February 2008 Archives

Public Citizen's blog announced that CSPI plans to sue the beverage sellers, asking for disgorgement of profits from flavored malt beverages, unless they agree to take them off the market. Their theory? By making flavored alcoholic beverages that taste good, they are effectively marketing to children. (Because, after all, adults don't like beverages that taste good.) CSPI also claims that it violates FDA rules to sell alcoholic beverages that contain caffeine, which would be a surprise to every restaurant that offers Irish coffee.

Relevant to a recent comment discussion, words of wisdom from Judge Easterbrook in IFC Credit Corp. v. United Business & Indus. Federal Credit Union:

Ever since Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), enforced a forum-selection clause printed in tiny type on the back of a cruise-ship ticket, it has been hard to find decisions holding terms invalid on the ground that something is wrong with non-negotiable terms in form contracts. See also, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32 (1991) (unequal bargaining power does not justify refusal to enforce an arbitration clause in a form contract); Seawright v. American General Financial Services, Inc., 507 F.3d 967 (6th Cir.2007). As long as the market is competitive, sellers must adopt terms that buyers find acceptable; onerous terms just lead to lower prices. See, e.g., Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir.1997); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir.1996); George L. Priest, A Theory of the Consumer Product Warranty, 90 Yale L.J. 1297 (1981). If buyers prefer juries, then an agreement waiving a jury comes with a lower price to compensate buyers for the loss-though if bench trials reduce the cost of litigation, then sellers may be better off even at the lower price, for they may save more in legal expenses than they forego in receipts from customers.

There is no difference in principle between the content of a seller's form contract and the content of that seller's products. The judiciary does not monitor the content of the products, demanding that a telecom switch provide 50 circuits even though the seller promised (and delivered) 40 circuits. It does not matter that the seller's offer was non-negotiable (if, say, it offered 40-circuit boxes and 100-circuit boxes, but nothing in between); just so with procedural clauses, such as jury waivers. As long as the price is negotiable and the customer may shop elsewhere, consumer protection comes from competition rather than judicial intervention. Making the institution of contract unreliable by trying to adjust matters ex post in favor of the weaker party will just make weaker parties worse off in the long run. Original Great American Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d 273, 282 (7th Cir.1992) (“The idea that favoring one side or the other in a class of contract disputes can redistribute wealth is one of the most persistent illusions of judicial power. It comes from failing to consider the full consequences of legal decisions. Courts deciding contract cases cannot durably shift the balance of advantages to the weaker side of the market; they can only make contracts more costly to that side in the future, because [the other side] will demand compensation for bearing onerous terms.”).

Howie Mandel's stunningly successful Deal Or No Deal television game show had an amusing little side-show.
Viewers were invited to play the "Lucky Case Game" by choosing which of six on-screen gold briefcases was the lucky case. Viewers submitted their choice on the Internet for free or through a text message that cost 99 cents. At the end of the program, the winning briefcase was revealed, and the winners were entered into a random drawing. The winner of that drawing received a prize of as much as $10,000.

One enterprising Georgia lawyer claims that this amounts to illegal gambling and has filed a class action lawsuit to obtain refunds of the 99 cent text message fees (plus attorneys fees, of course):

When a Forsyth County couple sent 99-cent text messages trying to win a prize on the NBC game show "Deal or No Deal," they engaged in illegal gambling and should get their money back, a lawyer told the Georgia Supreme Court on Tuesday.

So should all other Georgians who sent text messages in the show's "Lucky Case Game" and lost, lawyer Jerry Buchanan said. A judge hearing the case has estimated the bounty could reach tens of millions of dollars.

The case has been report to the state Supreme Court for the answers to two questions:

1. Does Georgia law allow losers of an illegal lottery to recover the money they lost?

2. And, if so, may the losers recover that money from the lottery's promoter or organizer?

No mention of the third question.

(Atlanta Journal & Constitution, ajc.com, Feb. 27)

Since the suit was filed, the game has stopped.

The mother of a teen killed by a drunken driver was standing at his casket during his wake when lawyers Robert D'Amico and Jimmy Burchfield sidled up next to her and offered their services.

Kathleen Gemma filed a complaint with the Supreme Court's attorney disciplinary board, saying the two should have left her alone while she was saying her last goodbyes to her son Anthony Gemma. Gemma said one of the lawyers talked about his billboard.

D'Amico and Burchfield say that Gemma brought up the idea of pursuing legal action.

Not difficult to figure out which story is true here, is it?
(Providence WPRI, February 26)

In the height of irony, the wesbite for the law firm of D'Amico & Burchfield contains this slogan:

We'll Take Care of You Like Family Would

N.B. -- This story recently ran on WPRI television, but Anthony Gemma's accidental death occurred in December of 2006. There is no public report of whether any disciplinary action was taken against either lawyer.

Family members of the children Banita Jacks murdered, who apparently cared so much about the children that they didn't notice Jacks had starved them to death months before they were discovered, "have hired lawyers to pursue claims against the D.C. government for failing to prevent months of neglect and abuse. ... In interviews yesterday, the grandmothers' lawyers declined to say when their clients last saw Jacks or her daughters."

DC taxpayers will be thrilled to note that the city is refusing to rehire three workers fired in a scapegoating frenzy after the Jacks revelations, even after a hearing officer has held that the firings were unwarranted. More lawsuits to come. (Keith L. Alexander and Petula Dvorak, "D.C. Could Have Done More To Help 4 Sisters, Families Say", Washington Post, Feb. 28).

For an example of the post-Jacks overreaction, see Hans Bader at POL, who has beat me to the Greg and Julianna Caplan story, which was also extensively covered in the Marc Fisher blog.

Bizarro-Overlawyered hasn't quite gotten the hang of how to put forward their propaganda campaign to deprive consumers of the choice of arbitrating disputes.

A New Orleans woman, Patricia Dicorte, says she got ripped off by her contractor in May 2007, so she took him to an arbitrator, and in July 2007—a fraction of the time it would take in a civil suit of that magnitude—she had an arbitration ruling in her favor for $219 thousand. Unfortunately for her, she then took it to the cesspool of Orleans Parish Courts for enforcement, and Democratic Judge Yada Magee—a colleague of the cousin of the contractor—violated the Federal Arbitration Act and threw out the arbitrator's ruling. (Dennis Woltering, "Despite arbitrator's ruling woman still fighting contractor", WWL-TV, Feb. 25). This will eventually be reinstated on appeal at some unnecessary expense, but somehow Kia Franklin is advertising this fiasco as an example of problems with arbitration (!), rather than as a problem with the judicial hellhole of New Orleans. (If the judge isn't willing to give a fair ruling for the consumer in something as straightforward and administrative as arbitration judgment enforcement, what makes Franklin think that the consumer would have had a better chance with that judge in a civil trial?)

Judge Magee is best known for railroading negligence findings for 1800 plaintiffs against Dow Chemical in bogus silicone breast implant litigation in 1997, a decision thrown out by a Louisiana appellate court in 2002. Spitzfaden v. Dow Corning Corp., 833 So.2d 512 (La. App. 2002).

Is Southwest Airline discriminating against the Pretty Girls again?

“I think they were just discriminating against because we were young decent-looking girls. I mean, nobody else on the plane looked like us except us,” she said. “[The flight attendants] were like older ladies. We were younger. Who knows, they could have been just jealous of us because we were younger.”

You can't make this stuff up.
(Tampabays.com, Feb. 27)

H/T Wizbang (with video)

Sean Dubowik is a Phoenix strip club owner who had the words "Hot Rod" tattooed to a most private (and sensitive) part of the male anatomy.

This feature was noted with some degree of amazement, although probably not by the type of person Dubowik intended. His gall bladder surgeon, one Sean Hansen, made the observation during surgery prep, and made use of his cell phone to record the artwork. He then showed it around the hospital a bit, resulting in one of the surgical staff (the one with the conscience) calling Dubowik.

Dubowik said he’d gotten the tattoo on a $1,000 bet.

“It was the most horrible thing I ever went though in my life,” Dubowik said. He said he chose Mayo Clinic for treatment because his mother had five surgeries there.

“They were supposedly the best of the best. I have no complaints about the medical care I was given,” he said. “But now I feel violated, betrayed and disgusted.”

Query: can one who has his penis tattooed with "Hot Rod" on a $1,000 bet convince a jury -- any jury -- that he could be "violated, betrayed and disgusted"?
(AP, Dec. 17, 2007)

Overlawyered reported last summer on William Ross's findings about the double billing of clients, and Ted opined on it at Point of Law.

Cameron Stracher's book (his second) entitled Double Billing: A Young Lawyer's Tale Of Greed, Sex, Lies, And The Pursuit Of A Swivel Chair is careful not to assert that there was double billing going on in his fictional New York white shoe law firm, but there was certainly plenty of churning, redundant/unnecessary work, etc., the ethics of which is comparably impugned by the principles behind the rule against double billing.

In light of Judge Matsch's repudiation of Big City trial counsel's conduct in the Medtronic Case, I got to thinking about unethical lawyer conduct, and asked myself this:

Aside from the obvious business remedy available to the client, does trial counsels' misconduct excuse the client from paying their bill (or enable them to recover the fees paid)? Does the answer to that depend on whether the client was complicit in the unethical strategy?

U. S District Court Judge Robert Matsch recently got so infuriated by the conduct of McDermott, Will and Emery attorneys Terrance McMahon and Vera Elson that he overturned a jury's $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars. (Denver Post, Feb. 25)

From the decision (Medtronic Navigation, Inc. v. BrainLAB Medizinische, 2008 WL 410413):

In essence, the response from the plaintiff and MWE, through new counsel, is that the Court had the obligation to stop any trial conduct that stepped over the line of zealous advocacy. In short, they argue that they should not be held responsible for what they were able to get away with during the trial presentation. The adamant denial that there was any abuse of advocacy in this case is in disregard of what this Court has already concluded and displays the same arrogance that has colored this case almost from its inception. Throughout these proceedings Medtronic and the MWE lawyers have demonstrated that when they are faced with adverse court rulings, they proceed undeterred, with only superficial observance of the court's determinations. Such conduct supports the conclusion that after the Markman rulings, Medtronic's primary objective in pursuing this litigation was to put economic pressure on its competitor in the market.

Medtronic's counsel proceeded cavalierly, with reckless indifference to the merits of Medtronic's infringement claims. The continued prosecution of a claim after its lack of merit has become apparent warrants sanctions under § 1927. At trial, MWE's conduct was in disregard for the duty of candor, reflecting an attitude of “what can I get away with?” Throughout the trial, the MWE lawyers artfully avoided the limitations of the patent claims and created an illusion of infringement. They did so with full awareness that their case was without merit.

I have a guest post at Above the Law analyzing Obama's tax plan and showing that it will dramatically raise taxes for young lawyers. Whether that is a bug or a feature is in the eye of the beholder.

Just as I was about to say I needed to revise my top-ten blog list to include the excellent anony-blogger Patent Troll-Tracker, I learned from today's Recorder and WSJ that he has revealed himself as Rick Frenkel, Cisco IP attorney.

When I started the blog, I did so mainly out of frustration. I was shocked to learn that a huge portion of the tech industry's patent disputes were with companies that were shells, with little cash and assets other than patents and a desire to litigate, and did not make and had never made any products. Yet when I would search the Internet for information about these putative licensors, I could find nothing. I was frustrated by the lack of information, and also by the vast array of anti-patent-reform bloggers out there, without a voice supporting what I did believe and still believe is meaningful reform.

(For the record, I liked the blog even before they praised me.) Plaintiffs' attorney Ray Niro had put a bounty on the identity of the Troll Tracker, who had been critical of Niro's tactics (as have Walter and I). Frenkel is considering shutting down his blog now that he is out of the closet; one hopes someone else picks up the torch, because he was performing a valuable service, to the extent that I had limited my blogging about it because he had the subject-area covered so well.

I missed the debate in November among Dennis Crouch, Michael Smith, and Frenkel on whether the Eastern District of Texas is "waning" as a magnet jurisdiction for patent plaintiffs (May 2006, Dec. 2005, Jan. 2005), or I might have made reference to it in my latest Liability Outlook on patent reform. Frenkel seems to have the best of that debate, and follows up:

Let’s highlight one really outstanding statistic from November: The number of defendants sued in the Eastern District of Texas in November 2007: 244. The number of defendants sued in Los Angeles, San Francisco/Silicon Valley, New York City, Chicago, Delaware, and New Jersey combined in November 2007: 162.

Patent lawyers often seem to be of a different stripe than other lawyers, and there is a similar patent-law-blogging community largely separate from the other law-bloggers. The commenters go mad at Crouch's blog over the Frenkel revelation because Cisco is a strong patent reform supporter. Elsewhere: IPBiz; TechDailyDose; NetworkWorld; 271Blog; Mises Blog; and the anti-reform Patent Prospector.

In the state of Mississippi during the last 5 years, 27 law firms have been retained by Mississippi Attorney General James Hood to purse state lawsuits on contingency. Those firms have collectively donated more than a half-million dollars to Hood in the last two election cycles. Apparently, the legislature is troubled by this combination of for-profit motivation and campaign fundraising, and has passed a bill to pursue competitive bidding before signing contracts of more than $500,000 with private lawyers. It also requires a review board to examine contracts, and it limits contingency fees to $1 million.

Hood isn't pleased -- and the WSJ has his number:

Should state Attorneys General be able to outsource their legal work to for-profit tort lawyers, who then funnel a share of their winnings back to the AGs? That's become a sleazy practice in many states, and it is finally coming under scrutiny -- notably in Mississippi, home of Dickie Scruggs, Attorney General Jim Hood, and other legal pillars... This kind of quid pro quo is legal in Mississippi and most other states. However, if this kind of sweetheart arrangement existed between a public official and business interests, you can bet Mr. Hood would be screaming about corruption. . . . A decision to prosecute is an awesome power, and it ought to be motivated by evidence and the law, not by the profit motives of private tort lawyers and the campaign needs of an ambitious Attorney General.”

That leaves a mark.

One of the justifications for FDA preemption is the fear of overwarning; warning overload can be counterproductive, causing people to ignore important warnings. Thus, failure-to-warn litigation impedes safety. See "Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products," 71 Fed. Reg. 3922 (Jan. 24, 2006); Larkin v. Pfizer, Inc., 153 S.W.3d 758, 764 (Ky. 2004).

Further evidence comes from a CNNMoney.com report (Aaron Smith, "Consumers tune out FDA warnings", Feb. 25) suggesting that the FDA's post-Vioxx caution has already caused the agency to be at the point of diminishing returns, as it is averaging 50% more safety alerts a year for 2005-2007 than it did in 2004, the year Vioxx was withdrawn from the market.

I discussed overwarning in other contexts on Overlawyered in Sep. 2006.

A family court judge who was shot in his chambers by a man whose bitter divorce he was handling has sued the gunman, seeking damages totaling more than $100,000.

Mack, a former pawn shop owner who shot the judge through a window at the courthouse in a sniper-style attack, was sentenced this month to life in prison for fatally stabbing his estranged wife, Charla Mack, in June 2006. He was also sentenced to a concurrent 40 years for shooting the judge the same day.

Also addressed in the suit are unnamed "Doe" conspirators who "aided, counseled, encouraged and assisted and participated" with Mack in carrying out the attacks.

Mack's civil lawyer, Mark Wray, said the suit "mystified" him. Mack has long since lost the fortune he earned from the pawn shop, and his client's 9-year-old daughter is getting the last of it, Wray said.

Mystified, is he? Maybe it has something to do with the conspirators.
(News Observer Feb. 23)

With a deadline looming for me, I expect to be posting less this week. Fortunately Peter Morin, who's guestblogged here before, has agreed to step in to fill the gap. Check out Peter's regular site, WaveMaker.

The “National Whistleblower Center” wants folks to send a message to their congresspeople protesting the lack of whistleblower provision in the new Consumer Product Safety Commission reform bill (S.2045):

“The CPSC reform bill needs to provide vital protections for honest employees who report safety violations--such as toxins in toothpaste and poisonous lead in our children's toys. Without these protections, whistleblowers may not come forward to report dangers of products until it is too late.”
(Whistleblower Blog)

What will those damn Democrats do next!?

Clarification: In my haste to produce some content before I got too busy this morning, it seems that I failed to project my usual degree of irony and sarcasm on this particular post -- and in all candor, I did not check archives to see what OL had published before. The Whistleblower Center action alert that the Whistleblower Blog links to reports that "The House version of the CPSC reform bill does not include whistleblower protections," and exhorts supporters to "Take Action Today! It is crucial that you contact your representative and let him/her know that you expect them to support American workers and families - NOT the interests of big business."

Now that I have had time to check Thomas, it appears that there is no House version of the bill after all, and therefore the "action alert" is (characteristically?) deceptive.

Correction: (I'll get this one right if it kills me) -- Ted corrects me that a House version did in fact pass the House in December.

Assuming you are a litigator, tort reform has crippled plaintiff's practice. Hanging out your own shingle is more difficult than ever before. Unless you have an established reputation, you'll find very little business "coming in the door." You'll need to market yourself extensively. If you can survive and thrive, all the power to you.
(Infirmation.com )

Sounds like progress to me.

Elaine Joyce is a highly competitive female amateur golfer who wants to play with the guys. But she was barred from playing with her father in a Men’s Member-Member tournament. This has left her “ostracized, marginalized, humiliated, embarrassed and denounced,” according to her federal lawsuit.

But wait:

Joyce said she began to feel hostility after she filed the state discrimination complaint in July. One Saturday, after a match-play club championship, she walked into the clubhouse after the first round.

“There were 20 to 25 guys in there,” she said. “And as soon I walked in the door, everything stopped. Silence. ‘There she is. That’s the woman. That’s the problem.’ Stupid stuff like that.”

Joyce compared the experience to her fight to play with the Forty Thieves. After the town acted in that case, it took 18 months for her to be admitted as a member. Joyce said some members of the group were appalled and let her know it. One said he would play only if she played naked. Others walked off the course when paired with her. Some refused to speak to her during rounds.

(NYT, Feb. 19)

I'd prefer to play with a single digit lady than a 20+ old guy. But can I still tell my off-color jokes?

Ramon Gilsanz, a structural engineer with a small office in Manhattan, showed up at the World Trade Center site to pitch in after the disaster; like many others, he started as a volunteer and found his role evolving into a subcontractor at the city's request. Now, like about 130 other structural engineers, he is named in many of 8,000 lawsuits filed by the Paul Napoli firm and others over dust exposure to various bystanders. He and another structural engineer said they worked alongside the other rescue and cleanup workers and were never assigned responsibility for air quality. (Jim Dwyer, "For Engineer, a Cloud of Litigation After 9/11", New York Times, Feb. 23).

Another bunch of things not to do if you're a member of the legal profession.

• Don't get caught pursuing forged fen-phen claims. (Robert Arledge, Vicksburg, Mississippi, sentenced to 6.5 years, the only lawyer to date to be sentenced in a much larger fen-phen scandal.) [ABA Journal]
• Don't try to dissuade a witness from testifying at a deposition. (Cleary Gottlieb, which said it would appeal the judge's order of sanctions.) [WSJ Law Blog]
• Don't inflate your GPA and include fake awards on your resume. (Gregory Haun, DC, recommended for suspension, resigned his six-digit BigLaw associate job.) [Legal Times]
• Don't end your jury service by casting a vote to break a deadlock and then sign a statement drafted by the plaintiffs' attorney asking for a new trial saying that you did so so you can return to work. (California bar has recommended disbarment for Francis Fahy.) [ABA Journal; Recorder ($); Law.com ($)]
• Don't steal money from your clients by forging their signatures on insurance company releases to get their settlement money. (Richard Boder, New York, caught as part of a larger scandal involving the illegal use of paid runners to bribe hospital employees about auto accident injuries, sentenced to a year in prison.) [NY Law Journal]
• Don't read Maxim in the courtroom. (Todd Paris, held in contempt by North Carolina judge.) [WSJ Law Blog]
• Don't have an affair with a judge you're practicing in front of, or vice versa. (Federal Way, WA, Municipal Court judge Colleen Hartl resigned after bragging about an affair with public defender Sean Cecil, who still has 5 Avvo stars for professional conduct, but has been the subject of a formal complaint to the bar.) [AP/Post-Intelligencer; Federal Way News; Lat]

(Earlier: Nov. 5, etc.)

Alan Lange and commenters are jumping in to excerpt some of the more damning excerpts (YallPolitics Feb. 19; more). And in the department of curious wordings, from the Jackson Clarion Ledger: "Circuit Judge Bobby DeLaughter has told federal authorities he became aware in 2006 that some people were trying to improperly influence him to rule in favor of lawyer Dickie Scruggs in a Hinds County legal-fees dispute. DeLaughter told authorities he didn't know whether he was influenced [emphasis added] but says he's followed the law in all his rulings." (Jerry Mitchell, "Judge: Efforts to sway made", Feb. 24).

• Easterbrook: "One who misuses litigation to obtain money to which he is not entitled is hardly in a position to insist that the court now proceed to address his legitimate claims, if any there are.... Plaintiffs have behaved like a pack of weasels and can’t expect any part of their tale be believed." [Ridge Chrysler v. Daimler Chrysler via Decision of the Day]
• Retail stores and their lawyers find sending scare letters with implausible threats of litigation against accused shoplifters mildly profitable. [WSJ]
• Kentucky exploring ways to reform mass-tort litigation in wake of fen-phen scandal. [Mass Tort Prof; Torts Prof; AP/Herald-Dispatch; earlier: Frank @ American]
• After Posner opinion, expert should be looking for other lines of work. [Kirkendall; Emerald Investments v. Allmerica Financial Life Insurance & Annuity]

• Judge reduces jury verdict in Premarin & Prempro case to "only" $58 million. And I still haven't seen anyone explain why it makes sense for a judge to decide damages awards were "the result of passion and prejudice," but uphold a liability finding from the same impassioned and prejudiced jury. Wyeth will appeal. [W$J via Burch; AP/Business Week]
• Judge lets lawyers get to private MySpace and Facebook postings. [OnPoint; also Feb. 19]
• Nanny staters' implausible case for regulating salt. [Sara Wexler @ American; earlier: Nov. 2002]
• Doctor: usually it's cheaper to pay than to go to court. [GNIF BrainBlogger]
• Trial lawyers in Colorado move to eviscerate non-economic damages cap in malpractice cases [Rocky Mountain News]
• Bonin: don't regulate free speech on the Internet in the name of "campaign finance" [Philadelphia Inquirer]
• "Executives face greater risks—but investors are no safer." [City Journal]

• Professors discuss adverse ripple effects from law school affirmative action without mentioning affirmative action. Paging Richard Sander. Note also the absence of "disparate impact" from the discussion. [PrawfsBlawg; Blackprof]
• ATL commenters debate my American piece on Edwards. [Above the Law]

On Feb. 7 a jury found the Charleston Area Medical Center in West Virginia had wrongly revoked the privileges of vascular surgeon R. E. Hamrick, Jr. over a financial dispute. It awarded Hamrick $25 million, including $20 million in punitive damages; the dispute arose over Hamrick's desire to set up a self-insurance fund against professional liability as opposed to purchasing outside insurance. CAMC has retreated from initial talk of pay freezes for staff, but it is unclear where it will come up with the money -- about 4 percent of its annual budget -- in ways that have no impact on patients: "'Any time you have to spend $15 million, how can it not affect the way we care for people?' asked Dr. Tom Bowden, who also serves on CAMC's Board of Trustees." However, expert witness Jonathan Cunitz of Westport, Ct., who testified for the plaintiffs on punitive damages, told the Daily Mail that patients and employees "shouldn't be concerned for a second" about cutbacks because the nonprofit community hospital could just pull the money from the magic rainbow wishing well could cover the punitive damage award "just out of the money generated by Hamrick's surgeries," in the newspaper's phrasing. It sounds almost as if hospital revenues from surgery constitute pure gravy and do not involve any correlative expenditures. The hospital's CEO notes that the damage award "was higher than the $15 million CAMC spent to purchase the former Putnam General Hospital in 2006." (Justin D. Anderson, "Doctor responds to colleague's lawsuit win against CAMC", Charleston Daily Mail, Feb. 12; Eric Eyre, Charleston Gazette, Feb. 13, Feb. 20, Feb. 21; Chris Dickerson, West Virginia Record, Feb. 7).

My latest Liability Outlook is on the Patent Reform Act of 2007:

Despite some in the media calling patent reform dead, on January 24, 2008, the Senate placed S. 1145, the Patent Reform Act of 2007, on the general calendar. The next few weeks will be critical to the legislation, which the House passed in September. Although much of the discussion has focused on the different perspectives and concerns that the high tech and the biotech/pharma industries have about the legislation, the fact remains that the patent litigation system is broken. Congress should make every effort to fix it by writing into this legislation reasonable formulas for damage awards and venue rules that discourage forum-shopping. ...

Affiliates of Erich Spangenberg’s Plutus IP have sued 476 different defendants in 42 lawsuits. The vast majority of those lawsuits allege infringements of patents that Plutus IP purchased for $1,000. The use of invalid patents in litigation is more than theoretical. Philip Jackson sued his attorneys, Chicago plaintiffs firm Niro, Scavone, Haller & Niro, for malpractice after his $12.1 million jury verdict against Glenayre Electronics Inc. was reduced to under $3 million; Niro challenged the malpractice suit by claiming that th e patent Jackson had successfully enforced was invalid. In 2006, approximately 6,000 defendants were sued in 2,800 patent cases; in 2007, the six thousand mark was reached in early October, implying a 30 percent increase in patent litigation in a single year. Such litigation stifles substantial technological innovation. Patent trolls claim to block entire fields, and one cannot hope to innovate in these areas without the financial capital to handle the threat of patent litigation. IBM has 370 corporate patent attorneys, not just to avoid the pitfalls of infringement, but to create a patent portfolio that can provide counterclaims (or cross-licensing opportunities) if a commercial entity were to sue them for infringement. Since the late 1990s, patent litigation costs have outstripped patent profits.

Perennial Overlawyered favorite Jack Thompson may find that his doodles, or supplementary art, or whatever, on court filings are an expensive matter, as the Florida Supreme Court continues to consider disciplinary action against him. Aside from the extraneous picture matter, which includes images of "swastikas, kangaroos in court, a reproduced dollar bill, cartoon squirrels, Paul Simon, Paul Newman, Ray Charles, a handprint with the word 'slap' written under it, Bar Governor Benedict P. Kuehne, a baby, Ed Bradley, Jack Nicholson, Justice Clarence Thomas, Julius Caesar, monkeys, a house of cards," and so forth, Thompson, known for his crusades against violence and sex in videogames, is accused of engaging in constant filings that are "repetitive, frivolous and insult the integrity of the court," and faces a possible order that would bar him from filing actions unless signed by another Florida bar member. Thompson rejects the charges, saying, "I have a right to file anything I want with the court." (Alana Roberts, "Anti-Porn Crusader May Face Sanctions for 'Meritless Filings'", Daily Business Review, Feb. 22).

At least a little bit of the way: you can now watch the game in church. ("NFL Reverses Call On Church Parties", Washington Post, Feb. 21; earlier).

Kevin Underhill at Lowering the Bar has put a lot of effort into it.

The lowest medical malpractice insurance rates are found in Minnesota, Wisconsin, Iowa and the Dakotas. Why is that? Probably not because doctors there have managed to achieve anything resembling error-free practice; and probably not because the five states, taken as a whole, are distinguished by any unusually pro-defendant set of tort laws. MedInnovationBlog takes up the question here and here, and speaks with a mutual insurer executive in search of explanations, which may include (among others) a "culture of collegiality among doctors and society as a whole", a hard line against doubtful claims, and a paucity of giant verdicts of the John Edwards variety. (cross-posted from Point of Law).

Prosecutors' bite-marks forensics. (Radley Balko, Slate, Feb. 20).

Inevitably so? Maybe not. As longterm readers will recall, we were early and vocal among those calling attention to the legal travesty that was the Nifong prosecution, but it's quite a jump from there to the proposition that the taxpayers of Durham, the university and its president Richard Brodhead personally should fork over money for emotional distress damages to, say, students never prosecuted at all and family members, who comprise the plaintiffs in this new case. (Kristen M. Daum, Newsday, Feb. 21; Bob Van Voris, "Duke Lacrosse Players to Sue School Over Rape Probe", Bloomberg, Feb. 21; Malkin). The plaintiffs have a website here. (Corrected to fix misstatement on identity of plaintiffs. And broken link now fixed).

More: James Taranto at the WSJ quotes the Raleigh News & Observer under the heading "Yoo Hoo! Over Here! Ignore Us Please!":

*** QUOTE ***The latest Duke lacrosse suit got off to a big start Thursday with publicists, lawyers of national renown, a media blitz at the National Press Club and a lawsuit with its own Web site.

The 38 members of the 2006 Duke lacrosse team who filed the suit in federal court say their reputations were damaged by their association to an escort service dancer's phony gang-rape allegations.

The players chose not to appear at the news conference, said Bob Bork Jr., the group's hired publicist, because they don't want to attract attention.

*** END QUOTE ***

If they didn't want to attract attention, it might have made more sense not to call a press conference. Or, if they had already called it and felt they had no choice but to go through with it, maybe they could have created a diversion by having a stripper show up or something.

The News & Observer also notes at the end of its article:

Only three members of the 2006 team have not filed suit -- Matt Zash, a former captain; Matt Danowski, the current coach's son, and Kevin Mayer.

And more: Bob Bork, Jr. writes to say he was misquoted in the News & Observer report, and says the following is a transcript of what he did say about the players' absence:

One final comment before we start. None of the 38 players who are filing this lawsuit are here today. They considered participating, but many have jobs and some are still students and lacrosse team members at Duke. One is in Army Ranger school preparing to deploy to Iraq.

Know this -- the players are united behind this lawsuit. At the same time that they are understandably concerned about retribution and slanderous media coverage. Who can blame them after what they endured for 13 months in 2006 and 2007. They are walking a fine line between trying to live normal lives in the wake of an unspeakable trauma and at the same time trying to get answers to questions that remain unanswered by their university.

Ted Frank and Michael Krauss are covering the new Supreme Court decision in Riegel v. Medtronic -- one of the biggest wins for the product liability defense side in memory. We've also got plenty of coverage of the mortgage/foreclosure situation: Providence's dumb idea for a punitive tax on vacant properties, the role of the Comptroller's office, bond insurers' woes, and some bad ideas from Hillarymandias. Plus off-label prescribing, suicidality, and Ted on Trasylol; and Obama comedown syndrome.

For all the complaints about tort reformers supposedly relying upon urban legends to promote their cause, one more frequently sees trial lawyers promoting fictional versions of their victories. As Hillary Clinton and Barack Obama kowtow to John Edwards for his endorsement, it's worth exploring the case on his record he refers to most frequently. Remarkably, not a single mainstream media organization has questioned Edwards's self-serving version of the Valerie Lakey case. I correct this problem in today's American:

Sta-Rite had already been putting warnings on its pool drain covers, and the 1993 case did nothing to change their product design or the warnings conveyed to buyers. The drain cover in the Lakey case was sold in February 1987 with a warning label; soon thereafter Sta-Rite began embossing the warnings on the cover. This safety innovation was used against them at trial, the argument being that they should have acted earlier. But no one could reasonably think that an additional warning to screw in the drain cover would have made an iota of difference. The cover already had holes for screws, county regulations already required the pool drain cover to be screwed down, the pool managers testified that they had done so several times in the year before Lakey’s accident—and Edwards had already recovered millions from the municipality for its failure to keep the cover screwed down.

Big news day in the Scruggs scandals: a judge has turned down defense motions to throw out the charges and to suppress the evidence, a hearing on those motions has showcased the testimony of government informant Tim Balducci, and the government in responding to the motions has released extensive and often quite damning transcripts of the wiretap conversations among the principals. Folo as usual provides the most in-depth coverage, with posts on the judge's rulings here and here, on the hearing and Balducci's testimony here and in numerous preceding posts, and on the wiretap transcripts here and in numerous preceding posts. David Rossmiller is on the judge's ruling here, and on the hearing and transcripts here. More: Patsy Brumfield, NEMDJ, was at the courthouse.

Picking through the rich contents of the transcripts and Balducci's testimony is going to keep Scruggsians busy for a good long time. In the meanwhile, some odds and ends:

* Want to review all the major events of the central alleged bribery case, skillfully narrated in chronological sequence? Of course you do. Folo's NMC has it in six parts beginning here and ending here (follow links to find those in between).

* John Grisham's "Too Dumb for Dickie" theory encounters some serious strain [Rossmiller and again]

* Mississippi legislature won't give AG Jim Hood authority to wiretap his enemies suspected white-collar criminals. Gee, wonder why that might be? [WLBT via Lange] Plus: description of Hood as a Pez dispenser coughing out multi-million-dollar cases for his chums [Rossmiller]

* More unpretty details surface on Scruggs's (and other lawyers) use of informants in Katrina litigation [Rossmiller] and tobacco [Lange]

* More Hood: prosecuting the accused judge-bribers "would be like prosecuting a relative" [Salter, Clarion-Ledger, Rossmiller, Folo]. Give back tainted money? "That's up to DAGA [Democratic Attorneys General Association]" [Lange]

* Former Louisiana attorney general Richard Ieyoub gets a mention, as does Sen. Trent Lott [Folo, same] Update: feds investigating what Sen. Lott knew [WSJ]

* Small world, Mississippi: member of arbitration panel that awarded Scruggs huge fees was later hired by the tort potentate for legal work [Lange]

* Blogosphere has been a major source for breaking news on the scandal [LegalNewsLine]

* Liberal columnist Bill Minor recalls when a certain Sen. McCain let Dickie Scruggs and Mike Moore run their tobacco lobbying campaign out of his Hill office [NEMDJ via Folo; more at PBS "Frontline" and NY Times]

The entertainer and her father/manager are being sued by video maker Speedfit over her refusal to give approval for the release of a tape in which she starred in a multi-million contract. Speedfit owner Alex Astilean says that by blocking the video's distribution, "They are hurting millions of fat people in America." ("Page Six", New York Post, Feb. 19).

ACSH's Jeff Stier in today's New York Post:

CONGRESS is poised to pass a massive giveaway to the ambulance-chasing trial attorneys - under the guise of protecting consumers.

The proposed law [the CPSC Reform Act] would give the 50 state attorneys general new powers to sue the makers of allegedly unsafe products - and even to demand help in their suits from the federal Consumer Product Safety Commission.

Headline-hungry AGs will even be able to sue over products the CPSC has already found to be safe. In other words, national standards will effectively go out the window, as politically ambitious AGs compete to bash business so as to win popularity for future elections.

The legislation - which the House has already passed and the Senate's likely to pass - would hamper CPSC's mission by creating multiple unscientific "safety" standards. Each AG's vision of what the latest scientific studies imply about purported dangers would prevail in a given state, rather than the CPSC's own (far more expert) findings.

All this would mean a bonanza to trial lawyers - who'd stand to make hundreds of millions from relentless lawsuits within just a few years, since each state would become a new roulette-wheel of potential jury verdicts against manufacturers. ...

Further encouraging bogus complaints, the bill would grant unprecedented "whistle-blower" protection to any employee who alleges a fear of product danger - an easy way to secure your job until your case is adjudicated.

Erin Brockovich, the real-life character who brings fictional lawsuits, thinks my criticism of her trolling for clients in Avandia lawsuits is "shameful". She should know from shameless.

I was very amused by Brockovich's remark "It is no coincidence that thousands on Avandia now have heart attacks." Really? Thousands of people who saw Erin Brockovich in the theaters have had heart attacks, and many others have had strokes. Some even contracted cancer! Coincidence, or has Ms. Brockovich put movie royalties ahead of safety?

Lawyers purporting to act on behalf of Verizon Wireless customers are seeking $1 billion, and an arbitrator says the claim can go forward as a class action. Wait a minute, aren't we always hearing that arbitration is set up so this sort of action would never stand a chance? (Jeffrey Silva, "Verizon Wireless faces class action over ETFs", RCR Wireless News, Jan. 28; Jason Mick, DailyTech, Jan. 30).

As you may not be aware, we are both lawyers and both litigators, for whom the usual barriers to litigation are minimal....

According to the New York Times, that's the opening line of the letter sent by husband-and-wife attorneys Jonathan Selbin and Jenny Selbin to neighbor Galila Huff, curtly warning that she'd better keep cigarette smoke from escaping her apartment or they'd see her in court. (Josh Barbanel, "Neighbor vs. Neighbor", Feb. 17). Earlier coverage here. More: Bainbridge.

Associated Press:

The Supreme Court has refused to offer help to Hurricane Katrina victims who want their insurance companies to pay for flood damage to their homes and businesses.

As David Rossmiller notes,

As if the choice in a case is simply going where your sympathies lie, and when the court decided not to take the appeal, the halls rang with evil laughter and mocking statements such as this: "We will extend no help to Katrina victims because we love to see them suffer and we love to support our evil twins, the insurance companies who steal from them."

The Fifth Circuit, of course, simply enforced the insurance policies as written, and noted that the word "flood" included a flood caused by the breach of the levees in New Orleans, reversing a district court that disingenuously held otherwise. And the Supreme Court simply refused to make the appeal of that obvious decision one of the 1% of petitions for certiorari that it grants.

Update: Mark Obbie, while also critical of the lede, writes:

Following up on our discussion of HIPAA and the New York therapist murder, police have reported a break in the case, arresting a mentally disturbed man who has told investigators of having been committed to a mental institution 17 years ago by Dr. Kent Shimbach, the doctor who was injured in the rampage (and who shared offices with the therapist who was killed, Kathryn Faughey). Dr. Shinbach apparently has told investigators that he did not recognize the assailant and has no memory of any contact with him in the past.

Helen Smith ("Dr. Helen") at Pajamas Media recalls the case of Vallejo, California psychologist Ira Polonsky, Ph.D., "who was shot and killed by what family members believe was a former patient. Unfortunately his death is still a mystery. Why? Blame the confidentiality laws in California:"

…police have been stymied in pursuing that line of investigation because of confidentiality laws protecting Polonsky’s patient records and appointment books.

Vallejo police detectives are in touch with a court-appointed attorney – a “special master” – who is working with the county court to see if there can be at least a limited review of protected records, but neither police nor court officials will comment on progress in that area.

And Hans Bader takes note of a recent Volokh thread discussing cases in which it seems Massachusetts privacy law was construed to prohibit the taping of ransom discussions with kidnappers (Commonwealth v. Jackson, 1976, mentioned in passing here) and a Florida court considered (but rejected!) the argument that a murderer's privacy was infringed by his victim's having tape recorded the murder.

• Raising ticket revenue seems more important to NYC authorities than actually recovering stolen cars [Arnold Diaz/MyFoxNY video via Coyote]
• Subpoena your Facebook page? They just might [Beck/Herrmann]
• Rhode Island nightclub fire deep pockets, cont'd: concert sponsor Clear Channel agrees to pay Station victims $22 million, adding to other big settlements [ProJo; earlier]
• Manhattan federal judge says "madness" of hard-fought commercial suit "presents a cautionary tale about the potential for advocates to obscure the issues and impose needless burdens on busy courts" [NYLJ]
• Wooing Edwards and his voters? Hillary and Obama both tacking left on economics [Reuters/WaPo, WSJ, Chapman/Reason, WaPo editorial]
• Sad: if you tell your employer that you're away for 144 days on jury duty, you actually need to be, like, away on jury duty [ABA Journal]
• New at Point of Law: Florida "three-strikes" keeps the doctor away; court dismisses alien-hiring RICO suit against Tyson (and more); Novak on telecom FISA immunity; fortunes in asbestos law; Ted on Avandia and Vioxx litigation; new Levy/Mellor book nominates Supreme Court's twelve worst decisions; and much more;
• U.K.: "Lawyers forced to repay millions taken from sick miners’ compensation" [Times Online]
• Outside law firm defends Seattle against police-misconduct claims: is critics' beef that they bill a lot, or that they're pretty good at beating suits? [Post-Intelligencer]
• Cincinnati NAACP is campaigning against red-light cameras [Enquirer]
• Omit a peripheral defendant, get sued for legal malpractice [six years ago on Overlawyered]

General readers are undoubtedly aware that the appearance of a BlogAd in our right-hand column in no way implies that we agree with its content, and sharp-eyed readers may have noticed that we've in fact run more than one with views that run counter to our own. With that in mind, here's a letter from New York reader Jason Abrams:

I'm still a huge fan of your site, but I'm disappointed by the appearance of an advertisement for NumbersUSA on the right-hand side as a BlogAd. I understand that sometimes blog owners have no initial control over the content of the ads, but there must be a way to exercise some restrictions on the types of organizations that can run ads on your site. Based on what I have gathered to be the leanings of your editors and contributors, I wouldn't imagine your site to be much of a recruiting ground for this borderline hate group.

It may be worth pointing out one aspect of the way BlogAds works: the blog owner approves an ad based on an initial submission of the "creative" (picture and text), but then the advertiser can freely change the creative as the week or month or quarter goes on. Sometimes later versions of an ad are more arresting or abrasive than the first version, or differ in other material ways. I don't know how precisely this affects the overall run/not run calculus, but it seems like an interesting weakness in the process.

Stephanie Mencimer (via NAMblog) writes in Mother Jones Feb. 14:

Large corporations have long argued that class action lawyers are nothing more than extortionists who shake down big companies every time their stocks fall, forcing them to settle or risk fiscal ruin from a big jury verdict. Given what’s known now about how Lerach operated his law firm, it's hard to say that the perception is only spin.

Mencimer, though, gives too much credit to Lerach's self-serving "corporate crime fighter" identity. Lerach sued indiscriminately. To the extent that a small proportion of the defendants in Milberg Weiss cases were actual wrongdoers, it was a function of a stopped clock being right twice a day. It was because Lerach sued so often without actual evidence of wrongdoing that his early suit against Enron was dismissed: when faced with the biggest corporate scandal in history, Lerach couldn't actually make the case until after the fact. Given that the decades of jail time Enron and WorldCom executives are facing, and the fact that a Lerach suit was at least as likely to be against the innocent as the guilty, it's hard to say that the Lerachs of the world added much in the way of deterrence of corporate wrongdoing, as opposed to the deterrence of corporate investment. All Milberg Weiss and its successors accomplished was to transfer wealth from investors to their own pockets, with a taste for the politicians like Bill Clinton and other Democrats who helped weaken or block efforts to reform the securities laws. Ken Lay raised a fraction as much money for Republicans without any sort of quid pro quo, yet his relationship to Bush has gotten far more attention than Lerach's relationship to the Democrats and the favors they did for him at the expense of everyday investors.

Another instance of the decidedly Pickwickian sense in which some in the legal profession use the term pro bono:

Last year, a federal judge awarded nearly $1 million in attorney fees, costs and prejudgment interest to Skadden, Arps, Slate, Meagher & Flom in a case involving workers at a restaurant in New York's Chinatown. Chan v. Triple 8 Palace, No. 1:03-cv-06048 (S.D.N.Y.). The New York firm took the case pro bono in an attempt to collect unpaid tips on behalf of the workers.

The firm succeeded. But its request for attorney fees turned heads, especially since the workers received about $700,000.

"And you also had a large law firm telling everybody that they're doing the case pro bono," said Daniel A. Hochheiser, a partner at New York's Hochheiser Hochheiser & Inwood, which represented the restaurant.

"The general understanding of pro bono is that you're volunteering your time and effort without compensation, or without expectation of compensation," Hochheiser said.

The case is being compared in several quarters to the Seattle school-suit fee request discussed in this space Sept. 7 and Sept. 23. (Amanda Bronstad, National Law Journal, Feb. 8; Elefant; Cal Blog of Appeal (to whom we're happy to send the traffic). We briefly noted the Skadden fee ruling last summer.

P.S. Commenters point out -- and it's appropriate to note here as well -- that Skadden, unlike Davis Wright Tremaine, says it's giving away the fee award.

According to a website maintained by MediaBids, an online advertising broker, the Boston law firm of James Sokolove as of recently was offering $1,500 for every mesothelioma "lead" that publishers could bring in through print ads. The offer was apparently good whether or not the patient elected to sign up with Sokolove's firm, and whether or not the patient had worked in an asbestos-related trade, so long as the diagnosis was a genuine one. Mesothelioma is a fatal cancer accepted by the legal system as a "signature" of asbestos exposure. (Ann Knef, "Sokolove's 'creative' advertising skirts ethics rules, says professor", Madison County Record, Feb. 14). The relevant page on MediaBids was visible within the past few days, but appears to have been taken down now. For more on how avidly lawyers seek to reach this category of patients, see Sept. 5 and Oct. 13, 2007, etc. More on Sokolove here and here.

P.S. MediaBids page GoogleCached here.

"A lawsuit filed Friday by a former St. Louis Rams player and others seeks millions of dollars in damages from the alleged taping of Rams practices by the New England Patriots before the 2002 Super Bowl." (AP/MSNBC, Feb. 15).

Well, it seemed like a good idea at the time (Diane Carroll, "Monkey’s owner sued in wake of 2003 birthday party incident", Kansas City Star, Feb. 14).

The Northeast as a region has been relatively resistant to the revenue-generating law-enforcement mechanism, but Connecticut Gov. Rell is now proposing them for a stretch of I-95. (Mike the Actuary, Feb. 11). In fairness, it might be argued that cameras deployed to auto-ticket speeders may not generate as bad a set of unintended consequences as cameras set up at traffic signals.

Ruben Zamora lost control of his Ford Explorer after a tread-tire separation, causing a rollover; because he was not wearing his seatbelt, he was ejected from the vehicle and suffered brain injuries. (His four passengers suffered only minor injuries.) This is, a LaSalle County, Texas state court jury decided, 65% the fault of Ford, putting them on the hook for $6.5 million in damages. Ford denies responsibility and will appeal. (Margaret Cronin Fisk, "Ford Loses $6.5 Million Verdict in Explorer Rollover", Bloomberg, Feb. 4; "Auto news headlines," Detroit Free Press, Feb. 5; Nick Sullivan, "Brain-Injured Man Awarded $6.5M in Texas Rollover Case", Andrews Publications, Feb. 11). Until a 2003 tort reform, Ford would not even have been allowed to introduce evidence that Zamora was not wearing his seat belt.

While trial lawyers attempt to abolish every-day businesspeople's right to arbitrate, they continue to use arbitration with their own clients. The Texas Supreme Court, in a December 14 opinion, recently defended John O'Quinn's right to arbitrate with his clients; the Wolfgang Demino blog has details. (Other clients have had more success against O'Quinn in arbitration.) Note that the Arbitration Fairness Act, the trial bar's effort to deprive consumers of the choice of predispute arbitration clauses, doesn't apply to attorney-client relationships. Earlier.

Lots of reports of lawyers chasing potential business after the explosion [Fulton County Daily Report; Elefant]

Looks like some have found ways to game the state's employment rules:

Five Long Island school districts falsely reported to the state that a part-time private attorney was a full-time employee in each district, enabling him to earn a public pension of nearly $62,000 and health benefits for life.

At the same time, the districts paid his law firm more than $2.5 million in fees, records show.

The attorney, Lawrence W. Reich, was listed as full time by five different school districts at once - Baldwin, Copiague, East Meadow, Bellmore-Merrick High School and Harborfields, according to records supplied by the New York State comptroller's office. In 2000, for example, he was credited with working 1,271 days in one year. The year before, he was credited with working 1,286 days....

Under Internal Revenue Service rules, a person cannot be paid both as an independent contractor and employee for the same job.

"Clearly, it's an attempt to manipulate the system so that a person can receive Cadillac fringe benefits that a person in the private sector would otherwise not be entitled to," said Paul Sabatino, a municipal lawyer who is also former Suffolk chief deputy county executive. ...

"I followed essentially a practice that was very common among my colleagues in the industry," [Reich] said.

(Sandra Peddie, "Five districts falsely reported lawyer job status", Newsday, Feb. 15).

Before they officially became presidential candidates, the Illinois and New York senators co-authored an article in the May 25, 2006 issue of the New England Journal of Medicine, entitled "Making Patient Safety the Centerpiece of Medical Liability Reform." (See: http://content.nejm.org/cgi/content/full/354/21/2205)

They sympathized with physicians over escalating insurance costs and condemned the current tort system for creating an "intimidating liability environment." Still, Clinton and Obama said, it's more important to focus on how to improve patient safety than "areas of intense disagreement," such as caps on financial awards to patients.

They introduced legislation, which died in committee in 2006, to provide money and assistance to physicians, hospitals, insurers, and health care systems to start programs for disclosure of medical errors and compensation to patients. The bill would have created an office of patient safety and health care quality to establish a database to track incidents of malpractice and fund research into guidelines to prevent future injuries.

"Physicians would be given certain protections from liability … in order to promote a safe environment for disclosure. … This legislation would provide doctors and patients with an opportunity to find solutions outside the courtroom. In return, [hospitals, insurers, and others] would be required to use savings achieved by reducing legal defense costs to reduce liability insurance premiums and to foster patient-safety initiatives."

(Mark Crane, MedPageToday, Jan. 7). More: see Ted's December post at PoL.

Litigation between celebrities is different, or is it? ("Nic Cage Sues Kathleen Turner for Claiming He Stole a Chihuahua", USMagazine.com, Feb. 12).

More HIPAA madness? On Wednesday, in a crime that cast a chill through the mental health community, a Manhattan therapist was brutally slaughtered in her office by a man whose actions seemed consistent with those of a current or former patient with a grudge. The assailant escaped on foot, and although his image had been captured on surveillance tape, police were nowhere near beginning to know where to start looking for him: "Because of privacy laws, police hadn't been able to access patient records as of late yesterday, sources said." (New York Post, Feb. 14)(via Bader). On medical privacy laws and the Virginia Tech rampage of Seung Hui Cho, see Jun. 16, 2007.

More: Commenter Supremacy Claus says not to blame HIPAA, which has an exemption for police reports.

Friday morning sequel: This morning's New York Post sticks with the original story and fleshes out the HIPAA role somewhat:

The hunt for the savage beast who butchered an Upper East Side therapist has hit a roadblock - because detectives can't access her patients' medical records under federal privacy laws, The Post has learned.

Police believe the meat-cleaver-wielding psycho who killed Kathryn Faughey on Tuesday night inside her office on East 79th Street could be the doctor's patient - and need access to her records to identify him.

But police sources said because of the Health Insurance Portability and Accountability Act, signed by President Bill Clinton in 1996, investigators are having a hard time gaining access to those records.

"A case like this gets complicated because of medical privacy protections," a source close to the investigation told The Post yesterday.

The federal law states that doctors, hospitals and health-insurance companies must protect the privacy of patients - even in a murder investigation - and that only through the use of subpoenas can authorities hope to obtain such information.

Police sources said investigators have applied for a subpoena, but have yet to receive it. Even if the subpoena is issued, patients can sue to keep their records private. ...

[D]etectives have tried to get around the law by tracking down patients through sign-in sheets at the building's front desk and through surveillance cameras in the lobby, sources said.

(Murray Weiss, Jamie Schram and Clemente Lisi, "Vexed by 'Slay File' Madness", New York Post, Feb. 15). My Times (U.K.) article on the problems posed by health privacy laws is here.

As a Valentine's Day promotion, Charleston, W.V. radio station WKLC-FM is offering a drawing for a free divorce. "Charleston attorney Rusty Webb will handle the actual filing" and says winners should not expect anything complicated in the line of contested proceedings. (Charleston Gazette, USA Today).

A commenter complains about our most recent post, and I respond:

• Examiner newspaper begins series on how Milberg Weiss used nonprofit foundation to project its clout among judges, academics, influentials [Institute for Law & Economic Policy, three-parter]
• Judge Canute, or just reporter's awkward wording? Australian jurist with great eyeglasses bans screening of TV drama in state of Victoria; "Under the order, all internet material relating to the series is also banned." [Herald Sun] (More explanation on the court order: The Australian).
• Times Square's Naked Cowboy sues over M & M candy ad playing off his image [NY Post]
• Bite mark testimony makes another chapter in catalogue of dubious prosecutorial forensics [Folo's NMC on two Mississippi Innocence Project cases]
• Update: Pennsylvania court upholds disputed fees in Kia-brake class action [Legal Intelligencer; earlier]
• Best not take McCain too literally when he says he'd demand that judicial nominees have a proven record on Constitutional interpretation [Beldar]
• Expert witness coaching .... by the Royal Society for the Prevention of Cruelty to Animals? [Nordberg; earlier]
• For some reason many Boston residents feel menaced by city's plan for police to go door to door asking "voluntary," "friendly" permission to search premises for guns [Globe]
• Lots and lots of publications print Mohammed cartoon in solidarity with Danish cartoonist and assassination-plot target Kurt Westergaard [CNN; Malkin]
• Calgary Muslim leader withdraws official complaint against Ezra Levant over his publication of Mohammed cartoons [National Post; earlier]
• Steyn, relatedly: critics dragging my book before Canadian tribunals wish not to "start a debate", but to cut one off [National Post]

The beleaguered tort tycoon is now seeking to have the federal indictment dismissed on grounds of "outrageous government misconduct". Roger Parloff at Fortune Legal Pad explains how Scruggs's attorneys are evoking the atmospherics of an entrapment defense without actually going quite so far as to assert that defense, which would mean (among other things) opening the door for prosecutors to introduce evidence of other similar but uncharged bad acts by Scruggs (Feb. 12). See also White Collar Crime Prof and NMC at Folo. And the Scruggs camp's motions to suppress wiretap evidence has resulted in the release of a slew of transcripts of taped conversations among the principals, often sliced and excerpted in nonobvious ways, highlights of which appear at Folo here ("you need it pretty soon?"), here (Tim Balducci: "you always gotta have a slush fund" and "This ain't my first rodeo with Scruggs"), here (P.L. Blake told by Patterson of "pretty good problem that I had solved"; see also Yall) and here (appearing to omit Balducci's famous "bodies buried" line). For those sorting out Balducci's colorful figures of speech relating to food, by the way, his reference to "bushels of sweet potatoes" that he needs to get "where I can get em . . . uh . . . over to him" is explained at the WSJ law blog here, while his expressed wish to "lay the corn on the ground" for Judge Lackey is here at Folo. More: Alan Lange, YallPolitics.

Bizarro-Overlawyered, the Huffington Post, Alternet, and others on the Left continue to bang this drum with completely false accounts of the law and facts in their campaign to deprive consumers of the choice of mandatory arbitration: "The notion that sexual assault cannot be tried as a criminal matter but has to be arbitrated in secret arbitration and treated as a labor dispute is simply beyond belief."

Beyond belief indeed. Let's count the lies of commission and omission:

• Whether a private civil claim against Halliburton or KBR is required to be arbitrated has nothing to do with whether the Department of Justice decides to criminally prosecute for sexual assault. The DOJ can try this as a criminal matter, but have chosen not to. That may be a scandal on its own, but not one having to do with arbitration clauses.
• The arbitration clause does not prohibit Barker from bringing civil suit against her alleged rapist (and, indeed, her case continues in the proper federal district court venue).
• The arbitration clause does not require the arbitration to be "secret." (By the way, in December, I wrote to Jamie Leigh Jones's attorney, Todd Kelly, and offered to publicize his arbitration briefs documenting Jones's original summary judgment claims before he tried a second bite at the apple in court. Still no response over six weeks later.) The arbitration is only as secret as the participants want it to be.
• And, oh, by the way, for all the claims that one can't get justice in arbitration? Today the New York Times reports that two women who claimed sexual assault, Mary Beth Kineston and Pamela Jones, won their arbitration cases against KBR. If they'd brought civil suits, they'd still be litigating. Yet somehow, not once in all the months of controversy on the issue did any news reporter mention this non-trivial fact as the slurs against arbitration were repeated over and over.

Let's not confuse issues. Sexual assault and rape are criminal acts, and should be prosecuted criminally. To the extent KBR was responsible for the very plausible allegations of creating an environment of sexual harassment by its employees and failing to respond to hostile environment claims, they should be civilly liable in the forum contractually agreed to. But either of these issues has nothing to do with the third issue, the availability of mandatory arbitration as an option in contracts.

Earlier: Jamie Leigh Jones (Dec. 12-16), Jamie Leigh Jones (Dec. 20), Jamie Leigh Jones (Dec. 21); see also Overlawyered's arbitration section.

An instruction sheet for doctors providing defense-side "independent" medical exams in injury cases reads in part as follows:

# Point out whatever findings or claims are not related [to the sued-over incident]. Otherwise be silent on causal relationship.

# If prognosis appears good, then state that - otherwise be silent

# If you can state that plaintiff can participate in all normal activities, do so. If not, be silent

Eric Turkewitz, who brings this story to public attention (Feb. 12), wonders what ethical questions might be posed for both lawyers and doctors when expert witnesses are coached in this way to give partial and incomplete (to say no more) testimony. I don't know what New York legal and medical authorities would do, but in the mother of all witness-coaching scandals in recent years -- the inadvertent release of Baron & Budd's "Preparing for Your Deposition" memo in asbestos litigation in Texas -- nothing at all wound up being done by established authorities to discipline or punish the plaintiff's lawyers involved. In fact, even more incredible, Baron & Budd succeeded in hiring more than one well-known academic ethics specialist to sign affidavits attesting that the coaching practices were in no way objectionable -- details here and here (see pp. 161 et seq. of Brickman's Pepperdine article). So if Integrated Risk Services, Inc., of Long Island, New York, which bills itself suggestively as a firm providing "Attorney Managed Independent Medical Consultation Services", finds itself in hot water, perhaps it should give Prof. Silver in Austin a ring.

P.S. Jane Genova at Law and More doubts it works well before juries -- though of course persuasiveness to a jury might not be the only objective for those who engage in coaching.

Are the Democrats inclined toward them? Is the GOP averse to them? Or is it that the apparent contrast between the parties is overstated? (Laura Appleman, Faculty Lounge, Feb. 8).

Bob Sullivan, MSNBC "Red Tape", Feb. 12:

How much compensation does a consumer deserve for the loss of a laptop computer loaded with personal information? Raelyn Campbell figures it’s $54 million -- if you throw in a little extra for lost time and frustration.

Six months after bringing a damaged laptop computer into a Best Buy electronics store for repairs, and three months after the firm admitted losing it, Campbell filed the whopper of a lawsuit recently in Washington, D.C., Superior Court....

In a motion to change venue, the famed tort lawyer's defense attorneys complain about Mississippi-focused "web logs (blogs) that report, in excruciating detail, every event in the prosecution and defense of the Scruggs criminal case" and related proceedings (Folo, Feb. 12). Does this mean we nationally-focused blogs don't count as excruciating?

P.S. Commenter "OBQuiet" adds, "Odd that his own frequent comments and leaks to the press didn't deny his opponents a fair trial. How could that be?"

The lacrosse players' problem was that they just didn't do it the right way (Stuart Taylor, Jr., "The University Has No Clothes", National Journal, Feb. 11)(will rotate off free site).

Over decades, the class-action titan paid secret kickbacks to pliant "representative" plaintiffs, then systematically falsified the nature of his relations to those plaintiffs the better to deceive judges, opponents, competing class action lawyers, and class members. He and his defenders are now portraying his offenses -- even the systematic lying to courts -- as minor and victimless. For some indications of why our legal system takes a very different view, see my WSJ op-ed of a year and a half back. Per Peter Lattman's story/interview in today's WSJ, "Mr. Lerach has requested, and the judge will recommend, that he be sent to Lompoc, a low-security federal penitentiary in Southern California often called a 'country-club prison' or 'Club Fed.'"

Yesterday's L.A. Times piece by Molly Selvin takes note of Lerach's "trademark vitriol -- he famously threatened to "destroy" companies that balked at settling". Selvin also quotes NYU legal ethicist Stephen Gillers expressing concern that the spate of Milberg Weiss prosecutions "has to worry [lawyers] even if they're doing nothing wrong because the Justice Department has shown its willingness to look into how they do business". Gillers offers no examples of any Milberg lawyers who have been prosecuted despite "doing nothing wrong", nor does he explore the question of how lawyers might exploit the impunity they would enjoy if the Justice Department permanently refused to "look into how they do business". Indeed, if Lerach is right when he says kickbacks to named plaintiffs were industry practice in the class-action biz, it would seem that DoJ should have started "looking into how they do business" long before it did.

With fine understatement, Andrew Perlman at Legal Ethics Forum observes that it would "send the wrong message to students" for Lerach to be permitted to set up teaching legal ethics to law students at the University of Pittsburgh as part of his sentence. And taking a contrarian view, Larry Ribstein (via Bainbridge) says an appropriate comparison for Lerach would be to Michael Milken (Drexel Burnham) or Jeff Skilling (Enron) -- but in the good sense.

More: This morning's New York Times, a paper in whose columns Milberg Weiss long enjoyed cordial if not deferent coverage, buries the Lerach sentencing on an inside page of the business section. The paper's "Dealbook" blog covers the story here. And The Economist recalls a "shouting match" in 2006 between Lerach and a leading British corporate governance advocate over whether litigation was the best way to address shareholder/manager conflicts. Plus: Charles Cooper, CNet.

The Third Circuit speedily dismissed (PDF) an appeal by pro se litigant Dylan Steven Jayne of his losing case against the search engine's founders. Earlier: Sept. 25, 2007 (h/t Bob Young).

"The New Jersey Supreme Court has agreed to review a case that could determine whether a lawyer is liable for furthering a client's illegitimate purpose in pursuing litigation." A lower New Jersey court had ruled that even if a lawyer knew his client was moved by an improper purpose in filing a lawsuit, he could not be held liable unless he was pursuing an illegitimate purpose of his own (as opposed to furthering the client's illegitimate purpose). On top of it all, the lawyer's former client was defending an action for malicious process on the grounds that he'd relied on the lawyer's advice in suing. Since this was the same lawyer who was disclaiming all responsibility for the results of the advice, the overall effect might be seen as that of a shell game in which responsibility for the wrongful lawsuit was to be found under whichever walnut shell -- attorney or client -- wasn't being lifted for inspection. (Mary Pat Gallagher, "N.J. Supreme Court to Take Up Issue of Lawyer's Liability for Client's Baseless Claim", New Jersey Law Journal, Jan. 31)(LoBiondo v. Schwartz).

Times business columnist Joe Nocera weighs in ("A Tight Grip Can Choke Creativity", New York Times, Feb. 9). Earlier: Jan. 19.

• Remember those class actions against tech manufacturers for allegedly misstating the capacity of hard drives? Another one just settled, with buyers in for coupons and discounts, lawyers for $1.78 million [The Register, Cho v. Seagate Technologies settlement website]
• Watch what you say about lawyers, cont'd: Erie, Pa. paper thus far has fended off libel suit by Pittsburgh attorney over coverage of his run-ins with authorities over client treatment [Post-Gazette via Ambrogi]
• New at Point of Law: suicide risk of anticonvulsants?; Ohio AG Dann rebuked on foreclosure activism; simultaneous asbestosis and silicosis happens all the time at some law firms; Bush nominates an ATLA/AAJ member to a federal judgeship; and much more.
• Has a prominent investor with close ties to President Bush set up shop as an East Texas patent troll? [Troll Tracker, The Recorder]
• Embattled Tom Lakin and Lakin Law Firm, once high on the Madison County heap, fight to overturn $3.7 million legal-malpractice judgment [MC Record]
• Brent Coon suing former colleagues at Beaumont's Provost Umphrey over division of billions in tobacco-fee booty [Texas Lawyer]
• UK judge criticizes "barking mad" human rights rules after prisoner refuses to leave his "comfy" jail cell to attend hearing [Times Online, Telegraph]
• "Six years after Enron, executives face greater risks—but investors are no safer." [Gelinas/City Journal]
• United Farm Workers union threatens to sue over unflattering coverage [two years ago on Overlawyered]

I'm scheduled to speak about medical malpractice reform at the America's Health Care at Risk conference in Orlando, Florida, April 16-17. More details when they become available.

"A prominent class-action lawyer facing sentencing today for secretly paying plaintiffs to file securities lawsuits, William Lerach, is suggesting that the under-the-table practice was widespread and was not isolated to the firm he helped run for decades, Milberg Weiss. ... Despite the highly publicized travails of what was once America's leading class-action law firm, there has been little public discussion of whether other firms may have emulated the secret payment scheme Lerach and other Milberg lawyers devised." Notwithstanding a request by Lerach's lawyers that the letters from his friends and supporters asking clemency be sealed from public inspection, most of the letters have become public, revealing the identities of such entirely unsurprising Lerach backers as Ralph Nader (who in this one particular case did not favor prison for white-collar criminality) and Ben Stein, known to readers of these pages (though apparently not to many readers of his New York Times column) as an expert witness hired repeatedly by Lerach to help portray sued companies' conduct in the harshest possible light. (Josh Gerstein, "Lerach Says Payoffs Were Widespread", New York Sun, Feb. 11). Another letter writer: Sen. Carl Levin (D-Mich.) And the list of letter-writers (PDF) includes "two redacted names in between Gordon Churchill and Charles Cohen", leading to speculation that one or both surnames might be "Clinton". It seems unlikely, though, that either prominent ex-White House resident would have risked the sort of negative publicity involved even as a gesture to acknowledge Lerach's past favors. (CalLaw "Legal Pad", Feb. 8)(corrected shortly after posting to reflect release of most letters by stipulation of parties, not judicial order). Update 4 p.m. EST: sentence is 24 months.

Last week the "5th U.S. Circuit Court of Appeals voided a 2007 lower court order parceling out $6.8 million in fees to plaintiffs attorneys in a lawsuit over tainted Shell gasoline." The case had come under intense criticism, as we noted last year, "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". The ruling marks a victory for Loyola lawprof Dane Ciolino, who assisted objectors and helped rally public attention to the problems with the settlement. (Susan Finch, "Decision allocating legal fees tossed", Nola.com (New Orleans Times-Picayune), Feb. 8).

The mayor of Boston is against 'em: “allowing retailers to make money off of sick people is wrong.” (David Gratzer, "Health care innovation, and its enemies", Examiner.com, Feb. 7). More views: Gene Pinkham, "Is the flu on your shopping list?", Malden (Mass.) Observer, Jan. 18 (sick people might start visiting supermarkets and we can't have that); Paul Howard (Manhattan Institute), "Competition won’t ail you", Boston Herald, Feb. 9. More: Bainbridge.

On how to stay out of court (Jeff Jarvis, BuzzMachine, Feb. 1).

Galila Huff, who says she regrets her chain-smoking habit, has been hauled to court and asked to pay punitive damages: "Her neighbors, Jonathan Selbin, a class-action lawyer who has honed his skills suing major corporations, and his wife, Jenny Selbin, also a lawyer, are irate over the cigarette smoke that they say seeps from Ms. Huff’s apartment into the common hallway of their building, the elegant Beaux-Arts Ansonia, on Broadway between 73rd and 74th Streets." (Anemona Hartocollis, New York Times, Feb. 9). More: Bainbridge.

The Washington Legal Foundation announces a new paper by Brian Anderson and Mel Schwing: "Two leading class action defense
attorneys utilize a federal court judge’s recent rejection of a settlement as a case study of how CAFA can deter defendants’ ability to 'buy peace' through settlements" in cases where the claim is so meritless that it is only worth a small amount of money for the defendant to settle:

While CAFA surely benefited class action defendants more than plaintiffs by transferring more cases to federal courts that offer more fairness and predictability in the adjudication of class actions, it is not a “free-pass” for targets of class action lawsuits.

The quid pro quo of giving class action defendants greater access to federal courts is that CAFA expects defendants to vigorously litigate, not settle via coupon settlements, frivolous class actions. The message of Figueroa is that class action defendants in federal court who try to escape all litigation risk by proposing low-value coupon benefits in exchange for global releases of claims (especially where competing lawyers and attorneys’ general are involved in the controversy) will have a difficult time persuading the federal courts to approve such settlements.

Figueroa was the first time in the three-year history of CAFA that state attorneys general used their CAFA right to intervene in a settlement hearing. Last year, I also took a look at CAFA.

Stan Liebowitz writes in the New York Post:

Perhaps the greatest scandal of the mortgage crisis is that it is a direct result of an intentional loosening of underwriting standards - done in the name of ending discrimination, despite warnings that it could lead to wide-scale defaults. ...

In an earlier newspaper story extolling the virtues of relaxed underwriting standards, Countrywide's chief executive bragged that, to approve minority applications that would otherwise be rejected "lenders have had to stretch the rules a bit." He's not bragging now.

I'm not sure I entirely agree, but it's an element we should be considering as we look at the new complaints of "racial discrimination" through excessive sub-prime loans.

Dr. RW is glad about all the extra visitors, as is Greg May at Cal Blog of Appeal.

Through the rise of palimony law, courts in New Jersey have laid out a bright line against its being awarded in cases where a couple did not live together. Now, however, the state's high court is being urged to overturn that rule and open the door to claims for compensation by a broader class of romantic partners (Michael Booth, "N.J. High Court Hears Pitch for Palimony Sans Cohabitation", New Jersey Law Journal, Jan. 23). Two years ago an appellate judge upheld the bar to recovery:

"Without such a bright-line requirement, the concept of 'marital-type' relationship is unacceptably vulnerable to duplicitous manipulation," Judge Jose Fuentes wrote in Levine v. Konvitz. "Requiring cohabitation also provides a measure of advance notice and warning, to both parties to a relationship, and to their respective family members, that legal and financial consequences may result."

(Michael Booth, "Despite 70-Year Romance, Palimony Is Denied for Lack of Cohabitation", NJLJ, Feb. 17, 2006).

Roger Clegg on pending employment litigation legislation in Congress. I commented on the Lily Ledbetter bill for NPR's "Talking Justice" blog.

(Updating and bumping Feb. 4 post about to roll off bottom of page because of new comment activity)

• Judge Fallon denied the motion of Florida plaintiffs to expedite a hearing on their inclusion into a settlement when they did not even bring suit (Jan. 30). Merck and the PSC are required to respond Feb. 15, and the hearing will be Feb. 21, where one can expect the motion to be denied.
• At Point of Law, I comment on the recent grand jury investigation into Merck marketing of Vioxx.
Update, Feb. 8: separately, Merck yesterday settles for $650 million different Medicaid fraud allegations over the marketing of Vioxx and other drugs. The qui tam relator will get a jackpot award of $68 million. [WaPo; DOJ; Merck] The pricing theories at the center of these lawsuits—which hold Merck liable for purportedly charging too little—definitely deserve longer discussion another time.

The Simplicity Manufacturing riding mower, manufactured in 1994, includes the following warning, almost so obvious and over-the-top as to be wacky:

(I) DO NOT MOW WHEN CHILDREN OR OTHERS ARE AROUND; (ii) NEVER CARRY CHILDREN; (iii) LOOK DOWN AND BEHIND BEFORE AND WHILE BACKING.

Moreover, the manual includes the following warnings:

(I) Tragic accidents can occur if the operator is not alert to the presence of children. Children are often attracted to the unit and the mowing activity. Never assume that children will remain where you last saw them.
(ii) Keep children out of the mowing area and under the watchful care of another responsible adult.
(iii) Be alert and turn unit off if children enter the area.
(iv) Before and when backing, look behind and down for small children.

Nevertheless, on May 7, 2003, in Honeybrook, Pennsylvania, Melvin Shoff backed up his riding mower and managed to run over the foot of four-year-old Ashley Berrier, resulting in its amputation. This is, Ashley's parents complain in a lawsuit, the fault of Simplicity Manufacturing for not doing more to idiot-proof the mower. The federal district court threw out the suit based on a 2003 Pennsylvania Supreme Court precedent (involving a two-year-old and a lighter), but the Third Circuit, twelve months after the case was argued, has certified the question to the Supreme Court whether they've changed their mind in the last five years. The Court appears to have been swayed by the American Law Institute's "Restatement" proposal to expand product-liability law in this area. (Berrier v. Simplicity Manufacturing (3d Cir. Jan. 17, 2008) via Steenson; Legal Intelligencer).

An L.A. specialty "so good it's illegal" (Daniel Hernandez, L.A. Weekly, Feb. 6)(via Sullivan).

Back in 2005, when the first lawsuits were filed over the Grand Theft Auto hot coffee mod, I wrote:

Me, I'm just amused by the thought of class action attorneys trolling for a named plaintiff parent who will testify that, while she was okay for her little Johnny to buy a game involving drug dealing, gambling, carjacking, cop-shooting, prostitution, throat-slashing, baseball-bat beatings, drive-by shootings, street-racing, gang wars, profanity-laced rap music, violent homosexual lovers' quarrels, blood and gore, and "Strong Sexual Content," she is shocked, shocked to learn that the game also includes an animation at about the level of a Ken doll rubbing up against an unclothed Barbie doll with X-rated sound effects...

Alas, Take Two games has given in to the blackmail and settled the case, but a sense of how frivolous it was can be seen from the following deposition excerpt of lead plaintiff Brenda Stanhouse, a schoolteacher in Belleville, Illinois, who will receive $5000 for her role in the litigation. Recall that Mrs. Stanhouse is alleging she was defrauded because she would not have bought a game that could be modified to include "pornography," but take a look at pp. 67 ff. of the deposition, where she makes clear she didn't have the faintest idea what was in the game that she did buy. Readers: type your favorite Stanhouse deposition excerpts in the comments.

The Civil Justice Association of California says it so well, we might as well just quote them:

“Fee arbitration offers cheaper, faster alternative to litigation.” Where did that headline run? Give up? In the California Bar Journal, the “Official Publication of the State Bar of California! The story beneath it praises fee arbitration between lawyers and clients, saying that arbitrators are reporting that their work “gives people immediate results, unlike protracted litigation.”

The Bar’s presiding arbitrator, Arne Werchick, is quoted as saying: “It’s a neutral program that gives everyone a fair shake.”

We hope Mr. Werchick, who was president of the trial lawyers association in 1980, sends copies of the article to personal injury and other plaintiffs’ lawyers in Sacramento and Washington. They are once again firing up their endless campaign to block people’s constitutional right to contract to settle future disputes by arbitration rather than going to court.

Separately, ABC News parrots the trial-lawyer line with misleading coverage of another arbitration involving Tracy Barker: they falsely report that Barker's lawsuit was "killed" (when it will in fact be heard in the forum that Barker contractually agreed to litigate in), that the proceedings will be "secret" (when Barker has the right to publicize them the same way she can publicize a trial), and waits until deep into the story to acknowledge that the arbitration clause does not prohibit the employee from bringing litigation against her alleged rapist. Where's John Stossel and "Give Me A Break" when you need him?

For more on the litigation lobby's battle against arbitration, see the Overlawyered arbitration section.

Great moments in $800-an-hour-or-thereabouts lawyering: "As it turns out, a lawyer at Pepper Hamilton, one of two high-priced law firms negotiating the deal [for drugmaker Eli Lilly] with the government [over allegedly improper marketing of Zyprexa], mistakenly sent an e-mail containing a comprehensive and confidential document to a reporter at The New York Times. How could that have happened? The reporter, Alex Berenson, has the same last name as another lawyer who was supposed to have received the e-mail, Bradford Berenson, who works at Sidley Austin." (Pharmalot, Feb. 5). Ted also has a (more serious) take at Point of Law on the problems with federal criminal enforcement of drug marketing laws.

But note correction Thurs. 12:30 EST: in updates, Beck/Herrmann and Pharmalot say that Portfolio mag, which originally reported this story, got aspects of it wrong: the email was a short one, not a comprehensive document, and reporter Berenson had other sources of information. Pepper Hamilton has been flogged up one side of the legal blogosphere and down the other for the slip, but Beck/Herrmann says that isn't fair: the misdirected email doesn't appear to have made much difference. Yet more: Ambrogi, Feb. 11 (initial report maybe not so wrong after all).

Does this count as number 41? A grievance filed against U.K.'s Daily Mail before Press Complaints Commission claims its account of Mr. Deman's courtroom activities, which we linked the other day, was inaccurate and violated his rights in a variety of ways; a copy of the grievance was also dropped off in our comments section.

The government accuses Mel Weiss of withholding a fax responsive to a subpoena that would have corroborated Hillel Cooperman's claims of kickbacks hidden as options to purchase art. From the National Law Journal ($):

Prosecutors claim that Bershad, in response to the government's 2002 subpoena, called Weiss to his office after discovering the fax and other documents in his desk drawer. "Weiss took them from Bershad, falsely stating, 'David, you had nothing to do with the art option,'" prosecutors claimed in their recent motion. "Weiss then put the documents in his safe, concealing them from Milberg Weiss' document custodian who was searching for documents responsive to the subpoena."

Weiss then allegedly locked the documents in his safe. David Bershad has pled guilty, and is presumably the source for this conversation. Given the role of fundraising the law firm plays in Democratic politics (including for the two leading contenders for the Democratic nomination, Hillary Clinton and Barack Obama, and for John Edwards), one wonders why the only coverage of the ongoing scandal is in for-subscription legal papers. We have uploaded the government's brief in opposition to Milberg Weiss's motion to dismiss the obstruction-of-justice charge:

As a Tennessee appellate court noted in rejecting Joan Frye's lawsuit against her hospital employer, “[T]he fact that a supervisor is mean, hard to get along with, overbearing, bellig­erent or otherwise hostile and abusive does not violate civil rights statutes.” Some legislators are trying to change that (excited in part by Suffolk Law Professor David Yamada's theory of making "bullying" actionable). The ABA Journal is the latest to note the trend. (The article unfortunately repeats the false smear against my colleague John Bolton.) As we noted last May,

Enactments of this sort could result in a large new volume of litigation; the ample scope for differences of opinion about what constitutes hurtful sarcasm or a humiliating memo style could turn the courts into ongoing "superpersonnel departments" dispensing financial balm for injured feelings in the workplace.

Employment attorney Richard Block is more blunt in the ABA Journal: “You’re talking about a lifetime annuity of work for employment lawyers.” Bills are pending in thirteen states.

Another variant of the frequently seen occurrence of accident fraud from the ER Stories blog (via Kevin MD): “Hey Doc, that guy over there was not even on the bus at the time of the accident! He jumped onboard afterwards and started complaining of back and neck pain!” More organized versions: Dec. 19, Aug. 2003.

McCain-Feingold is based on the premise that money used to purchase speech distorts the political process because candidates can use money to fool voters, and therefore the speech purchased by money must be regulated. First Amendment limitations that not even the O'Connor Court was willing to override, however, prevented McCain-Feingold from reaching the spending of personal funds to self-promote. Thus, multi-millionaire Mitt Romney, because he was able to spend millions of dollars of his own money to promote his message would, according to the premises of McCain-Feingold, prevent candidates without those millions from winning elections. If those premises are correct. Which is why John McCain's decisive victory yesterday is simultaneously a decisive repudiation of the campaign finance law he is most known for.

Judy Cates, known to readers of this site for her role in the controversial Publishers Clearing House class action settlement and thereafter for suing a columnist who wrote critically about the pact, yesterday narrowly lost (in the Democratic primary) her bid for a judgeship in southern Illinois. Cates is a former head of the Illinois Trial Lawyers Association. (Ann Knef, "Wexstten defeats Cates", Madison County Record, Feb. 5; earlier). Bill McClellan, the St. Louis Post-Dispatch columnist sued by Cates and her brother Steven Katz, has written another amusing column on the topic ("For potential Judge Judy, millions have been served", Feb. 1).

• Calling it "oppressive", committee chair in Mississippi legislature vows to defeat proposal to ban restaurants from serving obese patrons [AP/Picayune-Item; earlier]
• Latest in whales vs. sub sonar: judge deep-sixes Bush's attempt to exempt Navy from rules against bothering marine mammals [CNN; earlier]
• Much-criticized opener of ABC's new series Eli Stone aired last Thursday, and Orac takes a scalpel to the vaccine-scare script [Respectful Insolence, which also covers new autism studies]
• Scary proposal approved by California assembly would strong-arm larger private foundations -- and businesses that deal with them -- into "diversity" numbers game [Lehrer/Hicks @ L.A. Times]
• New Dutch study finds thin people and nonsmokers cost health system more in long run than obese and smokers -- theories behind Medicaid-recoupment litigation are looking more fraudulent every day, aren't they? [AP]
• Late, but worth noting: blogger nails John Edwards's demagoguery on Nataline Sarkisyan case [Matthew Holt @ Spot-On, via KevinMD; more here and here]
• Puff piece on food-poisoning lawyer William Marler [AP/KOMO]
• Ready, set, all take offense: Sen. McCain likes to tell lawyer jokes [WSJ law blog]
• In suit charging UFCW with "racketeering", Smithfield cites as an underlying offense union's having lobbied city councils to pass resolutions condemning the meatpacker; company has hired Prof. G. Robert Blakey, who denies the RICO law he drafted is a menace to liberty [Liptak, NYT; some earlier parallels in federal tobacco suit]
• Golden age of comic books was 1930s-1950s, but golden age of comic book litigation is now [NLJ]
• New at Point of Law: Hillary's "disastrous" mortgage scheme; Qualcomm sanctions ruling could curb discovery abuse; if Mel Weiss has been kind to you, why drop him down memory hole?; new academic theory on uniformity of contingency fees; the trouble with patenting tax avoidance strategies; and much more [visit][bumped Wed. a.m.]

The town of Ripon in North Yorkshire has finally canceled its Shrove Tuesday pancake race, in which school children run down a street flipping pancakes. Among the reasons cited are bureaucracy and other discouragements to volunteering, child protection rules, road closure difficulties and, most prominently, a "mountain" of needed health and safety assessments demanded by insurers: “The main issue is the cobbled street, that people could slip on," says an organizer. The event dates back 600 years and is tied to a local tradition in which native women tricked Saxon invaders with liquor-soaked pancakes. [Times Online, Guardian, Daily Mail] This BBC account explains the Shrove Tuesday (Mardi Gras) tradition of consuming pancakes, which use up some of the rich ingredients forbidden during the following season of Lent. See Feb. 23, 2004 (near-cancellation of similar event).

• John Ritter's family has already received $14 million in settlements, seeking $67 million more in medical malpractice litigation for ER failure to diagnose rare heart condition. Dr. R.W. Donnell thinks they're wrong. [LA Times; USA Today; Kevin MD; Turkewitz; Overlawyered Sep. 2004]
• Speaking of the celebrity bonus in litigation: as M.E. e-mailed me, "Cheek rides again"; Wesley Snipes acquitted of tax felonies, though convicted of misdemeanors, and still on the hook for $17 million in taxes plus penalties. [NY Times; earlier]
• California AG Jerry Brown continuing bogus carbon dioxide "public nuisance" lawsuit against automakers [Stirling & Sandefur @ Investor's Business Daily; earlier]
• Words-only criminal obscenity prosecution. [WSJ Law Blog (and farewell to Peter Lattman)]
• In the category of gambits we're sympathetic to, but are unlikely to succeed: East Texas burger restaurant tries mandatory-arbitration-by-posted-window-notice [TortsProf]

• Mikal Watts puff piece [Corpus Christi Caller-Times]

In 2005 the makers of Grand Theft Auto, Take-Two Interactive and its subsidiary RockStar Games, acknowledged that the wildly popular game included a hidden "mod" which when activated revealed a scene of simulated sex. As readers may recall from our 2005 coverage (here, here, and here), class action lawyers immediately hopped on the story, filing suits on behalf of purchasers who were purportedly outraged at the inclusion of one more lurid fillip in a game already known for its lurid content, and who wanted refunds and other legally ordered relief. Now Robert Ambrogi at Legal Blog Watch (Feb. 1) has details on a settlement that will shower buyers with $5 coupons and other goodies (it helps if they've saved the store receipt) and enable them to "get a replacement disk, sans sex scenes" -- just what so many players want! -- while bringing the lawyers a fee haul of $1 million.

Clinton and Obama campaigns continue their scramble to sign up trial lawyers who'd been the financial base of the John Edwards candidacy (see Jan. 28). Both sides claim victories, with Obama doing especially well in rounding up California lawyers (Cheryl Miller, "Calif. Trial Lawyers Look to Obama", The Recorder, Feb. 4; Nathan Carlile, "For Edwards Backers, the Jury Is Out", Legal Times, Feb. 4).

John Leo has some further thoughts on the lawsuit discussed in this space Jan. 20, in which m-to-f San Franciscan Charlene Hastings is suing the Catholic hospital that (unlike many other hospitals in the Bay Area) declines to perform a breast augmentation on a patient born male ("Orwell Lives", City Journal, Feb. 4).

David Rossmiller—indispensable for matters Scruggsian—has the details of a Judge Michael Mills's displeasure with Dickie Scruggs's refusal to submit to a deposition in State Farm's lawsuit against state attorney general Jim Hood. Scruggs will likely plead the Fifth Amendment for his interactions with the attorney general—which does not reflect well on that attorney general.

* Pertinacious Scruggs effort to evade deposition by State Farm attorneys results in "testosterone fiesta" of swaggering counsel (Folo; sequel; YallPolitics; Rossmiller); (P.S. Yes, Ted and I independently noticed and posted on this just minutes apart.)

* Remember when Mississippi Attorney General Jim Hood declared his political patron Scruggs a "confidential informant", thus throwing a most useful cloak of protection over him in his battle against contempt charges? It happens that Scruggs was at almost exactly the same moment donating large sums to the Democratic Attorneys General Association which seem to have passed through like a dose of salts to emerge at the other end as donations to Hood (YallPolitics; earlier on DAGA)

* Attorney Ed Peters, tagged with a pivotal role in Langston-DeLaughter branch of scandal, was formerly high-profile local D.A.; his prosecutorial vendetta against an attorney named J. Keith Shelton comes in for scrutiny in a new series by Folo proprietor Lotus [#5 in series; posts tagged Peters; see also YallPolitics]

* Folo co-blogger NMC, looking into Luckey and Wilson fee disputes (earlier here, here, here), is rattled by the prevalence of hearings-without-notice, ex parte judicial contacts, and other Gothic proceduralisms [Folo];

* Implications or non-implications for civil proceedings of Scruggs's taking the Fifth [White Collar Crime Prof Blog]

* Adam Cohen of the NYT and Scott Horton of Harper's claim defendants in precursor Minor-Teel-Whitfield scandal were railroaded on vague charges over not-really-illegal stuff; read pp. 6-9 of the indictment and see whether you agree (YallPolitics);

* For Mississippi, it's already the most far-reaching corruption scandal in a century, aside from the question of how much bigger it might get [Jackson Clarion-Ledger]

Earlier Scruggs coverage on our scandals page.

With all the football and recovery from partying on New Years' and MLK weekends, you might have missed some of our biggest posts of the month:

• Trial lawyer Mark Lanier visits our comments section to talk about the Vioxx settlement. We had continuing coverage of the $4.85 billion settlement, and Ted spoke at an AEI panel on the subject broadcast on C-SPAN.
• Walter's phenomenal coverage of the Dickie Scruggs scandal: Jan. 13, Jan. 14, Jan. 15, and Jan. 16 (Joey Langston); Jan. 17; Jan. 21; Jan. 29.
• The "pro-consumer" bills before Congress that hurt consumers.
• Three cases of catastrophic injury to children, three deep-pocketed bystanders asked to pay.
• Racially "targeting" predatory subprime loans? The NAACP and Baltimore suits.
• Another case of employment litigation hurting employees.
• The Nataline Sarkisyan case, and the lies John Edwards (and Wikipedia) tell about it.
• Suit: You kept me from jumping off the Empire State Building.
• The Banita Jacks case and followup.
• Police more likely to sleep with than arrest prostitutes.
• Sangria illegal in Virginia?

"For a decade [Suresh Deman] sued universities - usually claiming racial bias over failed job applications - as he collected nearly £200,000 in payouts and cost the taxpayer an estimated £1million". After he had brought 40 actions he was declared a vexatious litigant and banned from further proceedings, but the ban did not cover Northern Ireland and he was soon there pursuing an 11-year-old claim against the Association of University Teachers and Officers (AUT). (Chris Brooke, "Race-claims lecturer beats legal ban to carry on suing after 40 discrimination claims", Daily Mail (U.K.), Nov. 19; A Tangled Web, Nov. 19; "In the news: Suresh Deman", Times Higher Education Supplement, Mar. 21, 2003).

My monthly post for NPR's Talking Justice weblog is about their topic of the week, the Ledbetter Supreme Court case and the associated (and counterproductive) legislation passed by the House.

Despite promising potential advantages for patient care as well as cost savings, the medical profession has not been quick to embrace technologies that enable online linkage of prescribing doctors with pharmacies. One reason, according to an article in Medical Economics: fear of liability. The feedback flow of information from online prescribing tends to bring to a doctor's attention that some patients have been failing to pick up or renew their prescriptions and are thus presumptively noncompliant. Once doctors know that, however, they're open to being sued later on the theory that they knew of a patient's noncompliance but failed to pursue him aggressively enough to come in for more counseling, etc. Apparently it's safer not to know in the first place (Ken Terry, "E-prescribing: The rewards and risks", Medical Economics, Jan. 4)(via KevinMD).

The New Yorker's "Talk of the Town" has a look at that class action against Bed Bath & Beyond over misleading bedding thread counts which resulted in "a series of refunds and discount certificates" to consumers -- coupons from Bed Bath & Beyond, imagine that! -- $2,500 for the named client, and up to $290,000 for the plaintiff's counsel, led by Edith M. Kallas (formerly of Milberg Weiss), the whole contretemps summed up as a "dry goods Enron". (Lauren Collins, "Splitting Threads", Jan. 28). See also Michael Krauss at PoL; and Peter Lattman got to it first.

Ah, the hypocritical irony: Bill Lerach moves to keep his sentencing documents for the Milberg Weiss kickback scandal under seal, perhaps to protect the identities of the 150 people who wrote on his behalf. [NY Sun] Any politicians we should know about? Portfolio has the briefing; the DC Examiner comments. Prosecutors have asked for 24 months (out of a possible 33-month maximum under the Guidelines); sentencing is February 11. (Crossposted from Point of Law.)

Inmate Jorey Lee Brewis, also known as Rebekah Katherine, is suing officials of the Oregon Department of Corrections who allegedly ignored Brewis's gender identity disorder, leaving Brewis to resort to -- details not for the squeamish -- do-it-yourself sex change surgery by way of fingernails, hair ties, rubber bands and other implements available in the cell. A spokeswoman for the corrections department "says she can't discuss Brewis' case because of medical privacy concerns". (James Pitkin, "Juicy Suits: Cutting Off Her Own Testicles in Prison", Willamette Week, Dec. 13).

Innocent bystanders have paid the bulk of settlements to date in the catastrophic fire caused by Great White's pyrotechnic display that killed 100 people at The Station nightclub in Providence, Rhode Island. The latest victims are a television station, WPRI, and a cameraman who will contribute $30 million to a settlement fund: WPRI's Brian Butler is accused of impeding the crowd's exit through the front door, though Butler's contemporaneous account suggests that he probably saved some lives at the time. "Dozens of defendants remain, including ... Anheuser-Busch Inc., which sold beer at the concert; and Clear Channel Communications, which owns a Providence radio station which ran advertisements promoting the show." (Andrea Estes, "Tentative deal set in R.I. fire case", Boston Globe, Feb. 2; "Tentative $30 Million Settlement in Club Fire", AP/NY Times, Feb. 2). Earlier: Feb. 2006 and Nov. 2 (Home Depot pays $5M for failure to warn, though their foam is different than the foam that caught on fire).

Our roundup link to a discussion of the classic jury-deliberation movie stirred up a considerable discussion among David Bernstein, Ilya Somin, Orin Kerr and commenters at the Volokh Conspiracy.

Mary Jo Pletz, who lives north of Allentown, Pa., made a very successful time of it accepting people's consigned items and selling them on eBay. Now the state of Pennsylvania is proceeding against her for not taking out an auctioneer's license, though it denies that it is seeking the $10 million in fines that her lawyer alleges. (Bob Fernandez, "Pennsylvania takes on online auctions", Philadelphia Inquirer, Jan. 30). Earlier similarly: Feb. 26, 2006 (California); Oct. 13, 2005 (North Dakota); Mar. 21, 2005 (Ohio).

House Bill 282, filed in the Mississippi legislature, is an "act to prohibit certain food establishments from serving food to any person who is obese, based on criteria prescribed by the state department of health". It sounds as if it almost has to be a parody, but when Sandy Szwarc calls its sponsor he says he's perfectly serious (Jan. 31).

One of the many things I like about my girlfriend is that she's the one who wants us to get a bigger television. Of course, if we got too big a television, we might not be able to hold our annual Super Bowl party: the NFL is sending around its annual set of scare letters to anyone offering a public exhibition of the Super Bowl on a television larger than 55 inches. (Jacqueline L. Salmon, WaPo, "NFL Pulls Plug On Big-Screen Church Parties For Super Bowl", Feb. 1). Yes, you've seen this story before: Feb. 3 and Jan. 31 last year.

Update: and at the WSJ ($).

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• Following public outrage, Spanish businessman drops plans to sue parents of boy he killed in road crash [UK Independent; earlier]
• Scruggs to take Fifth in State Farm case against Hood [Clarion-Ledger] And how much "home cooking" was the Mississippi titan dished out in the Medicaid-tobacco case that made his fortune? [Folo]
• More critics assail ABC "Eli Stone" vaccine-autism fiction, with American Academy of Pediatrics calling for episode's cancellation [AAP press release; Stier, NY Post; earlier]
• Special ethics counsel recommends disbarment of Edward Fagan, lawyer of Swiss-bank-suit fame whose ethical missteps have been chronicled on this site over the years [Star-Ledger]. As recently as fourteen months ago the L.A. Times was still according Fagan good publicity;
• In past bail-bond scandals, private bond agencies have been caught colluding "with lawyers, the police, jail officials and even judges to make sure that bail is high and that attractive clients are funneled to them." [Liptak, NYT]
• Archbishop of Canterbury calls for new laws to punish "thoughtless or cruel" comments on religion [Times Online, Volokh]
• Another disturbing case from Massachusetts of a citizen getting charged with privacy violation for recording police activity [also Volokh]
• Abuse of open-records law? Convicted arsonist files numerous requests for pictures and personal information of public employees who sent him to prison; they charge intimidation [AP/Seattle Post-Intelligencer]
• It resembles a news program on Connecticut public-access cable, but look more closely: it's law firm marketing [Ambrogi]
• Judge says Alfred Rava's suit can proceed charging sex bias over Oakland A's stadium distribution of Mother's Day hats [Metropolitan News-Enterprise; earlier on Angels in Anaheim]
• Crack down on docs with multiple med-mal payouts? Well, there go lots of your neurosurgeons [three years ago on Overlawyered]