Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘tobacco’

Alcohol isn’t tobacco, unfortunately for trial lawyers

Class action lawyers — led by David Boies III, son of famed litigator David Boies — continue to try to attack the alcohol industry the same way they did the tobacco industry, but with far less success. Back in June 2006 we reported that Boies the Younger had been racking up an impressive track record… of losing. His lawsuits are based on the marketing practices of the alcohol companies; the claim is that the advertising was aimed at (who else?) children. But the suits don’t allege any actual harms suffered by, well, anybody. Instead, they claim that the marketing caused the plaintiffs’ underage children to buy alcohol. Even with creative lawyering, the only damages that they could allege were that the kids spent their parents’ money on the alcohol.

The lower courts have laughed these suits out of court, and last month, in response to Boies’ appeals, the Sixth Circuit did the same (PDF), finding that the plaintiffs didn’t even have standing to bring the suits. And when they did so, they gave a little civics reminder of how our legal system is supposed to work:

In any event, if outlawing the actual sale and purchase is insufficient to remedy the alleged injuries (which is the premise underlying the plaintiffs’ theories), then outlawing mere advertising must be insufficient as well. Consequently, the plaintiffs cannot demonstrate redressability. If these plaintiffs are convinced that alcohol advertising (i.e., First Amendment commercial speech) should be outlawed, then the means must be by legislation or constitutional amendment, not by judicial fiat.

In a rational world, this would be the end of these trial lawyer efforts. But since there’s no loser pays, our legal system doesn’t work that way. Trial lawyers can keep filing these over and over again in state after state, tweaking their arguments slightly from time to time, hoping to win the lottery; all they need to do is prevail once to earn back their entire investment in this litigation scheme. Whereas the alcohol companies have to win every one of these suits to avoid a backbreaking financial penalty.

Read On…

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A Climate of Greed Never Changes

Among the nightmare scenarios of global warming, there’s one only now coming into view – and it’s definitely manmade: As predictable as the rising seas, we can expect a flood of class-action lawsuits trying to cash in on the issue.

Climate change promises to be “a lucrative new field” for the tort bar reports the Newark Star-Ledger. A Rutgers law professor predicts that global warming will make for “one of the biggest legal practices in the next 20 years.” (The Star-Ledger, 7/8/07)

The opinion is shared by the president of the World Resources Institute: “Companies that generate significant carbon emissions,” he warns, “face the threat of lawsuits similar to those common in the tobacco, pharmaceutical and asbestos industries.” (The Toronto Star, 4/29/07)

And if you thought asbestos and tobacco litigation were profitable, try to imagine all the “mass tort” cases that global warming will inspire. Energy companies, coal mines, any firm at all that generates carbon dioxide – these industries and many more can expect to find themselves accused of causing climate change.

Some law firms already have “climate-change groups” studying the possibilities. Another hint of things to come was a class action suit was filed on behalf of Mississippi residents against oil and coal companies after Hurricane Katrina – arguing that company emissions caused the climate change that caused the hurricane. (Star-Ledger, 7/8/07).

In Alaska, the Inuits claim that their island is sinking because of global warming. The aggrieved islanders haven’t decided who to sue yet – but they’ve got a Houston trial lawyer working on it. (Star-Ledger, 7/8/07)

All of which proves nothing at all about the actual causes or dangers of global warming. It’s just more evidence of a climate of greed and opportunism in the trial bar. And that’s one climate that never changes.

Steve Hantler

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July 9 roundup

  • Judge Ramos disallows settlement of Citigroup directors derivative suit: deal had met defendants’ needs, plaintiff’s lawyers’ too, but not shareholders’ [PDF of decision courtesy NY Lawyer]

  • Drove a golf cart into the path of his car as it was being repossessed, jury decides he deserves $56,837 [MC Record]

  • Per ACOG, 92 percent of NY ob/gyns say they’ve been sued at least once [NY Post edit; more]

  • New British online-gambling law could trip up some virtual-world/massively multiplayer online games [GamesIndustry.biz]

  • Good news for bloggers: Iowa-based site can’t be sued in New York just because it answered questions from NY reader and accepted NY donations [Best Van Lines v. Walker, Second Circuit; McLaughlin]

  • Another great idea from Public Citizen: let’s not use new drugs till they’ve been on the market for seven years [Pharmalot via KevinMD]

  • After conviction of Mississippi trial lawyer Paul Minor in judicial corruption scandal, squabbling drags on over sentencing [Jackson Clarion-Ledger]

  • Conservative public interest law firms “can win some big cases [but] are notorious for lacking follow-through” [Tushnet, L.A. Times]

  • Contestants in Australian business dispute probably wound up spending more on the litigation than had been at stake in the first place [Sydney Morning Herald]

  • New at Point of Law: New Hampshire governor vetoes trial lawyers’ bill; global warming litigation to be bigger than tobacco?; the Times notices HIPAA;

  • It’s my emotional-support dog, and my lawyer says you have to let it into your store [eight years ago on Overlawyered, before these stories started getting common]

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July 6 roundup

  • How to handle illegal alien’s slip-fall suit against supermarket? With some delicacy: jury told only that plaintiff “couldn’t legally work in this country” [Oroville, Calif., Mercury-Register]

  • Sorry, docs: “I hate doctors” beats out “I hate lawyers” as a Google search result [Bioethics Discussion Blog via KevinMD]

  • Virginia adopts harrowingly punitive schedule of traffic fines. Its sponsor: lawmaker whose day job is defending motorists [Washington Post; NRO “The Corner”; Ribstein; our earlier report]

  • A businessman in London is suing Google for “publishing” (by indexing) allegedly defamatory material, and, boy, will the Internet ever be a different place if he wins [Independent (U.K.), Volokh]

  • Federal indictment charges Houston injury lawyer secretly paid $3 million to two Hartford Insurance claims adjusters in connection with $34 million in silicosis settlements [PoL]

  • Mississippi high court rules invalid former AG Mike Moore’s slush-fund diversion of $20 million/year in tobacco settlement money to evade legislative oversight [Sun-Herald, Bader; also this PoL roundup]

  • More RIAA-suit horrors, this time from Washington state [Seattle P-I] Prospects for a counterattack? [Pasquale, Concurring Opinions]

  • California Assembly votes to require pet owners to sterilize mixed-breed dogs and cats, while UK animal rights authority mulls rights for invertebrates [Mangu-Ward and Bailey, Reason]

  • Here come the tainted-Chinese-export suits, with many American defendants on the hook [Parloff, Fortune] Plus: car with the “E COLI” license plate may be driving lawyer to work [WSJ Law Blog]

  • Gimme those antiquities: Peru vs. Yale on Machu Picchu relics [Zincavage]

  • Dick Schaap med-mal case evokes shifting theories from celebrated lawyer Tom Moore [two years ago at Overlawyered]

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July 3 roundup

  • Represented by repeat Overlawyered mentionees Cellino & Barnes/The Barnes Firm, this injured upstate New Yorker got a settlement of $35,000 which worked out after expenses to — are you ready? — $6.60 [Buffalo News]

  • Not yet a laughingstock: AMA backs off idea of labeling video-game addiction [Wired News, L.A.Times/CinciPost, HealthDay/WilmNJ]

  • Restaurant critics fear losing their physical anonymity, which means a Bala Cynwyd eatery has a sword to hold over the Philadelphia Inquirer reviewer it’s suing [PhilaWeekly] (More: AP/CNN)

  • Dad of the year? Father who didn’t have much contact with 30-year-old son during his life shows up to claim half his $2.9 million 9/11 compensation award [NYDN, NYLJ, PDF brief courtesy Taranto/WSJ]

  • Fie on goodness: Geoffrey Fieger engages Harvard’s Dershowitz to try to quash federal grand jury probe, and he’s still battling Michigan judges too [DetNews]

  • In suburban D.C. middle school, high-fiving could mean detention under no-touching rule [Washington Post, AP/CNN]

  • Law firm whistleblowers? Ex-employees allege billing fraud in tobacco suit by high-flying Kansas City, Mo. trial lawyer [Legal NewsLine]

  • U.K. government panel bans egg ad as not encouraging healthy eating [Times Online, Guardian, Telegraph]

  • Lawprof is keen on expanding tort law to open door for more suits against schools over kids’ bullying [Childs]

  • 1,001 ways to self-publicize: one is to become a “trial groupie” [Elefant]

  • Guess what? This site just turned eight years old [isn’t it cool]

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ABA Journal on tobacco settlement

The piece’s subtitle: “How greed, hubris and high-stakes lobbying laid waste to the $246 billion tobacco settlement”. Without necessarily endorsing every point in the piece — this is the ABA Journal, after all — it’s still striking how what was once a lonely critique of the settlement has now been accepted as history’s verdict:

The only big winners in the litigation appear to be the tobacco companies, the state treasurers and the lawyers who represented both sides….

…$15 billion has been awarded to the private lawyers hired by the state attorneys general. That’s the largest attorney fee award in history. More than $100 million — Big Tobacco won’t say precisely how much — has been paid to the lawyers defending the companies.

“The tobacco litigation was a failure of historic proportions,” says Linda Eads, a law professor at Southern Methodist University’s Dedman School of Law in Dallas. “A complete and utter failure in every sense.”

(Mark Curriden, “Up in Smoke”, ABA Journal, March).

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Tobacco suit stresses race angle

“Accusing tobacco companies of preying on black people, a Miami attorney is seeking $1 billion in damages on behalf of a Coral Springs, Fla., woman whose mother and grandmother both died of smoking-related health problems.” Reporter Forrest Norman of the Daily Business Review, the south Florida legal paper, quotes me expressing skeptical opinions about the suit. In Florida’s earlier Engle tobacco litigation, plaintiff’s lawyer Stanley Rosenblatt came in for sharp criticism at the appeals level for the way he demagogued the racial angle; I covered the case here, here and here. This week’s case was brought by solo practitioner J.B. Harris, who said of the tobacco-company defendants, “If I could, I’d try to have them charged with genocide.” (“Suit Accuses Tobacco Firms of Targeting Black Consumers, Seeks $1 Billion in Damages”, Jun. 6).

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“Free expression gets smoked”

Bowing to pressure from 32 state attorneys general to curb the depiction of smoking in movies, the Moving Picture Association of America has just conceded “the basic principle that public-health lobbyists and politicians should have a big role in deciding what people will see, instead of letting the industry merely cater to its audience.” But state governments “have no more business determining what appears on movie screens than they do in deciding what goes into Judy Blume’s next novel. …The MPAA’s response validates the politicians in their intrusions, and beckons them to find new ways to regulate art and other matters that are supposed to be exempt from their control.” (Steve Chapman, syndicated/Orlando Sentinel, May 21). More: Michael Siegel, May 11, May 16, May 17; Jacob Sullum, May 16. Earlier: Sept. 1, 2003.

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April 11 roundup

  • Chief exec of 1-800-ATTORNEY ended up needing one himself, pleading guilty to securities fraud charge [NYLJ, Lattman]

  • Cost of providing liability insurance for Pennsylvania prison doctor greatly exceeds his pay [Shamokin, Pa. News-Item, Dr. Robert Hynick, Northumberland County Prison]

  • “Scottish sociopaths sipping their single malt Glenlivet” — yep, Jack Thompson is suing Grand Theft Auto developers again [GameSpot]

  • Anna Nicole Smith fee-ing frenzy: $4,265 for Bahamas cellphone roaming part of “fair and reasonable” lawyer’s bill [TMZ]

  • Working in a prosecutors’ office? More about nailing ’em than making sure justice was done [Dean Barnett via MedPundit]

  • Don’t forget imprisoned Egyptian blogger Abdelkareem Nabil Soliman [Palmer @ NRO, Doherty @ Reason]

  • “Pretexting” to fish out adversaries’ secrets: yes, lawyers do it too, now that you mention it [Elefant]

  • Which is more dangerous to kids, a house with a swimming pool or a house with a gun? Think carefully before answering [Stossel]

  • For shame: Supreme Court of Canada gives go-ahead for British Columbia’s retroactive tobacco recoupment suit [Ottawa Citizen, CBC, Bader; earlier]

  • Anti-biotech activists score, farmers squirm as judge halts sale of Roundup Ready alfalfa [Farmer-Stockman, Feedstuffs, Truth about Trade & Technology](more: Coyote)

  • Soap opera actor sues after ABC writes his character out of the script [five years ago on Overlawyered]

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