May 2006 Archives

That's what Bill Lerach, late of Milberg Weiss, could bag as Enron settlements mount toward $10 bmillion. It seems Lerach has a sliding-scale contingency-fee arrangement with his lead plaintiff, the University of California, starting at 8 percent and going upward from there. And -- this is the beauty part -- it seems there's a good chance courts will simply extend the percentage rates to apply to the many other investors in the plaintiff class, even though they never signed up to be Lerach clients or were given a chance to negotiate fees with him. No wonder class-action lawyers are so concerned to butter up the universities, pension funds, unions and other big institutional plaintiffs who serve as their stalking horses in these actions. The university, it seems, did not employ competitive bidding to invite participation by other potential counsel.

A critic of class action litigation, Lawrence Schonbrun, said he is suspicious of the university's claims that it has vigilantly overseen the Enron case. A retired judge the university hired as a consultant on the case, J. Lawrence Irving, was paid more than $1.4 million by the state school, before being hired this month as a consultant by Lerach Coughlin. "This was not the ideal choice to monitor plaintiffs' counsel," Mr. Schonbrun said.

(Josh Gerstein, New York Sun, May 31).

These are so frequent that it's almost not worth noting, especially because the Class Action Fairness Act means that these are (one hopes) the last of a dying breed, but Consumerist finds another class action settlement with little merit. The attorneys—who include class actioner Joe Whatley, who has mysteriously avoided being mentioned in Overlawyered before now—are seeking $5.5 million in the Kansas state-court nationwide settlement. Some class members get a $5 invoice credit from Sprint, but only if they sign a new two-year contract.

Should we put a search box in the upper right corner? Are trackbacks still of use to anyone? Is there some way to clean up the tangle of old archives resulting from our 2003 and 2005 switches to different archiving systems? Our fonts are optimized for Firefox; how can we make them look equally good in IE? Here's the place to post any advice or observations on the site's layout, design, graphics and internal structure -- please save critiques of content for some other occasion.

I write a twice-monthly column for the Pittsburgh Tribune-Review. Here's my latest; it's the first in a series in which I make the case for a free market in transplantable human body organs. In other words, I argue in favor of allowing adults to receive whatever prices they negotiate for whatever of their organs they choose to donate.

Baleful Bambi: "A woman who was among those injured in a series of deer attacks last year on Southern Illinois University's campus says she's suing the school, arguing officials didn't do enough to protect her." (AP/FoxNews.com, May 25)(& welcome Sploid readers).

They're a lot more common than you might think, according to this website. See Apr. 6.

A rarity indeed: a thoughtful rebuke to food nannyism that somehow managed to make it into the New York Times (Harriet Brown, "Well-Intentioned Food Police May Create Havoc With Children's Diets", May 30).

It's open to question in the case of tobacco, too (Philip Alcabes, "Blowing Smoke About Tobacco", Washington Post, May 30).

Via Matt Marcotte, a squatter's attempt to avoid dispossession of the mymorganstanleyplatinum domain name by registering it in the name of his cat failed when the arbitrator noted that cats are unable to read or write. Morgan Stanley v. Meow (May 22, 2006).

We've previously noted that colleges, out of fear from liability over student suicides, have been taking extreme steps to preempt the problem by requiring medical leaves of absence. George Washington University discovered that avoiding suits from Scylla doesn't mean that Charybdis won't sue: Jordan Nott has sued the school after being barred from campus after seeking hospitalization for suicidal thoughts. Liability reform is clearly needed: either schools aren't responsible for student suicides, or they aren't responsible for the steps they take to prevent such suicides. (In the famous Elizabeth Shin/MIT case, the parties recently settled after a court ruling expanding schools' liability in suicide cases, including the possible liability of administrators without mental health credentials.)

Amanda Schaffer, writing in Slate, argues for a middle ground—a program based on one at the University of Illinois intervening in the lives of suicidal students without kicking them off campus. But Schaffer doesn't recognize that the middle ground doesn't resolve liability issues, including hindsight-based lawsuits for the cases where the middle ground isn't successful; even the Illinois program has reduced suicides by only half. Educational reform can't happen without legal reform.

A reader asks me to blog about an expose in this Sunday's New Orleans Times-Picayune, calling it "appalling." In 2003-2004, one judge (presumably the highest-spending judge) spent $16,717/year on travel, compared to the average $8,000 spent by other judges.

I don't know whether this is a good judge or a bad judge, but that shouldn't matter to my analysis. I'm less appalled. Someone has to be the highest-spending judge, and this one doesn't appear to have violated any rules. $4,400 in taxpayer money was spent to teach a course in Colorado, but if the judge had been reimbursed by the Louisiana Association of Defense Counsel, different people would be complaining about the supposed conflict of interest. The newspaper successfully nitpicks rental-car and airport transportation costs—but the judge must have travelled coach, because there's no complaint about his airplane tickets. One can question the political savvy of a judge who doesn't realize that his expense account reports are going to be scrutinized. One can also complain that the money comes from civil district court filing fees, but, at the end of the day, money is fungible and it doesn't really matter what pot the money comes from. It would probably be more efficient to end travel reimbursements and just raise salaries—but because of tax implications, maybe not.

Louisiana state judges make less than first-year associates in private law firms, and I'm not about to complain that a judge was a little generous with himself in taking advantage of available and legal perks to the tune of a few thousand dollars. There appears to already exist a check in the system, in that this judge's request for a week-long educational trip to Italy was rejected.

Or am I so overly jaded by plaintiffs' bar abuses in the billions that I should be more appalled? Feel free to comment in the comment section, but be polite and on-topic.

They're "rushing out the door", reports Justin Scheck in The Recorder ("Top Milberg Weiss Partners Head for the Exits", May 30).

Sad news for the boosters of obesity litigation: a Manhattan judge has dismissed a would-be class action which asked the maker of CremaLita frozen dessert to pay for weight-gain damages because it had wrongly advertised its product as fat-free and as having 60 calories per serving when in fact it had about 10 calories more than that. After a Consumer Affairs investigation had uncovered the misrepresentation, Stephen Brandt sued, claiming "that as a result of CremaLita's alleged false advertising ...he and countless 'other members of the class' were put at risk of 'severe health problems, including but not limited to cardiovascular problems, mobility problems and cancer' as well as the 'negative self-esteem issues' that the 'social stigma' of "excess weight gain carries" in today's culture.'"

However, Justice Emily Jane Goodman ruled that Brandt was not an appropriate representative for a class action, in part because of his difficulty in demonstrating damages. To begin with, Brandt claimed to have consumed only one serving of CremaLita per week, which meant, said the company's defense lawyer, that his extra calorie consumption would have amounted to only 10 calories a week. Brandt, whose weight ballooned by 41 pounds over a six-year period including the seven months in which he said he'd been a buyer of the dessert, also conceded that he'd enhanced it with crumbled cookie toppings.

In court filings, the defense was rather cruel about it all: "What Brandt fails to mention," said its lawyer, "is that he regularly eats real ice cream, McDonald's and Wendy's cheeseburgers, french fries, pepperoni pizza, beer, corn chips, donuts, cookies, hard cheese, eggs, bagels, peanut butter, Chinese take-out meals and pasta, [and] that he never exercises." Moreover, "although he provided no useful information regarding his weight gain during the period that he ate CremaLita, his medical records . . . show that he managed to pack on an additional 16 pounds in the nine months after he stopped" eating the confection. (Dareh Gregorian, "Suit melts away", New York Post, May 25; Gothamist, May 25).

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

Rep. Sherwood Boehlert (R-NY) believes that government must force automakers to increase the fuel-efficiency of the vehicles they sell. Here's part of a letter that he has in Saturday's Wall Street Journal, explaining:

Your editorial opposing fuel economy standards ("Not So Grande CAFE," May 8) that the standards amount "to the government dictating the kind of cars Americans will be able drive, even if those cars aren't safe on the road." This is wrong.

First, the goal of fuel economy standards is to enable Americans to drive the cars they want -- but that the automakers aren't producing. And what Americans want is the full range of vehicles available now, including SUVs, but with greater gas mileage. The technology exists to create those vehicles affordably, car buyers want them, and the nation needs them. The fact that they are not on sale is a classic market failure.

.....

Rep. Sherwood Boehlert (R., N.Y.)
Chairman
House Committee on Science
Washington

...........................................................

Rep. Boehlert whips the term "market failure" about too cavalierly. The believable existence of genuine market failure requires an institutional setting in which a significant number of individual decision-makers each bears too few of the consequences of his or her choices -- such as when, for example, an owner of a factory upstream pollutes a river in ways that harm downstream owners of riverside land because downstream owners have no effective way to enforce their property rights to an unpolluted river.

But the situation decried by Rep. Boehlert has none of the institutional prerequisites for "classic market failure." If a sufficient number of consumers truly are willing to pay for more-fuel-efficient cars (as Rep. Boehlert asserts), surely at least one of the 20-plus automakers now supplying new cars to the U.S. market would discern this fact -- and, out of pure self-interest, act to satisfy this consumer demand. After all, if increasing a car's fuel-efficiency would cost an automaker $X and if consumers are willing to pay $X+Y for such a car, then profits are to be had satisfying this consumer demand.

Rep. Boehlert doesn't divulge in this letter his source of information about this alleged consumer demand, but surely now that he's unearthed this valuable information, automakers will act on it voluntarily -- assuming, of course, that the information's source is credible.

Alas, I suspect that Rep. Boehlert's source of information on this point is not credible -- for, again, if Rep. Boehlert's claim were credible, automakers wouldn't have to be forced by government to satisfy their customers' demands.

The arrogance and conceits of Rep. Boehlert and his ilk make me want to vomit.

Too bizarre to let pass: in Kent, England, 53-year-old Christine Ryder filed a breach of contract complaint against Kevin Reeves, 40, for accepting £20,000 from her in exchange for his promise to engage a hitman to murder her, or do it himself. Instead Reeves skipped out without doing the deed, and a judge ordered him to pay Ryder £2,000 in compensation. (Alan Hamilton, "A contract is still a contract – even if it is a contract to kill", The Times (U.K.), Jan. 17; Longhorn Law, Jan. 17).

It's one of the premises of the anti-fizzy-drinks campaign (and presumably, after that, the anti-coffee and tea campaigns): when your kids drink Coke or Pepsi, they're ingesting (shudder) a drug. Is it being taken seriously? Well, caffeine is now turning up as a prohibited substance in school zero-tolerance policies. (van Bakel, May 26). Can suspensions for possession of Dr. Pepper be far behind?

"Personally, when a Republican starts talking about 'our kids,' I worry for the Bill of Rights. When a Democrat starts talking about 'our kids,' I worry for my pocketbook." (May 27).

At least if New York Assemblyman Felix Ortiz gets his way. Although it doesn't consider the technology ready yet, "Mothers Against Drunk Driving (MADD) gives a qualified endorsement to the idea" of making the devices mandatory in all new cars, teetotalers' included. After all, they only run about $1,000 apiece, the cost in freedom and dignity aside (Jayne O'Donnell, "Will all autos some day have breathalyzers?", USA Today, Apr. 28)(via Brian Doherty, Hit and Run).

At Spiked Online, David Lowenthal has some thoughts on the "heritage wars" and cultural authenticity (Mar. 16)(via A&L Daily)

Updating our May 1, 2005 item: by a 6-1 majority, Australia's High Court has rejected claims on behalf of two disabled persons whose lawyers argued that they deserved compensation from their mothers' doctors for allegedly failing to provide information that would have led the mothers to terminate their pregnancies (Peter Gregory, "'Wrongful life' claims thrown out", Melbourne Age, May 9).

RothCPA (May 12) has an update on a favorable ruling that the Alabama trial lawyer won in Tax Court. Earlier coverage: "Tangled Vines", Aug. 20, 2004. More: Ryan Mahoney, "Lanny Vines is back in action", Birmingham Business Journal, Feb. 17, 2003.

"A Jackson attorney has been indicted on charges accusing him of helping individuals submit false settlement claims for the diet drug Fen-Phen, according to the U.S. Attorney's office. Robert Arledge, who was employed by Richard Schwartz and Associates during the time the indictment covers, is the first attorney charged in the ongoing federal investigation." The false submissions generated more than $8 million in settlements in attorneys' fees, prosecutors say. (Jimmie E. Gates, "Jackson lawyer indictment in Fen-Phen probe", Jackson Clarion-Ledger, May 26"Vicksburg attorney indicted in scam", May 27). For more on the Mississippi fen-phen scandal, see Feb. 8 and many earlier links.

"Margaret Petraski was legally drunk when a Cook County sheriff's squad car raced through an intersection and slammed into her vehicle, authorities said. ...Late Tuesday, a Cook County jury decided Petraski should receive $26.8 million for the injuries she endured in the 2001 crash -- believed to be the biggest verdict of its kind.

"But the jurors who delivered Tuesday night's verdict never heard about the 0.11 blood-alcohol level hospital officials say Petraski registered after the Memorial Day accident. A driver is considered drunk if the blood-alcohol level is 0.08 or greater." Judge Richard Elrod* ruled that Petraski's blood-alcohol sample wasn't reliable enough to be admitted, because it was taken from a dried sample, and Petraski's lawyers further argued that no expert had given testimony linking her alcohol intake to the accident, which occurred when a police officer sped through a red light in response to a non-emergency call. However, even without being told about Petraski's alcohol level, jurors declared her 25 percent to blame for the crash, because she "misjudged the turn and should have anticipated the officer was going fast". (Steve Patterson, "$26.8 million for victim in cop collision", Chicago Sun-Times, May 25).

* Bonus trivia point for law buffs: Judge Elrod is the same Elrod who figures in the heading of Elrod v. Burns, a famous U.S. Supreme Court case on the Constitutional status of political patronage.

What happens when buyers discover their expensively bought condos aren't really any more solidly built than plain old apartments? For one thing, lots and lots of litigation (Karen Youso, "Luxury living or glorified apartment?", Minneapolis Star-Tribune, May 22)(via Housing Bubble).

Animal rights activists on the march against owners and breeders of dogs and other animals in Bozeman, Montana, and Albuquerque, New Mexico (Stephen Bodio's Querencia, May 24).

It's time you told a friend about Overlawyered's free periodic newsletter (we assume you've long since subscribed on your own behalf). The latest installment went out to subscribers yesterday, summarizing highlights of recent postings in terse yet wry style. To read the latest issue -- or to join or leave the list, change your address, etc. -- visit this page (requires Google registration).

David Frum expresses skepticism over the short-term efficacy of fence-building—and prints an email pointing out the impossible position employers are in if employer sanctions are enforced.

Meanwhile, Robert Novak reports that the Senate immigration bill gives guest farm workers the civil-service-style right not to be fired except for just cause and puts them under Davis-Bacon, opening up whole new possibilities in employment litigation. What precisely makes this Congress Republican? As an Instapundit reader notes, the Davis-Bacon language might be a poison-pill provision to de facto end immigration hiring, since immigrants would cease to have a wage advantage. Then again, Title VII wouldn't be half as broad as it is today if Southerners hadn't inserted poison-pill provisions they mistakenly thought would crater the Civil Rights Act of 1964.

As readers of my regular blog Cafe Hayek know, I'm obsessed -- perhaps even too obsessed -- with straightening-out the widespread and deep misunderstanding of the so-called "trade deficit." One blog-post is no place to review this misunderstanding, much less to correct it. (I recommend this essay as a place to begin if you're interested in learning the rudiments of this concept.)

But let's review just one simple point: if the U.S. trade deficit (more properly called the "current-account deficit") increases, this fact means that foreigners are investing relatively more in the United States -- investing more in dollar-denominated assets -- than Americans are investing in foreign assets.

Here's a letter that I sent today to the Wall Street Journal, exposing (or so I fancy) an especially egregious instance of this misunderstanding:

25 May 2006

Editor, The Wall Street Journal
200 Liberty Street
New York, NY 10281

Dear Editor:

AFL-CIO Secretary-Treasurer Richard Trumka says that an undervalued yuan increases both America's current-account deficit with China AND "the flood of investments by U.S and other multinational companies" into China (Letters, May 25).

This allegation reveals Mr. Trumka's colossal misunderstanding of international-trade concepts. America's current-account deficit with China grows as the volume of Chinese investments in America increases relative to the volume of American investments in China. How can the price of the yuan (or anything else!) cause Americans to invest less in China and more in China simultaneously?

Sincerely,
Donald J. Boudreaux
Chairman, Department of Economics
George Mason University

I’m delighted, and honored, that Wally Olson has invited me to guest blog at Overlawyered.
…………………..

I’ll write a few posts on the recent rise in gasoline prices. I begin, though, with a remembrance.

In early 2002 I testified twice before two committees of the Virginia legislature. The solons of this Great State were considering legislation aimed at keeping the price of gasoline from being too low.

The specific concern was that two regional convenience-store chains (Sheetz, and Wawa) charged prices at their pumps that were unfairly low – so low that mom and pop gasoline retailers of brands such as Exxon, Texaco, and Shell were on the verge of being put out of business.

Of course, the argument included the prediction that once the helpless likes of ExxonMobil, Texaco, and Shell were run from the State, Sheetz and Wawa would share monopoly power over gasoline retailing in Virginia. The only way to avoid this awful outcome, said the mom’n’pops, was for the legislature to prohibit unfair price cutting by gasoline retailers.

Fortunately, sanity prevailed. Virginia’s legislature refused to outlaw gasoline price-cutting. But they did seriously consider doing so.

I relate this story to put the current gasoline-price hysteria in perspective. For most of the past 20 years, whenever Uncle Sam wasn’t at war in the Persian Gulf, the price of gasoline hasn’t been terribly high. A mere four years ago Virginia and several other east-coast states actually took seriously the argument that these prices might be too low.

Things have changed…. and in ways that provide abundant fuel for future blog-posts!

The California Supreme Court has issued a ruling reinstating it, at least in the short term. (David Kravets, "Calif. Supreme Court Reinstates Exit Exam", AP/Los Angeles Times, May 24). Our earlier coverage: Feb. 22, May 15.

As we periodically do, we've rotated the listing of "Greatest Hits" past posts in the right-hand column. New this time: Slower Disney teacups, Honey, you've got mail, Class action collusion, Bad luck with yachts, U.S. News regrets, Pie menace averted, Forgot to mention it, and Drunk: cops shoulda stopped me. A listing of all favorite posts nominated so far is here. Feel free to nominate favorites of your own, too, in comments.

Just as a media boomlet was getting started, a Clackamas County judge has ruled that Oregon law does not permit Mark Greenup and his family to seek loss-of-companionship damages over their neighbor's having run over their mixed cocker spaniel-Labrador retriever, Grizz, an injury for which they were asking a cool $1.625 million. The case had been touted as a potential breakthrough in the campaign to authorize essentially unlimited monetary damages over the human unhappiness caused when a pet is killed or injured (see May 10, 2005, etc.) and advocates thought they had an unusually sympathetic fact pattern to work with: the Greenups' neighbor, Raymond Weaver, had been convicted of first-degree animal abuse. Once the principle of damages for loss of companionship had been established, of course, it would be likely to spread to contexts where simple negligence was alleged on the part of veterinarians, drivers or animal handlers. Circuit Judge Eve Miller permitted the Greenups to seek punitive damages and intentional infliction of emotional stress against Weaver (who continues to deny that he harmed the dog intentionally) but said loss-of-companionship damages are barred by Oregon law. ("Judge rejects part of dog lawsuit claim", AP/Roseburg (Ore.) News-Review, May 23; Steve Mayes, "Case Could Redefine Value of a Pet", Newhouse/The Oregonian, May 23; "US neighbours in dead dog lawsuit ", BBC, May 23; letters to the editor, The Oregonian, May 24).

P.S. While we're at it, what a very bad idea: federal mandates for pet evacuation plans.

Clyde Best was sentenced to sixty years for murdering his Knox College classmate, Andrea Racibozynski, in 1998 after a fraternity-party fight; he was identified and caught within three hours of the crime. The murder is, Racibozynski's attorney Ed Manzke argued, the fault of the college for the way lighting in the stairwell was designed; a jury agreed, and awarded $1.05 million. (Bill Bird, "Family wins $1 mil. suit against Knox College", Naperville Sun/Chicago Sun-Times, May 24).

The pseudonymous "Sydney Smith", who practices medicine in the Midwest, is discontinuing her medical weblog, which was among the earliest and best of its kind. "Sydney" joined us on this site as a guestblogger in late July and early August, 2004. Update: happily, she's back.

More woes in British crime and punishment: "Compensation payments to prisoners have doubled in the last year to more than £4 million, while the total legal bill to the Prison Service has reached £20 million a year, The Times has learnt." (Richard Ford, The Times (London), May 19). A couple of recent prisoner-suicide suits in the U.S.: Apr. 17, Apr. 28.

Assumption of risk wins one in Hawaii: "A golfer may not be held liable for mistakenly hitting another golfer with an errant golf ball, the Hawaii Supreme Court ruled." Ryan Yoneda sued after being hit in the left eye by Andrew Tom's wayward ball at Mililani Golf Course, but "Chief Justice Ronald Moon wrote Yoneda assumed the risk of the injury when he played golf." However, the court did allow a lawsuit to proceed against the course owner on grounds of negligent design. (AP/San Francisco Chronicle, May 16; Ken Kobayashi, "Golf at your own risk, court rules", Honolulu Advertiser, May 15).

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

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

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

A New Brunswick jury awarded $14 million to the Sharad family against their obstetrician, who failed to test for a rare genetic blood disorder, thalassemia major (Cooley's anemia), that their son was born with. Newspaper coverage mentions neither the doctor's defense nor even the words "wrongful birth." $8 million of the award is for emotional distress, meaning the family will be millionaires even after attorneys' fees and medical expenses. (Sue Epstein, "Couple gets millions for son's blood disorder", Star-Ledger, May 23). More on wrongful birth suits: Apr. 9, etc.

I've got details at Point of Law, where there is also much additional Milberg coverage.

On the other hand, the Times today continues to show admirable persistence in tracking the Anthony Pellicano scandal, even though that one (unlike Milberg's) doesn't have its roots in New York. (David M. Halbfinger and Allison Hope Weiner, "Pellicano Case Casts Harsh Light on Hollywood Entertainment Lawyers", May 23).

Also at Point of Law this week, in the "Featured Discussion" section, Jonathan B. Wilson and Larry Ribstein debate whether licensing lawyers makes sense.

From a May 17 news release by the Eastern League Altoona Curve:

ALTOONA- Inspired by a Los Angeles Angels fan who filed a lawsuit against the club because he did not receive a red nylon tote bag as part of the major league club's Mother’s Day promotion last May [see May 11], the Altoona Curve have announced that they will be holding Salute to Frivolous Lawsuit Night as part of their Sunday, July 2nd game at Blair County Ballpark.

The Curve’s salute to all ridiculous lawsuits ever filed will include the following:

* A Pink Tote Bag Giveaway to the first 137 men in attendance ages 18 and over

* The first 137 women 18 and over will receive lukewarm coffee so they will not burn themselves [see Oct. 20, 2005]

* The first 137 kids will be given a beach ball with a warning not to ingest it

* Angels merchandise and novelty items given away throughout the game

* Honoring some of history's "Most Frivolous Lawsuits" during the game

A grand prize drawing in which one fan will receive a “clue” and their own frivolous lawsuit.

My observations on the Milberg indictment drew comments from, among others, Tom Kirkendall, Steve Bainbridge, Jonathan Adler, James DeLong, and Larry Ribstein.

Two St. Louis attorneys (including Jeffrey Lowe (cf. POL Oct. 15)) will collect "up to" $975,000 in a settlement of a class action against Enterprise Rent-A-Car; their putative clients, a class of Missouri plaintiffs, will receive a 25%-off coupon that results in higher rates than standard discounts, and is thus entirely worthless. Consumerist (h/t Slim) has the details. The final hearing on the settlement is June 14. ("Judge OKs settlement in Enterprise class-action suit", St. Louis Post-Dispatch, May 5).

The allegation against Enterprise? That a 5% surcharge (which the plaintiffs admit Enterprise can legally charge) didn't clearly state what it was for. Enterprise isn't lowering its rates, but will state that the 5% covers various local taxes that it pays—thus adding more bulk to a lengthy list of small-print disclosures that obscures potentially useful information, since customers care about the bottom line to themselves, rather than how their rental car company spends its money. How precisely has this lawsuit made consumers better off? More on class actions.

Kevin Hassett asks why the Milberg Weiss indictments and silicosis scandal aren't resulting in sensible liability reforms when the publicity over the Enron scandal created the rush to pass Sarbanes-Oxley.

He's got a follow-up column which should be online at National Journal for a few days at least ("In Duke Case, A Rogues' Gallery", May 22)(& Cernovich). Earlier: May 17, etc.

I've got a lengthy op-ed in today's Wall Street Journal (sub-only) discussing the indictment of Milberg Weiss. A few excerpts:

Since such payoffs are baldly illegal, prosecutors claim the firm took elaborate steps to keep them concealed from judges and others. They say Milberg funneled much of the money through law-firm cut-outs and other channels, including casinos, and drew on a stash of money kept in a safe located in a credenza in partner David Bershad's New York office, "to which access was strictly limited." Again and again, prosecutors add, the firm submitted sworn statements on behalf of its clients denying any receipt of the sorts of payments they were in fact receiving. ...

With other class members absent, named plaintiffs are one of the few watchdogs against self-dealing or misconduct by the lawyers -- specifically, the pursuit of settlements that result in high legal fees, whether or not they serve the interest of the class. ... if the Justice Department's allegations are correct, Milberg was taking no chances on the watchdogs staying pacified: It threw regular chunks of raw liver into their cages. ...

The two celebrity lawyers who made Milberg famous, Melvyn Weiss and the now-departed William Lerach, have thus far escaped indictment: Of course, if they were prosecuting such a case, they would miss no opportunity to insinuate that misconduct by part of a team of top executives must have been at least tolerated by the others, that the rot goes straight to the top, that senior partners turned a convenient blind eye to signs of misconduct because they profited handsomely from that misconduct, and so forth. Messrs. Weiss and Lerach must count themselves lucky that such reasoning did not lead to their inclusion as defendants.

The Journal also has an editorial today on the subject.

Our earlier coverage: May 20 and links from there, May 21, as well as many posts at Point of Law. When The Economist profiled Melvyn Weiss three years ago, I told them, "A distinguishing characteristic of the Milberg Weiss approach is that the clients became tokens to be moved around a game board” (Jan. 17, 2002).

Updating our Apr. 12, 2005 post: Does it violate the rights of Major League Baseball when the rest of us conduct "fantasy baseball" leagues employing the names and statistics of actual players? A lawsuit making such contentions is now heading, notes Ron Coleman (May 17), "into the bottom of the ninth". (Alan Schwarz, "Baseball Is a Game of Numbers, but Whose Numbers Are They?", New York Times, May 16; Legal Fixation (IP blog); Infamy or Praise) (via Blawg Review #58 at Kevin Heller's Tech Law Advisor).

In the Pennsylvania contest discussed in this space Apr. 4, their efforts fizzled, with candidate Jim Haggerty placing third in the field. (Michael P. Buffer, "Baker cuts a wide swath", Wilkes Barre Times-Leader, May 18). And Texas Shark Watch, devoted to this subject (see Jan. 17), reports that trial lawyers were largely unsuccessful this year in Lone Star State GOP primary contests despite pumping in a good bit of money: four plaintiff's lawyers slated as candidates went down to defeat. Two lawyer-backed incumbents held on, but would probably have won in any case (Apr. 5, Apr. 12).

Regarding the jury award to the Sonoma County, Calif. employee sued over failing to win a job promotion losing his position in a job redesign because his agoraphobia prevented him from working except at home (Mar. 17), Michael Fox at Jottings By an Employer's Lawyer has an update (May 15):

The trial judge has shaved $4 million from the jury verdict, reducing the award to a still sizeable $2.5. Plaintiff has until this Friday to accept the lowered award or face a new trial on damages. The Court also conditionally granted a new trial finding juror misconduct on the damages. Affidavits indicated jurors inappropriately increased the award 40% for attorneys fees and 35% for taxes. The Court still has to award statutory attorneys fees.

More: see addendum to our Mar. 17 post.

The Drum Major Institute for Public Policy (“DMI”) is proud to announce the selection of Cyrus Dugger as the first Milberg Weiss Legal Fellow at DMI. The newly created Milberg Weiss Legal Fellowship will focus on developing a new generation of lawyers who are committed to working in a legal and public policy capacity to preserve access to the courts and our civil justice system....As a Milberg Weiss Senior Fellow, Mr. Dugger will focus his efforts on preserving access to the courts at a time in which persons with limited financial means are finding it difficult to pursue remedy through the legal system.

-- from the Milberg Weiss website, May 9.

Following a six-year investigation, the nation's best-known plaintiff's law firm is the subject of a 102-page federal indictment charging it paid millions in illegal kickbacks to a stable of docile "named plaintiffs" in its suits, and engaged in elaborate concealment and deception to keep the details of the scheme from coming to the attention of courts, class members and others. ("Top Law Firm Indicted in Alleged Scheme to Pay Plaintiffs for Class-Action Suits", AP/FoxNews.com, May 19; Julie Creswell, "Milberg Weiss Is Charged With Bribery and Fraud", New York Times, May 18; Josh Gerstein, "Criminal Charges Levied Against Big Tort Law Firm", New York Sun, May 19).

Blog reaction: Stephen Bainbridge; Tom Kirkendall; Evan Schaeffer; Greg Mitchell; Jonathan B. Wilson.

Our extensive earlier coverage: Apr. 7, Nov. 18 and links from there.

"Detectives across the country are refusing to issue 'wanted' posters for [foreign ex-criminals in flight from police] because they do not want to breach human rights laws. Forces said that the offenders had a right to privacy and might sue for defamation if their names and photographs were released." (Ben Leapman, "Human rights fears mean police refuse to issue wanted posters of foreign criminals", Daily Telegraph (UK), May 14) (fixed broken link).

Yes, it does happen: "A Florida urologist killed himself a few hours after a jury awarded a former patient $1 million in a malpractice claim." And this part is especially charming: "Timothy Moran, a Jacksonville lawyer who represented the plaintiff, blamed [Dr. Lawrence] Grey's insurance company for not settling the case." (UPI/M&C, May 5)(via KevinMD).

In its many lawsuits against critics of its activities (see Jan. 5) the Islamic Society of Boston has added as a defendant Muslim reformist Ahmed Mansour, a former visiting fellow at Harvard Law School. (Jeff Jacoby, "Muslim reformer still a target", May 17; Dean Barnett, "Mosque meltdown", Weekly Standard, Mar. 24; Miss Kelly, Mar. 24).

Today the Manhattan Institute's Center for Legal Policy (with which I'm affiliated) released a major new paper by Alexander Tabarrok and Amanda Agan of George Mason University's Department of Economics. It's titled "Medical Malpractice Awards, Insurance, and Negligence: Which Are Related?" As summarized by my colleague Jim Copland this morning at Point of Law, Tabarrok and Agan reach the following conclusions:

1. They show that medical malpractice premiums are closely related to medical malpractice tort awards. ...

2. They show that medical malpractice premiums are not explained by insurance industry price gouging. ...

3. They show that medical malpractice tort awards are related to some factors not rationally related to injuries. ...

4. They show that malpractice tort awards and thus insurance premiums can vary dramatically for reasons having little or nothing to do with negligence.

More here and here.

The crash of American Airlines Flight 587 in a quiet residential neighborhood nearly five years ago is subject to general maritime laws, a judge ruled Tuesday, allowing potentially higher damages for dozens of people who sued.

If the result was piquant, the rationale was priceless:

U.S. District Judge Robert W. Sweet said it did not matter that the plane crashed on land in Queens, killing 260 people on the plane and five on the ground. He noted that the plane was on a 1,500-mile transoceanic flight to the Dominican Republic.

"There can be no question that, but for the development of air travel, this trip or some portion thereof would have been conducted by a waterborne vessel and that it therefore bears a significant relationship to traditional maritime activity,'' the judge wrote in a 78-page opinion analyzing the issue.

Besides, a piece of the aircraft, though not one containing passengers, did land in Jamaica Bay. So that would seem to settle it. (Larry Neumeister, "Plane that struck Queens neighborhood subject to maritime laws", AP/WINS, May 9) (via Taranto).

Now here's a great way to pour oil on troubled waters: "Mexico said Tuesday that it would file lawsuits in U.S. courts if National Guard troops on the border become directly involved in detaining migrants." (Marina Montemayor, AP/Niagara Gazette, May 16).

To celebrate Beaumont tobacco/asbestos lawyer Walter Umphrey's seventieth birthday, fellow Texas Tobacco Five member John Eddie Williams took over a private aircraft hangar -- Umphrey's own, in fact -- "moved out the two private jets and the helicopter, added on a two-story party tent and threw a no-holds-barred tribute to Umphrey." Music was provided by Chuck Berry, Jerry Lee Lewis and Rotel and the Hot Tomatoes, performing on two different stages, and there was some pretty decent food too. Among the 400 attendees: gubernatorial candidate Carole Keeton Strayhorn. (Shelby Hodge, "Wild soiree in hangar was Western to the hilt", Houston Chronicle, May 14). Of course it was a mere kaffeeklatsch compared with a Willie Gary or Mark Lanier party.

Now back to your previously scheduled news story about excessive CEO compensation.

Thomas Sowell nominates the controversy's low point:

According to Newsweek, the young man at NCCU [North Carolina Central University] said that he wanted to see the Duke students prosecuted, "whether it happened or not. It would be justice for things that happened in the past."

("The Biggest Scandal in the Duke University Rape Case", syndicated/Capitalism Magazine, May 17). The comment was hardly representative of anyone's views but the one student's, though, contends John Schwade in the Durham News ("Article opts to sensationalize with its color commentary", Apr. 29). More: Dr. Helen, Apr. 22. Stuart Taylor Jr. has a powerful column on the subject which however is online only to National Journal/The Atlantic subscribers ("An Outrageous Rush to Judgment", May 2). And guess who's involved himself in the case, as an advisor to the complainant's family? None other than ace money-extractor Willie Gary, long familiar to readers of this site (Wendy McElroy, "Is 'Duke' Case Headed to Civil Court?", FoxNews.com, May 16).

Bloomberg's crew says the city carried out "sting" operations that proved dealers in Pennsylvania, South Carolina and elsewhere were selling to "straw purchasers" in violation of federal law. (Diane Cardwell, "New York City Sues 15 Gun Dealers in 5 States, Charging Illegal Sales", New York Times, May 16). David Hardy at Arms and the Law (May 15) says that even if the city can prove such allegations, "I still see major barriers in terms of (a) duty (b) causation and (c) damages. Not to mention (d), standing. I mean -- if you can prove a dealer on a certain day was willing to make a strawman sale, does that prove he ever did so in the past? How many times? What crimes were caused or not caused?"

Forbes says "patent trolls" will be deterred by the Supreme Court's new ruling in the eBay case, in which "the justices ruled unanimously that federal courts must weigh several factors before barring a patent infringer from using a contested technology or business method." (Jessica Holzer, "Supreme Court Buries Patent Trolls", May 16)(& Lattman)(opinion, PDF).

Adeline Scomello of Suffolk County, N.Y. engaged five attorneys to represent her in divorce proceedings, and sued all five for legal malpractice. Now a judge has finally thrown out, with strong words as to its lack of merit, her pro se suit against lawyer #2 in the series -- a suit that lasted for eighteen years. Dismissing her 329-page application for reargument, Supreme Court Justice Jeffrey Arlen Spinner wrote that New York's public policy of "unfettered access to the courts" must give way at some point. (Mark Fass, "Judge Halts Pro Se Litigant's 'Abusive Litigation Practices' Against Divorce Lawyers", New York Law Journal, May 11). (Corrected to fix typo in litigant's name).

Left over from last month: "An economics professor from California who was arrested because a flight attendant thought she looked like a terrorist has been awarded $27.5m. In a victory for critics of racial profiling, a jury in El Paso, Texas, ordered Southwest Airlines to pay damages to Samantha Carrington for false imprisonment and malicious prosecution after she was bundled off a flight and arrested because flight attendants found her appearance suspicious." (Salamagundi, Apr. 14; Best of the Fray; Protein Wisdom; "Finding the wrong answer" (editorial), USA Today, Apr. 14). For more links on air profiling, see our aviation page archive.

Why sue every physician on the patient's chart? One reason, via KevinMD (May 6): "Plaintiffs' lawyers love it when physicians point fingers at each other. They can just sit back and watch the doctors destroy each other." (Berkeley Rice, "Watch out for this malpractice trap!", Medical Economics, May 5).

Nine Afghan asylum seekers who hijacked a plane at gunpoint to get to Britain should have been admitted to the country as genuine refugees and allowed to live and work here freely, the High Court ruled yesterday.

In a decision that astonished and dismayed MPs, the Home Office was accused of abusing its powers by failing to give the nine formal permission to enter Britain, in breach of their human rights.

(Philip Johnston, "Hijackers have a right to live in Britain", Daily Telegraph, May 11; "Give us back our rights" (editorial), May 14).

Here come the first of what will doubtless be many lawsuits against telephone companies: two New Jersey lawyers want $5 billion from Verizon. (Beth DeFalco, "Verizon sued for giving NSA phone records", AP/San Jose Mercury News, May 12). Orin Kerr has more (here, here and here), while Riehl World View checks out one of the lawyers involved (May 13). Also: Heather Mac Donald, "Information Please", Weekly Standard, May 22. P.S. And now Verizon, decrying "glaring and repeated falsehoods" in the media, "said it was not asked by the government agency to provide, nor did Verizon give out, customer phone records from any of its businesses, or any customer call data." (David Ellis, "Verizon denies giving out phone info", CNN Money, May 16). More: Carolyn Elefant.

Updating our Feb. 22 report: "A judge Friday suspended California's high school exit exam, finding it discriminatory in a ruling that could allow thousands of students who failed the test to get their diplomas anyway." Alameda County Superior Court Judge Robert Freedman "agreed with the plaintiffs that the exam discriminates against poor students and those who are learning English. 'There is evidence in the record that shows that students in economically challenged communities have not had an equal opportunity to learn the materials tested,' Freedman wrote." It would appear that from now on a high school diploma is meant to signify not a student's actual mastery of a certain body of material, but rather the mastery he or she would have attained had the breaks of life been fairer. Employers, and all others who rely on California high school diplomas in evaluating talent, would be well advised to adjust their expectations accordingly.

"Superintendent of Public Instruction Jack O'Connell said the state would immediately appeal the ruling, which he said creates 'chaos' for more than 1,100 high schools that are completing graduation preparations." However, plaintiff Mayra Ibanez was gratified:

"It is hard to be poor. It is hard to grow up in a place where there is a lot of crime," said the 18-year-old, a Mexican immigrant who attends school in the working-class San Francisco Bay area city of Richmond. "No one will be hurt if we get our diploma."

(Juliet Williams, "Ruling Blocks Calif. High School Exit Exam", AP/Forbes, May 12).

As pointed out by commenter Scott McDonald in our earlier thread, an editor/commentator at NetworkWorld thinks Eric Goldman's animadversions on lawyers suing Yahoo might strike those lawyers as itself cause for legal action (Paul McNamara, "More blogging off the cliff ... lawyer-style", May 12). Glenn Reynolds takes note of the controversy (May 12) and points to an SSRN paper of his own entitled, "Libel in the Blogosphere: Some Preliminary Thoughts". Comments on the Goldman/Yahoo case: Denise Howell, Evan Schaeffer.

The New York Times "Styles" section leads off today with a trend explored in our posts of May 5 and Jul. 12, 2005:

The increasing appearance of pets whose owners say they are needed for emotional support in restaurants — as well as on airplanes, in offices and even in health spas — goes back, according to those who train such animals, to a 2003 ruling by the Department of Transportation. It clarified policies regarding disabled passengers on airplanes, stating for the first time that animals used to aid people with emotional ailments like depression or anxiety should be given the same access and privileges as animals helping people with physical disabilities like blindness or deafness.

The following year appellate courts in New York State for the first time accepted tenants' arguments in two cases that emotional support was a viable reason to keep a pet despite a building's no-pets policy. Word of the cases and of the Transportation Department's ruling spread, aided by television and the Internet. Now airlines are grappling with how to accommodate 200-pound dogs in the passenger cabin and even emotional-support goats. And businesses like restaurants not directly addressed in the airline or housing decisions face a newly empowered group of customers seeking admittance with their animals.

(Beth Landman, "Wagging the Dog, and a Finger", May 14).

Plus: Cutting Edge of Ecstasy, dot_gimp_snark, Petulant Times, Cernovich, and Giacalone (we're "ahead of the pundit pack" -- thanks!). Orichalcum: "If I pay $200+ for a plane seat, I kinda feel I have the right not to have a goat in the seat next to me, no matter how comforting its presence is to the third person in the row." Mark Baratelli proposes "service bottles".

Laura Lee Medley was making a regular career of filing claims against various Southern California entities complaining of violations of her rights as a wheelchair user under the Americans with Disabilities Act. Placed under arrest after police sniffed fraud, Medley leaped from her chair and led authorities on a brief chase which ended with her capture:

Medley's claims in California against San Bernardino County, South Pasadena and Long Beach included one allegation that a bus dropped her off near what she called a non-ADA compliant roadway, causing her wheelchair to topple over.

Last year, South Pasadena settled Medley's claim for almost $7,000.

Medley is also a fugitive with arrest warrants in Arizona for forgery and California for fraud.

(AP/KCRA, May 12; Sploid). For more on dubious handicapped activism, including the California scene where serial complainants abound, see our disabled-rights page.

Attorney Alan Schnurman of Zalman & Schnurman was recently in the news for filing a sensational $20 million claim of bedbug infestation against a Catskills hotel on behalf of a patron who, curiously, is said to have gone back voluntarily to stay at the same section of the hotel two weeks later (see Mar. 9). Now Peter Lattman at the WSJ law blog (May 5) brings word that Schnurman

from the looks of it, is trying to supplement the millions he earns from a lucrative personal-injury practice by flipping Hamptons real estate.

Last week the 60-year-old Schnurman reportedly listed a 41-acre parcel in the town of Sagaponack for $49.5 million. He paid $25 million for the non-oceanfront property last July. He’s also listed another parcel in Bridgehampton for $37.5 million, having purchased that 25-acre property nine months ago for $15 million.

Now back to your previously scheduled news story about excessive CEO compensation.

Plaintiff's lawyers are challenging them, but Eric Goldman finds the case weak (Technology & Marketing Law Blog, May 8).

Law.com/The Recorder on the movement to curb venue-shopping in intellectual property litigation, a reaction in part to the rise of the plaintiff-friendly little jurisdiction of Marshall, Texas, as noted in our posts of Jan. 14 and Dec. 21, 2005.
(Xenia P. Kobylarz, The Recorder, May 9).

Oh, great, just what we needed: conservatives learn how to play the victimization game (Jesse Walker, Reason, May 8).

More entrepreneurial lawyering in California:

A Los Angeles psychologist who was denied a tote bag during a Mother's Day giveaway at an Angel game is suing the baseball team, alleging sex and age discrimination.

Michael Cohn's class-action claim in Orange County Superior Court alleges that thousands of males and fans under 18 were "treated unequally" at a "Family Sunday" promotion last May and are entitled to $4,000 each in damages.

(Dave McKibben, "L.A. Psychologist Who Didn't Get Tote Bag at Mother's Day Angel Game Files Lawsuit", Los Angeles Times, May 11). Cohn's attorney is Alfred Rava, who (as the L.A. Times really should have found out by Googling Overlawyered, if not its own archives) was among the key figures in the 2003 spree by which owners of San Diego nightspots were hit up for handsome cash settlements for having held "Ladies' Night" promotions. The Unruh Act, California's distinctively liberal civil rights statute, allows complainants to demand $4,000 a pop for such misdeeds, and it's no defense to suggest that the customer's primary reason for getting involved in the underlying transaction may have been to set up the $4,000 entitlement. More: "Lex Icon" wishes to make clear that he's not the kind of lawyer who files cases like this (May 13).

Campaigners for compulsory health in Great Britain are pressing for new laws that could largely spell an end to old-fashioned roving ice-cream vans (which in that country, rather charmingly, are said to play "Greensleeves" or "O Sole Mio" as their jingles). (Rajeev Syal and David Sanderson, "Why ice-cream vans face total meltdown", The Times (UK), May 8)(via A&LDaily).

Nor are grown-ups to be trusted with their own dietary choices any more than kids, at least not in Scotland:

Bar owners have warned they could be forced to stop serving chips and traditional pub meals under proposals by the Scottish Executive.

Under regulations being considered by the Executive, landlords - many of whom are still unhappy at the smoking ban - would be required to have policies to promote "sensible eating" as a condition of their licenses.

(Russell Jackson, "Publicans fear Executive wants 'unhealthy' bar meals banned", The Scotsman, May 5)(via Stuttaford)(& welcome Andrew Sullivan, Stephen Bainbridge readers). Our UK page is here, and our page on food and beverage nannyism, regulation and litigation is here.

San Antonio:

An animal rights group has filed a lawsuit on behalf of seven chimpanzees and two monkeys, claiming the primates are not properly cared for at a Leon Springs sanctuary.

People for the Ethical Treatment of Animals wants a state district judge in Bexar County to appoint a guardian to oversee more than $235,000 provided for the animals' care at Primarily Primates.

("PETA Sues Local Primate Sanctuary ", KSAT, May 8)(via Strange in San Antonio).

Meanwhile, Dan McLaughlin at Baseball Crank reports (Apr. 19) on a Ninth Circuit decision (PDF) which "permitted an animal rights activist's qui tam suit to go forward under the False Claims Act against a cancer researcher, principally on the theory that the researcher misrepresented the efficacy of his research." McLaughlin does not pass judgment on whether the research project in question was a good use of public funds:

But I do know that allowing animal rights zealots an opening to use private litigation to harass medical researchers is a horrifying development. You will note, if you review the allegations on pages 6-7 of the slip opinion, that there are no allegations of the kind of things the False Claims Act is intended to protect against, i.e., personal enrichment, bill padding, and/or cost overruns by government contractors. Instead, there are a series of charges mainly relating to the medical merits of the research - a subject that will often be difficult for a judge without medical expertise to resolve on a motion to dismiss (where you assume the truth of the plaintiff's allegations) or even on summary judgment (where the defendant only wins if it can show that there are no material factual disputes). Result: protracted and expensive litigation whenever anti-animal-research fanatics can gin up a factual dispute and hire an expert to bicker over anything said in a research application, with the attendant chilling effect on life-saving research. Indeed, from the docket numbers on the caption it appears that this particular case has already dragged on for five years just on the dispute over the legal merits.

Of course, harassment via legal process may compare favorably with some of the ways animal rights zealots have been known to harass researchers.

The Manhattan Institute is recruiting a new press officer and has asked me to help spread the word.

National Law Journal takes a look at one of the hot issues in family law: whether a man can terminate child support payments if DNA testing reveals that he is not in fact the father of the child he has been supporting. Or should he perhaps be given some legal remedy against the mother other than the right to suspend support? (Tresa Baldas, "Parent Trap? Litigation Explodes Over Paternity Fraud", Apr. 10).

Animal rights campaigners win a victory against a hapless restaurateur in Vicenza, Italy (van Bakel, Apr. 28).

Following three accidents in New York City, some grieving parents are asking for legislation mandating that TV sets carry warning labels that they're heavy and can kill or injure you if you have the bad fortune to be underneath them when they topple over. ("Children killed by falling TVs", AP/Newsday, Apr. 30).

This time the dateline is Portland, Ore., where the school system has removed all swing sets from elementary school playgrounds. Another casualty: tube slides. (Susan Harding, KATU, May 8). See Jul. 18, 2005, etc.

Well, it depends. If your employer is, say, a locally owned dry cleaner, it's unlikely to reach more than five or six figures. If on the other hand, you work for the world's most successful automaker, you can claim $190 million ("Toyota hit with $190M harassment suit", Reuters/CNN, May 2). LaborProf Paul Secunda finds the number troubling (May 8). Lattman has more (May 9).

The votes weren't there in the Senate for med-mal reform before, and they're still not there. (James Rowley, " Demos kill caps on malpractice awards", Bloomberg/Arizona Star, May 9; Dana Milbank, "Washington Sketch: Take Two of These and Call Us Next Year", Washington Post, May 9). See our category pages on medical malpractice and on politics.

It's Wal-Mart versus this French guy whose lawyers go around the world claiming dibs on the use of the grinning yellow circle. Can't they both lose? Or maybe better, both win, and obtain mutual injunctions against anyone at all employing the symbol? (Abigail Goldman, "Wal-Mart Vies for Right to Put On a Happy Face", Los Angeles Times, May 7).

Kent, Wash.: A suit against Amtrak is set to go to trial next month on behalf of the survivors of a pair of 11- and 13-year-old girls who engaged in that ill-advised pastime. "The case apparently is the only one of its kind in [Washington] state where an appellate court" -- that would be the Ninth Circuit -- "has reversed the dismissal of a case against a train company." (Nancy Bartley, "Lawsuit in train deaths is beating the odds", Seattle Times, May 3).

Orac at Respectful Insolence has a must-read post about what a change in his insurance renewal form means. No further comment needed. (Via Childs).

Ted and I join with Jim Copland, Larry Ribstein, Tom Kirkendall, and Sam Munson this morning as co-hosts of the week's traveling carnival of law-related blogs, Blawg Review, over at Point of Law. A very few highlights:

* Ted comments on the self-unmasking of pseudonymous blogger "Juan Non-Volokh", on various matters connected with Joe DiMaggio. and on Howard Bashman's Stakhanovite work pace.

* Jim discusses the tax consequences for plaintiffs of confidentiality agreements in settlements, via Evan Schaeffer's other weblog; a new way for the plaintiff's securities bar to get around PSLRA; and a Court TV reality show set in New York City's real-life night court.

* Larry, Tom and Sam round up posts on corporate law, on the Enron trial and other prosecutorial matters, and on a variety of subjects including law review style.

* And I discuss an on-the-job love triangle that eventuated in a Title VII lawsuit alleging sex discrimination; liability headaches for online enterprises and software manufacturers; the case in which the Cleveland bar association is trying to get a dad penalized for unauthorized practice of law after he successfully represented his own son in special-ed proceedings; Long Island legislator Jeffrey Toback's demagogic suit against Google for allegedly interfering with children, as dissected by Eric Goldman; and the fast-rising number of cases filed under ERISA, the federal pension and employee-benefits statute.

It's all here. Next week's Blawg Review will be hosted by Lawyerlike.

In a ringing reaffirmation of personal responsibility, the Supreme Court of Canada has unanimously rejected an attempt (see May 2) to hold party givers financially liable for a car crash caused by a drunken guest:

"A person who accepts an invitation to attend a private party does not park his autonomy at the door," wrote Chief Justice Beverley McLachlin.

"The consumption of alcohol, and the assumption of the risks of impaired judgment, is in almost all cases a personal choice and an inherently personal activity."

Unlike tavern owners, said the court, social hosts can't monitor their guests' drinking, may be inebriated themselves, and aren't trained to detect whether departing guests are intoxicated.

Moreover, "the law does not impose a duty to eliminate risk.

"It accepts that competent people have the right to engage in risky activities," said the judgment. "Conversely, it permits third parties witnessing risk to decide not become rescuers or otherwise intervene."

(Bruce Cheadle, "Top court rejects drunk guest lawsuit", CP/Canoe, May 5; Kathleen Harris, "", Winnipeg Sun, May 6; opinion, Childs v. Desormeaux; Ann Marie McQueen, "Case boils down to personal responsibility", Ottawa Sun, May 6; Michelle Mann, "Supreme Court couldn't rule on compassion in party host case", CBC, May 5). Numerous U.S. states have embraced social-host liability, whether through legislation or through unilateral court reinterpretation of common law doctrine.

The controversy summarized in our May 2 post, about the Christian video-shop owner in Arlington, Va. who drew unfavorable official attention for refusing to duplicate gay-rights videos, provoked a substantial reader discussion. Now the issue has been taken up by Dale Carpenter and Eugene Volokh (both May 4). And further: Ampersand, Stephen Miller at Independent Gay Forum, Jonathan Rauch at MarriageDebate.com.

First came the mixing up of allegations of racial discrimination against Interstate Bakeries, producer of Wonder Bread and Hostess Twinkies (Jul. 3, 2000). Then came the baking of juror sentiment to a tasty turn by San Francisco plaintiff's lawyer Angela Alioto's team, resulting in a $132 million award to 21 workers (Aug. 4, 2000). Then came some deflation of the spongy loaf, as a judge lopped $97 million off the award (Oct. 10, 2000). Now, six years later, the case having settled for maybe $25 million, a lawyer who worked with Alioto continues to battle her in court for a share of the mouth-watering fees (Mike McKee, "Lawyer Still Seeks Slice of Wonder Bread Fees", The Recorder/Law.com, Apr. 28).

We covered this case as Hollins v. Jordan in 2004 on Nov. 20, Oct. 11, and Aug. 31. In a disingenuous 2-1 opinion, an Ohio appellate court overturned the lower court's grant of a new trial, and reinstated the liability verdict. The court did hold that the $30 million verdict was too high, but it is unlikely to be reduced more than 20%. I found the dissent, starting on page 23, persuasive; the majority opinion falsely claims that the defendants did not challenge liability on appeal to argue that there was no need for a new trial. New detail that the press did not cover: the plaintiff suffered from microcephaly—is there a legitimate doctor out there who wishes to claim that brain damage from microcephaly results from the failure to perform a C-section? Also worth reading in the dissent is the detailing of the dishonesty with which Geoffrey Fieger characterized testimony. Lawyers plan to appeal to the Ohio Supreme Court. (AP/Canton Repository, May 5 (link fixed 5:45 pm)).

[84-year-old Loren] Richards died on March 2, 2002, at Beverly Health and Rehabilitation of Frankfort.

Richards' daughter, Wanda Delaplane, sued the home, alleging that nurses had ignored her father's repeated calls for help with abdominal pain. With an impacted bowel, he later died of a heart attack and a blood clot in his left lung.

The home argued that Richards had a heart attack because he had smoked for years and had severely blocked arteries. The Kentucky jury also awarded $200,000 for failing to immediately notify the family of a downward turn in Richards' health. The Richards family had asked for over $150 million in total damages. Delaplane is an attorney with the Kentucky Attorney General's office, so you know which government agency not to complain to when nursing home expenses go through the roof because of the liability insurance costs. (Greg Kocher, "Man's estate to get $20 million", Lexington Herald-Leader, May 5; Greg Kocher, "Nursing home provided proper care, attorney says in closing arguments", Lexington Herald-Leader, May 3; Steve Lannen, "Nursing home sued for $155 million", Lexington Herald-Leader, Mar. 23).

More scary paternalism in the name of public health from the Bloomberg crew: the New York City government has begun "legally requiring laboratories that do medical testing to report to the Health Department the results of blood-sugar tests for city residents with diabetes -- along with the names, ages, and contact information on those patients. City officials are not only analyzing these data to assess patterns and changes in diabetes prevalence in the city, but are planning 'interventions.' ... If you wish to keep your medical data confidential, you cannot." Coercive public-health techniques originally seen as needed to combat communicable and infectious disease will now be deployed in hopes of correcting less-than-healthy individual behavior. Where's HIPAA, the manically overbroad federal patient-privacy law, now that it might actually do some good? (Elizabeth Whelan, "Big Brother Will See You Now", National Review Online, Apr. 25).

Next Monday sister site Point of Law will be hosting Blawg Review #56, the weekly traveling carnival which rounds up some of the best recent law-related blog writing. If you'd like to nominate a post from your own or someone else's blog, you'll need to do so by Saturday evening. The submissions guidelines are here, and you can submit posts here.

There's nothing tremendously surprising about, say, a criminal defense lawyer winning election as a state legislator and then using his or her influence to strengthen due process protections for persons accused of crimes or to lower excessive penalties for those convicted. But what are we to make of the much rarer, opposite phenomenon -- the criminal defense lawyer who gets elected and then pushes for the application of more stringent penalties against people like his own clients? Jerry Stratton, Charles Homiller, Radley Balko, and Lines in the Sand all discuss the case of Virginia Del. David Albo, a Fairfax Republican whose day job is as a lawyer defending motorists from DUI and other traffic charges. Del. Albo is also a sponsor of a bill in Richmond that would stiffen traffic fines as a way of providing money to fund transportation projects, and he has been the sponsor over the years of numerous other bills that make life more difficult for traffic defendants. Radley Balko is perhaps uncharitable when he suggests that the motive of lawyer/legislators like Albo is to "[steer] customers toward their criminal defense practices" -- it's possible, after all, for a lawyer to hold honest convictions that happen to be adverse to their clients' interests. But it's hard not to join in Balko's parting observation: "I wonder if Albo tells his clients that he wrote many of the laws they've hired him to defend them from." Update: Point of Law, Jun. 25, 2007.

Stephen Bainbridge and the Los Angeles Times (h/t W.F.) go into more detail on the Chicago ban we covered last week.

Gawker Media LA-blog Defamer has an entertaining cease-and-desist letter sent to a site that ranked photos of assistants on a hotness scale.

Sherman Joyce explains why the appellation is deserved.

Marcia Coyle's May 3 piece extensively quotes me and the Liability Outlook I wrote with Martin Grace of RiskProf, the good parts of which can be attributed to him.

Sen. Ensign's S. 22 itself is finally available on THOMAS.

(cross-posted at Point of Law)

In this reported case, a nameless plaintiff was pushed onto the railroad tracks in front of an oncoming train by a nameless third party, and sued the NYCTA for her personal injuries because the train didn't stop in time. A jury found the NYCTA 40% at fault for "speeding," despite conflicting testimony whether it was even physically possible for the train to stop in time at the slower speed. The court was kind enough to reduce this to 20%, which still puts taxpayers on the entire hook for economic damages, if halving the noneconomic damages under New York's version of joint and several liability.

Class action lawyers are seeking to roll together lawsuits against DuPont on behalf of persons in fifteen states who've bought the non-stick cookware, whether or not those persons feel aggrieved or have inadvertently left empty pans unattended on the heat with resulting fumes. The sum bandied about as a remedy, $5 billion, hasn't changed since we covered the story last summer (Jul. 20), but the tone of the plaintiff's lawyers has grown noticeably more alarmist, as in the case of Kim Baer of Des Moines, who claims that "the material could become toxic when heated 'enough to fry an egg'". ("Plaintiffs seek class action in DuPont Teflon lawsuit", AP/Richmond Times-Dispatch, Apr. 21). And lead plaintiff's counsel Alan J. Kluger contends: "This stuff shouldn't be on the market, period." (Peter Geier, "Teflon Litigators Hope Class Action Sticks", National Law Journal, Apr. 26).

Thirty or so law firms will bag more than $112 million in fees. (Mike McKee, "Calif. Justices Let Stand Microsoft Settlement and Millions in Attorney Fees", The Recorder/Law.com, Apr. 21). See Jan. 15, etc.

Yeah, and thought's common enough (Wendy McElroy, FoxNews.com, May 2).

All levity aside, this is a serious column laying out some statistics adduced a decade ago by Peter Neufeld and Barry C. Scheck of the Innocence Project:

They stated, "Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained, the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive, about 2,000 tests have excluded the primary suspect, and about 6,000 have "matched" or included the primary suspect."

The authors continued, "these percentages have remained constant for 7 years, and the National Institute of Justice's informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate."

If the foregoing results can be extrapolated, then the rate of false reports is roughly between 20 (if DNA excludes an accused) to 40 percent (if inconclusive DNA is added). The relatively low estimate of 25 to 26 percent is probably accurate, especially since it is supported by other sources.

McElroy cites a number of caveats which should be kept in mind by those who would cite the Neufeld/Scheck numbers. At a minimum, however, they should serve to refute the still-sometimes-heard contention that false accusation is exceedingly rare. More from McElroy: "Duke Rape Case Raises Issue of Protecting Identity of Accused", FoxNews.com, Apr. 26; "Did Justice or Politics Drive Arrests in Duke Lacrosse Case?", Apr. 18). More on Duke case: Cathy Young, syndicated/Reason.com, May 2. P.S. A riposte, and comments, at Ampersand.

It seems Wal-Mart was supposed to use 10-point type for its "While Supplies Last" disclaimer when advertising its Early Bird specials in Utah, but instead used 7-point type. So naturally Matthew Howell, an attorney with the Provo law firm of Fillmore Spencer, has filed a would-be class action lawsuit against the giant retailer, on behalf of named clients Brandon and Tonya Barker. (Grace Leong, "Couple files suit over Wal-Mart early-bird deals", Provo Daily Herald, Apr. 21).

Such a collegial guy to have around a faculty, that Prof. Banzhaf:

Students at the George Washington University may now be able to sue administrators individually for perceived wrong-doings rather than attempt legal action against the University as a whole, with the help of a new legal tactic suggested by maverick GW Law professor John Banzhaf.

Using the District of Columbia’s Human Rights Act as support, Banzhaf created a website, banzhaf.net/fightback, to educate students on how they can sue individual GW administrators and professors without the institutional legal protection the University typically provides. ...

“If you could download a simple complaint (form) from the Internet and go after not the University but the individual administrator who made the decision, I think you’ve got leverage,” said Banzhaf.

(Christine Grimaldi and Emily Metz, "Prof: students can sue individual administrators", Daily Colonial, Apr. 17). Last week, administrators at GWU announced that they were reversing an earlier stand and capitulating to a demand by Banzhaf and various students to post signs discouraging persons from smoking near entrances to the university's campus in an urbanized section of Washington, D.C. (Katie Rooney, "GW to post signs asking smokers to back off from buildings", GW Hatchet, Apr. 24). Banzhaf naturally takes credit:

“It was only after I initially threatened to sue him [college director of risk management and insurance Fitzroy Smith] personally and sent a draft complaint to University lawyers, did they agree to revise signs over all the campus buildings,” said Banzhaf...

If appropriate signs are not up by the beginning of the Fall 2006 semester, Banzhaf and his law students “will file the complaint, which would make Mr. Smith liable for tens of thousands of dollars plus my attorney fees,” said Banzhaf in a letter released on Friday.

Banzhaf plans to seek $100 for every student exposed to second-hand smoke while entering University buildings from January until the signs are up....

“At this point I hope they do it right,” said Banzhaf. “I’m not kidding around.”

(Brittany Levine, "GW concedes to smoking ban petition", Daily Colonial, Apr. 24).

For more on Prof. Banzhaf, whose activities regularly furnish material for this site, see Feb. 28 and links from there. An absurdly laudatory editorial about him in the university newspaper states: "As a professor of public interest law here at GW, Banzhaf has become most notable for his class on 'Legal Activism,' also informally known as 'suing for credit.' His class teaches students to become public interest lawyers while giving them real experience." ("GW’s own legal powerhouse", Apr. 20).

Another animal rights story from Britain: "A policeman who put an injured cat out of its misery after it had been run over was dragged through the courts by the RSPCA in a case that has cost £50,000." The High Court finally threw out the case against Jonathan Bell, who had been the target of a two-year campaign of prosecution by the Royal Society for the Prevention of Cruelty to Animals. (Ben Leapman and Matthew Chapman, "Two years and £50,000 later, ordeal of policeman who put dying cat out of its misery is finally over", Daily Telegraph, Apr. 9).

Updating our Apr. 27 story, the jury awarded $500,000 "compensatory" and $1.2 million punitives. (AP, May 1). It's that compensatory damages number that gets me: does anyone doubt that if plaintiff Janet Orlando collects that money, she's better off than if she had never been paddled at all? Orlando had requested $1.2 million in compensatory damages plus punitives.

Customers get four rentals or a free month; Netflix won't automatically renew those who sign up; the attorneys get $1.3 million, with a potential additional $1.1 million if more customers sign up for the deal, down from the original $2.5 million guarantee. (Michael Liedtke, AP/Mercury-News, May 1 (h/t Slim)). See our previous six posts, starting at Apr. 2.

Various American jurisdictions impose liability on party-givers who it's argued should have done more to prevent guests from drinking and driving. Now the Supreme Court of Canada has agreed to consider a case in which Zoe Childs of Oxford Station is suing Dwight Courrier and Julie Zimmerman, who threw a New Year's party attended by Desmond Desormeaux, an alcoholic who drove off and into Childs' car, severely injuring her. (cross-posted from Point of Law). Update May 7: court unanimously rejects liability.

Regarding yesterday's item "Lied about her age to get into wet T-shirt contest", reader James Ingram wrote to say:

Actually, I think you are off base on the case of the young woman who sued for use of her semi-nude pictures taken when she was only sixteen years old. Protecting minors from the negative consequences of their poor judgment and immaturity is a very traditional function of the law and one that makes good sense. This is why the law sets minimum ages for making life altering decisions such as entering contracts, getting married, having sex or dropping out of school, for purchasing potentially harmful products like alcohol, tobacco and firearms and for engaging in activities like driving and operating heavy machinery that could be dangerous to the minor or others. It is also why we have juvenile courts. Children need to be protected from themselves because they are children, and not fully responsible for their own actions.

Generally we require the adults who interact with minors to verify their age before allowing them to engage in these sorts of activities, and hold them legally responsible even if the minor lies about his or her age. No bartender who served a sixteen year old would be excused because she told him she was "of age"; he is legally responsible to verify her age by seeing proper ID and liable to punishment if he does not do so. The same rule ought to apply to the makers of skin flicks. The film producer took advantage of the poor judgment of an immature (and probably intoxicated) girl and deserves to be held accountable. (I give you that suing the hotel was silly.)

To which I replied:

I can see some point in your comments as regards the possibility of other legal sanctions aimed at the organizers, and perhaps even giving her some sort of right to obtain an injunction against further distribution, but the idea of letting her rake in cash over the incident strikes me as more than a little foolish. The result will be to set her up in an affluent position above her peers who had the good sense not to commit such follies, the sort of young women who are saving fifty dollars a week out of their paychecks as store clerks and waitresses. What sort of lesson does that send? And of course there's also the grasping nature of the selection of defendants in the case, as you acknowledge.

And Ingram wrote back:

Good point. And you are right that a legal system that has only one answer -- award money damages to the plaintiff -- creates perverse incentives and rewards bad behavior. Kind of like the AGs' tobacco litigation in a way. They "punished" the tobacco industry by taking a cut of the take; she punishes her exploiters by making them cut her in on the revenue from her strip show.

Interestingly, in the case of the underage drinking example I used the law would have remedies against both of the parties who behaved badly. The bartender who served the underage girl would face a fine or loss of license, while the girl would face juvenile court proceedings for underage drinking. I think my larger point -- that the law should protect children and teenagers from their own folly and sanction the adults who facilitate it -- is valid. Your larger point -- we shouldn't reward bad behavior with money even in circumstances where that behavior may be excused by youth and immaturity -- is also valid.

In suburban Washington, D.C., Bono Film and Video has an announced policy of refusing to duplicate material that owner Tim Bono regards as contrary to his Christian values. Now the Arlington County (Va.) Human Rights Commission has held a public hearing and investigated Bono on charges that he discriminated against Lilli Vincenz by refusing to duplicate her Gay Pride videos. (Hans Bader, Open Market (Competitive Enterprise Institute), Apr. 28; Nancy Yamada, "Discriminated Against Because She's Gay?", WUSA, Mar. 9; LiberRants, Mar. 13; Robin Sizemore, Apr. 27). Various social-conservative pressure groups have taken up Bono's cause, and this would appear to be one of those instances where they have a point. Update Jun. 18: charges dropped.

"For some Fiesta revelers who love the madcap irreverence of Cornyation, it just isn't the same event without the flying tortillas." A San Antonio tradition for the past 15 years, the flinging of the circular staples of Tex-Mex cuisine among the audience was halted this year because of a you-know-what. (Lisa Marie Gómez, San Antonio Express-News, Apr. 27). Strange in San Antonio has more (Apr. 27). On the throwing of sacks of peanuts to the audience at Boston's Fenway Park, see May 8, 2000.

Drop whatever you're doing and read it right now: Sebastian Mallaby on the Vioxx madness (Washington Post, May 1)(via Ted at Point of Law).

Not only that, but she assumed the whirring video cameras were just for onlookers' personal use. Certainly she wasn't expecting the spring break footage to turn up in commercially available compilations. So Monica Pippin is now extracting legal settlements from entities including Playboy and Anheuser-Busch; however, the Daytona Beach hotel at which the contest took place objects to being sued on the grounds that it "had no role in producing or distributing the videos and did not profit from them". (Kevin Graham, "Lawsuit says video exploits teen's naivete", St. Petersburg Times, Apr. 28). Similar: Sept. 28-30, 2001; Mar. 6-7, 2002.

Two years ago (see Apr. 30, 2004) the California Assembly narrowly defeated a bill that would have banned smoking in cars when kids were present, but now Arkansas has enacted such a bill, applying to cars in which younger (age 7 and below) children are present (Virginia Vickery, "Some in Siloam Springs worry about statewide smoking ban", Benton County Daily Record, Apr. 30). The bill provides for "primary enforcement" of the ban, meaning that police officers can pull over a car in which they observe the offense, rather than just write it up after pulling a car over for other reasons. (Jake Bleed and Michael R. Wickline, "Lighting up with young kids in vehicle banned under bill", Arkansas Democrat-Gazette, Apr. 8). Michael Siegel, whose fascinating weblog on tobacco policy for some reason had escaped my notice up to now, has a discussion (Apr. 26) (via Sullum). In a separate post (May 1), Siegel notes that some anti-smoking activists in the Pacific Northwest are pursuing an "informal, unorganized and quiet movement toward making it a criminal act to smoke around kids" under any circumstances, including in parents' own homes, which would be categorized as child abuse (Dan Tilkin and staff, "Doctor pushes to make smoking an act of child abuse", KATU, Apr. 27). More: Jacob Sullum comments at Reason "Hit and Run" (May 2).

Norm Pattis, who says he has litigated scores of unreasonable search claims on behalf of individual plaintiffs, has some thoughts (Apr. 18) on excessive class action fees, occasioned by the news that in Connecticut, "a simple case against the Department of Corrections involving strip searches of inmates is about to yield a $2.5 million settlement. Of that [sum], about $834,000 will go to attorney's fees."