Matthew Heller at On Point News fills in considerable background regarding the “Crunchberries” and “Froot Loops” lawsuits covered earlier in this space.
Posts Tagged ‘fraud’
Disappointed consumer: Cap’n Crunch “Crunchberries” not real fruit
A judge has tossed a California woman’s would-be class action lawsuit, however, finding that a reasonable consumer would not expect the brightly colored balls to be or contain actual berries or fruit. Per Kevin Underhill, Lowering the Bar: “Plaintiff did not explain why she could not reasonably have figured this out at any point during the four years she alleged she bought Cap’n Crunch with Crunchberries in reliance on defendant’s fraud.” More: California Civil Justice (same law firm sued over Froot Loops); update from Lowering the Bar.
And: Hal Hewell of Hewell Law Firm, which filed the suit, writes in comments that neither the plaintiff
nor her first amended complaint stated that she believed “crunchberries” was a real fruit (check it out on Pacer, along with our motion for reconsideration to get the full story). Your contention that she did is simply false and has exposed her to widespread (and unwarranted) ridicule.
Don’t let the facts get in the way of a good story…. You owe her an apology.
My response: Okay, let’s try to phrase things in a way highly favorable to Hewell and his client. The suit sought recovery against the cereal maker on the grounds a reasonable consumer would understand “Crunchberries” to contain actual fruit, whereas they apparently in fact contain only a little strawberry juice concentrate. (I’ve slightly expanded the first sentence above accordingly). In reaching his conclusion that the only course consistent with “personal responsibility and common sense” was to dismiss the case, the judge found it significant that it is common knowledge that no fruit known as a “crunchberry” grows wild or occurs naturally in any part of the world. Any reasonable consumer would therefore understand that the brightly colored balls must be a composite of ingredients not including that fictional berry, and (the judge found) could not reasonably claim to have been deceived by the monicker “CrunchBerries” into expecting something with more actual fruit content. Perhaps Mr. Hewell’s motion for reconsideration (PDF) will persuade the judge otherwise, and if so, I look forward to reporting that. (Update Jun. 15: judge denies reconsideration).
“Witnesses feared being killed if they testified about the fraud”
Explosive testimony in a Los Angeles courtroom after a judge begins digging into indications of possible fraud in lawsuits by Nicaraguans against Dole Food alleging toxic harms from banana pesticides (L.A. Times via Cal Biz Lit, WSJ law blog; earlier at Overlawyered). The fraud went on for decades, a Dole lawyer charged, and included recruiting and coaching poor Nicaraguan men to pose as having been rendered sterile, even if they had children and had never worked on banana plantations. A California jury had awarded millions of dollars in one of a string of cases that drew controversy over the competence of stateside courts in evaluating claims over injuries that took place in foreign countries. According to the L.A. Times, one lawyer representing the plaintiff’s side in the litigation expressed regret over the actions of a co-counsel and said “all parties were in a nightmare situation.” Bloomberg:
Most of the employment records of Dole workers in Nicaragua were destroyed in the aftermath of the Sandinista revolution, opening the door to the fraudulent claims, Edelman said at the hearing.
Nicaraguan witnesses for Dole whose faces were hidden and whose voices were distorted to prevent identification, said in videotaped statements shown in court that they feared retribution if it became known they provided information to company investigators.
“They even would set fire to my house, even with my family in there,” one witness said. “These people don’t care.”
The cases of thousands more plaintiffs from poor banana-growing countries are waiting for trial in Los Angeles; Dow Chemical is also a defendant, because it manufactured the pesticide. [Update Apr. 24: judge tosses two consolidated lawsuits against Dole]
For another dramatic episode in which poor Latin American plaintiffs have surfaced in U.S. courts with hard-to-disprove claims, see the case of purportedly illegitimate Guatemalan children left fatherless by international air crashes (Nov. 29, 2000).
The Marc Dreier scam
In a year of frauds, Roger Parloff at Fortune finds that for “brazen theatricality” the New York lawyer’s may qualify as the gaudiest of all. More: Metafilter.
Live by the swindle…
Call it karma? Among Bernard Madoff’s victims, Eric Turkewitz has discovered*, is none other than the infamous Morris Eisen, who made a ton of money in personal injury practice by faking evidence for his cases (highlights: taking a pickax to a pothole before photographing it, using a shrunken replica of a ruler so as to magnify the seeming size of defects in photographs, and calling the same “witness” for two different accidents, who happened to be serving time upstate for forgery at the time of both). Eisen was disbarred, served time, and paid some money, but “clearly” was left with “substantial assets”, notes Turkewitz, including a residence in Fisher Island, Florida. (Wikipedia: “According to the U.S. Census Bureau, Fisher Island had the highest per capita income of any place in the United States in 2000.”) I wrote about the Eisen scandal in my first book, The Litigation Explosion, the relevant PDF chapter of which is available at Point of Law; also see this City Journal piece.
*OK, “learned from one of his readers”; see comments.
Markopolos’s case against Madoff
Ray Pellecchia at the NYSE blog Exchanges (via Salmon) writes that had Harry Markopolos sounded the alarm about Bernard Madoff by putting his charges up on a blog, instead of taking them to the SEC and selected investors, there’s a good chance the Madoff scheme would have come tumbling down in short order — except, of course, for the not-unreasonable fear that Madoff might have sued.
P.S.: Unrelatedly, this AP report quotes Markopolos as testifying to the Hill panel yesterday that “the SEC is overlawyered”. (Most of the news accounts, however, insert a hyphen in the quote: ‘over-lawyered'”.)
Names in the news
Ultralitigious inmate Jonathan Lee Riches has filed a motion attempting to insert himself into the Bernard Madoff legal quagmire, but a federal court has rebuffed his efforts. That may make Riches the only person in the country not to have a legitimate legal grievance against Madoff [NYT DealBook via Christopher Fountain]
Lawyer: Citibank should have protected me from advance-check scam
“I’m a capital ‘D’ Dumbass,” Houston lawyer Richard T. Howell Jr. said about the incident. His law firm is however suing on the grounds that the bank should have better explained the check-clearing process. The scam artist posed as a businessman in Japan who wanted to become a client of Howell’s firm. [Texas Lawyer, TechDirt]
Update March 2010: lawsuit still pending [KHOU h/t reader VMS]
“A few sentimental personal items”
Those were the words of lawyers for Bernard Madoff about his sending through the mail to relatives and intimates — thus potentially spiriting away from the victims of his fraud — what turned out an estimated $1 million in jewelry and gem-encrusted watches. Eartha Kitt should have lived just a few more weeks to see it:
In retrospect, you do wonder whether she may have been getting at something with that mention of an “old-fashioned fence”.
(& welcome Andrew Sullivan readers).
Daily Roundup 2008-12-29
Soon, baby soon. Walter Olson’s new year’s resolution is to return to blogging at Overlawyered.
- International adoption is always a risky business, fraught with uncertainty: now aspriring parents, burned by changes in Guatemalan law, are suing adoption agencies alleging civil RICO liability;
- Some tasks can’t be delegated. New Jersey attorney sanctioned for sending paralegal to domestic court, where she appeared as “counsel” and advocated on behalf of the client;
- Some tasks can’t be delegated, part II: Las Vegas personal injury lawyer Glen “The Heavy Hitter” Lerner complains that he can’t understand rules prohibiting Nevada lawyers from allowing attorneys not licensed in Nevada to sign up Nevada clients, prepare demands, negotiate claims, and serve as the clients’ sole contact within the firm. The Nevada Supreme Court disciplines Lerner anyway, figuring that after multiple past reprimands Lerner could take a hint;
- Some tasks shouldn’t be delegated: Arkansas authorities investigating attorney Terry Lynn Smith, who “invested” a client’s substantial personal injury settlement, then admitted that “all of her money was gone.”
- And then some tasks should definitely be delegated: Top Obama aides are “lawyering up” in response to the Blagojevich probe;
- The fall of Dickie Scruggs has been named as the top story of the year in Mississippi, by the Associated Press;
- God told me to beat you up. Texas church claims first amendment immunity from tort liability arising from an exorcism gone horribly awry (via WSJ Law Blog);
- Rise and Fall of the Great Powers: former Republican presidential candidate Ron Paul believes that the recessed economy is a blessing in disguise. Meanwhile, Paul continues to accept the franking privilege and his salary from taxpayers.
What are you resolving to accomplish in the new year?