ARCHIVE -- DECEMBER 2001
December 10 --
"Halliburton Shares Plunge on Verdict". The market
clipped $3.8 billion off the giant oil field service company's share valuation
Angelos got a $30 million jury award against it. "The ruling
is the fourth significant asbestos
ruling against Halliburton since late October, according to Merrill Lynch
... Over the last 25 years, Halliburton has settled 194,000 asbestos claims,
the company said. The average payment was about $200, according to
Allen Brooks, executive director at CIBC World Markets. As of Sept.
30, the company faced 146,000 open asbestos claims and 182,000 more from
a former subsidiary called Harbison-Walker." (David Koenig, AP/Yahoo,
7; Neela Banerjee, "Halliburton Battered as Asbestos Verdict Stirs Deep
Anxieties", New York Times, Dec.
8). Federal-Mogul, the big auto parts maker, became the latest
large bankruptcy to result from asbestos litigation with a filing two months
ago (Joe Miller, "Asbestos suits hurt Fed-Mogul", Detroit News,
"In late October, a Mississippi jury ordered three firms, including
oil-services giant Halliburton and manufacturer 3M, to pay six plaintiffs
$25 million apiece. ...What made jaws drop was that the plaintiffs weren't
even sick–their X-rays just showed they stood an increased chance of getting
sick. 'Most of these guys have not missed a day of work in their
lives,' their lawyer said. ... To unearth new clients for lawyers, screening
firms advertise in towns with many aging industrial workers or park X-ray
vans near union halls. To get a free X-ray, workers must often sign forms
giving law firms 40 percent of any recovery. One solicitation
reads: 'Find out if YOU have MILLION DOLLAR LUNGS!'" ("Looking for
some million-dollar lungs", U.S. News, Dec.
Some say asbestos defendants should try to avoid angering juries by
paying claims without a fight, but an attorney for power plant maker Babcock
& Wilcox said an uncritical approach to claims had proved too expensive
for his now-bankrupt client: "In the past, you literally filled out a form
in five minutes that stated the claimant had a note from the doctor saying
he was coughing and had other symptoms and showed that he worked at the
site. It took five to 10 minutes to fill out the form that would
routinely lead to checks for thousands of dollars." (Terry Brennan, "Firms
Wary of Challenging Asbestos Claims", The Deal, Nov.
13). And battling continues in a case (see Feb.
12-13) in which B&W and other asbestos defendants have attempted
to turn the tables on leading plaintiff's firms, arguing that they have
violated racketeering laws by coaching clients' testimony and by threatening
retaliation against companies that seek a legislative solution to the litigation
morass. (Mark Hamblett, "Asbestos Companies Bring RICO Suit Against
Plaintiffs' Firms", New York Law Journal, Sept. 6). This spring
defendant law firms won a court order prohibiting the plaintiff companies
from questioning their former, as well as their current, employees without
counsel being present -- i.e., even if the former employees are eager to
spill the beans they will not be allowed to do so except in the presence
of someone representing their former employer. That certainly should
put a chill on whistleblowing (Mark
Hamblett, "Employees of Law Firms Charged With Racketeering Shielded From
Interviews Without Counsel", New York Law Journal, April
Plus: Dallas alt-weekly Observer, which had run some of
the best journalism on the Baron & Budd client-coaching asbestos scandal,
returned with a terrific follow-up in March which we've unconscionably
delayed in linking (Thomas Korosec, "Homefryin' with Fred Baron", Dallas
29). (DURABLE LINK)
December 10 --
Steve Chapman on military tribunals. "President
Bush has provoked a storm of criticism by authorizing special military
tribunals to try terrorists caught in our war against al Qaeda. Some of
the complaints, dealing with the specific rules and procedures that the
administration proposes, are worth considering. But other gripes seem to
miss the crucial point that war is vastly different from law enforcement.
" (Chicago Tribune/ TownHall, Dec.
December 10 --
Love contracts. Some lawyers continue to advise
employers to get co-workers who are in amorous relationships to sign legal
documents affirming that the liaison is indeed voluntary, and that they
will not harass each other if it
ends. A 1998 survey by the Society for Human Resource Management
"found that while 88 percent of the companies that discourage workplace
romances do so out of fear of sexual harassment claims, just 4 percent
of such relationships resulted in claims that led to litigation." We don't
know where that "just" comes from -- a 4 percent risk of getting the employer
dragged into court sounds pretty serious to us. (Torri Minton, "Caught
in the pact -- Couples involved in office dalliances required to sign 'love
contract'", San Francisco Chronicle, Dec.
2). (DURABLE LINK)
December 10 --
"Saudi Arabia finally gets tough on terrorism!"
"We are fighting a holy war to eradicate the source of the biggest corruption
on earth," says Saudi lawyer Ahmad al-Tuwarjiri, but it turns out he's
talking about ... tobacco companies,
who he's suing in a legal action in Riyadh. (Frank Gardner, "Saudi
hospital fights tobacco 'terrorists'", BBC, Dec.
4, via Untold Millions weblog, Dec.
5) (see Nov. 16, 2000 -- we're
not sure what became of that earlier action, but suspect that it didn't
fare well, since the action's now moving to Riyadh). (DURABLE
December 7-9 --
Counterterrorism agents, on their own. Gabriel Schoenfeld,
writing in Commentary: "Last year, at the behest of Congress,
the National Commission on Terrorism, a body of leading experts, issued
findings" on U.S. vulnerability to terrorist attack. Among other
problems it warned of: the nation lacks adequate counterterrorist efforts,
including intelligence monitoring of terrorist groups. "According
to the commission, the guidelines governing the recruitment of 'unsavory'
sources, introduced by the Clinton administration in 1995, had created
a climate within the CIA that was 'overly risk-averse' and that contributed
'to a marked decline in agency morale unparalleled since the 1970s.'
That is bad enough; but the morale problem had sources beyond the restrictive
guidelines. Again according to the commission, some CIA officers
and FBI special agents were being 'sued individually' by terrorist suspects
for actions taken in the course of their officially sanctioned duties.
Instead of representing them in such suits, the government was letting
the agents fend for themselves; those who chose to stay on the job were
being forced to purchase personal-liability insurance to cover their legal
"Did the commission call for an end to this preposterous state of affairs,
whereby accused terrorists have been able to turn the tables on their pursuers
and bring them to court? Not at all. It asked only that
the government provide 'full reimbursement of the costs of personal-liability
insurance.'" ("Could September 11 Have Been Averted?", Commentary,
(scroll to near end)).
December 7-9 --
Overlawyered schools roundup. A judge has thrown
out Desiree Radford's suit claiming that it was unlawful for the city of
Buffalo to lay off teachers in
her son's district without first conducting an environmental impact statement
("Judge Dismisses Mother's Case To Stop Buffalo Teacher Layoffs", WGRZ.com,
In Ohio, the case of Fairview High School junior Aaron Petitt, "who claimed
he was denied freedom of speech and due process when he received a 10-day
suspension for hanging posters of airplanes bombing Afghanistan on his
student locker," is ending with a denouement summed up in the Cleveland
paper's headline: "District settles case with student; he gets $2,000,
lawyers $21,000". Aaron's lawyers are charging local taxpayers $300
an hour for their services. (Sarah Treffinger, Cleveland Plain
Dealer, Dec. 1). Schools in Canada's
largest city will probably wind up in court because of an effort to raise
standards: "A Toronto parent group concerned about Ontario's tough new
school curriculum will encourage parents to take legal action against the
government if their children are suffering under the revamped standards."
(Lee-Anne Goodman, "Toronto parent group encourages legal action", Canadian
Press/Toronto Sun, Dec.
2). And attorney Susanna Dokupil comments on the don't- read-
grades- aloud- in- class case currently before the U.S. Supreme Court.
("Hey, Congress, Leave Us Kids Alone", The American Enterprise,
29) (see Nov. 28). (DURABLE
December 7-9 --
"Hell's litigious angels". John Leo's annual
who's-a-victim roundup leads off with the touchy motorcyclists who want
protected-group status in discrimination law: "America's next official
victim group may be roaring your way on their Harley-Davidsons."
(U.S. News, Dec.
10; Chris Weinkopf, "Born To Be Mild", FrontPage, Nov.
28; see Nov. 19-20). The Boston
Jeff Jacoby thinks this would be a good time to take a stand on behalf
of the principle of freedom of association: "Bikers Demand Their 'Civil
Rights'", Nov. 29, via Center-Right).
December 7-9 --
Chrysler dodges a $250 million dart. Blessed with
a favorable appellate circuit (the Fourth) and high-powered counsel (Ted
Olson, now solicitor general, and Theodore Boutrous of Gibson, Dunn &
Crutcher), DaimlerChrysler has managed to get a $250 million South Carolina
punitive award overturned. "The court also reversed and remanded
for retrial the jury's finding of liability and its award of [$12.5 million]
compensatory damages, finding that Chrysler should have been able to introduce
evidence that a child who was ejected from a Chrysler minivan was not wearing
a seat belt." ("Chrysler Escapes $250 Million in Punitives", National
Law Journal, Nov. 1). San Francisco Chronicle legal
columnist Reynolds Holding says the disparate fate of punitive damages
on appeal in different cases -- $5 billion against ExxonMobil held excessive
in the Valdez spill case, $25 million upheld against Philip Morris in a
case brought by an individual smoker-- suggests that critics of punitive
awards may have a point about their arbitrariness: would anyone have been
especially surprised had the outcome been reversed and the tobacco maker
rather than Exxon had gotten its award reduced? ("Scales of justice out
of whack", Nov.
25). And if you still thought plaintiffs in our legal system
bore the burden of proving their legal case, get with it: "The New Jersey
state judiciary has issued model civil jury charges that implement a new
standard of proof in automobile crashworthiness cases, making it clear
that automakers now have the burden
of proving their vehicles provide occupants adequate protection." (Charles
Toutant, "New Jersey Shifts Burden of Proof in Auto Design Cases", New
Jersey Law Journal, Sept. 11).
December 5-6 --
Cosseted to distraction. New Jersey has made itself
"the darling of child-safety advocates" by becoming the first state to
adopt a National Highway Traffic Safety Administration recommendation that
children in cars be required to ride in booster seats until they weigh
80 pounds or reach their eighth birthday. But even some conscientious
parents say the new law goes too far: older kids rebel at being forced
back into "baby" seating, carpools break up as adult co-workers shun the
nannyized vehicles, besides which the devices cost good money. (Kaitlin
Gurney, "Tough N.J. safety-seat law poses dilemmas", Philadelphia Inquirer,
Nov. 30). And the Washington Times reports a presumably unintended
consequence of those red-light cameras that revenue-hungry municipalities
have installed to generate citations: "Some D.C. police officers say they
are slowing their response to emergencies because photo-radar cameras are
ticketing them for speeding ... They said they and other officers have
been forced to pay the fines, and are now on edge about speeding to a crime
scene and running red lights in emergencies." (Brian DeBose, "Cops get
speeding tickets from cameras", Nov. 29).
December 5-6 --
"Victims of Day-Trader Rampage Say Industry Itself to Blame".
Two years ago financially ruined day trader Mark Barton walked into two
office buildings in the Buckhead section of Atlanta and massacred nine
persons. Now lawyers, "arguing that Georgia tort law should evolve
with the times," are hoping to put the day-trading segment of the securities
industry on trial, saying that the volatile and risky nature of its business
made such a crime foreseeable. (Trisha Renaud, Fulton County Daily
Report, Nov. 30). Update Jan.
9-10, 2002: judge dismisses suit against building owners and managers,
but lets it go forward against two day-trading firms. (see further updateDec.
December 5-6 --
"EU considers plans to outlaw racism". Free
speech for me, but not for thee: "Racism and xenophobia would
become serious crimes in Britain for the first time, carrying a prison
sentence of two years or more, under new proposals put forward by Brussels
... [the ban includes] a wide range of activities that sometimes fall into
the sphere of protected political speech, such as 'public insults' of minority
groups, 'public condoning of war crimes', and 'public dissemination of
tracts, pictures, or other material containing expressions of racism of
xenophobia' -- including material posted on far-Right internet websites."
The "plans, drafted by the European Commission, define racism and xenophobia
as aversion to individuals based on 'race, colour, descent, religion or
belief, national or ethnic origin'". (Ambrose Evans-Pritchard, Daily
29). In The American Prospect, Wendy Kaminer discusses
the suit filed in August against America Online for allegedly allowing
participants in its chat rooms to engage in "hate speech" against Muslims:
"Virtual Offensiveness", Nov.
19 (see Sept. 3).
December 5-6 --
Attorney can sue for being called "fixer". A federal
judge has ruled that Pennsylvania attorney Richard Sprague can proceed
with his defamation lawsuit against the American Bar Association and its
magazine, the ABA Journal, which had called him a "fixer".
Although writers often employ that term to describe the sort of political
wheeler-dealer who uses connections in a perfectly lawful way to resolve
people's problems, the judge found the term might also evoke an impression
that Sprague improperly "fixed" cases. (Shannon P. Duffy, "Lawyer's
Defamation Claim Against ABA Found Valid", The Legal Intelligencer,
Nov. 19). Update Nov.
30, 2003: case settles for undisclosed sum and half-page apology.
December 5-6 --
Resources: terrorism and the law. Some useful jumping-off
points for research and reading: Jurist;
Federalist Society briefing
December 4 -- There'll
always be a California. It's a state of mind, really:
* In a notice letter sent to Nestlé,
Roll Industries Inc.,
numerous other confectioners including local favorites Ghirardelli
and See's, attorney Roger Carrick of
Los Angeles's Carrick Law Group has charged the companies with violating
the state's Proposition 65 right-to-know
law by failing to post warning labels on chocolate advising consumers
that it contains toxic substances such as lead and cadmium. Michele
Corash, a Morrison & Foerster lawyer defending Hershey
and Mars in the controversy, says the
Food and Drug Administration has called chocolate harmless: "What Mr. Carrick
is complaining about is tiny amounts of trace minerals that are present
in virtually all foods. They are in the soil, and foods that are
grown in soil absorb them." Carrick says it hasn't been proven that
all the lead and cadmium content are from natural sources, but even trial-
lawyer- friendly California AG Bill Lockyer has weighed in on the side
of the candy makers. (John Rosmer, "Chocolate: It's Fattening, but
Is It Toxic?", San Francisco Daily Journal, Oct. 29, not online;
Dan Evans, "Death by chocolate?", San Francisco Examiner, Nov. 26).
And Forbes explains how Prop 65 has made it possible for bounty-hunting
lawyers to do very well: "Visit any doctor or dentist in California. If
you don't see signs warning you that the physician is using potentially
harmful chemicals as defined by the state's Proposition 65 (e.g., mercury
fillings), haul him into court and demand $2,500 for each day he didn't
post the warnings. You get 25% of the loot, the state 75%". (Dorothy
Pomerantz, "Toxic Avengers", Forbes, Oct.
* You may have thought your home belonged to you, but some disabled-rights
activists have other plans for it: "In what would be the first such rules
in the nation, Santa Monica officials are considering a proposal to require
that all privately built new homes and those undergoing major remodeling
have a wheelchair ramp entry, wide interior hallways and at least one handicapped-accessible
bathroom." (Bob Pool, "Wheelchair Access as a Must for Residences", L.A.
* "Richard Espinosa, whose assistance dog allegedly was attacked
by the [Escondido] Public Library's pet cat last year, filed a lawsuit
against the city yesterday seeking $1.5 million in damages." (see May
7 and (letter from Espinosa) June
13) (& see Apr. 15, 2002) (John
Behrman, "$1.5 Million Suit Filed in Library Cat Case", San Diego Union
December 4 -- An
ill wind. Among those prospering in the wake of the Sept.
11 attacks: employment lawyers, whose
phones may ring nonstop in a time of mass layoffs. ("Layoff Lessons",
Counsel, Nov. 21). Garry Mathiason of the management-side firm
Littler Mendelson says that in addition to that, his firm "has three key
advantages: sex, drugs and violence" -- all sources of legal risk for employers.
(Krysten Crawford, "Littler's Labors", The Recorder, Nov. 20).
December 4 -- Headline
of the day. "Sept. 11 Laws Raise Fears of Tort Reform"
-- Bob Van Voris, National Law Journal, Nov. 27. Love that
"fears". The NLJ does know its audience, doesn't it?
December 3 -- Can't
do anything but legislate. Some constituents are
furious at Pennsylvania state representative Jane Baker, a Republican,
after learning that her lawyers have filed papers in a car-accident case
portraying her as "virtually unemployable" aside from her lawmaking job.
"In a televised debate last fall, Baker assured viewers that, both physically
and mentally, she was up to the task of representing them in Harrisburg.
Asked directly if she could read and comprehend well, she replied, 'I'm
fine.' She went on to say that a physical injury to her left arm
'appears to be permanent, but otherwise ... I'm ready to go to work' in
"Legal papers Baker filed last month paint a dramatically different
portrait. If not re-elected, Baker claimed Oct. 19 in legal papers
tied to her case, she will be 'virtually unemployable' because of her condition,
which includes physical and 'multiple cognitive defects' that include problems
remembering and recollecting what she has read.'" Baker's suit is
demanding $7.5 million in damages from Judith V. Fulmer, "a former friend
who pleaded guilty to drunken driving and leaving the scene of an accident"
after police say her vehicle struck Baker as she walked along a country
road. (Mario Cattabiani, "Baker’s lawsuit puzzles some", Allentown
Call, Nov. 4).
December 3 -- "Terrorists
push plots from jail". It's practically a tradition
for American inmates to continue running criminal enterprises from their
cells, but the stakes have gotten higher: investigators now realize that
Mideast terrorists locked up in American prisons have repeatedly managed
to communicate with outside followers to approve and even help plan further
murderous attacks. The Bush administration on Oct. 31 announced a
new practice of listening in on conversations between detainees and their
attorneys when it determines there is "reasonable suspicion" that such
communications are related to future terrorist acts; Attorney General John
Ashcroft says that there are only 13 persons in custody -- at the moment
-- for whom it would like to use such power. The detainees and their
attorneys are to be advised of the monitoring, and a "privilege team" is
supposed to screen the resulting information so that it does not reach
the eyes of prosecutors or regular investigators. American Bar Association
president Robert A. Hirshon says such monitoring is constitutional only
if a judge approves it in advance under a probable-cause standard, and
Senate Judiciary chair Patrick Leahy (D-Vt.) also views the new practice
as "unacceptable" in its current form. (Cam Simpson, Chicago Tribune,
19; Pete Yost, "Ashcroft Defends Monitoring of Inmate-Attorney Conversations",
AP/Law.com, Nov. 13; Tom Gede, Kent Scheidegger and William Otis, "Monitoring
Attorney-Client Communications of Designated Federal Prisoners", Federalist
Society National Security White Papers, Dec.
December 3 -- Lending
rules trip up litigation-finance firms. Class-action
lawyers have repeatedly tripped up financial services firms by arguing
in court that transactions characterized as cash advances (such as "rapid
refunds" that tax-preparing companies issue before the actual IRS check
arrives) are in reality loans, leaving companies liable if they have not
made the full range of disclosures required by truth-in-lending law (see,
for example, Apr. 5). So some might
see a kind of poetic justice in the news from Ohio, where an appellate
court has "ruled that two companies that advance money to personal injury
plaintiffs on the understanding that they will be repaid only if the plaintiffs
prevail, are making loans -- not 'contingent advances' -- and violated
state usury and lender- registration laws." Every so often, surprising
as it may seem, the litigation community does wind up having to live by
the same rules it prescribes for the rest of us. (Gary Young, "Ohio
Court Rules Against Litigation-Loan Firm in Usury Case", National Law
Journal, Nov. 16) (see also letter to the editor, Oct.