Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘sanctions’

Vince Offer – a ShamWow-tastic litigator

The new king of the infomercial is Vince Offer, whose abrasive ads for, well, $20 rags and overpriced plastic kitchen gadgets have made him millions and won him an extensive YouTube following.

But Offer thinks he’s an actor/writer/director, though has demonstrated little talent for it; his Underground Comedy Movie, starring such lights as Joey Buttafuoco and Angelyne, got risible reviews.

Of note for this page is that he has had even less success as a litigant. In 1998, Offer brought suit against the Farrelly brothers, implausibly claiming that their hit There’s Something About Mary was plagiarized from his movie. (The Farrelly brothers weren’t impressed: “We’ve never heard of him, we’ve never heard of his movie, and it’s all a bunch of bologna.”) Unfortunately, by bringing the suit under federal copyright law, Offer exposed himself to one of the few two-way fee-shifting statutes out there, and a federal judge had little trouble (literally) rubber-stamping a motion for summary judgment and an order requiring Offer to pay over $66 thousand in attorneys’ fees. (Offer v. Farrelly, Case No. CV 98-7697 RAP(RCx) (C.D. Cal. Jan. 13, 2000); id. (Mar. 14, 2000)).

Offer’s also brought suit against Anna Nicole Smith, and issued a press release threatening to sue The Church of Scientology, but I’m not inclined to spend $4.75 to learn about those cases.

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February 1 roundup

  • A “retired Reserve captain is threatening to sue her local California school board if the board’s members do not address her by her military title” [Navy Times, Popehat]
  • Members revolt at Florida bar’s selling their email addresses to marketers; general counsel of bar suggests they maintain multiple email addresses [Daily Business Review]
  • “Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies” [NLJ; fees awarded to Takeda Chemical Industries against Mylan Laboratories and Alphapharm Pty. Ltd.]
  • Much of what you think you know about the Lilly Ledbetter Fair Pay Act is wrong [Stuart Taylor, Jr./National Journal; Point of Law, more]
  • Not only prejudicial, but a whiskery urban legend to boot: fictional “Winnebago tale” (man thinks cruise control function will drive RV for him, sues after crash) makes its way into an Australian lawyer’s courtroom argument [Rees v. Bailey Aluminium Products]
  • Posner was scathing about the class action lawyers’ conflicts of interest in the Mirfasihi v. Fleet Mortgage Co. case, but Max Kennerly thinks the judge got the case wrong [Litigation and Trial, earlier]
  • Fight erupts over fee split in Blue Cross eating-disorder class action settlement [NJLJ, earlier]
  • “Many attorneys from both parties also marvel at the sheer number of lawyers Obama has picked so far” in staffing White House [Washington Post]

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More patent litigation sanctions

A trend? Following up on yesterday’s post about the camera and Medtronic cases: “A three-judge panel of the U.S. Court of Appeals for the Federal Circuit on Monday upheld an attorney fee award of nearly $17 million because of baseless filings and bad faith patent litigation by two drug companies. A district court awarded the fees to Takeda Chemical Industries, which had sued two generic drug companies — Mylan Laboratories and Alphapharm Pty. Ltd. — for patent infringement. …The district court agreed with Takeda that both companies lacked a good faith basis for their certification filings and had engaged in litigation misconduct.” (Marcia Coyle, “Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies”, National Law Journal, Dec. 9).

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Judge issues Rule 11 sanctions on camera infringement claim

“Frequent patent defendants say they’re hit by frivolous lawsuits all the time. But it’s very rare for a judge to find a patent lawsuit to be frivolous enough to grant sanctions and attorney’s fees.” Last week, however, a judge in Peoria issued Rule 11 sanctions against a company called Triune Star which held a patent on a certain type of GPS-using camera. The patent examiner had taken care to limit the patent to infrared cameras to overcome an obviousness objection, but the plaintiff’s lawyers — Keith Rockey and Kathleen Lyons of Chicago-based Rockey, Depke & Lyons — then proceeded to sue three big companies that had sold conventional cameras. A judge awarded the defendants reasonable costs and attorney’s fees, something defense lawyer Brian Rupp says has happened only a few times in the last decade. (Joe Mullin, Prior Art, Dec. 4 via TechDirt; Techdirt, Feb. 26 (Medtronic)).

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November 14 roundup

  • Pajamas TV interviews me on Obama cabinet prospects (RFK Jr., Caroline Kennedy, Schwarzenegger, Gorelick, etc.) (Nov. 13, subscription-only)
  • Federal court in New Orleans hits attorney with five-year practice suspension after “intentionally contemptuous” filing and other misconduct [Times-Picayune, Ashton O’Dwyer]
  • Lawyer sues his straying wife for giving him herpes, but her lawyer says a test proves she doesn’t have the malady in the first place [Above the Law]
  • Doctors (e.g.) being put through hostile depositions are often tempted to talk back sharply to the lawyer. Bad move, says Ronald Miller [Maryland Injury]
  • It’s a shame most of the press remains incurious about that episode a few days ago in which talk of compulsory national service appeared, then vanished from the Obama site [K. Ryan James]
  • Batting cage pitching machine without prompting hits customer in most sensitive part of male anatomy, he collects $1.2 million [The Big Lead]
  • ACLU will defend preacher sent to prison on parole violation charge after writing “God will smite this judge” newspaper article (having earlier been convicted of election misconduct)[AP/FoxNews, western Michigan]
  • On appeal, Long Island attorney beats charges of coaching clients to fake injury and using “steerers” to gain business [NYLJ]

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October 24 roundup

  • Chemerinsky, other critics should apologize to Second Circuit chief judge Dennis Jacobs over bogus “he doesn’t believe in pro bono!” outcry [Point of Law and update]
  • New York high court skeptical of ultra-high contingency fee in Alice Lawrence v. Graubard Miller case [NYLJ; earlier here and here]
  • Panel of legal journalists: press let itself be used in attack on Judge Kozinski [Above the Law]
  • Unfree campaign speech, cont’d: South Dakota anti-abortion group sues to suppress opponents’ ads as “patently false and misleading” [Feral Child]
  • Even if you’re tired of reading about Roy Pearson’s pants, you might still enjoy Carter Wood’s headlines on the case at ShopFloor [“Pandora’s Zipper“, “Suit Alors!“]
  • Rare grant of fees in patent dispute, company had inflicted $2.5 million in cost on competitors and retailers by asserting rights over nursing mother garb [NJLJ]
  • Time to be afraid? Sen. Bingaman (D-N.M.) keen on reintroducing talk-radio-squelching Fairness Doctrine [Radio Equalizer]
  • “Yours, in litigious anticipation” — Frank McCourt as child in Angela’s Ashes drafted a nastygram with true literary flourish [Miriam Cherry, Concurring Opinions]

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October 22 roundup

  • Bulgarians employ “decoy lawyers” to get around corruption in official bureaus [Cowen, MargRev]
  • Forum-shopping vol. MMMCCXII: Taiwan company claims Apple broke California unfair-practices law so of course it sues in Texarkana [AppleInsider]
  • “U.S. produces far too many lawyers for society to absorb” and one reason is that law schools want warm seats on chairs [Greenfield]
  • Second Circuit: lawyers can’t buy their way out of sanctions for filing meritless lawsuit [Krauss, PoL]
  • Some reasons furor over free speech in Canada is relevant this side of the border [Bernstein @ Volokh]
  • We’re quoted on the subject of those websites that offer “point-and-click access to trial lawyers” [Business First of Columbus]
  • Tight lid kept on study of disposable diapers’ environmental impact since findings were … inconvenient [Times Online (U.K.) via Stuttaford]
  • Judge backs Kentucky’s bid to seize domains of online gambling sites, implications for everyone else [Balko, “Hit and Run”; earlier here and here]

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Update: “McDermott, Client Sanctioned $4.3 Million”

“McDermott, Will & Emery and client Medtronic Inc. must pay $4.3 million in attorney fees as punishment for alleged ‘abuse of advocacy’ in a patent case, a Colorado federal judge ordered Tuesday.” As we noted in our coverage back in February, the judge found at that time that the McDermott lawyers “artfully avoided the limitations of the patent claims and created an illusion of infringement. They did so with full awareness that their case was without merit.” (Zusha Elinson, The Recorder, Oct. 2; WSJ law blog, Oct. 2).

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“Vexatious” to post motions on anti-RIAA blog?

Attorney Ray Beckerman is “one of the nation’s few attorneys who defends accused file sharers” and runs a blog called Recording Industry vs The People that is often cited in coverage critical of Recording Industry Association of America and its massive litigation campaign. Now RIAA is seeking sanctions against Beckerman in a case in which he is defending Marie Lindor. Among its allegations (PDF): Beckerman “has consistently posted virtually every one of his baseless motions on his blog seeking to bolster his public relations campaign and embarrass plaintiffs.” And: “Such vexatious conduct demeans the integrity of these judicial proceedings and warrants this imposition of sanctions.” Although RIAA is seeking to voluntarily dismiss its case against Lindor, it wants sanctions against her too, saying that she obstructed its attempts to ascertain whether she was responsible for file-sharing. (David Kravets, Wired/Threat Level, Sept. 17).

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Fla. lawyer: I’ve got every right to call judge an “evil, unfair witch”

Fort Lauderdale, Fla., criminal defense attorney Sean Conway claims he was within his First Amendment rights and should not face disciplinary action over his blog comments calling one of the judges he practices before an “evil, unfair witch” who is “seemingly mentally ill”. (Jordana Mishory, “Attorney Argues His ‘Witch’ Comments About Judge Are Protected Speech”, Daily Business Review, Jul. 16; earlier). To me, this seems rather to miss the point: sure, almost everyone but a member of the local bar enjoys or should enjoy a First Amendment right to call a judge an evil, unfair witch. Lawyers admitted to practice, however, enlist as “officers of the court” with special obligations, among which may be (to name only one) to avoid the sorts of displays of enmity that might complicate future cases before that judge, as by provoking recusal. For an extreme instance, see the Geoffrey Fieger episode recounted here, here, here, and here. More on what lawyers can say about judges from Bruce Campbell (Campbell & Chadwick) at Texas Lawyer.

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