A state appeals court has approved a $1.1 billion settlement in the California consumer class action case against Microsoft, one of many parallel consumer antitrust class actions against the tech giant filed in states across the country. Plaintiffs lawyers at Townsend and Townsend and Crew and other firms are likely to share roughly $101 million in fees for representing software buyers in the state; class members were offered vouchers good on future purchases, which is not how the lawyers are taking their pay, of course. (Marie-Anne Hogarth, “Law Firms Closer to Raking In $101M in Fees in Microsoft Case”, The Recorder, Jan. 12). Oh well, at least it doesn’t sound as bad as the Minnesota settlement.
Posts Tagged ‘Minnesota’
Newspaper circulation scandal: lawyers get $40K, clients $15K
“The Minneapolis-based Star Tribune has agreed to pay $55,000 to end a lawsuit accusing it of cheating advertisers by inflating circulation numbers, according to a lawyer for two plaintiffs. The settlement agreement says that the two plaintiffs, Masterson Personnel and Alternative Staffing, will receive $15,000 in rebates from the newspaper for advertising in 2007. The bulk of the settlement, up to $40,000, goes to attorneys representing the plaintiffs.” (Tim Huber, “Star Tribune to pay $55,000 to settle circulation lawsuit”, St. Paul Pioneer Press, Dec. 20)(via Romenesko).
Vexatious litigant jailed for contempt
“Former Steamboat Springs [Colo.] resident Kay Sieverding, who has been in jail since September, was released Wednesday after she agreed to dismiss her numerous federal lawsuits.” U.S. District Judge Edward Nottingham had ordered Sieverding committed to jail for contempt of court after she continued to file lawsuits he described as “frivolous”, “abusive” and “gibberish”, including refilings of lawsuits she had already lost. “Sieverding has filed lawsuits against not only her former neighbors but also Steamboat Springs officials, the local newspaper, several individual lawyers and the entire Colorado and American Bar Associations, among others. She has filed the lawsuits in Colorado U.S. District Court, and also in federal courts in Illinois, Minnesota, Kansas and the District of Columbia.. …The judge said he will issue an additional order prohibiting Kay Sieverding from filing any more lawsuits, anywhere in the United States, without an attorney or his permission.” (Karen Abbott, “Pledge gets woman out of jail”, Rocky Mountain News, Jan. 5; Alicia Caldwell, “Woman Held Over Lawsuits”, Denver Post, Dec. 19)(via Jonathan B. Wilson, here and here).
Garrison Keillor
Compulsory chapel for Minn. lawyers, part III
Peter Swanson (Aug. 1) has some further updates on the longstanding controversy over mandatory “anti-bias” training for lawyers practicing in Minnesota, reported on previously in these columns Dec. 18, 2001 and Nov. 21, 2003.
The city doesn’t always pay
Reader Bob Woolley of St. Paul, Minn. calls our attention to Durdahl v. City of Hastings, a Minnesota Court of Appeals decision filed May 17, which he summarizes as follows:
The plaintiff was a passenger in a car driven at excessive speeds by a drunk driver. The driver lost control and skidded into a parked semi-truck. The driver and one passenger were killed; two passengers survived with injuries. The case is one of those passengers suing the *city* for having granted a construction company permission to park its truck on the side of the road at a construction site. The city had done this because the site was too muddy for the truck to enter, and the volume of material to be loaded and unloaded made it impractical for the truck to park farther away. Obviously, that makes it the city’s fault that this woman’s driver was drunk and trying to take a 30 mph curve at 83 mph, right?
Fortunately, the court of appeals affirmed the sensible decision of the trial court, which was to dismiss the case.
Menace of gasoline underpricing averted again
Great moments in economic regulation, cont’d: now it’s Maryland that’s cracking down on service stations for the sin of pricing gasoline too cheaply. (Justin Blum, “Maryland Hits Brakes on Fleeting Gasoline Price War”, Washington Post, May 6). For an example from Minnesota, see Jun. 5, 2004.
Legal hazards of rating air safety
From a Forbes article on safety problems in charter aviation:
Businesses pay [Joseph Moeggenberg’s] company, Aviation Research Group/U.S., or “Argus” in the trade, as much as $20,000 per month for full access to ratings reports on 848 charters, or $249 for a single report. Argus provides specifics about a flight, the jet’s history, the owner, whether the plane is double-booked from another charter, the pilot’s record and so on. It assigns a red, yellow or green light on safety (36% receive reds or yellows).
One charter outfit got a prescient “Does Not Qualify” rating from Argus: Aviation Charter of Eden Prairie, Minn., which flew U.S. Senator Paul Wellstone of Minnesota in a Beechcraft King Air A100 as he campaigned for reelection in October 2002. When a newspaper later reported that Aviation Charter got a bad rating, the company sued Argus for defamation but lost the case on summary judgment; the case is pending on appeal. The flight crashed at the Eveleth, Minn. airport in October 2002, killing all eight people aboard, including the senator, his wife and their adult daughter. Says Argus attorney Eric Heiberg of Minneapolis: “I can’t imagine we’re going to lose.”
(Seth Lubove, “Flight of Fear”, Forbes, May 9). An online summary of the case (Aug. 2004, courtesy Cousineau McGuire & Anderson; scroll to “Federal Courts — Defamation”) indicates that the court agreed that the rating contained inaccuracies which harmed Aviation Charter’s reputation, but found no proof that Argus had acted with malice or reckless disregard for the truth. Update Mar. 15, 2006: Eighth Circuit (in summer 2005) dismissed suit, ruling ratings subjective.
Ambulance chasing in St. Cloud, MN
In St. Cloud, Minnesota, a drunk started a fight with an employee of the Red Carpet Nightclub, and was on the losing end when a bouncer got involved; Justin Smiley eventually died from injuries sustained when his head hit the concrete. A tort suit in the making, but state ethical rules prohibit soliciting the decedent’s family directly. What to do if you’re an enterprising plaintiff’s lawyer hoping to comply with the letter of the rules? Post an ad in the paper! To wit, one asking “Have you or anyone you know been injured in a local bar?”
“To say that this ad was in poor taste would be akin to describing wearing a halter top to a funeral as being a a bit underdressed,” says a St. Cloud blogger, who reprints the offending ad. King Banian agrees, as do local newspaper readers.
More on District of Columbia v. Beretta, U.S.A.
We get mail:
You mention in your “District of Columbia v. Beretta, U.S.A.” post that other commentators, such as Mr. Healy and Mr. Levy, have argued that individual states, not the federal government, should be initiating legislation preventing lawsuits against gun manufacturers. The idea is that businesses can “withdraw from doing business in a state that has an oppressive tort regime.” Your counter-argument, however, is that the latter idea “doesn’t help gun manufacturers who don’t do business in the District of Columbia to begin with.”
But, in fact, can’t businesses withdraw from states to the point where these businesses no longer have the “minimum contacts” necessary for the state courts to assert personal jurisdiction over the businesses? Then the businesses would be avoiding the oppressive tort laws of those states, but the states would not have personal jurisdiction for any lawsuits against these businesses.
Chris Schmitthenner
It is correct that gun manufacturers will, in litigation, attempt to get themselves out of the case by arguing lack of personal jurisdiction via such precedents as Asahi Metal Industry Co. Ltd. v. Superior Court of California. However, there are two separate issues that prevent Asahi from providing complete relief.
First, plaintiffs will argue that there are minimum contacts that suffice for personal jurisdiction. They’ll argue that the manufacturers placed ads in magazines that would be seen by residents of the state. They’ll argue purposeful availment under the same factual theories that underlie the “nuisance” claims in the Weinstein litigation. Cf. GTE New Media Services v. BellSouth Corp. (D.C. 2000) (plaintiff entitled to discovery whether defendant, while not physically present in District, intended for District residents to do business with it and caused injury within District); LaMarca v. Pak-Mor Mfg. Co. (N.Y. 2000) (distinguishing Asahi to find personal jurisdiction). In the case of the D.C. city council law, the manufacturers may even have problems to the extent they have lobbyists in the area. A particular judge may well decide that it’s a jury issue, and many manufacturers won’t want to take that risk.
Second, even if D.C. courts do not have personal jurisdiction over the manufacturer, little stops a D.C. plaintiff from suing a gun manufacturer in a state where there is personal jurisdiction. For example, in Peterson v. BASF, Minnesota state courts applied the New Jersey Consumer Fraud Act to a nationwide class; in Ysbrand v. DaimlerChrysler, Oklahoma state courts applied Michigan law. One can easily imagine a D.C. plaintiff and a well-funded attorney filing suit in Los Angeles County against a California manufacturer asking for application of D.C. law. I think, in such a circumstance, gun manufacturers have strong arguments under the principles behind Phillips Petroleum v. Shutts that, if D.C. has no personal jurisdiction over a defendant, choice-of-law principles cannot be used to apply D.C. law to the defendant in a manner consistent with due process. But the question, to my knowledge, has not yet been resolved definitively; the defendants in Peterson and Ysbrand certainly were within the personal jurisdiction of the forum whose law was applied. Cf. also the different case of Keeton v. Hustler Magazine, Inc., where a New York plaintiff was allowed to sue an Ohio/California defendant using New Hampshire courts and laws, solely for the purpose of taking advantage of a favorable statute of limitations.
In short, gun manufacturers have strong arguments for application of the Healy/Levy federalism theory should such a suit actually happen. But plaintiffs get to choose their forum, and a large part of forum-shopping is finding a forum where the courts are less likely to resolve issues of law in favor of the defendant. The advantage of an immunity law is that it removes that uncertainty.
I’ve opened comments on the narrow question of the interrelationship between personal jurisdiction and choice of law. Please keep discussion civil and limited to this issue.