Are you really surprised? The D.C. Court of Appeals’ average time for appeal is 575 days, implying a wait until 2009 for a decision, but one would hope a simple case like this could be disposed of faster.
Posts Tagged ‘loser pays’
Government pays for prosecutions
In two cases in the last few months, federal judges have ordered the government to pay the defense costs of failed health care fraud prosecutions.
In Nevada, Judge Robert C. Jones awarded about $300,000, about 30% of the defense costs, to an Idaho doctor, finding that the losing case was frivolous because, the American Medical News reports, the government’s experts contradicted other experts in the case. (There is presumably more to the story than this, as the same is true in nearly every criminal trial involving expert testimony.) Half the claims were dismissed before trial, and the others were adjudged not guilty by a jury. The government has appealed. (Amy Lynn Sorrel, “Judge rules criminal fraud case against Idaho doctor is frivolous”, Aug. 20) (h/t P.N.).
And, in Texas, Judge Lynn Hughes awarded $391,000 to an Oklahoma attorney to cover part of his defense costs after being wrongly prosecuted on 54 counts of health insurance fraud. The court criticized prosecutors for misleading the grand jury and a “reckless disregard for the truth.” Again, the government will appeal. (AP/Tulsa World, “U.S. ordered to pay OKC attorney”, Aug. 13).
Serial spam litigation backfires on plaintiff
I think it’s fair to say that serial spam litigation is less lucrative than serial ADA litigation. Walter discussed the setback suffered by plaintiff James Gordon (June 2007), in which a federal court ruled that Gordon, who makes his entire living using anti-spam laws to sue emailers, had no legitimate claims because he had not suffered any damages (and indeed, could not, since his only “business” was filing lawsuits for receiving spam).
The court was clearly disgusted by Gordon and his attempt to manipulate the CAN-SPAM act to extort millions of dollars from an emailer, because not only did it rule against him, but this week it awarded attorneys’ fees to his victim. Now, regular readers of Overlawyered know that one of my pet peeves is that even when courts order sanctions, they often award mere token amounts which are inadequate to deter plaintiffs or reimburse defendants for their troubles. That wasn’t the case here; the court awarded $110,440 in fees and costs to the victorious defendants. (This was actually significantly less than the defendants had requested — half a million dollars — but the court found that this was grossly inflated and not substantiated by the defense counsel’s own billing records. Still, $110,000 is nothing to sneeze at.)
So this case provides lessons for both sides about being greedy:
- If you’re going to try to become a professional plaintiff, try to suffer actual damages — if possible, physical damages — rather than demanding millions of dollars for receiving emails. If you insist on suing without having been injured, at least try to be a sympathetic plaintiff in a wheelchair who can’t use public restrooms, rather than being a guy who sits around his living room in his pajamas looking at spam.
- If you’re up against an unsympathetic professional plaintiff, don’t squander the court’s goodwill by demanding far more in legal fees than you’re entitled to. And if you’re going to pad your fee request to the court, at least make sure that the bills you submit to substantiate your demands actually match the numbers you’ve told the court. Judges don’t like it when you claim that you spent 2,000 hours and your own records show that you’ve only spent 1,500 hours. The judge was so annoyed here that after he re-calculated the legitimate bills, he determined that they were grossly overinflated and slashed them by an additional 70%.
Judge Pearson update
(AM post bumped for PM update.)
A judicial panel is still deciding whether the Great American Pants-Suit plaintiff will keep his job as an administrative judge. A delayed decision is expected early next week.
Update to the update: Marc Fisher is reporting that the decision will be to start the bureaucratic process of firing Pearson. Amazingly, the chief ALJ recommended reappointing Pearson&mdash:until Pearson showed his typical good judgment by blasting the chief ALJ in an internal email as “evil,” causing his target to change his mind. Pearson will be entitled to a hearing (and who knows how many rounds of appeals) before he is officially fired; since April, he has been in a fully-paid no-work position as an “attorney-advisor.”
The indefatigable Judge Roy Pearson
…has requested reconsideration of the decision against him, and has filed a delusional brief in support. Rest assured his damages claims are more reasonable than before: he is now seeking only $35 million in damages.
The Chamber of Commerce fundraiser for the Chungs’ defense fund to pay $83,000 in attorneys’ fees defending against this suit is July 24.
Pearson’s pants appeal
Judge to lawyers: “I want this plaintiff to get money.”
“I’m not going to look at the evidence submitted to me. I want this plaintiff to get money. Tell each of your clients to pay up and make a contribution if they want to get out of this lawsuit.”—unnamed Buffalo Supreme Court judge, according to Brendan P. Cunningham op-ed in the June 22 Buffalo News.
Sebok on the Pearson pants suit
Anthony Sebok’s Findlaw column on the Pearson pants suit cites Overlawyered and repeats two points regular readers of Overlawyered and Point of Law have seen before:
- Meritless cases often settle for nuisance value, thus making them profitable to bring;
- Rule 11, as currently constituted, “has proven to be a very toothless weapon against abusive plaintiffs” and “does not effectively protect defendants from frivolous, or even, in some cases, fraudulent suits.”
Yet Sebok concludes that there is no epidemic of fraudulent litigation. I suppose it depends on one’s definition of “epidemic” and “fraudulent”; as we’ve noted before, Bill Lerach successfully swiped several billion dollars in nuisance settlements bringing meritless Enron litigation, helped by an erroneous district-court class certification. (Such erroneous class certifications helped make Madison County a judicial hellhole.) Sebok acknowledges that “lawyer-driven” cases where plaintiffs act as their own attorneys might merit loser-pays rules to deter meritless lawsuits that would be cheaper to settle than fight, but what makes most class-action litigation any less “lawyer-driven” such that they should be subject to different rules? (Cross-posted from Point of Law.)
By the way, Pearson has announced that he will appeal the trial court’s decision against him.
More twisted justifications for Pearson’s pants-suit
As I have repeatedly noted, the only reason the Chungs can be said to have been vindicated is that Judge Roy Pearson is more delusional and less sinister than the typical trial-lawyer extortionist. Had Judge Pearson accepted the $12,000 settlement the Chungs felt forced to offer between the expense of litigation and the small risk of Pearson mounting a case that successfully resulted in the giant fines imposed by DC consumer-fraud law, Pearson would have had a five-digit profit, and the Chungs would be out tens of thousands of dollars in litigation and settlement expense without any hope of recoupment. As Michael Greve demonstrates in “Harm-Less Lawsuits”, this is more than hypothetical: in consumer-fraud lawsuits alone, billions of dollars have been extracted from innocent defendants.
DMI’s Kia Franklin’s defense of her claim that the travesty of justice we have seen in Pearson shows that the system works? “Now, had Pearson collected the $12,000 settlement, we would have a whole new hypothetical and a whole new set of questions about the terms of the settlement (Would we have known the settlement amount? Would they have been able to publicize this? What were the lawyers’ strategies?) and the consequences thereof. So we can’t prematurely say that it would pay off for him.” Franklin goes on to deny that trial lawyer abuse even exists—a perhaps necessary position for her to take, given that the top of any list of abusers would include the indicted law firm Milberg Weiss, which funds her fellowship, in part from the successful extortion of billions of dollars using the same in terrorem tactics as Pearson.
As Peter Nordberg notes in the Overlawyered comments, “If [Pearson] is indeed representative, there should be thousands of cases just like it, and we may as well get to discussing those.” And indeed we should.
Breaking: Pearson loses pants suit
A judge has ruled in favor of the defendant Chung family in the mishandled-dry-cleaning case, and awarded them (relatively minor) court costs. Pearson is expected to appeal; the Chungs’ lawyer says the family expects to ask eventually that he also be made to pay their attorney fees, but D.C. law sets the bar for such a request relatively high, so it’s by no means something they can count on. Coverage: Washington Post and its Marc Fisher and OFF/beat blogs, more. Earlier: here and here.
More: And here’s word of a fundraiser for the Chungs’ legal defense, next month in D.C., sponsored by the Chamber and ATRA.