Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Seattle’

Corrected post: Washington police can’t search dumped trash

(Apologies to readers. On occasion, I run across a news story, save the link on Movable Type, and then finish writing a post later after I’ve proofed it. On February 17, I accidentally published a draft squib instead of a finished post. The published draft (1) failed to reference relevant federal precedent as I had intended; (2) incorrectly identified the Washington Supreme Court as the authors of the opinion in the news story; (3) incorrectly stated that a conviction was reversed; and (4) had a subject-verb disagreement. Fortunately, Overlawyered has a full-time proofreader, an anonymous law student at the Appellate Law & Practice blog, who prefers fact-checking Overlawyered to his/her own posts. He/she caught two out of the four errors, and defends the appellate court’s decision.)

A Washington court holds that police can’t arrange to search dumped garbage without a warrant, and invalidates a meth-dealer’s indictment. (Michael Ko, “Court: Meth maker’s privacy was invaded”, Seattle Times, Feb. 16).

This seemed to be straight out of a “Law and Order” episode I would scoff at, but the hair-splitting judges are forced to engage in to determine the stage at which trash becomes searchable is phenomenal. See, e.g., the seven separate opinions in the 8-5 en banc decision United States v. Redmon, 138 F.3d 1109 (7th Cir. 1998) (garbage can in shared driveway searchable without warrant); Clinton administration brief. The landmark Supreme Court opinion on garbage is the 6-2 decision in California v. Greenwood, 486 U.S. 35 (1988) (trash bag at curb searchable without warrant).

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Washington state: can parents monitor children?

Carmen Dixon, the mother of 14-year-old Lacey, was concerned about a phone call Lacey received from her 17-year-old boyfriend Oliver Christensen, so she listened in on another line. Oliver discussed a purse-snatching, and Carmen turned him in to police. But, last December, the Washington Supreme Court threw out Christensen’s 2000 second-degree robbery conviction, because the eavesdropping violated the children’s privacy. The legislature is just getting around to changing the law in response. (Robert L. Jamieson, “Courts should let parents do their duty — and pry”, Seattle Post-Intelligencer, Feb. 7; Rachel La Corte, “Parental snooping bill gets a hearing”, AP/Seattle Times, Feb. 3; Christine Clarridge, “Eavesdropping against law even for parent, court says”, Seattle Times, Dec. 13) (via Bashman).

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Gregoire the gregarious

Attorney General Christine Gregoire of Washington, a leading figure in brokering the 1998 tobacco settlement that ensured cartel-based profits for big tobacco companies and gigantic fees for the lawyers who sued them, is now in a close race for governor of the state. Very helpfully, she’s getting political contributions (via the Democratic Governors Association) from plaintiff’s-side lawyers such as Richard Scruggs, Joseph Rice and Steve Berman who were made exceedingly rich by the settlement, and who’ve given more than $1 million to the DGA in the space of a month. And another grateful contributor to the DGA is the lawyer who represented … Philip Morris. Isn’t it great when people can get along? (Ralph Thomas and Andrew Garber, “Out-of-state donors feed Gregoire fund”, Seattle Times, Oct. 28). For more, see Oct. 11, 2004, and Jul. 17 and Sept. 13-14, 2000.

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Tobacco class action update

Plaintiffs defending the insane $10.1 billion class action judgment (Feb. 8; Mar. 24, 2003) have retained as co-counsel a law firm associated with a Republican Illinois Supreme Court justice in an effort to have him disqualified from the case. (Paul Hampel, St. Louis Post-Dispatch, “Smaller court may hear tobacco case in Madison County”, Oct. 3; Ameet Sachdev, “Philip Morris seeks removal of law firm”, Chicago Tribune, Sep. 1 (no longer online)). The Edwardsville Intelligencer (in a strange story whose math seems to be wrong in other particulars) reports that Madison County has received a $1.7 million windfall in interest from Philip Morris from the bond (Apr. 4, 2003) it posted to appeal that judgment. (Steve Horrell, “County is cashing in”, Oct. 8).

The Seattle Times has a retrospective look back at the comprehensive tobacco settlement (Feb. 28 and links therein) negotiated in large part by Washington state Attorney General Christine Gregoire, and notes the irony that it forced the state to ally itself with Philip Morris to protest the amount of the bond (see also Apr. 30, 2003). (Andrew Garber, “Tobacco settlement Gregoire negotiated not popular with all”, Oct. 4). But the bad news for Altria shareholders, states hoping to continue receiving tobacco funds, and the ability of Americans to conduct business is that plaintiffs continue to pile on with similarly meritless class action lawsuits, waiting to find the combination of judges who dislike tobacco companies enough to expand class action law rather than rule in their favor. Plaintiffs’ lawyers will bring dozens of these lawsuits, and need win only one multi-billion dollar judgment to become the new owners of the enterprise. The Massachusetts Supreme Court recently signed off on a class action against Philip Morris, and lower courts in Missouri and Ohio have followed suit. (AP, Sep. 17; Theo Emery, AP, Aug. 16).

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Oyster update

A $1.3 billion award to oyster farmers — exceeding the value of the last century of oyster harvests — was argued before a skeptical Louisiana Supreme Court Monday. We covered the case in detail Oct. 18. (Jeffrey Meitrodt, “$1.3 billion oyster case hits La. high court”, New Orleans Times-Picayune, May 25; AP, May 25). Update Oct. 24: La. Supreme Court throws out cases.

In other oyster-related litigation news, a Korean legal immigrant is fighting a denial of his citizenship application; the federal government said that the $153 fine Kichul Lee admittedly paid for collecting a bucket of oysters at a beach proved lack of good moral character. The Washington State Department of Fish and Wildlife officer who issued the ticket is appalled at the heavy consequences. (Chris McGann, “One mistake robs man of citizenship”, Seattle Post-Intelligencer, May 10; Susan Paynter, “Moral flaw? Uncle Sam, look in the mirror”, Seattle Post-Intelligencer, May 19).

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FDA intervenes in drug liability cases

To the horror of the litigation lobby, the Food and Drug Administration has begun intervening in liability lawsuits urging courts not to second-guess design and marketing issues already contemplated and resolved by the federal regulatory agency. For many years now it has been commonplace for lawyers suing over side effects to claim that a drug’s marketer should have, e.g., given a stronger warning even though the FDA had considered and rejected the idea of its doing so. Agency general counsel Daniel Troy is credited with the new policy, which is based on the longstanding principle that state government action should not undercut comprehensive federal regulatory schemes. (“FDA stepping into liability lawsuits on side of drug makers”, Newhouse/Seattle Times, May 11).

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The sewers and the sued

Various towns and small cities in Eastern Washington have spent small fortunes upgrading their sewage systems as required by law, and the state Department of Ecology says it’s satisfied with their progress toward compliance. But a private Seattle-based group that calls itself Waste Action Project is suing the towns anyway, holding large potential financial penalties over their heads. For example, citing the remedy provisions of the federal Clean Water Act, it’s demanding $27,500 a day in fines, going back over 16 years, against the Lincoln County town of Wilbur, population 880, which has already spent millions on improvements in an attempt to bring itself into compliance with the Act. “The law also allows Waste Action to collect attorney fees if it proves violations that were reported by the defendants. The cities are required to report violations to the Department of Ecology and the lawsuits are based on the defendants’ own admissions.” Wilbur Mayor Don Reid is less than charitable about the motives of the environmental group, which has filed at least 40 enforcement actions around the state: “The purpose of their action is to put some money in their pocket, but they’re trying to hide that,” he charged. Seattle attorney and Waste Action co-founder Richard Smith calls that accusation “ridiculous”: “I am a competent lawyer,” he said. “I can make a hell of a lot of money doing other things than this.” (John Craig, “Sewage suits rile East Side towns”, Spokane Spokesman-Review, Apr. 5)(Mar. 3 council meeting minutes, town of Wilbur)(PDF). See also Jul. 23, 2001 (first item).

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Anniston lawyers’ fees

Plaintiff’s lawyers cut a $300 million deal with Monsanto spinoff Solutia to resolve a long-running toxic-tort case in Anniston, Alabama. Under the agreement approved by the court, 27 lawyers are going to split $120 million, with $29 million going to Johnnie Cochran’s firm (Aug. 29 and links from there; much more) and $34 million to Jere Beasley’s Montgomery-based law firm (Dec. 1, 2003; Nov. 16, 1999). “Once the lawyers and other expenses are paid, the awards for each of the Anniston plaintiffs will average $7,725, though some will receive more if their health damages are shown to be greater.” Locals are furious. (“PCB Case Payouts Roil Alabama City”, AP/Washington Post, Mar. 24; Jessica Centers, “PCBs plaintiffs demand answers”, Anniston Star/MSNBC, Mar. 24; Ellen Barry, “Lawyers’ fees eat up much of settlement over toxic chemicals”, Los Angeles Times/Seattle Times, Apr. 14). More: Dr. Elizabeth Whelan of the American Council on Science and Health is dubious about the science underlying the Anniston claims (“The case of the mute scientists”, Washington Times, Feb. 27, 2003, reprinted at ACSH site). Update Dec. 6: Forbes covers aftermath; overall settlement reported at $600 million with lawyers taking $234 million.

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Update: California french-fry suit

Approximately forty percent of the food the world eats contains acrylamide, a chemical that is formed by cooking starches and that has uncertain carcinogenic effect. The LA Times reports on the pending lawsuit against fast food vendors in California under Proposition 65 (Sep. 19; Dec. 27, 2002), which requires labeling of all carcinogenic substances with warnings–never mind that if a warning is posted everywhere, it effectively renders all the warnings meaningless, as they essentially are in California, where the warning can already be found in nearly every parking garage. While Burger King and other large corporations are fighting against extending the labeling requirements to french fries, it’s hypothesized that smaller mom-and-pop shops will simply cave and post warnings rather than pay lawyers to defend the use of heat in preparing food. (Miguel Bustillo, “Are We Ready to Fret About Our Fries?”, LA Times, Apr. 6; Andrew Bridges, “Studies find no acrylamide, cancer link”, AP, Mar. 29; Center for Consumer Freedom, “Wayward Warnings”, Aug. 5).

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Campus taverns: sued if they do…

Pressured by University of Wisconsin officials and by a federal campaign against underage and binge drinking, 24 taverns near the university’s Madison campus agreed voluntarily a year and a half ago to stop cheap-drink promotions on weekends. Can you guess the sequel? A Minneapolis law firm has now swooped down with a class-action antitrust suit filed on behalf of three named UW-Madison students. The suit accuses the taverns of unlawful restraint of trade and demands what it says could be tens of millions of dollars in treble damages on behalf of “the victims of price fixing — basically anyone who patronized the downtown taverns on Friday or Saturday nights and paid full price”. It also names the university and the Madison-Dane County Tavern League. Not being sued, apparently, is the federal government, even though the bars’ agreement to limit weekend drink specials came about “as part of the federally funded PACE project. PACE, which stands for Policy, Alternatives, Community and Education, is in the seventh year of a comprehensive campus-community partnership designed to reduce the negative consequences of high-risk drinking.” (Mike Ivey and Aaron Nathans, “Students sue 24 campus bars”, Capital Times (Madison), Mar. 24). In other campus-drinking-related news, the Milwaukee paper reported last month that Seattle’s Hagens Berman and other law firms who are gearing up big courtroom campaigns against brewers and distillers (see Feb. 16, Dec. 1) were likely to try a demonization campaign against Budweiser’s talking frog and similar marketing devices akin to the successful campaign to demonize R.J. Reynolds’s Joe Camel mascot (Tom Daykin, “Beer may suffer the Joe Camel effect”, Feb. 21). Plus: Vice Squad has more (Mar. 29)(& welcome Reason “Hit & Run” readers). Update May 2, 2005: judge dismisses Madison tavern case after defendants spend $250,000.

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