July 2007 Archives

Reps. Barney Frank and John Conyers, Jr. spend taxpayer dollars to file a late amicus brief on behalf of plaintiffs' lawyers and against investors in Stoneridge v. Scientific-Atlanta, taking issue with my Wall Street Journal op-ed on the case. (H/t L.R.) To wit, "A number of commentators have called for the Court to decide this case by reference to policy considerations nowhere found in the statute." This is wrong: the op-ed explicitly noted that Congress had twice rejected precisely the sort of liability that petitioners were seeking in this case. It is also ironic: civil securities fraud liability was created by judicial fiat out of a statute that had no private right of action.

More coverage of the Sears wheel-alignment case (see May 18) in which lawyers were slated to get $1 million and the client class $2,402 (not $2,402 apiece -- $2,402 in the aggregate):

A North Carolina judge has harshly criticized the settlement of a class-action lawsuit in which a Wilmington lawyer and colleagues received $950,000 in fees while consumers who Sears overcharged across the country were reimbursed a total of $2,402.

Superior Court Judge Ben Tennille decried the excessive fees and the lack of effort made to reach customers who had paid too much for wheel alignments at Sears automotive centers. Tennille, who specializes in complex business cases, criticized Sears and the lawyers for trying to hide the settlement results from him.

"Their efforts to keep the results secret are understandable," Tennille wrote in his May decision. "The shocking incongruity between class benefit and the fees ... leave the appearance of collusion and cannot help but to tarnish the public perception of the legal profession."...

"Doing the math in this case is easy," the judge wrote. "For each class member who received a $10 check or $4 coupon, plaintiffs' counsel received just shy of $3,000."

(Joseph Neff, "Fleeced Sears patrons shorted again in settlement", Raleigh News & Observer, Jul. 23; Ed Cone, Jul. 24). The settlement was initially brought to a wider audience's attention by Nick Pace of the Rand Corporation at Consumer Law & Policy blog (May 17).

St. Louis: "The family of late Cardinals pitcher Josh Hancock dropped a wrongful-death lawsuit against Mike Shannon's restaurant stemming from the player's death in April." The family and its lawyers had been widely criticized (May 24, May 29, etc.) for the breadth of the net they cast in their lawsuit, including the driver and owner of the tow truck into which Hancock smashed, and "the driver of a disabled car on the highway whom the tow truck driver had stopped to help". ("Shannon's restaurant dropped from wrongful-death lawsuit", ESPN, Jun. 30).

• Can't possibly be true: Tampa man sentenced to 25 years for possession of pills for which he had a legal prescription [Balko, Hit and Run]


• Plaintiff's lawyers "viewed [Sen. Fred Thompson] as someone we could work with" and gave to his campaigns, but they can't be pleased by his kind words for Texas malpractice-suit curbs [Washington Post, Lattman; disclaimer]


• Pace U. student arrested on hate crime charges after desecrating Koran stolen from college [Newsday; Volokh, more; Hitchens]


• Little-used Rhode Island law allows married person to act as spouse's attorney, which certainly has brought complications to the divorce of Daniel and Denise Chaput from Pawtucket [Providence Journal]


• Lott v. Levitt defamation suit kinda-sorta settles, it looks like [Adler @ Volokh]


• Trial lawyer Mikal Watts not bowling 'em over yet in expected challenge to Texas Sen. Cornyn [Rothenberg, Roll Call, sub-only via Lopez @ NRO]


• Frankly collusive: after Minnesota car crash, parents arrange to have their injured son sue them for negligence [OnPoint News]


• Canadian bar hot and bothered over Maclean's cover story slamming profession's ethics [Macleans blog]


• Five Democratic candidates (Clinton, Obama, Edwards, Biden, Richardson) auditioned at the trial lawyers' convention earlier this month in Chicago [NYSun]


• Donald Boudreaux's theory as to why Prohibition ended when it did [Pittsburgh Trib-Rev via Murray @ NRO]


• Speaker of Alaska house discusses recent strengthening of that state's longstanding loser-pays law [new at Point of Law]

Thanks to Skip Oliva for helping fill in here again over the past week. Skip's posts drew notice from, among others, Prof. Bainbridge and Liberal Order. You can read more of his work at the Voluntary Trade Council blog and the Mises Economics blog.

I wonder what the quickest time between the introduction of a consumer product and the introduction of the consumer fraud class action lawsuit is. Apple's new iPhone was released on June 29, 2007; last Thursday, the first -- as far as I know -- class action lawsuit was filed. (I'm sure that this doesn't qualify as the fastest consumer lawsuit, but I am curious.)

A Chicago-area resident, Jose Trujillo, is suing Apple and AT&T under Illinois's "consumer fraud" law; the typo-filled complaint claims that the defendants failed to disclose to consumers that the phone's battery -- like that of the iPod -- could only be replaced by Apple, and not the user. The suit also alleges that the battery only lasts for 300 charges and will have to be changed annually; given that Mr. Trujillo has had the phone for a maximum of a month, and that each charge lasts for several days, it is unclear how he could possibly know this or have a good faith basis for alleging it.

The suit contains the usual features of bogus consumer fraud litigation, such as claiming "fraud" without identifying any false statements, but instead by alleging a failure to disclose information that was widely known; attempting to represent consumers who are perfectly happy with the product; suing based on hypothetical damages that may or may not be incurred in the future; and claiming to be an unhappy consumer, but failing to act as an ordinary consumer would -- e.g., by returning the product for a refund.

Incidentally, I just got a new cell phone (not an iPhone) last week. I checked the box; nowhere does it disclose that the battery won't last for an infinitely long time, or that I will have to pay for a new one when it does die. Also, I'm pretty sure the car dealership that sold me my SUV never mentioned that it required a substance called "gasoline" to run, and that I would need to keep buying this substance. I wonder if I've got a case.

As an addendum, the trial lawyer in this case, Larry Drury, is no stranger to ludicrous "consumer" litigation; he played a leading role in the bogus Million Little Pieces class action suits. (Covered on Overlawyered in many posts). And he once sued Arista Records over the Milli Vanilli "scandal."

The folks at TechnoLawyer have just released a free eBook that serves as an engaging introduction to the world of law blogs. BlawgWorld 2007 (PDF download) pulls together posts or other excerpts from 77 legally oriented blogs, including this one. There are embedded links, so you can quickly follow up on the ones you like. It's all free, as mentioned, and intended as a way to draw attention to TechnoLawyer's services. (Their press kit mentions us at about the 2:50 mark.) Blawg Review has more.

In McMinnville, Ore., it may consist of fanny-patting in school hallways by seventh graders. Following a public outcry, Yamhill County D.A. Bradley Berry has now dropped the felony counts -- the resulting status as registered sex offenders might have followed the youngsters through life -- but he still wants to have Cory Mashburn and Ryan Cornelison at least given probation on misdemeanor counts. (Scott Michels, "Boys Face Sex Trial for Slapping Girls' Posteriors", ABCNews.com, Jul. 24; Mark Steyn, "Swat somebody's butt, and yours belongs to the D.A.", Orange County Register, Jul. 28; Jeanine Stice, "Gene's right about The McMinnville Two", Salem Statesman-Journal, Jul. 24). Update Aug. 22: charges dropped.

Could Star Trek's Captain Kirk, more recently a success in "Boston Legal", actually be in enough need of work to do low-budget ads like this? Apparently so.

It’s time to end my week of guest-blogging here. Thanks again to Walter Olson and Ted Frank for indulging my ramblings. Since I’ve used most of my posts to dwell on the evils of antitrust regulation, I’d like to try and go out on a more positive note.

It’s difficult to reconcile the American concept of “equal justice under law” with the Federal Trade Commission’s motto, “Protecting America’s Consumers.” The implication is that there is one set of laws for consumers and another set—affording lesser protection—for producers and sellers. This conflict presents itself in all “consumer protection” laws, and it stems from an awkward premise: That in any given economic exchange, the party trading cash holds the legal and moral high ground over the party trading a good or service.

Put another way, try to fashion a consumer protection or antitrust law in a purely barter economy. If A trades two pounds of flour to B in exchange for a bushel of apples, which party is the “consumer” entitled to government protection? It’s easy to apply common law principles regarding fraud to such a transaction, but virtually impossible to employ contemporary consumer protection standards, which require a presumption that one trader is good and the other is bad.

ABC News files a report on a sector of litigation we've covered extensively over the years:

Tim Gleason, general manager of the China Club in New York, calls [attorney Roy Den] Hollander's complaint "pathetic" and echoes other club owners who argue that the discounts actually help both sexes by balancing out the ratio between men and women....

"Ladies' Night benefits the men as much as it benefits the ladies, the clubs and society," said John Juliano, owner of the recently closed Copacabana Nightclub. "And the only loser here is this grouch with a warped point of view."

GWU lawprof and inveterate publicity hound John Banzhaf, whose "suing for credit" course has generated one such suit, gets a mention too. (Brittany Bacon, "'Ladies' Night' Lawsuits on the Rocks?", Jul. 25; 239 reader comments so far). More: Lat, Jul. 30.

Regarding the story Walter mentioned below on a fugitive's possible liability for a news copter crash, Dave Hughes of the media watchdog site dcrtv.com suggests a different chain of causation than the Phoenix police chief:

While I'm very sorry that the two Phoenix TV copters collided and crashed, killing four, I am very much against TV stations (and cable "news" networks) televising live police chases. There isn't much news value there and the the very presence of TV coverage of such events encourages people - particularly the drunk and drugged - to break the law and lead the police in high-speed chases thereby endangering countless thousands of responsible drivers, their passengers, and pedestrians. TV stations do a major (!) public disservice by engaging in such sensationalist "reporting." There's nothing wrong with a TV station having a copter to report on traffic conditions and other stories requiring that type of airbourne coverage - such as big fires. But, please, not car chases.

Last week the Federal Trade Commission and the Justice Department’s Antitrust Division issued their annual report on the Hart-Scott-Rodino Act (HSR Act), which requires companies to pre-report mergers over a certain value to antitrust regulators so they can preemptively determine if a deal is “likely to have an anticompetitive impact.” (It’s amazing that people with such amazing economic forecasting abilities are employed as mere government lawyers.)

Despite the occasional high-profile merger challenge, like the FTC’s recent lawsuit to stop Whole Foods from acquiring Wild Oats, very few deals face antitrust roadblocks. In the fiscal year 2006, the FTC and DOJ issued second requests for information—the first step towards a formal challenge—in only 2.6% of reported mergers. This is slightly below the ten-year average of 3.01%.

On Thursday we posted a story about a jury's holding a Missouri fugitive responsible for the crash of a police car which was headed (at a great distance) toward his manhunt. Now similar issues might come up following a more spectacular catastrophe, yesterday's crash of two news helicopters over central Phoenix while covering a live police pursuit, with the death of all four persons aboard. Phoenix police chief Jack Harris, per the coverage, "said he believes the man [fleeing police] will be held responsible for the deaths of the four TV station employees." ("2 News Helicopters Collide; 4 Dead", KPHO News 5, Jul. 27).

Last week a Connecticut jury acquitted Stora Enso North America Corp. of criminal “price fixing” charges. The Justice Department indicted Stoa Enso last December for allegedly selling coated magazine paper at “anticompetitive” prices. It’s rare for any company to go to trial on criminal (or even civil) antitrust charges, and an outright not-guilty verdict is even rarer: In the last ten years, the Antitrust Division’s criminal won-loss record is a robust 454-11.

The Antitrust Division’s success in convicting price fixing defendants can be attributed to the Corporate Leniency Policy, an invention of Division lawyers that allows one company in a purported “cartel” to escape all criminal prosecution in exchange for providing evidence against other firms. It’s a terrific bargain. A company can inflict maximum damage on its competitors—who face large criminal fines and treble damages in subsequent civil lawsuits—while prosecutors are generally ensured of quick plea bargains from their remaining targets.

You will recall that defenders of the absurd McDonald's coffee lawsuit insist that the suit was justified because only McDonald's sold beverages capable of third-degree burns. We've repeatedly shown that that claim is fictional, but add one more example: a New Jersey man is suing Starbucks for selling "unsafe" hot tea that caused third degree burns on his hand when he spilled it on himself (though at least, unlike Stella Liebeck, he is claiming that the spill is the store's fault for failing to attach the lid properly). Because Starbucks does not comment on litigation, they surrender the entire article to the plaintiffs' attorney for Antonio Couso to use as a platform when the reporter does not bother double-checking any of the lawyer's claims. (John Petrick, "Starbucks sued over spilled tea", The Record, Jul. 27).

• Grand jury declines to indict Dr. Anna Pou in Katrina hospital deaths, despite heavy breathing from Louisiana AG Charles Foti and TV's Nancy Grace [Times-Picayune, more; 2005 CNN transcript; Health Care Blog, GruntDoc, Vatul.net]


• Protection from lawsuits for "John Doe" security informants is back in anti-terror legislation moving through Congress, despite back-door effort to eliminate it earlier [Fox News, Malkin; earlier] Addendum: but it's in altered, much-weakened form, says commenter Bob Smith;


• U.K.: Top law firm Freshfields earns millions advising clients on employment compliance, yet "omitted to check that changes to its own pension scheme were legal" [Times Online]


• Thinking of doing some guestblogging, for us or another site? Some good advice here [Darren Rowse via Kevin O'Keefe]


• Even Conrad Black can have trouble affording lawyers, at least with feds freezing his accounts [PoL on Steyn]


• Shouldn't have let us become parents again: Florida jury awards $21 million in "wrongful birth" case [Fox News]


• Possibility of gigantic reparations claims adds intensity to big lobbying fight in Washington over whether Turkey's slaughter of Armenians in 1915 amounted to genocide [Crowley, New Republic]


• Updating colorful coverage case (Jun. 22, 2005): dentist wins $750K verdict on insurer's duty to defend him for taking gag photos of sedated employee with boar tusks in mouth [Seattle Times, more; dissent in PDF; Althouse]


• Giuliani might use federalism to defuse culture wars [Brownstein, L.A. Times; disclaimer]


• Virginia's enactment of harsh traffic fines (Jul. 6) follows tryouts of the idea in Michigan and New Jersey, where effects included rise in unlicensed driving [Washington Post]

Common journalistic practice says that a court decision is pro-business when it favors a corporate defendant over a plaintiff. Conservatives are also said to be pro-business while liberals are pro-plaintiff or pro-consumer. This is how the press frames most discussions of tort and regulatory litigation.

In the last Supreme Court term, a 5-4 decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc. was hailed and condemned (depending on who you ask) as a pro-business decision. The conservative majority, led by Justice Kennedy, overruled a 1911 precedent that condemned “resale price maintenance” (RPM)—contracts where a manufacturer conditions sales to distributors on setting a specific retail price—as an automatic violation of the Sherman Act. Most antitrust challenges are subject to the rule of reason, and after years of complaints from mainstream economists, the Leegin majority acquiesced in ending RPM’s special status under the “per se” rule.

A few seconds of musical background, in the form of Prince's "Let's Go Crazy", was grounds enough for Universal to file a takedown notice with YouTube. (Nate Anderson, "Universal demands takedown of homemade dancing toddler clip; EFF sues", ArsTechnica, Jul. 25).

The Associated Press and WSJ Law Blog cover Tuesday's event, which was co-sponsored by ATRA and the Chamber. Raised so far: more than $64,000. Earlier coverage of the Roy Pearson pants case here (cross-posted from Point of Law).

Missouri Highway Patrol Trooper Ralph Tatoian fell victim to a fatal car crash while en route to the area -- 40 miles away -- where fugitive Massigh Stallman, on foot, was being sought in a manhunt. Now a jury has convicted Stallman of responsbility for Tatoian's death ("Jury Convicts Suspect In Highway Patrolman's Death", KSDK, Missouri, Jul. 20). More: possibly similar case arises in Phoenix after crash of two news helicopters during police pursuit (Jul. 28).

A medical-malpractice plaintiffs' lawyer has brought a second suit, this one against the attorney for the defendant, arguing that the questions asked at a deposition inflicted emotional distress on his client. (Lisa Brennan, NJ Law Journal, Jul. 25 (via Scheuerman)).

This suit may well fall into the "Be careful what you ask for" category. If a defense attorney can be liable for exploring whether a plaintiff has responsibility for a decedent's fatal head injury, why can't a defendant doctor sue a plaintiffs' attorney when accused of the same thing? (Note the plaintiffs'-attorney commenter who told one doctor to suck it up.) Odds are the whole matter gets dismissed on grounds of the litigation privilege, the idea that immunity is appropriate lest attorneys be deterred from litigating on behalf of their clients. One only wishes that the same principle would be applied to other situations, such as doctors being deterred from practicing medicine. Earlier: POL Jun. 20, 2006.

The Houston Chronicle has more on Joe Jamail's defeat of John O'Quinn in the expense-ethics battle earlier detailed in this space (Jul. 19, etc.). Several of the experts quoted seem at pains to minimize the seriousness of O'Quinn's ethical lapse, but there's a good quote at the end from Dallas legal-malpractice lawyer Randy Johnston: "When John O'Quinn goes up against Joe Jamail, I promise you, it isn't all about the money." Why? Because it's about the ego too. (Mary Flood, "Legal trend of leveling suits against fellow litigators likened to cannibalism", Houston Chronicle, Jul. 21)(via ShopFloor).

Our thanks to Steve Hantler of Chrysler for some provocative posts which stirred considerable reader interest. His post on global warming litigation drew links from (among others) Prof. Bainbridge and New York magazine's "Intelligencer".

A few years ago, I was drafting some public comment letters to the FTC and DOJ in a series of cases where the regulators accused physician groups of “price fixing” during contract talks with third-party insurers. While reviewing three separate cases involving physician groups in different markets, I noticed that the defendants all retained the same defense lawyer. Further research revealed that said lawyer previously worked at the FTC, where he developed the very theory of antitrust liability now being used against his clients. Indeed, this lawyer authored a book on the policy.

The latest AEI Liability Outlook explores my take on the tort reform implications of October Term 2006.

Illinois: "A woman who tried to dance atop the bar at a Joliet tavern is suing the establishment after she fell and shattered her ankle." Amy Mueller, who is in her early twenties, wants damages from Samy's Bar and Grill for "allowing [her] to climb upon the bar without a step-stool, ladder or other device used for safety."

"They encouraged their patrons to dance on the bar -- they cajole them, they yell at them, but they fail to take any safety precautions whatsoever," said Frank Cservenyak Jr., Mueller's attorney.

Cservenyak adds that he "wouldn't take a case I believe is frivolous." (Steve Schmadeke, "Woman who hurt her ankle sues bar", Chicago Tribune, Jul. 23; "Woman suing Joliet tavern for broken ankle", AP/ABC7Chicago, Jul. 23).

It’s good to be back at Overlawyered. For those of you not scarred by my prior guest-blogging stint, this is Skip Oliva, director of the anti-antitrust Voluntary Trade Council, regular co-blogger for the Mises Institute, and freelance paralegal-for-hire.

Since antitrust is my bread and butter, I’ll spend some time this week examining the impact of the four antitrust cases decided in the last Supreme Court term. I’ll also discuss some lesser-known antitrust cases that I’ve been following (and in some cases, directly participating in); and maybe I’ll even address some purely non-antitrust legal topics as well.

But let’s start with—you guessed it—an antitrust case. Last week the U.S. Third Circuit Court of Appeals decided Cosmetic Gallery, Inc. v. Schoeheman Corporation (download PDF), one of the first appellate decisions that relies on the Supreme Court’s May decision in Bell Atlantic v. Twombly. In Twombly, a 7-2 court held that a complaint alleging a conspiracy to restrain trade under Section 1 of the Sherman Act required more than “an allegation of parallel conduct and a bare assertion of conspiracy”; there must be “enough factual matter (taken as true) to suggest that an agreement was made.”

In the Third Circuit case, a New Jersey company that operates hair salons and retails related hair care products (Cosmetic Gallery) sued a Pennsylvania distributor of said products (Schoeneman). Specifically, the issue is “salon-only” products that are normally sold, as the name suggests, only through salons. Distributors like Schoeneman agree to manufacturers’ restrictions on the sale of these products to, according to the Third Circuit, “increase the cachet and prestige” of the products.

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

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

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

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

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

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

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

Steve Hantler

• Not sure you've got probable cause for your motorist stop? Why not just fabricate it? [Grits for Breakfast]


• California Attorney General Jerry Brown cracks down on a prolific filer of Prop 65 (toxic warning) cases, New Canaan, Ct.-based Clifford Chanler [The Recorder]


• Man mounts San Francisco rooftop with apparent "self-destructive" intent, rescue effort by firefighters fails, now family's suing the city [SF Chronicle]


• Why Mort Zuckerman says the law is the opposite of sex [Lattman, from offline New Yorker mag]


• Who's stirring the pot on client litigation against big law firm Hogan & Hartson? [Lat] Update: it's a former client [Turkewitz]


• Some top judges in Australia embarrassed after confessing activist leanings to an American academic who was writing it all down [The Australian]


• Cost of defending against a white-collar crime prosecution: seven figures if you're lucky [Lattman via Lat]


• New at Point of Law: chiding Supreme Court Chicken Littles, more on Canadian sovereignty and the Conrad Black trial, reasonable degrees of expert witness certainty, making litigation instead of steel, Michael Krauss criticizes Virginia Tech compensation fund;


• If you can't do something about the falling petals, maybe your flower shop shouldn't be in the train station [U.K. Telegraph]


• Illinois tells lawyers to hire a doctor to certify merit of med-mal claim, but permits that doctor to remain anonymous [three years ago on Overlawyered]

A judge has dismissed a case filed by five orphaned siblings against ABC Television based on the aftermath of their appearance on "Extreme Makeover: Home Edition". The Higgins siblings said they expected to wind up with a new home after the show's filming, but later disagreements with the couple who had hosted them, and who held title to the newly built mansion, led to their departure from the house. Awarding summary judgment, Judge Paul Gutman threw out the siblings' case against ABC, the reality-TV producers and the homebuilder, saying that their remedy, if any, could be only against the host couple, Phil and Loki Leomiti. (AP/ABCNews.com, Jul. 17). Our earlier coverage: Mar. 4, May 17, etc.

So contends a new literature survey from the social-conservative Institute on Marriage and Public Policy (Douglas W. Allen and Maggie Gallagher, "Does Divorce Law Affect the Divorce Rate? A Review of Empirical Research, 1995-2006", PDF, requires registration; "Split Decisions" (interview with Maggie Gallagher), Newsweek, May 23). New York, among the few states to have retained fault-based divorce laws, is considering a move to no-fault.

Courtesy of one of the winning attorneys, Overlawyered is the first to have the July 18 arbitration ruling on-line, which, as we reported earlier, rejected O'Quinn's affirmative defenses and finds that O'Quinn's overbilling and breach of fiduciary duties to his clients requires him to pay $35.7 million in damages plus interest and attorneys' fees. Not a great number of surprises in this if you've been following our previous coverage (Apr. 15, Jun. 9, Jul. 19), but there is one interesting disclosure: note how O'Quinn used $3 million of plaintiffs' money to surreptitiously fund a "Baylor study" on breast implants and make it seem like it was something other than a litigation-generated study.

Once again, let us note the irony that trial lawyers recognize the value of mandatory arbitration agreements, even as they wish to deprive other professions of the ability to use them.

Any event that wiped out $684 billion in shareholder wealth would be described by economists as disastrous. Congress would immediately order hearings, dragging the offending parties before the TV cameras and rushing to offer legislation to rectify the problem.

Yet $684 billion is the amount shareholders lose every year as a result of America’s out-of-control legal system – a figure released in a study by the Pacific Research Institute (PRI).

PRI’s Dr. Lawrence McQuillan examined prior economic “event studies” and determined that the median loss of market value due to a lawsuit was $3.86 million (in 2006 dollars). He then estimated that approximately 177,000 tort cases are filed against publicly traded companies in a given year – generating a yearly loss of $684 billion in shareholder wealth.

With the lawsuit industry booming, that might actually be a conservative estimate. Recent blockbuster cases – such as the litigation threat following Merck’s decision to pull Vioxx – wiped out $25 billion in shareholder value in a single day.

Of course, trial lawyers want us to think that only CEOs and Wall Street tycoons feel the heat from litigation-induced stock plunges. But the most recent figures from the Investment Company Institute tell us that nearly 55 million Americans own mutual funds – 60 percent of which earn less than $100,000 per year. Today, over 50 percent of Americans own stock, compared to just 17 percent in 1980.

The democratization of the equity markets over the past 25 years has extended stock ownership well onto Main Street – from families saving for their children’s education in popular 529 plans to middle class workers socking away retirement funds in their IRAs and 401Ks. Maybe Congress should order hearings after all – and make personal injury lawyers answer for abusing our legal system to pick the pockets of America’s investor class.

Steve Hantler

• Despite seeming majority support in both houses, conference committee on the Hill drops protection against lawsuits for "John Does" who report suspicious security behavior to authorities [PowerLine, Malkin; see May 11, etc.]


• U.K. town advises holders of allotment gardens: you could be liable if trespasser gets hurt vandalizing your trellises [Gloucestershire Echo; Cheltenham, Prestbury, etc.]


• School groundskeeper fired for illiteracy sues under ADA; suit's future may depend on whether he can allege underlying predisposition such as dyslexia [St. Louis Post-Dispatch, StLRecruiting]


• Large Pakistan bank should pay for my husband's murder, says Mariane Pearl in lawsuit [NYSun]


• Tell it to the EEOC, bud: Pennsylvania survey of law firm "diversity" finds plaintiff's firms lag well behind their business/defense counterparts when it comes to hiring minorities [Legal Intelligencer first and second pieces]


• Spare a tear for Gov. Spitzer, never realized public life would be such a rough and tumble affair [Kirkendall]


• Trail of bogus auto accidents and "runners" leads to West Orange, N.J. lawyer and his law firm, say prosecutors [NJLJ; related New Jersey report on insurance fraud, PDF]


• I'm interviewed re: the Giuliani announcement [Paul Mirengoff @ PowerLine] and publicity in National Journal is nice too [Blog-O-Meter]


• Two Australian grave owners sue for damages over loss of feng shui [Melbourne Age]


• You have to let me use your bathroom, I've got a note from my doctor [Robert Guest on Texas legislation]


• New at Point of Law: University of Alberta lawprof Moin Yahya is guestblogging this week on Conrad Black trial, extraterritoriality, antitrust, etc.


• Quadriplegic sues Florida strip club under ADA because its lap dance room not wheelchair accessible [five years ago on Overlawyered]

Houston plaintiff lawyer John O'Quinn has been ordered to refund at least $35.7 million to more than 3,000 former breast implant litigation clients, according to an arbitration panel decision released today.

With interest and attorneys' fees, O'Quinn could owe almost $60 million.

Overlawyered broke this story Apr. 15, and had a followup post June 9.

Why have some of the trial bar’s heaviest hitters in asbestos litigation infested Delaware – firms like including Simmons Cooper, Baron and Budd, and the Lanier law firm?

Why did the American Tort Reform Association (ATRA) place Delaware – which has always had a business-friendly reputation – on its “watch list” in the 2005 and 2006 editions of its “Judicial Hellholes” report?

One thing’s for sure – the trial bar’s legal talent isn’t circling Delaware because they love the state’s beautiful beaches.

The problem arises from a series of Delaware Supreme Court decisions that gave trial lawyers the green light to file hundreds of toxic tort cases. Out-of-state law firms are now busy turning Delaware into Ground Zero of the asbestos-litigation morass, but the overwhelming majority of plaintiffs have no connection to Delaware whatsoever. Approximately 80% of the plaintiffs in asbestos cases have never set foot in Delaware.

The numbers are startling. According to ATRA, in the year following May 2004 only 61 asbestos claims were filed in Delaware. But over the next 16 months, 272 asbestos cases were filed – a 345% increase. That number has now increased to 525 asbestos cases filed since May 1, 2005.

Due to this flood of lawsuits, the Delaware Superior Court has scheduled trials in as many as 85 cases to begin on a single day. The Court has also ordered defendants to try multiple cases in multiple courtrooms at the same time.

There are other warning signs. Delaware allows joint and several liability and has no limits on punitive damages. And newly-elected Attorney General Beau Biden is a former plaintiff’s asbestos lawyer.

Other states – such as Texas and Mississippi – have countered the flood of out-of-state lawsuits by enacting venue reforms – a measure that could help prevent the trial bar from turning Delaware into a “judicial hellhole.”

Steve Hantler

According to Robert Ambrogi of Legal Blog Watch, it may have been me (Jul. 16; more). I actually don't remember whether there were any other law-related blogs when I started out eight years ago. Pioneers like Eugene Volokh were at that point doing things on the internet, but not yet blogging. It's also possible that there might have been something going that is no longer published, so that Overlawyered might qualify as the oldest surviving legal blog.

Our very first post is here. For several days after that I believe the only reader was me, since I waited until a few posts were up before I began notifying friends about the site.

Also, David Giacalone contributes a haiku for the occasion (scroll).

Wilmington, N.C.: "The parents of a 16-year-old girl who recently married a 40-year-old former high school coach have filed a lawsuit against the Brunswick County Board of Education, saying school officials failed to protect their daughter." According to the school board, administrators at South Brunswick High School "closely monitored and limited" the apparent mentoring relationship between student Windy Hager and track coach Brenton Wuchae "but never found evidence of any romance." On Jun. 18 Wuchae resigned his position and married Ms. Hager. Superintendent Katie McGee stated the next day that "when dealing with tenured employees, suspicion alone cannot warrant dismissal." Now parents Dennis ("Bubba") and Betty Hager are suing the school for not doing more, and "have said they reluctantly signed a consent form allowing their daughter to marry her coach". (AP/WSOC-TV, Jul. 11; WWAY first and second reports; Brunswick Beacon; Wilmington Star-News; ABCNews.com)(via Above the Law).

Some in the news media and elsewhere would have us believe that recent legal reforms have made it a tough time to be a plaintiff’s attorney.

Sounds good, but nobody told that to the trial bar.

The fact is, tort costs in the U.S. jumped 46% in just the pasts five years. As noted in this space yesterday, a new study by the Pacific Research Institute reports that the total direct and indirect costs of lawsuits are a staggering $865 billion (for context, the U.S. spends only about $108 billion a year fighting the war in Iraq).

And one need look no further than a few headlines of late to see our lawsuit happy culture is alive and well. Everyone knows about the $54 million “pantsuit” -- that is but one of countless, lesser known meritless suits happening on any given day. Consider:

· “Injured Kid’s Mom Sues ‘Slide Fool’ Coach” A 12-year-old Little League player was injured sliding into second base and his mother filed a lawsuit claiming poor coaching.
· “Perfume Lawsuit.” A Detroit city employee is suing because she claims her co-worker’s perform makes her sick.
· “Cheerleader's family to sue school district” A Texas couple plans to sue their local school board because their daughter did not make the cheerleading squad.

You and I pay for these abusive lawsuits through higher consumer costs, higher taxes, lost jobs and stifled innovation. And the trial lawyers? With apologies to Mark Twain, rumors of their deaths have been greatly exaggerated. They are alive and well…just ask the Little League coach, the perfume wearer or the Cheerleading captain. I wonder who will be next?

Steve Hantler

"I know the vast majority of my fellow Yalies — even some with degrees in Film Studies — have productive, extremely well-paying jobs in some of the largest companies in the world. Or they’re lawyers." (Read the whole Instapundit post.)

On a $5 dare from friends, 13-year-old Justin Porter climbed 35 feet up an electric transmission tower. Who was to know such an adventure might prove dangerous? 19,700 volts later, his mother, Anna Thebeau, is suing the electric utility, Ameren, saying it should have fenced off the tower against trespassers, should have posted a big warning sign on it, should have designed it so that it could not be climbed up, and should have insulated the wires far overhead. (Jim Suhr, "Ameren asks judge to toss lawsuit over boy who fell from tower", AP/Bloomington, Ill., Pantagraph, Jun. 12; Steve Gonzalez, "Boy was negligent in climbing power pole, Ameren argues", Madison County Record, Jun. 11; Brian Noggle ("Because teenagers heed all signs and obey all posted rules"), May 13, 2005). More zapped pylon-climbers here and here (& welcome Michelle Malkin readers).

The Rudy Giuliani for president campaign this afternoon unveiled its Justice Advisory Committee, which will be advising hizzoner's campaign on issues of legal policy. It's headed by former Solicitor General Ted ("no relation") Olson, and boasts a really stellar array of practicing and academic law talent, including lawprofs Charles Fried, Steve Calabresi, George Priest, and Ronald Cass, former Southern District chief judge Michael Mukasey, and former Justice official Maureen Mahoney, among others. The full list is here (campaign site) or here (PowerLine).

And, yes, that's my name on the list too. I try not to clutter the site overmuch with my personal candidate preferences, but I find the former NYC mayor to be the clear standout candidate in this year's White House pack, despite my disagreements with a number of his stances in the past. Early interactions between the legal advisory committee and the candidate have further strengthened my confidence in the kind of leadership he'd provide in office.

That's enough for the moment, but I just wanted to give readers fair warning and a chance to discount/make allowances in case I happen to mention the various candidates and their doings as the political season proceeds. (& welcome NRO "Bench Memos", Andrew Sullivan, PowerLine, National Journal BlogoMeter readers. Also, here's an op-ed by the candidate).

P.S. Newsday has a story interpreting the whole thing as a Supreme Court short-list (which would truly make me the odd man out) but doesn't mention that most likely picks for the Court would be drawn from the ranks of sitting judges, whose names inevitably could not appear on a list like this.

Given the economic costs imposed by today’s legal system (a staggering $865 billion per year according to one recent estimate), it’s surprising more companies don’t take into account a state’s liability climate when making critical decisions like where to open a new plant or invest in existing facilities.

A new report could help change that.

Risky Business: The Annual Boardroom Guide to Litigation in the 50 States provides the first ever ranking of state legal environments that combines economic science, real world corporate experience and input from state legal reform experts – people with the most current intelligence from the front lines.

It builds on a few landmark studies, including the American Tort Reform Association’s “Judicial Hellholes,” the Pacific Research Institute’s U.S. Tort Liability Index, and the Institute for Legal Reform/Harris Interactive survey.

So where are the soundest states – and where is the swampland?

Nebraska and Virginia top the list with the best legal climates. What do they have in common? Reasonable limits on punitive damages, a “rule of law” majority on the state Supreme Court, and Attorneys General who specialize in law enforcement, not grabbing the spotlight at the expense of businesses.

In stark contrast, West Virginia, Rhode Island and Florida round out the bottom of the list. All have activist Supreme Court majorities who consistently rule in favor of trial lawyers. West Virginia has a governor who supports legal reform – a reminder that having a pro-reform governor does not necessarily translate into a sound legal environment.

To see the full list go here.

Steve Hantler

• Judge Bartnoff declines to reconsider decision against Roy Pearson in dry cleaner pants case [AP/WUSA]


• Turnabout fair play? Louisville hospital sues trial lawyers, saying they injured its reputation and tried to extort settlement [Courier-Journal]


• Employer sued for "post-traumatic stress disorder" after pranksters post co-worker's profile on gay section of HotOrNot.com [McCullagh, CNet]


• Former Belleville, Ill. cop sues over prosecutor's letter suggesting his testimony not to be relied on [M.C. Record]


• British race relations agency demands removal from shelves of Tintin comic book [Telegraph]; 22-year-old in Scotland sentenced for "racially aggravated breach of the peace" after website commentaries that went "beyond the realms of bad taste" [also Telegraph]


• Farewell to that little patch of floating liberty, the South Carolina river shack [Zincavage]


• Hey docs: if a plaintiff's law firm calls your office to talk about a former patient, don't call back [Medical Economics via KevinMD]


• Yale Club replies to Judge Bork's lawsuit [Turkewitz]


• Arizona businesses aghast at hiring-sanctions law that suspends their license to operate should supervisor be found to have hired an illegal [Arizona Republic]


• Grants from Bob Barker foundation (Jul. 5, 2001) help fuel animal rights boom in law schools [NLJ]


• University of Utah settles lawsuit brought by devout Mormon student actress who refused to recite dramatic lines that were blasphemous or obscene [three years ago on Overlawyered]

Next up in this summer's series of weekly guest bloggers is something new for us: a prominent voice from the business community. Steven Hantler, Assistant General Counsel for Government and Regulation at DaimlerChrysler, directs the automaker's class-action, consumer-litigation and litigation-communications functions; outside the company he's known as a tireless advocate for lawsuit reform, on which he's become a veteran of state legislative initiatives and electoral battles. While new to blogging (so far as I'm aware), he's the author of numerous articles in law reviews and more popular outlets, most recently in the magazine Directorship where he rated and assessed the fairness of each of the fifty states' court systems from a litigation defense point of view (PDF). He's also closely associated with the American Justice Partnership, which has links to many of his writings and speeches.

Also, and entirely unrelated to the above, check back tomorrow afternoon, Tuesday, for an announcement which may be of interest to some readers, especially those of a political bent.

A school board upheld the superintendent's decision to hold the junior varsity cheerleading squad at Yorktown High School in Texas to six members, which meant there was no space for the seventh hopeful, incoming freshman Wycoda Fischer. Now the Fischer family's lawyer, Lisa Duke of San Antonio's Anderson & Duke, says the family is preparing court action to get their daughter on the squad. "We have no other option but to move forward with the lawsuit." "No other option," of course, being in this case lawyer-speak for "looks like we aren't going to get our way otherwise". (Sonny Long, "Cheerleader's family to sue school district", Victoria Advocate, Jul. 12; Nota Bene, Jul. 13). More cheerleader suits here, here, and here.

Video resumes have been achieving a certain popularity lately among some job seekers, even beyond fields such as graphics and Web work where skill in video editing and presentation itself counts as a job qualification. Novices are finding it easier to get into the act as online job bazaars such as Jobster, CareerBuilder and Vault begin to offer ways of creating and disseminating video resumes.

Many labor and employment attorneys, however, are warning employers that video resumes open up too many liability issues to be comfortably accepted:

"Just don't even deal with them," said Dennis Brown, an attorney in the San Jose, Calif., office of Littler Mendelson whose firm recently advised employers about the dangers of video resumés in a seminar. "My advice to my clients who have asked me about video resumes -- and I have had a lot of clients ask lately -- is do not accept, do not review video resumes."

Brown's main concern with video resumes is that they reveal information about a person's race, sex, disability, age -- all details that could wind up in a discrimination lawsuit.... "This is one of those instances where a little bit of unnecessary knowledge is dangerous." ...

Labor and employment attorney Darlene Smith can't fathom why employers -- knowing the risks of video resumes -- would willingly open themselves up to lawsuits. "Actually, I'm dead set against it, to be honest," said Smith of the Washington office of Boston's Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. "You definitely, definitely increase your exposure...so why even put yourself in a position to be sued?"

And similarly from Cheryl Behymer of Fisher & Phillips in Atlanta: "You're opening yourself up to a potential that someone could claim, 'Well, the reason I didn't get hired is because you could see my gray hair and you could see that I'm over 40.'"

As for the federal Equal Employment Opportunity Commission, it may come as a relief to learn from an EEOC staff attorney that the agency does not consider video resumes a legal violation in themselves. However, it's "concerned" that they "could contribute to hiring discrimination", says the attorney. Other EEOC "concerns", per the NLJ's Tresa Baldas: "video resumes could also lead to the exclusion of people who are not tech-savvy, or minority applicants who may not have access to broadband-equipped computers or video cameras." ("Employers told to stay away from video resumes", National Law Journal, Jun. 4, not online).

The left-wing websites parroting Senator Durbin's demand for a return to the bad old days of the Fairness Doctrine might want to consider the slippery-slope repercussions; as Rasmussen reports, "Thirty-four percent (34%) believe the government should 'require web sites that offer political commentary to present opposing viewpoints.'” More: Fred Thompson, Brian C. Anderson, Jesse Walker, John Berlau, Mike Franc, Adam Thierer. Bush has stated that he would veto any such measure.

• Reversing course, Rhode Island attorney general drops rape charge based on 32-year-old "repressed memory", thus disappointing some advocates [Volokh; Jul. 10]


• Massachusetts disciplinary panel files misconduct charges against Judge Ernest Murphy over the "bring me a check and keep quiet" surrender-Dorothy letter he sent to Boston Herald publisher during his (successful) libel suit [Ambrogi; Dec. 23, 2005, May 11, 2007, etc.]


• California jury rejects tippling speeder's lawsuit against landowner, automaker, town, etc. in the case we headlined "Shouldn't Have Put Its Berm Where He Wanted To Skid" [Dec. 24, 2005; Douglas Domel v. DaimlerChrysler Corp., City of Santa Clarita, and Does 1 to 50, inclusive (PC030045Y), L.A. Superior Court, L.A. Daily Journal, no free link]


• Nominal damages only against German teens accused of scaring ostrich into impotence [UPI/ScienceDaily; Mar. 6]


• Dubious bill authorizing lawsuits against OPEC may be headed to President's desk [W$J/CattleNetwork; Jun. 8]


• Jury convicts press baron Conrad Black on four counts, acquits on nine [Telegraph; Kirkendall, Bainbridge, Ribstein; Mar. 19, Jun. 5]


• Michigan Supreme Court reinstates reprimand against Geoffrey Fieger over abusive language [NLJ; Jul. 3, Aug. 2, 2006, etc.]

Our thanks to Ron Coleman who enlivened the site this week. His posts have stirred considerable comment around the blogosphere, especially the one on Rachel Corrie's family's suit against Caterpillar, discussed by (among others) Prof. Bainbridge, Jonathan Zasloff, Megan McArdle, and Zasloff again.

And stay tuned as another guestblogger is on deck to join us in the coming week.

Husain v. Springer (2d Cir. 2007): A silly dispute over a university student election results in federal litigation, and a 44-page decision over a suit where the only remedy sought is $2 plus attorneys' fees; the district court threw it out, but the Second Circuit, in a 2-1 decision, restores part of the case for further litigation. Neither Chief Judge Jacobs nor Professor Bainbridge is impressed, nor is Eugene Volokh, though he takes issue with the tone of the separate opinion, as Judge Jacobs states that he did not read the majority opinion as a waste of time. The concluding paragraph of the Jacobs opinion:

This prolonged litigation has already cost the school a lot of money that could better have been spent to enrich course offerings or expand student day-care. If this case ends with a verdict for plaintiffs (anything is possible with a jury), the district court will have the opportunity to consider whether the exercise merits an award of attorneys’ fees in excess of one-third of two dollars.

The majority opinion itself takes the strange position that a university's cancelling of student elections in response to a student newspaper's violation of election rules by using student-activity funds to endorse specific candidates "chills speech" and thus violates the first amendment.

So on the eve of the Sabbath (for me), I end my week of guest-blogging offering conceptually loftier reporting of loftier, if heretical, overlawyering of a Central European kind (hat tip to a blog called Religion Clause).

Now, we all remember this popular number from law school -- United States ex rel. Gerald Mayo v. Satan and his Staff ("Mayo"), the guy who unsuccessfully sued The Prince of Lies (instead of hiring one) in federal court. Now a court in Timisoara, Western Romania, has dismissed a lawsuit purportedly against God Himself by Mircea Pavel, 40, who is serving 20 years in prison for murder. He has some issues, only not justiciable ones, it seems. The English is Interfax's, and their regular English-speaking guy seems to be in the Catskills this weekend, so let's work our way through this together, with Defendant's help:

Failing to [receive an] answer [to] his prayers, the prisoner sued the [sic] God for "fraud, betrayal of trust, corruption and influence peddling."

Pavel brought charges against "the defendant God, who lives in the heavens and is represented in Romania by the Orthodox Church," the Evenimentul Zilei daily reported.

According to the act [lawsuit?], during the baptismal service he "drew a conclusion with [entered into a stipulation with?] the defense" to rescue him from any disaster.

"But the contract's terms were offended [breached], despite of [sic] my payment in different forms and numerous compellations by way of prayers," Pavel said in his lawsuit.

Eventually the court dismissed the case, ruling that "God is not subject to law and does not have an address."

But the subject matter jurisdiction point is well taken. There may be other problems with the alleged contract, including most of the grounds for dismissal relied on in Mayo. Also: Pavel's capacity to enter into a contract (Orthodox baptism is done in infancy); the statute of frauds (or its Soviet-era Romanian equivalent) on several counts; and, of course, in a suit against God, there must always be recourse to the defenses in equity -- the plaintiff, the murderer Pavel, comes to court with some very unclean hands.

Give Pavel credit, though, and not just for going after the deep pockets. He believes God had a role in his misfortune, even if, perhaps, he has failed to name an indispensible necessary party -- namely Mircea Pavel.

--

Thanks for hosting me! It's been a pleasure. Stay in touch at my law blog, LIKELIHOOD OF CONFUSION®, or the entirely more wide open Likelihood of Success.

Reuters reports on a nuvo-media catfight -- and just look who the cat drags in:

Google Inc. took a swipe at media conglomerate Viacom Inc., which is suing the Internet search leader and its video sharing site YouTube for $1 billion over "massive copyright infringement."

Google Chief Executive Eric Schmidt, speaking with reporters at a hotel bar at the 25th annual Allen & Co. moguls meeting, said litigation was the foundation of the company that owns the MTV Networks, Paramount movies studio, and video game developer Harmonix.

"Viacom is a company built from lawsuits, look at their history," Schmidt said on early Friday.

Laurie Lin reports on one way to cut down on lawsuits, being mooted in Wisconsin -- close down the University of Wisconsin's law school.

It is to laugh, no? And yet, considering that it is a publicly-funded institution, the "need" for more legal education, in a situation of glut, is a reasonable factor for the legislature that does the funding to consider, isn't it?

"Ladies' night" at the local tavern -- sometimes it's every night; sometimes it's during certain hours -- the idea is, the more females in the establishment, the better the "atmosphere" for the guys who pay for all the drinks anyway. So there's no cover charge for women, or free drinks, or whatever. (Okay, so some of us don't know so much about how bars work.) The point is it's an economic calculation that no one really complains about because, after all, the guys like a nice "atmosphere." Of course, lots of us have wondered if it's really legal that girl elbow-benders don't pay and boys do, but no one really thought it was something anyone was going to kvetch a court about.

Until now:

New York attorney Roy Den Hollander, a solo practitioner for more than 15 years who deals primarily with civil litigation and corporate governance, has filed a class action against certain Manhattan nightclubs for "invidious discrimination" against men in their policies for admitting patrons....

Hollander says he attended each of these venues on nights when they held promotions offering women either free or reduced fees, shorter waiting periods, or longer windows for free or reduced admission that were not available to men.

"It's either more money, more time or more burdensome," said Hollander of the difficulties men face in gaining admittance to nightclubs...

Hollander also foresees an "uphill battle" in classifying the action as invidious discrimination, since he is arguing on behalf of men and not women, whom he says the U.S. Supreme Court has given "preferential treatment for past invidious, economic discrimination."

"Whether this case succeeds or fails," says Hollander, "it will result in a much needed victory for men."

Unless, perhaps, you're like Roy Den Hollander, and prefer drinking alone, or otherwise without having to wait for the distaff-side customers to be served sooner. Or cheaper. Or less burdensomely. Maybe Roy Den Hollander just doesn't appreciate "atmosphere."

Not that there's anything wrong with that.

The signs at the New Tampa Little League field are clear: Please practice good sportsmanship at all times.

League officials say one parent has missed the message, and they've asked him to leave the park more than once.

But that parent also happens to be a lawyer for one of the largest law firms in Florida. Now he's alleging that the New Tampa Little League defamed his character in front of parents, friends and clients, and he has hinted strongly at legal action.

Fred Grady, 47, a construction lawyer for Holland & Knight in Tampa, sent league president Monica Wooden a letter on Holland & Knight stationery. The letter, dated June 11, says the league officers' actions and accusations damaged him. Pursuant to state law, the letter gives Wooden 30 days to send him a copy of the league's insurance policies and coverage.

That letter capped off a series of e-mail exchanges between Grady and Wooden in which Grady repeatedly asked for a letter of apology from Linda Harrell, a league director who ordered him off the field on April 28. Grady wanted the letter sent to all parents, players and coaches on his son's team, and he wanted it in time for the end-of-the-season party so he could read it aloud, Wooden said.

"I'm all about principle," Wooden said. "But I'm not going to patronize some guy who needs something for his self-gratification."

When Grady didn't get the letter, he sent Wooden the e-mails.

"If NTLL decides or has decided the Director acted outside of her scope of authority then so be it but that issue will NOT be determined by me, but rather by a judge or jury if this matter proceeds," said one e-mail bearing Grady's name.

Another read: "If the NTLL is not prepared to resolve the matter along these lines then I will have no other choice but to take legal action against NTLL and Ms. Harrell individually."

Grady requested the name of the league's lawyer: "I assume NTLL does not have LOCAL counsel? Perhaps NTLL should consider retaining a local attorney."

The firm says the use of letterhead was appropriate because the firm had been engaged. (Dong-Phuong Nguyen, "Makings of a major-league fuss", St. Petersburg Times, Jul. 7 (via Kirkendall)). Recent litigious parents: May 21; May 3; April 2006; Dec. 2005; Sep. 2005; Jun. 2005; Feb. 2005; Mar. 2004.

...has requested reconsideration of the decision against him, and has filed a delusional brief in support. Rest assured his damages claims are more reasonable than before: he is now seeking only $35 million in damages.

The Chamber of Commerce fundraiser for the Chungs' defense fund to pay $83,000 in attorneys' fees defending against this suit is July 24.

Water pistols would be included if they looked realistic, and, according to a critic of the bill, parents might be breaking the law, which carries prison penalties, just for giving their offspring one of the forbidden playthings as a gift. Several states have already enacted similar bans. (7Online/WABC, Jul. 11).

More on the story Walter only teased us with earlier today: The Associated Press reports on the fall of a mighty class action plaintiffs' lawyer -- the managing partner and third name in the firm now known only as Milberg Weiss:

A former partner of a major New York law firm pleaded guilty to conspiracy Monday in connection with kickbacks the firm is accused of paying to plaintiffs in class action and shareholder lawsuits.

David J. Bershad, 67, of Montclair, N.J., pleaded guilty in federal court to one count of conspiracy that includes obstruction of justice and making false statements under oath.

Standing next to his attorney in a federal courtroom, Bershad agreed with the prosecution's contention that he was involved in a scheme that would secretly pay a portion of attorneys' fees -- usually about 10 percent -- to plaintiffs involved in class action and shareholder lawsuits.

Prosecutors believe the firm, now known as Milberg Weiss, received more than $200 million in fees from such lawsuits filed over the past 20 years. Bershad was responsible for overseeing the firm's accounting department and financial affairs....

In the plea agreement reached late last week, Bershad also agreed to forfeit $7.75 million, to pay a $250,000 fine and to cooperate in the government's ongoing investigation.

Bershad could face up to five years in federal prison when he is sentenced on June 23, 2008.

Here is the stipulated statement of facts in support of the plea agreement, from the Law Journal. If you have trouble following what he did wrong -- the rules regarding class actions and fees are fairly arcane -- in short, if you represent a class, you're not allowed to secretly share attorneys’ fees with favored class members. Such payments create conflicts of interest between the paid plaintiffs and the rest of the class members the lawyers represent. As the statement says:

By entering into such secret payment arrangements, BERSHAD and the other Conspiring Partners were able to secure a reliable source of individuals who were ready, willing, and able to serve as named plaintiffs in Class Actions that Milberg Weiss wanted to bring. In addition, some of these individuals would investigate and propose to BERSHAD and other Conspiring Partners potential Class Actions for Milberg Weiss to bring. Such payment arrangements generally enabled Milberg Weiss to file more Class Actions and to file them more quickly than would be possible absent such arrangements. Filing Class Actions more quickly than other competing plaintiffs’ law firms enhanced Milberg Weiss’s ability to obtain lead counsel status in cases, before and after the passage of the Private Securities Litigation Reform Act of 1995. Lead counsel generally obtained a larger share of the attorneys’ fees awarded in a Class Action than other counsel.

So, how long will this 67-year-old man sit in jail? I imagine he had something more like Miami in mind. But it could get even hotter -- for his partners. Bershad is surely going to spill his guts even more. As the story continues:

Legal experts believe Bershad's plea appears to be an effort to reduce his possible prison sentence in exchange for testimony.

"He didn't want to stand trial for this and by cooperating he believes he will be able to get a better deal," said Carl Tobias, a law professor at the University of Richmond. "The bigger issue is how much does this help the government's case?"

In its statement Monday, the firm said: "We remain confident that [Mr. Bershad's] actions will have no effect on the firm's commitment to its clients and its ongoing work to protect public shareholders and consumers."

Applying Washington state disability-rights law, the Ninth Circuit has ruled that an employee's "violent and profane" outburst to supervisors may be a protected manifestation of her bipolar disorder and thus not grounds for termination. Although the court cautioned that not all disability-induced misconduct should be seen as protected, it ruled that the law protects "manifestations" of a mental or physical disability just as it protects the disability itself (Gambini v. Total Renal Care, opinion in PDF format; HR.BLR.com, Jun. 11; Workplace Law Prof, Jun. 15). For more on the Ninth Circuit and disabled-rights law, including some misconduct cases, see Oct. 7 and Oct. 14, 2003; Oct. 12 and Dec. 6, 2006, Mar. 23, 2007. For a contrasting Massachusetts case, see Jun. 28, 2006.

To stockbrokers who could help bring in plaintiffs, Milberg Weiss could be very nice. (Parloff, Jul. 12)(cross-posted from Point of Law).

A Korean report says that country's developing economy is starting to look very familiar:

It is no exaggeration to say that Korea is the “heaven of lawsuit” as the number of criminal charges and civil suits in the country is 155 times and six times higher than that of Japan, respectively.

People tend to go to court even at a slightest provocation as they institute a suit to retrieve money even if they had not signed any written contract and file for criminal charges when the case can be resolved in a civil suit.

“Although over 600,000 people are being charged each year, a significant number of cases are dropped as they cannot be considered as a crime. We cannot overlook the seriousness of the current legal situation as over-issued charges are perturbing prosecutors from inspecting more crucial cases such as bribery,” said Shin Kyeong-sik, the head of planning department at the Supreme Public Prosecutor’s Office.

In today's Journal, an article by the people behind Medical Justice:

In 2002, we launched Medical Justice, a membership-based organization designed to complement tort reform and to head off frivolous lawsuits. Medical Justice pays the bills and provides the services to file countersuits against all proponents of meritless lawsuits....

Our service has two principal components. First, we look at the quality of so-called expert-witness testimony. Behind every frivolous lawsuit there is an "expert" -- usually a physician skilled in testifying before juries and often compensated to the tune of $10,000 dollars a day. Put bluntly, many of these "experts" are frauds, as this newspaper has repeatedly shown in cases regarding asbestosis and silicosis claims....

Medical Justice's second tool is a patient-physician contract. That contract states that in a legitimate dispute, both sides will utilize only those experts who belong to such societies and who strictly follow their code of ethics. This limits the list to reputable and accountable physician experts, thus precluding the use of hired guns or medical "witnesses having other rational explanations" -- better known by their acronym.

Does it work? Yes. After five years of collecting data, we know that Medical Justice plan members are sued at a rate of under just 2% a year. The average doctor is sued at a rate of 8%-12% per year. And the company is top heavy with physicians in "high-risk" specialties.

Further, when meritless cases are filed against plan members, generally they're dropped quickly....

Finally, the system works because we back our words with deeds by taking action against proponents of frivolous suits. In a sense, Medical Justice has created a contract-based "loser-pays" paradigm. We have helped over a thousand physicians who are tired of being victimized by a system that doesn't prevent collateral damage.

Although the New York attorney general had already extracted $3 million in penalties on the charges, a jury returned a defense verdict in a class-action suit charging that Macy's and other department stores conspired to fix the price of high-end tableware. Plaintiffs admitted they had no direct evidence of a conspiracy and jurors in San Francisco federal court declined to infer one. Manufacturer/defendant Lenox had already paid $500,000 to be let out of the case.

What was truly unusual about the case, however, was that it went to trial at all, given the pressure to settle on defendants in such situations:

Antitrust attorneys say the verdict was remarkable if only because the case made it all the way to trial.

"In terms of a price-fixing class action going to trial, I honestly can't think of one," said James McGinnis, a partner at Sheppard, Mullin, Richter & Hampton, who briefly represented May Department Stores, one of the defendants, at an early stage in the case.

Usually, said lawyers on both sides of the bar, a combination of sky-high financial risks and the prospect of criminal prosecution is enough to encourage a settlement. Defense attorneys, for example, may not want to lay all their cards on the table in a civil case while prosecutors are watching.

(Matthew Hirsch, "Macy's Beats Antitrust Price-Fix Rap", The Recorder, Jul. 5).

The many warnings on a curling iron. (DrugNazi, Jul. 7)(more on warning labels).

The quota pressures of the federal Title IX law have resulted in the axing of hundreds of men's college sports teams, and now activists are preparing to intensify their legal campaign at the high school level, reports Jessica Gavora:

At the center of the pro-quota activists' marching orders for Congress today is something called the "High School Sports Information Collection Act." It's modeled after the Equity in Athletics Disclosure Act (EADA), which for a dozen years has forced colleges and universities to annually report their athletic participation and expenses — broken down by sex — to the feds. The EADA was meant to be, and is, a one-stop-shopping list for trial lawyers and activist groups looking for schools to sue for failing to meet the Title IX quota. Now, courtesy of Senators Olympia Snowe and Patty Murray, they are about to have the same litigation hit list of high schools.

In a year in which Rutgers, James Madison, Ohio University, Butler, Clarion, Slippery Rock, and Syracuse have eliminated hundreds of men's roster spots in full or in part due to Title IX, we have yet to see — thankfully — boys' high-school teams eliminated under the law. But we are beginning to see boys athletic opportunities be limited due to Title IX quota creep in high schools.

(Jessica Gavora, "Title IX Trickle-Down", National Review Online/CBSNews.com, Jun. 20)(broken link now fixed).

Hierarchical government a pain? Separation of powers getting you down? Not a problem! Not if you'd rather be in Philadelphia:

Two Philadelphia City Council members plan to file suit against the state House and Senate Wednesday for preventing the city from passing more restrictive gun laws.

Council members Donna Reed Miller and Darrell Clarke called the city's surging homicide rate in part a "state-created danger."

Lawmakers have tied the city's hands by not giving it the authority to limit gun purchases to one a month and require lost or stolen guns to be reported, according to Miller.

Quaker State indeed.

Now this is the sort of thing likely to be of interest to some of our readers: the philanthropic Searle Freedom Trust concentrates on U.S. domestic policy and "aims to foster research and encourage public policies that promote individual freedom and economic liberty". It

seeks to pursue its mission through new media and invites interested parties to submit applications for grants of up to $250,000. All ideas are welcome and will receive consideration. ...

Proposals that may hold particular interest include fellowships for bloggers who focus on government spending, tort reform, or problems in higher education; projects that encourage emerging filmmakers and video producers and help them develop their talent; and podcasting.

Proposals must be submitted by October 1 and are being handled by John J. Miller, for whose bona fides we can vouch. (cross-posted from Point of Law).

"A discrimination lawsuit filed by a Muslim Dunkin' Donuts franchisee who was not allowed to renew his contract with the chain because of a refusal to sell pork products can proceed, a U.S. appeals court ruled Tuesday." For many years the donut chain had permitted Walid Elkhatib to refrain from including bacon, sausage or pork in breakfast sandwich offerings, because of religious scruples, but in 2002 it insisted that he carry the line with meat included, and he sued on religious-discrimination grounds. According to the coverage, Circuit judge Ilana Diamond Rovner apparently found it significant that the donut chain had allowed some franchisees in the area not to carry the breakfast sandwiches, for reasons that included, e.g., limited space. It sounds, though, as if the deal that Elkhatib wished to carry forward was somewhat different: he wanted to go ahead and keep selling the sandwiches without putting meat in them, which would presumably have implications for what franchising strategists call the consistency of the customer experience. ("Muslim Dunkin' Donuts Owner Can Sue Over Pork, Appeals Court Says", Reuters/FoxNews.com, Jul. 10; Samuel Estreicher and Michael J. Gray, "Religion and the U.S. Workplace", Human Rights Magazine (ABA), Summer 2006)(& welcome Michelle Malkin readers).

WSJ law blog has more details on Judge Roy Pearson's plan to file for a reconsideration of the verdict against his pants suit, and also has a copy of the Chungs' motion for attorneys fees, of which they've now racked up $83,000 (Lattman, Jul. 6).

They didn't tell me guest-blogging at Overlawyered would be an autopilot proposition, but thanks to James Taranto, it is -- complete with a law professor to do the work for me:

The family of a woman killed trying to prevent the demolition of a Palestinian home in 2003 asked a federal appeals court panel to reinstate its lawsuit against Caterpillar Inc., saying the company knew bulldozers it sold to the Israeli government were being used to commit human rights violations.

"Caterpillar sold this product knowing — or it should have known — it would cause exactly this harm," one of the family's lawyers, Duke University law professor Erwin Chemerinsky told the three judges from the 9th U.S. Circuit Court of Appeals on Monday.

This could be one even the Ninth gets right. Meanwhile,

Corrie's parents said after the hearing that they have been carrying on their daughter's work since she died.

"You can't go back to the way things were before, so you determine a path forward," Cindy Corrie said.

The important issues challenging our society remain at the forefront of the class action bar:

Microsoft has been targeted by a $5m (£2.5m) lawsuit over its Xbox 360 console and the infamous yet almost forgotten scratched disc saga. There have for a long time been many rumours about the Xbox 360 scratching game and movie discs.

A growing number of Xbox 360 customers are reporting having problems with their disc's getting scratched by the DVD drive when switching the unit's position from vertical to horizontal and vise versa.. Initially we thought this was the usual fanboy vs. hater propaganda that swirls around the launch of any new console like this. It didn't take long until the seriousness of the situation...

On the other hand, there's always the Old World, ever eager to distract from its own coming demographic obsolescence by beating up on that most American of companies, Microsoft. Yes, less than a month ago word got out that the EU lean was on Microsoft to address the problem -- which Microsoft seems grudgingly to admit to.

One month: That's about long enough to read the story, do some research, find a lead plaintiff, and file the lawsuit. So foes of the class action can thank the European Union for this one. Considering the "popularity" of Microsoft on either side of the pond (right up there with plaintifs' lawyers), not much sympathy is to be expected. But this is an interesting exercise in how the once-forgotten can, in the new global economy, still be resurrected, as long as the statute hasn't run.

In a hard-hitting series last month, the Washington Post investigated the enduring calamity that is the Washington, D.C. public school system, which persistently ranks at or near the bottom among the nation's leading cities. (Dan Keating and V. Dion Haynes, "Can D.C. Schools be Fixed?", Jun. 10; April Witt, "Worn Down by Waves of Change", Jun. 11)(via Frum). Along with familiar problems of cronyism, mismanagement and undislodgeable incompetents, there is another persistent theme: "Reformers' lawsuits have backfired, time and again." For instance:

The activist group Parents United for the D.C. Public Schools tried to force city officials to help the schools in 1992 by suing over fire code violations in dilapidated buildings. Members thought they were helping [Superintendent Franklin L.] Smith by forcing Mayor Marion Barry, the D.C. Council and Congress to pay to rebuild the schools.

Instead, D.C. Superior Court Judge Kaye K. Christian closed schools with fire code violations. The suit dragged on for years. It contributed to the 1996 ouster of Smith, a favorite of Parents United activists. ...

"In our wildest imaginings, we never thought this would happen," Delabian Rice-Thurston, then executive director of Parents United, told The Washington Post the day Smith was fired. "The whole thing -- the lawsuit, the court dates -- it all backfired. Be careful what you wish for; you might get it."

And then this, on special ed:

[Former superintendent Arlene] Ackerman balked when she discovered that the school system was paying millions of dollars annually to lawyers representing special education students who had successfully sued for better services. A lawyer sending a short form letter setting up a meeting might bill the schools $450, she said. Ackerman persuaded Congress to cap the amount lawyers could bill the schools at $80 an hour, she said.

Instead of winning plaudits for saving money, "you would have thought that I was responsible for World War III," Ackerman said. "I started getting pressure -- 'we don't need to get a cap,' 'this is not fair' -- and I mean from all parts of the community. Somebody said to me these were trial lawyers who support certain politicians."

Ackerman was summoned to meet with [Anthony] Williams, by then the mayor, about raising the cap. She resigned before the meeting took place, and her initiative was soon rolled back, she said. Williams, in a recent interview, conceded that he "might have caved in" to political pressure even though he fundamentally believed Ackerman had been right to limit money spent on lawyer fees that could have gone to classrooms.

Overall, the Post reports, special-ed lawsuits

wound up forcing the system to spend about $120 million a year to pay private tuition for 2,400 students out of a system of 55,000, plus $75 million for special education transportation. That left less money to fix the system's own inadequate special education programs that sparked the lawsuits in the first place.

The Rhode Island attorney general's office has charged a man with rape based on a memory "repressed" by the complainant "until recently". Harold Allen of Narragansett, 48, at the time of the alleged incident was sixteen years old, as was the complainant. Allen has pleaded not guilty, and through his attorney says he never had relations with the woman, though he was acquainted with her. There is no statute of limitations on the charge of first-degree sexual assault. ("Man charged with rape 32 years later", AP/EyewitnessNews, Jun. 14; Volokh, Jul. 3).

You can make these things up -- economists do it all the time -- but it's a lot more compelling when they really happen (link added):

An influx of doctors lured to Texas by new limits on malpractice lawsuits has overwhelmed the state board that screens candidates for medical licenses, creating a backlog that forces many applicants to wait months before they can start seeing patients.

Officials said many of the relocating physicians are filling shortages in areas such as Beaumont, where trauma patients previously had to be flown other cities because there weren't enough surgeons to treat them.

(Italicized part added:)This sounds like great news -- more doctors coming back into the system. But who knows? Chances are the plaintiffs' bar can find a way to spin this as an ominous development -- the return of the malpracticers. Now it's entirely possible that this represents an influx of marginally competent doctors who can't afford to practice elsewhere because their malpractice premiums are justifiably sky-high. As it is, the article in the Houston Chronicle quoted above says that a simple background check takes 41 days -- hence the huge bottleneck -- and that more complex histories such as those of veteran or out-of-state doctors will take correspondingly more time. So it doesn't seem as if the Texas regulatory authorities are lowering the bar too too low.

Indeed, any supply-and-demand interplay where the market is allowed to be distorted by an industry like the insurance business, whose operations seem to defy normal ways of doing business and which is itself hopelessly regulated, is going to be hard to predict.

But in fact, one thing that happened shortly after Texas's Proposition 12 was passed is that malpractice insurance rates started dropping almost immediately. That's consistent with reduced financial exposure, but certainly not with an influx of incompetent physicians coming to the "market" (i.e., seeking medical malpractice insurance). The pushmepullyou of the interplay between these things is the sort of thing that makes insurance underwriters such exciting company at a weenie roast, so I won't even try to have at it.

Again, in any event, this is a stunning example of the invisible hand at work. But surely there is a down side, and not only to med-mal plaintiffs' lawyers? Of course: Med-mal plaintiffs themselves, who no longer can play in the Texas state court injury lottery. That doesn't mean other personal injury plaintiffs can't, unfortunately. But one step at a time.

God forbid anyone reading this or their loved one should be in a position to be seeking damages, economic or otherwise, for medical malpractice. But short of the argument that, well, higher non-economic damages should be available just because they should -- or proof, in ten years, that there's more malpractice in Texas than there was before because of the influx of quack doctors attracted to the free bread crumbs of "easy" med-mal limits -- this quacks like a policy that works.

But first, a greeting, and a thank you to the Overlawyered boys for inviting me to guest-blog this week. I'm Ron Coleman, proprietor of the LIKELIHOOD OF CONFUSION® blog on trademark, copyright and free speech law, and a contributor to Dean's World and other things. In short, I love practicing law so much that I spend most of the day blogging.

So much for self-promotion (if you can call it that) -- now to the promotion of animal cruelty -- it's all the rage, after all:

A new state law against fighting roosters violates a treaty that ended the Mexican-American War, a cockfighting association claims in a lawsuit.

The New Mexico Gamefowl Breeders Association and six businessmen argued that the law infringes on rights protected under the 1848 Treaty of Guadalupe Hidalgo, which made New Mexico a U.S. territory.

The lawsuit contends the treaty guarantees civil, political and religious rights, privileges and immunities to the people of New Mexico.

Many of the association's 2,000 members "are devoted to rural lifestyles, of which gamefowl breeding and-or participating in gamefowl shows and fights are, in New Mexico, long-standing, culturally bound and significant activities," the lawsuit said.

Cockfighting is a centuries-old blood sport in which two or more specially bred birds, known as gamecocks, are placed in an enclosure to fight, for the primary purposes of gambling and entertainment. A cockfight usually results in the death of one of the birds; sometimes it ends in the death of both. A typical cockfight can last anywhere from several minutes to more than half an hour.

The birds, even those who do not die, suffer in cockfights. The birds cannot escape from the fight, regardless of how exhausted or injured they become. Common injuries include punctured lungs, broken bones, and pierced eyes. Such severe injuries occur because the birds' legs are usually fitted with razor-sharp steel blades or with gaffs, which resemble three-inch-long, curved ice picks. These artificial spurs are designed to puncture and mutilate.

Okay, so what's the legal theory again? Oh, yeah, that's right: This novel civil right -- the right to engage in any "long-standing, culturally bound and significant activities" -- is enshrined in the Treaty of Guadalupe Hidalgo. Well, here's the Treaty: You see the clause guaranteeing the inalienable right to "long-standing, culturally bound and significant activities"?

No? Okay, well how about just the piece about roosters? Any specifications for ice picks?

Me neither. The only thing I remember about the unlikely juxtaposition of ice picks and Mexico is a certain unpleasantness involving some murderous Bolsheviks. Now, we saw then that "breaking a few eggs" can be unpleasant, but these poor chickens deserve better. Plaintiffs in this lawsuit, however, don't.

UPDATE: Wow. There's more to this civil right than I thought!

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


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


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


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


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


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


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


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


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


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


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

• RIP, Ladies Nights in Denver [Denver Westword; earlier Feb. 12; earlier i in California: Jun. 7, Aug. 19, Aug. 2003; and New Jersey, Jun. 2004]

• "A cop sues McDonalds because of the slimy stuff a couple of teens put in his sandwich. His biggest problem may be that he didn't even take a bite" [Turkewitz]
• Montana Supreme Court: hunter can't blame state for being attacked by bear [On Point]
• Don't: provide your criminal client with means to escape [Fulton County Daily Report]; alter documents responsive to discovery requests [The Recorder]; hide evidence in multi-billion dollar insurance litigation [NY Sun via Lattman]; or videotape your fellow lawyers changing clothes [ATL].

• Reason #473 why I live in Virginia instead of DC: DC police catch two in middle of attempted burglary, just after being released from prison, decide to let them go because they can't figure out what to charge them with. Good thing residents aren't allowed to own guns to defend themselves, right? [PTN]

"The American personal-injury lawyer who caused a health scare after flying despite being infected with a potent form of tuberculosis is facing a lawsuit by three of his fellow passengers." Montreal lawyer Anlac Nguyen is demanding $C100,000 apiece on behalf of two Czech sisters who say they sat next to Andrew Speaker, and $C60,000 on behalf of a Laval, Que. man who sat farther away. Speaker recently learned that while he's carrying a serious, drug-resistant and contagious form of tuberculosis, it isn't the extremely-drug-resistant form originally suspected. (Jonathan Montpetit, Canadian Press/Toronto Star, Jul. 5). Earlier: Jun. 2.

P.S.: For those who are wondering, no, there's not the slightest indication from the story that any of the three plaintiffs caught anything from Speaker. Update Dec. 2: tests confirm that no one flying with him caught TB.

And thanks to David Bernstein for his blog-birthday greetings, including a reminiscence of the days when this kind of publishing was quite new.

Stephen Dunne, 30, flunked the Massachusetts bar exam and now says it was because he refused on principle to answer an exam question concerning the rights of two married lesbians, their children and property. He claims the hypothetical, which concludes with the question "What are the rights of Mary and Jane?", violated his First Amendment rights and served as a "screening device" to exclude persons like himself who disapprove on religious grounds of the state's gay marriage law. "But Boston attorney Tom Dacey doesn’t believe the case will go very far. ... 'Lawyers have to answer questions about legal principles they disagree with all the time, and that doesn’t mean we’re endorsing them,' said Dacey, a director of Goulston & Storrs’ litigation group. 'You might be somebody who is morally opposed to divorce, but have to interpret the divorce laws of the commonwealth to answer a question about who property is passed to.'" (Donna Goodison, "Bar-exam flunker sues: Wannabe rejects gay-wed question, law", Boston Herald, Jul. 6 and sidebar; AP/TheBostonChannel.com, Jul. 6).

P.S. He wants $9.75 million. And On Point News has a copy of the complaint (PDF). Update: Now he wants less, reports Above the Law (Jul. 13).

Lee Kaplan, a journalist who writes on Middle East controversies for (among other outlets) David Horowitz's conservative Front Page, attracted the critical interest of a Berkeley student named Yaman Salahi, who set up a blog entitled Lee Kaplan Watch that assails Kaplan and his work. Kaplan proceeded to sue Salahi on charges of "business interference" in small claims court, a venue lacking in the extensive fact-finding and procedural protections that would attach to a conventional suit for, say, defamation. Last month the court awarded Kaplan $7500. The blogosphere has begun to notice the story with some alarm: Seeing the Forest for the Trees, Dean's World, Ann Althouse, Slashdot. More links: Media Law Resource Center. Kaplan's side of the story is here.

Susan McBride, who works in the planning department for the city of Detroit, is suing the city "alleging her co-worker's strong perfume has made it impossible for her to do her job. ...McBride alleges the city should accommodate her disability by prohibiting people from wearing perfume in the workplace." As the Detroit News reports, and as we noted at the time, this isn't the first time Detroit has been the scene of perfume-in-the-workplace litigation:

In 2005, Detroit country music deejay Erin Weber won a $10.6 million jury verdict against her employer, WYCD (99.5 FM) after she alleged she was sickened by a fellow radio host's perfume.

But U.S. District Judge George Caram Steeh reduced the award to $814,000, saying it was not clear from the evidence that Weber had a perfume allergy.

(Paul Egan, "Worker sues over co-worker's perfume", Detroit News, Jul. 4; "Employee Sues City Over Co-Worker's Perfume, Seeks Ban on Scents", AP/FoxNews.com, Jul. 5).

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


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


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


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


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


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


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


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


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


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


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

“I’m not going to look at the evidence submitted to me. I want this plaintiff to get money. Tell each of your clients to pay up and make a contribution if they want to get out of this lawsuit.”—unnamed Buffalo Supreme Court judge, according to Brendan P. Cunningham op-ed in the June 22 Buffalo News.

Anthony Sebok's Findlaw column on the Pearson pants suit cites Overlawyered and repeats two points regular readers of Overlawyered and Point of Law have seen before:

• Meritless cases often settle for nuisance value, thus making them profitable to bring;


• Rule 11, as currently constituted, "has proven to be a very toothless weapon against abusive plaintiffs" and "does not effectively protect defendants from frivolous, or even, in some cases, fraudulent suits."

By the way, Pearson has announced that he will appeal the trial court's decision against him.

Arthur Friedman announced to his wife, Natalie, after ten years of marriage, that he wanted the couple to engage in group sex and swinging, so he could gratify himself watching his wife have sex with other men. Natalie, however, fell for one of her partners, German Blinov. The two left their spouses and ran off with one another. Arthur sued Blinov under the Illinois alienation of affection laws, and, amazingly enough, won $4802 from a jury that thought the case was stupid. (Steve Patterson, "Putting a price on love", Chicago Sun-Times, Jul. 1). The former Mrs. Friedman expresses dismay about the award, but it's not clear whether it's the fact of the award or the trivial amount that offends her. Chicagoist and Alex Tabarrok are appropriately appalled.

Most states have passed the tort reform of abolishing the alienation of affection cause of action. Earlier on Overlawyered: Nov. 2006 and May 2005 (North Carolina); Nov. 2004 (Illinois); May 2000 (Utah).

Update: Of course, one doesn't necessarily need that 19th-century cause of action when entrepreneurial lawyers are in play. Recently fired WellPoint CFO David Colby allegedly rotated among several girlfriends he met on a dating website, several of whom he allegedly promised to marry, even as he was married to someone else (albeit separated). One of the ex-girlfriends is suing WellPoint for "facilitat[ing] Colby's lifestyle"; it seems Colby pointed to his webpage on the WellPoint site to seduce some of his targets. (Lisa Girion, "WellPoint named a defendant in sexual-battery suit", LA Times, Jun. 29; see also "Women claim lives with WellPoint exec", LA Times, Jun. 13 (no longer on web)).

The city of Detroit's Department of Transportation, which runs 500 buses, budgeted a whopping $16.1 million this year to cover lawsuits and injury claims arising from its operations (yes, that amounts to $32,000 per bus per year). The city is finding it unusually difficult to reduce those numbers:

Matt Allen, spokesman for Mayor Kwame Kilpatrick, explained that Detroit is self-insured, which means money is set aside annually in an account earmarked for settlements, damages and other mishaps involving city-owned vehicles and drivers.

Meanwhile, the city, particularly the Detroit Department of Transportation, is struggling with union rules and arbitration cases that make it difficult to terminate even the most accident-prone drivers.

In one case, a bus driver was involved in 30 mishaps, hit a bicyclist resulting in a $1.4 million lawsuit settlement and, in a separate incident, had her driver's license suspended. The city tried to fire her, according to records, but an arbitrator ruled she had to be rehired.

(David Josar, "Workers' crashes cost Detroit", Detroit News, Jun. 11).

According to witnesses, faculty had stopped a junior varsity football game at Monarch High School in Fort Lauderdale because of thunder and the players were coming off the field when 15-year-old Schaffner Noel was struck and killed by a bolt of lightning. Now his father Julio Noel is suing the Broward County School Board. "The school did not use a lightning detection device and failed to provide sufficient warning and evacuation measures, attorney Holly Krulik said in a statement Tuesday." ("Fla. Dad Sues Schools In Lightning Death", AP/Local6.com, Jun. 27). An amusement-park lightning case can be found here, and our readers have been having a lively discussion over the meaning of the word "accident" here.

It's a bit of humor (via Stuttaford).

P.S. And a bit of medical humor too. Enjoy the July 4 holiday and see you on Thursday.

Revising terminology with the goal of revising attitudes?

The word ‘accident’ is to be banned from the new edition of Britain’s Highway Code, which is published by the UK Department of Transport. Instead the words ‘collision’, ‘crash’ or ‘incident’ will be used to describe events that once were known as accidents.

This adoption of new terms for everyday events does not only have linguistic significance. The banning of the A-word is a consequence of a broader cultural outlook which insists that nothing happens accidentally these days and that there is always someone to blame. ...

In June 2001, the prestigious British Medical Journal signed up to the crusade, explaining in an editorial why it had decided to ban the word accident from its pages. ‘[S]ince most injuries and precipitating events are predictable and preventable’, the word accident should not be used to refer to ‘injuries or the events that produce them’.

(Frank Furedi, "The crusade against the A-word", Spiked-Online (U.K.), May 15)

At age 15 she began a year-long sexual relationship with her 22-year-old manager, which ended in breakup. Now she wants money from the restaurant for letting it happen. The criminal defense lawyer representing Hector Figueroa, the boyfriend/manager, says the complainant's family knew about the consensual affair while it was going on. "She saw a pot of gold at the end of the rainbow and decided to pursue [a civil suit]." (Jordana Mishory, "Teen Sues McDonald's Franchisee Over Sex With Boss", Florida Daily Business Review, Jun. 21).

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


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


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


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


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


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


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


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


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


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


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

Thanks to Christian Schneider of the Wisconsin Policy Research Institute for tending the fires over the past week. Check in to the WPRI blog and Atomic Trousers to read more of his work. We'll be welcoming more guestbloggers as the summer continues.

In the mail, but not played yet: So Sue Me, described as "the new board game where you enjoy the wackiness of today's lawsuits". The subtitle on the game box sounds straightforward enough: "Sue Your Friends. Take Their Stuff".

Is Chicago personal injury firm Goldberg Weisman Cairo really advertising for rock concertgoers injured in the mosh pit? Or are they up to something more metaphorical than that with their ad? (Above the Law, Jun. 27; Childs).