longer a nation ruled by law, but rather ruled at the whim of whatever those currently wielding power happen to think might be a good idea.
Yet more: Brian Doherty, Reason “Hit and Run”, Sept. 21.
Mich. high court reinstates Geoffrey Fieger reprimand
By a 4-3 margin, the Supreme Court of Michigan has ruled that the First Amendment does not protect “the interests of an officer of the court in uttering vulgar epithets toward the court in a pending case” (decision in PDF format, p. 19) and has therefore sent back a case involving the disciplining of Geoffrey Fieger with instructions to reinstate the reprimand. After seeing a $15 million medical malpractice verdict overturned, Michigan’s most prominent plaintiff’s lawyer had described the appellate judges who ruled against him as variously “jackasses”, “Hitler”, “Goebbels” and “Eva Braun”, said that he was declaring war on them, said that they could kiss a portion of his anatomy not generally revealed in public, and repeatedly proposed that various objects be employed to assault a similar location on their persons.
In dissent, Justice Michael Cavanagh wrote that it matters not whether Fieger violated “a disciplinary rule he swore to obey when admitted to the practice of law”. The point is instead that “the judiciary, upon which is conferred unique powers, significant influence and considerable insulation, must not be so shielded that the public is denied its right to temper this institution”. Which raises at least one question: in what sense should Fieger be counted as a member of the “public” for these purposes? As a lawyer deputized with power to initiate compulsory process to drag unwilling parties into the Michigan courts, wouldn’t it be fair to say that “unique powers, significant influence and considerable insulation” have been conferred on him, too, in exchange for which he might reasonably be asked to submit to professional rules not applicable to the general public to guard against the abuse of these unique powers? (Dawson Bell, “Fieger reprimanded for attacks on judges”, Detroit Free Press, Jul. 31; Charlie Cain, “High court reinstates Fieger reprimand for comments”, Detroit News, Aug. 1).
We covered the controversy at hand (and its underlying lawsuit) Sept. 14, 1999, May 3, 2001, and Apr. 3, 2006. Other coverage of Fieger’s antics can be found here.
Great moments in lawyer discipline
Way back in 2000, a Texas trial judge dismissed a $2 billion products liability suit against DaimlerChrysler and imposed sanctions of $865,000 on San Antonio attorney Robert Kugle and two associates at his firm, Andrew Toscano and Robert “Trey” Wilson III, also referring the matter to the State Bar of Texas for possible disciplinary action. As we summarized the episode in our post of Jul. 20, 2003, the judge found “that the steering decoupler of the sued-over Dodge Neon had been altered to simulate mechanical failure and that Mexican policemen had been asked to change their accounts of the accident giving rise to the suit. An appeals court called the firm’s conduct ‘an egregious example of the worst kind of abuse of the judicial system.'” Now, six years later, the leisurely process of state bar discipline still hasn’t run its course in Toscano’s case, Wilson drew a two-year probated suspension, and both men are practicing law in San Antonio. The American Tort Reform Association doesn’t think that’s a suitable outcome. (Mary Alice Robbins, “‘Texas Justice Massacre’ Billboard Targets Attorney’s Alleged Misconduct”, Texas Lawyer, Jul. 5; David Shepardson, “Chrysler takes fight to lawyers”, Detroit News, Mar. 21).
Suing over Israel-Lebanon war
In Detroit, a group called the American-Arab Anti-Discrimination Committee has filed a suit on behalf of about 30 people charging that “the federal government has failed to protect Americans from the fighting in Lebanon. … The committee is asking the court to order Washington to request a cease-fire between Israel and Lebanon.” (“Arab Group To Sue U.S. Government”, ClickOnDetroit.com, Jul. 24). Three Israeli lawyers are planning a lawsuit in U.S. courts demanding compensation from the government of Lebanon for war damage to property and businesses in northern Israel (Tani Goldstein, “Compensation claim against Lebanese gov’t in works”, YNetNews.com, Jul. 20). And according to news agencies, the government of Lebanon itself intends to demand billions of dollars from the government of Israel to compensate for the damage done by its bombardment. Curiously nothing is said in coverage of this last story about resorting to the U.S. courts — you mean there’s some other place to take a grievance? (“Lebanon: We’ll sue Israel for damages”, YNetNews.com, Jul. 23).
The High Cost of Petitioning
A radical pro-affirmative action group, By Any Means Necessary (BAMN), joined by Detroit’s mayor, Kwame Kilpatrick, have filed a Voting Rights Act lawsuit against the sponsors of the Michigan Civil Rights Initiative (MCRI) in federal court. MCRI is a ballot initiative would ban racial and gender set-asides and preferences in state contracting, employment, and public education. It is modeled on an earlier measure passed by California voters and upheld by the federal courts. BAMN argues that black voters who signed the petition to put MCRI on the ballot did so only because they did not realize it would restrict affirmative action, because they were confused by MCRI’s title, text, or misleading statements by MCRI signature gatherers. That, it claims, amounts to fraud.
BAMN’s lawsuit is factually groundless. Its fraud claims were considered and rejected by the Michigan Court of Appeals, which ordered MCRI placed on the ballot. MCRI’s text, which was presented to all petition signers, expressly prohibits racial preferences, eliminating any confusion about its effect on affirmative action. Moreover, the Voting Rights Act generally applies to the acts of state election officials, not private parties, and cases such as Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1988), hold that the Voting Rights Act does not apply to initiative petitions.
BAMN’s lawsuit appears to be part of a pattern of intimidation. One BAMN official is accused of threatening MCRI executive director Jennifer Gratz with a knife.
BAMN’s suit is another example of how civil rights lawsuits are increasingly misused as political weapons or tools of censorship. For example, in Affordable Housing Development Corporation v. Fresno, 433 F.3d 1182 (9th Cir. 2006), a developer used the Fair Housing Act to sue citizens who publicly opposed a housing development, arguing that their petitioning of city officials resulted in the city not funding the project. That, the developer argued, had an unlawful “disparate impact” on minority groups destined to live in the development. The trial court initially accepted this argument, holding that the Fair Housing Act overrode the citizens’ right of free speech. Years later, the Ninth Circuit Court of Appeals rejected the lawsuit, holding that the citizens’ opposition to the project was protected by the First Amendment and the Noerr-Pennington doctrine. (The Noerr-Pennington doctrine protects citizens from antitrust and civil rights claims based on their speech and petitioning activity). It ordered the developer to pay the citizens’ crippling legal bills, which had risen to hundreds of thousands of dollars.
BAMN’s lawsuit would raise First Amendment problems even if it were true that voters misunderstood MCRI’s purpose, and even if MCRI’s sponsors knew of any erroneous statements about MCRI by signature gatherers. The courts have generally held that the First Amendment bars liability for speech in ballot initiatives and other political campaigns, even if the speech is knowingly false.
Hamby v. Daimler/Chrysler
Roberto Martinez was washing Lori Hamby’s used 1991 Dodge Caravan while Hamby’s two-year-old daughter, Mary Madison Hamby Garcia, was playing inside of the vehicle by herself. The van was parked on top of a long driveway and the emergency brakes off. The key in the ignition in the “on” position so he could play the radio; the doors were open so he could vacuum the vehicle. Martinez was retrieving Windex fifteen feet away when Hamby apparently dislodged the automatic transmission from park. With the ignition key-lock the disabled, the vehicle hurtled down the driveway, killing Hamby when it struck a tree, jarring her from the vehicle, and pinning her beneath the tire, where she died of asphyxiation compression.
This is, an Atlanta jury held, 51% Chrysler’s fault. The theory on which the jury ruled in favor of the plaintiff is on the theory that Chrysler failed to adequately warn of the risk of leaving children unattended in vehicles with the key in the ignition—even though Hamby’s mother, Lori Hamby, only “glanced” through the owner’s manual, which did warn against it. Madison Hamby, who was dead on the scene, was awarded $2.25 million for pain and suffering on top of the $2.25 million for wrongful death. The jury ruled for Chrysler on the funeral expenses, however. Chrysler is appealing. (Greg Land, “DaimlerChrysler to Appeal $3.4M Awarded in Minivan Accident”, Fulton County Daily Report, Mar. 6 (via Prince); DeeAnn Durbin, “DaimlerChrysler ordered to pay family in minivan lawsuit”, AP/Detroit News, Mar. 3; Hamby v. DaimlerChrysler, No. 1:03CV:0937-CAP (N.D. Ga.)).
Burden of Proof
In a nationally-publicized case, an argument over a Detroit pool game resulted in one of the players pulling a gun and shooting the other in the head; Keith Bender Jr. died of his injuries a week later. Unfortunately for the shooter, Bender was a cousin of the bar’s bouncer, Mario Etheridge, who pulled his own gun, and shot the shooter three times, allegedly in an attempt to protect his cousin’s life. The shooter, rap star “Proof,” known best for being the friend of a more famous rap star, litigation-victim Eminem, was dead on arrival at the hospital. Prosecutors have not decided whether to charge Etheridge with murder, since Michigan law allows deadly force in the defense of another. But they have charged Etheridge with a felony count of “discharging a firearm inside a building.” (Josh Grossberg, “Alleged Proof Victim Dies”, E!Online, Apr. 18).