July 2006 Archives

Boston Globe has a big investigative package on questionable methods used by debt collectors pursuing consumers in small claims court. Among recurring problems: default judgments against debtors who never were alerted to proceedings because notice was mailed to the wrong address, or who were told by creditors that they "might not" have to attend the court date because they had volunteered a payment schedule. Also in the spotlight: a now-disbarred lawyer named Daniel Goldstone who buys up low-quality debt to collect by way of hardball methods, and who appears to be no gem; his conduct provoked liberal U.S. District Judge Nancy Gertner into applying Rule 11 sanctions, something she told the Globe she had never felt compelled to do in any other case in her twelve years on the bench ("Debtors' Hell", series home; Francie Latour, "For bare-knuckled collector, some harsh judicial reviews", Jul. 29).

[Bumped to make it the top post Monday morning; originally posted Saturday. Also check out the comments section on this post, which includes comments from readers who've been on both sides of junk-fax lawsuits.] I've got a contribution in the "Rule of Law" section of Saturday's Wall Street Journal (Jul. 29, sub-only) on the ongoing litigation (especially class action litigation) over junk faxes, a topic often addressed in this space. It concludes:

No doubt you can make a case that getting at the most heinous wrongdoers through bounty-hunting is preferable to never getting at them at all. But note that where crimes are indisputably serious, the rewards for informing are fixed and often modest. The typical reward for helping solve a bank robbery is $5,000. At rewardsforjustice.net, the U.S. government offers bounties for information leading to the capture of leading terrorists: Even notorious masterminds tend to be worth at most $5 million, while turning in Osama bin Laden will win you $25 million.

If Osama had sent 100,000 junk faxes, there'd be a bigger price on his head.

A county judge in Texarkana, Ark., where the action happens to have been filed, has approved Google's settlement of a nationwide lawsuit over advertisers' losses allegedly attributable to "click fraud", that is to say, non-bona fide clicks on their ads. "By settling claims made in the plaintiffs' class-action lawsuit, Google will give advertising credits that are the equivalent of a $3.80 refund on every $1,000 spent in its advertising network during the past 4 1/2 years. No one will receive cash except the lawyers, who will split $30 million." ("Judge approves $90 million settlement in Google click fraud case", AP/San Francisco Chronicle, Jul. 28). Numerous class members had objected, calling the proposed settlement unfair and inadequate "because it includes poor calculations, excessive attorney fees and e-mailed class notices that look like spam." Similar lawsuits "still are pending against other defendants, including Yahoo Inc.; Time Warner Inc.'s America Online; and Ask Jeeves". (Amanda Bronstad, "Google 'Click Fraud' Settlement Criticized", National Law Journal, Jul. 19).

Officials in Milford, Ct. agreed to take down three healthy hickory trees along an avenue after resident Una Glennon "demanded that the trees be removed because one of her grandchildren is allergic to nuts and can’t play in the pool with the other children when the nuts are falling." Author and Common Good president Philip K. Howard detects the distortive influence of what he calls "legal fear". (New York Times, Jul. 30). Also: Emily Bazelon, "Trees vs. children: Are nut allergies taking over the planet?", Slate, Jul. 27.

Updating our Sept. 14, 2004 post: The California Supreme Court has ruled that Irish dancing impresario Michael Flatley ("Riverdance", "Lord of the Dance") can proceed with a suit against a woman who falsely accused him of rape and a lawyer who demanded money on the threat of proceeding with the accusation. "Lawyers for [Tyna Marie] Robertson and [D. Dean] Mauro argued that the lawsuit brought by Flatley should be thrown out because the letter was a settlement offer and was protected under the First Amendment. The state Supreme Court rejected the argument. 'Mauro's communications constituted criminal extortion as a matter of law and, as such, were unprotected by constitutional guarantees of free speech or petition,' the six-member panel wrote." ("Michael Flatley wins court ruling in extortion case", AP/San Jose Mercury News, Jul. 27; "California court OKs Flatley's extortion lawsuit", AP/Chicago Sun-Times, Jul. 30).

The mandatory-health movement is seeking to curb restaurants' use of trans fats, often by way of lawsuit-filing (see Jun. 14) and legislation (e.g., "Alderman proposes trans fat ban", AP/Bloomington, Ill., Pantagraph, Jun. 30, on Chicago alderman Edward Burke). So why don't foodmakers just do the right thing and banish the offending ingredients? Parkersburg, W. Va.-based Mister Bee, the only producer of potato chips in West Virginia, found out the hard way when it replaced its hydrogenated oils with healthier cottonseed oil in its frying formula. It soon backed off after a 6 percent drop in sales and a steady flow of angry calls from buyers. The "new chip drew immediate reactions from customers who said if they wanted healthy, they wouldn't be eating chips. Fans of the old chips said the new chip was darker in color, greasier and left an aftertaste. Mister Bee President Alan Klein acknowledged there was a 'noticeable difference' in the new chip's taste after being in the package for a couple of days. The company tried modifying its recipe by using different oils, but consumers still didn't like the new chip." ("Customers Pan 'Healthy' Potato Chips", AP/San Francisco Chronicle, Jul. 19).

U.S. Rep. Roger Wicker, a Republican who represents Mississippi's First District, is being sued by Democratic opponent Ken Hurt on the grounds that he breached a promise made in connection with the “Contract with America” not to run for a seventh term. The Contract, which Republicans put forth as part of their successful campaign for control of Congress in 1994, proposed 12-year term limits for House members, and Hurt says Wicker promised to serve no more than that span. The term limit idea was never enacted into law. Wicker's campaign manager, Kirk Sims, called the new suit "frivolous and, quite frankly, a little nutty". (Joshua Cogswell, "Challenger sues Wicker for breaking ‘Contract with America’", Jackson Clarion-Ledger, Jul. 28).

Gesundheit! Among other problems with the decision of the Association of Trial Lawyers of America to rename itself the "American Association for Justice" -- like, that the new name is vague, defensive and presumptuous -- Robert Ambrogi points out that it also has the disadvantage of being "cumbersome. 'ATLA' is a phonetically pleasing acronym that is easy to say and easy to remember. 'AAJ' sounds like the beginning of a sneeze." (Jul. 20). Longtime ATLA antagonist Victor Schwartz said, "If a shark called itself a kitten fish I would still not put my daughter in to play with it." ("The profession formerly known as lawyering", UPI, Jul. 19). George Wallace weighs in with more links (Jul. 14). And Norm Pattis bids the organization farewell (Jul. 21). See Jun. 29, Jul. 14.

Rhymes for "AAJ", incidentally, include "hodge" and "podge", "stodge", "lordly as the Raj", "wealthy as a Lodge", and "obvious dodge".

The American Bar Association, which is holding its annual meeting in Hawaii next week, has shied away from co-sponsoring the National Lawyers on Longboards Surfing Contest. "They were freaked out about the liability issue related to a surf contest, even though we had liability insurance and everything," said Honolulu attorney Lea Hong, an organizer of the event. Instead, the Hawaii state bar and LexisNexis will be serving as sponsors. Hong says "participants have signed what she calls 'a pretty serious liability waiver'" and the contest rules have been drafted with an eye to making them loophole-free given the nature of the contestants. The competition used to be called the Land Shark Contest, but Hong says "that seemed a little too negative". (Stewart Yerton, "Liabilities scare lawyers' group away from surf meet", Honolulu Star-Bulletin, Jul. 26).

In Spokane, Wash., where the local Roman Catholic diocese has declared bankruptcy under the pressure of sex-abuse lawsuits, a recent ruling by a federal judge deemed individual church parishes "unincorporated associations" that could themselves potentially be sued. Now plaintiffs in the cases are talking about suing the local parishes "and might even explore the legal liability of individual churchgoers". (John Stucke, "Abuse victims may sue parishes", Spokane Spokesman-Review, Jul. 27). More: PoL May 5, etc.

...do try to obtain one from a doctor who exists, rather than from one who doesn't. Former railway worker Rodney Chambers, suing CSX Transportation on a claim of asbestosis, claimed to have been examined by a certain Dr. Oscar Frye on May 14, 2005 in support of his claim. Lawyers for CSX attempted to trace the doctor and found that the phone number Chambers had given for him belonged to someone else, state boards could find no record of ever licensing a doctor by that name, and the street address Chambers gave for the doctor in Huntington, West Virginia wasn't a real street address. A further problem: the form Chambers submitted to attest to his asbestosis diagnosis "was identical to several other medical questionnaires received from doctors around the country." Now the CSX lawyers would like to probe whether there is a wider pattern to be found among other asbestos claimants represented by Chambers' lawyers. (Beth Gorczyca, "Claimant's Diagnosis Challenged", West Virginia State Journal, Jul. 27).

Peculiar case from Australia: "It barely raises an eyebrow when a spurned daughter, former de facto or homosexual lover challenges a deceased person's will, asking for a share of the estate. But when the boarder in the spare room challenges - and the Supreme Court awards him nearly $450,000 - seemingly innocuous domestic relationships are revealed as financial minefields." Frances Lan Fong Fung allowed Michael Ye to live rent free and paid some of his tuition fees; in return he helped with household chores and some of her personal care needs, like insulin injection. Her will left her estate to her siblings and nothing to him, but a judge accepted Ye's argument that she had wrongfully failed to recognize a relationship akin to that of aunt and devoted nephew. An elder care lawyer "said elderly people either had to have a paid contract with their live-in boarder, or go to the expense of an application to the Supreme Court for the person to rescind their right to make a claim against the estate.... Ms Fung's brother, Keith, said his family wished to maintain their privacy but said it had been an important lesson for people not to take anybody into their home." (Leonie Lamont, Sydney Morning Herald, Jul. 8).

The Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA) have filed thousands of lawsuits accusing individuals of unlawful downloading of films and music, "but largely because of the legal costs few have been contested and none have gone to trial. This has left several controversies unresolved, including the lawfulness of how the associations get access to ISP records and whether it’s possible to definitively tie a person to an IP address in the age of Wi-Fi." That may change, however. Universal Pictures and the MPAA have told Shawn Hogan that they're suing him for downloading Meet the Fockers over BitTorrent, but Hogan says he didn't do it and already owned the film on DVD. Hogan happens to be a software millionaire and says he's prepared to spend $100,000 or more in legal fees to put MPAA and Universal to their proof rather than fork over the demanded $2,500. (David Goldenberg, "Shawn Hogan, Hero", Wired, Aug.).

It was easy to sympathize with Richard Jewell, victim a decade ago of FBI bungling which led to his being falsely suspected in the Atlanta Olympics bombing. It's not so easy to sympathize with his legal posture since then, which would be easily mistaken for an effort to vacuum the pockets of every media organization within reach. (Mark Fitzgerald, "Sob On Someone Else's Shoulder, Richard Jewell", Editor and Publisher, Jul. 25).

The arrest of company CEO David Carruthers while changing planes in Dallas, writes Jacob Sullum, "is part of a larger attempt by the U.S. government to impose its brand of repressive paternalism on countries with more tolerant policies." (syndicated/Reason.com, Jul. 26)(earlier coverage, Jul. 20 here and here). More on online gambling, and bans on promoting it: Steve Chapman, "Who's Afraid of Online Gambling?", Chicago Tribune/Real Clear Politics, Jul. 23; Walter Williams, "Truly disgusting", syndicated/Jewish World Review, Jul. 26.

Pediatrician and blogger Dr. Flea was put through a deposition by an adverse lawyer and writes about it at This Makes Me Sick (Jul. 21).

By reader acclaim: "A woman who was allegedly severely burned by flaming rum during a Bacardi promotion sued the wine and spirits producer, claiming the product was defective and dangerous. ...A bartender, who was not identified in the lawsuit, was pouring shots when a customer lit a menu on fire and placed it in the stream of alcohol." Danielle Alleyne suffered severe burns as a result, the suit says. ("Florida Woman Sues Bacardi Over Injuries Allegedly Caused by Flaming Rum Shot" AP/FoxNews.com, Jul. 26).

The notorious Joe Jamail/Edward Carstarphen deposition video (Apr. 8, Apr. 27) has been getting another round of attention thanks to new links from Andrew Sullivan and Dale Carpenter. Among a number of interesting reader comments at the latter site is this from John Steele (excerpt):

...For years now, I've been having my students do dramatic readings of both the famous Jamail depos. The reaction is usually a mixture of laughter and disgust. If anyone wants the two transcripts, shoot me an email....

Sued-if-you-do, sued-if-you-don't files: "'I think companies are concerned that if they take action against the employee, the employee may bring a claim. And if they don't take action, others who are injured may bring a claim,' said employment attorney Jonathan Segal of Wolf, Block, Schorr and Solis-Cohen in Philadelphia. Segal noted that companies are increasingly dealing with employees who miss work because of criminal offenses like drunk driving or assault charges." (Tresa Baldas, "When Employees Face Criminal Charges, Employers Face a Dilemma", National Law Journal, Jul. 20).

If prosecutor Mike Nifong could accuse students of ghastly crimes on the flimsiest of evidence (Jun. 24 and earlier posts), one reason might be that the atmosphere at Duke University was such that, early in the case, 88 faculty members could sign a manifesto fanning the flames of public opinion against the accused students. Robert K.C. Johnson on Cliopatria has many details on the so-called Group of 88. Of the 69 signatories who are permanent faculty, "58—an astonishing 84.1 percent—describe their research interests as related to race, class, or gender (or all three), in some cases to an extent bordering on caricature." One professor opines that the "members of the team are almost perfect offenders in the sense that [critical race theorist Kimberle] Crenshaw writes about," since they are "the exemplars of the upper end of the class hierarchy, the politically dominant race and ethnicity, the dominant gender, the dominant sexuality, and the dominant social group on campus." (Jul. 19) (via Coyote). For more on the case, see postings at Jeralyn Merritt's Talk Left and the group Friends of Duke University.

Gee, do you think? After successful campaigns for bicycle helmets, here comes pressure for helmets for pole vaulting, soccer and, yes, maybe even surfboard riding (Hugo Martin, "Today, helmets for all", Los Angeles Times, Jul. 24).

Peter Lattman explains (Jul. 25). For more on the Best Little Courthouse in Texas, namely the one in Marshall, Tex., see May 12, etc.

In Detroit, a group called the American-Arab Anti-Discrimination Committee has filed a suit on behalf of about 30 people charging that "the federal government has failed to protect Americans from the fighting in Lebanon. ... The committee is asking the court to order Washington to request a cease-fire between Israel and Lebanon." ("Arab Group To Sue U.S. Government", ClickOnDetroit.com, Jul. 24). Three Israeli lawyers are planning a lawsuit in U.S. courts demanding compensation from the government of Lebanon for war damage to property and businesses in northern Israel (Tani Goldstein, "Compensation claim against Lebanese gov't in works", YNetNews.com, Jul. 20). And according to news agencies, the government of Lebanon itself intends to demand billions of dollars from the government of Israel to compensate for the damage done by its bombardment. Curiously nothing is said in coverage of this last story about resorting to the U.S. courts -- you mean there's some other place to take a grievance? ("Lebanon: We'll sue Israel for damages", YNetNews.com, Jul. 23).

The Humane Society of the U.S. says it plans to sue Amazon.com under a District of Columbia consumer protection statute because the online retailer has rejected its demands to stop selling two magazines aimed at cockfighting enthusiasts, The Gamecock and The Feathered Warrior. (They seem to have overlooked Grit and Steel.) The Society claims that a federal law prohibiting the use of the U.S. mails for the promotion of cockfighting events renders the magazines illegal, a position that the U.S. Postal Service itself has apparently not chosen to endorse. (KTHV, Jul. 18; Elizabeth M. Gillespie, "Humane Society urges Amazon.com to quit selling cockfighting mags", AP/Seattle Post-Intelligencer, Jul. 18; Nobody's Business, Jul. 24).

Some in the press have concluded that "prosecutors are intent on busting lawyers, not movie types", and the entertainment magazine suggests the wiretapping scandal isn't really such a big deal after all. Still sounds pretty interesting to us (Gabriel Snyder, "Sounds of silence", Jul. 20).

Ann Althouse and commenters (Jul. 21) analyze the marital breakup of football player Michael Strahan, as well as an unrelated guy whose live-in relationship fell victim to contractor cuckoldry.

Los Angeles Times reporter Molly Selvin wanted my opinion of class-actioneer Bill Lerach for this profile, so I gave it. Holding up the other end of the discussion are Lerach fans Jamie Court, of Harvey Rosenfield's outfit, and actor/humorist/ expert-economic-witness-in-Milberg-cases Ben Stein ("Unsettling Days for King of Class Actions", Jul. 23)(cross-posted at Point of Law).

That was former New York Times executive editor Howell Raines' response to an Aspen Institute audience member's question about media leaks, as quoted by Greg Schreier in the Aspen Times ("Raines reflects on journalism, loss and lawyers", Jul. 21).

"A Manhattan judge has tossed out a lawsuit by a couple claiming they endured 'humiliation, indignity, distress of mind and mental suffering' when they weren't able to have their daughter's bat mitzvah at The Plaza hotel. ... Although the hotel gave the family six months' notice [of its decision to undergo renovations, making the space unavailable] and repaid their $12,000 deposit on the planned $20,000 bash, the Alenicks claimed it 'made no effort to compensate for the uniqueness of The Plaza.'" (Dareh Gregorian, New York Post, Jul. 21)(via Lattman).

"A jury ruled Friday that a labor union defamed Sutter Health with a mass mailing of postcards and awarded the Northern California health care organization almost $17.3 million in damages. The Placer County jury found that Unite Here, one of the nation's largest unions that represents hotel, restaurant and laundry workers, defamed Sutter Health early last year by sending postcards to women of child-bearing age in Northern California claiming the organization's hospitals used unclean linens. The union was in a labor dispute with the laundry service that cleaned the linens at the time." ("Jury: Union defamed Sutter Health", InsideBayArea.com (Hayward Daily Review), Jul. 23; Mehul Srivastava, "Jury award stings union", Sacramento Bee, Jul. 22).

Not according to a federal judge in Louisiana (GamePolitics, Jul. 20). See Jun. 25, etc., etc.

The federal government has decided that automakers may not install one safety option (a front passenger seat airbag turnoff switch, intended to protect kids) unless they also install a second (a child-seat anchor system known as LATCH). Toyota had offered the first but not the second on certain Tundra models, so they did a recall whose point was to eliminate customers' access to the first option, thus worsening safety for kids riding in front seats. (Peter Valdes-Dapena, "Toyota's totally bizarre recall", CNN/Money, Jul. 12). DealBreaker comments: "How badly does the government hate your kids? Bad enough to kill them." (Jul. 13).

P.J. O'Rourke writes, "I tremble for my country when I reflect that chair manufacturers feel compelled to tell Americans this". Later, after a call to a law office about the dangerous folding chair, "The receptionist told me that John Edwards would be over within the hour; meanwhile I might want to start pricing yachts." Just a satire, folks ("From the editor's chair", Weekly Standard, Jul. 31).

Mark DelCore, who met with a cool reception from a federal judge at a hearing, says he's thinking of dropping his lawsuit (see Jul. 14) demanding that his emotional-support dog be admitted to accompany him at a nude beach. The stress occasioned by the proceedings, he says, may be too much for him to press on (Christina Boyle and John Marzulli, "Judge isn't naked guy's best friend", New York Daily News, Jul. 15). (via Ann Althouse, who asks, "Do people who bring frivolous lawsuits ever think about whether their consumption of public resources is worthwhile?", Jul. 15).

For California state senator Deborah Ortiz, that would describe smoking in a car in which a child is present. Writes Brooke Oberwetter at CEI Open Market (Jun. 29): "According to the Contra Costa Times, smokers can be fined under [a bill approved by the committee Ortiz chairs] even if the car is parked and on private property. Clearly California is just a cigarette’s flick away from suggesting banning smoking in private homes: If they can tell you what you can and cannot do in the driveway, is there really much left in terms of precedent to stop them from stepping gingerly up to the front porch and peering in the windows?" A similar bill has already passed the California assembly. (Edwin Garcia, "Bill targets smokers with children", Contra Costa Times, Jun. 29; Michael Siegel, Jun. 29). Earlier coverage: May 1 and links from there. On the follies of GOP governor Mike Huckabee of Arkansas, who promoted a similar measure in that state, see The Agitator, Jun. 9.

"Troll was a derivative of, er, me," says Chicago patent litigator Raymond Niro, a pioneer of contingency-fee IP practice:

Niro's former partner Gerald Hosier found fame and fortune turning Jerome Lemelson's patents on bar code technology into a billion-dollar licensing business. But Niro taught the patent world a more enduring lesson: Lemelson isn't unique. Like an irritating mosquito that GCs can't squash, Hosier's licensing approach could be applied over and over again, on different patents across different industries for huge profits. Niro has extracted royalties on everything from patents covering hemodialysis catheters to wireless technology used to locate items of interest in online maps. In the process, he's made some serious royalties of his own: a Falcon 10 jet, six Ferraris, acres of land in Chicago, Boca Raton and Aspen, and a $250,000 gift to DePaul University endowing the Raymond P. Niro professorship in intellectual property law.... Love him or hate him, Niro's methods have become ingrained in the patent world.

(Lisa Lerer, IP Law & Business/Law.com, Jul. 20).

At Bloggasm, "a media blog featuring interviews from the most interesting blogs around," Simon Owens asks me six questions about the law and about this weblog generally. My favorite is on the difference between writing books and writing a blog. You'll also hear my suggestions when asked to name five blogs that complement this one. Read the whole interview here.

In the New Yorker, Ken Auletta profiles entertainment lawyer Bertram Fields, whose name has turned up regularly in the Anthony Pellicano scandal and whom Auletta dubs the “most feared lawyer in Hollywood”. A snippet (via Lattman): "his pugnacity frightens opponents. One Fields client says, ‘If he’s on the other side, he’s a nightmare. He going to make your life miserable. Someone who actually enjoys beating people up, there’s something wrong with them. But when you hire a litigator you want a p***k.'"

Yesterday I was a guest on two radio shows. I joined Ron Smith on Baltimore's WBAL to discuss my article, just out, on the lawsuit against MySpace for failing to chaperone a teenage user. And I joined Grover Norquist on his Rightalk broadcast to talk about the politics of liability reform.

The Wisconsin lawprof has this to say (Jul. 19) on that copyright-infringement lawsuit that we mentioned in passing yesterday, the one aimed at the hit site for hosting a video of the beating of Reginald Denny:

Robert Tur, who could have just asked YouTube to remove the video someone had uploaded, instead left it there and then sued demanding $150,000 for each of the 1,000+ viewings that occurred. YouTube took the video down when the lawsuit called attention to the problem.

Well, we knew eventually someone would sue YouTube, but could it be anyone less sympathetic then a guy who once got lucky and was there with a camera when someone else was getting beaten up?

More in her comments section.

Dr. Terry Bennett of New Hampshire, last seen in this space Aug. 25, 2005 facing disciplinary action from his state medical board for allegedly saying rude and insensitive things to a patient, has won a ruling from a judge ordering the board to stop those proceedings. The New Hampshire attorney general's office represented the board before the court. Dr. Bennett says he won't let the matter drop and plans to sue all concerned -- not a surprise, somehow. (David Tirrell-Wysocki, "Court Says Stop Case Against Rude Doctor", AP/RedOrbit, Jul. 7). GruntDoc comments (Jul. 11) and a website defending Dr. Bennett is here.

Tyler Bennett wore boxer shorts instead of a jock strap when playing basketball for Colts Neck High School, and a resulting action photo published in the school's yearbook inadvertently revealed more (or perhaps less) than Bennett would have liked. Some students didn't return the yearbooks when they were recalled the business day after they were released, and an opposing basketball player teased Bennett the next year. Bennett claimed untold emotional distress (though he never sought counseling or medical assistance for his trauma) and sued the school board, three officials, two teachers, the publishing company, and nine students; the latter have had to hire their own attorneys at their own expense if their parents didn't have homeowner's insurance. "Some of the students weren't even editors. The yearbook at Colts Neck High School is produced by a journalism class and some noneditors in the class jumped into the "editors" picture before it was snapped for the yearbook. Not able to determine who was responsible for content, [attorney Steven] Kessel named everyone in the picture." Bennett even threw in a child pornography charge.

The trial court tossed the case (though only after depositions and summary judgment briefing) and an appeals court summarily affirmed, but Kessel says he'll appeal to the New Jersey Supreme Court, which will add to the legal expenses of the defendants. Though the case was meritless, the court refused sanctions because the suit technically wasn't "frivolous" because it wasn't brought in "bad faith," exhibiting once again the disconnect between the legal definition of "frivolous" in many states and the popular understanding of the adjective. (Henry Gottlieb, "Former Student Sues Over Revealing Yearbook Photo", New Jersey Law Journal, Jul. 17; James Quirk, "Judge: Embarrassed ex-Colts Neck student has no claim in yearbook case", Asbury Park Press, Jun. 24 (via Romenesko); Bennett v. Board of Education (unpublished)).

Attorney Sabato DeVito, who represents Johnny Eugene Smith of Spring Hill, Fla., says his client might not have wrecked his Corvette if the Calendar Girls strip club hadn't been so willing to indulge his taste for the bottle.

University of Florida law professor Lars Noah told the Times the suit isn't frivolous, but it's unlikely to go far in the legal system.

"It's kind of surprising that any lawyer worth his salt would take a case like that," Noah said. "I'm partly to blame for that, I guess. We're churning them out."

(WFTV, Jul. 17).

While I oppose laws banning online gambling as ludicrous public policy in a world with government-run lotteries that return sixty cents on the dollar, I don't see the controversy (also Hurt) over arresting someone indicted for breaking those laws when they step foot on US soil. If Osama bin Laden were foolish enough to take a commercial flight from Karachi to Caracas that changed planes in Dallas, federales could surely arrest him while he was waiting in line at the Orange Julius. Airports don't convey some sort of diplomatic immunity.

That said, as a public policy matter, America should perhaps be less inclined to assert jurisdiction for victimless Internet crimes committed over international borders, lest we lose the ability to defend the free speech rights of American citizens to discuss issues of religion or politics barred in other countries. And in conjunction with the NatWest Three extraditions (ably discussed by Kirkendall), one fears a European perception of the US as a nationwide judicial hellhole unsuitable for business dealings, much the same way an American might view doing business in Russia. Already, international companies are choosing to raise capital in international financial markets outside the US where once they went to New York, a problem discussed by Larry Ribstein and Henry Butler in a recent AEI book on Sarbanes-Oxley.

Separately, with respect to the new federal interest in focusing scarce resources on gambling, one wonders if Rep. Jefferson is hoping that he shredded his March Madness pool entry before the FBI searched his office. And see also Mankiw v. Passey (via Taylor).

The feds arrested BetOnSports chief executive David Carruthers while he changed planes at Dallas/Fort Worth en route to Costa Rica, charging that his company accepts bets from U.S. residents in violation of federal law. One British view of the implications: "it now looks as if chief executives need 'lawyerguards' especially when venturing into risky legal territory such as the US." (Times (UK) law blog, Jul. 18; Philip Robinson, Dominic Walsh and James Doran, "FBI and tax officials in BetOnSports probe", The Times Online, Jul. 18; Jacob Sullum, Reason "Hit and Run", Jul. 18 and Jul. 19; Radley Balko, Cato at Liberty, Jul. 18; Kirkendall, Jul. 19). More on the authorities vs. online gambling: Jun. 19; Nov. 18, 2005, Aug. 9, 2004, etc.

This injury-lawyer ad (big explosions, wow) and this one (William Shatner endorsement) appear to be real. On the other hand, this one ("Have you forgiven someone for something you shouldn't have forgiven them for?" and this one (dog lawyer) and this one (trips over potential client) are just parodies (via Bainbridge). Check the YouTube "lawyer" category for more, and maybe get there quickly, before the copyright lawyers get too busy (K.C. Jones, "Journalist Sues YouTube For Copyright Infringement", TechWeb/InformationWeek, Jul. 18; "YouTube wanders into copyright mire", Out-Law/The Register (U.K.), Jul. 19). More: Jul. 21.

I've got a new online column up at the British paper, my second. I discuss the recent lawsuit seeking to blame the social-networking site for not providing a virtual chaperone for a 14-year-old Texas user who went out on an inadvisable date. (Walter Olson, "Teens, sex, and MySpace", Times (U.K.), Jul. 18). For earlier coverage of the MySpace suit, see Jun. 21, Jun. 23, and Jun. 26.

Readers may recall the brouhaha last year when a federally protected plant, the Sebastopol meadowfoam, was discovered growing on the grounds of a controversial proposed housing development in the Northern California community; state wildlife officials investigated and said it was apparently planted on purpose. (May 25, 2005). Now the plant has sprung up again on the site, and although opponents of the project have seized on the news, the developer says it's just a result of the germination of seeds from the earlier illicit plantation. (Terence Chea, "Trouble in bloom at Calif. development site", AP/Boston Globe, Jul. 17).

So how exactly do you build a case for high damages when the alleged defamation (see Jun. 22) hasn't dislodged you from the bench and it will be a good long while before your term expires? Well, your lawyer can talk about how you were thinking of stepping down to become a highly paid rainmaker at a Chicago law firm, and so maybe the defendant newspaper should have to compensate you for what your hired economist says is the value of that. Besides, you were thinking of securing an appointment as a federal judge. And what if the Illinois voters decide to throw you out down the road -- isn't the lost salary from that something the defendant should have to pay you for, too? (Eric Herman, "Justice's libel suit figures his losses", Chicago Sun-Times, Jun. 10)(via Lattman).

Evan Schaeffer was very excited by the fact that ATLA made its Trial magazine attack on reform freely available on line, so I clicked over to see what the fuss was. The first story I looked at was Justinian Lane's "Corporate wolves in victims’ clothing," which featured, among various baseless assertions and screeds about high executive salaries, the following strawman:

And the next time someone brings up Stella Liebeck and the McDonald’s coffee case, ask why a $2 million lawsuit over third-degree burns to a woman’s genitals is frivolous, but a $5 billion lawsuit over Donald Trump’s ego isn’t.

Fascinating. What fictional reformer supports Donald Trump's lawsuit? Certainly not the main author of this site, who has repeatedly scoffed at it. Where's the hypocrisy? (More on Stella Liebeck and the McDonald's coffee case, which was frivolous, but is hardly the only reason for supporting reform.) Needless to say, I'm not impressed. Lane's claim that proposed reforms wouldn't affect Trump's case is absolutely false; reforms such as anti-SLAPP laws, loser-pays, procedural streamlining, and limiting forum-shopping would all cabin the ability of a Trump to attempt to use litigation to intimidate critics.

Lane asks why reformers argue that "the king’s-ransom salaries 'earned' by corporate executives aren’t passed on to consumers in the form of higher prices, but that the costs of the tort system are." There's a difference, of course: a consumer can object to high CEO salaries by refusing to invest in a corporation's stock or to purchase its products or services. But a consumer who buys a car can't opt out of the huge expenses trial attorneys have added to every motor vehicle in America—$500 for every vehicle sold in America. Tom LaSorda, the CEO of Chrysler, doesn't make $500 for every vehicle, even if one finds his salary objectionable for some reason. But as long as Lane is criticizing the "hypocrisy" of reformers, one wonders if he'll turn the same searching eye complaining about high salaries to the multi-millionaire trial attorneys he lauds who, unlike the executives, make their money by destroying wealth and jobs rather than creating wealth and jobs.

Judy Buckles, one of the "founders" of the Astroturf group Victims and Families United (Feb. 20, 2004, Sep. 13, 2004) has suddenly discovered that the prominent plaintiffs' firms of Madison County may not have plaintiffs' best interests at heart, and is suing prominent asbestos firm SimmonsCooper for allegedly shortchanging her in its representation of her and her late husband. That she's represented by the Lakin Law Firm suggests interesting machinations afoot in the county. (Steve Gonzalez, "Victims' advocate sues asbestos attorneys for gypping her", Madison County Record, Jul. 13; "Pawn Shop", Madison County Record, Jul. 16).

Class action lawyers were suing Ford Motor claiming to represent Illinois municipalities that regretted buying the popular police model. Then Ford announced that it would decline to sell the car to towns that were suing over it. Now, according to the Illinois Civil Justice League, close to 1,000 municipalities have elected to opt out of the action -- one sign among several that it was ill-conceived from the start. More here, here and here (cross-posted from Point of Law).

Lawyers filed a class action on behalf of deaf consumers against Hollywood studios that labeled DVDs as closed captioned but failed to note that "bonus material" on the disks lacked captioning. According to the terms of the proposed settlement:

The Settling Companies have denied liability, but have agreed to settle this action to avoid litigation by, in the future, providing captioning or closed captioning of bonus material on major categories of DVDs they distribute over the next five (5) years, paying $275,000 to certain non-profit organizations dedicated to advocacy for deaf and hard-of-hearing persons, and paying attorneys' fees and costs (including any incentive award to named plaintiff) up to $1,300,000...

More here. Toronto accessibility advocate Joe Clark thinks the settlement doesn't go far enough, while enriching the lawyers who pursued it.

Personal injury lawyers filing the first lawsuits arising from a July 11 fire and derailment on the Chicago Transit Authority's Blue Line "said their clients' damages may be greater than normal due to initial fears that the accident was a terrorist attack." Attorney Dan Kotin of Corboy & Demetrio, representing plaintiffs, "said the timing of the accident might have magnified their emotional distress. 'Coming just hours after the subway bombings in India, these women were convinced that they were under attack,' Kotin said." Kotin's clients were treated and released at a hospital at the time; how badly hurt are they now? "I think we're going to learn over the course of time that the emotional suffering is far worse than the physical pain." Oh. (Michael Higgins, "First lawsuits filed in subway fire", Chicago Tribune, Jul. 12).

Radley Balko has a new report out for Cato (press release)(more). Check out a botched raid near you.

In Great Britain, a nursing home spokeswoman explains why visitors are allowed to bring in cakes and other baked goods only when they're store-bought, not homemade. (Nanny Knows Best (U.K.), Jun. 14)(via Nobody's Business). Other food menaces averted: Dec. 13, 1999 (homemade pies), Jan. 29, 2001 (cookies), Feb. 1-3, 2002 (figurines in New Orleans king cake), Apr. 15, 2004 (potluck dinners).

A federal judge has declined to dismiss a lawsuit by an Illinois woman who "is suing her Wisconsin parents for maintaining an icy driveway that she blames for a fall that broke her ankle two winters ago.... Carriel Louah, 25, visited Darlington, Wis., to surprise her mother on her birthday in January 2005. But the next morning, she was injured when she slipped and fell on her parents' driveway. ...The daughter said that a letter from her mom apologizing months after the fall proves that her parents knew they had a defective gutter for years and did nothing about it." ("Judge OKs Trial After Daughter's Surprise Visit Home Ends In Lawsuit", Channel3000.com, Jul. 13).

Among the first legal actions filed in the wake of the spectacular Manhattan suicide of Dr. Nicholas Bartha is one by neighbors naming energy provider Con Ed (as well as Bartha himself) as a defendant. It alleges that Con Ed failed to install "safety devices" which would presumably have prevented Bartha from deliberately opening a flow of gas to his Upper East Side house for purposes of blowing it up. (AP/MyWay, Jul. 16).

A St. Louis weight-loss instructor is suing the Coca-Cola Co. over its product loyalty campaign, claiming the program might encourage kids to drink so much of the sugary soft drink that they could die.

The campaign, "My Coke Rewards" gives customers points for buying Coca-Cola products. ...

Coca-Cola spokesman Scott Williamson said [Julia] Havey is "horribly misinformed" about the rewards program and the lawsuit is simply an attempt to drum up attention for weight-loss books she writes.

(Christopher Leonard, "Missouri woman sues Coca-Cola", AP/Springfield, Mo., News-Leader, Jul. 14). Update Aug. 3: she drops suit.

David Bernstein is suitably incensed. See also Jul. 15 POL.

The recording industry association sued Debbie Foster of Oklahoma along with her daughter Amanda for $5000, saying her broadband account had been used for song downloading. But when Foster resisted the suit, and requested to know the dates and song titles of the allegedly infringing downloads, the association failed to respond. Foster filed for summary judgment and RIAA withdrew its suit against her. A judge said Foster counted as a prevailing party under the terms of the Copyright Act and that RIAA should could apply for RIAA to pay her attorney's fees. (Eric Bangeman, Ars Tecnica, Jul. 13). See, e.g., Nov. 4, 2005, Feb. 7, 2005. (Fixed Jul. 16 to respond to reader comment noting that the judge did not in fact order a fee shift but only declared Foster eligible to apply for one. A PDF of the ruling is here)

In Manhattan, "Alexis Carroll, 26, is suing her former roommate, Michelle Clarity, also 26," seeking the return of a West Highland terrier that both women had considered their pet when they shared an apartment in Tribeca. She also wants $4 million. (Janon Fisher, "Pals' $4 M fight over puppy love", New York Post, Jul. 2)(via KipEsquire).

The Association of Trial Lawyers of America is going to attempt to hide the fact that its interests are solely those that enrich trial lawyers, and change its name to the Orwellian "American Association for Justice," with truth and the American way apparently not making the cut, and "jackpots" too obvious. Al Kamen and Lisa Rickard snicker in the Washington Post. ("Just Don't Call Them the Suers", Jul. 14).

We've posted repeatedly about the federal junk-fax law, which authorizes lawsuits for $500 apiece for inadvertent participation in unsolicited sending of faxes (and $1500 apiece for knowing violations); lawyers have learned to roll together class actions so as to generate million-dollar class actions against unsophisticated local businesses who weren't aware of the law's application to them (Oct. 22, 1999; see also Dec. 15, 2004; Mar. 19, 2004, Jul. 19, 2003, etc.). Now the Internet and Class Action Law Blog, published by a Naperville, Ill. class-action attorney, takes note of the phenomenon -- not merely as an annoyance, but as a business opportunity. "Damages in these cases can be very large. If a blast fax has 50,000 recipients, damages could total $25,000,000! Why not turn all those junk faxes into a college fund for your kids?" (Jun. 30).

Mark DelCore, 39, says in his federal lawsuit that he has a medical need to sunbathe at the Fire Island nude beach because of a skin condition. The beach rules allow for seeing-eye dogs, but DelCore's is an "emotional support" dog (see May 14, etc.) who assists with post-traumatic stress he says he's suffered since the 9/11 attacks. One big problem: it's feared a greater dog presence at water's edge would interfere with the doings of the piping plover, an endangered shorebird whose protection has already been cited as reason to suppress many human activities on Long Island beaches. (The Smoking Gun, Jul. 13). More: Ann Althouse, who has covered service-dog accommodation controversies in the past, is on this one too. Update: Jul. 22 (DelCore thinking of dropping suit).

Lawsuits filed against the city of Baltimore demand hundreds of millions of dollars, but the city pays out only a minute fraction of that sum -- one of many reasons being that "the city caps awards for lawsuits at $200,000, save for intentional bad acts by city employees." An editorial in the Baltimore Examiner quotes me on the subject ("Slow lawsuits; charge losers fees", Jul. 13). For more on New York City's tort predicament, see Jun. 15.

Last month Overlawyered.com was named "Web Site of the Day" by the Bulletin Board at the St. Paul Pioneer Press, one of the Twin Cities' two big papers (Jun. 2). The British publication The Lawyer cited our coverage of Bill Lerach's Enron fees (Jun. 5). And New York-based journalist Robert A. George (the "good" Robert George) calls this website "great", though he erroneously thinks me a lawyer (Jun. 5).

I've also been quoted on same-sex marriage issues in a variety of venues, including by Lou Chibbaro Jr. in the Washington Blade ("Amendment bars states from marrying gay couples: experts", Apr. 20); Jonathan Rauch at MarriageDebate.com (May 6); Andy Humm, "Gay Marriage Ruling Highlights a Changing Court", Gotham Gazette, Jul. 10); and the Robert A. George post above. For more of my views on that subject, see Jun. 2, etc.

Red Buttons died yesterday. He was an Oscar-winner and famous comedian, but we at Overlawyered will remember him for suing Conan O'Brien for mentioning him in a 1993 sketch. Portions of the opinion in Buttons v. National Broadcasting Co. Inc. (No. CV94-0354 (C.D. Cal.)) (via my brother) are after the jump:

It's best to choose your words carefully when writing about this aspiring Delaware politician. "Lawsuits have been a big part of Korn's life for the better part of two decades....'I would sue anybody again if I had to, if something were not right or accurate,' Korn said. 'I will go to the ends of what it takes if I feel I've been slandered, libeled or maligned in any way.'" (Celia Cohen, Delaware Grapevine, Jun. 26).

New York City: "A judge has dismissed a lawsuit that claimed the union representing the city's bus and subway workers was responsible for an accident that left a firefighter critically injured because workers went on strike. Matthew Long, 39, was run over by a private bus while he was bicycling to work during the December walkout. He sued the Transport Workers Union Local 100 in February, arguing the accident would not have happened had the union not gone on strike." ("Judge dismisses firefighter's lawsuit claiming strike responsible for injury", AP/CourtTV, Jul. 7). For more on the lawsuit, see "Firefighter wants transit union to pay", Gothamist, Feb. 14.

Drexel lawprof Dan Filler at Concurring Opinions reports (Jul. 6) that Mountain Brook, Ala., a well-off suburb of Birmingham,

is considering adopting a new "open house party" ordinance. It would fine homeowners when two or more underage people drink alcohol in the house. On the third offense, the law provides that the homeowners would be guilty of a misdemeanor. Homeowners, by which we really mean parents, would be criminally liable even if they were unaware that kids were drinking in their homes. They are strictly liable - guilty even if they had no intent to break the law, had no knowledge it was being broken, and were not even negligent in allowing the infraction to occur.

Prof. Filler isn't enthusiastic about the idea:

If a parent is not negligent - she does every single thing a reasonable person would do to keep her child in check - I think it's hard to justify punishing her. What more can we ask of a parent?

Over at Point of Law, there's a new Featured Discussion on medical malpractice: our own Ted Frank expands on his theory that it might be a good idea for doctors to benefit from something akin to the "business judgment rule", by which courts refrain from second-guessing many decisions of corporate directors and officers in shareholder litigation. Ably representing the opposite point of view is Peter Nordberg, whose Daubert on the Web and Blog 702 cover scientific evidence issues in the courts with unrivaled depth.

Whatever else might be the matter with our legal system, at least we can rely on Assistant U.S. Attorneys to play square with judges and tell them the truth in court. We can, right? Right? (White Collar Crime Prof Blog, Jul. 7)(via Cernovich).

This complicated case "starts with what would be universally recognized as the worst of all possible worlds -- an automobile accident between two lawyer-affiliated people". And from there it gets worse, and worse, and worse. (Shaun Martin, California Appellate Report, Jul. 7).

Comparatively few spouses blow up buildings, as police suspect a Manhattan doctor may have done, but things can still get pretty extreme:

Prominent New York divorce attorney Raoul Felder was more specific. "I had a client murdered by his wife,'' Felder said. "I have seen [cases in which] a kitten [was] put in a washing machine, a puppy in the microwave -- the puppy died, the kitten lived.

"I have seen art collections slashed, a guy with a vinyl record collection had it returned by his wife all smashed into bits,'' Felder added. "I've seen clothes ripped up. One gentleman got his wife tickets to some hot play, and when she returned, her stuff was in the street. I've seen children taken at airports."

(Chris Francescani and Kristen Depowski, ABCNews.com, Jul. 11; Anemona Hartocollis and Cara Buckley, "Divorce, Real Estate and Rubble: When Marriages Go Really Awry", New York Times, Jul. 12 (note similar quotes from Felder, who's clearly not afraid to give the same interview twice); Jane Ridley, "Divorce gets dirty", New York Daily News, Jun. 12(et plus encore for that same kitten and puppy)). And: Rebecca Goldin at STATS.org chides ABC for sensationalism (Jul. 14).

Bonus video link: Patsy Cline, "A Church, A Courtroom, and Then Goodbye" (YouTube) (via Terry Teachout's fabulous new listing of online video and audio resources).

In Bath, England, a "teenager was shocked when police refused to chase joyriders who had just stolen his moped - because the thieves were not wearing helmets.... An officer told him they could not give chase in case the unprotected thieves fell off the bike and sued the police." ("Police ruled out joyrider chase", BBC, Jun. 30). The Association of Chief Police Officers confirmed that police on "most forces" would call off chases where a suspect fleeing on a motorbike was unhelmeted. "Sharon Ball, a Liberal Democrat councillor in Bath, said: 'There is a terrible bike theft problem in this area, and this crazy approach means the issue will just get worse.'" (Richard Savill, "Police won't chase if thief has no helmet", Daily Telegraph, Jun. 30).

Lott filed his response to the motion to dismiss Monday. Lott seems to have the better of this exchange as a matter of positive (if not normative) law because of the liberal pleading rules that make it nearly impossible to dismiss a case on the pleadings. That has little predictive value for what happens afterwards. (Note, however, the Northern District of Illinois' Local Rules' 15-page limit, which make it nearly impossible to file a motion for summary judgment without the permission of the court.)

Previous entry.

Word Around the Net is Christopher Taylor's site devoted to reprinting interesting comment threads from around the blogosphere. His latest selection is the reader comments that followed our post on Allen Heckard, the Oregon man who's tired of being mistaken for basketball star Michael Jordan and has reacted by suing Jordan and Nike's Phil Knight.

It turns out the celebrity Stanford lawprof can make us sound like squishy moderates on the issue:

In a contentious debate with Random House’s Richard Sarnoff, [Prof. Lessig] argued that the publishing industry’s lawsuit over Google’s book-scanning effort threatens the very soul of the Internet, and there was little doubt who he believes is to blame. “Why unleash lawyers on this issue? We know lawyers suck value out of an economy,” he said, to cheers from the audience.

(Lattman, Jun. 2).

In the comments section at Sebastian Holsclaw's, following a long discussion of the recent Mello-Studdert study on medical malpractice, talk turns to the practice of naming every doctor in the vicinity as a defendant when filing a medical liability claim. A couple of trial lawyer advocates defend that unsavory practice, and Holsclaw responds (via Rovito):

The problem is that extraneous defendants are often not dropped quickly. In many complex cases you can't possibly get through the discovery phases without plunking down huge amounts of money. Maybe I've just been remarkably unlucky, but when I've worked on the defense side the vast majority of cases involved defending people who were just tack-on defendants. In all of these cases $30-60,000 (in fees) was spent before the defendants could get out of the case. Often an additional sum (usually in the $5-10,000 range) was paid to stop the bleeding even though everyone (including/especially the plaintiff's attorney) that the defendant would never be found liable. One plaintiff's attorney was well known to push for largish settlements from innocent parties -- if you refused he would drag you until the day of trial (throwing up just enough smoke to avoid summary judgment) and then drop you without comment on the morning of the trial (after you had incurred all the expense of expert retention, expert testing and all of the trial preparation). It is the kind of thing that gives lawyers a bad name, but it happens in every city.

(cross-posted from Point of Law).

The New York state courts are proposing new rules that would significantly tighten up on lawyers' freedom to chase potential clients, including injury cases, in the Empire State. In particular, lawyers would be forbidden to solicit disaster victims in most situations for 30 days after a disaster. As for advertising, "Significant restrictions would be imposed on the use of fictionalization, and lawyers would be banned from using nicknames or monikers -- such as 'heavy hitter' or 'dream team' -- that imply an ability to obtain results....lawyers would be prohibited from using current client testimonials, from portraying judges, from re-enacting courtroom or accident scenes and from using courthouses or courtrooms as props. They would also be barred from using paid endorsements, and from using the recognizable voice of a non-attorney celebrity to tout the lawyer's skills." Beyond that, they would have to be prepared to substantiate ad claims and keep ads on file for three years. (John Caher, "New York Courts Back Expansive Lawyer Ad Restrictions", New York Law Journal, Jun. 15). For critical reaction, see Dennis Kennedy, Between Lawyers, Jun. 15 ("a shocking number of draconian and micro-managing rules "), and Robert Ambrogi, LegalBlogWatch, Jun. 16).

The rules are here (PDF) and the comment period lasts through Sept. 15. More: The state Academy of Trial Lawyers likes the idea.

"I settled for as much as I could so I could move out of Staten Island and move down to North Carolina," said the plaintiff, who settled with his employer and three other companies over a work injury. (Rob Hart, "Amputee settles lawsuit for $2.2M", Staten Island Advance, Jul. 8). Compare: Mar. 28 and other examples of one of our favorite clichés.

After all, the judge noted, Arkansas law didn't require buses to have seatbelts. Plaintiffs, children injured in a school-bus crash when the distracted driver drove off the road down an embankment and hit several trees, say they'll appeal. (AP, Jul. 7). Compare: Dec. 1 and Feb. 14.

From the underrated dark comedy Pretty Persuasion (2004):

Kimberly: Randa, what's the greatest thing about this country?
Randa: Sylvester Stallone?
Kimberly: No. It's that anybody can sue anybody at anytime over anything.

Perhaps (or perhaps not) relatedly: the tale of driving instructor Norman Swerling, acquitted of raping one of his students. The school district paid him $250,000 to stay at home instead of returning to work. (Keith O'Brian, "Not Guilty", Boston Globe, Jul. 9).

"An Iowa judge has denied unemployment benefits to a man who claimed discrimination after being fired from an ethanol plant for drinking 'automobile fuel' produced by the company." Cory Neddermeyer, 42, was fired after being hospitalized with an almost fatal 0.72 blood-alcohol level after dipping into the 190-proof fuel at his employer, Amaizing Energy in Denison, Iowa. "Neddermeyer argued that his employer shared in the responsibility for the incident because the spill at the plant provided an 'opportunity' for him to drink. He also argued that Amaizing Energy was discriminating against him due to his 'disease of alcoholism.'" (Clark Kauffman, "Man fired for getting gassed on spilled ethanol at work", Des Moines Register, Jul. 9 (via Romenesko)).

"The Washington Post recently reported that since the 1970s, rape has diminished in frequency by some 85 percent." Both feminists and televangelists would seem to have some trouble accounting for this welcome trend, given that access to pornography on the one hand, and the trappings of modernism in general on the other, remain ubiquitous (Steve Chapman, syndicated/Chicago Tribune, Jun. 29)(reg).

We're lucky the internet is going to be regulated by lawmakers with such a profound understanding of how it works. (Wired.com/27B Stroke 6, Jun. 29)(via Nobody's Business who got it from Boing Boing).

The Associated Press claims, on evidence whose strength readers may assess for themselves, that advocates of slavery reparations now constitute a "sophisticated, mainstream movement" which is "quietly chalking up victories and gaining momentum". Amid all its cheerleading for the concept, the article brings in my Manhattan Institute colleague John McWhorter for token balance (Erin Texeira, "Slavery reparations gaining momentum", AP/Boston Globe, Jun. 9).

In Portland, Ore., Janet Dumas, age 86, says neighbor Chad F. Christensen let his two dogs run loose which spelled the end of her pet cat Clyde; she claims Christensen tried to cover up the deed. Did he realize that her son was a lawyer? He does now. (Mark Larabee, The Oregonian, Jul. 7).

Do as we say dept.: "The head of the Utah Highway Patrol's anti-DUI squad has been arrested on suspicion of drunken driving after crashing his patrol car." (Deseret News, Jun. 30; Stephen Hunt, "Ex-UHP lieutenant pleads not guilty to single DUI count", Salt Lake Tribune, Jul. 6)(via Balko).

According to The Recorder/Law.com, a San Francisco judge has said he would grant an anti-SLAPP motion and dismiss a defamation suit filed against late-night host Jay Leno by a woman who was the butt of one of his comedy routines (see Apr. 18) (Pam Smith, "Calif. Court to Toss Defamation Suit Against Jay Leno", The Recorder, Jun. 19).

"A federal grand jury indicted a Stockbridge, Ga. man Thursday on charges he poisoned his own children with tainted soup in an attempt to extort money from soup maker Campbell's." Prosecutors say William Allen Cunningham, 40, on three occasions in January fed his children, aged 3 years and 18 months, soup spiked with dangerous substances which resulted each time in their hospitalization. Cunningham allegedly told police he planned to sue the Campbell Soup Company for money based on the injuries. ("Man Indicted For Poisoning Soup and Feeding It to His Children", WXIA/FirstCoastNews, Jul. 7; Priscilla Rodriguez, "Dad accused of tampering with kids' soup", KNX NewsRadio, Jul. 7). And in Newport News, Va., Carla Patterson was sentenced to 12 months in jail as punishment for a scam in which she and her son Ricky claimed to have found a dead mouse in the soup at a Cracker Barrel restaurant, for which they sought $500,000 (Jun. 3, 2004); evidence indicated that the mouse had neither drowned nor been cooked, but had died of a fractured skull. ("Woman gets year in jail for mouse-in-soup scam", WAVY-TV, Jul. 6; Beverly N. Williams, "Mother gets year in mouse soup case", Newport News Daily Press, Jul. 6).

By reader acclaim: Allen Heckard of Portland, Ore. "says he’s been mistaken as Michael Jordan nearly every day over the past 15 years and he’s tired of it." So he's suing the basketball star and Nike founder Phil Knight for $832 million in all. “'I'm constantly being accused of looking like Michael and it makes it very uncomfortable for me,' said Heckard. Heckard is suing Jordan for defamation and permanent injury and emotional pain and suffering. He’s suing Knight for defamation and permanent injury for promoting Jordan and making him one of the most recognized men in the world." Why $832 million, exactly? "Well, you figure with my age and you multiply that times seven and ah, then I turn around and ah I figure that's what it all boils down to." That's no more arbitrary as a calculation than some damage assertions we can think of that have done very well in court (Pat Dooris, "Local man sues Jordan, Nike for resemblance", KGW, Jul. 7)(& more). Update Aug. 3: he drops case.

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).

Irritation at a nameless magazine's author contract puts Terry Teachout (Jun. 30) in mind of the following passage from Patrick O’Brian’s The Reverse of the Medal:

“As for Gibbon, now,” said Stephen when they were settled by the fire again, “I do remember the first lines. They ran ‘It is dangerous to entrust the conduct of nations to men who have learned from their profession to consider reason as the instrument of dispute, and to interpret the laws according to the dictates of private interest; and the mischief has been felt, even in countries where the practice of the bar may deserve to be considered as a liberal occupation.’”

A search on Google Book Search does produce the quote, and indicates that it appeared in the original text of Decline and Fall, but says Gibbon cut the sentence while the book was in press so as "to soften a passage comparing Roman lawyers with their modern counterparts". It's also unclear from context whether the passage constituted the "first lines" of anything in particular, as O'Brian suggests.

"An Alberta judge has ruled that a construction company discriminated against a man when it fired him from an oilsands project after his pre-employment drug screening tested positive for marijuana. Instead, Justice Sheilah Martin said the man -- a recreational user -- should have been treated the same way as someone with a drug addiction, which is considered a disability in a growing body of human rights case law across Canada." (CanWest/reprinted at CharlesAdler.com, Jun. 29; "Drug testing can be discriminatory, judge rules", CBC, Jun. 30).

A class action settlement resulting from litigation against the firm of H.A. Berkheimer of Bangor, Pennsylvania, was sufficiently tilted in favor of legal fees as opposed to class relief that Bucks County Judge Robert Mellon gave it thumbs down. Allentown Morning Call columnist Paul Carpenter, who's had an outstanding series of columns on the litigation business lately, has the story ("Lawyers can get sweet deals only in some states", Jun. 20).

Enough to add up to a hostile work environment for the legal secretaries within earshot? Or just what they should have expected from a successful white-collar defense lawyer? (Anna Palmer, "Hostile Work Environment Complaint Lodged Against DLA Piper Partner", Legal Times, Jun. 14).

A Massachusetts family is suing a Maryland family over what they call an arranged marriage for their 37-year-old son, Pranjul K. Pandey. The Pandeys called off the marriage after travelling to New Delhi when they decided the bride was too homely. (The former lawyer for the bride's family denies that there was an arranged marriage, and that the meeting was informal.) The suit seeks $200,000 for fraud, violation of civil rights, and emotional distress. Among the defendants is Emergent BioSolutions Inc., a Gaithersburg company that employs the uncle of the woman in question. One can't blame the lawyers for this one: the plaintiff, Vijai B. Pandey, previously convicted of bank fraud, is a frequent litigant, and has filed this case pro se. (Marla A. Goldberg, "Family sues over 'ugly' bride", MassLive.com/The Republican, Jul. 5 (via Romenesko)).

Update: The Smoking Gun has the complaint.

The Florida Supreme Court has backed an appeals court's dismissal of the absurd $145 billion verdict against cigarette makers in the Engle case. The court's opinion is split in complicated ways, but the defeat for attorney Stanley Rosenblatt is unmistakable. (Daniel Pimlott, "$145bn award against tobacco giants goes up in smoke", Financial Times/MSNBC, Jul. 6). The opinion is here (PDF)(via Bashman). I've written extensively about the Engle case at earlier stages, including op-eds for the Wall Street Journal Jul. 12, 1999, Jul. 18, 2000 and May 23, 2003. Much more background here.

NYU lawprof Burt Neuborne responds to critics (including Hofstra's Monroe Freedman) who say he's asking for excessive fees in Holocaust litigation (Lattman updated thread; see Jun. 30).

I was getting ready to turn thumbs down on the BlogAd in the right column, the one that looks like it was placed by a class action lawyer soliciting clients. (Reader comments welcome: should we turn down ads promoting litigation?) Then I took a closer look at it...

Update Aug. 3: much more on the ad, from the WSJ.

Now that litigators from the National Resources Defense Council have won a temporary restraining order from a federal judge under the terms of the National Environmental Policy Act, the U.S. Navy says it will employ less effective passive sonar, rather than active sonar, in exercises off Hawaii intended to simulate anti-submarine warfare. The NRDC complained that when the Department of Defense granted the Navy a temporary exemption from the Marine Mammals Protection Act for purposes of the exercises, it was trying to evade being sued. (" Whale lawsuit forces Navy to change sonar plan", AP/CNN, Jul. 5). "The Navy, in a statement after the ruling, said sonar was 'the only effective means we have to detect and quickly target hostile submarines and keep sea lanes open,' and that sonar operators needed training at sea 'to protect our nation's ships, shores and allies.'.... The sonar use is meant to test whether quiet, diesel-powered submarines like those used by Iran, North Korea and China can be detected." (Tony Perry, "Judge Temporarily Bars Navy From Using Sonar Said to Harm Whales", Los Angeles Times, Jul. 4) "The Navy says it must practice hunting submarines near the Hawaiian islands because that's the type of environment where it most likely will face an emerging threat of submarine warfare." (AP/Houston Chronicle, Jul. 4)(& welcome readers from Michelle Malkin, who provides more background on the controversy).

Each year Gerald Skoning, a prominent employment lawyer at Chicago's Seyfarth Shaw, assembles his pick of the ten most bizarre employment cases of the previous year, and each year the National Law Journal publishes the roundup but omits to put it online. So I'll just quote my two personal favorites from the latest list ("Last year's bizarre cases", Mar. 20):

...A federal district court in Oklahoma has dismissed a 70-year-old office worker's claim that her employer discriminated against her because she was not fired. Mary Wyatt, who had worked for Occidental Petroleum for more than 24 years, argued that she should have been fired and awarded a severance package. The court disagreed, reasoning that, "Plaintiff has not suffered an adverse employment action by the continuation of her employment." I commend the court for its eminently sensible recognition that the continued opportunity to earn a living isn't discrimination.

...A federal court in Pennsylvania has ruled that a weight loss center did not violate the Americans with Disabilities Act by refusing to hire a salesman who weighed 350 pounds because it was concerned his appearance was inconsistent with the sale of its products. The court dismissed Bob Goodman's claim, stating: "The mere fact that Defendant was aware of Plaintiff's weight and rejected [him] for fear that his appearance did not accord with the company image was not improper." I salute this weighty contribution to commonsense jurisprudence.

For another you-should-have-fired-me case, see May 11, 2004. For coverage of previous Skoning roundups, see May 12, 2005 and links from there.

The website invites women to post negative "reviews" warning others against men who are poor dating material. Now it's being sued by Pittsburgh criminal defense lawyer Todd Hollis, who says false and defamatory material about himself appeared on the site. (Moustafa Ayad, "City lawyer sues 'don't date him' Web site", Pittsburgh Post-Gazette, Jun. 30; Carl Jones, "Scorned Attorney Sues Kiss-and-Tell Web Site", Miami Daily Business Review, Jul. 5; Robert Ambrogi, Legal Blog Watch, Jun. 30; Lattman, Jul. 3; Evan Brown, Jul. 1.

Peter Nordberg points us to an unpublished Fourth Circuit opinion upholding an expert's testimony as to damages. Mary Lafontaine Parmenter's investment advisor moved her $730,000 account into stock mutual funds in late 1999, increasing its value to $1.1 million at the height of the stock market bubble in 2000 (even as she was withdrawing $6000/month), whereupon it declined in value to $342 thousand. The expert argued that the most serious breach of the investment advisor's duties came when he failed to consolidate the gains, and that losses should be counted from the peak of the account's value. I don't doubt that the investment advisor could have been found to be inappropriately aggressively investing Parmenter's money; but if he was doing so inappropriately in April 2000, he was doing so inappropriately in 1999, when he made her half a million dollars; there's something unseemly about the calculation of loss. Hindsight is nice: if the expert, F. John Hermann, could accurately forecast account value peaks, he'd be a billionaire rather than an expert-for-hire.

The opinion also reveals that the plaintiff's attorney successfully tricked the defendant into conceding that an accurate SEC disclosure form that he had filed was inaccurate; the appeals court offered no relief because of lack of evidence that the tactic was intentional.

From "Decision of the Day: A daily summary of the best (and worst) of federal appellate decisions" (Jul. 3):

Money Can’t Buy Love, Or Permission to Land Your Personal Jet
Tutor-Saliba Corp. v. Hailey, 04-34524 [PDF](9th Cir., July 3, 2006)

Poor Ron Tutor. All he wanted to do is land his personal jet at an airport in Hailey, Idaho. The airport wouldn’t let him due to weight restrictions, so he was forced to fly in a less comfortable private jet. As a result, Tutor’s vacation at his Sun Valley home got off to a very bad start. Tutor sued the airport and the City of Hailey on various grounds, including under 42 U.S.C. § 1983 for allegedly violating his rights to due process, equal protection, and interstate travel. The district court predictably found these claims were frivolous and awarded partial fees to the defendants, totaling $88,000 (in addition to costs of around $70,000). On appeal, the Ninth affirms the decision to award fees but remands to the district court for recalculation. Am I the only one who hopes the district court finds a way to increase the fee award on remand?

"Decision of the Day", incidentally, was launched by "Robert Loblaw" in October, and can be found here.

P.S.: In email, Prof. Childs advises that site author "Robert Loblaw" quite possibly may have borrowed that screen name from a similarly named lawyer-character on "Arrested Development", who can be viewed here.

Kevin M.D. takes ATLA president Ken Suggs to task for the aggressive claim that defensive medicine doesn't exist. Speaking of hoaxes, Suggs also repeats the long-refuted myth that insurance companies are to blame for higher malpractice premiums. At this rate, ATLA needs more than a name change.

That's what plaintiffs' lawyers will receive for a federal class action that was dismissed on summary judgment for lack of evidence. The Eleventh Circuit had previously pooh-poohed defendants' claims that the potentially bankrupting scope of the class action would force them into extortionate settlements. For refusing to pay protection money, United Healthcare and Coventry avoided paying millions of dollars in settlement money, but still had to pay their own attorneys and experts millions—and faced substantial risk that a court and a jury would get the decision wrong. Details at today's Point of Law.

"A prominent civil rights attorney who was indicted this month on tax charges has sued a retired police detective for writing a letter that expressed 'glee' at the news. Stephen Yagman claims in the suit filed Wednesday that the three-paragraph letter he received from Jerry Le Frois caused him 'extreme emotional distress.' Le Frois' June 23 letter says he felt 'glee and profound satisfaction' when he learned that Yagman had been charged earlier this month in a 19-count federal indictment. Le Frois identified himself as a former member of the Los Angeles Police Department's Special Investigations Section, which was a frequent target of Yagman's civil rights suits." ("Attorney sues former L.A. cop who expressed 'glee' he was indicted", AP/Sacramento Bee, Jun. 29). More watch-what-you-say-about-lawyers posts: Apr. 18 and links from there.

When workers exhibit this malady -- roughly definable as losing their temper or blowing their stack to a pathological degree -- are employers obliged to accommodate them under the Americans with Disabilities Act? (Jon Coppelman, Workers Comp Insider, Jun. 14).

The Surgeon General of the United States last week claimed that "breathing secondhand smoke for even a short time" can "potentially increas[e] the risk of heart attack". How much evidence is there for that proposition? Michael Siegel inquires (Jun. 28; Jacob Sullum, Reason "Hit and Run", Jun. 28 and Jun. 29). According to Brooke Oberwetter of the Competitive Enterprise Institute, the same new report from the Surgeon General uncritically passes along the much-ballyhooed "miracle of Helena" study purporting to find a correlation between a ban on smoking in bars and an immediate 40 percent drop in heart attacks in that Montana community -- really more like a miracle of small sample sizes (Jun. 27; see Oct. 6, 2003). Finally, a spokeswoman for the bossyboots American Heart Association is quoted praising a new Colorado law that forbids smoking in most restaurants and bars statewide no matter what the owners and patrons happen to prefer:

"We know from research that we've done that over 80 percent of Colorado residents don't smoke," said Erin Bertoli with the American Heart Association.

"The majority of them really look forward to going out to new restaurants and new bars and taking their families and experiencing new venues that have technically been closed to 80 percent of Colorado residents up until this point."

thus demonstrating a Pickwickian understanding of such words as "technically" and "closed". (Jeffrey Wolf, "Effort to stop statewide smoking ban underway ", KUSA-TV, Jun. 15). Plus: Radley Balko weighs in.

Some parents on the Upper West Side of Manhattan are considering suing the New York education department because their kids didn't get into that coveted program. The kids are in pre-K and 4 years old or thereabouts. (Melena Ryzik, "Intelligencer: Can You Sue a Kid Smart?", New York, May 22).

In the latest development regarding suits by young women who come to regret being filmed in compromising states of undress during Spring Break, Mardi Gras, etc., a Denton County, Tex. jury has decided to award no damages to Brittany Lowry and Lezlie Fuller, who "accused Mantra Films of misappropriation and fraud after the two were videotaped in March 2002 flashing their breasts during a vacation at Panama City Beach, Fla." (Domingo Ramirez Jr., "Women lose Girls Gone Wild lawsuit", Fort Worth Star-Telegram, Jun. 29)(via Lattman). Earlier: Sept. 28-30, 2001; Mar. 6-7, 2002; May 1, 2006; May 2, 2006.

According to an editorial report in London's Telegraph earlier this year, an Italian court has ruled that it is not inappropriate for a lawyers' association to discipline one of its members for uttering in the course of a social interaction that classic phrase of intimidation, "Do you know who I am?" ("We know who you are" (editorial), Daily Telegraph, Jan. 15). If adopted in this country, such a disciplinary rule might tend to crimp the style of famed tort high-roller Stanley Chesley, to judge by an generally puffy recent Cincinnati Enquirer profile (Chuck Martin, "Champion for little guy", May 28). (These seeming puff pieces so often turn out to embarrass inadvertently.) More on Chesley: Mar. 6, 2006; Aug. 24, 2005; Jan. 11, 2004; Aug. 7-8, 2001; Aug. 16-17, 2000; Jun. 1, 2000; Apr. 12, 2000; Mar. 30, 2000; Dec. 23-26, 1999.

You can find out more about Hans's work here, and his posts appear frequently at the Competitive Enterprise Institute's group blog, Open Market.

A Feministe commenter writes about street harassment (h/t Slim):

Last summer, I was walking on the street, holding a large coffee I had just bought. Suddenly, a guy coming from behind me grabbed my ass and asked me ‘where I was walking with that nice ass of mine’. I was lost in my thoughts when it happened, and it surprised me so much that it made me screamed and jumped, which resulted in me throwing *very* hot coffee all over his face and shoulders. It was an accident, but I can’t tell you how much satisfaction I got from hearing him scream in pain as he got burned by the coffee.

The best part? As I was walking away, laughing my ‘nice’ ass off, he screamed at me that he was going to sue me!

Long-time Overlawyered readers will also note the fortunate fact that the commenter's coffee didn't have an identifiable brand name that permitted her assailant to sue the restaurant for serving hot coffee.

Reader Mickey Ferguson writes: "I just wanted to follow up on the original message I sent which you posted Apr. 14. On Jun. 20 I was notified that as a result of the settlement of this class action I am now the proud owner of the right to download free (and nearly worthless) hard disk drive backup and recovery software. Woo-hoo! Meanwhile, the lawyers win again. Details here." More on the case: Adrian Kingsley-Hughes, "Attention hard drive manufacturers! Most people believe that a kilobyte is 1,024 bytes!", ZDNet, Jun. 29.

The Illinois Trial Lawyers Association has installed as its president none other than Swansea, Ill. class action lawyer Judy Cates, known to longtime Overlawyered readers for her venture into columnist-suing (Feb. 29, 2000) following the controversial Publisher's Clearing House settlement. For one of Cates's more recent suits, see May 4, 2004. ("She's our poster-lawyer", St. Clair Record, Jun. 18).

A judge has cut from $100 million to $10 million the punitive damages portion of an unusual verdict in a lawsuit arising from Kristin Rossum's alleged murder by poison of her husband, Gregory de Villers. The distinctive feature of the verdict, on which we commented Mar. 27, was that the jury assigned 25 percent responsibility for the murder to Rossum's employer, San Diego County, which employed her as a toxicologist and was said to be blameworthy for letting her steal drugs which she administered to him. ("Judge Cuts $90 Million in Damages in San Diego Murder Case", AP/L.A. Times, Jun. 19)(via Childs).

Can you be sued based on an obscure regulation drafted by bureaucrats that expands the reach of an already broad statute? The First Circuit Court of Appeals thought not in its ruling yesterday in Iverson v. City of Boston. Disagreeing with the Tenth Circuit, it held that lawsuits can't be brought under Justice Department regulations expanding the reach of the Americans with Disabilities Act (ADA) by requiring self-evaluation and transition plans, since having such plans is not always necessary to comply with the ADA's statutory requirement that the disabled receive reasonable accommodations.

It chided the Tenth Circuit for failing to follow the Supreme Court's 2001 decision in Alexander v. Sandoval, which held that regulations expanding the reach of Title VI's statutory ban on intentional racial discrimination to include unintentional discriminatory effects on minority groups were not enforceable through lawsuits, and thus rejected a challenge to Alabama's English-language requirement for drivers' licenses, which allegedly had the unintended effect of discriminating against Hispanics.

Like other circuits, the First Circuit also held that court complaints alleging disabilities-discrimination cannot simply make a "conclusory contention" of discrimination, but rather must contain some supporting allegations, such as that the plaintiff is a "qualified" person with a disability. This matters because the longer a meritless lawsuit stays in court, the more it costs. A suit that costs $250,000 to defeat at trial may cost only $75,000 if tossed out earlier on summary judgment after discovery, and may cost only $25,000 if tossed out prior to discovery on a motion to dismiss the complaint.

In its 2002 decision in Swierkiewicz v. Sorema, an age and national-origin discrimination case, the Supreme Court made it much harder to toss out meritless discrimination suits at an early stage, ruling that a typical discrimination case can survive a motion to dismiss and proceed to discovery even if the plaintiff does not allege specific facts supporting his discrimination claim, such as that he was qualified for the job. The plaintiff need only allege that he was denied a job because of his age, national-origin, etc., without giving his underlying reasons for believing he was the victim of discrimination.

However, the ADA is very different from the typical antidiscrimination statute. It is both broader (since it requires not simply that the disabled be treated as well as non-disabled workers, but also that they be given preferential "reasonable accommodations") and narrower (it expressly protects only "qualified" disabled people, unlike race, sex, and age discrimination statutes, which require that unqualified blacks, women, and elderly people be treated as well as their unqualified white, male, and younger colleagues), containing additional statutory elements that a plaintiff must satisfy.

Since the ADA, unlike other antidiscrimination statutes, requires more than a simple showing of discrimination, the First Circuit was right to require ADA plaintiffs to make more than a simple contention of discrimination in their complaint. As the Supreme Court observed in its Swierkiewicz decision, while a plaintiff's complaint need not provide unnecessary evidentiary details, it nevertheless must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."