January 2006 Archives

I'm quoted and this site is mentioned by a Daniel Fisher Forbes.com article on the James Frey class action litigation. ("A Million Little Lawsuits Over Frey", Jan. 30). The article refers to our January 12 post correctly predicting the "inevitable free-riding class action." We had further coverage Jan. 17, Jan. 25, and Jan. 27. See also this site's collection of class action posts, as well as that of our sister site, Point of Law, which also has extensive discussion of class actions.

Update: New York Daily News reports two more class actions in New York, including one filed in state court where it will be removed to federal court under the Class Action Fairness Act. One advantage of the Class Action Fairness Act is that, before, a defendant would face multiple suits, and would have to settle eventually, because winning one didn't prevent another suit from moving forward. Plaintiffs could play "Heads I win, tails don't count." Now, all of these suits will be consolidated, and a defendant with a legally meritorious case has a chance of winning a case dispositively in court.

Under current civil procedure rules, parties, upon request, and with very few limits, must turn over all relevant documents to the opposing party. In the twenty-first century, that includes e-mail. Failure to turn over enough e-mail can cost a company a billion dollars in de facto sanctions (Dec. 17); turning over too much e-mail can waive the attorney-client privilege. Thus, unless parties can come to an agreement otherwise, teams of attorneys have to review every single e-mail, at great expense.

But in a typical tort action, with an individual plaintiff and one or more corporate defendants, there are asymmetric discovery burdens. An individual plaintiff has no incentive to agree with a corporate defendant to limit the corporate defendant's burden, because (1) increasing the expense to the corporate defendant increases the likelihood of a nuisance settlement and (2) there's no telling what stray e-mail might be able to be taken out of context to make a case to a jury unfamiliar with corporate communications that a defendant is worthy of punitive damages. (Numerous plaintiffs have successfully used decades-old back-of-the-napkin sloppy cost-benefit analyses by individual Ford and GM engineers to obtain millions of dollars of punitive damages for entirely different vehicle designs; an e-mail by Kay Anderson, a low-level Wyeth administrator who expressed frustration that her career was mired in dealing with complaints from what she called "fat people scared of a silly little lung problem" cost the company tens of millions, if not more, in fen-phen litigation when plaintiffs tarred the whole company with it.) This Wired story (via Bashman) about Enron e-mail made public provides a good reminder that any e-mail you send or receive at work is likely to end up in the hands of multiple lawyers one day.

The former Mt. Vernon Middle School will be renamed after its most famous alum, the late attorney best known for employing racial demagoguery to spring client O.J. Simpson. Glad we won't have to be there for the "character education" classes. (AP/Reuters). A small sampling of our Cochran coverage: Aug. 13-14, 2001, Nov. 8-10, 2002, Aug. 29, 2003, Dec. 6, 2004, Mar. 30, 2005.

Unrelatedly, here's one more logo designed by the prolific and talented David Thomasson (earlier)(about logo series).

The Barnes Firm, formerly Cellino & Barnes, is a powerhouse in the personal-injury business in upstate New York, where it is a ubiquitous advertiser. According to the Buffalo News, it's built one of the largest caseloads of Vioxx lawsuits in the nation by hawking its star attorney, Brian A. Goldstein, who in television ads

described how he was uniquely qualified to represent Vioxx users. Not only was he a personal injury lawyer, he told viewers, he was a former physician and board-certified surgeon....

The lawsuits accuse the drug's maker, Merck & Co., with failing to tell patients the whole truth about Vioxx.

Goldstein, though, appears guilty of the same charge about his medical background. Georgia's Composite State Board of Medical Examiners revoked Goldstein's license to practice medicine on Jan. 10, 1991.

Goldstein was found guilty of providing Georgia licensing authorities with misleading and incomplete information about his education, according to records obtained by The Buffalo News. The licensing board found that Goldstein:

• Attended college and medical school at the same time in the Dominican Republic.

• Graduated from medical school less than three years after he graduated from high school.

• Received credit for courses he had not taken, had not completed or failed.

• Said he attended Tulane University when he had not, falsified his earlier training and submitted a false letter of recommendation for a residency at the Manhattan Psychiatric Center.

The hearing officer in Georgia not only recommended revocation but also said the decision should be published "as a public reprimand for [Goldstein] for his conduct."

But none of that information was mentioned in the Vioxx ads, or in Goldstein's biography on The Barnes Firm Web site.

The Buffalo News investigation includes various defenses of his conduct offered by Goldstein, including the following:

He also said Georgia authorities failed to consider the fact he had received an undergraduate degree from Empire State College.

The News confirmed that degree from the college, which grants degrees based on life experience as well as academic studies. But the degree was granted in 1988, three years after Georgia filed charges against him.

The newspaper asks medical ethicist Arthur Caplan about Goldstein's "selective use of parts of his medical background to recruit legal clients". Caplan's response: "I think it's sleazy". (Michael Beebe, "Did Barnes Firm lawyer tell the whole truth?", Buffalo News, Jan. 22). Carolyn Elefant comments at My Shingle (Jan. 22), and the incident also stirs memories for blogger Gina at Together Again (Jan. 23). The law firm of Cellino & Barnes has figured in these pages before: see Jul. 15, 2005.

In his suit against playwright Nancy McClernan and producer Jonathan X. Flagg, director Edward Einhorn claims (inter alia) "that his staging contributions to [the play] 'Tam Lin' -- contributions that his former collaborators say they excised -- constitute a copyrighted work of intellectual property, owned by him, and that the defendants must therefore pay for infringing the copyright." According to the New York Times, the suit raises wider questions of interest to "the famously collaborative process of theater-making":

Are directors engaged in anything akin to the kind of authorship protected by copyright laws? If so, what's to stop them from demanding payment whenever a play they once directed is revived? And what would that mean to the free flow of ideas in an art form that borrows heavily from all available sources?

(Jesse Green, New York Times, Jan. 29). P.S. Lattman has more (Jan. 30) including a link to the play's website.

Unrelatedly, the third in our series of proposed logos is one of several sent in by David Thomasson of Washington, D.C., whose many writing and consulting activities include a dynamite series of editorials on litigation reform in the recently launched newspaper, the Washington Examiner.

Attorneys recommended against installing defibrillators in casinos for fear that the plaintiffs' bar would use the safety measure as evidence that casinos had a duty to provide medical attention to patrons and create additional liability on the occasions the defibrillators fail, but executives overruled the lawyers. As a result,

Medical research shows that casino visitors whose hearts suddenly stop survive at higher rates even than people who happen to go into cardiac arrest while visiting a hospital. "The safest place in America to suffer sudden cardiac arrest is a casino," says Bryan Bledsoe, a George Washington University emergency-medicine doctor and co-author of textbooks for paramedics.

Assisted by his lawyer dad, 17-year-old Doug Anglin, a senior at Milton High School in suburban Boston, has filed a federal civil rights complaint against his school system for, he says, systematically favoring girls and their ways:

Among Anglin's allegations: Girls face fewer restrictions from teachers, like being able to wander the hallways without passes, and girls are rewarded for abiding by the rules, while boys' more rebellious ways are punished.

Grading on homework, which sometimes includes points for decorating a notebook, also favor girls, according to Anglin's complaint, filed last month with the US Department of Education's Office for Civil Rights.

''The system is designed to the disadvantage of males," Anglin said. ''From the elementary level, they establish a philosophy that if you sit down, follow orders, and listen to what they say, you'll do well and get good grades. Men naturally rebel against this."

(Tracy Jan, "Schoolboy's bias suit", Boston Globe, Jan. 26). Although critics such as Christina Hoff Sommers have raised interesting questions about boys' underperformance in the schools, young Anglin's lawsuit gets very poor grades from Mike Sierra (Jan. 26):

[The complaint says] boys "naturally rebel." Could this naturally rebellious behavior have something to do with boys' special need for supervision in school hallways? Just a thought.

As a way to bolster male achievement (at least on paper), the Anglins recommend that we give out academic credit for playing sports and grade students on a pass/fail basis, measures that are unlikely to improve the education of any student. As far as I can tell, their only legitimate complaint concerns one teacher who gives extra points to students who decorate their writing assignments, a practice that is certainly suspect and academically insubstantial, but hardly worth clogging the courts.

Unrelatedly, here's a suggested Overlawyered logo (more) devised by the anonymous coordinator of "Blawg Review", who sets it alongside some very kind words about our linking habits. All very jagged and Barbara Kruger-esque.

Michael Miller tore his meniscus while on the job as a security guard. He was restricted from climbing, running, walking on uneven ground, twisting, turning and prolonged standing, and thus was laid off because he couldn't arrest people or respond to emergencies. A jury awarded him $1.03 million for the indignity, accepting Miller's argument that Lockheed should have accommodated his injury rather than leave him to workers' comp. (Miller v. Lockheed Martin Corp., Los Angeles County, Oct. 12, 2005 (via Verdict Search)).

Once again we have reason to be grateful to our readers, since about a dozen of you responded generously to our request last week for an Overlawyered logo measuring 130 pixels wide by 150 pixels high, for use by a large media organization which is thinking of sending visitors our way. There were lots of nicely executed ideas, and any best-of selection inevitably depends in part on personal taste, but we're going to reprint four of our favorites alongside this and forthcoming posts. Webmasters alert: if you're linking to Overlawyered either as a sidebar permalink or on a one-off basis, these logos would make a nifty graphic link, don't you think?

The first logo of the four, then, was submitted by freelance graphic artist Lise Holliker Dykes of Crofton, Md.

Guita Sazan Silverstein accidentally locked her toddler son in her car on a hot day. A recording of her 911 to a Stamford, Connecticut, dispatcher shows her arguing against breaking the window of the Audi to rescue her son, preferring that police "watch" the boy while she runs over a mile home for a second key. (Silverstein's explanation is that she feared shattered glass would injure her child.) The window was broken, the boy was rescued, and Silverstein was arrested for child endangerment (allegedly when she tried to leave the scene against police orders while the rescue was pending), and now she wants to sue the city's police and fire department over the arrest and resulting publicity. "Her attorney, Matthew Maddox said Silverstein should not have been arrested after the July 25 incident. Maddox said police and fire officials should take the blame for any delay or difficulties extracting the boy." (Tobin A. Coleman, "Lawyer: Officials to blame for baby in car incident", Stamford Advocate, Jan. 24; AP/Boston Globe, Jan. 24).

In a self-parody of "comparable worth" theory (see also POL Aug. 17), the Supreme Court of Canada has ruled that Air Canada flight attendants may sue for gender discrimination on the grounds that they're paid less than the male-dominated pilots union. Couldn't possibly be because of supply and demand for differently trained and skilled groups, because the flight attendants and pilots work for the same organization in the same business. Air Canada will still be permitted to argue that flight attendants' passing out of pillows is not "equal work" to the pilots' flying the plane. The Court criticized litigation tactics that created "enormous expense" over the course of the 15-year litigation—but it was somehow Air Canada that was the target of the criticism, rather than the flight attendants for bringing the risible case. (Richard Blackwell, "Flight attendants win case against Air Canada", The Globe and Mail, Jan. 26; Canada (Human Rights Commission) v. Canadian Airlines International Ltd., 2006 SCC 1) (via Bashman).

(Post updated on Jan. 30 to reflect confirmation that Munoz was a passenger.)

Here's a case that could almost serve as a "spot-the-issues" model question for a law-school exam on the need for litigation reform. Rose Marie Munoz wasn't wearing her seatbelt in 2002 when the spare tire on the 1992 Mazda Navajo (a rebadged Ford Explorer) failed and driver Derek Saenz rolled over the SUV; the other three occupants of the vehicle were uninjured. Munoz was ejected and temporarily paralyzed, has lost use of her right hand, and now walks with a limp. A Nueces County, Texas jury held Ford 75% (and Mazda another 10%) responsible for $29 million in damages, on the grounds that Ford should have done more to warn consumers about the dangers of ten-year-old tires—even though the tires in question were the notorious Bridgestone/Firestone tires that had actually been recalled in 2000, but had been left on the SUV. Jurors said they were influenced by the fact that Ford has since added a warning in their owners' manual about replacing tires more than six years old. Firestone settled the case, allowing the plaintiffs to focus blame on Ford at trial. Ford blames the accident on driver error, and will appeal. (Sean M. Wood, "Ford hit with big judgment in Nueces", San Antonio Express-News, Jan. 28; Karen Lundegaard, "Texas Jury Slaps Ford With $29 Million Verdict", Wall Street Journal, Jan. 27; AP, Jan. 27; plaintiffs' lawyer press release).

Sample model answer to the spot-the-issues question after the jump. No press story mentions all of these factors, and many went unmentioned entirely.

(Update, Feb. 16: Plaintiffs' attorney Roger Brough has an extensive discussion in the comments, to which I respond in detail. With one minor detail after the jump, I stand by my description of the case. It's hard to follow the back-and-forth in the comments, but there is a post that combines his comments and my responses in direct point-counterpoint.)

Says a California appellate court: "[O]ffering discount admission prices to ‘baby-boomers’ to attend a musical about that generation does not involve an arbitrary class-based generalization protected by the [Unruh Civil Rights] Act.” Pizarro v. Lamb’s Players Theatre, 2006 WL 163612 (Cal.App. 4 Dist. Jan. 24, 2006). Tim Sandefur comments that the court was reassured that

“Providing discounted theater admissions to ‘baby-boomers’ to attend a musical about that generation does not perpetuate any irrational stereotypes.” Well, perhaps not, but reading decisions like this perpetuate irrational stereotypes about non-Boomers and their bloodsucking lawyers.

We told you about the first civil lawsuit Jul. 27 after predicting it Jul. 16. By popular demand, we note that the LA District Attorney, Rocky Delgadillo, has jumped on the bandwagon, presumably for publicity for his campaign for state attorney general against Jerry Brown. Of course, lawsuits like this aren't the way to persuade people that he's any more serious a candidate than Governor Moonbeam, though it doesn't hurt when not a single mainstream media outlet questions the legitimacy of the suit. Brian Doherty of Hit & Run comments. Lawsuits like this are an effective means of censorship: if politically unpopular speech can be bankrupted with a thousand paper cuts of trumped-up "consumer protection" suits, it will be as chilling as any libel action.

(Full disclosure: Delgadillo and I both worked at different times for O'Melveny & Meyers LLP, where Warren Christopher was Delgadillo's mentor and once pointed me the right direction to the men's room.)

Federal toilet-flow regulation, writes Andrew Ferguson, resulted from a successful collaboration between organized industry and environmentalists against the interests of the general public. ("Can Deregulating Toilets Revive Republicans?", Bloomberg News, Jan. 24).

Hey, remember that ludicrous lawsuit about a bus crash we wrote about last month where the passengers collected $17.5 million from the bus manufacturer on a trumped-up design-defect theory after swearing that they hadn't sued the bankrupt bus charter company (Dec. 1)? Turns out there may be some perjury involved, and a federal bankruptcy judge is none-too-pleased at the attempted double-dip. (Tommy Witherspoon, "Bankruptcy judge outraged over bus crash testimonies", Waco Tribune-Herald, Jan. 14 (via Prince)).

James Frey admitted on Oprah Winfrey's talk show that The Smoking Gun's investigation into his book was "pretty accurate." (Howard Kurtz, "Oprah Winfrey Says She is 'Deeply Sorry'", Washington Post, Jan. 26; Gawker liveblog). Which leaves us wondering whether anyone is going to apologize for the nastygram that lawyer Marty Singer sent to The Smoking Gun seeking to intimidate them out of publishing the story.

In Madison County, Illinois, all of the circuit judges have been elected to the bench with the significant help of the plaintiffs' bar, often going straight from a career at a plaintiffs' firm (and then later retiring to a plaintiffs' firm). Except one: Judge Don Weber was appointed to replace a retired judge in October 2005, and won't stand for election until November.

Illinois law permits a party to move once as a matter of right for substitution of a different judge, and plaintiffs in at least thirty-five cases have done so in Weber's case. "All the stars of the plaintiff's bar - the Lakin Law Firm, SimmonsCooper, Stephen Tillery and Rex Carr - have joined the substitution blitz." The Madison County Record quotes Jack Joseph of Chicago, a member of the civil practice committee of the Chicago Bar Association, as finding the practice "unfair to Judge Weber without giving him a chance to see if he is going to violate his oath in some way." (Steve Korris, "Weber's caseload yanked by plaintiff's attorneys", Jan. 25). But one might be suspicious that the true fear motivating the motions to substitute other judges is that Weber will uphold his oath.

Update: Belleville News-Democrat counts 53 plaintiffs and two defendants who've asked for substitution.

If ordinary workers and producers are having trouble sharing in the expanding economy, Steve Antler at EconoPundit thinks he may know one reason (Jan. 19).

...at the blog of speechwriter and ghostwriter Jane Genova, who for the past two months has been liveblogging the Providence retrial of Rhode Island's lawsuit against former manufacturers of lead paint. Among topics we touch on in the interview: the role of media hype and TV cameras in big trials today; problems with jury selection, and the treatment of jurors generally; two reasons I hope Rhode Island loses its lead paint case; and the case for patience on liability reform. (Jan. 25).

"The Supreme Court of Canada heard arguments [last] Wednesday about a case that will decide if hosts are responsible for the behaviour of their alcohol-consuming guests. The issue stems from a 1999 New Year's Eve drunk driving accident caused by Desmond Desormeaux, who left a house party near Ottawa after consuming 12 beers." A victim in the subsequent crash "has been seeking compensation from Desormeaux's hosts, Julie Zimmerman and Dwight Courrier, for letting him drive home drunk." The Ontario courts have thus far ruled against her case. (CTV, Jan. 19). See Sept. 12, 2002. Many but not all American states have embraced social-host alcohol liability, and the topic has also stirred controversy in Australia, where the high court of the largest state, New South Wales, rejected the principle recently (Feb. 23, 2005).

Another class action over the James Frey affair; this one, in Seattle, seeks, inter alia, recovery for "lost time" spent reading the book, prompting the Bookslut blog to reconsider its opposition to tort reform. It is the third class action filed; an underpublicized class action was filed in California on the 13th, and we reported on the more prominent Illinois class action on Jan. 17. Of course, if "lost time" is actionable, everything is, and we might as well turn over the keys to the country to ATLA. Earlier: Jan. 12. Recommended reading: Michael Greve, Harm-Less Lawsuits?

Update: Eric Goldman has a copy of the complaint and more detail.

Real estate mogul and television personality Donald Trump has sued Warner Books and New York Times reporter Timothy O'Brien for $5 billion, saying O'Brien's new book about Trump maliciously portrays him as being worth no more than $250 million when the accurate figure would be upwards of $2 billion. (Claudia Parsons, Reuters/Washington Post, Jan. 24; Greg Levine, "Trump Sues Over Bio Book; Launches Travel Web Site", Forbes, Jan. 24; Gina Serpe, "Trump's Billion-Dollar Defaming Claim", EOnline, Jan. 24).

Australia's enactment of significant legislative curbs on liability claims has had the desired effect, according to coverage in the Sydney Morning Herald last year:

Public liability and personal injury writs have nosedived and insurance premiums fallen in the wake of restrictions on people's right to sue, two new reports have found.

Released yesterday, the reports show insurance has become more affordable in the past 12 months while the number of people suing councils, government departments and public groups has fallen dramatically....

The Assistant Treasurer, Mal Brough, who released the reports at an Insurance Council of Australia conference, said tough decisions by federal, state and territory governments were behind the falls.

"The Commonwealth, state and territory governments took hard decisions to halt a blowout in unaffordable and frivolous claims," he said. "This has resulted in real and tangible benefits to the community in the form of more affordable and accessible insurance cover."

"Cover is more widely available, premiums are coming down and personal responsibility has been restored," said Insurance council executive director Alan Mason. ("Liability claims take a tumble", AAP/Sydney Morning Herald, Aug. 12). As if to symbolize the turn in sentiment, the High Court in October, over dissents from two of its members, denied recovery (Vairy and Mulligan, PDF) to two men who in separate incidents had injured themselves diving on the New South Wales coast and sued municipal authorities (Melbourne Herald Sun, undated). More on the trend: Dec. 9, 2003 and May 30, 2004; PoL Apr. 15, 2005.

Not that all the problems have been solved. Bret Walker, SC, former president of the Law Council of Australia, delivering the annual lawyers' lecture for the St James Ethics Centre, warned that ethical tangles for Oz lawyers are multiplying as law slides into the status of big business; enterprise lawyers are getting too close to their clients, while the rise of large class actions, and of suits backed by professional litigation funders, poses its own perils: "No one who has advised, or appeared, on either of these models or modern litigation could be unaware of the fertile soil they present for conflicts of the most venal kind." (Richard Ackland, "It's a dodgy law of nature that says big is better", Sydney Morning Herald, Oct. 21).

Among Australians keen on steering clear of litigation risk are famed children's entertainers The Wiggles:

As part of the Wiggles circus, [Paul] Paddick [friendly pirate "Captain Feathersword"] has had to curb his natural exuberance. For example, none of the Wiggles ever touch children. And when they are photographed with children, they always adopt their now-famous "pointy fingers" pose -- "so there is no doubting where their hands are", Paddick explains....The Wiggles team insisted that touching children, however innocently, was inappropriate -- and open to the risk of litigation, particularly as the monetary value of the Wiggles brand name rose. (Steve Meacham, "The master of sword play", Sydney Morning Herald, Dec. 3).

In the Washington Post, Brandt Goldstein gives me a mention in the course of reviewing The Money Lawyers, the new book by Joseph Goulden profiling some of the country's most powerful attorneys ("Legal vultures", Washington Post, Jan. 18). I gave this book a blurb, which can be seen on its back jacket ("Eye-opening and timely. Goulden gives us a close look at some of the nation's most powerful lawyers. Both friends and foes will learn a great deal.")

On Dec. 18 the Chicago Sun-Times took note of Ted's entry about the cautionary wording on a Milky Way chocolate bar, "Warning: contains milk". (Zay N. Smith, "An intelligent look at who knew what", Chicago Sun-Times, not online). I'm quoted in an editorial (I think that's what it is) on punitive damages in the Fredericksburg, Va. paper ("Punitive-damage reform takes a big step in the General Assembly", Fredericksburg Free Lance-Star, Jan. 20). Aileen Cho of the Engineering News Record quoted me in an article on a New York jury's ruling that the city's Port Authority was largely responsible for the 1993 WTC bombing ("Jury Says Agency Liable in Bombing", Nov. 7, not online). And in the ABA Journal eReport, G.M. Filisko quotes me airing some of my differences with AEI's Alex Tabarrok concerning the workings of the lawyer's contingency fee ("Fee Caps Won't Solve Liability Crisis, Study Says", Sept. 23).

"Primary enforcement" proposals are raising libertarian hackles in Massachusetts. (Scot Lehigh, "Reining in seat belt enforcement", Boston Globe, Jan. 17).

Writers Ronnie Niederman and Judith Shangold sued Disney, claiming that in publishing "Summerland," a novel by author Michael Chabon with a baseball theme, the entertainment giant's Miramax Books subsidiary had ripped off one of their own 1995 idea submissions to Disney. Trouble is, the theatrical plot they claimed to have submitted in 1995 contained numerous references to the Palm Pilot personal organizer, a product not introduced until 1997. Citing "voluminous, independent and irrefutable evidence" that the plaintiffs did not create the treatment at the time they said they did, federal judge William H. Pauley concluded "that there was 'clear and convincing' evidence that the plaintiffs had committed a fraud on the court and 'manipulated the judicial process.'" He dismissed their case and ordered them to pay Disney's legal fees in an amount to be determined later. (Mark Hamblett, "Judge Blasts Bogus Proof, Rejects Claim Against Disney", New York Law Journal, Jan. 18). Jonathan Edelstein comments at Head Heeb (Jan. 21).

Columnist Beth Quinn, inspired by Michigan Lawsuit Abuse Watch's annual "Wacky Warnings" contest (Jan. 6), is offering her own version.

Elsewhere, it appears that trial-lawyer front-group Center for Justice & Democracy, which held its "First Annual Zany Immunity Awards" in late 2004, has chosen not to repeat the exercise, perhaps because of the fact that we exposed that the immunity laws in question weren't so zany.

Here's a request for some graphically adept reader out there: a media organization which would be potentially helpful in sending traffic our way has asked for an Overlawyered site logo (to display on their page) which should measure 130 pixels wide by 150 pixels high. It doesn't need to be fancy, and in fact shouldn't be, but the challenge, I think, will lie in adapting a 12-letter word into a logo taller than it is wide. Lacking either a flair for this sort of thing or a decent graphics program, I'm not sure how to proceed -- but maybe some reader out there can help.

Follow-up: Readers came through with many excellent logos: see Jan. 29 and subsequent posts. Thanks!

Kirkland & Ellis, counsel to bankrupt United Air Lines, has thus far run up a tab of $84,892,637.50 handling the matter. Ten other law firms are also in on the action; for example, Sonnenschein Nath & Rosenthal, which represents United's unsecured creditors, has billed some $38 million in fees. (Eric Herman, "Lawyers fly high on United bankruptcy", Chicago Sun-Times, Jan. 23). Lattman and Ribstein comment (both Jan. 23).

Fear of lawsuits by park guests who ignored warning signs and opened their car windows (see last Feb. 2) has had its effect:

In the competition for most feared creature, lawyers have now eclipsed lions.

If Lion Country Safari can't stop people from opening their car windows in front of the dangerous cats, they can put up a fence to prevent a potential frightful outcome -- lawsuits....Fearing an attack will cause a traumatic injury and lawsuit, the park put up a fence between the cars and the lions last month, essentially ending one of the quirky attractions of South Florida since 1967.

Once a popular family attraction around the country, most drive-through "safari" parks have now closed, "and only one in Winston, Oregon, still allows people to drive among the kings of the jungle". (Rochelle E.B. Gilken, "At Lion Country, cats cut off from cars", Palm Beach Post/Miami Herald, Dec. 29).

I've got a piece in the new issue of the Manhattan Institute magazine City Journal examining the emerging barrage of obesity suits against soft drink companies (Walter Olson, "Taking Cola to Court", City Journal, Winter). For more, see Dec. 5 and Dec. 7. If you're in search of a listing of all my writings in City Journal, incidentally, it's here.

Just over a year ago, following numerous scandals about law firms' filing of mass shakedown suits based on California's s. 17200 unfair-competition law (UCL), the state's voters curtailed somewhat the law's extortive potential by requiring that actual harm to a complainant be shown. Last month, a California appeals court gave the nod to a second, potentially powerful way of restraining unwarranted s. 17200 suits, namely countersuits from outraged defendants. As Kimberly Kralowec notes (Dec. 20), "the Court of Appeal held that the litigation privilege did not bar a suit against lawyers accused of filing Trevor-like 'shakedown' suits under the former UCL. [The Trevor Law Group was the most notorious filer of shotgun UCL suits -- ed.] In a now-familiar irony, the lawyers were themselves sued for violating the UCL, as well as for intentional interference with prospective economic advantage." The case (Word document format) is American Products Co. v. Law Offices of Geller, Stewart & Foley, LLP.

Per the Colorado Civil Justice League:

House Bill 1049, sponsored by Rep. Witwer and Sen. Grossman, [if passed by the state legislature] would ensure that private landowners who grant public access to their lands for recreation aren't penalized by the law for their generosity.

As we noted Aug. 5, the state's reputation as a paradise for mountain climbing is suffering as fear of liability makes more landowners reluctant to grant access to climbers.

Five years ago (Apr. 6-8, 2001), lawyers rushed to file lawsuits against manufacturers of dozens of over-the-counter cold remedies such as Alka-Seltzer Plus and Contac, whose formulations had long included a stimulant -- phenylopropanolamine, or PPA -- which had just been linked to a rare risk of hemorrhagic stroke and banned by the FDA. However, plaintiffs were soon faring badly in early trials and legal rulings (Oct. 28, 2003; May 1, 2004). Now The American Lawyer's Alison Frankel has a retrospective:

...Plaintiffs lawyers talked about PPA as the next fen-phen, the next gold mine of a litigation. ...

It wasn't. And though there are still a few plaintiffs firms with significant PPA caseloads, many others are closing down their PPA dockets, settling the cases for which they can wrest something from defendants and dismissing the rest. "PPA was not a successful litigation for us," concedes Christopher Seeger of New York's Seeger Weiss, who has transferred his attention to the Vioxx litigation. Adds [Ellen] Relkin of Weitz & Luxenberg: "It hasn't been as profitable as we would have liked."

Why not? Frankel says drugmaker defendants battened down and refused to settle other than relatively strong cases (a strategy also adopted, less happily, by Merck). Although defendants lost fights to prevent federal multidistrict consolidation and to exclude plaintiffs' scientific testimony, it soon developed that the incidence of strong cases was not in fact very high. And crucially, the caseload was divided up among many different defendants; as a result, the litigation never vaulted into the "bet-your-company" category. ("The Mass Tort Bonanza That Wasn't", Jan. 6).

A California court has delayed by a month its consideration of the controversial settlement of a class action against Netflix, the DVDs-by-mail service. The "delay enables both sides to review more than 50 objections, including one by the Federal Trade Commission and another by the Trial Lawyers for Public Justice, a national public-interest law firm." (Caroline E. Mayer, Washington Post, Jan. 18). We covered the settlement Nov. 3 and Jan. 11.

Officials in Looe, England, "have told organizers of a traditional nighttime Christmas procession to replace flaming torches with glow sticks." The procession, a 20-year tradition, attracts about 500 people. "Local officials said they feared they might be sued if there was an accident caused by the torches, so they paid about $600 for 500 glow sticks. 'It's an absolute joke,' said John Andrews. 'How can you have a torchlight procession with glow sticks? We'll be the laughing stock of the county.'" ("U.K. torchlight possession bans flames", UPI, Nov. 19)(via van Bakel).

The law firm of Motley Rice has filed suit against Bombardier and numerous other defendants over the October 2004 crash of a Canadair regional jet operated by Pinnacle Airlines near Jefferson City, Mo., on behalf of the plane's pilots. Aero-News.net editor Jim Campbell is decidedly critical of the suit. ("Barnstorming: Pinnacle Suit Pushes Aero-Litigation 'Cringe-Factor' Too Far", Jan. 11).

Wakefield, Mass., mother Sherri Carlson doesn't like the commercials on the Nickelodeon network or the fact that Nickelodeon characters appear on boxes of cereal that she disapproves of. Thus (helped by a couple of nanny-state activist groups), rather than cancelling her cable bill, turning off the tv, or saying "No" to her three children, she's announced plans to sue Viacom and Kellogg for billions of dollars under Massachusetts "consumer fraud" law, sending the required "intent to sue" letter. (Libby Quaid, AP, Jan. 19; Sarah Ellison and Janet Adamy, "Activists Plan to Sue Viacom and Kellogg Over Ads to Children", Wall $treet Journal, Jan. 19; Hit & Run blog Jan. 19 Sullum and Gillespie). As Sullum notes, the reality-satire lag time is now down to a week.

Other discussion of the misuse of "consumer fraud" laws to interfere with free speech: Jul. 1, 2003; Nov. 30, 2004. As Eric Berlin points out, Ms. Carlson doesn't even buy the sweetened cereal in question, so she's asking for billions because she has to say "No" to her children. More on the problem of the injury-free class action at the AEI Liability Project.

Just another part of Mr. Scrushy's criminal defense strategy? See also Feb. 22. (AP, "Writer Says Ex-Chief of HealthSouth Paid for Positive Coverage", Jan. 19) (via the increasingly indispensable Lattman).

Don't kidnap your client in an attempt to collect your legal fees from him, or recoup the bond money you advanced. Especially not if you're going to be taking him away from his wedding celebration. It's just plain wrong, so don't do it, okay? ("Lawyer Allegedly Kidnaps Client Over Fees", AP/ABC News, Jan. 13)(Waco, Texas).

"Lawsuits are occupational hazards for anti-cult blogger Rick Ross. Sued a half-dozen times during the past decade for his public pronouncements, especially on the Internet, he's managed to win all but one case, with the help of pro bono counsel." (Charles Toutant, "Suits Against Anti-Cult Blogger Provide Test for Online Speech", New Jersey Law Journal, Jan. 10). In other news, a federal judge has thrown out the RICO and defamation lawsuit filed by the controversial healing-spiritualist Gentle Wind Project against former members of the group (see Aug. 30, 2004)("Group's Lawsuit Against Ex-Members Thrown Out", WMTW, Jan. 9; "Court Rejects Online RICO Claims Based on Ex-Group Members’ Web Site", Berkman Center, Jan. 11). Gentle Wind also happens to have sued Ross, unsuccessfully, according to the New Jersey Law Journal article.

...made the American Dialect Society's list of "Words of the Year 2005" (PDF) (Jan. 6). For more on patent trolls, see our tech/IP page. Also: Patent Baristas, Jan. 4, and Peter Zura's 271 Patent Blog, Dec. 29 (both via Blawg Review #40 at Small Business Trends).

"Doctors want to provide relief, but they also want to keep people safe and stay out of trouble themselves -- since doctors have been sued for undertreating pain and jailed for overtreating it." (Lois M. Collins and Elaine Jarvik, "Doctors walk narrow line in treating pain", Deseret Morning News/Casper Star Tribune, Jan. 5). Commenters at Kevin Pho's (Jan. 6) get specific about some of the legal headaches that an emergency room doctor may face when a chronic pain patient shows up claiming to need immediate relief: calling other local practitioners to check on whether the patient is known for "drug-seeking activity" is now a violation of the federal HIPAA health-privacy law, while giving a day or two's worth of medication to tide them over risks litigation from family members accusing the doctor of enabling their relative's narcotic habit.

Fickle finger of fate, cont'd: dissatisfied Wendy's customer Anna Ayala drew a nine-year sentence while Jaime Plascencia, her boyfriend and the procurer of the severed digit, drew twelve years. "The two pleaded guilty in September to conspiracy to file a false insurance claim and attempted grand theft with damages exceeding $2.5 million." ("Chili Finger Couple Get Stiff Sentences", AP/NBC San Diego, Jan. 18). Our previous coverage: Apr. 8, Apr. 9, Apr. 13, Apr. 20, Apr. 22, Apr. 27, May 16, Sept. 10.

Elderly driver Constance Peters sped in reverse out of her driveway in her Oldsmobile Cutlass and severely injured herself. Plaintiffs' attorneys blamed General Motors, alleging sudden acceleration (Apr. 19, 2004, Jun. 6, 2000) through a defective cruise control (that magically ceased running the engine when the driver was knocked unconscious). More sophisticated plaintiffs' attorneys have long since recognized that defective cruise control theories are so much nonsense (there is no reason for a "defect" to be six times more likely to affect elderly drivers) and try to sue for failure to warn of pedal misapplication or failure to recall and install shift-interlock safety protection in older cars, but some cases proceed on the older theory; this one resulted in an $80 million verdict. The plaintiffs went too far, however, and shoveled into evidence 139 cases of previous "sudden acceleration" that they attempted to use to show that the cruise control was defectively accelerating out of control—even though the cars in those incidents did not have cruise control! The Missouri Court of Appeals reversed and granted a new trial, though plaintiffs will get to present their bogus case again. (Randall Peters v. General Motors Corp. (Mo. App. W.D. Jan. 17, 2006); Tresa Baldas, "Acceleration Case Draws $80M Jury Verdict", National law Journal, Jan. 7, 2003).

...and we're not happy about your choice of cooking oil -- gee, thanks a million, Mayor Bloomberg. Andrew Stuttaford explains (NRO "The Corner", Jan. 15).

The new WSJ Law Blog summarizes (Jan. 16) Lawyers Weekly's annual compilation of cases. As Lawyers Weekly tells it, the top verdicts this year were both somewhat lower and more closely linked to actual damages (i.e., less crazy) than last year's. Among the ten: the Miami bus shelter electrocution discussed by Ted Jul. 10 (and linked to by the WSJ); Coleman v. Morgan Stanley, discussed in this space May 18 and Nov. 17; the $253 million verdict in Ernst v. Merck; the $105 million verdict against beer servers at New Jersey's Giants Stadium (Jan. 21 and Feb. 2); and Hall-Edwards v. Ford Motor, involving an Explorer rollover.

Another interesting case on the list: Baker v. PrivatAir, in which a pilot forced out of his California job at age 63 won $64 million for age discrimination, wrongful termination, emotional distress and defamation. Some other employees with whom the pilot had had conflicts had joined forces to get him fired; one of the steps they took against him was to get him written up on safety charges, which the employer then did not adequately investigate.

They operate as a pincer movement, contends Brian Anderson in City Journal, and they're both aimed at choking off certain unwelcome (if popular) points of view in public discussion. ("The Plot to Shush Rush and O’Reilly", Winter).

Common Good has prepared a Flash calendar illustrating how fears of being sued influence people month by month over the course of the year -- sports, schools, holidays, etc. What, no falling leaves?

WSJ Law Blog: "As surely as day follows night, a class-action lawsuit was filed Friday against James Frey and Random House over Frey’s alleged lies in his best-selling memoir 'A Million Little Pieces.'” Christine Hurt comments. Overlawyered readers had the story before it happened.

We apologize for the lack of postings: windstorms knocked out Walter's broadband and electricity yesterday just as I was spending all day on a delayed flight from the Pacific time zone. But we'll have posts later in the day.

We've earlier reported on the threat to the free market posed by social-conservative trial-lawyers seeking to hijack the Republican party. (See also this National Review article on the Astroturf "Center for a Just Society" that quotes me and Walter.) There's now an organization, Texas Shark Watch (via Childs), tracking the trend in Texas, and demanding that Texas Republicans sign a pledge not to take trial-lawyer money. And they also blog. (Update: May 21).

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.

The Florida Supreme Court has ruled (PDF) that the law firm of Pape & Chandler violated the state's Rules of Professional Conduct for lawyers by marketing itself with the image of a spike-collared canine and the phone number 1-800-PIT-BULL (see Aug. 23, Sept. 19, 2004). The law firm says it is considering an appeal to the U.S. Supreme Court, citing precedents of First Amendment protection for lawyers' advertising. (David L. Hudson, Jr., "Florida Muzzles Pit Bull Ads", ABA Journal eReport, Dec. 2). Commentary: Capt. Fogg, D. McGowan, Giacalone, Schaeffer.

Distinguished British lawyer Arthur Marriott QC, as quoted by Richard Ackland in the Sydney Morning Herald, and perhaps not entirely irrelevant to the situation in some other countries too:

The great ideas to assist the poor and bring about access to justice, such as the introduction of legal aid, have been met with an explosion in the number of lawyers. Other schemes such as no win-no fees encourage predatory lawyering. The payment of lawyers on a time basis does not provide an incentive for the efficient conduct of trials. And finally, efforts to reform the litigation system have systematically been sabotaged and wrecked by lawyers. As Napoleon said, the administration of justice is too important to be left to lawyers.

("The rise and rise of the predatory lawyer", Nov. 18).

"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).

The trial in the $10 million wrongful-death lawsuit against Benihana over a hibachi chef's tossed shrimp that allegedly killed a man ten months later has begun. (Hat-tip: H.G.) Newsday tells of plaintiffs' attorney Andre Ferenzo depicting a chilling scene: "We're talking about pieces of cooked food thrown directly at people who are eating dinner in the restaurant!" Ferenzo even understands the dramatic importance of the Rule of Three, as he describes two previous shrimp tosses before the particularly fatal one that he blames for Jerry Colaitis's death. (Caolaitis actually died of sepsis ten months later, and five months after the neck surgery his family claims was caused by dodging shrimp.) (Ann Givens, "Benihana shrimp toss cited in death", Jan. 11).

We first reported on the case Nov. 23, 2004.

George Gillespie of Medina County, Ohio, is suing America Online for allegedly failing to do anything about teasing, humiliation and abuse he endured in one of the online service's chat rooms. His suit also names individual defendants who live in Oregon and Alabama; Gillespie alleges that the Alabama man actually traveled to Ohio to further his campaign of harassment. Attorney Mark Tarallo of Holland & Knight in Boston believes the plaintiff "will face a tough battle, particularly in the fight with AOL." (Tresa Baldas, "Chat Room Chatter Draws Lawsuit", National Law Journal, Jan. 6; Julie Wallace, "Internet, civil liberties collide in unique lawsuit", Akron Beacon Journal, Dec. 19).

Canada: "A Vancouver woman is suing the city and the B.C. government for allegedly failing to keep the streets safe after her pet cat was killed by two coyotes....In a statement of claim filed in B.C. Supreme Court, [Judith] Webster says she's suffered and continues to suffer from post-traumatic stress and/or adjustment disorder, loss of enjoyment of life, and loss of past and future earnings." (CanWest/Vancouver Province/Saskatoon Star-Phoenix, Jan. 4).

An acquaintance—whose self-accounts have appeared in several books, radio stories, prominent magazines and web publications—published a short story in a "non-fiction" anthology. I was familiar with the underlying events and asked her about it, since, even aside from unacknowledged name-changes, it plainly had invented and exaggerated elements, and a twisted chronology meant to fit a story arc. "Of course it does. It's creative non-fiction," she responded in exasperation, introducing me to a new definition of "non-fiction" that I hadn't previously been aware of.

So the James Frey scandal (or a smaller one involving the Times' Modern Love section) doesn't surprise me in the slightest; I've just come to assume that anything published under the memoir label in the twenty-first century is the modern-day equivalent of a Philip Roth novel that isn't well-written enough to be successfully marketed as fiction.

The question is what will a court do when confronted with the inevitable free-riding class action, claiming that the publisher has committed consumer fraud, and demanding the right for every book owner to get a full refund and punitive damages (and, of course, a taste for the attorneys who took the entrepreneurial risk of typing up a summary of The Smoking Gun story and filing it in court), before settling for 50-cent coupons, a donation of remaindered books to a "Books for Addicts" program, and a multi-million-dollar attorney fee. Will there be a ruling that "non-fiction" memoirs that aren't require labelling? If so, what are the First Amendment implications for other non-fiction books? A ruling that doesn't provide a clear swath of protection for publishers could essentially abolish memoirs or first-person reporting, because a ruling that establishes any sort of rule calling Frey's book consumer fraud (or even just potentially actionable consumer fraud) could encourage other attempts to sue other successful memoir-publishers for less egregious exaggerations. (This problem earlier arose with the Beardstown Ladies (Nov. 16, 1999), and the California Court of Appeal was far from sympathetic to the First Amendment issues.)

Random House appears to be attempting to pre-empt litigation by offering refunds to anyone who asks, which will surely be a smaller percentage of customers than a hired plaintiffs' damages expert would testify to.

Prawfsblawg asks about Frey's liability to the publisher, which seems to miss the point: what's the publisher's theory of damages? "You sold us a book that made us a lot of money"?

Also of interest to Overlawyered readers is the bullying letter sent by Frey's lawyer to The Smoking Gun to try to keep them from publishing their findings. We may have our own story of bullying letters to tell shortly.

(And welcome Wall Street Journal and Malkin readers; do check out our main page and sister site.)

We've covered this set of issues numerous times in the past, but here are some fresh details:

When the Indian Gaming Regulatory Act became law in 1988, no one imagined that it would become a Trojan Horse that would deliver Las Vegas-style casino gambling into communities across America. Having saturated local markets, many tribes are now seeking to acquire land near other, sometimes-distant, population centers, and converting it to "sovereign" territory, in an effort to shoehorn casinos into areas where they're often not wanted by local populations. Once land becomes part of a reservation, it typically becomes exempt from local taxes, state labor laws, municipal ordinances, zoning restrictions and environmental review. In one of the most egregious cases, in 2004, the Cheyenne-Arapahoe Tribes of Oklahoma filed a 27 million acre land claim which included all of Denver and Colorado Springs, but offered to drop it in exchange for the approval of a Las Vegas-style casino near Denver Airport.

"These efforts are being funded by 'shadowy' developers who underwrite the litigation expenses, lobbyist fees and even the cost of land in exchange for a cut of the profits," James T. Martin, the executive director of the United South and Eastern Tribes, told the Senate Committee on Indian Affairs in May 2005. "If even one of these deals is approved, the floodgates for this kind of 'reservation shopping' will open throughout the country." (Mr. Martin, it should be said, is no opponent of gambling: his organization includes tribes whose main goal is to thwart new competition against their own casinos.)

(Fergus M. Bordewich, "The Least Transparent Industry in America", Wall Street Journal, Jan. 5)(subscriber-only).

Watch out if you try to open one -- you might risk infringing someone's "business method" patent. (Chris Hayes, "Snap, Crackle ... Patents", In These Times, Jan. 2)(via Reason "Hit and Run").

P.S.Victor Serby, in comments, notes what he calls a "glaring factual error" in Hayes's account and points out that a patent application is a very different thing from a valid patent.

Per Forbes, Sept. 5, p. 118, not online: "Costliest terms per click include 'Lawyer in Missouri' ($47) and 'Auto Accident Lawyer Detroit' ($46)". See Apr. 8, 2004, Jan. 5, 2005.

"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).

An Internet site has begun offering "sports-ticket options." I'll let Brad Humphreys's "Sports Economist" blog explain: "For example, I could currently purchase the option to a ticket to the Final Four to see my alma mater, West Virginia University, for $27. If the Mountaineers make the final four, I would pay the face value of the ticket ($140, according to the web site), plus my $27 option." Over the course of the season, the market for the option fluctuates, and one can sell or buy it. Here's the catch: "If the Mountaineers didn't make the Final Four, my option would be worthless and I would be out $27." Tom Kirkendall and Tyler Cowen, an exceptionally intelligent lawyer and economist respectively, also comment, as does Wired Magazine.

And, yet, somehow, all three bloggers miss a large point of the exercise: to try to get around the anti-gambling laws. Despite the site's claim to be merely a market-clearing place, there's no option available for one to actually offer to sell one's tickets. So where are the tickets coming from? (In case of the Rose Bowl, from the event itself.) Or going to?: the Wired story never interviews anyone who actually ends up with a ticket. Not to suggest that the site is actually ripping people off—with a 17% commission on every transaction and with the vast majority of options expiring worthless, the site makes more per ticket than any scalper does. A recent Forbes story covers a smaller competitor.

For you securities-law geeks out there, here's the SEC's no-action letter. I leave to others whether the site is accurately describing its activities. And, of course, the fact that one agency promises no action with respect to the securities laws is no guarantee that the aggressive Department of Justice will take no action with the gambling laws.

"The Federal Trade Commission is asking a California judge to reject a proposed class-action settlement between consumers and the Internet DVD rental service Netflix, saying the agreement 'appears dangerously close to being a promotional gimmick.' ... In the proposed settlement, plaintiffs' lawyers would receive $2.5 million, but the plaintiffs -- in this case, the class of current and former Netflix customers -- would receive either a free service upgrade for one month or a coupon for free service for one month. However, if customers receiving the freebies do not cancel the upgrades or service before the end of the month is up, Netflix would begin charging them for the extra services." (Candace Heckman, Seattle Post-Intelligencer, Jan. 10). Ted thoroughly examined the defects of the settlement Nov. 3. The commission's amicus brief is here in PDF format (courtesy Skip Oliva, who comments). Update Jan. 21: settlement delayed because of large number of objections.

We haven't posted much here on the Supreme Court battle (although Point of Law has had a lot) but here's a thread for regular readers who may wish to opine one way or the other on it. If you haven't seen it already, by the way, check out our thread in which regular readers are invited to introduce themselves, currently at 24 comments.

While on the subject of Britain: "A black police bodyguard who protected the Duchess of Cornwall has won [A]$70,000 compensation [roughly U.S. $53,000] after suing Scotland Yard for 'over-promoting' him because of political correctness." Sgt. Leslie Turner's "representatives argued he landed the prestigious job as Camilla's bodyguard only because he was black. It was claimed that as a result of being over-promoted and not receiving proper training and support, Sgt Turner made mistakes which led to him being re-assigned....Had Sgt Turner's case reached a tribunal, potentially embarrassing secrets about Charles and Camilla's lives may have been aired." ("Camilla's protector paid out", Daily Mail/Melbourne Herald Sun, Jan. 8)(via Taranto). Writes Gary Collard at SarcastiPundit (Jan. 10), "The amazing thing is that it wasn't a US trial lawyer who first thought of this."

A list from Britain includes "a bin man who made a claim against his council after being 'startled' by a dead badger which fell out of a bag, a shoplifter who sued because she fell down stairs while running from the scene of a crime, and a motorist who claimed he did not see a traffic roundabout in daylight - despite there being a large tree in the middle." (Patrick Barkham, "The wronged trousers, and other scams", The Guardian, Jan. 3; "Dubious insurance claims 'rising'", BBC, Jan. 2).

...discussed by columnist Ralph Reiland at Point of Law. For more information on the cases, see Overlawyered Oct. 27 (first WTC bombing) and Mar. 27 (settlement for British criminal trespasser).

Orin Kerr refutes Declan McCullagh's claim (Jan. 10) that Congress has outlawed anonymous Internet communications.

Update: on the other hand, Eugene Volokh remains troubled. For reasons stated in the comments, neither Walter nor I are persuaded by Cal Lanier's narrow interpretation.

Overcautious emergency care, and what one doctor did when he saw it happening ("Specter of medical liability creates enormous cost", no byline given, The Olympian, Nov. 28)(via, in order, Common Good MedWatch, Dr. Rangel, and KevinMD).

"Annoying someone via the Internet is now a federal crime." Declan McCullagh at CNET sounds the alarm about a provision quietly tucked into the so-called Violence Against Women and Department of Justice Reauthorization Act. Sec. 113 of the bill, entitled "Preventing Cyberstalking," "rewrites existing telephone harassment law to prohibit anyone from using the Internet 'without disclosing his identity and with intent to annoy.'" The implications for anonymity on the web, in email correspondence, and in other Internet applications could be enormous, McCullagh says. Penalties include stiff fines and jail terms of up to two years (Jan. 9).

More: Orin Kerr at the Volokh Conspiracy says McCullagh is wrong to be so alarmed and that the actual effect of the law would be much narrower (see Ted's post above). A key question raised in the Volokh comments is whether the bill will apply only to VOIP (internet-based telephone service) or have a broader reach than that. Other discussions worth reading: Concurring Opinions, Boing Boing.

Blawg Review #39, the carnival of law bloggers, is hosted this week at Bruce MacEwen's Adam Smith Esq., which is an invaluable source for those interested in the economic aspects of law-firm practice. Calling me "ever-reliable", he links to last week's item on the Dallas restaurateur who sued over a bad review.

Speaking of Blawg Review, the anonymous organizer of that endeavor has announced the winners of "Blawg Awards 2005", and Overlawyered is happy to have won for Best Name for a Legal Blog. Among those commenting: Patent Baristas and the naming-and-branding site WordLab.

The federal Fair Labor Standards Act, which governs overtime and other aspects of wage-and-hour workplace regulation, entitles prevailing plaintiffs' lawyers to demand attorneys' fees from defendants, but not vice versa; it's a "one-way" fee-shift

Some attorneys who represent employers say plaintiffs attorneys are filing claims for small dollar amounts under the wage and hour provision of the federal law that require little litigation beyond filing a claim, then claiming fees sometimes in the tens of thousands of dollars. Another tactic, defense attorneys say, is dragging out the litigation to pad their fees.

"It's a hijacking," said Mark Cheskin, a defense-side labor and employment lawyer and partner at Hogan & Hartson in Miami. "There's a whole cottage industry of plaintiff attorneys who are doing nothing but these cases."

"It's a volume practice," said Paul Lopez, a partner at Tripp Scott in Fort Lauderdale. "They use the same forms [for every client] and are doing cut-and-paste jobs."...

In a quickly settled case, the attorney fees generally seem like small potatoes to the employer, defense attorneys say, even though the fee may be 10 to 20 times the amount paid to the plaintiff.

However, claimants' lawyers respond that business defendants often underrate the amount of time needed to prepare the cases. "'They're wrong, and there's nothing out of control at all,' said Donald Jaret, a Miami attorney with a substantial FLSA practice. 'They always have complained, and they always will.'"

Lawyers say some judges have been policing fees more closely lately:

In 2003, U.S. District Judge Federico A. Moreno rejected Donald Jaret's request for $16,000 in fees on a $315 claim that was settled weeks after the claim was filed.

In his order, Moreno wrote that the claim "shocks the conscience of the court. ... This strategy of 'shaking down' defendants with nightmarishly expensive litigation in pursuit of attorney fees must not be rewarded."

That case, entitled Goss v. Killian Oaks House of Learning, was cited last year by U.S. District Judge Kenneth Ryskamp in denying a lawyer's fee request in a case against the Rag Shop of Hollywood, Fla. (Jessica M. Walker, "Are FLSA Suits Too-Lucrative Labors for Plaintiffs Attorneys?", Miami Daily Business Review, Dec. 16). More on overtime and FLSA litigation: PoL, this site.

In which regular readers (especially those who've been posting to the experimental new comments sections) are invited to introduce themselves.

Is the nation's largest grocer being ignorant or overcautious? Or has it reckoned that even a "gross negligence" standard will not prevent it from being a target after some future incident of food poisoning?

Wal-Mart Stores, Inc., the nation's largest food retailer, said Thursday it will no longer donate nearly-expired or expired food to local groups feeding the hungry....

Olan James, a Wal-Mart spokesman, said the policy, which applies to all 1,224 Wal-Marts, 1,929 Supercenters and 558 Sam's Clubs, is an attempt to protect the corporation from liability in case someone who eats the donated food gets sick....

Ernie Brown, a spokesman for Sacramento's Senior Gleaners, which received about 25,000 pounds of food in 2005 from Sam's Club on Greenback Lane in Citrus Heights, said most food is fine to eat for days after the "sell-by" date.

He said Wal-Mart's concerns about liability seem misplaced in light of the Good Samaritan Food Donation Act, a federal law passed in 1996 offering food donors wide-ranging protections from civil lawsuits or criminal prosecution. The law states that donors can be held liable only in instances of "gross negligence."

"Lord, we get millions and millions of pounds from Raley's and Bel-Air and Albertson's, and they don't have a problem understanding the law," Brown said. "Why don't Wal-Mart and Sam's Club understand the law?"

The food will be thrown out instead. (Todd Milbourn, Sacramento Bee, Jan. 6). More: Dvorak Uncensored, Jan. 11.

Which BigLaw firm's London office featured a partner who (1) told his team he expected them to bill 7.5 hours the day of the July 7 Tube bombings and (2) refused to allow team members to attend the funeral of a partner who had recently left the firm? Gerry Riskin has the answer.

As readers may recall (Dec. 9), Connecticut attorney Norm Pattis has lately written a series of powerful commentaries at Crime and Federalism suggesting that some of his fellow plaintiff's attorneys are too often tempted to take on the causes of vengeful, deluded or disturbed complainants, especially during "the periodic lull in cases of merit"; he further argued that society's interest calls for strong measures against the filing of meritless cases. It seems, however, that these commentaries have not sat well with many of his colleagues. On Dec. 20 Pattis described one wave of reaction:

The other day, a newspaper called to ask for permission to run an old item. I granted permission, and now my email box is replete with messages from new readers, in this instance members of the plaintiff's bar, not at all happy that I wrote about my sense that not all cases have merit.

And three days later (Dec. 23) he has further thoughts in response to being verbally pummeled on a listserv of the Connecticut Trial Lawyers Association:

...All I am saying is that a significant percentage of plaintiffs bring deep-seated psychological injury to their cases that is not caused by a defendant's misconduct, and these clients transfer all their anger and disappointment onto the first available target, whether it be defendant or lawyer. I suspect any lawyer practicing more than a couple of years can draw this distinction with ease.

Was I suggesting that defendants are somehow devoid of the same sociopathy? Not at all. I suspect many defendants are disturbed as well. But there is a crucial difference -- the defendant did not choose to be in court....

I haven't lost the will and zeal to fight, far from it. But I do get to choose not to become more than the blunt instrument of those clients whose cases lack merit, and whose psyches bring nothing but hatred and rage to a courtroom.

Jerry Pournelle of sci-fi fame (Oct. 11, scroll down) got an unsolicited email from an outfit called "National Association of Personal Injury Lawyers" offering a "limited-time, complimentary membership" allowing for a listing on its website http://www.napil.com as a nifty "method to get more personal injury clients".

I could compare notes on the subject, since I got a (somewhat differently worded) email from the same outfit in October (sent to an email address which is available to website visitors, but which I don't use to subscribe to anything; it receives a lot of spam). And I, too, can vouch with confidence that I never requested or invited email from NAPIL.

According to the email I got, "There is no Sign-up fee, no annual fee. You only pay a voluntary referral fee when we give you a lead and you settle the case and earn your fee. To comply with most State Bars' prohibition against fee sharing, we have no mandatory fee sharing agreement. When you do pay us a fee, you will share fee with a lawyer." In the "P.S.", it said: "Our website www.napil.com is on the top on Yahoo and MSN" -- not a very useful boast without any specification of which search term results in their being "on the top".

More on spam promoting lawyers and lawsuits: Jan. 5, 2005, Mar. 29-31, 2002.

P.S.: Well, that didn't take long. This morning (Monday), less than a day after posting the item, I got an email from NAPIL, by its appearance sent to a wide audience rather than to me alone, adding specificity to the "at the top" boast. It says: "www.napil.com is on the top of Yahoo search. If you search for the term Personal Injury Lawyers on Yahoo, NAPIL is the Number One Result." This claim checked out as true, as a visit to Yahoo confirmed. It goes on to claim: "We are also on the top on MSN." When I visited MSN, I found that NAPIL turned up on the first page of results (at #9) when I entered the search phrase "personal injury lawyers" with quotation marks around it, but did not turn up on the first page when I omitted the quotation marks.

As mentioned Nov. 22, the New Yorker recently published an article on the medical liability morass by its medicine correspondent, Dr. Atul Gawande. The piece still isn't online (sorry) but Common Good has posted a summary of the article with some quotes, as well as a link to coverage in the Dec. 20 Medical Post.

Professor Volokh and his commenters discuss.

In the Middle East dispute, it's not just the Left that files silly lawsuits (Mar. 16). A Hamas suicide bomber, Raed Abdul Hamid Misk, injured Tzvi Weiss in an August 19, 2003 attack. Weiss and his family seek damages—against a British bank, National Westminster Bank, and no one else. Why? Hamas receives money from a group called "the Union of Good [sic]." The Union of Good raises funds that are channeled through Interpal. And Interpal, which was designated as a terrorist organization by the United States on August 22, 2003 (three days after the suicide bombing), has some bank accounts at NatWest. (The U.K., however, where the bank is located, disagrees with the U.S. assessment, and refuses to label Interpal as a terrorist organization.) Thus, the plaintiffs seek to hold the bank (and only the bank) liable. (Carrick Mollenkamp, "Making Banks Accountable for Terror", Wall Street Journal, Jan. 6). Why stop with banks? Why not the grocers? The AEI Liability Project has a copy of the memorandum in support of the motion to dismiss on its "Documents In The News" page. Earlier successful deep-pocket search holding innocents liable for act of terrorist: Oct. 27. Update Oct. 8: judge denies motion to dismiss.

Everyone loves M-LAW's annual Wacky Warning awards (2005, 2004, and links therein), and this year's winners in the ninth edition of the contest are no exception. Bobcat-urine users are informed that it's not for human consumption; "Never try to catch a falling knife"; and don't try to use a 1000-degree paint-removing heat-gun as a hair dryer are among other winners.

The Texas Young Lawyers Association has published one of those "Fact/Fiction" guides to the jury selection process. Among its assertions: "Fiction: Lawyers ask questions designed to figure out who will help reach a verdict in their client’s favor." And, by contrast, "Fact: The main thing we’re looking for from potential jurors is the ability to be open to both sides of a debate."

Clay Conrad at JuryGeek (Dec. 18) finds this a good example of "Why People Think Lawyers Are Liars" and explains:

Let me make it clear: any associate with my law firm who looks mainly for jurors to be open to both sides of a debate will be unemployed before Voir Dire is over. We want jurors who will NEVER, EVER under ANY CIRCUMSTANCES, WHATEVER THE EVIDENCE consider the other side of the debate. We want jurors who are 100% biased towards our side, 100% hostile to the other side, and if we can get 12 of them, we want them.

We will settle for a fair and impartial jury, as a bare minimum. We assume, and have never seen this assumption proven wrong, that the other side is also seeking jurors who will be committed to their case, and biased against ours. That's the way the game is played - and shame on TYLA for lying to the public and prospective jurors about it....

Any lawyer who says he wants a fair and impartial jury is either incompetent (being deluded by bar association PR) or is simply lying, lying, lying. The public knows that. I've spoken to many high school classes. I ask them what they think a lawyer wants out of a jury, and they tell me a jury that will vote for their client. We know they know. Yet we strangely persist in lying to them when we know we'll be caught. That's either insane or stupid.

What is weird is that bar associations lie, to people who they know will KNOW they are lying, in a vain attempt to improve the public image of the bar. What they are in fact doing is proving to the general public that lawyers are liars and manipulators who cannot be trusted - because they lie when, if they gave any thought to it, they'd know they'd be caught by anyone with two brain cells to rub together.

It's filed lawsuits against "Fox Channel 25, the Boston Herald, and 14 other private citizens and organizations for having conspired to defame the organization." Its critics aren't easy to silence, though. (Dean Barnett, "A Mosque Grows in Boston", Weekly Standard, Dec. 14; Mark Jurkowitz, "Trial and terror", Boston Phoenix, Nov. 18-24; Jeff Jacoby, "Questions the Islamic Society should answer", Boston Globe, Jan. 1 (via Dan Kennedy)).

Plaintiff's class action lawyers have been making progress lately on theories of this sort, which doesn't thrill Tom Veal at Stromata (Jan. 3). More: PoL Jul. 17, 2005, Jul. 12, 2004; this site Dec. 13-14, 2001.

More: the Supreme Court has agreed to review carpetmaker Mohawk Industries' claim that it shouldn't have to face a hiring-aliens-as-racketeering lawsuit (see PoL Jul. 12, 2004)(Meredith Hobbs, "High Court Will Hear Mohawk's Bid to Toss RICO Suit by Employee", Fulton County Daily Report, Dec. 20).

Gadfly Signor Cascioli has engaged in three years of litigation against local priest Father Enrico Righi on the grounds that Christianity violates Italy's version of consumer fraud laws. A court of appeal reinstated the suit after the trial court threw it out. (Richard Owen, "Prove Christ exists, judge orders priest", The Times, Jan. 3; Phil Stewart, "Did Jesus exist? Italian court to decide", Reuters, Jan. 3) (via Bashman). Update Feb. 11: case thrown out again.

Thus ruled the West Virginia Supreme Court in a 4-1 decision, over a heated dissent from Justice Spike Maynard. Reports the Charleston Daily Mail: "Stephanie Michelle Conley sent West Virginia National a worthless check just days before she was involved in an accident on Aug. 31, 2001. According to the suit, Conley's negligence behind the wheel caused injury to three people." A lower court ordered the insurance company to make good on the policy. Justice Joseph P. Albright, in the majority, said the high court was simply applying existing precedent. (Bryan Chambers, "Car insurance ruling raises concerns", Huntington Herald-Dispatch, Dec. 10; "Court Upholds W. Va. Woman's Coverage, Despite Bounced Check", Insurance Journal, Dec. 12; "Maynard is wrong, Albright contends", Charleston Daily Mail, Dec. 22).

More on deep-pocket liability for crime, this time from Pennsylvania:

Reversing a lower court, the state Supreme Court ruled 4-2 Wednesday that the parents of a 10-year-old girl assaulted while selling candy for the Punxsutawney Area School District can sue the companies involved in the fund-raiser.

Lawyers on both sides of the case said the decision was likely to have a chilling effect on the wide range of for-profit businesses that help schools and other organizations raise money by sending children door to door.

A lawsuit against the school district was previously dismissed in federal court.

Attorney David Long, who represents the plaintiffs, said school districts "are begging for a lawsuit" if they continue to use such methods to raise funds....

In a dissenting opinion, Chief Justice Ralph Cappy wrote that he believes the girl's side ultimately won't prevail. He said that the fund-raising entities did not need to warn that there "exist in the world evil people who could possibly cause intentional harm to minor students."

(Eleanor Chute, Pittsburgh Post-Gazette, Dec. 30).

Following up on my WSJ piece about the problems that arose for the state of Washington when it came to be exposed to lawsuits alleging that it had failed to prevent some types of crime (see Dec. 24), Mike Tardif of the Washington attorney general's office (whose co-authored law review article I discuss in the piece) writes in as follows:

I read and enjoyed your article. You have accurately depicted the overall nature of the liability problem caused by creating liability for "governmental" functions and you have accurately summarized the gist of our law review article.

I have one comment on your point concerning why governments do not adjust their behaviors in response to liabilities for broad governmental functions. The primary reason is that what governments do in these areas is determined by the political process, i.e., the basic program, staffing levels, and funding are set by statute and budget. There is little or no ability at the administrative level to change these things in response to jury decisions in liability suits. Ironically, in a suit such as our Joyce case (the $23 million verdict), the Dept. of Corrections has no ability to raise taxes to create the funding for the parole officer positions needed to reach the level of supervision dictated by the broad liability imposed by the Court, but DOC does have the legal responsibility to put money into the risk fund to pay its settlements and judgments, thereby reducing the funds available to hire the parole officers needed to mitigate the risk.

I should also have mentioned that when my piece quoted the interesting comments of Prof. Greg Sisk of St. Thomas University School of Law on sovereign immunity as a species of separation of powers, I was actually quoting from a blog, namely the Catholic group lawblog Mirror of Justice (Oct. 19).

Restaurateur (see comments) Phil Romano has agreed to drop his lawsuit against the Dallas Morning News over its review of his local eatery, Il Mulino, in exchange for the paper's promise to run a second review of the restaurant in coming months. "While [reviewer Dotty] Griffith handed out 4-star ratings for service and ambience, Mr. Romano took offense at her criticism of some of the restaurant's main dishes, including entrees featuring its Bolognese and vodka sauces." We covered the case Aug. 24, 2004. ("Restaurateur, News settle review lawsuit", Dallas Morning News, Dec. 17)(via Romenesko).

I'm sure you're just shocked, shocked, to hear of shenanigans in an Illinois class action:

In [its] motion to dismiss, Microsoft notes that "Significantly, Plaintiff omits the fact that his Xbox 360, purchased in November 2005, is still covered by a 90-day warranty, under which Microsoft agreed to repair or replace it, or issue a refund. In fact, Plaintiff does not allege that he contacted anyone at Microsoft about the alleged defect, let alone that Microsoft refused to honor the terms of its warranty. Moreover, Plaintiff does not allege that his Xbox 360 ever malfunctioned. He alleges only that "members of the class have experienced malfunctions" with their Xbox 360s—not that he has.

(Update: broken link to the MS motion to dismiss fixed.)

Reacting to the recent Philip Morris decision (PoL Dec. 15, etc.), the columnist is in righteous form:

The Illinois Supreme Court's ruling stimulated the market for "tobacco-revenue munis." Those are municipal bonds backed by tobacco revenue streams resulting from a real fraud -- the Master Settlement Agreement. In 1998, 46 states conspired to seize $246 billion from companies that sell products made from a commodity -- tobacco -- the cultivation of which was then subsidized by the federal government....

The MSA is a deal struck between the state attorneys general and trial lawyers. For the latter, it was a financial windfall, netting about $13 billion in fees that sometimes amounted to tens of thousands of dollars per hour of work. For the former, it was a political windfall, enabling their states to finance this and that with billions paid by smokers, who are disproportionately low-income people....

The states' ability to continue treating the tobacco industry as a "budgetary Alaska" -- the last frontier for exploitation -- depends on brisk sales of cigarettes far into the future. So all 50 states, which in 2004 reaped $12.3 billion in cigarette taxes, have an incentive to carefully calibrate these taxes so as to maximize revenue. They want high taxes, but not high enough to cause large numbers of smokers to quit the habit that is so lucrative to states.

("The States' Tobacco Addiction", syndicated/Washington Post, Jan. 1)(more on tobacco litigation).

News from Australia: "A Federal Court judge dismissed the conglomerate's application to ban a small businesswoman from using the word 'virgin' in the name of her internet service provider and website-developing business, and lambasted Virgin for dumping 'an ocean of unnecessary and unhelpful material' on the court." (Vanda Carson, "Branson loses his Virginity", Dec. 27). For other far-reaching claims by Branson's company to uses of the word "Virgin", see Jul. 29.

Head-of-state immunity comes through for the Pontiff in a case alleging abuse cover-up. See Dec. 14, etc. (Catholic World News, Dec. 22). "The U.S. Department of State issued a suggestion of immunity in May, requesting that the pope be dismissed from the suit. 'Judicial review of this determination is not appropriate,' [U.S. District Judge Lee] Rosenthal wrote in the opinion." (Mary Alice Robbins, "Pope Dismissed From Suit Alleging Sexual-Abuse Coverup", Texas Lawyer, Dec. 23).

New Mexico state judge Daniel Sanchez last Tuesday agreed to a request by David Letterman's lawyers to lift a restraining order previously entered on behalf of a Santa Fe woman who had accused the TV host "of using special code words such as 'Oprah' to woo her into marriage" (see Dec. 22, Dec. 23) (Stephen M. Silverman, "'Absurd' Letterman Restraining Order Tossed", People, Dec. 28). Some comments: Wendy McElroy, Third Edge of the Sword, Meryl Yourish, In the Lion's Den.

Despite warnings that it could imperil the livelihood of musicians, Punch-and-Judy stalls, buskers and traveling entertainers generally (see Apr. 1, 2004), the British government in November put into effect new regulations requiring licensing of temporary public amusements. Now the Guardian reports that critics' predictions are coming true, as the rules have begun to strain smaller circuses, neighborhood music venues hosting jazz or ethnic music, street artists and charity Christmas carolers. "The only exemptions were for morris dancing, travelling fairgrounds and garden fetes." (Mark Honigsbaum, "Circus performers get caught in the act", The Guardian, Dec. 28).

...at gaming site 1UP.com (Nadia Oxford, "Trials and Tribulations", Dec. 14). More on computer and videogame suits: Nov. 27, Nov. 9, etc.