February 2006 Archives

"A federal court hearing on whether some two dozen hurricane evacuees can remain on a cruise ship past a mid-week deadline was delayed Monday while lawyers for the evacuees and the federal government tried to work out a compromise." ("Settlement efforts underway in lawsuit over cruise ship deadline", AP/KATC, Feb. 27). The Scotia Prince, on loan by its owners to FEMA to house St. Bernard Parish evacuees, was supposed to set sail this week. "Evacuees' attorney Michael Ginart Jr. said he would work to keep the evacuees on the ship as long as possible but declined to say what exactly what the settlement might entail." ("Hurricane Evacuees Head to Court Over Cruise Ship Housing", AP/FoxNews.com, Feb. 27; Steve Ritea, "Cruise ship residents sue over Wednesday eviction", New Orleans Times-Picayune, Feb. 25).

In the mail: my old friend Bruce Bartlett's new book, "Impostor: How George W. Bush Bankrupted America and Betrayed the Reagan Legacy", discussed by its author here. I haven't had a chance to do more than skim it, but here's a truncated version of its Appendix I, reminding us of the record of Presidents in using their veto pens to stop legislation:

FDR............635 vetoes
Truman............250
Eisenhower.....181
Kennedy............21
Johnson............30
Nixon.................43
Ford..................66
Carter................31
Reagan.............78
G.H.W. Bush.....44
Clinton...............38
Geo. W. Bush......0

Among the legislation enacted under the presidency of George W. Bush is the free-speech-curtailing McCain-Feingold campaign finance bill (which he'd pledged to veto), Sarbanes-Oxley, the prescription drug entitlement, and the expansion of the federal role in education, as well as innumerable profligate appropriations bills. The most recent president to veto no bills, before the current one, was James Garfield, who served for only about a half year in 1881 because of his untimely death.

I'm scheduled to be on the Fox News program at approximately 4:20 PM ET discussing the United Seniors' suit against tobacco companies, which we covered on Feb. 23.

More skirmishing in preparation for the expected lawsuit against soft-drink vendors over sales in Massachusetts schools (see Dec. 5, Dec. 7, Feb. 7, etc.), via a Boston Globe editorial ("Vending against obesity", Jan. 30):

In advance of the suit, Washington lawyer John Banzhaf sent an e-mail to 50-100 school committee members in Massachusetts ''to warn of your inevitable involvement in these law suits as a named party or otherwise..."

A couple of years back, Banzhaf threatened to sue the Seattle school district for renewing a $400,000 vending-machine contract with Coca-Cola (Jul. 3, 2003). Prof. Banzhaf's other doings, which have ensured him regular appearances on this site, include proposing lawsuits against parents of obese children and against doctors who fail to warn their obese patients about overeating (Dec. 3, 2004).

From a Rolling Stone investigative report on L. Ron Hubbard's Church of Scientology (Janet Reitman, "Inside Scientology", Feb. 23):

The church has a storied reputation for squelching its critics through litigation, and according to some reports, intimidation (a trait that may explain why the creators of South Park jokingly attributed every credit on its November 2005 sendup of Scientology to the fictional John and Jane Smith; Paramount, reportedly under pressure, has agreed not to rerun the episode here or to air it in England).

More on Scientology and litigation: Oct. 25, 2005, Apr. 16, 2004; Mar. 25-26, 2002; Mar. 19-20, 2001; May 3, 2000.

It's common for producers of fashionable clothing to rip off each other's popular ideas, and unless an item of apparel carries a deceptive label American law will provide little legal recourse for the original innovator against the imitator. Why is American fashion design nonetheless a highly innovative field? And does a similar analysis carry over to other areas where legal protection against copycats is weak, such as furniture design, hairstyle design and the development of food recipes? Tyler Cowen wonders at Marginal Revolution (Feb. 27).

Was high-profile civil rights lawyer and NYU lawprof Burt Neuborne working pro bono in the Swiss banks reparations case? Well, yes and no, it now seems. (William K. Rashbaum, "Lawyer's $4.1 Million Fee Angers Holocaust Survivors", New York Times, Feb. 25; Lattman, Feb. 27). Later updates: Jun. 30, Jul. 6, Oct. 6, 2006; Mar. 18, 2007.

Shannon Peterson, a special education teacher in the Arvada, Colo. public schools, "can't believe she's being sued for bathing before leaving for work." But the elderly couple who lives upstairs from her Denver condo unit have been complaining about noisy pipes, and unfortunately for Ms. Peterson they happen to have a son, Sheldon Smith, who's an attorney at the large law firm of Holland and Hart. Represented by their son, the Smiths "sued Peterson just before Christmas, citing the 'reckless and negligent use of her bathtub.'" Before that, the younger Smith had fired off a letter to Peterson, saying her "intransigence ... and tortuous conduct have resulted in incredible sleep deprivation for Mr. and Mrs. Smith. Your obstinacy has ruled the day. That will now cease." According to the Denver Post, his demand letter insisted that Peterson not run water in her bathtub before 8 a.m. Peterson says she can't afford steep legal fees on a schoolteacher's salary; a judge has scheduled a hearing on the suit for March 22. (Mike McPhee, "Lawsuit: Baths swamp sleep", Denver Post, Feb. 21).

Duly noted: Pennsylvania state treasurer and U.S. Senate candidate Robert P. Casey Jr. last June made his first fund-raising trip outside the East Coast, flying to Dallas aboard a private jet owned by the law firm of Baron & Budd, poster kids for legal ethics in the asbestos realm. "Casey flew out of Dallas with more than $71,000, including $28,000 from employees of Baron and Budd." (Carrie Budoff, "Money at center of Senate contest", Knight Ridder/Centre Daily Times, Feb. 13)(OpenSecrets.org). Similar: Jan. 8, 2001 (Sen. Edward Kennedy).

Now it's California legislators: "California residents who sell goods on eBay could have to pay a $295 fee and be regulated in the same way as pawnbrokers under legislation designed to crack down on the sale of stolen property." Opponents say the bill would drive out of business thousands of antique dealers and consignment shops, as well as eBay sellers and the dropoff shops and sellers' agents that work with them. Pawnbrokers, who are pushing the legislation, say that state law already requires that sales of secondhand goods be reported to local law enforcement, but that the law has gone unenforced against everyone but themselves. In recent years influential Sacramento legislators, including Senate President Pro Tem John Burton (D-San Francisco), have unsuccessfully proposed measures to require secondhand sellers to report transactions to a state law enforcement database, which is the pawnbrokers' key demand. (Greg Lucas, "Pawnbrokers try, try and try again", San Francisco Chronicle, Feb. 25). We earlier discussed proposals for licensing of eBay sellers in Ohio (Mar. 21, 2005) and North Dakota (Oct. 13, 2005).

So says Rob Pegoraro in today's Washington Post.

It's not that NTP never turned its ideas into a product. The patent system doesn't reserve success to owners of factories and laboratories; the guy living in his parents' basement is allowed to sell his idea to people with those resources.

No, the problem here is simpler. There are too many bogus patents getting handed out.

Richard Kreimer, the homeless man who made headlines in 1991 when he won $230,000 from officials of the Morristown, N.J. public library, who had ejected him for his strongly offensive body odor and for repeatedly staring at patrons, has now obtained a settlement in his lawsuit against a New Jersey bus company whose drivers allegedly refused to let him board their vehicles for similar reasons (see Mar. 17, 2005). Kreimer says that as a condition of receiving money he is bound not to discuss the terms of the settlement. He still has individual lawsuits pending against the two bus drivers involved, as well as a separate federal lawsuit pending "against NJ Transit, the city of Summit, and others, alleging he was wrongly ejected from train stations because he is homeless." Although a court later overturned the ruling on which the 1991 settlement had been based, it proved impossible to reclaim the $230,000 settlement paid him, which according to AP was spent about half on lawyers' fees and half on Kreimer's living expenses. (Wayne Parry, "Homeless man settles lawsuit against bus company", AP/NJ.com, Feb. 17; New Jersey for Change, Feb. 18)(& welcome Fark readers -- and apologies for the practice of Hosting Matters, which, we just now learned, blocks referrers from that popular site because it doesn't want to process the burst of traffic. If you get a blocking message, try "refresh/reload" or go to our main page and scroll down).

Yep, it's happened again: "The Minnesota Commerce Department on Thursday announced plans to fine a gas station chain $140,000 for repeatedly selling gas below the state's legal minimum price." (Tom Ford, Minneapolis Star-Tribune, Feb. 24). For earlier installments, see Jun. 5, 2004 (Minnesota again), May 21, 2005 (Maryland). And, of course, for the reverse, see Feb. 17, etc.

In The Old Days (ITOD for short) it was very unlikely that a six-year-old would draw a three-day suspension from first grade on grounds of "sexual harassment", as one just did, says Ned Crabb of the Wall Street Journal ("Schoolyard cred", OpinionJournal, Feb. 24). More: Wendy McElroy comments ("Sexual Harassment Policies Need Reform", iFeminists/Independent Institute, Feb. 17).

Mohammed Aqueel Hussain, 26, of Burnley, Lancashire, was on parole from a 2001 conviction for wounding, when, while driving a stolen VW Golf with a provisional license (he hadn't had a lesson in ten years) and no insurance, he killed a three-year-old girl, Levi Bleasdale, in a hit-and-run accident that he never reported. Hussain pled guilty to careless driving and handling stolen goods, and was sentenced to twelve weeks, leading Tony Blair, among others, to call for stricter sentencing. (BBC, Feb. 22; Mirror, Feb. 24; TimesOnline Law Blog, Feb. 22).

Overlawyered is pleased to be the only American blog on the TimesOnline's blogroll; one can find our UK coverage here.

Second verse, same as the first: this time, the defendant is Credit Lyonnais, and once again, the "connection" to a terrorist group is a charity that keeps a fraction of its money at the French bank, is considered by French law to be a legitimate charity. In fact, Commite de Bienfaisance pour la Solidarite avec la Palestine was not designated a "global terrorist organization" by the USA until August 2003, after many of the plaintiffs were injured by Hamas, which is not a defendant in the case. And the bank shut down the account in September 2003! (Joseph Goldstein, "Americans Sue French Bank In Terror Case", New York Sun, Feb. 24) (via Bashman). The motion to dismiss in the Weiss v. National Westminster case, which we discussed Jan. 6, is available on the Liability Project's Documents in the News page. Update Oct. 8: judge denies motion to dismiss.

Mark Bourrie, who puts out the blog Ottawa Watch, indulged in some unkind comments at the expense of Warren Kinsella, a prominent operative in Canada's Liberal Party. Then Kinsella filed a libel action demanding C$600,000. (Jorge Barrera, Ottawa Sun, Feb. 15; Jay Currie, Feb. 15). Although numerous well-wishers urged Bourrie to resist in court, the two sides settled the case within about a week and Bourrie published an apologetic note on his blog. Sequence of posts at Ottawa Watch: first, second, third, fourth, fifth, sixth, seventh.

Retired Texas doctor Max Wells is suing seven casinos and drugmaker Glaxo SmithKline, saying an anti-Parkinson's drug predisposed him to compulsive gambling. "His lawsuit, filed Friday, says the drug company didn't warn patients that Requip could cause compulsive behavior. And it cites a 2005 Mayo Clinic study that documented 11 Parkinson's patients who developed compulsive gambling habits while taking Requip or a similar drug called Mirapex." (Claire Osborn, Austin American-Statesman, Feb. 22; KevinMD, Feb. 22). More: Derek Lowe comments (Feb. 26).

Uh-oh: "A patent has been granted to a relatively unknown California Web-design firm for an invention its creator says covers the design and creation of most rich-media applications used over the Internet. The patent holder, Balthaser Online Inc., says it could license nearly any rich-media Internet application across a broad range of devices and networks. ...The patent -- issued on Valentine's Day -- covers all rich-media technology implementations, including Flash, Flex, Java, Ajax, and XAML, when the rich-media application is accessed on any device over the Internet, including desktops, mobile devices, set-top boxes, and video game consoles, says inventor Neil Balthaser, CEO of Balthaser Online, which he owns with his father Ken." (Eric Chabrow, "U.S. Grants Patent For Broad Range Of Internet Rich Applications", Information Week, Feb. 22).

The family of Tranquilino Mendoza agrees that he received good care from a nursing home, until he was paired with a mentally ill roommate, who beat Mendoza with his fists and a water pitcher, the thirtieth time or so he had assaulted someone at the home. Mendoza recovered from his injuries, and died less than three years later from unrelated causes. The jury felt that his estate deserved $160 million in damages. Liability may be appropriate (it's unclear from the press coverage what the nursing home could have done differently, since the roommate had to be placed somewhere), but the damages figure appears off by three orders of magnitude. (Sheila Hotchkin, "Jury awards $160 million in nursing home suit", San Antonio Express-News, Feb. 23).

"Flea", who practices as a pediatrician in the Northeast, gets a letter from his professional liability insurer instructing him "to maintain a high index of suspicion for the worst possibility" when patients present themselves, "even when the clinical presentation does not automatically lead one to [the] conclusion [that their lives or long-term health are in jeopardy]". His response (Feb. 13):

I'm sorry, ProMutual, I cannot practice medicine this way. Let me give the most trivial of examples.

The worst that a child with a fever could have is sepsis or leukemia. I simply cannot maintain a high index of suspicion and do appropriate testing to rule out sepsis and leukemia (i.e., draw a complete blood count and blood culture) on every one of my patients with fever, without regard to the patient's clinical appearance.

Our thanks to Warren Meyer for an excellent week of guest blogging -- we're hoping to have him back again soon. Remember to visit him at his own site, CoyoteBlog.

By a 7-1 vote, the Supreme Court decided that current law does not bar a lawsuit against the Postal Service for negligence by a Pennsylvania woman who was injured when she tripped on mail that the postman had left on her front porch. The Postal Service says it is re-evaluating its standards for leaving mail on people's porches when they are away (as opposed to making them come pick it up at the post office), but will probably not change things. ("Woman who tripped on mail can sue", AP/CNN, Feb. 22; Pete Williams, MSNBC Daily Nightly, Feb. 22)(Dolan v. USPS, main opinion/dissent, both PDF).

"A Rhode Island jury today found Sherwin-Williams Co. and two other paintmakers guilty of creating a 'public nuisance' by manufacturing lead paint after it was found to be dangerous." If upheld, the verdict will force the companies to contribute millions toward abatement of existing paint; a judge will also consider demands for punitive damages. The ruling, the first of its kind, is also expected to encourage the filing of more suits against the industry; the cities of Chicago and Milwaukee are among those with suits in progress. (Maya R. Payne, "Jury finds against three paintmakers", Crain's Cleveland Business, Feb. 22; AP/Boston Globe; Reuters). Blogger Jane Genova has been covering the three-month trial from the scene.

The verdict is an unfortunate confirmation that the "tobacco model" of mass tort litigation remains alive and well. In particular, contingency-fee private counsel have once again managed to 1) dream up a novel idea for litigation based on the idea that some category of public expenditure is really blameable on long-ago sales of a product; 2) sell the idea of suing to public officials who agree to front the action, and who thus provide (along with advocacy groups) a suitably public face for the lawsuit; and 3) manage to get liability attributed retroactively to businesses whose actions decades ago were plainly lawful under the standards of that time. In the Rhode Island case, in particular, the outcome represents the culmination of years of careful groundwork by South Carolina-based asbestos/tobacco powerhouse plaintiff's firm Motley Rice (earlier Ness Motley), which some years embarked on a strategy of making itself a behind-the-scenes kingmaker in Rhode Island -- one of America's most politically insider-ish, as well as smallest, states. For details on how the Motley firm quickly established itself the number one donor in Rhode Island politics, with special generosity toward officials who could be helpful to its idea for a lead paint suit, see Jun. 7, 2001.

For more coverage of the Rhode Island suit, see Jun. 8-10, 2001; Jul. 2, Nov. 1 and Nov. 16, 2005; and various other entries.

Yesterday I was a guest on WIBA talk radio's "Upfront with Vicki McKenna". And tomorrow morning at 6 a.m. Central Time I'll be a guest on Wisconsin Public Radio to discuss lawsuits against soft drink makers (links on that subject here and here)(last week's Wisconsin radio).

Clinton appointee Judge A. Howard Matz in California has issued a questionable and potentially disastrous result in copyright litigation, holding that Google's thumbnail indexing of images from third-party infringers of pornographer Perfect 10's copyright is likely to infringe and can thus be preliminarily enjoined pending trial. "The court is building a standard that only a lawyer could love," said Laurence Pulgram, a partner at Fenwick & West in San Francisco, who also questioned the court's disregard for precedent. (Xenia P. Kobylarz (!), "Perfect 10 Racks Up Preliminary Injunction Against Google", The Recorder, Feb. 22). Earlier coverage: Nov. 24, 2004.

Update: See also San Jose Mercury News (via Lattman).

Another update: And, via Bashman, here's the opinion.

Like the in-laws visiting for the holidays, I don't want to overstay my welcome at Overlawyered, so Wednesday will be my last day, at least for this stint. Before I go, I wanted to leave you with a few lessons I have learned about avoiding lawsuits in a customer contact business. Please note, I am not an attorney, and this is not legal advice, it's just what we do. Your mileage may vary.

1. Pay your attorney before a problem arises. My attorneys have been real allies in helping me review our procedures, create releases, craft an employee manual, etc.

2. Treat your employees well. Unhappy employees create internal problems, and are more likely to mistreat customers.

3. We always make an employee's first 60-90 days a probationary period, as indicated and accepted by them in their job offer letter. We have found it easier to treat the employee truly as at-will in that period. Some argue that using the probationary period makes it harder to fire someone after the period, but since we are a seasonal business and most folks only work for us for 4-6 months, this is not an issue for us. Ask your attorney about it in your situation.

4. Employees who show poor judgement in how they interact with customers will do it again in the future 99% of the time. We are very aggressive about weeding out these employees, terminating them when possible in their 60-90 day probationary period. In a seasonal business, we just don't have time to train new behaviors.

5. When employees or customers are hurt, we train our employees to provide medical care quickly. There is absolutely no return to being cheap with first aid, no matter what or who the cause. All of our employees know how to get injured people to the emergency room fast, and key phone numbers are posted in many locations.

6. I insist that every "incident", from injuries to confrontations with customers, be documented immediately by our employees on a company incident report. Even waiting a day will mean that critical details can be forgotten. This information is invaluable when dealing with possible claims later.

7. I always investigate personally any complaint that a customer or employee brings to me. I will document my findings for the file, and always provide a written response to the customer. If I think they are considering a claim, I always write the letter assuming that it will be read by an attorney considering taking on their case on a contingency basis. Remember that attorneys have to decide if a client is worth their time -- this is a chance to convince them it is not.

8. Get a good business insurance agent. If your agent says "no, I can't get your coverage for that" then you probably have the wrong agent. I never knew how mediocre my previous agents were until I had a great one. Also, insurance companies have a lot of good free resources to do safety and risk inspections.

9. Invest the time in a good manual for your supervisors. Don't think of it as a policy manual, think of it as a giant FAQ. Every time one of our managers faces an odd new situation, we assume it can happen again and publish guidance for them in the manual.

10. Don't operate in California or Florida. Well, since we are a recreation business, we almost have to be in these states. So we just plan in advance that insurance and other costs will be higher.

Did an attorney conspire with his client to assist his jury tampering in a murder trial? So alleges the now-convicted murderer's wife, who has plead guilty to obstruction of justice and is the star witness against her husband and the juror; the attorney denies wrongdoing and has not yet been charged. (Henri E. Cauvin, Washington Post, Feb. 22).

Author John Mortimer on the U.K.'s new ban on smoking in pubs: "I have now been pushed by a parliamentary majority of snivelling puritans, who seek to control every moment of our lives, to increase my consumption. ...The best part of it is that governmental disapproval now adds considerably to the pleasures." ("Snivelling Puritans make me fume", Daily Telegraph, Feb. 16).

"If you're passing all of your classes but you can't pass the state's high school exit exam--even after many tries and even though it's based on 8th, 9th, and 10th grade skills--do you blame the school system that passed you despite your lack of knowledge or do you blame the test? A group of California parents and students have chosen the latter and are suing the state." They're represented by a lawyer from high-toned Morrison and Foerster, too. (A Constrained Vision, Feb. 20; Debra Saunders, "Passing the High School Test", San Francisco Chronicle/RCP, Feb. 16; Ruben Navarrette Jr., "Lunacy in Our School Districts", San Diego Union-Tribune/RCP, Feb. 19). Update May 15: judge rules in favor of plaintiffs.

I don't usually link to registration-required sites, but this article is worth it (and the registration is not too intrusive). Charles Burck writes about the reaction to the Netflix class-action settlement, and makes this observation which I would love to be true but strikes me as overly optimistic:

Could this be the Boston Tea Party of the class-action game—a relatively small-potatoes event that leads to epochal change? An Internet-driven consumer uprising against a pending class-action settlement by Netflix, the online movie-rental outfit, may torpedo this particular deal. But even if it doesn’t, the uproar reveals a growing universe of people who are as mad as hell about suits where lawyers pocket millions while each injured party gets a coupon worth $6, maybe.

(Charles Burck, "Bloggers Challenge a Class-Action Settlement", Corporate Board Member Magazine, March/April 2006). One might hope. The opponents of the settlement cite two problems with the settlement: 1) Only the lawyers got cash, and 2) the coupons Netflix is sending to customers are really a low-cost marketing program for them, like locking you into a magazine subscription with a free first month, and doesn't really punish Netflix or compensate customers at all. So, either there was no harm, and the suit was a big frivolous mess, or there was harm to customers, in which case the settlement utterly failed to redress it.

Anyway, just in case you are deterred by the registration requirement, I will share this not-to-be-missed quote:

A surprising number of bloggers on both sides of the customer-satisfaction aisle were upset by the whole idea of the settlement. “I too am quite tired of getting the countless class-action lawsuits that seem to infiltrate my mailbox, where someone felt as though their hamburger wasn’t quite two ounces, their car was 1 hp less than advertised, or they (in this case) can only see 10 movies a month,” said Dave Guo of Pittsburgh on MSNBC’s Red Tape Chronicles, a blog. “The pathetic joke to it all is, the only one that gains is the attorney in every case.”

Also weighing in on this point was “Will,” who posted on Geektronica.com. “I really don’t care whether the lawsuit was justified,” he said. “I don’t care if it’s about false advertising or a petulant subscriber. I don’t care if this guy should have been subscribing at a higher level. I don’t care if anyone here personally saw the effects of throttling or not. What I care about is a $2.5 million payout to a bunch of lawyers. If Netflix did wrong by its customers, why is it that the lawyers are getting the biggest payoff?” Even some attorneys agreed with the point. “We lawyers get a lot of undeserved abuse about a lot of things,” said Tom Moss, posting on Red Tape Chronicles. (Perhaps wisely, he didn’t give a hometown.) “But when it comes to class-action lawsuits and coupon settlements, lawyers deserve every rotten thing that can be said about them.”

Apparently, there is a website to protest the settlement which announces a hearing set for tomorrow (Feb 22). Ted and Walter have been all over this on Nov 3, Jan 11, Jan 21

No, I don't mean to start a discussion over the existence of a deity or whether that entity intervenes in the material world. I am sure Walter would permanently disown me for starting such a food fight on his blog. No, what I mean is, does the legal term "act of god" have any meaning nowadays vis a vis liability, or are all damages now necessarily someone's fault?

The other day I listed some of the litigation and threats of litigation we get in our public contact business (Feb 20). Another common claim we get is from damages our customers suffer to their property due to what I would call natural events or from meeting up with inevitable natural hazards (e.g. hitting a rock while off-roading). Let me give a specific example that is not real but is typical of these claims.

A customer drives into a National Forest campground we operate. During their stay, on a particularly windy day, several trees fall over including a large tree that crushes the roof of their camper. Is this an act of god? Or am I, as I can assure you every such customer and insurance lawyer out there seems to believe, liable for the damage to their car?

Well certainly, one criteria would be whether I exercised due care in maintaining the health of the trees in public areas. And in fact we have a hazard tree process where experts from the US Forest Service, whom a reasonable person would consider the best in their field, assess the health of trees in public areas and mark trees that might pose a danger of falling for us to remove. Lets posit that we had just completed this process, and the tree that fell looked healthy to all the experts. I guess the question is, in today's legal environment, is there any such thing as being able to prove "all due care", or in effect does the accident itself serve as prima facia evidence that due care was not exercised, even if no one can think of what else could be done? Comments are open.

The federal government has established something called a Vaccine Adverse Event Reporting System to collect reports of possible side effects related to immunizations. Sounds like a useful tool for epidemiological study, right? Except that, it seems,

anyone can submit a report to it, and no one actually verifies the accuracy of the report. Indeed, James Laidler once tested the system by submitting a report that the influenza virus had turned him into The Incredible Hulk. The report was accepted and duly entered into the database.

A more serious problem with the self-submitted nature of the data is that it provides a way for vaccine scares to self-amplify: lawyers pressing compensation claims make a point of submitting their clients' case histories to the VAERS, and before long -- what do you know? -- the database is showing a worrying rise in reported side effect incidents, which itself feeds the litigation. Now a study in Pediatrics traces the ways in which litigation-driven reporting has distorted the contents of the VAERS database, especially as regards the purported association of the preservative thimerosal with childhood autism. Respectful Insolence explains (Feb. 6 at old site, more recently blogging at ScienceBlogs)(via MedPundit) and also ties the story in to the disgraceful performance last year in Rolling Stone by celebrity demagogue Robert F. Kennedy, Jr. (Jun. 20 and Jun. 26, 2005). More: pediatrician Flea also weighs in (Feb. 22).

On Friday, a new class action lawsuit was filed against McDonald's for not fully disclosing the presence of dairy products and wheat glutens in their french fries. The suit was prompted by McDonald's admission two days earlier that their fries do include milk and wheat, at least in small amounts. The suit does not appear to list any specific instances of people being harmed by trace milk and wheat in french fries, though a separate suit filed in Miami by the parents of a 5-year old girl alleged the fries caused their daughter to get very ill (though according to the article the parents continued to feed the girl McDonalds fries for two years).

As my guestblogging stint winds down here at Overlawyered, I wanted to reflect a moment on lawsuits I see around me every day. My company runs an outdoor recreation business, mainly running campgrounds on public lands. As a public contact business, we get people trying to make all kinds of strange claims against us.

For example, we have had at least two different people who needed an operation that they couldn't afford come into our facility and fake an injury to try to get us to pay for the operation. Fortunately, in both cases, the individual involved lived locally and had tried the same stunt at several other local businesses, and we were able to get them to move their efforts on to some other business (we used to have the same philosophy about fire ants in Texas -- you can't get rid of them, you can only chase them onto your neighbor's yard). We have also had several people try the same thing, but as employees, turning down office work and begging us to give them lots of physical labor, only to be hit with a workers comp claim within weeks.

Every year, we have hundreds more job applications than we have positions to fill, so we have to turn down a lot of qualified people for employment. It is often the case that when one of these people we turn down for employment considers themselves in a "protected" group, they call me threatening to sue. Several folks who were over 65 have threatened to sue me for age discrimination, which always makes me laugh, since the vast majority of the 500 people I employ are over 65 -- many are over 80 and a few are even over 90! We have also had at least one person who interviewed in a wheelchair threaten to sue for discrimination against the handicapped, right up until we saw him playing football at the beach in our campground (and despite the fact that over 10% of my work force is disabled in some way).

We always have issues with employees who honestly believe that the courts are supposed to act as a grievance and appeals board for job terminations. I can't even describe the large percentage of employees we terminate for cause who call me and tell me they are going to sue. Even when they don't sue (and few do, since lawyers working on contingency need to see some hope of winning) they still cost me a ton of time, because I feel the need to personally investigate every one to make sure my managers are treating people the way they should. In many cases, we probably wouldn't have hired the person involved in the first place because they have a history of poor performance and quick terminations, but it's hard to find this out anymore since lawsuits have dissuaded many companies from responding honestly to reference checks.

Despite all of these, my favorite suit actually was against the company from who we bought most of our assets. One day, a male visitor was near the campground in bare feet, and claims to have stepped on a nail. The nail caused a small puncture wound on the bottom of his foot. Employees offered to get the man to the emergency room to treat the puncture and to get at tetanus shot, but the customer turned down care. Months passed, and the case was mostly forgotten. Until one day the company was given notice that the man was filing suit for sexual dysfunction. Apparently based on some medical logic I never understood, perhaps some strange acupuncture effect, the man claimed he was unable to perform sexually based on stepping on that nail. In a sane world, this would have been dismissed out of hand. However, years later, the suit lumbers on, continuing to generate legal bills and settlement pressure.

"Larry Stewart said shortly after his father gave the agent money for a [million-dollar life insurance] policy, the elder Stewart had a stroke, lapsed into a coma and died about seven weeks later at age 73." Strangely enough, the agent and Prudential didn't have a record of the policy. A jury believed the Stewarts, because it's common for 73-year-old men to have brand-new million-dollar life-insurance policies, and awarded $36.4 million against Prudential (and $9600 against the insurance agent), who will appeal. The $35 million punitive damages award would have been capped had the case been brought after liability reforms were passed in Mississippi in 2003. (Jimmie E. Gates, "$36.4M awarded in lawsuit", The Clarion-Ledger, Feb. 17).

By extending civil liability to acts of terrorism overseas, the Patriot Act has unleashed a new weapon of mass destruction at Al Qaida: The Plaintiff's Bar. Last Friday, they achieved their first victory:

A Utah soldier blinded in one eye during a firefight in Afghanistan that killed his comrade has won a default judgment against a father accused of training his young son to be a terrorist.

Sgt. Layne Morris, of West Jordan, and the family of Army medic Christopher Speer, killed in the 2002 gunbattle, have been awarded triple damages of $102.6 million.

On Friday, U.S. District Judge Paul Cassell said in his ruling that the lawsuit may be the first filed by an American soldier under the anti-terrorism law known as the USA Patriot Act. While GIs serving abroad likely cannot identify their attackers, causing problems in future terrorist cases, that stumbling block "poses no barrier" in this case, said Cassell.

Morris, who served with the 19th Special Forces, cited news reports - including interviews with his attacker's immediate family - indicating that Omar Khadr, then 15, had wounded him and killed Speer. Similar evidence also showed that the boy's father, Ahmad Sa'id Khadr, was bagman to the terrorist organization al-Qaida and trained his son to attack American targets.

(Dawn House, "GI injured in Afghan war wins lawsuit", Salt Lake Tribune, Feb 18)

This, according to a Bloomberg News count. Bloomberg dutifully quotes a law professor who argues that this means that Ford should change its litigation strategy of refusing to settle before trial. Is there any other profession where the professor of a subject is so regularly wrong about the practice of the subject?

Taking the cases to trial is cost-effective because Ford wins 70 percent to 80 percent of them, said spokeswoman Kathleen Vokes.

"We know from 13 years of experience that being ready, willing and able to defend our products and people, even in 'judicial hellholes,' is the most effective way to control litigation costs," Vokes said. "The rare big verdict that is upheld on appeal is more than offset by all of the other cases that we win or settle on favorable terms."

We covered four of the seven cases: Nov. 21; Nov. 17; May 29 and links therein; Mar. 21. And I owe readers a post about a fifth case, Jablonski, which I thought I had posted about, but didn't. (The Munoz case (Jan. 26) was a 2006 case.) It says something about the commonness of a $20 million verdict that none of these five cases made national headlines, and that we missed the other two entirely, in my case because they slipped through my Google News filter.

Dogs defending cats dept.: Denver's Rocky Mountain News editorially criticizes the "fair housing" complaint against the online service over allegedly improper rental, roommate and property-sale ads ("Meddlers eye online freedom", Feb. 19)(see Feb. 9).

Merck won the first test of Vioxx in a federal court, though the short-term nature of the plaintiff's use probably made it one of the weaker cases facing the company.

Merck & Co.'s painkiller Vioxx wasn't to blame for a Florida man's fatal heart attack in 2001, a federal jury ruled today, the company's second victory in lawsuits filed over the drug.

Jurors in New Orleans deliberated for three hours and 40 minutes before clearing Merck in the death of Richard ``Dicky'' Irvin, who had taken Vioxx for 23 days. The first trial in the case ended in a mistrial in Houston in December.

("Merck wins retrial of first federal vioxx lawsuit", Bloomberg, Feb 17). Ted Frank has more at Point of Law.

Apparently Amazon is facing yet another suit over patent infringement involving its website technologies. "The complaint accuses Amazon of using technology on its own Web site and for third parties such as Target.com that infringes on two Registrar Systems patents, Amazon said." ("Amazon named in patent infringement suit", Puget Sound Business Journal, Feb 17).

Though I am generally sympathetic to companies sued over software patents, particularly since the US Patent Office seems to have completely lost its mind in granting many of these patents, I have little sympathy for Amazon. After all, they were the ones to patent and then sue their rivals over "one-click" ordering.

My college roommate, who was a trade lawyer for quite a while, told me a story of a company trying to get their disposable cigarette lighter to pass the US child safety tests (I promise we will get back on topic in a second). I can't remember the exact test, but it involved giving a bunch of children the lighter and observing how many in a certain amount of time could figure out how to defeat the childproofing. Apparently a key to success was to (literally) go out and find the slowest and dullest group of kids you could. Which brings me back to the one-click patent, where surely Amazon must have gone through a similar process to find a patent examiner who would declare one-click ordering "non-obvious" and patentable.

In another giant leap for the equality of women, Broadway producer Dede Harris has demonstrated that its not just men who can get sued for sexual harassment:

The casting couch of the sexually predatory producer is a dirty secret that has been part of Hollywood and Broadway since the first actors trod the boards. But, like any great headlining play, the newest sex scandal to hit America's acting profession has a fresh twist: the top producer accused of sexually harassing the cast of a Broadway play is a woman.

Her alleged victims are also far from being wide-eyed starlets. Instead they are some of the top names on Broadway, including Irish actor Gabriel Byrne.

Dede Harris, one of the most famous producers in New York, has been landed with a multi-million-dollar lawsuit after half the cast of her latest play walked out.

Paul Harris, "Turning the Tables on the Casting Couch" The Observer, Feb 19

Well, this should be entertaining: "In a twist that could have many in Hollywood on edge, federal prosecutors revealed Thursday that they have taped conversations between indicted sleuth-to-the-stars Anthony Pellicano and clients who hired him to dig up dirt on rivals." (Greg Risling, AP/Macon Telegraph, Feb. 16). More: Feb. 16, Feb. 7, etc. And the San Francisco-based Recorder has much more about this week's indictment of a prominent Hollywood attorney in the unfolding scandal (Kellie Schmitt, "Attorney Terry Christensen Indicted in Case Involving Hollywood PI Pellicano", Feb. 17).

El Defenzor, a Corpus Christi paper of questionable credibility, claims to have uncovered e-mails among the plaintiffs' bar in that town hand-picking judges for the bench at election time. Unfortunately, this germ of an interesting story is buried in bad punctuation and a deranged-sounding ungrammatical writing style that is consistent with what a commenter here calls "tinfoil hat-wearing." But the quoted e-mails themselves have indicia of genuineness (including accurate e-mail addresses and corrections of typos in the title line in later iterations), and some of the other allegations in the story are consistent with stories that we have reported from the San Antonio Express-News and a newspaper-destruction scheme we documented in another Watts case. It's also consistent with the reports filed with the Texas Ethics Commission; witness the disclosures by the front group "Good Government PAC," which has the same address and office number as the Watts Law Firm.

Imagine what a credible journalist could do with this story! Sixty Minutes? Houston Press? Dallas Observer? Corpus Christi Caller-Times? Texas Monthly? Anyone out there?

Taser International has experienced tremendous growth over the last few years, but now is facing a growing number of lawsuits. Some of these suits narrowly focus on police departments for their use of the Taser, while others name Taser itself in defective product suits. A quick scan of the news over just the last few days reveals suits in Georgia, Ohio, Tennessee, Canada, Florida, and Minnesota.

Taser claims that many of these suits have been dismissed. Taser faces some of the same problems faced by vaccine makers and even airbag makers - their product clearly saves lives vs. the alternative (i.e. getting shot with a real gun), but this "safer product" value proposition gets confused with "completely safe," which leads to careless use and mistaken expectations.

Over at Coyote Blog today, I observe that while most of us have shifted our attention away from Katrina, gas price "gouging" lawsuits against gasoline retailers still continue. Sunoco became the latest retailer to settle, paying New Jersey over $300,000 to be left alone. Many other states have also gotten into the act, including Aspiring Governor Eliot Spitzer, who would never miss an opportunity to score some populist points.

So, having spent months trying to explain markets and supply & demand and refute the silliness of the "price-gouging" concept, what are gasoline retailers doing today? Why, they are hauling credit card companies in front of Congress to accuse them of ... price gouging (Coyote Blog, Feb 17). Also see Sept 2, Sept 1.

This is a bit off topic from civil litigation, but Tom Kirkendall, a Houston attorney following the Enron trial, makes the case that the Enron prosecution team or "task force" has been pushing the envelope of prosecution tactics, with disturbing results.

In an unprecedented move, the Task Force has named over 100 co-conspirators in the case. So, the potential definitely exists for substantial testimony about out-of-court statements going to the jury without the defense ever having an opportunity to cross-examine the persons who made the alleged statements. Moreover, fingering unindicted co-conspirators is an equally effective technique for the Task Force to prevent testimony that is favorable to the defense because persons named as unindicted co-conspirators are likely to the assert their Fifth Amendment privilege against self-incrimination and thus, not be defense witnesses during the trial. Thus, the Task Force's liberal use of the co-conspirator tag has a double-whammy effect -- not only does it allow the Task Force to use out-of-court statements against defendants without having the declarant of the statements subjected to cross-examination, it has also effectively prevented previous Enron-related defendants from obtaining crucial exculpatory testimony from alleged co-conspirators who have elected to take the Fifth and declined to testify.

Kirkendall argues that despite these tactics, the task force botched the broadband prosecution, and already seem to be making mistakes in the Lay/Skilling trial. He has a lot of fun, in particular, with the task force's indictment against Lay and Skilling, which was apparently so poorly written that the prosecution itself has petitioned the court not to let the indictment be referred to in cross examination. (Tom Kirkendall, Houston's Clear Thinkers, Jan 27)

Almost makes you nostalgic for Marcia Clark. But probably not Janet Reno. Over at CoyoteBlog, I wonder whether NJ prosecutors are more interested in upholding the law or getting front page pub in the NHL betting case.

We frequently hear from plaintiffs' attorneys that we don't have the courage to print their side of the story; somehow, we always do. The latest challenge to our "moral fortitude" comes from Roger S. Braugh, who objects to our post on the Rose Marie Munoz case, where a woman who didn't wear a seatbelt received a $29 million verdict in a failure-to-warn case where a recall notice had been issued. We've posted the full comment and my full response at the original post; a lengthy partial point-by-point rebuttal is after the jump here. In addition, Brough has offered to answer questions about the case; I've posted a preliminary list.

Brough's complaint about those "spending millions of dollars" on tort reform is ironic; he is allegedly a member of what a community paper calls Mikal Watts's "Millionaire Lawyers Club" that allegedly handpicks judges and influences elections on the 148th District Court in Corpus Christi. But given that a runaway plaintiffs' bar is costing the American economy hundreds of billions of dollars a year, it's unsurprising that some of the victims of that problem seek to fix it. But the plaintiffs' bar outspends reformers by a 3-1 ratio.

Jonathan Samuels employed a 52-year-old widow named Marta Pinto, who was having domestic abuse problems with her boyfriend, 79-year-old Marc Benayer. Samuels helped Pinto disengage from that relationship, which apparently upset Benayer. On a Rosh Hashana in Boca Raton, Benayer greeted Samuels at his synagogue's services, wished him a happy new year, and asked him outside to chat; Samuels agreed, and Benayer shot Samuels twice in the back. Samuels was in intensive care for two weeks and has yet to return to work; Benayer has been charged with attempted murder. Samuels has sued Benayer (of course), but also... the owner of the shopping center that leases space to the synagogue, alleging failure to provide adequate security. (Howard Goodman, "Blaming shopping center for assault makes no sense", Sun-Sentinel, Feb. 16).

Other Deep Pocket File entries.

The basic complaints in the suit are so common as to not really be newsworthy. Mary Sidney, COO of San Jose State University's foundation, filed suit recently that she is underpaid vs. her white male peers who hold similar jobs. Here is the line, though, that caught me attention:

The foundation's board of directors failed to ensure that Sidney was properly compensated, according to Sidney's complaint.

Wow! Throw away all those "you get what you negotiate books", there is already someone else out there that has the legal responsibility to make sure you are paid enough. Think of all the hardship I put my family through, moving them to new cities so I could take new jobs with better pay -- it was all wasted effort. I should have been able to stay in one place and let my bosses take responsibility for making sure I was paid enough. (Becky Bartindale, "Suit claims salary bias" San Jose Mercury News, 2/16)

Bernie Marcus, who founded the Home Depot chain as a "regular guy" starting from one store, says that he couldn't have done it in today's legal environment.

We went public after opening our fourth store because we needed the capital to open more stores. Going public and entrepreneurship were the keys to our success. If you’re a public company today, you have to be surrounded with lawyers and you can’t make a decision without a lawyer on one side of you and an accountant on the other side. Today, you just can’t use your business judgment to take the risks that must be taken for a new company to succeed. And, one share valuekiller lawsuit can kill a startup company. Back in 1978, those lawsuits were rare. Today, all you have to do is pick up a newspaper and read about one after another.

(IBD staff, "The Home Depot’s Bernie Marcus On Why He Couldn’t Do It Today", Investors Business Daily, Jan 30 pdf). Mr. Marcus dedicates a lot of his philanthropy to tort-reform. When asked why, he said "I’m concerned for the next generation of entrepreneurs whose creativity, risk-taking and innovation are stifled by the current legal and regulatory climate. Will they be able to create the next Home Depot?" As one of those entrepreneurs, thanks! (see also Jan 15).

My company is in the business of managing recreation sites, many of which are located in the National Forest. I deal with local Forest Service rangers all the time, and I'll tell you they have an almost impossible job. They all joined the Forest Service because they wanted to be close to trees, but many of them find that the closest they get to trees every day is via the reams of paper they must generate in environmental impact studies and motions in lawsuits. Everything they try to do in the forest tends to be blocked legally by somebody, the most common opposition coming from environmental groups.

One federal judge may be raising the costs of filing such suits against everything.

In November, U.S. District Judge Donald Molloy ordered a halt to logging on the Beaverhead-Deerlodge National Forest, outside of Butte, after three environmental groups appealed the judge’s earlier decision to allow the 2,600-acre timber harvest. Then, on Dec. 20, Molloy ordered the groups to post a $100,000 bond. Should the groups lose their appeal before the 9th Circuit Court, the money would help compensate the Forest Service and a private contractor for losses due to the delay, such as decaying timber. The agency had requested a $400,000 bond.

"We have asked for this kind of accountability for years," says Ellen Engstedt, executive vice president of the Montana Wood Products Association. "Ninety-eight percent of these cases are not legitimate. These groups have nothing to lose."

While this is not really a true loser-pay system, and appeal bonds are fairly normal, they seldom cover the true costs of the delay and extra litigation. Apparently this bond is getting attention for being 10x larger than is typical. (Brett Wilkison, "Judge orders litigating enviros to pony up", High Country News, Feb 6).

In 2003, a terrible fire in a Providence night club killed a hundred people and injured many more. The fire apparently started when Great White's (the live band) pyrotechnics ignited soundproofing foam around the stage. The victims initially filed suit against "four dozen defendants, include club owners Jeffrey and Michael Derderian and former Great White tour manager Daniel Biechele." Biechele recently plead guilty to a hundred counts of involuntary manslaughter for igniting the pyrotechnics, and the club owners are fighting the same charges.

Now, as the statutory deadline (3 years apparently in Rhode Island) for new suits approaches, and perhaps given the disappointing depth of the current defendants' pockets, the victims and their families have filed suit against "dozens" of others in the fire. The suit now names individual members of the band, the company that distributed the acoustic foam, and even Home Depot, for not "warning of the potential hazards" of the insulation they sold the club, despite the fact that the insulation Home Depot sold "is different from the foam ignited by the pyrotechnics". (Eric Tucker, "New complaint filed in nightclub fire case", Houston Chronicle, Feb 15)

And very likely not the last: "A grand jury indicted prominent Hollywood attorney Terry Christensen on Wednesday for allegedly hiring investigator Anthony Pellicano to wiretap Lisa Bonder Kerkorian, the ex-wife of billionaire and former MGM owner Kirk Kerkorian. Christensen is accused of paying Pellicano at least $100,000 to illegally eavesdrop on Bonder Kerkorian's conversations with her attorney, a court mediator and others to gain a tactical advantage in a legal dispute." Christensen's firm, Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro of Century City, vigorously denied the allegations. (Jesse Hiestand, "Lawyer indicted in Pellicano case", Hollywood Reporter, Feb. 16; Greg Krikorian and Andrew Blankstein, "Entertainment Lawyer Indicted in Pellicano Probe", Los Angeles Times, Feb. 15). For our earlier coverage, see Feb. 7, etc.

The excellent free website associated with the Wall Street Journal editorial page, OpinionJournal.com, today launched something it calls its "Federation of Sites". It's a collection of websites published by policy institutes, magazines, and so forth, along with five weblogs, of which we're honored to be one. (The other four: Instapundit, Volokh Conspiracy, Virginia Postrel's Dynamist, and Eduwonk). Needless to say, our views should not be attributed to them or vice versa, although they may occasionally select postings from this site to reprint there. Check it out here.

Apparently, 2005 was a record year for class-action securities settlements, (Patti Bond, "Class-Action Securities Settlements Set Record, Indianapolis Star, Feb 13)

Companies shelled out $9.7 billion in shareholder settlements in 2005, according to Cornerstone Research, a national financial and economic consulting firm. Included in that figure is WorldCom's whopper $6.2 billion payout. But even excluding WorldCom, the value of cases settled was still the highest ever tracked by the firm -- rising more than 17 percent from total settlements in 2004.

Researchers said they were struck by increases across the board for 2005, in both the number and size of the settlements.

If it has not become abundantly clear already, I am not a lawyer, so I can't comment on the legal ins and outs. But from a philosophical standpoint, shareholder suits have never made much sense to me. While I can understand the shareholders of the company suing a minority shareholder who might be enriching themselves disproportionately (e.g. Rigas family at Adelphia), suits by shareholders against the company they own seem... crazy.

Any successful verdict for shareholders against the company would effectively come out of the pockets of the company's owners who are.. the shareholders. So in effect, shareholders are suing themselves, and, win or lose, they as a group end up with less than if the suit had never been started, since a good chunk of the payout goes to the lawyers. The only way these suits make financial sense (except to the lawyers, like Bill Lerach) is if only a small subset of the shareholders participate, and then these are just vehicles for transferring money from half the shareholders to the other half, or in other words from one wronged party that does not engage in litigation to another wronged party who is aggressively litigious. Is there really justice here?

OK, you could argue that many of these shareholders are not suing themselves, because they are past shareholders that dumped their stock at a loss. But given these facts, these suits are even less fair. If these suits are made by past shareholders who held stock (ie, were the owners) at the time certain wrongs were committed, they are in fact paid by current and future shareholders who may well have not even owned the company at the time of the abuses, and who may in fact be participating in cleaning the company up. So these litigants are in effect making the argument that because the company was run unethically when they owned it, they are going to sue the people who bought it from them and cleaned it up? Shouldn't the payment be the other way around, with past owners paying current owners for the mess they left?

This is a bit off-topic from litigation, but one of the issues I touch on from time to time in my own blog is just how hard the government makes it to conduct business. While Ted and Walter seem to enjoy what they do, not all of us want to shuffle documents through the legal system every day.

As brief background, my small business runs recreation facilities on public lands under concession contracts. This week we won our first contract with the National Park Service, to run a restaurant and a couple of marinas in Colorado. Since this is our first foray into that state, there are a lot of legal hoops we must jump through to get all the permissions we need to conduct business in Colorado. In fact, as I describe on my blog, my work list is up to 20 fairly time-consuming approvals we need to obtain. And I am sure this list will grow. Even after years in a state, we still can have some random inspector coming by looking for our (fill-in-the-blank) licence, which we had never heard of to that point. My favorite so far is probably Kentucky's requirement that I get a licence to sell eggs.

About six months ago, a business school professor asked if I would just write down what I was working on that day, as a part of a lesson in entrepreneurship for his students. Later, I posted the list on my blog. I ended the post by saying, "An alien from another planet in reading this post might question whether I am really working for myself or this 'government' entity"

The Senate has apparently defeated the bill that would create a $140 billion trust fund to pay asbestos claims (Charles Hunt, "The Senate Defeats Asbestos Trust-fund Legislation" The Washington Times, Feb 15).

Liberals and conservatives in the Senate joined together last night to stop legislation that would have created a massive trust fund for victims of exposure to asbestos. Years in the drafting, the bill is disliked by conservatives who fear that the costs will be passed on to taxpayers and by liberals who worry that victims will lose their rights to sue companies that, however unwittingly, exposed workers to a substance now known to cause cancer.

Whether this represents a final defeat of the measure is unclear, since there seem to be a number of procedural questions surrounding the bill. The Wall Street Journal ($) had an interesting editorial yesterday (2/14), which described the bill basically as deeply-flawed legislation to try to correct a deeply-flawed litigation situation.

The trust fund concept would take most of these cases out of the courts by guaranteeing a payment from the fund. This would prevent dozens of already, or soon-to-be, bankrupt companies from becoming wholly owned subsidiaries of the tort bar under the current bankruptcy code. As long as the money holds out, the trust fund would also offer companies some certainty about payouts, avoiding jackpot judgments.

And yet what Congress would create here is a gigantic new federal entity, with all of the moral hazard that such things always involve. Since no Congress can bind a future Congress, the medical criteria that pass this year can change faster than you can say "Chairman Pat Leahy" if the Senate changes hands this November. The companies that support the trust fund would receive an immediate benefit, while taxpayers would be assuming a lifetime of political risk.

You can see the vote count here, but, in a fairly unique outcome in these hyper-partisan times, both Democrats and Republicans were split on this one.

Update: Made a few changes to the links to try to better match Ted and Walter's style

Ted has more on the bills prospects at Point of Law, as well as a whole archive of following the asbestos mess.

Greetings, Overlawyered readers. My name is Warren Meyer, and Walter, who generally strikes me as a sane and stable person, has had some odd lapse in judgement and asked that I come in and guest blog this week. After blogging on my own site for a little over a year now, I feel like a long-time minor leaguer finally stepping up to the plate in the majors for his first at-bat.

I am particularly pleased to be here, since Overlawyered has the distinction of being the first blog I ever regularly read, long before I even knew what a blog was. As a small business owner, I often found myself asking, "am I crazy?" Ted and Walter, via the stories they write about outrageous litigation in Overlawyered, help give me some comfort that no, maybe its the rest of the world that's gone nuts.

My regular home is at Coyote Blog, where I stray off-topic far more than Ted and Walter, but I generally focus on issues related to business, government, and libertarian philosophy. I appreciate Walter's lending me the keys to his blog for this week, and I will try to keep it between the lines better than I do at my own site.

Back in the news:

The California Supreme Court heard arguments yesterday in a lawsuit brought by a writing assistant fired from the program, Amaani Lyle, who contends that the profanity-riddled and sex-laden diatribes of "Friends" writers constituted sexual harassment.

The company that produced the show, Warner Brothers, claims that programs about sex and relationships require frank and freewheeling discussion of the subject matter. The company has also warned that allowing Ms. Lyle to proceed with her case could put a strait-jacket on writers and dilute the quality of what Americans see on movies and TV.

(Josh Gerstein, "Sex Harassment Is Alleged By a Writer of 'Friends'", New York Sun, Feb. 15). According to the L.A. Times, yesterday's session did not appear to go well for the plaintiff:

During a hearing in Sacramento, two of the state high court's justices observed that Amaani Lyle, 32, was warned before she was hired for "Friends" that she would be subjected to sexually explicit talk in the writers' room....

Justice Joyce L. Kennard appeared to find it significant that Warner Bros. had told Lyle to expect "a lot of sexual talk, very frank talk and at times vulgar" language. "She said, 'No problem,' " Kennard related.

(Maura Dolan, "Justices Skeptical of 'Friends' Suit", Los Angeles Times, Feb. 15). For our earlier coverage of the case, see Apr. 23, Jul. 19, Jul. 31, Oct. 19, and Nov. 17, 2004. Our coverage of harassment law generally is here.

Nat Hentoff explains how its revival would imperil free speech on the air (Hillsdale Imprimis, January). See Jan. 18, etc.

The verdict that Ted reported on Dec. 1 is stirring unease through the bus industry. Lawyers convinced a Texas jury that a tour bus was defectively designed because it did not come equipped with seat belts and laminated side window glass, even though neither are common in American tour bus design or mandated by the federal National Highway Traffic Safety Administration. (Steve McGonigle, Dallas Morning News, Feb. 12). For more on the laminated glass issue, see May 16, 2005 and links from there.

"The Outback's Bachelor and Spinster Balls, one of Australia's most cherished traditions and notorious for binge drinking, casual sex and dust, are at risk of dying out. ...the growing culture of litigiousness ensures that insurance premiums are now so high that many balls have been forced to cancel. ... 'Insurance is killing a lot of events in the bush, including B and S balls and rodeos,' said Barry McMahon, who runs a national Bachelor and Spinster website and has been to dozens of balls." (Nick Squires, "Outback's notorious B and S Balls bite the dust", Daily Telegraph (U.K.), Feb. 11).

California busybodies have found a new target at which to aim prohibitive legislation, says Dave Zincavage (Feb. 11).

In 1991 portions of Texas's Rio Grande Valley saw an upsurge in babies born with neural-tube defects. Litigation resulted:

Residents and lawyers had blamed pollution, and General Motors and other U.S.-owned factories paid $17 million without admitting wrongdoing to settle a lawsuit accusing their border factories of poisoning the air.

The claimed linkage of cause and effect between the factory pollution and the birth defects was, to say the least, much controverted at the time, and is looking even less impressive in hindsight:

no chemical links to the disease were ever proven, and Texas health officials began suspecting fumonisin, a toxin in corn mold. Experts had noted a high concentration in the corn harvest just before the outbreak. Some Texas horses died from brain disease caused by the toxin.

Now, a study in the February issue of the journal Environmental Health Perspectives adds impetus to the corn-mold theory:

The study found that pregnant women who ate 300 to 400 tortillas a month during the first trimester had more than twice the risk of giving birth to babies with the defects than did women who ate fewer than 100 tortillas.

Blood samples indicated that the higher the level of fumonisin, the greater the risk of neural tube defects.

Tortillas are an inexpensive dietary staple along the Texas-Mexico border, and studies suggest that the average young Mexican-American woman along the border eats 110 a month.

("Study: Bad corn caused birth defects", AP/Seattle Post-Intelligencer, Feb. 8). See also Dallas Morning News, Mar. 4, 2001; AP, Jan. 2001; Nicole Foy, "Border birth defects are tied to poverty", San Antonio Express-News, Apr. 9, 2004.

Among its other implications, the episode may suggest the safety gains to be had in the shift from a pre-modern food regime based on local farm and home production to the sort of industrially based food regime more familiar to most Americans. Even aside from the issue of folic acid fortification, a big-city tortilla factory run by a large company would probably have had a better likelihood of screening out moldy batches of corn.

66-year-old Daniel Ernst was paralyzed from the chest down when drunk-driving Timothy Beauregard hit him with his Oldsmobile while making a left turn. "Beauregard admitted to a criminal charge of drunken driving, seriously bodily injury resulting, the next year and received a 10-year suspended sentence with probation from Superior Court Judge Edwin J. Gale." Beauregard wasn't visibly drunk when Chen's Restaurant served him a mai tai and a beer, but a jury found the restaurant 25% responsible for the accident, which puts Chen's entirely on the $15.2 million damages hook under Rhode Island law, a detail the press account omits. (This assumes, of course, that one who drinks mai tais in Chen's Restaurant in Westerly, Rhode Island, is not capable of paying a 75% share of a $15.2 million judgment.) (Katie Mulvaney, "Veteran hit by drunken driver nets $15.2 million", Providence Journal, Feb. 14). Rhode Islanders Against Lawsuit Abuse will be seeking to reform the state's joint and several liability laws this legislative session.

That's the call of today's Detroit News editorial. "If the goal is to protect consumers, as tort lawyers claim, wouldn't it be better to seek tougher federal standards rather than sue the people who research, invent and bring to market the products that consumers want? The obvious answer is yes, but that would eliminate a source of continuing revenue for plaintiff's lawyers."

"The head of Calgary's Muslim community is considering a civil lawsuit against two local publishers for reprinting controversial Danish cartoons of the Prophet Muhammad -- images that have sparked deadly riots overseas. "Syed Soharwardy, president of the Islamic Supreme Council of Canada, said he would consult lawyers to see whether it was possible to sue the Jewish Free Press and conservative Western Standard, which have published the cartoons; the general-circulation Calgary Herald has not. More: Feb. 10, etc. (Emma Poole, Calgary Herald/National Post, Feb. 13).

The United Farm Workers, the agricultural labor union that rose to prominence under the leadership of the late Cesar Chavez with the support of countless Sixties idealists, has recently been the subject of unflattering coverage in the Los Angeles Times, Bakersfield Californian and L.A. Weekly, among other places. Now journalist Marc Cooper, who wrote the L.A. Weekly piece, says the union has sent him a demand that he retract or correct his piece on pain of being sued. Cooper says the L.A. Times and Bakersfield papers have received similar threats. "Even some lonely bloggers who have recently written about the UFW have been contacted by the union or its hired PR agents and directly warned not to continue criticizing it." (Marc Cooper, "Gag Me With a Grape", L.A. Weekly, Feb. 8; Cooper blog entry and comments, Feb. 8) (via Romenesko). The UFW's side of the underlying controversies is here.

We reported on the story in September 2004:

"Joe Doe", the HIV+ plaintiff in a Texas state lawsuit, is a member of the choral group "Positive Voices"—which has produced a CD with his photo and his real name. Nevertheless, when the alternative weekly Dallas Observer also identified "Doe" as HIV+ in passing in a larger December 4 story about a gay congregation titled "Fallen Angel," "Doe" sued. The suit doesn't allege that the Observer got its facts wrong, but argues that the story violates a Texas law prohibiting the disclosure of "medical test results," with a fine of up to $10,000 for each disclosure. Since the Observer has circulation of 110,000, "Doe" figures he's entitled to over a billion dollars.

Positive Voices is a group that advertises itself as consisting of HIV+ members. A Texas state court of appeals reversed the decision of the trial court not to grant summary judgment, and entered judgment for the defendants. (John Council, "Texas Appeals Court Sides With Newspaper in $1 Billion Suit Over HIV Disclosure", Texas Lawyer, Feb. 13; New Times Inc., et al. v. John Doe., No. 05-05-00705-CV (Tex. App. Jan. 24, 2006)).

The decision was limited to the facts of the case, however, and the state statute remains overbroad, and could easily be construed by future courts to apply to the media. Or even personal-dating websites: a strict interpretation of the statute, HSC § 81.103, would create a cause of action for a plaintiff who posts "I have tested negative for HIV" on a website that screens essays against that website. And the statute is conceivably even broader, given its definition of "test result":

"Test result" means any statement that indicates
that an identifiable individual has or has not been tested for AIDS
or HIV infection, antibodies to HIV, or infection with any other
probable causative agent of AIDS, including a statement or
assertion that the individual is positive, negative, at risk, or
has or does not have a certain level of antigen or antibody.

Tomorrow morning at 7:05 Central Time, I'm scheduled to join "Early Spin" on Milwaukee's WISN to discuss lawsuits blaming Coke and Pepsi for marketing to kids (see Feb. 7, etc.).

"A jury on Friday said Southwest Airlines did not racially discriminate against an overweight passenger when she was asked to buy a second seat on her flight." Nadine Thompson of Exeter, N.H., CEO of a successful cosmetics company, claimed the airline applied its "customer of size" policy in a racially discriminatory manner. On Friday Joel Drake, a Southwest employee, testified that Thompson herself had "accused him of being a 'motherf------ racist pig' and wished that his family would die from cancer when he tried to explain the company's policy to her. ...Thompson testified that Drake was bullying her and she felt scared, so words were her only way to fight back. She said she felt cornered and powerless." (Kathy McCormack, "Jury: Southwest didn't discriminate against passenger", AP/Boston Globe, Feb. 10; "Told to buy 2 seats, Exeter woman sues Southwest, claims racial discrimination", AP/Manchester Union-Leader, Feb. 8). Earlier second-seat suits: Dec. 20, 2000, etc. More: Thompson says she won't appeal (AP, Feb. 15).

Another entry in our ongoing series about how unlikely it is for the U.S. legal profession to assume a convincing pose as guardians of everyone's privacy:

Attorneys are among the top customers of the controversial Web sites [which sell access to cellphone records without customers' consent], according to private investigators, privacy advocates and Web site operators who sell the phone records.

"Let's put it this way, the legal profession is keeping it alive," said Rob Douglas, a former private eye turned security consultant who has helped the Federal Trade Commission investigate and prosecute online operators that sell phone records.

"I've investigated them with the federal government and in private lawsuits ... and in every single case, the overwhelming majority of users of these companies are attorneys," Douglas said.

These attorneys include divorce lawyers, who want to know who feuding spouses are talking to; business lawyers, who want to know who their clients' competitors are talking to; and employment lawyers, who want to know if employees are selling any trade secrets.

(Tresa Baldas, "Will Lawyers Get Hung Up in Quest for Cell Phone Records?", National Law Journal, Feb. 10). A few earlier entries: Jul. 22, 2003; Apr. 14 and Jun. 15, 2004; Feb. 7 and Feb. 9, 2006.

"The cost of lawsuits adds at least $500 to the price of every vehicle, according to Chrysler Group President Tom LaSorda, who said Thursday that Chrysler is stepping up its fight for tort reform." (Dee-Ann Durbin, "LaSorda calls for lawsuit reform", AP/Saginaw News, Feb. 9). More on suits against automakers at our automotive page.

The phrase "stitch and bitch" has been in use for many years as a popular nickname for social circles that meet for knitting and conversation. Circa 1997 a company called Sew Fast, Sew Easy trademarked what it called its Stitch 'n' Bitch Cafe and since then has deployed lawyers to shut down use of the phrase by many local and online hobbyists' clubs. A protest site, "Free To Stitch/Free To Bitch", has traced earlier mentions of the phrase including by Anne Macdonald in her 1988 book No Idle Hands: The Social History of American Knitting, who describes it as having been used for such a club during World War II. (Catherine Elsworth, "It's getting bitchy in knitting circles", Daily Telegraph (U.K.), Feb. 11)(more links).

...says author Mark Singer, who could use the royalties ("Talk of the Town: Trump v. Trump", The New Yorker, Feb. 13)(via Lattman). More on Trump's libel suit against New York Times reporter Timothy O'Brien: Jan. 25.

We had the story about lawsuit-averse obstetrics wards Oct. 18, 2000 and Apr. 9, 2005, and Newsweek has it this week (Karen Springen, "Hospitals: No Candid Camera", Feb. 20).

Alton, Ill.: U.S. District Judge William Stiehl has thrown out Rhonda Nichols' lawsuit (Apr. 14, 2005) claiming that she was attacked by a bird at a Lowe's home improvement center, and that Lowe's should have warned her about the hazard. Judge Stiehl ruled "that a 'reasonable plaintiff' either would have noticed the birds or understood that contact with them was possible in any outdoor area with plants." (Jim Suhr, "Woman's suit against Lowe's for bird attack won't fly", AP/Chicago Sun-Times, Jan. 5). Courthouse News has the opinion (PDF).

A judge threw out the case filed by gadfly atheist Luigi Cascioli, who vows to appeal ("Judge shelves case over Jesus' existence", Reuters/Boston Globe, Feb. 9). Ted covered the case Jan. 4.

Our free periodic newsletter went out to subscribers last night, summarizing highlights of recent postings in terse yet wry style. To read the latest installment -- or to join or leave the list, change your address, etc. -- visit this page (requires Google registration).

Anne Brunsdale, who died recently at age 82 following a long illness, was beloved by a large circle of friends in Washington, D.C., in her native Upper Midwest, and around the country. At the American Enterprise Institute in Washington she founded and edited the magazine Regulation (where she hired me in 1980 to work with her as an associate editor; I left to join the Manhattan Institute four years later). Her career culminated in a presidential appointment to a seat on the International Trade Commission, where she rendered distinguished service for a decade, including some years as chairwoman.

I won't use words like "mentor" and "role model" to describe Anne's influence on me, if only because I can imagine her penciling them through with a notation in the margin, "jargon". I will say that no one in my professional life ever taught me more about how to write, or work with others, or behave as an adult, or see past the political enmities of the day. When I dedicated my book about legal conflict in the workplace, The Excuse Factory, to Anne, it was the inevitable tribute of memory to the perfect boss. If you'd like to learn more about her life and work, Claudia Anderson, long a close friend of hers, has written a very fine appreciation in the new Weekly Standard.

The Boston Phoenix ("World of Pain", Feb. 9) tells readers that "frankly, the primary reason" it isn't going to run the Danish Muhammed cartoons:

Out of fear of retaliation from the international brotherhood of radical and bloodthirsty Islamists who seek to impose their will on those who do not believe as they do. ...Simply stated, we are being terrorized, and as deeply as we believe in the principles of free speech and a free press, we could not in good conscience place the men and women who work at the Phoenix and its related companies in physical jeopardy. As we feel forced, literally, to bend to maniacal pressure, this may be the darkest moment in our 40-year publishing history.

Somewhere there's probably an issue of vicarious/employer liability lurking in here -- if printing the cartoons did lead to violence, the Phoenix's owners might well end up having to pay. But of course the venerable alt-weekly's stance is practically a profile in courage compared with that of editors, publishers, governments and university officials in many other places, including South Africa (bans publication of images), Sweden (reported to have shut down website carrying them), Canada's Prince Edward Island (university confiscates student newspaper, edict forbids weblog comments) and so on (Michelle Malkin roundup, Feb. 9). Commentaries worth reading: Krauthammer, Kinsley, and, from a different perspective, a commenter at Andrew Sullivan's. (More on the cartoons here and here.)

Rottweilers can be expensive dept.: "A California county will pay nearly $1 million to settle a lawsuit brought by the Hells Angels Motorcycle Club after police shot and killed three guard dogs during raids of the group's headquarters and suspected members' homes." Santa Clara County supervisors okayed the $990,000 settlement "two months after the U.S. Supreme Court rejected the county's arguments that sheriff's deputies should be immune from liability in the case." The city of San Jose has refused to settle and may go to trial as a defendant. "Lower court judges ruled that actions of the deputies and San Jose police officers during the January 1998 were unreasonable, most of the evidence obtained was unnecessary and the officers did nothing to avoid killing the animals. A lawyer for club members says a lot of property was destroyed in the raids and some evidence was kept for more than a year." (AP/CNN, Feb. 7). "Although they had a week to plan for the raids and knew of the existence of guard dogs, including a Rottweiler, the San Jose police officers failed to do anything to find a non-lethal way of incapacitating the animals, the courts said." (Barry Witt, "Hells Angels win nearly $1 million from Santa Clara County", San Jose Mercury News, Feb. 6). More than half the settlement, $530,000, will go to the lawyers representing the club, with the remaining $460,000 to be divided up among victims of the raid.

That's a legally-driven warning formula, of course, intended to repel the specter of liability lawsuits if a diagnosis goes wrong and the lawyers begin casting around for parties to sue. GruntDoc notices it being used on an item that plainly is for diagnostic purposes (Feb. 6).

It's not easy to make an independent film -- and one thing that makes it especially hard is the need to line up insurance against getting sued (Eric Anderson, Feb. 6)(via Insurance Coverage Law Blog).

Peter Lattman reports that a jury took two hours to reject the claim that dodging a flying shrimp at a Benihana restaurant caused Jerry Colaitis's death ten months later. Some opponents of liability reform might use this as evidence that the system works, but Benihana is still out the exorbitant cost of the attorney time required to prepare for and defend a four-week trial, which was certainly in the six digits, and perhaps the seven digits, effectively punishing them for not paying protection money. (Corey Kilgannon, "Jury to Decide if Flying Sizzling Shrimp Led to Man's Death", New York Times, Feb. 9). We were way in front of this story in the blogosphere, reporting on it Nov. 23, 2004 and Jan. 13.

Years worth of an executive's personal emails, discussing details of his finances and purchases, are obtained and combed over by dozens of people against his will, and some are even posted on the Internet for all to see.

If I relayed that scenario to you, you would probably expect the San Francisco Chronicle and CNN to express outrage and concern, bemoan the lack of privacy in today's society, and canvas public-interest groups for quotes calling for public and private action; if it turned out it had been done by a member of the executive branch, some would call for impeachment. But when the emails are Larry Ellison's, they were obtained through civil discovery (Jan. 31) by plaintiffs' lawyers in a lawsuit rehashing allegations made in two other completed lawsuits, and released to the public by a judge, the Chronicle and CNN shrug their shoulders and print them in a front-page article. (Carrie Kirby, "Inside look at a billionaire's budget", San Francisco Chronicle, Jan. 31; CNN, Feb. 1). More on the Ellison litigation at Point of Law Nov. 23 and links therein.

"The Chicago Lawyers' Committee for Civil Rights Under Law sued San Francisco-based Craigslist, claiming that during a six-month period beginning in July, the site ran more than 100 ads in Chicago that violated the federal Fair Housing Act. The committee, a public interest consortium of the city's leading law firms, said in a federal suit that those ads discriminated on race, religion, sex, family status or national origin." Craigslist does not screen ads in advance, although it gives readers a way to flag unlawful or inappropriate content for possible removal. According to the complaint (Chicago Lawyers Committee v. Craigslist, PDF format), some of the rental ads carried such damning indicators of putative bigotry as "Perfect place for city single" (unfair to families of eight!) and "very quiet street opposite church" (trying to screen out atheists, are you?), and many are plainly for roommate shares or other live-in situations. Paging David Bernstein! (Mike Hughlett, "Craigslist sued over housing ad bias", Chicago Tribune/Fort Lauderdale Sun-Sentinel, Feb. 8)(via Reynolds). Eric Goldman says a similar earlier suit against Roommate.com did not fare well (Feb. 8). For more on the issue of "discrimination" in roommate selection, see Jul. 10-11, 2002; for more on such complaints against Craigslist, see Aug. 10, 2005. (& welcome Instapundit readers).

P.S. As requested, David Bernstein weighs in (Feb. 9), as does Eugene Volokh.

Speaking of which: "A New York appeals court has thrown out a $3.5 million class action settlement -- and $790,000 in attorney fees -- over snack foods that were found to have more fat than advertised. The court found that the trial judge who approved the settlement did not adequately consider the relevant factors in certifying a class over Pirate's Booty snacks. The opinion also said the attorneys who worked on the case had offered an insufficient explanation of their work to justify the fees." Manhattan journalist Meredith Berkman, who had filed the original suit, objected to the settlement and attempted to opt out of the class; her lawyer, David Jaroslawicz, said: "This is the type of thing that brought class settlements into disrepute". (Tom Perrotta, "Court Rejects Class Settlement and Attorney Fees in Suit Over Nutrition Data", New York Law Journal, Feb. 7). See Apr. 23-24, 2002.

More: Ted is covering the case in considerably more detail at Point of Law. Plus: David Giacalone (Feb. 10).

A big oooops for one whole sector of obesity litigation and food nannyism in general:

"These studies are revolutionary," said Dr. Jules Hirsch, physician in chief emeritus at Rockefeller University in New York City, who has spent a lifetime studying the effects of diets on weight and health. "They should put a stop to this era of thinking that we have all the information we need to change the whole national diet and make everybody healthy."

(Gina Kolata, New York Times, Feb. 8). On the other hand: Cathy Young (Feb. 17) says the new study may not after all prove as much as it might seem to.

The latest defendant to plead guilty in the Mississippi scandal is a paralegal with a Jackson law firm who filed a claim for alleged side effects from the fen-phen drug combination although she'd never taken either of the drugs. (Jimmie E. Gates, Jackson Clarion-Ledger, Feb. 7). See Feb. 12 and Apr. 6, 2005, etc.

Per the WSJ Law Blog (Feb. 7): The National Federation of the Blind (NFB), represented by Berkeley's Disability Rights Advocates as well as two law firms, has sued discounter Target, alleging that it violates California disabled-rights law because its website is not operable by blind computer users. "The suit charges that the site lacks, for instance, compliant alt-text, an invisible code embedded beneath graphics that allows blind users to decipher images. The suit also contends that because the Web site requires the use of a mouse to complete a transaction, blind customers are unable to make purchases on their own." As longterm readers of this site know, demands for website accessibility under the ADA and similar laws have been simmering for years; in 2002 a federal court turned down such a claim with respect to Southwest Airlines' website, and two years ago (Jan. 8, 2004) a NFB activist said disability advocates were biding their time, waiting for the right case to reopen the issue. It sounds as if the Target lawsuit may be that case. (& welcome readers of John Dvorak, who calls us "the always entertaining Overlawyered.com").

More: at WebStandards.org, one enthusiast for the lawsuit says that it also calls into question the practices of Amazon.com, whose shopping engine, according to this commentator, powers the Target site. As I discovered when I started writing on this subject six years ago, many advocates of "web accessibility" seem quite surprised to learn that anyone actually disagrees with them on the merits of the matter, as opposed to just not being well enough informed about it. And: coverage in Law.com's Recorder (Matthew Hirsch, "Suit Alleges Target Denies Blind Access to Online Shopping", Feb. 14).

Columbia lawprof Tim Wu on patents as "Weapons of Business Destruction". How easily can patent examiners be prevailed on to grant a patent application?

On Nov. 1, 2005, the PTO issued Boris Volfson of Huntington, Ind., Patent 6,960,975 for his invention of an antigravity space vehicle (according to the application, "the spacetime curvature imbalance … provides for the space vehicle's propulsion").

(Slate, Feb. 6). More: Jan. 19, Sept. 16, etc.

How did Middle East protesters lay their hands on so many of them? Turns out it was just the free market at work.

Seriously, remember to support Denmark in the principle of free speech -- if only so that our own U.S. Supreme Court building in Washington isn't next.

My op-ed on the litigation against Big Cola (see Feb. 2) draws an L.A. Times reader letter (Feb. 7). Also welcome Andrew Sullivan readers (Jan. 27). More by Sullivan: "Hey, these adverts are making me fat", The Times (U.K.), Jan. 29; blog posts including Jan. 25 and Jan. 26. And see Philip Wallach, "There Are Deeper Pockets than 'Big Soda'", The American Enterprise, Dec. 15; John Luik, "Sponge Bob, Wide Pants?", TCS Daily, Jan. 25; and Rogier van Bakel, Jan. 23.

On allegations of a link between food advertising and childhood obesity, see Todd Zywicki, Dec. 21 and links. According to John Hood ("Bill Won’t Stop War on Ads", Carolina Journal, Nov. 11):

American children are now gaining weight even as they watch somewhat less commercial television than previous generations did. One study estimated that children saw about 15 percent fewer TV ads in 2003 than their counterparts did in 1994. Alas, that does not mean today’s kids are playing outside more. They simply have many more commercial-free alternatives such as premium cable, tapes and DVDs, and video and computer games.

Another unfortunate fact for advocates of regulating food advertising is that their pet idea has already been done to the max – that is, in the form of outright bans of ads targeting children – in places such as Sweden and Quebec. The obesity rate of Swedish children differs little from that of British children, however. The same is true in Quebec vs. other Canadian provinces.

Meanwhile, Jacob Sullum ("Dora the Exploiter", syndicated/Reason, Jan. 25) comments on the Center for Science in the Public Interest's suit against Viacom/Nickolodeon and Kellogg (see Jan. 20):

The plaintiffs say it's not about the money. I believe them. This lawsuit, which CSPI and its allies plan to file under a Massachusetts consumer protection statute prohibiting "unfair or deceptive acts or practices," is really about censorship. By threatening onerous damages, CSPI aims to achieve through the courts what it has unsuccessfully demanded from legislators and regulators for decades: a ban on food advertising aimed at children.

Earlier, Sullum reported on the CDC venturing into West Virginia to stalk obesity "vectors" ("Watching the Detectives", syndicated/Reason, Aug. 26).

Following a three-year FBI investigation (see Nov. 11, 2003), Hollywood private eye Anthony Pellicano pleaded not guilty to a 110-count federal indictment (PDF) unsealed Monday. "Pellicano, 61, is charged with organizing and masterminding a corrupt enterprise that allegedly wiretapped phones, entered private computers without authorization, committed wire fraud, bribery, identity theft and obstruction of justice." Targets of his illegal snooping are said to include celebrities Sylvester Stallone and Garry Shandling and New York Times reporter Bernard Weinraub. (Andrew Blankstein and Greg Krikorian, "Pellicano Indicted on Racketeering Charges", Los Angeles Times, Feb. 6; Roger Friedman, "Cruise, Jacko Lawyer Safe for Now", Feb. 6; AP/Hollywood Reporter).

The FBI originally got on Pellicano's trial following a bizarre 2002 incident in which a dead fish, a rose and a note that said “stop” were left on the car window of Los Angeles Times reporter Anita Busch, who was working on a story about actor Steven Seagal at the time. What has sent nervous ripples through Hollywood's legal community is that Pellicano has worked for many prominent entertainment-industry lawyers, and prosecutors are highly interested in finding out how much they knew about his alleged tactics.

Several veteran Los Angeles lawyers who specialize in defending white-collar crime suspects said they had been retained by other attorneys who are under scrutiny in the Pellicano case.

The lawyers all spoke on condition that they not be identified because of the sensitivity of the situation, including the possibility that some of their clients could be indicted.

Some of them said they thought it highly likely that attorneys would be indicted in the near future.

Asked how serious the government was about indicting certain attorneys, one defense lawyer said: "Beyond serious."

Added the lawyer: "That dead fish led to a treasure trove of stuff."

(Greg Krikorian, Henry Weinstein and Chuck Philips, "Private Eye May Be Tried Again", Los Angeles Times, Feb. 3). More: Defamer; Luke Ford; Robert W. Welkos, "Lawyer to Celebrities Is Subject of Inquiry", L.A. Times, Feb. 7 (many persons whose privacy was allegedly infringed were on the other side of lawsuits from celebrity lawyer Bertram Fields, Pellicano's most prominent lawyer-client); Kellie Schmitt and Justin Scheck, "Hollywood PI Pleads Not Guilty to Racketeering", The Recorder, Feb. 7.

Watch what you say about judges, yet again: For the second time, Illinois circuit court judge Patrick Kelley has dismissed a $110 million defamation lawsuit filed by former Madison County appellate judge Gordon Maag against groups that criticized him during his unsuccessful 2004 double run for a seat on the Illinois Supreme Court and for retention in his existing seat. Maag's attorney, Rex Carr, vowed to appeal. (Paul Hampel, St. Louis Post-Dispatch, Jan. 9; Steve Gonzalez, "Maag's defamation suit dismissed, again", St. Clair Record, Jan. 9; "That's two strikes, now spare us" (editorial), Madison Record, Jan. 15). Since losing the races, Maag has aimed defamation suits at a wide range of local and national groups that include the Chicagoland Chamber of Commerce, the American Tort Reform Association and even the Manhattan Institute for Policy Research, with which I'm affiliated (no, I don't know what his theory for including it was, and I haven't asked). For more on the controversy, see Dec. 23, 2004, as well as PoL Jun. 10, 2005 and assorted links there.

As usual, the funniest piece on the controversy came from the wonderful (and brave) columnist for the St. Louis Post-Dispatch, Bill McClellan, who explains that he is not among Judge Maag's critics (after all, who likes getting sued?) but notices that "there seems to be some question as to whether he is a resident of Illinois, as he stated in one of his suits, or a resident of Alabama, as he stated in another." ("With confusion over residency, lawyer's critics feel vindicated", Nov. 25).

"The U.S. Equal Opportunity Employment Commission must pay more than $1 million to a Pasadena law firm that it sued unsuccessfully last year for sexual harassment and pregnancy discrimination, a federal judge has ruled. U.S. District Judge Dickran Tevrizian.... found that the EEOC filed a 'frivolous' lawsuit against Robert L. Reeves & Associates, which practices immigration law." (AP/San Diego Union-Tribune, Jan. 25). There's a discussion at WorkplaceProfBlog (Jan. 26).

Threatening to expose someone's embarrassing personal secrets unless they pay you money or agree to cooperate with you in other ways is ordinarily a legal offense, that of extortion. There's a big exception, however: if you happen to be simultaneously pursuing a legal claim against your target, even a very weak one, such demands can magically become lawful after all, although they revert to being unlawful if the demands you levy are somehow excessive. Jim Lindgren and Eugene Volokh explain (both Feb. 1).

Tom Veal notes another instance in which life imitates Scrappleface (Jan. 25).

New York: "The leadership of the State Assembly has agreed to pay $500,000 to settle a lawsuit brought by a former legislative aide who said she had been raped by the chief counsel to Assembly Speaker Sheldon Silver....[former counsel J. Michael Boxley] will make a small payment toward the settlement, but most of the money will be taxpayers' funds." (Jennifer Medina, "Assembly Settles Suit on Sexual Misconduct", New York Times, Jan. 28). See our coverage of Jun. 15, 2004. In a Summer 2004 City Journal piece, Stefan Kanfer sketches out a couple of the background aspects that make the whole episode piquant for Albany-watchers, if not for the parties involved:

Up in Albany, Sheldon Silver is speaker of the Democrat-controlled assembly -- just the sort of guy a hard-line feminist could love, ever eager to promote laws punishing cads who take advantage of women. ...Furthering the irony, Silver in his spare time is counsel to Weitz and Luxenberg, one of New York’s most influential law firms, known to prosecute torts like the one confronting the speaker.

We regularly cover how big business can abuse trademark litigation to attempt to squelch critical commentary or creativity. (E.g., Jan. 3, May 28, Jan. 4, 2005, Nov. 7, 2004, Jun. 29, 2004, Aug. 31, 2003). The Senate is contemplating legislation, already passed by the House, H.R. 683, that would make such litigation easier "regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury": more "Harm-Less Lawsuits." The bill is meant to undo the Supreme Court interpretation of the Lanham Act in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 123 S.Ct. 1115 (2003). The Electronic Frontier Foundation is on the case. Chris Rush Cohen commented back on March 16.

Civil libertarians take a stand in Britain: by single-vote margins, the House of Commons has surprisingly voted to water down significantly the bill introduced by the Blair government to attach legal penalties to various types of speech critical of religion. In particular, the bill "was stripped of measures to outlaw 'abusive and insulting' language and behaviour as well as the crime of 'recklessness' in actions that incite religious hatred." Earlier, the House of Lords had heeded protests from free-speech advocates including comedian Rowan Atkinson by lending its support to amendments to the bill. "In a humiliating blow to Mr Blair, who has a 65-seat Commons majority, 21 Labour rebels voted with Opposition MPs while at least 40 more were absent or abstained." (David Charter, "Religious hate Bill lost after Blair fails to vote", The Times, Feb. 1; Greg Hurst and David Charter, "Racial hatred Bill threatens our civil liberties, say rebels", Feb. 1; Greg Hurst and Ruth Gledhill , "How comic's supporters kept their heads down and used their cunning", Feb. 2). Earlier coverage: Jul. 16, 2004; Jun. 11, Jun. 27, Aug. 17, Oct. 19, and Oct. 29, 2005.

The Blair government's primary motivation for the bill is considered to be to cater to the sensitivities of British Muslims, and many commentators (such as Charles Moore) make the obvious connection with the situation in Denmark (see Feb. 1). Meanwhile, violent threats continue against Danes, cartoonists, and liberal-minded Europeans generally. And some 500 lawyers in Jeddah, Saudi Arabia, are supporting a project "to take legal action against" those who insult or demean the founder of their religion with one goal being "to enact laws that would incriminate abuse of religions and prophets in all countries,” as a spokesman puts it. (P.K. Abdul Ghafour & Abdul Maqsood Mirza, "Lawyers Vow Legal Action in Cartoons Row", Arab News, Feb. 4). Michelle Malkin has much, much more (plus this).

We covered the verdict two years ago, noting an editorial that said "Pundits have argued that real tort reform will only come when the lawyers start suing the other lawyers.... that time has arrived." But the Mississippi Supreme Court held that the lawyers had not committed malpractice as a matter of law.

Perhaps correct, and I shed no tear for the plaintiff's loss of a windfall. But it sure would be nice if doctors got the same benefit of the doubt. Instead, when medical experts differ over whether a doctor acted reasonably, courts throw up their hands and decide it's okay for a jury to decide. Lawyers seem not to have to worry about being held to that sort of second-guessing standard. (Baker Donelson Bearman & Caldwell, P.C. v. Muirhead, 2006 WL 177593 (Miss. January 26, 2006).) David Rossmiller discusses the case, but dodges all of the substantive issues.

"Attorney general Charlie Crist was an integral player in getting an anti-spam law passed last year in the state of Florida. Under the law, offenders are subject to fines of up to $500 for every e-mail sent. Now running for governor, someone on the Crist campaign is responsible for sending e-mails to promote the candidacy and solicit campaign donations. Recipients have reportedly attempted to unsubscribe without success." A Crist spokeswoman says the emails don't count as spam because they're not deceptive. (Clickz blog, Jan. 9; Adam C. Smith, "Crist e-mail draws ire", St. Petersburg Times, Dec. 21; "From anti-spam stand to e-mail campaign", AP/Miami Herald, Dec. 23; Brian McWilliams, Dec. 24; Geek.com). For more on anti-spam laws and related issues, see, e.g., Jul. 25, 2005 and Dec. 3, 2003.

Here's another experiment: use the comments section to suggest a legal case or news story you think belongs on this site. A few ground rules:

* Only stories with live links, please. No stories that have happened to you or a friend personally, no matter how compelling, unless you can point to someone's already-published writing or reportage on it.

* It doesn't have to be something that just happened, but if it's not new, do check our archives to see whether we've already covered it. Here's a stored Google search to start you off.

* As usual, comments are held for review, along the lines of a letters to the editor section.

Crossing the Atlantic dept.: "In what educationalists have derided as 'a problematic American reflex', parents are jumping to the defence of misbehaving or underperforming pupils by calling in lawyers," reports London's Daily Telegraph. "Teachers who summon pupils for a disciplinary hearing over even minor incidents often find themselves facing not only the youngster and his mother and father, but also a fully-robed advocate. ...French teachers are taking out insurance against legal charges." (Kim Willsher, "Pupils turn to the law over bad reports", Jan. 22).

I'm scheduled to be a guest on Paul Harris's talk show on KMOX St. Louis today at 2:10 Central Time. (More here with link to discussion.) Also, TVW, Washington state's local answer to C-SPAN, recorded the speech I gave last month to the state's Liability Reform Coalition, and has made it available in Windows Media or RealPlayer formats.

In its "Commentary" section, today's Los Angeles Times carries a shortened version of my City Journal piece about the campaign to make Big Cola the next tobacco (Feb. 2). See Jan. 23, etc.

Specifically, Seattle attorney Steve Berman (Nov. 24, 2003 and links therein), on behalf of a Louisiana man, accuses Apple of selling a "defective" product because it can cause hearing loss if one turns up music to maximum volume using headphones. The lawsuit, filed in San Jose, seeks class action status, even though each member of the putative class will come to the table with different pre-existing knowledge about audio safety and different usage patterns for their device. (Many iPod users don't use headphones at all.) Each iPod comes with a warning that "permanent hearing loss may occur if earphones or headphones are used at high volume," but, of course, the lawsuit alleges that the warning is insufficient. The plaintiff, John Kiel Patterson, doesn't even claim that his hearing has been damaged, thus making it a typical "Harm-Less Lawsuit." (Dan Goodin, AP/Yahoo, Feb. 1, h/t W.F.)

Update: a pdf copy of the complaint.

Yes, as a matter of fact, we've joined the crowd and started running the darn things. Do click on the ads to visit and, where appropriate, support our advertisers. And if you've a mind to advertise your own publication, cause, organization, product or website, check out our very reasonable introductory ad rates.

Renee Gaud and Trisha Hart were hired as "Borgata Babes" by the Atlantic City casino of that name, made to sign an agreement requiring them to maintain hourglass figures and weight proportionate to their height, and were outfitted in "cleavage-baring bustiers, high heels and tight-fitting bolero-style jackets". Then they discovered that managers were serious about the weight requirement and kept "emphasizing looks over job performance". What could be more shocking or unexpected? So of course they're suing (John Curran, "Waitresses sue casino over weight policy, allege discrimination", AP/Newsday, Jan. 31; Dan Gross, "Ex-servers sue Borgata", Philadelphia Daily News, Jan. 31).

Authorities have finally cracked the largest burglary ever reported from a Massachusetts residence, the 1978 theft of a Cezanne and six other paintings from the Stockbridge home of collector Michael Bakwin. And who'd been holding on to the paintings all these years? Retired criminal defense attorney Robert M. Mardirosian, 71, who came into their possession soon after their theft when the burglar -- whom Mardirosian was representing in an unrelated matter -- left them at the lawyer's residence. (The burglar had intended to fence the paintings right away, but Mardirosian had advised him he might get caught doing that.) Not long thereafter the burglar was slain by criminal associates. Mardirosian created dummy corporations and accounts to hold the paintings and at least twice tried to sell them, but was blocked when the Art Loss Register, which intervenes to prevent the sale of stolen art, took steps to stop that from happening. Mardirosian, who now lives in a gated community in Falmouth on Cape Cod, says he acted from legitimate motives: "My whole intent was to find a way to get them back to the owner in return for a 10 percent commission." (Stephen Kurkjian, "1978 art heist solved", Boston Globe, Feb. 1).

Watch what you say about lawyers (and everyone else), cont'd: a "Philadelphia judge has ruled that a valid defamation claim trumps any right to speak anonymously on the Internet....Common Pleas Judge Albert W. Sheppard Jr. ordered the operator of two now-defunct Web sites to turn over the identities of the anonymous authors of comments on the sites that allegedly defamed a Philadelphia law firm....In the suit, the Klehr Harrison firm complains that its reputation was severely disparaged by comments on the two sites that falsely accused its lawyers of being 'thieves,' committing 'fraud' and 'lying' to a judge." Although courts in some other states have protected anonymous online commenters from demands that their identity be disclosed, Sheppard said Pennsylvania law was not obliged to follow that path. (Shannon P. Duffy, "Law Firm's Defamation Claim Found to Trump Critics' Internet Anonymity", The Legal Intelligencer, Jan. 23). For more on the legal hazards of criticizing Pennsylvania lawyers and judges, see Nov. 30, 2003, Mar. 16, 2004, and Oct. 24-25, 2001.

Comments are open (be very careful, please).

Thom Lambert explains how such laws can lead to more trees being cut down. I discussed a similar problem on Point of Law back on Jan. 27, 2005.

The Lay-Skilling Enron criminal trial will be one of the highest-profile Houston trials in many years, but in the courtroom of U.S. District Judge Sim Lake the process of jury selection was over within a day. That should be a lesson to judges elsewhere -- especially in state-court proceedings -- who allow lawyers to turn voir dire into a manipulative process that can last weeks or even months. Tom Kirkendall and Norm Pattis comment.

P.S. The Wall Street Journal's news side covers the issue today: Paul Davies and John Emshwiller, "Split Verdict on Selecting Juries Quickly", Feb. 1 (sub only). Washington U. (St. Louis) law dean Kent Syverud says, "I think Enron ought to be a wake-up call to show everyone that it can be done". Among those complaining of a too-short process is Christopher Seeger, the attorney for the plaintiff in the New Jersey Vioxx case recently won by Merck, who "said the case was lost in the jury selection. 'If I had an opportunity to flesh out some of the biases I believe I would've been able to talk some of those people off the jury'". P.P.S. The New Yorker has more about the jury questionnaires and consultants (Mimi Swartz, "Talk of the Town: Enron Multiple Choice", Jan. 30).

As the city's $100 million lawsuit unfolded in court, a "dispute that a year or so ago seemed goofy -- Arte Moreno's decision to rename his baseball team the Los Angeles Angels of Anaheim -- has lost its humor content." (Dana Parsons, "Can Angels Name Spat Have a Winner?", Los Angeles Times, Jan. 15)(more).

Criminal prosecutions often go seriously wrong in the Santa Clara County, Calif. courts, according to an investigative series in the San Jose Mercury-News.

Today it's their freedom of speech and the press under attack; tomorrow it could be ours. (SupportDenmark.com; Malkin, Jan. 30 and Jan. 31; Andrew Sullivan, and again; Brussels Journal; Judith Apter Klinghoffer; Stephen Pollard, Daily Telegraph; Stuttaford; Althouse; Danish food shop).