September 2007 Archives

What if any are the legal issues raised by employers' use of Facebook and similar social networking sites to check out job applicants? (George Lenard, CollegeRecruiter.com blog, Sept. 1; via Between Lawyers). What about prosecutors who decide to use it to gather incriminating evidence? (Arbitrary and Capricious, Sept. 16, via Legal Blog Watch).

Speaking of Facebook, Overlawyered's own recently launched group there is now up to 171 members, but that's way short of the number that would cause Ted to empty his wallet for charity as promised, and there's only 24 hours or so to go on his offer. Anyone for a last-minute surge?

Queens, N.Y. resident Dongmei Li has sued the tech giant, along with AT&T and Steve Jobs, over the $200 slash in the price of the much-ballyhooed cellphone less than two months after its launch. Among her many claims are that Apple unfairly deprived her of the chance to sell her early-bought iPhone at a profit, and that the $100 store credit Apple offered early buyers was inferior to the full refund they could have obtained if they decided they didn't like the product right away. (Kasper Jade, "Apple, Jobs, AT&T sued over iPhone price cut, rebates", AppleInsider, Sept. 28; Tom Krazit, "One More Thing", CNet, Sept. 28; more comments at TechMeme; Katherine Mangu-Ward, "When Bad PR Happens to Good Economics", Reason, Sept. 14). At the Apple Insider Forums, commenter Ken Laws quotes a passage describing another part of the suit:

"The lawsuit goes on to accuse Apple, Jobs and AT&T of forcing customers into 2-year service agreements with AT&T and imposing hefty $175 termination fees."

I'll never forget that terrifying night. I was just sitting at home, minding my own business, when Steve Jobs and a platoon of AT&T thugs burst through my front door.... Hovering helicopters and troops with vicious, snarling dogs kept the damned in line as we waited, huddled in fear, knowing our only choices were to sign the two year contract or be put up against the back wall of the Apple Store and shot.

I survived that night. But I know a lot of people who didn't. I see their faces whenever I get a call on my iPhone, because I screwed up my contacts list and all the portraits are wrong.

Earlier iPhone suits: Jul. 30, Sept. 25, and (trademark claim): Jan. 10.

By reader acclaim: "A New York Jets season-ticket holder filed a class-action lawsuit Friday against the New England Patriots and coach Bill Belichick for 'deceiving customers.'" Carl Mayer of Princeton Township, N.J., is suing over revelations that the Patriots unlawfully videotaped signals from Jets coaches in a Sept. 9 game. Mayer and his attorney, Bruce Afran,

calculated that because customers paid $61.6 million to watch eight "fraudulent" games, they're entitled to triple that amount -- or $184.8 million -- in compensation under the federal Racketeer Influenced and Corrupt Organization Act and the New Jersey Consumer Fraud Act.

Mayer and Afran, who consider themselves public interest lawyers, have been thorns in the side of New Jersey politicians for years, filing lawsuits and demanding investigations to advance their grievances. They are well known in the state but generally have had little success in their causes.

Both have lost bids for elected offices, and Mayer once served as a presidential campaign adviser to Ralph Nader.

(Dennis Waszak Jr., "Jets fan sues Pats, seeks $184 million", AP/Boston Globe, Sept. 28; ProFootballTalk "Rumor Mill", Sept. 28). More: Sadly, No!.

Tennessee state representative Rob Briley chaired the Judiciary Committee in the state House, and also held a seat on a study committee "assigned to recommend changes in the state’s DUI laws." So you might regard it as unseemly of him, after having smashed his vehicle into a pickup truck on the afternoon of Sept. 8, to have led police on a 100-mph chase in Wilson and DeKalb counties. The chase culminated in his being apprehended and charged with offenses that included drunken driving, evading arrest, and vandalism. The vandalism consisted of doing "about $1,000 worth of damage to the patrol car by kicking and punching the back door and window", according to police, who say they found an empty bottle of bourbon and several bottles of prescription meds in Briley's SUV.

What raised some eyebrows around the state is that when officers at the Wilson County Jail had him fill out a form listing a “next of kin” or other person he wanted contacted, Briley, who is going through a divorce, named Mary Littleton, lead lobbyist for the Tennessee Association for Justice, formerly known as the Tennessee Trial Lawyers Association. His explanation later was that Ms. Littleton was a logical person to name since she knew a lot of lawyers and he was going to need a lawyer. Briley has now resigned his Judiciary chairmanship as well as the seat on the DUI commission, and says he's in rehab. Indeed, he claims he was headed for a rehab center on the afternoon in question -- so eager to get there, perhaps, that 100 mph seemed only reasonable. He has now retained Ms. Littleton, who describes herself as a long-term friend, and two other attorneys to represent him. (Eric Schelzig, "Video shows Rep. Briley berating police, sobbing", AP/Ashland City Times, Sept. 12; Kleinheider blog, WKRN, Sept. 13; Sheila Wissner, "Briley listed lobbyist as contact after DUI arrest; has no memory of chase", The Tennessean, Sept. 13; Michael Silence, Sept. 13; Tom Humphrey, "Rep. Briley steps down from chairman position", Knoxville News-Sentinel, Sept. 15; Sheila Wissner and Sheila Burke, "Arrest report says Briley had been committed", Ashland City Times, Sept. 15).

Fifty years ago, conspiracy theorists could rant in bars, or perhaps write letters to the editor. Twenty years ago, conspiracy theorists could call talk radio. Now? Through the magic of qui tam laws, conspiracy theorists can wage their war against sanity in the courts.

While reading Bizarro-Overlawyered's paean to 9/11 lawsuits -- guess what? They're not (just) about the money! They're really about helping the public "know what happened"! -- a commenter on the site provided a link to Morgan Reynolds' 9/11-related lawsuit. Reynolds, a former economist at the Department of Labor, became unhinged sometime after 9/11 and began ranting on the internet about the various conspiracies that brought down the World Trade Center. (Hint: government laser beams from space, not airplanes.) In the past, that would have been the end of it. Even if Reynolds wanted to take legal action, he couldn't -- he wasn't injured by 9/11, so he would have no standing to file a lawsuit against anybody.

Ah, but that doesn't take into account the False Claims Act. The qui tam provisions of the False Claims Act allow private individuals to sue on behalf of the government whenever the government is defrauded, and collect a portion of the money owed to the government. So all one needs to do is find a creative legal hook to claim that the government has been cheated, and all of the sudden one has standing to sue. What was Reynolds' claim? He argues that when the National Institute of Standards and Technology (NIST) -- a government agency -- prepared its report on the collapse of the World Trade Center, it paid various companies to consult with it. Since none of those consulting companies mentioned the government laser beams from space, they obviously defrauded the government.

So he sued... well, he sued everyone. To be precise, he sued:

Science Applications International Corp.; Applied Research Associates, Inc.; Boeing; Nustats; Computer Aided Engineering Associates, Inc.; Datasource, Inc.; Geostaats, Inc.; Gilsanz Murray Steficek Llp; Hughes Associates, Inc.; Ajmal Abbasi; Eduardo Kausel; David Parks; David Sharp; Daniele Venezano; Josef Van Dyck; Kaspar William; Rolf Jensen & Associates, Inc; Rosenwasser/Grossman Consulting Engineers, P.c.; Simpson Gumpertz & Heger, Inc.; S. K. Ghosh Associates, Inc.; Skidmore, Owings & Merrill, Llp; Teng & Associates, Inc.; Underwriters Laboratories, Inc.; Wiss, Janney, Elstner Associates, Inc.; American Airlines; Silverstein Properties; and United Airlines

(No links in this post; no need to encourage these people. Google if you want to find it.)

We recently covered the Caterpillar lawsuit, in which an American company was sued because of the way a foreign government used its products. Although the suit was dismissed by the Ninth Circuit, it wasn't because it's absurd to blame a manufacturer for how its products are used; rather, it was because -- as Walter noted -- the Caterpillar products were actually paid for by the U.S. government. Given that, it may not be much comfort to other companies being sued over the actions of foreign governments.

In 2004 and 2005, various Chinese citizens were arrested in China by the government of China, prosecuted for their pro-democracy activities, convicted, and sent to jail. They allege that, while in these Chinese prisons, they have been treated poorly by the Chinese government, and that they have suffered physical and mental anguish as a result.

So, in April of this year, these Chinese prison inmates sued the obviously-responsible party: Yahoo, naturally. In California. They sued Yahoo for violating federal law against torture. And for assault, battery, false imprisonment, unfair competition, intentional infliction of emotional distress, and for violating the U.S. Electronic Communications Privacy Act. In China. What was Yahoo's wrongdoing? The company -- or, rather, its Chinese subsidiary -- allegedly provided evidence to the Chinese government which enabled the government to identify these people and prosecute them for breaking Chinese law.

Now, one may have no love for the Chinese government, or for companies that do business in China. One can argue that, ethically, Yahoo should refuse to cooperate with the Chinese government. But those are policy questions, and however one comes down on them, one can't argue that a federal court in California can order a company to break the laws of another country. (The flaws in this should be readily apparent; as Yahoo notes in its motion to dismiss the case, under the logic of the plaintiffs, "A court in France could issue an injunction mandating that French companies doing business in America refuse to provide evidence in cases where the defendant might be subject to the death penalty.") One can't argue that a federal court in California can order a company to get a prisoner released from a Chinese prison (Yes, that's in the lawsuit.) One can't argue that a federal court in California can act as an appeals court for a Chinese trial, finding Chinese laws unconstitutional.

Yahoo is seeking to dismiss the case in its entirety. (Washington Post)

(Incidentally, it should go without saying that my introduction was not intended to compare the actions of Israel's government in fighting terrorism with the actions of China's government in punishing peaceful dissent. The only parallel here is the attempt to hold an American company responsible for the actions of a foreign government.)

Meanwhile, in other attempts to use the U.S. courts to run world affairs, a group of Bolivians have sued the former president of Bolivia, in the United States, for human rights violations that took place in Bolivia. (Reuters)

No, I still haven't seen a copy of this documentary (Apr. 19), which has been getting rave reviews all over the place and is a new Ebert & Roeper weekly pick. It's just out on DVD now, and available on Amazon, where it's selling briskly. Here's the New York Times's review:

Writer-director Eric Chaikin's feature-length documentary A Lawyer Walks Into A Bar. . . offers a witty, seriocomic look at myriad aspects of the American legal process and judicial system. It hones in on six individuals, all prospective attorneys at the time of the film's production, and follows them through trials and travails as they approach and take the formidable bar. Chaikin then uses the subjects' stories as springboards to broader digressions on U.S. litigation. The film features a myriad of celebrity guest appearances, from both well-respected attorneys and entertainers. Participants include: attorneys Alan Dershowitz, Mark Lanier and Joe Jamail; comics Eddie Griffin and Michael Ian Black; TV commentators John Stossel and Nancy Grace, and many others.

The producers interviewed me at length as part of their research in making the film, and they tell me that some of the resulting footage appears in the bonus tracks on the DVD. The film's website is here. More: Above the Law, Robert Ambrogi's LawSites, David Giacalone (scroll down), Suzanne Howe @ Counsel to Counsel.

Massachusetts Superior Court Judge Ernest B. Murphy is well known to readers of this site for winning a $2 million libel suit (upheld by the state's high court) against the Boston Herald, which had published pieces portraying him as soft on crime and insensitive to victims. When the paper wired Murphy $3.4 million in June (the sum included interest), Legal Times's Tony Mauro cited the episode as one of a string that had led the press to be newly wary of having to face off in court against judges ("Press Frets as More Judges Sue for Libel", Jun. 22). And in July a state disciplinary panel filed misconduct charges against Judge Murphy for having sent the Herald's publisher a "bring me a check and keep quiet" letter that media critic Dan Kennedy termed "fascinatingly repellent".

Judge Murphy has maintained that because of the stories the Herald ran about him, he has suffered debilitating post-traumatic stress disorder [PTSD]. As of Aug. 1, he was on sick leave for this disorder, although Massachusetts Gov. Deval Patrick rejected his request "to retire early with a special judicial disability pension that would have netted him 75 percent of his salary". Which makes it all the more surprising that a Herald reporter-photographer team would catch the judge looking relaxed and at ease over two days at the races in Saratoga Springs, N.Y., where he bet at the $50-minimum window, picnicked with his wife and chatted with other spectators. Call it one of those miracle recoveries (Jessica Van Sack, "Bay State judge plays ponies for two days at N.Y. track", Boston Herald, Sept. 27).

Who is the "formerly hard-partying girl who claims that she found enlightenment" who met John Edwards in a bar and was paid six digits by the campaign to make videos of him that "lingers over the former senator's behind as he tucks a starched white shirt into his pants," and why is the campaign suddenly hiding the webvideos she made of Edwards on questionable legal grounds? Mickey Kaus is curious after reading this Sam Stein post. Separately, Garance Franke-Ruta notes the irony of Edwards stumping the SEIU for votes and donations on the leftist union's "Lobby Day." For other Edwards campaign shenanigans on Overlawyered, see Sep. 19.

The annual Supreme Court Briefing of the AEI Legal Center for the Public Interest will take place 9 am Friday at AEI; registration is free. Speakers include frequent Supreme Court advocates Maureen Mahoney and Andrew Pincus, as well as AEI's Michael Greve and myself. Michael Greve's most recent Federalism Outlook looks at the most recent term, as does a recent Liability Outlook I wrote.

Longtime Overlawyered favorite Jack Thompson (Sep. 20, etc.), suing the Florida Bar in federal court to avoid misconduct charges, was apparently outraged that one of the attorneys working with the Bar was affiliated with a website that in turn had advertising to pornographic websites—and to prove his (wildly off-topic) point filed several graphically pornographic photos with the court. The district judge was not amused, threatened to hold Thompson in contempt, and an unapologetic Thompson is encouraging the judge to throw him in jail. [GamePolitics via Above the Law]

Okay, so as we noted a couple of weeks ago (Sept. 14), many cops don't seem exactly eager to ticket fellow police officers who break traffic laws while driving their private vehicles. And what happens when cops do write such tickets? They just might get called out, by name and badge number, on this must-see-to-believe site (via Mark Frauenfelder at Boing Boing).

I'm discussing the controversy over at Point of Law here and here.

P.S. And more on the topic, posted Thursday afternoon.

Dan McLaughlin on Geoffrey Fieger's disciplinary win (Baseball Crank, Sept. 25).

Also, Links We're Sorry We Clicked: Geoffrey Fieger art (via AJP).

Miami surgeon Dr. Alex Zakharia was indicted by a federal grand jury last year on perjury, mail fraud and wire fraud charges in connection with his testimony in a Michigan medical malpractice case (KevinMD, Dec. 2). Now Zakharia has pleaded guilty to contempt of court and admitted false statements as part of a plea deal to resolve the charges. Reports the Ann Arbor News (Sept. 18):

Authorities said he testified as an expert witness in 2002 on behalf of a plaintiff charging a doctor at the VA with medical malpractice in connection with a coronary artery bypass graft.

He admitted that during the deposition, he falsely bolstered his credibility as an expert by creating the impression that he was the lead surgeon for numerous coronary artery bypass grafts - when he never conducted such surgeries, officials said.

More: Miami Herald; Expert Witness Blog; U.S. Attorney press release (PDF).

Looks as if the legal tactics of one politically ambitious Texas plaintiff's lawyer may have blown up in his face:

Democratic U.S. Senate candidate Mikal Watts of San Antonio once tried to pressure a legal opponent into a $60 million personal injury lawsuit settlement by claiming he would have an advantage on appeal because of his firm's "heavy" campaign financial support to an appellate court's justices, "all of whom are good Democrats."

A "nine-page letter Watts wrote to opposing counsel in 2001 apparently was intended to make an out-of-state corporation think the donations could sway" the 13th Court of Appeals in Corpus Christi. The letter was sent to a defense lawyer representing American Electric Power in an auto-accident case. "Politely put, south Texas venue by itself makes this a very dangerous lawsuit," Watts wrote.

What made the letter unusual was the linking of campaign contributions to sitting justices and the potential of an appeal.

The letter then noted that if the case went to appeal, it would go to the 13th Court of Appeals.

"This court is comprised of six justices, all of whom are good Democrats," Watts wrote. "The Chief Justice, Hon. Rogelio Valdez, was recently elected with our firm's heavy support, and is a man who believes in the sanctity of jury verdicts."

The letter goes on to name Justices Errlinda Castillo, Nelda Rodriguez, J. Bonner Dorsey, Federico Hinojosa and Linda Yanez, and says his firm also has financially supported them. Hinojosa, Castillo and Dorsey are no longer on the court.

"Justice Bonner Dorsey, is more conservative than the others, but has been a friend of mine and the sanctity of jury verdicts for many years," Watts wrote.

Watts and his law firm in 1999 donated $5,000 to Valdez and $2,500 to Rodriguez; in 2000, $15,000 to Hinojosa; and in January 2001, $10,000 to Castillo. The firm donated $50,000 to Yanez in 2002.

(R. G. Ratcliffe, "Senate candidate played up contributions to justices", Houston Chronicle, Sept. 5; "Watts' letter shows judicial reform need" (editorial), San Antonio Express-News, Sept. 15; PrairiePundit, Sept. 7 (quoting Houston Chronicle editorial that's now offline)).

Blog reaction among both Texans and Democrats has been overwhelmingly negative. "This is bad," writes the eponymous Kos at Daily Kos. Similarly: Burnt Orange Report, Urban Grounds, Eye on Williamson, Doing My Part for the Left, Capitol Annex. For links to some of our coverage of Watts's colorful courtroom exploits over the years, see Jun. 9. As a matter of fact, Ted covered Watts' eye-opening demand letter in a Point of Law post of Nov. 2, 2005.

The College Cost Reduction and Access Act of 2007 [passed by Congress on Sept. 7] aims to help law students and other graduates with high debt through an income-based loan-repayment plan.

The market currently reflects a private-public pay gap reflecting the fact that public jobs are generally considered to have better working conditions and that private-sector law firms need to offer substantially higher pay to encourage attorneys to work there. If the government is providing thousands of dollars of loan subsidies to government and non-profit attorneys, the private sector will need to raise its salaries to continue to compete, some of which will be swallowed by the partners, but most will be swallowed by the clients, who, increasingly facing bet-the-company litigation, have inelastic demand for top law firms. Too, as attorney salaries increase, and loans are subsidized by the government, law schools will be empowered to extract some of that surplus by raising tuition. Winners: most attorneys, law school employees, and some clients of non-profits. Losers: taxpayers, clients, partners at non-top-tier firms.

Update: Discussion at Above the Law.

In the latest issue of the Federalist Society's Class Action Watch, Mark Behrens and Christopher Appel look at recent rulings from the New Jersey and Missouri Supreme Courts that reject lead paint public nuisance claims. James Beck looks at the American Law Institute’s “Principles” projects. Brian D. Boyle and Julia A. Berman look at fact-based scrutiny in securities and antitrust actions. Jessica D. Miller and Nina Ramos look at fluid recovery. Kenneth J. Reilly and Frank Cruz-Alvarez look at an Eleventh Circuit case that may have set a new standard for federal diversity jurisdiction. Last, but not least, there is a front-page article from me analyzing an omission in the Fair Credit Transactions Act (FACTA) that might provide a substantial windfall for the plaintiffs’ bar.

• Picture of farmer with goose appears on greeting card, he wants $7.5 million [Roanoke Times; earlier]


• More class actions filed over Apple iPhone [Ars Technica on roaming and battery claims, O'Grady's PowerPage, iPhoneWorld; earlier]


• L.A. Times quotes attorney Stephen Yagman on prison overcrowding, but forgets to mention that he was lately convicted of thirteen felonies [Patterico]


• Bad idea watch: compulsory national service [Somin @ Volokh]


• Doing well representing the little guy: Gerry Spence lists his Wyoming residence for sale at $35 million [WSJ/Chicago Daily Herald]


• "Appropriate", not "perfect", justice needed: "We simply have to stop killing litigants with kindness," says chief judge of Australia's largest state [The Australian]


• Toddler killed after wandering into heavy traffic, trucker should have been more on guard against such a thing happening [Salt Lake Tribune]


• Pennsylvania pro se litigant sues Google, says it spells his social security number upside down [Ambrogi] More: Coyote says "Up next, the owner of Social Security number 71077345 sues Shell Oil for the same reason."


• Once billed as "King of Torts", Miami asbestos lawyer faces fifteen years behind bars for stealing $13 million from clients [Sun-Sentinel]


• Groom sues bride, saying she took the ring and presents and never got the wedding paperwork straightened out leaving them legally unmarried [ClickOnDetroit]


• Surgical resident on the hook for $23 million in Wisconsin case; she was the only one of the docs involved not covered by damage limits [Journal Sentinel via KevinMD]

Another object lesson in how your rights to privacy stop when litigation begins:

High-tech surveillance tactics are now commonplace in divorce cases, changing the nature of matrimonial law practice.

Soon-to-be-divorced spouses routinely steal each other's BlackBerries and install snooping software on each other's computers. This not only enables them to read each other's e-mail but to monitor, in 15-second increments, what a perhaps-erring marital partner is doing on the Internet, reports the New York Times. What they can't find out, their divorce lawyers perhaps can by hiring even more technologically sophisticated private detectives.

"In just about every case now, to some extent, there is some electronic evidence,” says Gaetano Ferro, president of the American Academy of Matrimonial Lawyers. “It has completely changed our field.”

Amusingly or not, the one area where the law is ferocious in responding to adversaries' invasions of each others' privacy is that of clients' communications with their lawyers -- mustn't infringe on the lawyer-client privilege, after all. (Martha Neil, "Divorce Practice Now a Surveillance War", ABA Journal, Sept. 18).

"Wearing signs reading: 'They're Carbs not Contraband,' 'Give Us our Just Desserts' and 'We're Old Enough to Choose,' a dozen senior citizens picketed outside [a Mahopac, N.Y. senior center] protesting a recently imposed ban on the sugared treats at Putnam County-operated nutritional sites." For years supermarkets and bakeries have donated day-old pastries to senior centers, but last month the county called a halt to the program, saying that the treats violated federal nutritional standards for the elderly and might pose safety dangers. The AP story carried this classically sensitive and humanistic quote from Michael Jacobson of that group of untiring busybodies, the self-proclaimed Center for Science in the Public Interest: "Senior citizens can walk down to the store and buy doughnuts. Nobody's stopping them". [Putnam County Courier; Westchester Journal-News; Associated Press]

...has sang-froid (scroll to end).

The AEI Legal Center for the Public Interest's patent law program tomorrow has a tremendous lineup. Jack Calfee and Claude Barfield will be discussing their new monograph, Biotechnology and the Patent System; the general counsels of Eli Lilly and of Cisco, among others, will be debating the pending patent reform bill. The event is open to the public and will be webcast, as well.

Might become a rich source of material for this site: Attorney Jonathan G. Stein of Elk Grove, Calif. has launched a blog on "Litigating MIST Cases," MIST in this case standing for "Minimum Injury, Soft Tissue" auto-crash cases, or, in practical terms, "Any car crash with less than $1,500 in property damage and a soft tissue type injury, i.e. neck or back pain, sometimes called 'whiplash.'" (Claims of "soft tissue" injury, unlike those from bruises, lacerations or broken bones, typically are hard or impossible to verify to the satisfaction of all sides). One recent entry begins: "Face it, most MIST patients end up at a chiropractor. ...the chiropractor always asks who the attorney is on the file." An earlier entry promises to explain "how the chiropractor can treat the patient to help you accomplish your goal -- obtain a fair and reasonable settlement for your client."

Stein is also selling a book on the handling of these cases and promotes it as follows:

I just settled a case. Client was in an accident causing no visible damage to her vehicle. The defendant had less than $500 in damage to her car. Client had $2,200 in treatment. Settlement pre-lit: $8,500. That is almost four times the special damages. On a MIST case.

So, yes, this system works.

• Lawyers in Iowa suit against Microsoft bag $75 million [ComputerWorld, ABA Journal; earlier antics in case here, here, here, and here]


• Not a parody: Santa Cruz, Calif. says smoking in the park's OK so long as its pot, not tobacco [Mercury-News via Bader]


• L.A.'s big payout in Tennie Pierce case (firehouse dog food prank) deemed "completely outrageous", "'best possible' outcome" (or both?) [Patterico, more, John and Ken, LoneWacko, Holy Coast; earlier]


• Suit by Paris, Tex. hospital seeks to uncover name of anonymous blogger [Houston Chronicle](& Coyote)


• Global-warming litigation roundups [Associated Press, Daily Report, NJLJ/PoL, Horner @ NRO]


• Sues American Cancer Society after slipping on step at charity fund-raiser [Madison County Record, more]


• Have Islamic Society of Boston lawsuits chilled local media? [Boston Phoenix via Romenesko]


• Four guilty pleas so far in case of West Orange, N.J.'s Seligsohn, Goldberger & Shinrod, which paid runners to bring in staged and non-existent auto accidents [NJLJ first, second reports]


• New at Point of Law: war on terror "lawyered to death"?; Florida insurance craziness; subprime lending crusade; France's "model" health care system would offer few chances to attorneys like John Edwards; Mississippi AG Hood says "the system is working" on outside contracts; Sen. Ted Kennedy's new "Equal Remedies Act of 2007" would boost payouts in workplace suits; and much more;


• Browser add-ons that help squelch ads may be headed for litigation [Broache & McCullagh, CNet]


• Lottery winner's curse? Among other woes since winning nearly $315 million in Powerball, Jack Whittaker says he's been involved in 460 legal actions [Chicago Tribune]

Beldar doesn't hold back (Sept. 22) from telling us what he thinks:

Rather's case -- as incredibly, stinkingly, appallingly, cosmically bogus as it is -- nevertheless has some considerable settlement value: Not because CBS is likely to lose to Rather if the truth is confirmed in court, but because individual decision-makers within CBS may have overwhelming vested interests in ensuring that the facts are not thoroughly probed in court.

Earlier: Sept. 19. More buzz: Howard Kurtz/WaPo, Eugene Volokh, New York Post "Page Six", Bertovici/Portfolio.com.

It's sparking further discussion:

Hey, Davis Wright Tremaine, and your clients, the parents who sued the district: This is insane.

You argue this isn't to enrich the firm, but to punish the district. The theory is that the fees, at $1.8 million and rising, are a lash to whip the district for its bad race-based deeds.

When I called the lawyers Tuesday, they compared it to, among other cases, their pro bono defense of a prisoner beaten by L.A. jail guards.

This makes no sense. Seattle's policy wasn't intended to hurt anyone, let alone beat them to a pulp.

(Danny Westneat, "The bill just keeps going up", Seattle Times, Sept. 19; Emily Heffter, "Billing in 'pro bono' cases is fodder for ethics debate", Seattle Times, Sept. 18; Above the Law, Sept. 18).

Don Surber welcomes Hizzoner's conversion; Sister Toldjah remains to be convinced (disclaimer; and see quote from me here; our page on firearms litigation and regulation). More: By coincidence, the Bloomberg administration is in court at the moment trying to argue that the Protection of Lawful Commerce in Arms Act doesn't actually put the kibosh on the city's gun suits, despite a mountain of evidence that it was intended to do just that (Mark Hamblett, "2nd Circuit Hears Arguments on Letting NYC's Gun Suit Go to Trial, New York Law Journal, Sept. 24).

San Diego lawprof John “Jack” H. Minan's “The Little Green Book of Golf Law”, published by the ABA and hitting bookstores about now, treats of errant balls and many other legal issues that arise in the Wodehouse-beloved outdoor game. I would note that "Iowa golfer Walter Olson", portrayed unflatteringly in one of the stories, is guaranteed a different person from and unrelated to me. (Tod Leonard, "Law doesn't control way ball bounces", San Diego Union-Tribune, Sept. 11).

Alex Cockburn a few years back, quoted by Jacob Sullum at Reason "Hit and Run" (Sept. 17):

A lot of the history of food regulation in this country has turned out to be a way to finish off small, quality producers by demanding they invest in whatever big ticket items the USDA happens to be in love with at the time; said love objects usually turning out to be whatever the big food processors are using. That's the reason why it's hard to get decent sausages or hams....The big packers and processing plants get to participate directly in the writing of the laws that set the standard practices that the inspectors march out to enforce on all the little producers not part of the Meat Syndicate.

That's O.J. Simpson gratitude for you, per an outburst attributed to alleged robbery victim and sports memorabilia dealer Bruce Fromong (Martha Neil, "Simpson Sidelight: Offshore Accounts??!!", ABA Journal, Sept. 20).

For a while now, lawyers in Minnesota, Oklahoma and elsewhere have been suing companies that make over-the-counter cold remedies containing ephedrine and pseudoephedrine on the grounds that they were aware some buyers were using the drugs as raw material for illegal methamphetamine labs. Now such litigation appears to be gaining momentum in Arkansas, where many county governments have signed up to sue Johnson & Johnson, Pfizer, and other companies. "If successful, it could open up litigation against manufacturers of other produce used in making meth, such as drain cleaners and acetone." (E. Alan Long, "Williams updates JPs on methamphetamine litigation", Carroll County News, May 29; and see this, on anhydrous ammonia). As of last month, twenty-two counties had enlisted in the litigation, which seeks to recoup, among other things, money spent on the processing of criminal methamphetamine cases. "What more could we have done with a million dollars a year for our county? Would that have meant a half dozen more police officers? Would that have meant a better solid waste program? Who knows, what could your county have done with an extra million dollars," asked Judge Bill Hicks of Independence County, a backer of the suits. ("Special Report: Meth Related Lawsuit Filed Against Pharmaceutical Companies", KAIT, Aug. 1; Pharmalot via Childs)(& welcome Megan McArdle readers).

How pathetic is the State Bar of Texas when it comes to protecting clients from rogue lawyers? This pathetic:

Dallas attorney Bruce Patton has a clean disciplinary record, according to the State Bar's Web site, which provides profiles of the state's 80,000 or more practicing attorneys. But consider this before you hire him to draft your will: Patton is in state prison after being convicted of a felony two years ago....

The Texas Legislature and Supreme Court, which share a role in establishing ethics rules for attorneys, have made it so that the public stays in the dark about thousands of lawyers accused of misconduct. Bar confidentiality rules ensure that many sanctions are private and that lawyers accused of felonies can continue practicing. The Bar doesn't require attorneys to report their criminal record or malpractice suits.

The Fort Worth Star-Telegram's disturbing investigation goes into considerable detail, and mentions a couple of cases that will be familiar to readers of this site: "San Antonio attorney Ted Roberts, charged with stealing $100,000 from his wife's lovers, was recently convicted, two years after being indicted. He faces a five-year sentence. The Bar didn't suspend him until June and is now recommending disbarment." And: "The firm of John O'Quinn, one of the state's wealthiest personal-injury lawyers, was ordered by an arbitration panel this summer to pay $35 million to former clients who say he overbilled them for expenses, but no mention of that order is on the Bar's Web site." (Yamil Berard, Fort Worth Star-Telegram, Aug. 19; "Panel seeks changes in Bar's disciplinary system for lawyers", Aug. 19). More: GruntDoc wonders whether doctors can expect a similar concern for confidentiality.

Critics long derided the federal investigation of Milberg Weiss as slow to produce results, but things are moving along at a brisk clip now, with an indictment charging the nation's best-known class-action securities lawyer with conspiracy, racketeering, obstruction of justice and making false statements, just after his best-known former colleague at the firm, William Lerach, agreed to cop a plea deal. "In addition, Steven G. Schulman, a former senior partner at the Milberg Weiss firm, agreed to plead guilty to a racketeering conspiracy charge, prosecutors said." (AP/Business Week; Jurist "Paper Chase"; ABA Journal first and second stories. Documents, all PDF: Milberg Weiss superseding indictment; Schulman charge, plea, press release).

The Sirota & Sirota law blog, an "unfriendly competitor" of Milberg Weiss in the class-action biz, has this post from June offering some perspective on the ongoing investigation.

Anti-videogame Miami attorney and longtime Overlawyered favorite Jack Thompson claims that players in the forthcoming Grand Theft Auto IV are given instructions to kill a certain lawyer in his office and that the lawyer utters the line "Guns don’t kill people. Video games do," which means it must be a parody of Thompson himself. He's fired off a demand that the release be halted. (GamePolitics.com, Sept. 18; Geoffrey Rapp, PrawfsBlawg, Sept. 20). For Thompson's legal threats last year against the publisher of Mortal Kombat because users can employ the game's build-a-fighter mode to create characters that might resemble him, see Oct. 30, 2006. Plus: Thompson responds in comments.

We previously noted the important legislation passed by Congress in 2006 to protect deep-pocket car-leasing companies against vicarious liability for the accidents of its customers. As a result, the price paid by New Yorkers for leased vehicles dropped $600. Of course, that was money out of the pocket of trial lawyers, and ATLA's litigation-lobby litigation arm, the Center for Constitutional Litigation, intervened with repeated efforts with judges to either ignore or strike down the statute. Several Florida state judges provided a tendentious reading of the statute to ignore it precisely when it was said to apply; a federal district judge refused, but instead struck down the regulation of the interstate transaction under the Commerce Clause.

One can applaud a narrower view of the federal government's scope under the Commerce Clause, but this judge's interpretation is contradictory to that of the Supreme Court's and narrower even than Justice Scalia's view, and perhaps even the view of the Supreme Court pre-Wickard: no court ever held that the federal government cannot regulate commercial automobile transactions. We're looking forward to hearing the paranoid Constitution-in-Exile complainers on the left speaking up about the attempt by ATLA to strip the federal government of its powers.

CCL's argument has been that the statute doesn't regulate automobile transactions, but intrastate litigation. This is tendentious enough in state court (does civil liability under the ADA not regulate employment, but rather the litigation over intrastate employment?), but utterly absurd in a federal court where the parties are of diverse citizenship.

The ATLA press release is excited that the decision "gives rental car companies a powerful incentive to assure that their customers are adequately insured"—by forcing customers to purchase insurance that they may not want to purchase. Of course, nothing in the Graves Amendment forbade states from setting regulations requiring such minimum insurance; it just forbade trial lawyers from doing so in state court without state legislation. The litigation is a vivid reminder that getting legislators to act to enact desperately needed reforms is only the beginning of the process of fixing a broken civil justice system: one also needs judges who will follow the rule of law. (Vanguard v. Huchon (via Turkewitz); see also Graham v. Dunkley (NY Sup. Ct.)).

Clients as figureheads dept.: One of the Lakin Law Firm's class actions hit a snag when the firm discovered that the named plaintiff, Manuel Hernandez, had died two years earlier. And so the law firm petitioned an Illinois court to force the defendant, American Family Insurance, to release customer names so that it could more conveniently line up a new client and keep the action going. (Steve Korris, "American Family should provide name of live plaintiff to substitute dead one, attorneys argue", Madison St. Clair Record, Sept. 13).

Reader Tom M. writes:

You should put a favicon.ico file in your root directory so when people bookmark Overlawyered they'll see the icon next to their bookmark (or tab if they open the site in a tab).

http://en.wikipedia.org/wiki/Favicon

If you do that I'll be able to remove the text description from the link to your site, and my favorites toolbar will achieve unity of style. Thanks in advance :)

Okay, graphics-savvy or web-savvy readers: anyone want to devise and send us such an icon?

More: Many thanks to Jim of the Scripted Failures blog for devising the gavel icon.

"Democratic presidential candidate Bill Richardson called Wednesday for obese Americans to be brought under the protection of the Americans for Disabilities Act. 'This is an issue of basic civil rights,' said Richardson. 'There are no federal laws that protect obese Americans from discrimination in the workplace, school, or anywhere else. This must change.'" (ABCNews.com "Political Radar", Sept. 19). We've covered obesity-discrimination claims in such contexts as housing accommodation, the hiring of aerobics instructors, amusement park ride seating, airline seat widths (here, here, and here), and the rights of out-of-shape loading-dock workers. P.S. Forgot to add skinny fashion models.

As Walter noted, Lerach was a bundler for Edwards; his plea agreement included an agreement by the government not prosecute illegal campaign donations. Still, while Edwards is giving back Lerach's personal donation, he's holding on to the rest of the $78,000 that Bill Lerach raised for him, even as Edwards criticizes Hillary Clinton for holding a fund-raiser at Jones Day (whose attorneys have given more money to Obama) and taking money from lobbyists. Edwards hasn't given back the $125,000 Geoffrey Fieger is indicted over raising for him either.

He says they scapegoated him over the discredited show on the National Guard service of President-to-be George W. Bush. He wants $70 million. (TMZ.com, Sept. 19). More: WSJ law blog has a copy of the complaint (PDF). And: Michelle Malkin, Kevin Drum, Beldar ("'garbage' is about the nicest term that can be applied to this pleading"), Althouse.

A press release from their lawyers, Manning & Sossamon, announces that the Chung family of Washington, D.C is closing Custom Cleaners, their dry cleaning establishment. They continue to operate a separate location under the name of Happy Cleaners and last year closed one known as Parks FabriCare. According to the release, the family decided to close Custom Cleaners "due to the revenue losses and emotional toll resulting from the Pearson v. Chung lawsuit". More: Marc Fisher @ WaPo, WSJ law blog, Betsy Newmark, Joe Gandelman, Mark Steyn.

The Washington Post quotes me on the hubris that the now-disgraced class-action potentate came to symbolize (Carrie Johnson, "Guilty Plea to End Crusading Lawyer's Lucrative Run", Sept. 19). Few tears will be shed in Silicon Valley (Wired "Epicenter" blog, Sept. 18). The John Edwards campaign says it's handing over Lerach's contributions to charity, and the Joe Biden campaign says it's already done so; no word yet from Hillary Clinton, who took Lerach money for her Senate bid (Josh Gerstein, "Fortunes Darken for Lawyer Melvyn Weiss", New York Sun, Sept. 19). More coverage: Lattman, What About Clients?, NAM Shop Floor. Plus: Ben Smith at Politico has more on the John Edwards connection: "Though he's giving away the $4,600 from Lerach, Lerach is also listed as a bundler, and employees of the lawyer's firm are his third-largest group of donors, mostly giving in the first quarter." (Sept. 19).

Beck and Herrmann ask some pointed questions about principal-agent problems in plaintiff-side litigation.

I'll be speaking at the Tower Club 5 pm on Thursday, along with Paul Bland of the CL&P blog. If that's not incentive enough to show up, there is apparently free food.

Following up on Walter's Sep. 18 roundup, Lerach should be proud of his lawyers: his plea deal is for a single count of mispaying Steven Cooperman, drops all of the Torkelson-related charges, will likely get him out of prison in under two years, requires the government to forgo prosecution of his current law partners, and doesn't require him to cooperate with the prosecution of Melvyn Weiss. He may well be disbarred afterwards, but he'll also be a multimillionaire in his late sixties who can retire comfortably even after paying an $8 million fine, and nothing stops plaintiffs' firms from offering small fortunes to Lerach to act as a "non-legal consultant." [plea agreement; WSJ; The Recorder; NY Times]

Relatedly, Wired reprints its 1996 "Bloodsucking Scumbag" article.

In unusually strong language, an appeals panel in south Florida has condemned the conduct of prominent Miami law firm Adorno & Yoss, which filed an intended class-action lawsuit against the city over an unconstitutional fire-rescue fee, and later (to quote the WSJ law blog) is alleged to have "reached a secret $7 million settlement and paid it out to seven individuals, thereby breaching its duty to the entire class". In its defense, the law firm says that it had no fiduciary duty to the class since a class was never certified, but the appeals panel took a different view, saying that class certification was inevitable and that the case was handled throughout from a class perspective. “It defies any bounds of ethical decency to view class counsel’s actions as anything but a flagrant breach of fiduciary duty,” said Judge Juan Ramirez, writing for the court. In a concurrence, Judge Angel A. Cortiñas was if anything more severe in tone. "Plainly and simply, this was a scheme to defraud. It was a case of unchecked avarice coupled with a total absence of shame on the part of the original lawyers. The attorneys manipulated the legal system for their own pecuniary gain and acted against their clients’ interests by attempting to deprive them of monies to which they might otherwise be entitled. More unethical and reprehensible behavior by attorneys against their own clients is difficult to imagine." (Billy Shields, "Fla. Court Calls Law Firm's Role in Fire-Fee Deal 'Reprehensible'", Daily Business Review, Aug. 9). More links on the Miami fire-fee scandal here.

Sen. Ernie Chambers does not deny the silliness of his complaint against Jehovah over natural disasters and the like, but says it's meant to make a serious point. You might think that the point would have to be how little sense it makes to give anyone the power to sue anyone over anything, but it turns out that Sen. Chambers actually opposes proposals in Nebraska to restrict the filing of meritless lawsuits, and thinks, with perhaps elusive logic, that his stunt somehow will make people agree with him on that. (KPTM with filing in PDF format, KETV, FoxNews.com, AP/Omaha.com, Volokh). The best picture to run with the story is definitely the Apr. 12, 2006 file photo at MyWay/AP News.

"Caterpillar Inc. cannot be held legally liable for the use of its bulldozers in Israeli military operations because the equipment is paid for with American government funds and represents an extension of American foreign policy, a federal appeals court ruled." (Josh Gerstein, "Caterpillar Escapes Liability For Israeli Bulldozer Operations", New York Sun, Sept. 18). The court invoked the political question doctrine: "Allowing this action to proceed would necessarily require the judicial branch of our government to question the political branches' decision to grant extensive military aid to Israel. ...In this regard, we are mindful of the potential for causing international embarrassment were a federal court to undermine foreign policy decisions in the sensitive context of the Israeli-Palestinian conflict." (Dan McLaughlin, Sept. 18). Earlier coverage on this site is here.

"The Corrie family was represented by the Center for Constitutional Rights and Seattle University Law School's Human Rights Clinic." (John G. Browning, "Legally Speaking; Sue the bulldozer company, and get crushed by common sense", Southeast Texas Record, Sept. 11). Joining the family's cause on appeal was Duke lawprof Erwin Chemerinsky, who, unrelatedly, has now been restored to an offered position as dean of the new UC Irvine school of law, following a bizarre offer-withdrawal that drew protests from across the political spectrum. Ken McCracken at Say Anything comments (Sept. 17) about the Ninth Circuit decision and the Irvine reinstatement, "For Chemerinsky, justice was served correctly to him in both instances." More: Michael Krauss @ PoL.

A major rebuke for former California AG Bill Lockyer and his successor, Jerry Brown, as well: "A federal judge in San Francisco today threw out a lawsuit filed by the state Attorney General's office against the six largest automakers in what had been billed as a novel attempt to hold the companies financially liable for global warming. ... U.S. District Judge Martin Jenkins said it would be inappropriate for the court to wade into issues pertaining to interstate commerce and foreign policy - matters that should be left to the political branches of government." The judge's order can be found here (PDF). (Henry K. Lee, San Francisco Chronicle, Sept. 18)(cross-posted from Point of Law).

• L.A. city council debating settlement of Tennie Pierce (firehouse dog food prank) case, apparently for several million [AP/Mercury-News; earlier]


• Lerach said to accept jail term of 2 years or less in plea deal, won't testify against former partners [Washington Post, Point of Law; earlier]


• No shock, Sherlock: divorce cases said to have the highest rate of perjury in open court [Oregonian via WSJ law blog]


• Things you might not have known about the Duke/Nifong case unless you've read the new Stuart Taylor/K.C. Johnson book [Leo, Minding the Campus; Thernstrom]


• Take a wild guess as to one reason doctors are reluctant to communicate with their patients via email, despite the many potential advantages [Medical Economics via KevinMD]


• Latest suit charging casino should have recognized customer's gambling addiction [Indianapolis Star; earlier]


• One brother kills the other in anger in the North Carolina woods, both members of a logging crew; ruled compensable under workers' comp [Coppelman]


• My client, the dog: another trend piece on steady expansion of animal law [Boston Globe]


• Prankster gets American U. alumni mag to print erroneous report of two classmates as being gay. Defamatory? [New York Post, Smoking Gun; Julie Hilden a while back]


• Trial begins in Kentucky of civil suit arising from the string of McDonald's strip-search hoaxes Ted wrote about last year [OnPoint News, Louisville C-J/USA Today]


• Woman who nearly froze to death after a night of drinking sues city, emergency personnel and taxi driver who dropped her at home [five years ago on Overlawyered]

The UC Irvine-Erwin Chemerinsky debacle has been covered extensively in the blogosphere -- Walter has a roundup of links over at Point of Law. One thing is for certain, though: regardless of the wisdom of UC Irvine's actions, it clearly has the right to choose its dean based on any (non-discriminatory) criteria it wants. If the university isn't happy with Chemerinsky's ideological viewpoint, it obviously has the right to choose someone more compatible, right?

Well, maybe not, as Eugene Volokh explains. Under the wonders of California employment law, the mere fact that someone has abhorrent views doesn't give you the right to fire him, and it doesn't give you the right to decide not to hire him:

In fact, if the statute is read according to its text, coupled with the way the California Supreme Court has interpreted it, then all California employers must retain employees despite their controversial off-the-job statements, even when those statements are incendiary and alienate the employer's customers, donors, employees, or others.

[...]

So it seems that an employer's policy (written or not) that it won't hire or won't retain employees who make public statements that alienate members of the public — or more specific policies applying to, say, racist statements, religiously bigoted statements, sexist statements, and the like — would be illegal.

Employers would thus not only be barred from firing employees because they are Democrats or Republicans. They would also be barred from refusing to hire Klansmen or people who have made racist, anti-Semitic, or anti-Catholic statements, even when the candidate is being hired for a high-profile public contact or leadership position, and when many of the employer's customers would be deeply alienated by the person's statements (past or future).

Quick multiple choice question: you call the police to report an emergency. Several officers respond. Who do you want supervising these officers?

1. Smart police officers
   
2. Police officers who speak English
   
3. Police officers who can choose the right strategy from multiple possibilities
   
4. All of the above

Five police officers from Lawrence and Methuen filed a federal civil rights lawsuit yesterday against the two cities and the state, contending that the state promotional exam discriminates against members of minority groups and has prevented their advancement within the ranks.

[...]

They say the multiple-choice format of the test, not the content of the questions, has blocked the rise of minorities, many of whom grew up speaking a different language. They want the state to devise a promotion system that would better reflect the skills used by a police supervisor, instead of how well they answer multiple-choice questions.

"I think this exam is really outdated," said Cano, who scored a 78 in 2006. "For me, a person whose native language is Spanish, it's a challenge. The questions are extremely complicated."

Kevin Sledge, 45, a patrolman in Lawrence for 14 years, said the test favors those who have more practice taking written exams. He took the exam last year for the first time, scoring a 76, but was passed over for others who scored higher.

"Some people are more practical and verbal, and those are important skills to be a police supervisor," he said.

(Past Overlawyered fun with civil service exams: Mar. 2005, Apr. 2006, Jan 2007, Aug. 1, others.)

It has long been noted that lawyers can (when judges let them) employ the process of jury selection to plant themes, factoids and manipulative images favorable to their cause before a trial even gets under way. Which brings us to the just-begun Galveston trial of lawsuits against BP over a deadly 2005 explosion at its Texas City, Tex. refinery:

As Brent Coon, an attorney representing four of the five workers whose lawsuits are set to be tried, talked to potential jurors, he displayed a picture of Enron's logo on two large screens behind him.

Jim Galbraith, one of BP's attorneys, objected to the oil company being compared to what happened at Enron, which went bankrupt in 2001. Galbraith accused Coon of arguing his case before the trial had begun.

"We are not trying to say BP is Enron. But Enron did have a major case with a lot of publicity and did a lot of things wrong," Coon said before state District Judge Susan Criss ordered the Enron logo off the screens. ...

Galbraith later objected when Coon showed the jury pool of more than 200 people a well-known photograph of major tobacco company CEOs raising their hands in 1994 just before they testified to Congress that nicotine wasn't addictive when internal documents showed the companies knew the opposite was true.

"He's still arguing his case," Galbraith said.

Criss later told Coon he couldn't show any more of these images. ...

Just to confirm for those who may be wondering, BP, long known as British Petroleum, is not a tobacco company and has no particular connection to Enron other than being in the energy business. Maybe BP should have used its side of juror selection to flash large images of scandal-plagued or widely disliked Texas plaintiff's attorneys who are not Brent Coon. (Juan A. Lozano, "BP Objects to Enron Comparisons", AP/Forbes.com, Aug. 31).

Ted is on vacation in Europe, and sends the following:

So Slim and I went paragliding in Interlaken, Switzerland, today. As the van takes a group of five customers up to the top of the hill, the leader explains that we'll each get to pick our tandem pilot.

I consulted my inner economist. "I want the one with the gray hair," I said.

The pilot, Robi, gave me a form. "Regulations. Just like any air flight, we need to have the name and destination recorded. The liability is just like Continental Airlines," handing me a ticket to sign. I read the back, expressly disclaiming that Air Transport laws applied, and stating maximum liability would be 72,500 francs. And since it's Switzerland, the law of contract is probably respected, so that's a real waiver. Fair enough -- if I do not fly, so much as plummet, my ability to recover in civil court is perhaps the last thing on my mind. My pilot has plenty of economic incentive to land safely such that civil liability does not add much at the margin. And Coase teaches us that the limited liability permits the price to be as low as it is. I accept the benefit of the bargain, and assume good faith that the professional paraglider is just unfamiliar with the nature of the forms rather than trying to snow me.

The fact that I'm writing suggested that I survived. But I'm pretty confident that one is not supposed to bounce on the side of the hill during takeoff. (Slim, whose launch was after mine, reports that one of the other pilots crossed himself at the time.) And, hey, fun.

The Examiner, the newspaper chain with outlets in Washington, San Francisco and other cities, kicks off a five-part series on "Lawyers Gone Wild" with a package of articles including "Is There a Doctor in the House...Who Hasn't Been Sued?", "High-dollar settlements mark class action cases", "Little relief: Litigation costs rising as firms face fewer suits", and "Rogues gallery of class action attorneys". I'm mentioned, as is this site, in the last of these articles, and my colleagues James Copland and the Manhattan Institute Center for Legal Policy are mentioned in the articles on class actions and litigation costs. The authors are Cheryl Chumley and Washington Examiner editorial page editor (and blogger) Mark Tapscott.

Four more installments are slated in the series. To quote the newspaper:

* Sept. 21 - Buying political power and friends in high places
* Sept. 28 - How they do it
* Oct. 5 - Hard times in super lawyer land
* Oct. 12 - Securities lawyers' heads we win/tails you lose deal for corporate America

(cross-posted, with slight alterations, from Point of Law).

Reader Eric Bainter writes:

The shenanigans of the NC prosecutor Mike Nifong got me to thinking about misbehaving attorneys in general; me being from the San Antonio area, this led me to wonder "whatever happened to those attorneys in the fraudulent suit against Chrysler?" (covered on Overlawyered May 23 and Jun. 26, 2000; Mar. 17 and Jul. 10, 2003; Aug. 1, 2006). During a fit of insomnia I decided to find out.

I started by checking the coverage on your site which most recently had noted, in the post from August of last year, that the Texas bar had still not yet gotten around to dealing with Andrew Toscano, one of the lawyers implicated in the affair. I searched the Texas Bar website, and found this was not quite true - Toscano got his discipline, such as it is, the day before your entry. I have copied and pasted beneath (after the jump) the entries for all three lawyers. Robert Kugle, the central figure in the fraud, got disbarred in 2003. The other two, Toscano and Robert L. Wilson III, only relatively recently got their punishments - two year suspensions - and if I understand the term "fully probated" correctly, their "suspensions" are "suspended" and they can still practice law. Each was fined $2500 in attorney's fees and court costs - I assume this goes to the Texas Bar. No mention of the $1 million in sanctions from Judge Peeples.

I also found this article from Law.com that sheds some light on the "suspensions".

I searched on the Internet for the current whereabouts of Toscano and Wilson. Andrew E. Toscano apparently now practices with a firm called "Gene Toscano, Inc." I don't know whether that is a relative of his, or Andrew's middle name happens to be "Eugene" and he has decided to practice under that. No website for that firm that I can find.

Robert L. "Trey" Wilson III apparently practiced environmental law for a while after leaving Kugle's firm (or maybe Kugle's firm left him?) -- the San Antonio bar featured him in its newsletter last December. I also found a now-defunct profile/bio page within the website of the attorney Louis Rosenberg, who does environmental law in San Antonio, but I do not notice any current mention of Wilson's name on Rosenberg's home page -- he is not in Attorney Profiles, for example. If "Trey" worked there, I suspect he no longer does.

My temporary bout of insomnia seems over now. Best wishes,

Eric Bainter

[details of Texas bar discipline follow after the jump]

"Three and a half years after launching a high-profile legal attack on Linux, The SCO Group has filed for Chapter 11 bankruptcy protection. ...the company's legal case was dealt a crushing blow in August, when the federal judge overseeing its case, Dale Kimball, concluded "that Novell is the owner of the Unix and UnixWare copyrights." Presumably the law firm of Boies, Schiller & Flexner, which was pursuing SCO's ambitious anti-Linux claims on contingency, has had to scale back its expectations of a payday (Stephen Shankland, CNet, Sept. 14). Earlier: Nov. 6, 2003, Nov. 13, 2004. More: Roger Parloff, Fortune "Legal Pad".

Which nonprofit has put out a newsletter whose contents consist of more than a half-dozen news vignettes, all recently covered on Overlawyered, but provides no clue to readers that the stories might have been found via this site? And has done this more than once?

You'd think it was for a nuclear waste plant, not a small pair of marinas on a Colorado lake (Aug. 16). If you're going to store batteries in a shed, apparently you need to hang a sign saying "Batteries" on the shed (TJIC, Aug. 16). But then, "Colorado is one of the states I have to have a special license to sell eggs."

P.S. And in the same vein, here's Prof. Bainbridge being told by L.A. permits authorities that according to zoning records, his house does not exist (Sept. 12).

It seems everyone else is (Michael Myser, Wired News, Aug. 21).

Because of interest and attorneys' fees, the figure ordered by an arbitration panel is up from the $35 million reported in our earlier coverage (Apr. 15, Jun. 9, Jul. 19, Jul. 20, Jul. 25). The panel agreed that O'Quinn had overcharged former breast implant clients. (Debra Cassens Weiss, "Lawyer O’Quinn Ordered to Pay $41.4 M", ABA Journal Online, Sept. 12).

Overlawyered has been covering this particular scandal for more than eight years (Aug. 4, 1999), sometimes out in front of the conventional press.

When police officers are caught driving drunk, they naturally incur especially severe consequences, since it's vital that they set an example of respect for the laws, and since recklessness is an especially dangerous trait to tolerate in persons who are issued public guns and given arbitrary authority over the lives and liberty of others.

Just kidding! For what really happens to police officers caught driving drunk, at least in one big metropolitan area, see this investigative series (week of Aug. 6) in the Seattle Post-Intelligencer (via Ed Brayton). And for reminders of the law's attitude toward ordinary citizens caught in the same circumstances, see, for example, Aug. 13, 2004, Apr. 19, 2005, and Dec. 2, 2005 (& welcome Instapundit readers).

TB-flying Atlanta lawyer Andrew Speaker tells his side of the story. (Meredith Hobbs, "Bad Image Lingers for Atlanta Lawyer With TB", Fulton County Daily Report, Sept. 13).

Suburban Seattle: "A lawsuit accusing four current and former Shoreline City Council members of holding illegal secret meetings two years ago to oust the city manager and decide on his replacement could mean a few hundred dollars in fines for the politicians if they lose." The legal fees, however, have already mounted to the $700,000 mark with no end in sight, as the parties prepare for a trial. Plaintiffs say the matter could have been settled early with an apology and a small fine; defendants say principle is at stake and that the suit is a way for their disgruntled opponents to cause trouble. (Jim Brunner, "Potential legal tab in Shoreline council lawsuit 'ridiculous'", Seattle Times, Sept. 13). And more: case settles for $159,000 ("Shoreline to pay $159,000 to settle open meeting lawsuit", Sept. 14).

• Pearson Pants update: dry cleaners offered to drop their fee demand if Pearson would end case, but he declined [Marc Fisher, other Washington Post coverage, Beldar]


• Check your oil, ma'am? On second thought, if it's going to get us sued, never mind [Reiland/Pittsburgh Tribune-Review]


• "Surprising and uncommon" resolution of med-mal case: Nebraska Methodist Health System admits error, cooperates with family on video memorializing victim and educating other hospitals about aortic dissection [Omaha World-Herald, Chamber reprint]


• Heated email exchange between perennial Overlawyered favorite Jack Thompson and Take Two game company exec [Ambrogi]


• Putting her image on a Hallmark card? Now that's degrading and exploitative enough to make Paris Hilton want to sue [K.C. Star]


• Uncle sues nephew over season tickets to Chicago Bears at 40-yard line [Crain's Chicago Business]


• Hurt her teeth on McDonald's cherry pie, hurt her teeth on cheeseburger soon after -- and what's this about forged dental-work receipts? [Seattle Times]


• Wisconsin snuff users may soon be rolling in coupons following settlement of antitrust class action, lawyers to pocket $17 million [AP/Green Bay Press-Gazette]


• New at Point of Law: fiasco of UC Irvine's withdrawn offer to Chemerinsky; judge says $500/hr is enough for lawyers in Northwest bankruptcy; law firm advertises for heart attack victims to sue over lack of defibrillators in public places; Astroturf detected in Washington-state insurance-suit referendum fight; NY Times takes skeptical look at Mount Sinai's Selikoff Center; Jerry Brown sure fooled us, says San Diego paper; Ted expands his empire; and much more;


• A topic on which we've had a lot to say over the years -- to what extent does the Americans with Disabilities Act apply to websites? -- may be heating up again [Corporate Counsel]


• Thanks for the incoming links from, among others, Instapundit (on Ted's reclining-car-seat post, which has drawn a bodacious number of comments), Patterico (on Jarek Molski), Bainbridge (on animal welfare laws), and Adam Smith Institute (on lawyers suing each other: "Such a pity that only one side can lose".)

Ted has a new essay out by this title in AEI's Liability Outlook series (Sept. 11). To quote from the conclusion:

One can debate the appropriate role for each of the three branches in the post-9/11 world in coordinating domestic and foreign policy in responding to terrorism. But one matter should be beyond debate. Individual litigants in individual cases should not be able to use the combination of civil liability rules and the power of the civil courts to interfere with larger national policy. Congress can disagree with the executive branch, but should do so through legislation, rather than abdicating its responsibilities to trial-lawyer proxies. Civil liability is a poor tool for deterring suicide bombers, and civil anti-terrorism laws are bound to have their greatest effect when used against innocent parties.

Kia Vaughn, the Rutgers basketball player who filed a defamation lawsuit against Don Imus over his "nappy headed hos" comment, has withdrawn her suit:

Vaughn's attorney, Richard B. Ancowitz, said in a statement yesterday that the junior from the Bronx decided not to pursue the suit so she could focus on academics and training for the upcoming season. Rutgers, which made it to the NCAA championship game last season, is expected to be one of the top teams in the country.

"Her strong commitments to both (academics and basketball) have influenced her decision to withdraw the suit at this time," Ancowitz said in the statement. "We feel that we have made a strong and important statement against such hateful speech with the filing of this lawsuit."

I think the Overlawyered discussion thread (Aug. 15) about the case lasted longer than the lawsuit.

Mike Wallace, a 41-year-old Charleston attorney, completed his bucolic riverfront playground with a 53-foot-long metal slicky slide from a defunct water resort, and spared no expense of cranes, trucks and barges to get it there. And the irony isn't lost on him: "I'm a trial lawyer and it was probably trial lawyers that shut that place down." Guests? "I'll probably ask people to sign a release." When the lake resort that had formerly owned the slide closed down in 1987, "its owners said astronomical rises in liability insurance forced their decision". (Monica Orosz, "Slide from old Rock Lake Pool gets new life on river", Charleston Daily Mail, Sept. 7)(& thanks to Eric Turkewitz for correcting "slicky slide" from the worse than nonsensical "sticky slide", which I'd originally typed) .

Ah, but knowing which material to plagiarize -- that's the skill the client is really paying for, right? But an Iowa court wasn't pleased with West Des Moines lawyer Peter Cannon's conduct, and ordered him to surrender fees and take an ethics course. (TaxProf, Sept. 10).

It's not just organizations and enterprises who have to worry about these things, as the National Law Journal takes note in a trend story:

An increasing number of executives, managers and other company leaders are being sued personally for their work-related decisions....

"State laws are constantly being broadened and liberally construed by the courts to allow for potential lawsuits against individuals," said Thomas Lewis, chairman of the employment litigation group at Stark & Stark in Lawrenceville, N.J. In the last five years, Lewis has seen a 50 percent increase in his own practice defending executives in personal lawsuits.

"[Plaintiffs' attorneys'] desire is to strike fear into the executive to try and force a settlement," he said.

Plaintiffs attorneys don't see it that way. "Sometimes you've got to hit the executive between the eyes with a lawsuit," said S. David Worhatch, an employee rights attorney in Stow, Ohio, who is currently handling a half-dozen employment-related lawsuits targeting individuals directly....

"Individuals will think twice before engaging in such conduct if they realize they can be personally exposed to liability." he said....

Ginger McRae, an employment law expert who testifies in employment lawsuits and consults businesses on employment practices... noted that "[i]n the past few years, I've definitely seen more of a trend to this, and definitely in the state cases where there are state tort claims. That is where the plaintiffs lawyers really have the most freedom to name who they want."

Plaintiffs attorneys note that state courts are easier venues in which to try personal lawsuits, largely because state discrimination and employment laws are looser than federal ones and allow for individuals to be held personally liable for various workplace violations.

Query: where the story reads "Plaintiffs attorneys don't see it that way," wouldn't it make more sense for it to have read "Plaintiffs attorneys see it exactly the same way"? (Tresa Baldas, "Employment Litigation Gets Personal for Company Managers", National Law Journal, Aug. 16).

"Amid worries of an obesity epidemic and its related illnesses, including high blood pressure, diabetes and heart disease, Los Angeles officials, among others around the country, are proposing to limit new fast-food restaurants -- a tactic that could be called health zoning." Zoning restrictions on fast-food outlets in towns such as Concord, Mass. and Calistoga, Calif. are typically based on traffic or aesthetic concerns, rather than a determination to second-guess what residents choose to eat. The proposed L.A. restrictions would not be city-wide but would instead be specifically targeted to the city's poorest sections in and around South Central. Mark Vallianatos, director of something called the Center for Food and Justice at Occidental College (more about it), says "bringing health policy and environmental policy together with land-use planning" is "the wave of the future." (Tami Abdollah, L.A. Times, Sept. 10)(via FEE).

"Indonesia's highest court ordered Time magazine to pay $106 million in damages for defaming former dictator Suharto by alleging his family amassed billions of dollars during his 32-year rule, officials said Monday." (Ali Kotarumalos, "Time Magazine Loses Suit Against Suharto", AP/Huffington Post, Sept. 10).

Slate's Emily Bazelon doesn't read the owners' manual for her car, does something the owners' manual explicitly says not to do—recline a seat in a moving car—and hurts herself. Bazelon blames... the automaker and NHTSA for not doing more to warn her, and serves as a mouthpiece for plaintiffs' lawyers who specialize in such arguments, lionizing one who won a $59 million verdict against Toyota for his client's own foolhardiness.

The NHTSA official Bazelon talks to points out that she's taking one safety issue out of context; Bazelon pooh-poohs it because, after all, it happened to her and some other people, too! But Bazelon ignores that there are several dozen other dangerous problems addressed in the owners' manual, many of which would kill or injure far more passengers than reclined drivers' seats. One cannot just look at the idea of putting a single additional sticker on the dashboard: the car would have to be literally wallpapered with additional warnings to cover every warning of a matter at least as hazardous as car-seat reclining, at which point we're back to the problem of owners ignoring warnings. Bazelon simply fails to address this reality.

But, hey, I'll join Bazelon in telling you: don't recline your car seat in a moving vehicle. (Long-time Overlawyered readers already know this from two separate posts.) Also, don't drive with your windows open, your doors unlocked, or your seatbelt unfastened. Reattach your gas cap after filling the tank. Look behind you and ensure the path is clear before going in reverse. Keep your eyes on the road. Don't pass a car in a no-pass zone or drive twice the speed-limit. Sit up straight, especially in a front seat with airbags. Don't have loose heavy objects (including unbelted passengers) in the passenger compartment of the car. Don't permit children to play with power windows; don't leave children unattended in a car that is on; don't leave the car on when you're not in it; don't try to jump into a moving vehicle. Don't leave your shoes loose while driving. Be careful when shifting gears. Do not violently swerve an SUV, especially if there are unbelted passengers. Always be aware of the danger of pedal misapplication. Don't fall asleep while driving. Don't drive recklessly, and if you do, don't leave the road. Use your parking brake when you park. Replace a tire after repeatedly patching it; don't drive on bald tires in the rain; and replace your ten-year old tires before you have to drive on a spare. Make sure your floor mat isn't interfering with the pedals. Don't drive into the back of a truck at 60 mph without braking. Et cetera.

(And welcome, Instapundit readers. Check out our vast selection of automobile and personal responsibility articles.)

The city known for ghost voters also has ghost parking signage, it would seem:

[Heather Thome] was dismayed when she returned to find a police officer had just written a ticket for violating a parking ban from 4 to 6 p.m.

"I asked him where the sign was," said Thome, 35, a temp worker. "He said there used to be a sign on 'that' pole, and it hasn't been there for two years. My logical question was, 'How can you write a ticket?' And he told me he doesn't want to, but his boss tells him he has to go out every day and write tickets." ... She [appealed but] still was found liable.

(Gary Washburn, "City rakes in revenue from tickets", Chicago Tribune, Aug. 12). More: Cernovich.

Mark Steyn throws down the gauntlet:

Last week the New York Times carried a story about the current state of the 9/11 lawsuits. Relatives of 42 of the dead are suing various parties for compensation, on the grounds that what happened that Tuesday morning should have been anticipated. The law firm Motley Rice, diversifying from its traditional lucrative class-action hunting grounds of tobacco, asbestos and lead paint, is promising to put on the witness stand everybody who "allowed the events of 9/11 to happen." And they mean everybody – American Airlines, United, Boeing, the airport authorities, the security firms – everybody, that is, except the guys who did it.

According to the Times, many of the bereaved are angry and determined that their loved one's death should have meaning. Yet the meaning they're after surely strikes our enemies not just as extremely odd but as one more reason why they'll win. You launch an act of war, and the victims respond with a lawsuit against their own countrymen.

But that's the American way: Almost every news story boils down to somebody standing in front of a microphone and announcing that he's retained counsel. Last week, it was Larry Craig. Next week, it'll be the survivors of Ahmadinejad's nuclear test in Westchester County. As Andrew McCarthy pointed out, a legalistic culture invariably misses the forest for the trees. Sen. Craig should know that what matters is not whether an artful lawyer can get him off on a technicality but whether the public thinks he trawls for anonymous sex in public bathrooms. Likewise, those 9/11 families should know that, if you want your child's death that morning to have meaning, what matters is not whether you hound Boeing into admitting liability but whether you insist that the movement that murdered your daughter is hunted down and the sustaining ideological virus that led thousands of others to dance up and down in the streets cheering her death is expunged from the earth.

(Mark Steyn, "No terrorism, just war?", Orange County Register, Sept. 9; Anemona Hartocollis, "Little-Noticed 9/11 Lawsuits Will Go to Trial", New York Times, Sept. 4; also to the point).

All-New England edition:

• Massachusetts bar-exam flunker drops suit over gay-marriage question [Boston Herald, OnPointNews; see Jul. 7]


• "We cannot get rail service between Nashua and Boston because a cap on liability may be unconstitutional in New Hampshire thanks to the trial lawyers" [letter in Nashua Telegraph; earlier news story]


• Whodunit? Everyone, as in a certain Christie novel: Rhode Island nightclub fire lawsuits name 93 different defendants [New York Times; see Feb. 16, 2006]


• Update: skull-fragment-keeping officer Callahan departs the Norwalk, Ct. police force [Created Things; earlier Jan. 23 and Jun. 21]

Litigious populist Larry Klayman, once a legal scourge of the Clinton White House and a repeat mentionee on this site (May 7 and links from there), has once again drawn rebuke from the bench. This time Judge Walter Tolub has denied Klayman the right to appear in his Manhattan courtroom, saying Klayman's "record demonstrates more than an occasional lapse of judgment, it evinces a total disregard for the judicial process":

The judge cited seven instances in which Klayman had been rebuked or sanctioned by federal judges. One of those was Southern District of New York Judge Denny Chin, who in 1997 sanctioned Klayman for making "preposterous" claims and engaging in "abusive and obnoxious" behavior.

Klayman, who vows to appeal the ruling, is seeking the right to represent former New York Post gossip reporter Jared Paul Stern in a lawsuit against billionaire Ronald Burkle. (Anthony Lin, "Klayman Denied N.Y. Admission in Former Gossip Reporter's Suit Against Billionaire", New York Law Journal, Sept. 7).

Once among the South's most financially successful and politically influential plaintiff's lawyers, attorney Paul Minor was sentenced on Friday to 11 years in federal prison following his conviction in a judicial bribery scandal we've covered extensively at this site. Two former judges convicted in the case, John Whitfield and Wes Teel, drew sentences of 110 months and 70 months respectively. Minor's lawyers had asked that he be sentenced to time served, and supporters had sent letters by the sackful asking for leniency. ("Gulf Coast lawyer Paul Minor gets 11 years in prison for bribing Miss. judges", AP/Natchez Democrat, Sept. 7; Jimmie Gates, "Minor, ex-judges sentenced in bribery case", Jackson Clarion Ledger, Sept. 7).

Judge Henry Wingate also fined Minor $2.75 million and ordered him to pay $1.5 million in restitution, not quite as telling a blow to his fortunes as one might assume, given that "Minor earns up to $2.5 million a year from a settlement with tobacco companies," not to mention all the other money he's made (Robin Fitzgerald, "'Lady Justice Is Sobbing", Biloxi Sun-Herald, Sept. 8). Minor is also being sued by insurer USF&G, which paid out a $1.5 million settlement to a bank represented by Minor in a case before Judge Teel. (Julie Goodman, "Minor's legal woes won't end when he goes to prison", Jackson Clarion Ledger, Sept. 8).

(Bumping September 6 post. Still only 113 members. Which means (1) without some more recruiting, we're not going to hit the charity goal; and (2) the rest of you are missing the discussion Walter and I had over the Democrats and tort reform, plus the bonus links Walter and I are providing.)

I'll be forthright: the Overlawyered.com Facebook Group was created as an experiment to see whether there were other media by which Overlawyered could deliver its content. (And it did have the side effect of getting Walter Olson to join Facebook.) And we're providing extra content there that isn't on the blog, plus the opportunity of open threads that our Movable Type blogging software doesn't provide.

Perhaps our readers are too mature for Facebook. (The #1 "related group" for the Overlawyered group isn't something libertarian or law-related, but "Unlike 99.99% of the Facebook population, I was born in the 70s"—and Walter and I are too old even for that group.) And we're not asking you to join Facebook if you're not already a member. But, if we do have readers on Facebook, we'd like to see you in our group: your membership passively helps promote the site and spread the word in the increasingly crowded legal blog market. The larger our readership, the easier it is for Walter and I to self-justify spending time blogging instead of writing for conventional mainstream publications. Everyone wins!

The question is whether Facebook is a good vehicle to accomplish this goal. With so few members in our Facebook group, I'm skeptical: it's not worth the effort to create extra content for a few dozen extra readers, and the group would become dormant. So I'm going to try another experiment. I'm setting a goal of getting 1000 members into our Facebook group by September 30. If we reach that membership goal, I promise to donate up to $2000 to a sympatico tax-deductible charity chosen by a thread or poll in the Facebook group—$1000 for the thousandth member, $1 more for every additional member (up to 2000) we have at 11:59 pm Eastern on September 30. What say you, the loyal Overlawyered readership? If you're a Facebook member, come join our group, and tell your friends about us.

Longtime readers of this site may remember attorney Judy Cates of Swansea, Ill., who filed and later settled a defamation lawsuit against St. Louis Post-Dispatch columnist Bill McClellan over a humorous and disrespectful column McClellan had written regarding a controversial class-action settlement Cates and other lawyers had reached with magazine sweepstakes firm Publishers Clearing House (Nov. 4 and Nov. 30, 1999; Feb. 29, 2000; for other watch-what-you-say-about-lawyers cases from Madison County and thereabouts, see Dec. 23, 2004). More recently, Ms. Cates served as elected president of the Illinois Trial Lawyers Association (Jul. 3, 2006). And now she's thrown her hat into the ring for a seat on the state Fifth District Appellate Court, which sprawls over 37 counties. She'll mount a challenge in the February Democratic primary to Jim Wexstten, who was appointed this year to fill a vacancy on the court and who is regarded as a moderate-to-conservative Democrat. The Post-Dispatch's coverage forgivingly (or perhaps prudently) does not mention her having sued the paper's columnist (Adam Jadhav, "Swansea lawyer to challenge appointee for judgeship", St. Louis Post-Dispatch, Aug. 25; Nicholas J.C. Pistor, "Lawyer's entry heats up race for appellate court", Aug. 28; "Not recommended" (editorial), Madison County Record, Aug. 18).

Former Durham prosecutor Mike Nifong, railroader of the Duke Lacrosse 3, was found guilty of contempt of court and sentenced to one day in jail; this punishment is for lying to the trial court about the existence of DNA evidence. He reported to jail today to serve his sentence. He has already been disbarred, of course.

Next to come is the players' civil suit, though that money is unfortunately going to come from the taxpayers of Durham rather than from Nifong. The players are attempting to negotiate a settlement before filing their suit; they're reportedly seeking $30 million, plus changes to the legal process to allegedly prevent the district attorney from hijacking a police investigation the way Nifong did. They intend to file suit within a month if the city doesn't settle. (AP, Herald-Sun)

And then there's this little tidbit:

Durham's Police Department, which helped Nifong secure the indictments, has also come under criticism. A special committee probing police handling of the case stopped working last month, however, because the city's liability insurance provider warned that the committee's conclusions could provide material for lawsuits.

We're very likely to have one next time (Jill Lawrence, "For next president, USA likely to call on lawyer", USA Today, Sept. 5).

Some updates to earlier stories we've covered:

• Spyware maker Zango, which embarked on a strategy of suing all the anti-spyware vendors that were calling its products spyware, has dropped its lawsuit against PC Tools, the maker of Spyware Doctor. (We covered the filing of the lawsuit on May 23.) Presumably it chose to drop the suit because it just lost a similar one against Kapersky Lab, with a federal court ruling that antispyware companies' decisions of this sort are protected from suit.

  Eric Goldman has the details, including links to all the relevant decisions.

• We reported on August 21st on the "crackpot" libel suit against blogger PZ Myers for an unflattering book review. Stuart Pivar, who filed the suit to great derision in the blogosphere, apparently dropped the suit a week later. (Even if the suit had legal merit, it was filed in the wrong court, so dismissal was just bowing to the inevitable; in theory, Pivar could refile in the appropriate court, but after the way constitutional law professor Peter Irons dissected the complaint, I think Myers ought to feel safe.) Free hint to readers: defamation lawsuits are almost always a bad idea. All they do is provide publicity to the very claims one is trying to suppress. Defamation lawsuits against prominent bloggers are even less sensible.

• Two years ago, the Illinois Supreme Court put an end to one of the more fraudulent "consumer fraud" lawsuits ever filed, a $10 billion lawsuit against Philip Morris for marketing "light" cigarettes in accordance with federal guidelines. But even though the state's highest court ordered the case to be dismissed, Madison County repeat offender Steve Tillery went back to a local court run by notorious Judge Nicholas Byron and tried to reopen the lawsuit. Finally, last month the Illinois Supreme Court definitively slapped down Tillery, telling Byron to dismiss the case.

  (Overlawyered's sister site Point of Law has been covering this case.)

We've covered many of Michigan trial lawyer Geoffrey Fieger's antics and legal troubles here on Overlawyered over the years; his most recent problems include being censured in Arizona and being criminally indicted for illegal campaign contributions.

But he may have managed to wriggle out of punishment for at least one of his shenanigans: his 1999 radio tirade in which he labelled as Nazis the judges who ruled against his client. He was sanctioned by the Michigan courts for this conduct, with the Michigan Supreme Court upholding the discipline against his first amendment challenge in Aug. 2006 (Yes, that's seven years after the incident.)

But this week, a federal court bought Fieger's first amendment argument, holding that the rules under which he was sanctioned were unconstitutional.

The rules say lawyers must treat everyone involved in the legal process with "courtesy and respect" and should "not engage in undignified or discourteous conduct" toward the bench.

In the decision released late Tuesday, U.S. District Judge Arthur J. Tarnow said "the rules are unconstitutional on their face because they are both overly broad and vague."

The likelihood that Plaintiff Fieger may again say something negative about a Michigan court that could subject him to further punishment under the courtesy provisions is not the attenuated situation presented in Grendell. Plaintiff Fieger is a vocal, often harsh, and at times vulgar critic of Michigan’s judiciary.

Tattoo-covered Eduardo Arrocha, who's been eating nails for 15 years in the sideshow role of "Eak the Geek", has decided to become a lawyer and has begun studies at Cooley Law School in Lansing. (AP/MLive, Sept. 4). James Taranto rather unkindly speculates that Arrocha's career switch "will improve the prestige of both professions" (WSJ Best of the Web, Sept. 5).

Just so you're totally clear on the meaning of the term pro bono when you read it from now on:

McMinimee [Seattle Public Schools attorney Shannon McMinimee] says it's "disingenuous" for the law firm, Davis Wright Tremaine, to go after money when the firm took the case pro bono. But firm spokesman Mark Usellis said "pro bono" means their clients don't have to pay.

"The thing that's really important to us in a civil-rights case is that Congress specifically and explicitly wrote into the law that if the government is found to have violated citizens' civil rights, then the prevailing party should seek fee recovery," he said.

Most governments can argue, as Seattle Public Schools is, that they don't have much money. But going after the fees helps deter other government bodies from violating civil rights, Usellis said....

If the firm wins, the fees likely wouldn't be covered by the district's insurance carrier, McMinimee said. So the money would have to come out of the district's $490 million general-fund budget.

(Emily Heffter, "Law firm wants school district to pay $1.8M", Seattle Times, Sept. 6).

On the subject of Hizzoner and the gun litigation (James Oliphant, "Giuliani hitches star to conservative legal group", Sept. 6).

Glenn Reynolds quotes (AEI visiting scholar) Jack Goldsmith:

In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls. These men and women did not believe they were breaking the law, and indeed they took extraordinary steps to ensure that they didn't. But they worried nonetheless because they would be judged in an atmosphere different from when they acted, because the criminal investigative process is mysterious and scary, because lawyers' fees can cause devastating financial losses, and because an investigation can produce reputation-ruining dishonor and possibly end one's career, even if you emerge "innocent."

Welcome to the post-SarBox, [Eliot] Spitzer world. We in business face this on a regular basis. I can’t decide whether I’m glad public servants experience the same headaches we do or concerned because an intelligence/military failure costs lives, while a business failure costs only money (though when Spitzer was around, it also sometimes cost freedom).

In business, not only has bad judgment become a crime, so has a good decision made on the basis of incomplete information, which later turns out to have been the wrong call. This is not good for America, where innovation and risk are what we do better than Europe, China, or India.

The increasingly snazzy On Point reports:

U.S. District Judge Andrew J. Guilford in Los Angeles denied CKE Restaurants' motion for an order enjoining Jack in the Box from airing two television commercials promoting its rival “100% Sirloin Burger,” saying there was no evidence they misled consumers as to the physical origin of Angus beef.

A federal judge has rebuked a large Minnesota personal-injury law firm that, even before rescuers had emerged from the treacherous waters, had petitioned for access to the I-35W site for three attorneys and two expert witnesses. And Democrat-Farmer-Labor State Rep. Ryan Winkler has suggested establishing a public compensation fund, along the lines of the 9/11 fund, for victims who agree not to sue:

The legal spectacle about to play out threatens to drag on for years and impose huge costs on some defendants.

In the future, as Winkler has pointed out, even the largest contractors may hesitate to work on Minnesota's riskiest projects: repairs to crumbling infrastructure. "If engineers and constructors are scared away from bidding," he warns, "it will be a long time before our infrastructure is adequate and safe."

(Katherine Kersten, "After I-35W bridge collapse, lawyers promptly pounced", Minneapolis Star-Tribune, Sept. 2). Earlier: Aug. 9, Aug. 2.

A continuation of warfare by other means:

Hezbollah is planning to file a host of lawsuits against Israel over the damages it caused during the Second Lebanon War. Lebanese individuals with dual citizenship will file the suits in the countries where they hold citizenship.

Attorney Ibrahim Awada, who heads Hezbollah's legal department, revealed the plan last week on a Syrian television program devoted to "Zionist crimes against Lebanon." He said that each plaintiff will hire a lawyer in the country where he files suit, and Hezbollah will pay the lawyers' fees.

(Yoav Stern, "Hezbollah to file lawsuits against Israel for damage caused in war", Haaretz, Aug. 29; Jurist "Paper Chase", Aug. 29; HotAir.com, Aug. 29; Meryl Yourish, Aug. 29).

600,000 Barbie-doll accessories are being recalled in the latest China lead-toy scare; last month veteran product liability authority/defense lawyer Victor Schwartz offered some advice for the beleaguered toymaker (WSJ Law Blog, Aug. 14; "Mattel Announces New Toy Recall", WTOC-TV, Sept. 5).

We've been covering the exploits of professional ADA plaintiff Jarek Molski and his lawyer Thomas Frankovich for a long time now (See Aug. 3, Mar. 23, many others). When last we checked, Molski/Frankovich were appealing a federal judge's finding in Molski v. Evergreen Dynasty Corp. that they were vexatious litigants; the designation meant that they couldn't file any more ADA lawsuits in the Central District of California without first getting permission from the court.

Last week, the Ninth Circuit issued an opinion (PDF) which upheld the finding in its entirety. The only quirky part of the case was that it was likely that many of the establishments sued by Molski/Frankovich at least technically probably had violated the ADA by not complying with its vague, onerous requirements. But the Ninth Circuit had no problem getting beyond that:

Frivolous litigation is not limited to cases in which a legal claim is entirely without merit. It is also frivolous for a claimant who has some measure of a legitimate claim to make false factual assertions. Just as bringing a completely baseless claim is frivolous, so too a person with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally false.

However, it is very unlikely that Molski suffered the same injuries, often multiple times in one day, performing the same activities—transferring himself from his wheelchair to the toilet or negotiating accessibility obstacles. Common sense dictates that Molski would have figured out some way to avoid repetitive injury-causing activity; even a young child who touches a hot stove quickly learns to avoid pain by not repeating the conduct.

The Ninth Circuit was not any more complimentary towards Frankovich:

When a client stumbles so far off the trail, we naturally should wonder whether the attorney for the client gave inadequate or improper advice.

This isn't necessarily the end for Molski/Frankovich. The vexatious litigant order applies only to the federal courts -- in fact, only the federal courts in the Central District of California -- and does not prevent them from filing suit; it only requires them to seek permission of the court first.

The much awaited new book on the Duke lacrosse rape case is now out; authors Stuart Taylor, Jr. and K.C. Johnson need no introduction to readers of this site. More: Instapundit, Jeralyn Merritt, Abigail Thernstrom in WSJ.

Seventeen months ago, I noted that the most expensive Google AdSearch term was "mesothelioma lawyers" topping the charts at C$54.33. I further noted that such rich referral costs suggested that lawyers were rent-seeking and unethically obtaining surplus from clients, and bidding it away to search for new clients instead of lowering their rates.

How have things changed since? Well, lawyers have gotten slightly more sophisticated: the most expensive Google AdSearch term as of July 9, 2007, is "mesothelioma treatment options", and, aside from a couple of medical facilities, the vast majority of advertisers are for law firms or fronts for law firms. And the price for that search term is C$69.10, up about 27% in just over a year, demonstrating the rent-seeking involved. David Giacalone comments on the related issue of fixed contingency fees that take advantage of litigants.

No longer able to practice his art as one of the "Killer Bees" tag team duo in bee-striped trunks, and reduced instead to serving as an elected public official in Florida:

Six years after a restaurant accident that he blamed for ending his professional wrestling career, Brian Blair has settled his negligence lawsuit against Carrabba's Italian Grill. ...

Carrabba's attorney, Donald G. Greiwe, had filed papers indicating Blair was impaired at the time he tripped over a tray of bussed dishes at the restaurant. And Greiwe's exhibit list included a videotape of a tag-team wrestling match in Nagano, Japan, in October 2001 -- more than four months after Blair's accident in the Carrabba's on North Dale Mabry Highway. ...

Blair claimed his ring career came to an end on the evening of June 2, 2001, when he visited Carrabba's with his wife and two sons.... Blair, 50, filed the lawsuit on Nov. 5, 2002, three days after losing his first run for public office in a race for a Hillsborough County Commission seat won by Pat Frank. In 2004, Blair, a Republican, tried again and won a commission seat in a close contest against Bob Buckhorn.

He continued to press his case against Carrabba's even after his original lawyers quit. Attorneys Nadine S. Diaz and Ron Darrigo, who had taken Blair's case on a contingency basis, withdrew in January 2006, citing "irreconcilable differences" with Blair. ...

A record filed by Greiwe of an examination of Blair at St. Joseph's Hospital about an hour after the accident showed a blood alcohol of 0.089 percent, above the 0.08 level at which state law presumes an individual to be impaired. Greiwe said in court papers that Blair's fall was the "result of his own negligence."

Asked in a sworn deposition about his condition, Blair denied drinking before coming to the restaurant, suggesting he might have taken "one sip" of Carrabba's house wine before the fall.

(Jeff Testerman, "Blair, cafe settle lawsuit", St. Petersburg Times, Aug. 28).

You have to wonder what the legal ramifications would be if Wal-Mart itself decided to set its employees' pay (even its high executives') the way its courtroom nemesis is used to doing:

The $172 million Wal-Mart meal-break verdict won by The Furth Firm in 2005 ranks among the top 10 verdicts nationally, but few of the lawyers will be around to celebrate if and when the money arrives. A number of them have left the San Francisco-based firm, and none appear to have any guarantee of sharing in the eventual proceeds. Founder Frederick Furth, the sole owner of the firm, says salaries and bonuses are paid at his discretion, and no written compensation agreements exist for any cases.

(Petra Pasternak, "Small Firm's Lawyers Not Waiting for Wal-Mart Fees", The Recorder, Aug. 27; quoted text is Law.com summary).

Assisted by Loyola lawprof Dane Ciolino, critics are now before a Fifth Circuit panel trying to uncover the supporting documents that back up the division of fees among lawyers following a fuel-gauge-damage settlement against Shell; the case drew national attention after the lawyers in charge prevailed on a federal judge to conceal the allocation of fees from public scrutiny, including scrutiny by members of the client class as well as dissident lawyers (Apr. 9, Jun. 7).

When Little [fee committee attorney F.A. Little] contended that naming someone other than the committee to evaluate four years of work by lawyers in the case wouldn't yield the best result, Judge Edith Jones shot back, "Well, at least you get disinterestedness."

That quality, Jones said she learned from her days as a bankruptcy attorney, is essential to "anyone who is dividing up the debtor's money."

In an interview after the hearing, Ciolino said the public needs to know everything that went into deciding attorney fees in the Shell class action. "The public distrusts lawyers, especially in class-action cases, because it looks like it's all about fees," he said.

(Susan Finch, "Data used to split fees sought", New Orleans Times-Picayune, Aug. 10).

According to an indictment handed down by a federal grand jury, Erie, Pa.-based state appellate judge Michael T. Joyce, a ten-year Republican veteran of the bench,

received $440,000 in settlements for injuries he claimed "affected his professional and personal life in a very significant way" after an SUV rear-ended his state-leased Mercedes Benz at a traffic light in Erie.

Joyce claimed the accident made him unable to play golf, scuba dive or exercise. He also claimed the injuries prevented him from pursuing higher judicial office, according to the indictment.

The judge complained of constant neck and back pain, headaches, difficulty sleeping, anxiety and short-term memory loss, according to the indictment. He claimed he was in such pain from May to July 2002 that he could not play a round of golf or hold a cup of coffee in his right hand, the indictment said.

During the same period Joyce made these claims, he played several rounds of golf in Jamaica, Florida, New York and Pennsylvania, went scuba diving in Jamaica and renewed his diving instructor's certificate, prosecutors said.

The indictment also alleges Joyce used some of the settlement money to buy a Harley-Davidson motorcycle, a share in a single-engine Cessna airplane, property in Millcreek Township, Pa., and to pay down a personal line of credit.

(Peter Hall and Asher Hawkins, "Federal Indictment Looms Over Pa. Superior Court Judge's Retention Race", Legal Intelligencer, Aug. 17).

At first Joyce vowed to hold onto his seat, but after a public outcry, and a quick move by the state supreme court to suspend him from his duties pending resolution of the charges, he agreed not to stand for re-election in November. ("Indicted Superior Court Judge" (editorial), Philadelphia Inquirer, Aug. 22; Paula Reed Ward, "Indicted judge won't seek retention", Pittsburgh Post-Gazette, Aug. 21; "The Joyce indictment: A matter of integrity", Pittsburgh Tribune-Review, Aug. 21).

• Hush up with those jokes, now: Lerach Coughlin lawyer hailed as hero after jumping from his BMW to save pregnant woman attacked by pit bulls [ABA Journal]


• The "murky area between zealous advocacy and improper conduct": Judge Preska sanctions Cleary Gottlieb for litigation abuse [WSJ Law Blog, Lat]


• Out-nannying them all? Edwards says his health plan will legally oblige everyone to go in for checkups with the doc [AP; MagicStats, Howard, Althouse]


• Apparently we missed out on the Aug. 31 celebration of Love Lawyers Day [Giacalone]


• To settle lawsuit by psychiatrist's family, Augusten Burroughs agrees to call "Running with Scissors" a "book" rather than "memoir" [Althouse]


• Will contest over Maryland judge's estate has dragged on for fourteen years [Washington Post]


• Recap of Flea fiasco (doc liveblogging his own trial); we get randomly mentioned [American Medical News; earlier]


• "Viacom charges man with violating his own copyright, after he YouTubed their program that used his video." [Reynolds](but see: Evan Brown via Coleman]


• Is your lawyer a "chicken catcher" or a "chicken plucker"? [KevinMD]


• When if ever should "best interest" custody standard override parent's right to free exercise of opinion, religion, cultural affiliation, etc.? [series of Eugene Volokh posts]


• Don't forget to join our new Facebook group with distinctive content [if you're a member]


• New at Point of Law: Texas judge's son withdraws from odometer class action; what do environmentalist litigators have against whales?; N.Y. Times's born-yesterday Vioxx coverage (and this from Ted, which is pretty devastating); Dickie Scruggs takes down an insurance commissioner; sexual assault foreseeable when fraternity left in possession of unsupervised motel room? Marshall, Texas dignitaries rally to save their special court; and much more.

There's nothing intrinsically droll about this report of increased jollity, mirth and conviviality at the 2006 Clif Bar/Hagens Berman Starcrossed Cyclocross race, co-sponsored by the prominent Seattle class-action firm: "The men’s main event was fast, painful, and exciting and it certainly did not disappoint the rowdy pumped up crowds who had been feasting on Pabst Blue Ribbon in the beer garden all day long." (Cycling News, October). The only potentially humorous note is to those of us who remember Hagens Berman as having thrust itself forward a mere three years ago in the national media as the national scourge of alcohol marketing -- beer marketing in particular (Mar. 29, 2004). The Milwaukee Journal-Sentinel article we cited at the time, with chapter and verse on the firm's grandstanding against the sudsy brew, is still online.

Sort of like being paid for not planting corn? "[A]n oysterman here in the nation’s top oyster-producing state can make as much, if not more, collecting damage settlements from oil companies as from harvesting the bivalves themselves, according to a recent study by two Louisiana State University economists."

“On average,” they wrote, “oyster leases generate a majority of their net income from non-oyster-producing activities.” Money “appears to flow to leases irrespective of their ability to produce marketable oysters.”

So lucrative is the potential payoff from the oil companies that there is almost certainly a lively trade among oystermen in the “speculative” leasing of otherwise unproductive water bottoms, Dr. Keithly and Dr. Kazmierczak [Walter R. Keithly Jr. and Richard F. Kazmierczak] concluded.

Indeed, speaking on condition of anonymity, one of the major “landmen” -- middlemen who negotiate between oystermen and oil companies -- agreed that some fishermen deliberately leased bottoms in harm’s way, in order to collect from the companies.

The New York Times says the "oyster community" in the Pelican State is infuriated at the report and calls it false. (Adam Nossiter, New York Times, Aug. 15).

Our earlier coverage of one bizarre excursion by the Louisiana courts into oyster-lease compensation is here, here, here, and here. The broadside The Oyster Girl, widely distributed in the English singing tradition, underscores the importance of watching one's pockets when oysters are being traded.

"A trio of judicial appointments announced this week underline [Mich. Gov. Jennifer] Granholm's determination to temper [former Gov. John] Engler's judicial revolution -- and reward Michigan's plaintiff's bar, which has been among her most important sources of financial support." Of three trial lawyers Granholm is naming to judgeships, two have served as board members of the Michigan Trial Lawyers Association. (Brian Dickerson, Detroit Free Press, Aug. 22).

Too bad the courts have decided to leave the Eighth Amendment's Excessive Fines Clause on the shelf, it might otherwise be helpful to everyone from Virginia motorists to sexual harassment defendants (Ralph Reiland, "The ignored amendment", Pittsburgh Tribune-Review, Aug. 27). More resources here, here, and here (noting Supreme Court's ruling in Browning-Ferris that the clause restrains excessive fines only when payable to the government, not private parties).

"A lot of plaintiff lawyers simply use the litigation process to find out whether it's a good case as opposed to trying to find that out before they sign it up," Mr. Johnston says.

-- from a profile of Randy Johnston, a Dallas lawyer who specializes in plaintiff's legal malpractice work. (Cheryl Hall, "Randy Johnston is a lawyer who sues other lawyers", Dallas Morning News, Aug. 20).

The U.S. Chamber-affiliated West Virginia Record has some further details on, as well as a selection of media reaction to, the $10 million lawsuit by Jeromy Jackson of Morgantown charging that the burger chain put cheese on his Quarter Pounder despite his requests, thus triggering an allergic reaction. (Cara Bailey, "'Hold the cheese' suit draws worldwide attention", Aug. 17). Earlier: Aug. 10.