Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Steve Berman’

Alex Beam on Eskimo global-warming suit

Don’t expect the much-hyped Kivalina suit to bring down Big Energy, the columnist says, but it might just keep the lawyers at Hagens Berman in BMWs:

The Inupiat Eskimos are perfect, jury-worthy plaintiffs. They have occupied their tiny barrier reef, just a few feet above sea level, “since time immemorial,” according to the lawsuit. They are poor. They live in harmony with nature, according to the documentary. (Pay no attention to those all-terrain vehicles zipping around town, and the kid flashing the gang sign.) …

Some judges may be liberal, but they’re not idiots. They know that utilities sold electricity to Americans because their customers wanted to jack up the AC. In fact, there isn’t a utility in America that hasn’t spent the past 20 years begging its customers to use less oil and gas. There is an inconvenient truth if I ever saw one.

Not to be missed (“Eskimos, whales, and luaus…Oh my!”, Boston Globe, May 24).

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Inside the Eskimo global-warming suit

Looks like we’ll be hearing a lot more about the “Kivalina” (Alaskan Inupiat village) climate-change suit:

Over time, the two trial lawyers [Stephen Susman of Texas and Steve Berman of Seattle, both familiar to longterm readers of this site] have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina — where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.

In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.

(Stephan Faris, “Conspiracy Theory”, The Atlantic, June). For the theory of legally wrongful participation in public debate (as one might call it), as it surfaced in the tobacco litigation, see, for example, this 2006 post.

More background on the suit at the Native American Rights Fund’s blog, here and here, and at attorney Matthew Pawa’s site. Carter Wood at NAM “Shop Floor” links to a report by the American Justice Partnership and Southeastern Legal Foundation (PDF) entitled, “The Most Dangerous Litigation in America: Kivalina“.

Yet more: Northwestern lawprof David Dana has a working paper at SSRN entitled “The Mismatch between Public Nuisance Law and Global Warming” (via Sheila Scheuerman/TortsProf). Abstract:

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.

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Report: Apple to auto-limit iPod volume

Was the litigation a factor? The UK’s Daily Mail is reporting that Apple is developing a way for future iPods and iPhones to turn down volumes automatically after a certain period of use to protect users from endangering their hearing. One columnist predicts that the feature if implemented “will be hacked in a matter of minutes” by users who don’t want the protection. (Christopher Breen, “Auto-volume may be a turn-off for some”, MacWorld, Dec. 26).

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“Record beer consumption” at Hagens Berman cycling event

There’s nothing intrinsically droll about this report of increased jollity, mirth and conviviality at the 2006 Clif Bar/Hagens Berman Starcrossed Cyclocross race, co-sponsored by the prominent Seattle class-action firm: “The men’s main event was fast, painful, and exciting and it certainly did not disappoint the rowdy pumped up crowds who had been feasting on Pabst Blue Ribbon in the beer garden all day long.” (Cycling News, October). The only potentially humorous note is to those of us who remember Hagens Berman as having thrust itself forward a mere three years ago in the national media as the national scourge of alcohol marketing — beer marketing in particular (Mar. 29, 2004). The Milwaukee Journal-Sentinel article we cited at the time, with chapter and verse on the firm’s grandstanding against the sudsy brew, is still online.

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Updates – June 20

Updating a few earlier stories we’ve discussed here…

  • Two weeks ago we noted that a new online attorney rating site, Avvo.com, was being threatened with a lawsuit by John Henry Browne, a disgruntled Seattle criminal defense attorney. (Jun. 10). Well, whatever the merits or weaknesses of Browne as an attorney, one thing you can say about him is that he doesn’t make idle threats; last week, he filed suit against Avvo. The suit, designated a class action, contends that Avvo’s ratings are flawed. From all accounts, that’s almost certainly true, but as I mentioned in my previous post, it’s not clear that this presents a valid cause of action; Avvo is entitled to rank lawyers differently than John Henry Browne wants them to. In an attempt to get around this problem, the complaint trots out various “consumer protection” arguments using notoriously vague and broad statutes that don’t require that the plaintiffs identify any consumers who have been harmed. (Illustrating perfectly the phenomenon Ted discussed on Jun. 18).

    Oh yes, and Browne also claims in the complaint that “at least two clients” of his fired him (in less than a week!) because of his “average” rating on Avvo. Let’s just say I’m rather skeptical of Mr. Browne’s ability to prove such a claim.

    The law firm handling this class action case? Overlawyered multiple repeat offender Hagens Berman. (Many links.)

  • Remember that lawsuit where Illinois Chief Justice Robert Thomas sued the Kane County Chronicle for defamation? (Apr. 2, Nov. 2006) Well, when last we heard, the libel award — originally an absurd $7 million — had been reduced to $4 million by the trial judge. Not surprisingly, the Chronicle still is unsatisfied, and does not feel it can get a fair shake from the very Illinois court system headed by Thomas; it has now filed a federal lawsuit claiming its constitutional rights have been violated. Named in the suit are Thomas, the trial judge who heard the case, and the rest of Thomas’s colleagues on the state Supreme Court.
  • Kellogg’s bows to threats of frivolous litigation coming from the Center for “Science” in the “Public Interest”; agrees to limit advertising of its cereals to children.

    Of course, this is portrayed as an issue of advertising, but as Michael Jacobson of CSPI admits, this litigation strategy is simply an attempt to drive products he disapproves of from the market. And now that Kellogg’s has capitulated, certain politicians are trying to force other companies to do the same.

    Originally: Jan. 2006.

  • We had previously reported (May 17) that the unfair competition lawsuit between Equal and Splenda had settled. Turns out that the two sides are still fighting, with each side accusing the other of reneging on the deal. (LI)

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Suing emailers for a living

If you’re going to try to make a regular income out of suing commercial emailers alleging violations of the anti-spam laws, you may wish to be careful about your methods. Last month a federal court “threw out anti-spammer and self-proclaimed serial litigator James S. Gordon’s lawsuit against e-mail marketer Virtumundo. … Just as significantly, the judge also ruled the defendants can recover attorney fees.” Judge John Coughenour of the Western District of Washington ruled that that headers and “from” lines on the emails in question were not unlawfully deceptive, as Gordon had argued; Gordon had sought more than $2.3 million in damages over tens of thousands of Virtumundo emails. (Ken Magill, “Judge Tosses Anti-Spam Suit Against Virtumundo”, DirectMag, May 15; Venkat Balasubramani, “Can-Spam put to the test”, News.com, May 22). According to Ken Magill of DirectMag:

Gordon opted in to receive the e-mails and failed to use the opt-out mechanisms supplied in the subsequent messages, according to court records.

Also, during the trial it came out that Gordon’s sole source of income is from commercial e-mail disputes and that he’s cutting his friends in on the gig….

Gordon has testified that in 2006 he received no income that was not the result of a settlement of a dispute. . …He also admitted that his “clients” — apparently people to whom he provides e-mail accounts — supply him with e-mails they deem are spam for him to use in his disputes and that they get an unspecified percentage of the settlements.

(“Man, Oh Man, What a Racket”, May 22).

Also last month, a different federal court (Central District of California) resolved another CAN-SPAM case in a manner favorable to the defendant, Vonage; the court ruled that the emails sent by Vonage were probably not illegal under California law and that in any case such law would be pre-empted by the federal spam statute. Representing the plaintiffs: Seattle class-action firm and frequent Overlawyered mentionee Hagens Berman. (“The Tide Continues: Court Shoots Down Spam Class Action”, SpamNotes, May 28). Earlier on CAN-SPAM and California anti-spam law here.

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Coffee shop owner sues Starbucks

On antitrust grounds:

In her lawsuit, [Penny Stafford of Belvi Coffee & Tea Exchange] says that Starbucks employees would make frequent runs past the deli with free samples. She said that Starbucks also had non-competitive leases that blocked her from the most desirable locations in Bellevue and Seattle.

The suit claims that Starbucks, fueled by “insatiable and unchecked ambition,” wanted to squash all competition.

John Stott, who owns Johnika’s Deli, said that he advised Stafford not to open a business so near a Starbucks.

Representing Stafford in the suit is Overlawyered favorite Hagens Berman Sobol & Shapiro. (“Coffee shop owner sues Starbucks”, UPI/MonstersAndCritics, Sept. 27; Melissa Allison, “Starbucks sued over ‘unchecked ambition'”, Seattle Times, Sept. 26; Keith Sharfman, Truth on the Market, Sept. 25; Lattman, Sept. 27).

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Poland Spring fracas, cont’d

Boston Business Journal has a feature article catching up on the torrid fight between attorney Jan Schlichtmann (A Civil Action) and a squad of class-actioneers led by Thomas Sobol of Hagens Berman, over whether lawyers in pursuit of settlement fees sold out the interests of clients following lawsuits against Nestle’s bottled-water operation (Sheri Qualters, “‘Civil Action’ lawyer tangles with litigators”, May 19). Massachusetts Lawyers Weekly also has a big article which will however rotate off their online “Feature” page soon. Earlier coverage: Mar. 25, Mar. 20, etc.

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The danger of talking to plaintiffs’ attorneys? The Nano class action

An education in how class actions start: Jason Tomczak says that he posted on his blog about the iPod Nano, and was contacted by plaintiffs’ lawyers seeking to bring a lawsuit against Apple. Tomczak says that he told the lawyers he wasn’t interested in suing, but, nevertheless, the law firms of Hagens Berman and David P. Meyer and Associates filed suit naming Tomczak as the lead plaintiff. Two days later, they realized their mistake, and sent Tomczak a proposed attorney-client retainer, which Tomczak refused to sign.

Meanwhile, worldwide publicity named Tomczak as lead plaintiff, subjecting him to ridicule. (Our Oct. 27 post mentioned only Hagens Berman.)

At some point, Tomczak hired lawyers and filed a lawsuit against the law firms; his lawyers don’t seem to have explained to him the repercussions of challenging the plaintiffs’ bar, however, and, after what he calls a harassing deposition, the law firms have filed counterclaims against Tomczak, seeking their fees for defending themselves. Jason Tomczak now asks to clear his name: are there reporters out there who want to cover this David v. Goliath story? (See also Milt Policzer, “Who Needs Plaintiffs”, Courthouse News undated).

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