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ARCHIVE -- DEC. 2000 (III)


December 29, 2000-January 2, 2001 -- Gambler rebuffed.   Reversing a lower court, the Mississippi Supreme Court has ruled that Robert Shindler has no cause of action to sue the Grand Casino Tunica for extra winnings he said he was due "for a series of mini-baccarat games he played on August 22, 1997.  Shindler claims that although he wanted to bet $20,000 per hand, casino personnel would only let him bet $5,000 at a time."  (Grand Casino Tunica v. Robert Shindler, Dec. 14). 

December 29, 2000-January 2, 2001 -- Makes others pay, doesn't pay himself.   Civil rights activist Al Sharpton says he is planning a class-action lawsuit against the Burger King Corporation as well as "acts of civil disobedience that will be organized at targeted Burger Kings across the country."  The vow came after federal court cleared the hamburger chain of charges that it discriminated against Detroit-based black franchisee La-Van Hawkins (May 11), who had hired high-profile litigator Willie Gary to press his case.  "U.S. District Court Judge Marianne Battani in Ann Arbor, Mich., ruled that Hawkins and Burger King signed a 'clear and unambiguous' agreement in July 1999 barring Hawkins from suing the company for any problems that arose before then. Battani also wrote that Hawkins failed to state a claim for relief. "  ("Sharpton Plans Lawsuit Against Burger King", FoxNews.com, Dec. 18). 

However, the wherewithal for Sharpton's hyperactive litigation posture is somewhat mysterious since he claims not to have the money on hand to pay the $65,000 a jury says he owes former prosecutor Steven Pagones for defaming him during the Tawana Brawley affair 13 years ago.  During a seven-hour deposition in the ongoing Pagones case, it recently emerged that Sharpton, a leading New York power broker whose publicity machine gets him into the papers approximately daily, and whose daughters attend an expensive private school, "says he owns no suits, but has 'access' to a dozen or so.  He says he owns no television set because the one he watches in his home was purchased by a company he runs.  He says he has no checking accounts, no savings accounts, no credit cards, no debit cards ... The only thing he admits to owning is a $300 wristwatch and a 20-year-old wedding ring." ("Sharpton says he has no assets to pay slander victim", AP/CNN, Dec. 7; Alan Feuer, "Asking How Sharpton Pays for Those Suits", New York Times, Dec. 21; "It Depends on What You Mean by 'Own'" (sidebar), Dec. 21).  (Update June 22-24, 2001: he finally pays Pagones). 

December 29, 2000-January 2, 2001 -- Seats in all parts.   "Tiered" stadium-style seating has been a boon to countless moviegoers who no longer fear having their view blocked by a tall person in the row in front of them.  But wheelchair activists are targeting such arrangements as a violation of their right to sit in all parts of a theater, and the U.S. Justice Department is backing their complaints.  "The ADA has proved a powerful tool on a similar issue -- handicapped seating in sports stadiums. In 1996, a U.S. District Court judge in Washington forced builders of MCI Center to halt work in mid-construction to add spaces so that wheelchair users could see beyond standing spectators and to adequately disperse wheelchair spaces throughout the arena."  (Matthew Mosk, Ian Shapira, "Buying a Ticket to Court", Washington Post, Dec. 8;  Mark Pratt, "Theaters Sued Over Disabled Seating", AP/FindLaw, Dec. 18).  And: "Country music star Garth Brooks is being sued for allegedly limiting wheelchair seating at a concert so 'pretty women' could sit in the first two rows.  Brooks' attorney denied the allegation, saying people in the front rows are generally Brooks' friends.  A judge ruled Friday that the complaint can proceed to trial, but said Brooks' liability is limited because he had no control over concert operations at Seattle's Key Arena." ("Brooks accused of discrimination", AP/Washington Post, Dec. 17). 

December 29, 2000-January 2, 2001 -- Enviro litigator: debate belongs in Congress, not courts.  We promise we didn't make up the following quote, though we understand why it might astound readers familiar with the environmental movement's record over the past three decades of heading for court in quest of victories it couldn't win in Congress: "Howard Fox, a lawyer with the Earthjustice Legal Defense Fund [commenting on a pending high court case which could invoke the "nondelegation" doctrine to strike down EPA-set air standards], said that industry should take its battles over national environmental policy to Congress rather than pressing the Supreme Court to overturn half a century of legal precedents that allowed Congress to delegate authority to the regulatory agencies.  'We think EPA's policy on this issue is a good policy,' said Fox, who is representing the American Lung Association in the case.  'But if someone wants to have a debate on public policy, it should be in the Congress, not the courts.'" (Margaret Kriz, "Trying to Roll Back the Regulators", National Journal, Nov. 4, not online).  See also Gregg Easterbrook, "Green values", The New Republic, Nov. 13). 

December 26-28 -- That'll teach 'em.   In the largest personal-injury verdict ever handed down against the city of Chicago, a jury has ordered the city to pay $50 million to the parents of 19-year-old Douglas Gant, who died of an asthma attack.  The ambulance arrived eight and a half minutes after the mother's 911 call, but lawyers argued that it should have come sooner and that in the mean time operators should have given the family instructions on resuscitation, all of which "constituted 'willful and wanton misconduct,' the standard for erasing municipal immunity."  Just the sort of development sure to attract talent into the emergency services, at least if you believe the law schools' invisible-fist theory.  (Margaret Cronin Fisk, "911 Incident Brings $50 Million Award", National Law Journal, Dec. 13)(& letter to the editor from lawyer for Gant, May 7, 2004). 

December 26-28 -- Appearance-blind hiring?   Green-haired Santas, take hope!  A popular marketing strategy among hotels, restaurants and other hospitality businesses is to differentiate themselves by style, with some going for a hip look, others dignified, others conveying a mood of family fun, and so forth.  "But when hoteliers try to control the look and feel of their personnel, they can run into big legal trouble."  They may be violating employment law if they want to hire only "lithe" or "athletic-looking" personnel, for example.  However, Colonial Williamsburg, the historical re-creation in Virginia, did manage to escape being sued after it asked an employee with a wild dye job to redo the look of her hair to something more "natural-looking".  (Virginia Postrel, "When the 'Cool' Look Is Illegal", Forbes, Nov. 27). 

December 26-28 -- Updates.   Further developments in stories already covered in this space: 

* The tactic that occurred to various businesses of demanding that their insurance companies pay the cost of their Y2K remediation efforts, under "sue and labor" clauses originally arising from maritime emergencies (Sept. 16, 1999), has met with a setback in the first court to rule on the issue.  Justice Charles E. Ramos of State Supreme Court in Manhattan ruled that the Xerox Corp. should not have waited for three years, during which it spent $138 million on the Y2K problem, before notifying its insurer that it was hoping to pass the costs along.  (Barnaby J. Feder, "Court Rules on Year 2000 Claim", New York Times, Dec. 22 (reg)). 

* Cameras in the hospital: a New Jersey appeals court has set aside Cooper Medical Center's rule against legal photography (see Oct. 18) so as to allow a lawyer into its trauma unit to take pictures of a client (Randall J. Peach, "Court Overrides Hospital's Ban on Photographs in Intensive Care Unit", New Jersey Law Journal/Law.com, Dec. 4). 

* In the latest sign that "baby Castano" (statewide class action) tobacco cases are not faring well, a New York court has rejected the idea of certifying a statewide class of ill smokers to sue tobacco companies ("NY court rejects smokers' class-action certification", Reuters/FindLaw, Nov. 30). 

December 22-25 -- Victory in Philadelphia.   "A federal judge yesterday dismissed Philadelphia's lawsuit against gun manufacturers, ruling that the city and several civic groups that joined the suit did not have legal standing to sue."  Even if the plaintiffs had survived the standing issue, declared federal judge Berle M. Schiller, their "novel legal theories" would have failed as a matter of law.  "The city's drive to sue gun manufacturers began three years ago, under Mayor Edward G. Rendell. However, Rendell, who has ambitions to run for governor in 2002 in a state [Pennsylvania] that is famously pro-gun rights, eventually balked at filing a suit."  His successor as mayor, John Street, did proceed to sue.  Many other cities' gun suits have also been dismissed, most recently Chicago's. (Frederick Cusick, "Court rejects city gun lawsuit", Philadelphia Inquirer, Dec. 21). 

December 22-25 -- Suits even ATLA admits are frivolous dept.   An inmate at a Texas prison sued Penthouse magazine, saying its recent photo spread of presidential accuser Paula Jones was insufficiently pornographic.  Federal judge Sam Sparks dismissed the suit and fined the prisoner $250 for frivolous litigation, adding to his opinion a 12-line poem which concluded: "Life has its disappointments. Some come out of the blue/ But that doesnít mean a prisoner should sue."  ("Dissatisfied Customer", Reuters/ABCNews.com, Dec. 20) 

December 22-25 -- Britain's delicate soldiery.   The chief of the British military staff, General Sir Charles Guthrie, has delivered a stinging attack on "what he called a culture of 'risk aversion', warning of the prospect of young officers being sued by their platoons for leading men into action which could lead to death or injury. ... In a swipe at the 'litigious nation' Britain was becoming, Sir Charles expressed surprise that policemen involved in the Hillsborough football disaster were awarded compensation for the horrors they had to cope with. ... He added: 'But what really concerns me about the creeping advance of litigation is that it will breed a cautious group of leaders who may step back from courageous decisions for fear that they will be pursued through the courts if it all goes wrong. ... There is a culture of risk aversion developing in society which is anathema to servicemen. We are not foolhardy but our profession requires a degree of decisiveness, flair and courage which sits badly with some of the more restrictive practices of modern employment legislation.'"  In particular, Guthrie assailed the idea recently floated by figures within British officialdom (see Sept. 29, Oct. 16) that the military should be compelled to accept disabled recruits: "we need to guard against such ill-conceived ideas in future".   (Richard Norton Taylor, "Defence chief lays into culture of 'risk aversion'", The Guardian (UK), Dec. 20). ("Armed Forces 'under threat from human rights legislation'" (text of speech), Daily Telegraph, Dec. 21; Michael Smith, "Guthrie attacked over ban on disabled", Daily Telegraph, Dec. 21; "General alert" (leader/editorial), Dec. 21).  And the U.K. defense ministry has announced that the noise of military brass bands, as well as that from gunfire during infantry training exercises, is in violation of occupational-safety regulations safeguarding workers from excessive noise.  "'One solution would be to provide ear protectors during training, but then soldiers couldn't hear their sergeant major giving orders,'" said a spokesman.  ("British Army Bands May Have to Pipe Down", Reuters/Excite, Dec. 21). 

December 22-25 -- Not pro bono, not nohow.   The roundtable discussion in the November Harper's on slave reparations lawsuits (see Oct. 25, July 14) was going along quite merrily, and then, as American Lawyer tells the tale, "came a conversation-stopper, when one panelist had the nerve to suggest that the lawyers toil without pay:" 

Alexander Pires, Jr.: So would you all work for free? 

Dennis Sweet: What? 

Richard Scruggs: Um. 

Willie Gary: Clients sometimes try to negotiate me down to 10 percent on a case, and I say, "Why would you want me working unhappy for you?  [If I'm unhappy,] I'll get you 100,000 bucks.  If you got me happy, I'll get you 2 million." 

Pires: Maybe I'm wrong. 

Jack Hitt (moderator): I guess that issue's resolved.  (Harper's, November; quoted in American Lawyer, Dec. 2000) 

December 22-25 -- Welcome visitors.   Among the many personal websites linking to Overlawyered.com: Ellen's Place, Jocelyn Payne, Whoozyerdaddy (Oct. 10), Carl Riegel and Melissa Dallas, Paul Falstad, and Frank Cross (Siskiyou County (Calif.) Amateur Radio -- Aug. 3). 

December 21 -- Errin' Brockovich?    "An arbitrator in Ventura County, Calif., ruling on a legal malpractice case involving a law firm made famous by the film 'Erin Brockovich', found that Brockovich's testimony in the arbitration proceeding 'was hardly credible'," notes the Wall Street Journal's Opinion Journal.  Former client Bilal Baroody had sued the law firm of Masry and Vititoe after losing more than $400,000 in a real estate deal on which it had represented him.  Arbitrator Jeffrey Krivis wrote that the Masry/Brockovich firm had been "preoccupied with other significant matters" during the episode, which occurred while the firm was litigating the Hinkley, Calif. toxic case portrayed in the Julia Roberts movie.  "[Faulty representation] is evidenced not only by the poor result, but also by the firm's overall lack of professionalism; by the firm's putting its own interests above those of the client; and by the firm playing fast and loose with the rules of professional conduct," wrote Krivis.  Partner Ed Masry criticized the findings as mistaken and as reflecting the arbitrator's excessive credence in Baroody's witnesses; it is not known whether his professional liability insurer will appeal.  Moreover, "a claim isn't necessarily because you did something wrong," Cathy Hastings, insurance manager for the State Bar of California, told a reporter. "It's only because someone decided to sue you."  That last strikes us as a noteworthy concession from a bar association, and we just wish it would be forthcoming more often when the topic was something other than claims against lawyers themselves.  (Brad Smith, "Law firm made famous by film ruled negligent in case", Ventura County Star, Dec. 13). 

December 21 -- ADA requires renting to addiction facility.   A jury has found that the port of Baltimore violated the Americans with Disabilities Act when it declined to lease berth space to a ship housing a residential treatment program for recovering drug addicts.  Officials of the Maryland Port Administration had considered a working port an unsuitable location for such a facility.  The jury did turn down the drug program's request for millions of dollars in damages, however.  Drug users in treatment programs are deemed disabled under the ADA and enjoy its protection.  (Kate Shatzkin, "Judge orders long-term lease for ship treating drug addicts", Baltimore Sun, Dec. 12). 


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